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Military Police Complaints Commission

FYNES PUBLIC INTEREST HEARINGSheld pursuant to section 250.38(1) of the National Defence

Act, in the matter of file 2011-004

LES AUDIENCES D'INTÉRÊT PUBLIQUE SURE FYNEStenues en vertu du paragraphe 250.38(1) de la Loi sure la

défense nationale pour le dossier 2011-004

TRANSCRIPT OF PROCEEDINGSheld at 270 Albert St., Ottawa, Ontario

on Tuesday, May 22, 2012mardi, le 22 mai 2012

VOLUME 25

BEFORE:

Mr. Glenn Stannard Chairperson

Ms Raymonde Cléroux Registrar

APPEARANCES:

Mr. Mark Freiman Commission counselMs Beth AlexanderMr. Rob Fairchild

Ms Elizabeth Richards For Sgt Jon Bigelow, MWO Ross Tourout,Ms Korinda McLaine LCol Gilles Sansterre, WO Blair Hart, PO 2 Eric McLaughlin,

Sgt David Mitchell, Sgt Matthew Alan Ritco, Maj Daniel Dandurand,Sgt Scott Shannon, LCol Brian Frei, LCol (ret’d) William H. Garrick

WO (ret’d) Sean Der Bonneteau, CWO (ret’d) Barry Watson

Col (ret’d) Michel W. Drapeau For Mr. Shaun FynesMs Marie-Christine Fortin and Mrs. Sheila Fynes

A.S.A.P. Reporting Services Inc. © 2012

200 Elgin Street, Suite 1105 333 Bay Street, Suite 900

Ottawa, Ontario K2P 1L5 Toronto, Ontario

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M5H 2T4(613) 564-2727 (416) 861-

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123

(ii)

INDEX

PAGE

AFFIRMED: MAJOR RORY FOWLER 16

Examination-in-chief by Mr. Freiman 16Cross-examination by Col. Drapeau 102Cross-examination by Ms Richards 110

SWORN: LIEUTENANT-COLONEL BRUCE KING 111

Examination-in-chief by Mr. Freiman 111Cross-examination by Col. Drapeau 162

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(iii)

LIST OF EXHIBITS

NO. DESCRIPTION PAGE

P-88 Statement of Claim 1

P-89 Excerpts from Rules of Professional Conduct, Law Society of Upper Canada, the Professional Conduct Handbook, Law Society of British Columbia, and the Law Society of Alberta Code of Professional Conduct 2

P-86 Witness Book Index, Maj Rory Fowler 2

P-87 Witness Book Index, LCol Bruce King 3

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Ottawa, Ontario

--- Upon resuming on Tuesday, May 22, 2012

at 9:35 a.m.

THE CHAIRPERSON: Welcome back

after the holiday weekend.

Mr. Freiman?

MR. FREIMAN: There’s a couple of

preliminary matters. I am going to ask Ms

Alexander to do the preliminary documentary exhibit

issues and then I think Ms Richards has a matter

she would like to deal with.

MS ALEXANDER: There’s a couple of

items that need to be entered as exhibits. The

first is a statement of claim between the Fynes and

the Attorney General of Canada, Minister of

National Defence.

THE REGISTRAR: Exhibit P-88.

EXHIBIT NO. P-88: Statement

of Claim

MS ALEXANDER: The Rules of

Professional Conduct from the Law Society of Upper

Canada.

MS RICHARDS: Before you mark

that, just to complete the description, there are

actually three excerpts that I will be referring

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to. I can read them into the record.

The first is the Rules of

Professional Conduct for the Law Society of Upper

Canada; the second is the Professional Conduct

Handbook for the Law Society of British Columbia;

and the third is the Law Society of Alberta Code of

Professional Conduct.

THE REGISTRAR: Exhibit P-89 for

the three.

EXHIBIT NO. P-89: Excerpts

from Rules of Professional

Conduct, Law Society of Upper

Canada, the Professional

Conduct Handbook, Law Society

of British Columbia, and the

Law Society of Alberta Code

of Professional Conduct

MS ALEXANDER: The witness book

index for Major Fowler.

THE REGISTRAR: P-86.

EXHIBIT NO. P-86: Witness

Book Index, Maj Rory Fowler

MS ALEXANDER: And the witness

book index for Lieutenant-Colonel King.

THE REGISTRAR: P-87.


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EXHIBIT NO. P-87: Witness

Book Index, LCol Bruce King

THE CHAIRPERSON: Ms Richards?

MS RICHARDS: Good morning, Mr.

Chair. As you will recall, many weeks ago when we

first commenced we had some discussions about the

claim of solicitor-client privilege and at that

time there was a request from the Commission that a

request be communicated to the Minister of National

Defence to waive the claim of solicitor-client

privilege.

Subsequent to that, I have had

some conversations with Commission counsel. Given

the next three witnesses who have been called to

testify are lawyers with the Judge Advocate General

branch, I thought it would be appropriate at this

point in time to close the loop on that request.

I have advised Commission counsel

previously and I would like to officially advise

the Chairman now that the Minister of National

Defence is maintaining the claim of solicitor-

client privilege over all solicitor-client

privileged advice that was given in the course of

this file.


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Before these witnesses testify, I

thought it was important to outline from our

perspective what the two significant implications

are that flow from that, Mr. Chair.

The first, as you know, is

something we have discussed a lot and that is the

scope of evidence which this Commission can and

cannot receive. Given the assertion and the

maintenance of the claim of solicitor-client

privilege, it is our position that this Commission

cannot receive any evidence that is protected by

solicitor-client privilege.

I have previously provided you

with an overview of our position and the breadth of

that claim. Just to remind you, Mr. Chair, it is

our position that solicitor-client privilege

includes all communications made with a view to

obtaining legal advice whether they deal with

matters of an administrative nature or with the

actual nature of the legal problem. It is all

communications made within the framework of a

solicitor-client relationship and it arises as soon

as the potential client takes the first step, even

before a formal retainer is established.

What that means in terms of the


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next three witnesses who are called to testify

before you is that these witnesses cannot testify

or provide any evidence that would disclose

directly or indirectly communications that they had

with members of the Canadian Forces or the

Department of National Defence in the course of

this file in their capacity as a legal adviser.

But there is also a second and

equally important aspect to this claim of

solicitor-client privilege that I want to draw to

your attention, Mr. Chair, and that is the

professional obligations that this imposes upon the

next three witnesses who are going to testify

before you.

I have provided you the Rules of

Professional Conduct, and I just wanted to outline

very briefly for you what those restrictions are.

As you will recall, when you had

the two padrés testifying before you, Commission

counsel quite rightly noted that there were certain

communications that they had obtained in confidence

that they could not discuss before this Commission,

and that is the same, if not heightened, in the

case of lawyer.

So, in addition to the evidentiary


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restrictions which are imposed upon you, there are

certain professional obligations that are imposed

upon the witnesses who are going to testify.

I raise that before you, Mr.

Chair, because it’s important for you and the

public to understand that if these witnesses are

unable to answer questions, it’s not because they

are being difficult or they are intending not to be

co-operative with this Commission, it is because

they have certain obligations that prohibit them

from answering the questions.

As you are no doubt aware, having

dealt with lawyers probably as much or more than

many people in this room, lawyers, including those

within the JAG branch, are regulated by the law

society in the province in which they have been

called to the Bar, and all of those law societies

have rules of professional conduct.

I have given you these three

because these are the three that apply to the next

three witnesses.

These rules all impose an

obligation on counsel to keep confidential all

information that they have obtained in the course

of their role as a legal adviser.


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If we look at the Rules of

Professional Conduct for the Law Society of Upper

Canada, and if I could get you to turn -- it’s

numbered on the bottom -- to page 17, you will see

down at the bottom, A2.03 Confidentiality”. There is a requirement embodied in that section which

requires lawyers to keep in strict confidence all

information concerning the business and affairs of

the client that they have acquired in the course of

their professional relationship.

If you turn over to page 18, the

Law Society of Upper Canada provides what is called

ACommentary” to the rules. So it’s some explanation that assists counsel in governing

themselves and judging whether their conduct meets

the requirements of the rule.

First and foremost, at the top you

will see the statement:

AA lawyer cannot render effective professional

service to the client unless

there is full and unreserved

communication between them.

At the same time, the client

must feel completely secure


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and entitled to proceed on

the basis that, without any

express request or

stipulation on the client's

part, matters disclosed to or

discussed with the lawyer

will be held in strict

confidence.”

If you skip down to the fourth

paragraph:

AGenerally, the lawyer should not disclose having been

consulted or retained by a

particular person about a

particular matter unless the

nature of the matter requires

such disclosure.”

You flip over to page 19, under

the ACommentary” it states:AThe rule prohibits disclosure of confidential

information because

confidentiality and loyalty

are fundamental to the

relationship between a lawyer


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and client and legal advice

cannot be given and justice

cannot be done unless clients

have a large measure of

freedom to discuss their

affairs with their lawyers.”

Although we have different rules

for every province, you will see -- I will give you

the references -- the rules are very similar. The

next one is the Law Society of British Columbia.

It’s called the Professional Conduct Handbook. If

you turn to page 11, duty of confidentiality, you

will see at point 1 that the language is very

similar to the language used in the Ontario rules.

Similarly, there is a prohibition against

disclosing the fact of having been consulted or

retained unless the nature of the matter requires

such disclosure.

I would also draw to your

attention under point 5 that a lawyer shall not use

any confidential information respecting a client

for the benefit of the lawyer or another person or

to the disadvantage of the client.

To the extent that there are any

allegations against a particular counsel, they


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can’t use confidential information to defend

themselves.

Finally, the Law Society of Upper

Canada, 7-1 --

THE CHAIRPERSON: Are we back to

the Upper Canada one?

MS RICHARDS: Sorry, the Law

Society of Alberta, 7-1, under Chapter 7,

Confidentiality. Again, it’s very similar

language:

AA lawyer must not disclose any confidential information

regardless of its source and

whether or not it is a matter

of public record.”

Similarly:

AA lawyer must not disclose the identity of a client nor

the fact of the lawyer's

representation.”

If you go over to 7-2, there is

commentary which is very similar to the commentary

that I have drawn your attention to under the Law

Society of Upper Canada rules. Under the general

commentary under the first paragraph, it talks


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about the central importance of frank and

unreserved communication between lawyers and

clients and that this confidentiality is essential

to the credibility of the profession and the trust

that must be reposed in a legal adviser.

If you turn over to 7-3 under

AG.3” which is the other commentary, there is a comment -- I didn’t take you to it in the Ontario

rules, but there is a comment about confidentiality

versus privilege. It talks about the distinction

between -- and this is why I have drawn this to

your attention. The one issue before you is the

fact that you cannot receive solicitor-client

information into evidence, but the other issue is a

confidentiality issue that is imposed upon these

witnesses before you.

Here the commentary states:

AThe ethical rules are wider since they apply whether or

not a judicial proceeding is

involved, and without regard

for the nature or source of

the information or the fact

that others share the

knowledge.”


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I draw these two facts to your

attention before the witnesses testify. I think

it’s very important to understand that there may be

questions asked today of these witnesses which they

are not permitted to answer because of these

restrictions imposed upon them by the various law

societies to which they belong.

THE CHAIRPERSON: Colonel Drapeau,

any comment?

COL (RET’D) DRAPEAU: No comment,

Mr. Chair.

THE CHAIRPERSON: Mr. Freiman?

MR. FREIMAN: Thank you, Mr.

Chair.

As Ms Richards has said, she and I

have had discussions, and I believe Colonel Drapeau

was present at most of them, with respect to this

issue.

I initially set out what I believe

to be the rationale for a wider exploration of some

of these matters given the fact that the mandate of

this Commission is to review complaints against the

Military Police, and our documentary evidence

appears to suggest that among the matters that were

before the NIS were a number of legal opinions and


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views. There is a disjunction between a mandate to

review what the NIS did and a prohibition upon your

seeing what was before the NIS.

In view of that policy rationale,

I had hoped that the Ministry of National Defence

or the CFPM or the Minister, depending on the

position taken by my friends as to who has the

authority to do this, would be moved to negotiate

some relaxation without conceding any legal point

as to what was or wasn’t admissible would simply,

as a pragmatic solution to the issue of how you are

going to review the adequacy of what the NIS did or

didn’t do -- that that relaxation would come from

an order, as it were, waiving some or all aspects

of solicitor-client privilege.

That has not been forthcoming. We

are now in a situation where the Department of

Justice and its clients are taking the full,

strictest view of solicitor-client privilege. That

is their right. Whether that best accords with co-

operation with the Commission is a matter of some

judgment, and different individuals may take

different views.

My approach today is to try to

adhere as strictly as I am able to the precise


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nature of solicitor-client privilege. I do not

wish to put the witnesses into an ethical position

where they feel their ethical and professional

obligations are being compromised. My own view is

that the questions and the way the questions are

going to be framed and asked do not require any

such step on the part of any witnesses. It remains

to be seen how my friends will take this assurance

and what their analysis of my questions might be.

The purpose of calling these

witnesses is to put before you the best evidence

possible on a number of important issues that you

will have to weigh in coming to a final conclusion

in your report.

MS RICHARDS: May I respond

briefly to that?

THE CHAIRPERSON: Sure.

MS RICHARDS: Unfortunately, I

made a number of offers to Commission counsel to

meet with him in advance of the proceedings to

discuss the questions that he wanted to ask the

witnesses and he did not avail himself of that

offer.

We have received a summary of the

areas that they intend to offer. I do have very


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real concerns about what answers these witnesses

can give, but we will take it one question at a

time and see how we go.

MR. FREIMAN: I can’t let that go

by without some comment.

Commission counsel requested

interviews with these witnesses and the witnesses

declined to be interviewed. In those

circumstances, it strikes me that I have to do the

best that I can and we are going to try.

THE CHAIRPERSON: The solicitor-

client issue is straightforward but difficult in

many ways. Certainly the next three witnesses -- I

am not sure what their evidence is, I have yet to

hear that. There may be things that they would

have had to offer that would help clarify certain

situations whether they be documentation, et

cetera, et cetera, and through the solicitor-client

privilege we may be restricted from hearing that,

which then puts me in a position that I need to

draw on the other available evidence which may not

totally clarify an issue and that makes it

difficult.

Hopefully, as we work through

this, counsel can see through to have answered the


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questions that can be answered without breaching

the strictest terminology and definition of

solicitor-client privilege.

First witness, please.

MR. FREIMAN: The first witness is

Major Rory Fowler.

AFFIRMED: MAJOR RORY FOWLER

THE CHAIRPERSON: Good morning,

sir, and welcome.

THE WITNESS: Good morning, sir.

THE CHAIRPERSON: It’s not the

usual spot for the lawyer in the witness chair, but

--

THE WITNESS: I have been in a lot

of unusual spots in my life, sir.

THE CHAIRPERSON: Please proceed.

EXAMINATION-IN-CHIEF BY MR. FREIMAN:

Q. Good morning, Major Fowler.

Just at the outset I would like to set out my own

perspective. I have no doubt that you have had

numerous discussions with counsel about today’s

appearance and about the restrictions on your

ability to answer questions and the nature of the

questions which you can and cannot answer.

From my perspective, I do not


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intend to ask you whether you provided any advice

on any given matter to any given person. My

questions are directed at general topics. Whether

or not they were covered in any discussion you may

have had at any point with any given person is of

no import to me whatsoever and I do not ask you to

draw on any discussions that you may have had or

any specific questions or any facts you may have

been given.

The questions I am going to ask

you are more general than that. I invite you not

to bring into your answer any specific information

that may or may not have come from any of the

parties or any of the persons involved in this

matter.

Just by way of background, many of

these questions -- the first questions are about

you, but many of the questions about the structure

of your department will probably be helpful for

this Commission.

May I ask you for your background

in the military. If you like, you may disperse

that with your legal background, but I am

interested in your training as a lawyer and I am

interested in your experience as a member of the


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Canadian Forces.

A. Very well. First, my name is

Major Rory Fowler. I am presently the Deputy Judge

Advocate for Canadian Forces Base Kingston.

I joined the Canadian Forces as an

officer cadet in 1989 while I was attending Queen’s

University. Upon completion of my studies there in

1991, I was commissioned as a second lieutenant in

the infantry.

Following the completion of my

basic infantry officer training, I served

successively first with the First Battalion, Prince

Patricia’s Canadian Light Infantry at Canadian

Forces Base Calgary. I served as a rifle platoon

commander and reconnaissance platoon commander

there. During my tenure, I deployed on Operation

Harmony in Croatia in 1994.

After that, I was posted as

regimental exchange officer to the Second Battalion

with the Royal 22nd Regiment at the Citadel in

Québec City where I served first as the assistant

operations officer and secondly as a second command

of a rifle company.

While there I deployed on

Operation Assistance, the floods in Winnipeg.


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Following that, Operation Constable in Haiti as a

second command of a rifle company and then

Operation Recuperation, the ice storms in the

Ottawa and Montréal region.

Following my tenure at the

Citadel, I was posted to Land Force Western Area

Training Centre first as a training assistant team

leader for the militia, and subsequently as second

in command of basic training company, the training

co-ordination officer, and finally as the technical

adjutant.

At that time in 2001, I was

selected for the military legal training plan. I

attended law school at the University of Western

Ontario. I graduated in 2004. I articled with the

Middlesex crown attorney in London and was called

to the Bar in 2005, whereupon I was posted to the

office of the Judge Advocate General in 2005 here

in Ottawa, first with the Directorate of Law,

administrative law and advising on grievances.

Subsequent to that I was posted to the Directorate

of Law, Compensation, Benefits, Pensions and

Estates, a post that I held from 2007 until 2010,

during which time I deployed as a legal mentor to

Afghanistan. That’s the material time, I


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understand, that I have been called here to

support.

In 2010 I was posted to Canadian

Forces Base Kingston as the Deputy Judge Advocate.

During my tenure there I deployed as a task force

legal adviser for Task Force Libeccio which was

Canada’s contribution to Operation Unified

Protector.

Q. Thank you for that account of

your very impressive career so far.

Let me start at the end with the

role of Deputy Judge Advocate. What is involved

from a legal point of view in the kinds of issues

and services that you were called upon to provide

in that position?

A. I am the principal legal

officer to the unit’s headquarters and commanders

at Canadian Forces Base Kingston. We have about 36

of them. It’s the largest base in Canada.

My principal duties: I am

responsible to the Judge Advocate General for

providing legal advice to those commanders in

matters of military law. It runs the full spectrum

of military law, everything from the code of

service discipline to military administrative law,


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to operational law or law in operations, law of

armed conflict, international humanitarian law. I

support training that is conducted at the Army

Staff College. I support training by various

units. It runs the full spectrum of legal duties.

Q. Would it be fair to say, sir,

that by virtue of your training and your experience

in this position, you are an expert in military

law?

A. I wouldn’t say that, sir. I

am a practitioner. If you want an expert in

military law, I would suggest the Judge Advocate

General could be classified as an expert. It would

be a bit audacious of me to suggest, after seven

years at the Bar, that I am an expert in military

law. I am a practitioner.

Q. As a practitioner, are you

familiar with the general run of military law upon

which you are called to draw in your day-to-day

duties?

A. I would say so, yes. I would

have to be to be competent to support the units

with legal advice.

Q. Let me turn back to the

previous position with estates and administration.


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Can you describe the nature of that position, what

the size of the office is, who is a member of the

office, what specific duties you had.

A. In 2007, during the annual

posting season 2007 when I was posted to the

office, I was initially posted there as the number

two legal officer, if you will. There was a

director, a lieutenant-colonel. There was myself

and one other legal officer, so there were three

legal officers at the time.

Shortly after my arrival,

approximately six weeks after my arrival, the

director had to leave for his pre-deployment

training. He was deploying to Afghanistan

subsequent to that, so I took over as the acting

director. I requested through my boss at the time

to have a third legal officer posted in so that we

would have three legal officers.

At the time that I took over as

acting director in September 2007, there were three

legal officers. There was a Service Estates

Administration Officer, Suzanne Touchette. She had

an administrative assistant herself to assist her

with the estates function, and I had an

administrative assistant as well.


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So at the time that I took over as

acting director in 2007, there were three legal

officers and three civilian staff.

Q. What specific areas of law

were you required to familiarize yourself and to be

proficient in order to discharge the duties that

you were called upon in the Estates Administration

department?

A. That particular directorate

falls under what was then the division that was

referred to as Military Justice and Administrative

Law. More accurately it falls within an area that

we can broadly describe as military administrative

law. Specifically, it deals with the compensation

benefits régime for the Canadian Forces which would

include as well the legal advice pertaining to the

Canadian Forces Superannuation Act, finally, also

in providing advice dealing with service estates

issues.

The function of the Director of

Law, Compensation, Benefits, Pensions and Estates

is a bit unique within the office of the Judge

Advocate General. All of us obviously posted to

the establishment of the Judge Advocate General are

legal advisers.


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In addition, the Judge Advocate

General has a regulatory role as the Director of

Estates that has been assisted to him by the

Minister.

On behalf of the JAG, the Director

of Law, Compensation, Benefits, Pensions and

Estates ensures that those functions are carried

out. In that way, I am both a legal adviser and a

staff officer who operates under the direction of

the Judge Advocate General.

Q. In the course of your duties,

did you require a familiarity with the regulatory

and legal basis for the provision of benefits and

the administration for deceased members and the

administration of their estates?

A. Yes. I required a degree of

competence in order to carry out my duties.

Q. In the course of my review of

the various legal documents, I have come across a

number of acronyms. I think I know what they are,

but I have learned never to make any assumptions.

I would like to ask you to explain what these

various divisions of statutory or regulatory

document are.

What is a DAOD?


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A. Defence Administrative Orders

and Directives. They are called Defence

Administrative Orders and Directives because they

are promulgated both by the Chief of the Defence

Staff who has control and administration of the

Canadian Forces, as well as the Deputy Minister who

has the direction of the department. So they apply

to both Canadian Forces and the Department.

Q. For those orders and

directives, do they have the status of a regulation

under the laws of Canada?

A. No, they don’t. People will

often refer to them as regulations. The only

regulation-making authorities under the National

Defence Act are the Treasury Board, the Minister

and the Governor in Council. They are not

regulations. Many soldiers might refer to them as

regulations, broadly speaking, but they are orders

and directives. They are exactly what the title

says they are.

Q. What is their legal status in

terms of binding anyone and on what basis?

A. They are orders and

directives, so for members of the Canadian Forces

they are an order issued by the Chief of the


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Defence Staff who, as I mentioned before, has

control and administration of the Canadian Forces

by virtue of section 18 of the National Defence

Act. They are orders from the Chief of the Defence

Staff.

Q. Similarly, CFAO.

A. Those are Canadian Forces

Administrative Orders. Those have been around for

much longer than DAODs have. It’s the same thing.

They are an administrative order issued by or on

behalf of the Chief of the Defence Staff.

Q. What is the difference

between a DAOD and a CFAO?

A. At law, not really much

except that a CFAO really only applies to the

Canadian Forces, whereas a DAOD, as I explained

before, applies to both the Canadian Forces and it

can apply to the department as well.

Q. Finally, there is QR&O.

A. Queen’s Regulations and

Orders.

Q. Are those regulations under

the laws of Canada?

A. The regulations are

regulations. The orders are orders. That’s why


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they are called QR&O. They contain both

regulations as well as orders.

Q. What is the difference in

terms of the status vis-à-vis those to whom the

QR&Os are directed as to whether it’s a regulation

or an order?

A. A regulation presumably

issued under the authority of the Governor in

Council, the Minister or the Treasury Board is

binding on members of the Canadian Forces because

they are regulations. Orders issued by the Chief

of the Defence Staff are equally binding on them,

although they are not legislation in the way that a

regulation is, but they are still binding on

members of the Canadian Forces.

Q. In terms of what impact

either a DAOD, a CFAO or a QR&O might have on those

to whom they are directed, would I be correct in

saying that in each of those cases they impose a

duty?

A. They do.

Q. In general, looking first at

the role of the Office of Estates and

Administration, who are the normal clients? What

is the range of the clientele for that particular


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service?

A. As a legal adviser operating

under the authority of the Judge Advocate General,

my clientele stays the same throughout.

Statutorily the Judge Advocate General has four

clients, if you will: The Minister, the Governor

General, the Department and the Canadian Forces.

My duties in supporting the

mandate of the Judge Advocate General, the

statutory mandate of the Judge Advocate General is

to advise those clients.

I clearly do not personally advise

the Minister. That is a privilege reserved for the

Judge Advocate General or one of his deputies on

his behalf. My clients, if you will, as a legal

adviser to the Canadian Forces, ever since I became

a lawyer, have been the Canadian Forces or the

department.

By Aofficers” I mean anyone holding an office. Officers under the department

and the Canadian Forces are my clients, but I have

an organizational client, the department and the

Canadian Forces.

Q. I am just trying to

understand the difference between the two. I think


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I understand the notion of an institutional client

and the office holders -- and I don’t use the word

pejoratively -- who constitute the institutional

client. But when a soldier dies and issues arise

as to who is entitled to what, on what basis, who

is the client? Whom are you advising?

A. I am advising office holders

from the Canadian Forces and the Department of

National Defence?

Q. When you say office holders,

that is different from officers in the Canadian

Forces, or is it not?

A. In some cases my advice may

go to somebody who does not hold a commission

because their duties require legal advice from me.

It’s not necessarily always officers, but it will

be people who are performing functions by virtue of

their status within the Canadian Forces or the

department.

Q. Let me just try to understand

a situation. Let’s use a specific situation. Let

us assume with no detail that there is an assisting

officer assigned to a grieving family to assist

them with working their way through what their

entitlements may be and what their obligations may


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be to an estate. Is the assisting officer entitled

to come and ask questions directly of the

department in which you were a member in 2007

through 2010 or --

MS RICHARDS: Objection.

MR. FREIMAN: I am not asking

whether anyone did. I want to know whether the

clientele of that office includes assisting

officers who are assisting grieving families.

MS RICHARDS: Given the fact that

we know that this witness was factually involved,

what you are trying to do indirectly is to receive

information about the advice that was received and

to whom, and we object based on solicitor-client

privilege.

MR. FREIMAN: With the greatest

respect, that’s nonsense. I am asking the nature

of the duties and I am asking who the client is and

I am asking in a general manner whether the

clientele only includes the Canadian Forces or

whether it also extends to individual assisting

officers who might be assisting a grieving family.

I have not asked whether there was any approach by

an assisting officer to Major Fowler, whether there

was a request for assistance, whether anything was


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asked, what was asked, what was answered, whether

advice was given, whether advice was not given. It

is as general a question as you can get with

respect to the office of the Director of Estates

and Administration.

MS RICHARDS: My objection still

stands.

THE CHAIRPERSON: I draw no

inferences to whether or not he has provided any

advice relative to assisting officers.

If I understand Mr. Freiman’s

request, it is simply Adoes this position serve that person”. I draw no inference to this

particular case. It’s just a simple question. I

don’t know how that falls under there.

MS RICHARDS: It puts this witness

in a very difficult position because the

hypothetical put to him is exactly the facts of

this case. He is not here as an expert witness.

He is a fact witness who was involved in this case.

So to try and attempt to put hypothetical and

general questions to him of this nature is in fact

trying to get at what he did or may have done in

the course of his duties as a legal adviser in this

case and that is protected by solicitor-client


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privilege.

THE CHAIRPERSON: Colonel Drapeau?

COL (RET’D) DRAPEAU: I think my

friend should afford us a modicum of respect for

basic intelligence. All we are asking for in this

instance in theory is would the assisting officer

have access to a JAG on a notional basis. That’s

all. That’s something you would find in textbooks,

something that you would find in lecturing law

students. The question is as basic as it gets:

Does the assisting officer have access to legal

counsel within the department? Yes or no. That’s

all.

MS RICHARDS: If it’s that simple,

you don’t need a legal officer to answer that

question, and if it’s that simple, you should have

asked Major Parkinson. The problem is, you are

putting this witness in a difficult position

because of his actual involvement in this case.

MR. FREIMAN: Let me be of some

assistance, then. I am going to ask a couple more

questions and then we will return to that question.

Q. Major Fowler, during the

period 2007 to 2010, was there anyone who had equal

knowledge or understanding of the nature of the


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duties of Director of Estates and Administration at

headquarters?

A. I just need to clarify your

question. Are you asking me if there were other

people who might have understood what my job was?

Q. Whether there were people who

had a better understanding of your job than you

did.

A. Well, I would hazard a guess

that the person to whom I was responsible for the

execution of my duties would have had at least as

good an understanding of my job. Certainly the

individual that I replaced, the lieutenant-colonel

who had deployed and whom I was replacing, probably

had a better understanding of my duties. His

predecessor who was subsequently my boss definitely

had a better understanding of those duties because

he was a more experienced legal officer than I am.

Q. During the time that you were

discharging your duties, did you have the

impression that you did not understand the law and

were not able to interpret the law?

A. I’m sorry, sir, are you

asking me if I was competent to do my job?

Q. Yes.


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A. Because that has

ramifications under the law society. I considered

myself competent to perform my duties. Otherwise,

by virtue of my rules of professional conduct, I

should have recused myself from performing those

duties.

The thing is, as a legal officer

in the Office of the Judge Advocate General, I do

not operate independently. I have available to me

the resources of the Office of the Judge Advocate

General. I can call upon other legal officers and

have done and continue to do so to call upon other

legal officers if I feel that a legal issue is

beyond my understanding or beyond my ability to

deal with it myself. Not only do I call upon

people who are senior at the Bar, I even call upon

people who are junior at the Bar.

Q. As do all lawyers. Let me

just be very clear. I am not in the least implying

that you are not competent. I have seen nothing in

any document to lead me to that belief.

Just to be clear, Ms Richards may

be capable of giving evidence, but this is the

first that I have heard that the situation that I

have addressed hypothetically was a real situation.


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MS RICHARDS: To be clear, I

didn’t say it was a real situation. I said that is

the danger you are putting him in. That is where

you are skirting and that is the exact evidence

that he cannot give.

MR. FREIMAN: He cannot give

evidence as to what he said and what opinions, what

conversations he had with anyone in the course of

his duties when called upon to deliver legal

advice. He is certainly more than competent.

Ms Richards suggested he is not

being called as an expert witness. If he were

called as an expert witness, he would be eminently

qualified. He was one of the leading practitioners

in the area of estates and administration, if not

the leading practitioner, at the material time. He

was head of the department.

He is, as he noted and as no one

has in the least bit gainsaid, competent and, I am

certain, more than competent. He is therefore as

qualified as anyone to offer an opinion on matters

that go to the law of the administration of estates

within the Canadian Forces. He is capable of

assisting this Tribunal with the understanding of

matters that are beyond the ordinary judgment and


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the ordinary knowledge of persons in the position

of the Chair. He therefore can be asked

hypothetical questions. I do intend to ask

hypothetical questions.

Last time I revised my book on

expert witnesses, that is exactly what this person

is.

MS RICHARDS: Last time I checked,

he wasn’t called by this Commission as an expert

witness. Furthermore, as my friend knows, it would

be entirely improper to call a witness who was

factually involved in a case to testify and offer

opinions on matters that he may have provided legal

advice on.

If it would assist the Chair, just

to be clear, if my friend intends to ask him

hypothetical questions and ask him his legal

opinion on various matters that have arisen in this

case, we will be objecting to all of those

questions on the basis of solicitor-client

privilege.

MR. FREIMAN: First of all, there

is nothing anywhere in the documents that states

that Major Fowler provided legal advice to anyone

in particular. Asking questions about the law --


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it is beyond me how that implicates solicitor-

client privilege. The law is the law, and I want

to understand the basis for the law and the origins

of the law and the jurisdiction under the law.

I am not going to ask him for any

conclusions about any substantive issue that has

arisen, but I do intend to ask questions as to the

legal resources available to resolve issues and to

make judgments about estates. I will not be

putting to him any hypothetical fact situations. I

just want to know what the law is with respect to

certain types of determination and with respect to

certain types of entitlements.

MS RICHARDS: With respect, to be

clear, we will be objecting to those questions. If

what the Chairperson required or this Commission

required was a member of the Judge Advocate

General’s branch to talk to you about what the law

was, then the appropriate course would have been to

call somebody who was not directly affected in this

case.

As I understand, you in fact do

have another JAG officer who is testifying as a

policy witness later in these proceedings. It is

our position, to be clear on the record, that it is


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entirely improper and inappropriate to call a JAG

officer who was involved in providing legal advice

in this case and ask them hypothetical legal

questions. In our submission, that is an attempt

to get through the back door what you can’t get

through the front and it does indirectly or

directly disclose legal advice that was provided.

THE CHAIRPERSON: The question

relative to does the JAG provide advice to an AO is

as simple as they get.

We are going to take 15 minutes.

I think the three counsel need to talk because to

me this is as simple and as basic as a question

gets although you are professing that is lawyer-

client privilege. I think the three counsel need

to have a discussion and then we will come back and

go from there.

--- Short recess at 10:22 a.m.

--- Upon resuming at 10:55 a.m.


MR. FREIMAN: We had a discussion

during the break. My friend stated she would

consult with the witness for the single purpose of

determining his view as to whether he had any

compunctions from the point of view of his


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professional obligations in answering the question.

MS RICHARDS: We did have

discussions during the break with my friend and Mr.

Drapeau. I will say, as I have said on the record

already, that we will have to take this one

question at a time. In terms of this particular

question, the witness is prepared to answer it and

thinks he can do it in a way that preserves his

professional ethics.

THE CHAIRPERSON: Thank you.

Mr. Freiman?

MR. FREIMAN:

Q. The question I asked is

whether an AO is entitled to request legal advice

from estates and administration.

A. It’s not a question so much

as whether or not they are entitled to advice from

Director of Law, Compensation, Benefits, Pensions

and Estates.

To answer your question generally,

my role as the acting director at CBP&E was to

provide legal advice to the CF and the department

with respect to, among other things, the

administration of service estates. Whether that

advice was to the service estates administration


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officer, a member of a departmental office, a

member of a Canadian Forces unit would depend upon

the particular circumstances. If I gave advice on

any matter, it would often be in consultation with

other legal advisers.

As to whether or not I would be

the individual advising an assisting officer or if

it would be another legal officer of the Office of

the Judge Advocate General, it would depend on the

particular circumstances.

Generally speaking, sir, DLaw,

CBP&E took a strategic perspective. So I would

provide consultative advice to colleagues of mine

with respect to, among other things, service

estates issues. Some of my colleagues would then

be advising units.

To give you an understanding, in

my current job, for example, Deputy Judge Advocate

for CFB Kingston, I am the point of first reference

for units at CFB Kingston to seek military legal

advice.

You wouldn’t expect somebody from

Ottawa to advise those units on military law. You

would expect the local legal adviser.

Q. Just to be clear, I wasn’t


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directing the question to you as an individual; I

was directing it to your office. My understanding

is that any lawyer in your office is representing

that office just as surely as you would be.

When the member of the CF who is

requesting advice is an AO, bearing in mind what

you said about the relationship to the CF, is the

advice being provided to the AO as a member of the

Canadian Forces and is he expected therefore to

maintain confidentiality about that advice or is it

being provided with a view toward allowing the AO

to advise the grieving family and therefore to pass

on that advice? Or is there a rule?

A. Although we are getting

dangerously close to asking me for specific legal

opinion on a matter, what I would suggest, sir, is

that when a legal adviser from the Office of the

Judge Advocate General advises an officeholder from

the department or the Canadian Forces, we are doing

so to assist them in the execution of their

official duties.

The confidence that is being

shared is an organizational confidence. The

privilege, if you will, that would attach that

would be an organizational privilege, and as a


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result, it’s very clear that the only individual

that can waive that confidence, waive that

privilege, is the Minister or the deputy head.

Consequently, if I am providing

advice -- to use something that is completely

unrelated to these proceedings so that it’s clear

that it’s just based on a hypothetical. If I as

the Deputy Judge Advocate at CFB Kingston advised

the Commanding Officer of the Canadian Forces

School of Communications and Electronics on a

particular matter, that commanding officer does not

have the authority to disclose my legal advice not

because I don’t give the permission but because the

Canadian Forces, the department, doesn’t give the

permission.

Q. I think I understand that

perspective. Are you aware of whether that

particular perspective is to be found in any

document or in any instrument or in any set script

of advice that would be provided to someone like an

AO who might feel him or herself in need of legal

advice in order to advise the grieving family?

A. Frankly, sir, that’s a

difficult question to answer because the source of

that may well come from a legal adviser who is


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giving the advice. The source of that certainly

can be found to an extent in the National Defence

Act which sets out the roles and responsibilities

of the Judge Advocate General, amplified by the

Queen’s Regulations and Orders which amplifies the

role of the legal adviser, and certainly there are

certain provisions within the QR&O as well. I

would have to have them before you. I can’t recall

every single provision, but under Chapter 19 there

are specific provisions that pertain to whether or

not certain people can make certain admissions with

or without the authority of the Minister of

National Defence.

Beyond that, we are getting highly

speculative and highly hypothetical and I am not

too sure I can provide any clarity on that.

Q. In the preamble to your

response to the question before last, you noted

that you were getting dangerously close to giving a

legal opinion. Do you have a view as to the limits

of your ability to give a legal opinion in this

forum?

A. I do. If you are asking me,

sir, to provide a legal opinion that is shared

within the Office of the Judge Advocate General


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with respect to particular matters which can

include fairly general matters as far as, for

example, the extent or scope of the mandate of the

Judge Advocate General that is discussed among

legal officers, I would be limited in what I could

do.

My understanding is I was called

here to provide factual evidence and not to provide

legal advice to the Commission. Certainly as with

any lawyer, it’s very hard to prevent me from

giving legal advice. I feel a compulsion to give

legal advice. But it’s my understanding that my

role here is to provide factual information to the

extent that I can. I would not want to venture

into a role where I am providing the Commission

with a legal interpretation of any legislation.

Q. Do you see an obstacle to a

statement of what the law is with respect to a

given issue and what the sources of the law are

with respect to a given issue?

A. I would suggest that where

it’s non-controversial I don’t see a huge problem.

But if we are getting into an area where there may

be debate over the particular interpretation of the

law or the particular application of the law where


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the office of the Judge Advocate General has

developed or opined in private confidence to

departmental or Canadian Forces officials, then I

would probably venture into dangerous terrain.

I am fully prepared to provide

what answers I can to the Commission to the extent

that I can. For example, the initial questions you

asked me, sir, dealt with, to an extent, an

interpretation of the legal distinction between

regulations and directives and orders issued under

the authority of the Chief of the Defence Staff.

I see no great controversy in

answering such questions because they are not

controversial. If you were to ask me questions

dealing with the proper interpretation of a

particular will or the proper interpretation of

privileged wills, for example, we would start to

get into dangerous terrain. That’s merely all I

wish to indicate.

Q. I am going to make a couple

of suggestions. First, where you feel that the

question I have asked is a controversial one, I

would ask you to say Athis is a controversial question” and we can discuss whether there in fact

is a controversy.


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Second, I want to establish: You

are not suggesting that there is a secret law, are

you, that the law that is applicable to the

administration of estates, to the establishment of

entitlements one way or another is in some way

confidential to the Canadian Forces and not

available to the public at large?

MS RICHARDS: Just to be clear,

first of all, I don’t think it’s appropriate to say

to the witness Ayou’re not suggesting there’s a secret law”. The issue is, if what Commission

counsel intends to ask by way of hypothetical is

Awhat advice would you have given, what would your interpretation have been of this law,” that’s

improper because that is another way of getting at

what his advice may have been.

It’s not a matter of it being a

secret law.

MR. FREIMAN: I have not asked

anything that resembles the question that counsel

has seen fit to put on the table, nor do I intend

to.

MS RICHARDS: Sorry, to be clear,

my submission, that is the impact -- that is

effectively what counsel is doing when they are


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asking so-called hypothetical questions about legal

principles that apply to the fact of this case. He

may not use the word Awould have”, but that is the impact of what he is doing.

MR. FREIMAN: I have not asked to

establish any hypothetical facts or to compare the

hypothetical facts to the facts of this case.

THE CHAIRPERSON: I don’t know

that we had a question yet.

MR. FREIMAN: We were just

establishing some of the ground rules.

Q. I would like to know in terms

of the role of an AO from the perspective of the

Canadian Forces to the extent that you are aware of

the law, is there a fiduciary duty owed by the AO

and, if so, to whom?

A. I would suggest that an

assisting officer, particularly as it pertains to

service estates, does not hold a deontological

fiduciary duty in the same way that a doctor or a

lawyer or any other provincially regulated

professional has.

So an assisting officer does not

have an independent professional code other than

the same code of service discipline that applies to


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all members of the Canadian Forces including people

like me who are legal advisers.

So I would not suggest that an

assisting officer has a deontological role in the

same capacity that I do. However, when provided

with certain confidential information as any member

of the Canadian Forces is provided with

confidential information, that assisting officer is

bound by those same rules that apply to any member

of the Canadian Forces.

Q. I would like to ask the same

question in terms of a duty of confidentiality.

Does an AO have any duty of confidentiality and, if

so, to whom?

A. It’s a very broad question.

The appropriate response, I suggest, would be yes,

an assisting officer does have a duty of

confidentiality. It’s going to depend on the

context. For example, if an assisting officer or

any officer of the Canadian Forces, comes into

possession of information that falls within the

definition of personal information under the

Privacy Act, that individual is compelled under the

Privacy Act not to share that information. It’s

not an independent duty that’s drawn from a role of


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an assisting officer. It’s imposed by the Privacy

Act. If an assisting officer comes into knowledge

of confidential information that is protected for

reasons of national security, the same thing would

apply. It’s not a confidentiality that attaches

qua assisting officer; it’s because the individual

in holding an office in the Canadian Forces in

performing an official function comes into

knowledge of information that is not to be shared.

That’s probably the best answer I

can come up with.

Q. Thank you very much. These

are the sorts of questions that I would like some

clarification on. This level of generality is just

fine.

Dealing further with an assisting

officer, who appoints an assisting officer and who

is eligible for the assistance of an assisting

officer? I am really interested in the source in

any regulations or orders where one could see what

the nature of the appointment is and the

relationship between the assisting officer and the

person for whom that assisting officer is

appointed.

A. An assisting office with


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respect to service estates is a bit distinct from

other assisting officers that are recognized, if

you will, under legislation.

For example, under the code of

service discipline, if I am not mistaken, it’s QR&O

108.14, an assisting officer must be appointed to

an individual who is facing a charge under the code

of service discipline. That is an assisting

officer that is essentially created under

regulation.

Q. Yes.

A. That’s not the same thing

when you are dealing with an assisting officer for

a service estate.

If we are looking for the source

for the authority for appointing an assisting

officer, you are not looking at a regulation, you

are looking for both directives as well as certain

publications issued under the authority of the

Chief of the Defence Staff, not necessarily by the

Chief of the Defence Staff but under the authority

thereof.

For example, the Director Casual

Support Management who is responsible for

promulgating the Assisting Officer’s Guide, the


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Commanding Officer’s Guide, has done so. They have

promulgated two guides, the Commanding Officer’s

Guide and the Assisting Officer’s Guide, that

provide guidance to commanding officers when it

comes to dealing with, among other things, estate

functions but not solely estate functions, and the

same thing for assisting officers.

Ultimately, an assisting officer

is generally appointed by the commanding officer

where the commanding officer considers it necessary

to appoint an assisting officer. It can be

appointed for a spouse, or a spouse-like

individual. It could be appointed for parents. It

could be appointed for siblings. It could be

appointed where the commanding officer believes it

is necessary to appoint an assisting officer to aid

somebody who has a relationship with somebody who

has died.

Q. The next topic I would like

to discuss just for a moment -- and I would like to

do this at a level of generality that doesn’t

implicate any specific facts -- is the definition

of next of kin. In terms of the various

instruments that speak of next of kin, is there a

specific definition of next of kin that is capable


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of capturing the meaning of that phrase as it is

used throughout the DAODs, the CFAOs, the QR&Os,

some of which we have put into the collection of

documents before you.

A. Sir, you would have to point

out exactly where you are dealing with the term

Anext of kin”. Quite frankly, in many fields where people believe that next of kin is relevant, next

of kin is not mentioned at all.

Q. Yes.

A. So if you are asking me the

legal relevance of the term Anext of kin”, in order to avoid the tried and true joke about lawyers

where the response is generally Ait depends”, my response would be very much it depends on where we

are looking. For example, we don’t see the term

Anext of kin” used in certain areas such as service estates because it’s not relevant and it’s not

generally a term that is defined for those

purposes.

Q. CFAO 24-1, Casualties and

Reporting -- I think I have that in the book of

documents. I am going to have to ask somebody who

actually knows --

A. Tab 19.


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Q. Tab 19. Everyone knows these

documents better than I do. Section 3 gives

definitions.

A. Yes.

Q. In section 3 under the

definition of APersonal Emergency Notification”, we read:

APersonal emergency notification, that is, PEN

contact, means the first

person to be contacted and

provided with casualty

information with respect to a

member. The PEN contact is

indicated in section 3 of

Form CF-742, Personal

Emergency Notification, may

be the primary next of kin,

NOK, secondary NOK or other

person designated by the

member to inform the NOK.”

(As read)

I can tell you I find this a

difficult definition because it seems a bit

circular to me.


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What is the meaning of Anext of kin” for purposes of this particular section?

A. I think you have answered

your own question to a certain extent, sir. We

generally look -- and not just as a lawyer but as a

member of the Canadian Forces, I would look to a

directive to define certain terminology. So that

we have, if not terms of legal art, we have terms

of military art, if you will.

Q. Yes.

A. It doesn’t define next of

kin. This document, the CFAO, does not define next

of kin. It uses Anext of kin”, but as you have observed, and I would concur, there is a certain

circularity to that rationale. It doesn’t define

really what primary next of kin is. People will

probably have an understanding that primary next of

kin might follow the lines of consanguinity. They

might consider the primary next of kin follows

certain other rules established either under

federal or provincial law.

The reality is, as far as the

Personal Emergency Notification form is relevant,

it’s simply identifying that you will put in

somebody in there, primary, secondary next of kin


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or somebody else that you want notified. It

doesn’t create any status of next of kin.

Arguably you could say primary

next of kin might be the first person in the order

of consanguinity, but the problem that we have with

that is those are generally defined under

provincial legislation. This order is issued under

federal legislation, so automatically we have a

conflict of laws issue.

I understand your concern. I

quite frankly, personally, probably share that

concern that there is a degree of circularity to

the reasoning, but what the definition of primary

or secondary next of kin is with respect to the

Personal Emergency Notification form really is

largely irrelevant because at the end of the day

that form is there to do two things. It’s to

authorize the Canadian Forces to contact somebody

in the case of emergency and, secondarily, to

authorize members of the Canadian Forces to

disclose personal information as is authorized

under the form, which takes us back to the earlier

comment I made with respect to the Privacy Act.

But for that authorization from the individual

filling out the PEN form, we wouldn’t be able to


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disclose personal information in certain

circumstances.

Q. Would you agree that -- I

won’t ask you yet because I would like to look at

the use of Anext of kin” in another CFAO. This is 24-5, tab 20. Section 2, definitions:

ANext of kin means (a) the primary next of kin, or (b)

where the wishes of the

primary NOK cannot be

ascertained for any reason,

the secondary NOK or closest

relative in that order, or

(c) in the absence of any of

the above, the executor or

administrator of the estate

or such other person who is

entitled to the custody of

the remains as may be

applicable.” (As read)

Again, we use the term, but we are

defining the term without actually giving a

definition. NOK means primary NOK. Is it safe to

assume that it has the same meaning as under 24-1?

MS RICHARDS: I am going to have


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to interject here. As the witness had laid out,

once you get closer to controversial matters where

legal advice may have been provided; as we all know

from this file, who was the next of kin and what

the implication of that was is a controversial

matter for which issues were risen both through

threatened litigation and through consultation with

the department. So we are now treading into the

area where members of the JAG branch likely

provided legal advice on the interpretation of

these issues and these provisions.

MR. FREIMAN: I am sure that

members of the JAG branch provided legal advice on

the interpretation of every line of every statute

and every order and every regulation at one point

or another. There is nothing to say that any of

these questions is directed to the specific facts

of a specific case. I am asking in general whether

the definition in 24-5(2) is a definition that is

related to 24-1(3).

MS RICHARDS: And again, to be

clear on what my objection was before, that is in

essence saying to this witness: If you had been

asked this question as a legal adviser, what would

your opinion have been?


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Given the fact that we know that

these matters were raised as a legal issue and

members of the JAG branch likely provided advice,

this is getting too close and it is asking

indirectly for legal advice that may have been

provided.

MR. FREIMAN: With the greatest

respect, I am asking for whether two sections of

the CFAO use a term in the same way. There is

nothing anywhere in the record that is related to

or that mentions CFAO 24-5 or CFAO 24-1 or any

potential harmony or disharmony between the two.

It is a general question of law.

MS RICHARDS: You have my

objection. This CFAO relates to the very matter

that was raised by the Fynes in the context of the

criminal investigation. We have seen numerous

documents that it was raised in the course of

threatened litigations and discussions with counsel

who had the authority to plan the funeral.

This is a legal issue. The CFAO

was likely one of the sources that was consulted.

You are now asking effectively this witness: If

you had been asked the question about how these

CFAOs apply, what is the opinion you would have


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given?

MR. FREIMAN: First of all, I am

not sure that that is in the least bit what I am

asking. I am asking as a proposition of law

whether these two sections are to be understood

harmoniously or disharmoniously. If this is

encompassed by solicitor-client privilege, then

there is no one in the military in the JAG who is

entitled to offer any elucidation whatsoever about

the state of the law.

THE CHAIRPERSON: It’s unfortunate

you are drawing this position on this because I

could probably answer this question for the

witness.

MS RICHARDS: Then you don’t need

this witness, sir.

THE CHAIRPERSON: I know, but I

would like to hear it from him.

I think he has probably answered

it because he has stipulated what his answer was on

the PEN definition for next of kin and then on the

other, but it’s just a comparison of the two.

That’s strictly all it is. I don’t see that it’s

drawing the lines of the evidence that we were

talking about.


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MS RICHARDS: With respect, Major

Fowler is here because the Commission has reason to

believe that he provided advice on these very

issues. So now asking to offer you in a general

sense what his interpretation or understanding of

the law is is getting at the advice that was

provided.

MR. FREIMAN: Again, let me make

my position clear. Major Fowler is here because,

as the acting Director of Estates and

Administration from 2007 through 2010, he is able

to provide elucidation about the various legal

instruments that were in force at the time and

about what those legal instruments mean from the

perspective of the Canadian military.

He is not here to tell us whether

he was consulted. Again, I reiterate I have no

idea of whether he was consulted. Ms Richards

seems to be giving evidence that he was. I did not

ask that and I do not know that.

To the extent that he was, I don’t

know what questions he was asked. To the extent he

was asked questions, I have no idea what the

answers to those questions might have been. I am

asking for none of that information.


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MS RICHARDS: Well, I think you

should ask him that question because in fairness to

a professional who is called before this body and

has professional obligations, your first question

ought to have been: Did you act as a legal adviser

and provide advice in the course of the Langridge

file?

MR. FREIMAN: That is by

definition the very question that you said I am not

allowed to ask.

MS RICHARDS: You can absolutely

ask him that one and he can give you that answer

because that defines for you what he can tell you

in the course of his testimony today.

MR. FREIMAN: Not at all. The

fact that he may have provided advice may be of

interest, although it is of no interest to me in

the current proceedings, but it does not define at

all the fact that he was asked for advice. He may

have been asked for advice as to whether a hot air

balloon could be a legitimate part of a funeral.

That would not make it wrong for me to ask whether

section 24-5 and 24-1 refer to next of kin in the

same way.

So I am asking my question.


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MS RICHARDS: And you have my

objection.

THE CHAIRPERSON: Ask the

question.

MR. FREIMAN:

Q. Is the use of the word Anext of kin”, the definition of Anext of kin” in CFAO 24-5(2) the same as that in 24-1 or is there a

difference between the two?

MS RICHARDS: Again, you have my

objection based on solicitor-client privilege.

THE CHAIRPERSON: And the answer?

MS RICHARDS: Once I have objected

on solicitor-client privilege, the witness cannot

answer.

THE CHAIRPERSON: Are you

suggesting I can’t rule on this?

MS RICHARDS: I am suggesting you

can’t rule on it. That’s the discussion we have

had before. Jurisdictionally you do not have the

authority to determine whether or not any

particular information is protected by solicitor-

client privilege.

MR. FREIMAN: Since I don’t share

that view of the jurisdiction, I would ask that a


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time be set aside, the witness be excused, and that

we have an opportunity for submissions on this very

important issue as to the nature of your

jurisdiction to rule on questions of solicitor-

client privilege.

I’m sorry, I have stopped Colonel

Drapeau.

COL (RET’D) DRAPEAU: I would go

further. The very nature of this proceeding, a

civilian oversight, it’s a complaint being made by

two members of the public. They are not in the

military. They are looking to this Commission to

answer their allegations. This Commission created

by Parliament as a civilian oversight has got to be

able to arrive at some conclusion on it.

The military doesn’t have a

special cache before this Commission. Client-

solicitor is as old as the world. I think those of

us who have met privately a little while ago all

understand this particular concept and it can be

overreaching at times. In this occasion it is.

I object to your objection. There

is a difference between objecting and obstruction.

The prevention of going to something as basic as it

is will leave a bad taste in the minds of the


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public washing, the public expecting this

Commission to go to the bottom of it, investigating

it, and in the end justice will not be done. Not

only will it not be done, it will not be perceived

as being done.

So I think a certain degree of

understanding and reasonableness is required. That

question any lawyers after his first day called to

the Bar would be able to answer the question,

whether or not he even knows the name Langridge,

whether the definition in CFAO 24-1 and 24-5 are

akin, opposing or harmonized. That’s how the

question is being asked.

I just cannot understand what the

objection is. As I said, does the Canadian

military have a special cache? It is operating

within a civilian democracy. This Commission has

been created by the democracy and I think it has a

perfect right to be asking, and certainly for Mr.

Chair, to permit the question to be answered

properly.

MS RICHARDS: With respect, if the

interpretation is as clear, the normal course in

any proceeding, whether it be a court or an

administrative proceeding, is that counsel before


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you will argue in closing submissions as to what

this legislation means and what the import of it

is. You can rest assured that both of us will be

making those arguments.

It is a very unusual situation

where any administrative tribunal would call a

lawyer before you to provide evidence on the law

because it is presumed that through your Commission

counsel, through Colonel Drapeau and through myself

you will receive submissions on the law.

What I think the public should be

concerned about is calling a JAG officer who this

Commission knows was directly involved in this case

because you have documents on file that show his

involvement in this case, and then attempting to

ask him so-called general questions which go to the

advice that he likely provided on these proceedings

puts him in a difficult position and it is not a

proper area of questioning.


MR. FREIMAN: Again, I think we

have two questions. One is the propriety of the

question. The second is your jurisdiction to rule

on the propriety of that question. If Ms Richards

is taking the position that you are not entitled to


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rule on the propriety of the question, I think we

need legal argument and submissions so that you can

rule on that question and we will know where we are

going.

In my submission you do have the

authority to rule on whether the question is proper

or not.

THE CHAIRPERSON: It would seem to

me that to not sort this out at this juncture, for

the next four and a half hours we are going to be

going through the same argument, so we need to deal

with this now.

Will the same thing apply to the

next witness?

MR. FREIMAN: I am not sure. I

can try again. I suspect I know what my friend

will do. In my submission, I will be asking even

more general questions, but --

THE CHAIRPERSON: I don’t know

that we can get more general than this and the

previous one.

MR. FREIMAN: There will certainly

be questions at that level of generality. In my

submission, they won’t even require an

interpretation of the law, but I have been


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surprised by the objections so far, so I don’t

know. It might be worthwhile to try to start and

to see where we get there because I doubt that we

are going to be ready for this afternoon to argue

the jurisdictional issue, although if you like, we

can certainly make appropriate efforts to argue

jurisdiction.

MS RICHARDS: I am ready to argue

jurisdiction this afternoon if you would like.

THE CHAIRPERSON: Colonel Drapeau,

how about yourself?

COL (RET’D) DRAPEAU: Will do,

sir.

THE CHAIRPERSON: If we adjourn

until 1:00, is that enough time for counsel?

MS RICHARDS: Yes.


COL (RET’D) DRAPEAU: Yes.

THE CHAIRPERSON: We will adjourn

until 1:00. At 1:00 I will hear submissions

relative to the jurisdictional issue.

--- Luncheon recess at 11:30 a.m.

--- Upon resuming at 1:39 p.m.

MS RICHARDS: Before we recall the

witness, there were just two issues I wanted to


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address, and one was at the close before the end of

break-- and if I have characterized this

incorrectly I'm sure my friend will correct me. I

don't have the transcripts yet -- but I understood

my friend Mr. Drapeau to make a comment or an

inference that by raising these objections I was

obstructing or could be seen to be obstructing the

work of this Tribunal.

As you can appreciate, Mr.

Chairman, that is a very serious allegation to be

made against anybody and one that I take very

seriously.

I would only like to confirm and

state for the record that I have professional

obligations to raise these objections and I also

have professional obligations to make sure that

they are raised only when they are legally valid

and proper claims.

Certainly counsel in this room as

you know may disagree about what the breadth or the

scope of those claims are, but I take great

objection to any inference or any statement that

I'm somehow obstructing the work of this Commission

by raising the objections that I am professionally

obligated to raise.


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So that was the first.

The second issue that I would like

to ask for clarification on the record from my

friend Mr. Freiman is a basis upon which Major

Fowler has been called to testify today. If I

understood his earlier comments on the record, he

seemed to be inferring that Major Fowler was called

here as an expert witness to provide opinion

evidence and I would just to confirm if that's

correct, because the parties have not been provided

notice; no expert report was filed as required

under the rules; and there was no proper

certification or ability to object to

certification. So I just wanted to clarify that on

the record.


MR. FREIMAN: Major Fowler was

called as a fact witness. His qualifications and

his expertise qualify him to provide an opinion in

circumstances where in the normal course a witness

is incapable of providing an opinion to a Tribunal

and so while we are not calling him as an expert

witness for purposes of preparation of a report, he

is being -- the scope of his ability to answer

questions, and the questions relate to the


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applicable military law, is wide enough so as to

allow him to offer an opinion as opposed to simply

testifying as to facts.

MS RICHARDS: That's a new breed

of witness I have never heard of, but we will have

that debate in another forum.


Before we broke, we talked about -- we had heard a

little bit of testimony from Major Fowler with a

couple of, there was an initial objection and then

the question was answered and then there appeared

to be a more objections that were going to follow.

What I would like to do is I would

like to hear Major Fowler and whatever -- if there

are going to be objections to the questions so that

we can determine the scope of those questions that

Mr. Freiman is going to ask and the scope of the

objections that may come and that will assist me as

well.

Following that, can have

submissions relative to any arguments, if there are

going to be objections to any questions.

The next witness is Lieutenant

Colonel King. There may or may not be objections

to Lieutenant Colonel King's testimony. I don't


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know that. But if there are, then I would probably

at the end of his testimony ask for any

supplemental objections to whatever the objections

are going to be and this may be an assumption that

they would be around solicitor-client issues and

then we can deal with it from there. But I would

like to get the witnesses in.

MS RICHARDS: The only objection

that I have to that, Mr. Chair, and I have raised

it with my friend, is if the intention is to split

Lieutenant Colonel King's testimony, I don't think

that's fair to him.

THE CHAIRPERSON: No. I had no

intention on splitting it. If it doesn't look like

we can get Lieutenant Colonel King in today, we

could do him first thing in the morning and I know

his travel arrangements. I checked into that. I

think he has a flight at 230 tomorrow, so --

MS RICHARDS: Just to be clear you

would ask us to come back at one to argue the

motion on your jurisdiction to rule on

solicitor-client privilege claims? We are prepared

to do that.

THE CHAIRPERSON: I would like to

hear the first witness to get the scope of what --


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there is going to be other, and it may help you in

your arguments in terms of broadening whatever the

scope is or whatever the objections are. And maybe

there is going to be fewer objections. Maybe.

MS RICHARDS: We are in your hands

obviously. This is your show.

THE CHAIRPERSON: No, I am in your

hands in terms of the objections.

MS RICHARDS: In terms of the

jurisdictional issue, it doesn't matter what the

objections are.

THE CHAIRPERSON: Yes.

MS RICHARDS: We have the same --

THE CHAIRPERSON: The

jurisdictional issue is a separate issue.

MS RICHARDS: -- legal position.

THE CHAIRPERSON: Yes.

MS RICHARDS: Yes.

THE CHAIRPERSON: So if we bring

the witness? Before I go, Colonel Drapeau,

comment?

COL (RET'D) DRAPEAU: No comment,

Mr. Chair.


Thank you. Thank you, Major, for putting up with


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our delays. As counsel you have probably seen this

many times before and we are going--

THE WITNESS: As they say, all

pensionable service.

THE CHAIRPERSON: We are going to

do our best to get your testimony in today so that

you may go about with your business.

MR. FREIMAN:

Q. Major Fowler, good afternoon.

I think you understand that what we are going to do

now is an exercise intended to provide a wider

basis for understanding the nature and extent of

the objections being made. I'm going to be asking

a number of questions which may well lead to

objections by Ms Richards, and the purpose of my

asking the questions is not to be bull-headed but

to allow the record to reflect what actually was

discussed and the kinds of questions to which

exception is taken.

Because I couldn't anticipate the

nature of the answers that I might be given, I

don't have a complete list of every question that I

might have wanted to ask. I'm going to divide my

questions into topic areas and we will ask some of

the larger questions. There may obviously have


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been follow-up questions and there may be follow-up

questions if it's deemed that these questions can

be answered.

We were dealing with next of kin

and I asked a few questions about next of kin. I

wanted to proceed to ask about the specific status

of the concept of next of kin within the military's

approach to estates or -- let me make this a little

clearer-- the specific status of next of kin in

terms of administration of the military estate, and

whether that term is a term of art that is used in

the administration of military estates.

A. I think, fundamentally, your

question is going to touch upon something that is a

solicitor-and-client confidence. And the reason I

say that, sir, is because the question would

require me to answer whether or not next of kin is

a term of legal art that has bearing, and therefore

I would have to disclose whether or not that has

been the subject of legal advice.

That has been the subject of a

query sought from me when I occupied the position

as acting director, compensation, benefits,

pensions and estates and it would require me to

disclose the extent to which I opined on its


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standing as a term of legal art or not.

Q. With great respect, I think

it's a general question that could be applied

across the board in the wide variety of duties or

the wide variety of situations upon which you are

called to deal, and it is a question that is

independent of any given factual basis. But if

there is an objection, we will just note that there

is an objection.

For purposes of military law, is

next of kin under whatever definition is adopted

something that is decided on the basis of a legal

rule or on the basis of reference by statute? Or

is next of kin a status that is decided by

appointment, by some individual, or another or some

officer or another of a person as next of kin?

A. Again, sir, you are asking me

a question upon which I would have to opine. If I

could, to clarify what I consider to be the limits

of what I can disclose without contravening my

professional obligation under the Law Society of

Upper Canada Rules of Professional Conduct, earlier

this morning, I had commented on, for example, the

fact that the chief of defence staff has control

and administration of the Canadian Forces under


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section 18 of the National Defence Act.

You'd asked me to clarify a

comment that I'd made with respect to getting

dangerously close to contravening or disclosing a

confidence. What I would suggest is, by way of

example, if you were to ask me if the CDS has

control and administration of the Canadian Forces,

that's not controversial because section 18 clearly

says that. If you were to ask me, does this then

provide the chief of defence staff with the

authority to, for example, grant pecuniary relief

to a complaint that has been raised to his

attention, then you are asking me to opine in a

legal capacity.

In the same vein, if you were to

ask me what is the scope of ability, scope of

authority, scope of capacity upon the chief of

defence staff granted by virtue of section 18 of

the National Defence Act, again, I would have to

say that is an area upon which it is quite likely

that I would have had to have opined.

So I would suggest that if you

were to ask me what is the relevance of next of kin

within the scope of the administration of military

estates, you are asking me in effect to opine on


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the merit of it as a term of legal art, or not, so

I cannot disclose whether I provided advice on that

or disclosed the nature or scope of any advice that

I may have given with respect to the next -- with

respect to whether or not "next of kin" is a term

of legal art or has some standing with respect to

the administration of service estates.

Q. I hear the words. I don't

think I understand the rationale behind it. Let me

see if I can clarify.

Is it your view, then, that with

respect to any matter that may have led you or any

other member -- let's just say you -- to have given

an opinion or a principle that might have been

relevant in the giving of an opinion, then

regardless of whether you gave it in this case or

in a different case or a totally unrelated matter,

you are not entitled to provide an answer given

that that answer might have been contained in some

legal opinion that you gave?

A. That's more or less correct,

sir. To be very blunt, for example, you had asked

me a question regarding CFAO24-5. If you were to

ask me, does that CFAO define next of kin, I could

say yes because I'm merely making a observation


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about the fact that on the face of the CFAO it

defines next of kin.

If you were to then ask me what is

the legal ramification of the definition of next of

kin with respect to another CFAO, now you are

asking me to opine and the danger is my principle

role in the Canadian Forces now is to provide legal

advice to the Canadian Forces and the Department of

National Defence on behalf of my boss, the Judge

Advocate General of the Canadian Forces.

So I cannot disclose to you what I

-- I am not here in my personal capacity. I cannot

tell you, Rory Fowler thinks the legal merits of

this are X, Y, or Z. I am here as an officer of

the Judge Advocate General, and if you ask me to

opine, the danger is I cannot opine on something

that is within the provenance of the Judge Advocate

General to provide legal advice on because I can't

disclose what may or may not have been discussed

with respect to advice on that particular issue.

Q. I find that somewhat

remarkable, but let me push it a little further.

Is this an issue that is confined to you or would

every member of the Judge Advocate General be

similarly precluded from offering an opinion or


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offering an analysis of a question of law even

divorced from any factual underpinning upon which

-- or just at that point? Is that--

A. I can't speak on behalf of

other legal officers. I would be highly surprised

if they didn't take a similar approach to mine,

simply because I'm not here to advise -- with due

respect, sir, I'm not here to advise the Commission

on the application of the law. It's not my role.

My job is to exclusively provide legal advice to

the Canadian Forces Department of National Defence

on the interpretation of the laws that applies to

the Canadian Forces and the Department of National

Defence. It's not my role to provide legal advice

to the Complaints Commission and so I cannot.

Q. I think we may be reaching a

point where there will be diminishing returns for

asking questions. I'm going to ask a few more

questions and we will see where the boundary line

comes.

I was going to ask you whether

there is anything specific about a military will

that differentiates it from a will pure and simple,

such as a will that I might draw up with respect to

my wishes about what should happen in case I were


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to pass on.

A. The extent to which I can

answer your question, sir, is such that there is a

specific DAOD which directs members of the Canadian

Forces --

THE CHAIRPERSON: I'm sorry, the

acronym? What did you say?

THE WITNESS: Sorry, DAOD, sir.

Defence Administrative Order Directive. That

directs, and it is specifically 7012. Dash-zero is

the policy and dash-one is the implementation

directive, and it draws the attention of a member

of the Canadian Forces to the will form that's

described as a Canadian Forces service will.

So there is a form that some

members of the Canadian Forces will use to execute

a will. Whether or not it has distinct apart from

any other testamentary document, it's not for my

place to provide you with legal advice on that.

BY MR. FREIMAN:

Q. What authority or office or

institution determines the validity of a will? And

we will talk about a military will.

A. What I would suggest, sir, to

the extent that I can answer your question, a court


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of competent jurisdiction ultimately has the

authority under our Constitution to determine the

validity of any will within Canada.

Q. Does the military have any

prima facie role or preliminary role in determining

the validity of a will?

A. We are starting to get into

an area where, clearly, in my role as director of

law, compensation, benefits, pensions and estates I

have in the past opined with respect to the

exercise of proper functions by members of the

Canadian Forcesand the Department of National

Defence with respect to the interpretation or the

application of testamentary question. So I cannot

answer that question.

Q. Who determines the identity

of an executor of the will?

A. Ultimately the testator.

Q. Again, for purposes of the

military acting upon instructions from an executor,

does the military have any power or capacity to

determine who the executor of a given will might

be?

A. Again, we are getting into an

area where I cannot answer because I would breach


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solicitor-client confidentiality, sir.

Q. Is there a legal meaning to

the phrase "active duty" for purposes of

determining the validity of a will?

A. Again, we are getting into an

area where to answer that question I would have to

opine on the relevance of the term of legal art

"active duty" with respect to the administration of

service estates. Therefore, I cannot answer the

question.

Q. Is there a minimal standard

or a minimum form or formality necessary for the

validity of a military will? What is the least

amount of information that is necessary for a

military will to be deemed valid by the military?

A. Again, sir to answer that

question I would have to opine on legal merits

within various provincial jurisdictions of various

instruments.

Q. Who determines testamentary

capacity before a court gets to make that

determination? Does the military have any role in

determining testamentary capacity?

A. Again, I cannot answer that

question because it would require me to opine on


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any standing, if any, of any member of the Canadian

Forces to exercise certain functions under law.

Q. Is there a difference between

personal representative or executor for military

purposes and purposes of administering military

estates as opposed for non-military purposes?

A. I'm taking my time, sir,

because I want to make sure I am not simply

discarding out of hand my ability to answer your

question.

Q. Take your time. And let me

say that by asking these questions, I'm asking

questions that I believe I have an entitlement to

receive the answers. I don't for a moment dismiss

your own bona fides in weighing these questions and

determining what the impact of your professional

obligations are on your ability to answer them.

A. Thank you. I understand.

THE CHAIRPERSON: Maybe you could

ask that one again.

MR. FREIMAN:

Q. I can't remember which one it

was. I think I was asking whether there was a

difference in the notion of a personal

representative for purposes of military estate as


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opposed to for regular civil purposes.

A. Frankly, the furthest I could

go in answering your question is to note that the

term "personal representative" is used in certain

Canadian Forces publications, for example, the

guide for a commanding officersand the guide for

assisting officers that are promulgated under the

authority of the director of casualty support

management.

Beyond that, any significance of

that term, including whether or not it consists as

a term of legal art or grants specific authority

independent of provincial regimes I cannot opine.

Q. Is there any legal content or

legal -- are there any legal implications to the

use of the term or the qualifier "primary" or

"secondary" to modify the term next of kin? In

other words, is there anything inherently important

for a legal point of view in the notion of a

primary next of kin or a secondary next of kin?

A. Again, sir, that would cause

me to have to disclose legal advice that I may or

may not have given with respect to that particular

term.

Q. For purposes of cutting this


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a little shorter, there are another half-dozen

questions about next of kin, primary next of kin,

secondary next of kin. I believe that the answers

to all of them, that your response will be the same

as the ones you have given me so far and there is

nothing new in those questions as opposed to the

previous ones.

I simply want to, in terms of

considerations, I don't want it to be thought that,

if I passed to another topic, that exhausts all the

questions I would have had.

The next general topic area was

the personal emergency notification form. I was

going to ask what the purpose of the personal

emergency notification form is.

A. At the risk of semantics,

sir, it is to allow the Canadian Forces to notify

appropriate people as designated by members of the

Canadian Forces in times of emergency. The title

is self-explanatory.

Q. Does it have any further

legal status? And is the fact of filling out

information on such a form a potential basis for

making other legal determinations or deciding

entitlements?


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A. Again, that would cause me to

have to opine on something that's clearly within

the mandate of the office of JAG to advise the

Canadian Forces. Therefore, I must indicate that I

cannot answer because it would disclose a

solicitor-client confidence.

Q. As with the question of

wills, I was going to ask were there any minimal

formalities that are necessary to establish the

validity of a personal emergency notification form.

A. If there are minimums, it

would require me to provide information that is

subject to a solicitor-client confidence.

Therefore, I cannot answer that question.

Q. If there is more than one

personal emergency notification form is there any

rule as to which takes precedence?

A. Determination of any such

rule would require me to disclose a

solicitor-client confidence. Therefore, I cannot

that question either.

Q. As with the topic of wills

and next of kin that preceded it, I have a

half-dozen more questions. They are all of the

same sort.


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I pass now to the question of

funerals. Who is entitled to a military funeral?

A. The most cooperative answer

that I can provide you, sir, is that somebody

wishing to know that would probably have to turn

their mind to CFAO24-5. Beyond that, in

determining whether or not a specific person is

entitled to a military funeral, would require me to

provide a legal opinion which I cannot do.

Q. Where a military funeral is

provided by the Canadian Forces who has ownership

of the funeral as between the military or the

grieving family? Who has control over that

funeral?

A. To provide you with a

comprehensive answer, sir, provide you with any

answer worth merit, I would have to disclose a

solicitor-client confidence, which I cannot do.

Q. Is there a statutory or

regulatory basis for deciding who is entitled to

make decisions about details and conduct of a

funeral?

A. To provide any answer worth

merit, sir, I would have to disclose a

solicitor-client confidence, which I cannot do.


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Q. Is there any difference

between entitlement to make decisions with respect

to the details and conduct of a funeral and

decisions with respect to the details and conduct

of the ultimate disposition of the body by

internment, by cremation, or by any other means?

A. To answer your question I

would have to disclose a solicitor-client

confidence, sir, and I cannot do that.

Q. As with the previous

categories, there are more questions, but that's

the gist of the types of questions I wanted to ask.

I pass now to the concept of a military estate.

What is the difference between a

military estate and an estate pure and simple?

A. If you are referring by

military estate, sir, to a service estate?

Q. Service estate; sorry.

A. The most comprehensive answer

that I can provide to you is the Chapter 25 of the

Queen's regulations and orders, as well as the

service estate regulations enacted under the

authority of the National Defence Act would provide

you with an answer.

Q. Who has authority to make


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decisions about the disposition of a service

estate?

A. I don't think I'm disclosing

a solicitor-client confidence by stating that it is

clear within the service estates regulations as

well as QR&O Chapter 25, particularly -- and this

much I can draw your attention to -- 25.02 directs

that the Judge Advocate General is the director of

estates under that Chapter.

Q. And by being the director of

the estates, does that mean that the Judge Advocate

General has the authority to make decisions as to

who is entitled to what and on what timetable?

A. That title is defined within

the regulations. As far as what it entitles the

JAG to do, what powers it confers upon the JAG, we

are now getting into an area where you are asking

me essentially to opine on a legal issue.

All that I can tell you is that

the Judge Advocate General is the director of

estates under Chapter 25 of the QR&O and under the

service estates regulations; and that I as the

acting director of law, compensation, benefits,

pensions and estates, was the principal staff

officer responsible to the Judge Advocate General


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of the Canadian Forces for the administration of

those duties.

Q. Are there any priorities

established by military regulations, law, customs,

or order for priorities of entitlement to a service

estate outside of what's specified in a military

will?

A. Again, the best that I can do

to assist you, sir, is to direct your attention to

Chapter 25 of the QR&O to assist you in identifying

where statute or regulations may impose certain

obligations upon the Canadian Forces with respect

to priorities.

Q. Is there any difference in

the role of an executor vis-à-vis a service estate

as opposed to an executor vis-à-vis a general

estate?

A. What I would suggest to you

-- this much I can say because it's clear within

the regulations -- that with a service estate that

portion I'm going to state that is a defined as a

service estate falls under the authority of the

director of estates until such a time as it is

transferred to the executor or executrix or other

personal representative of the estate.


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Q. I think I have already asked

you this question and you have declined to answer

it as to who makes the decision as to the identity

of the executor or executrix, and on what basis.

A. At the end of the day, that's

going to require me to opine on an area that has

been touched upon as a solicitor-client confidence.

Therefore I cannot answer that question.

Q. There are more questions but

I pass now to the issue of furniture and effects,

or furnishings and effects, perhaps. Who ask

responsible for administering the personal effects

of a military deceased?


answer your question without divulging a

solicitor-client confidence is that there are

specific directions indicated both in Chapter 25 of

the QR&O, as well as in DAOD7011-0 and -1 with

respect to responsibilities pertaining to service

estates and personal effects in the custody and

control of the Canadian Forces.

Q. Does a committee of

adjustment owe a duty to anyone? And specifically,

does it owe to duty to the Canadian Forces? And

does it owe a duty to the beneficiary of an estate?


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A. The subject to whom a

committee of adjustment owes a duty would require

me to divulge a solicitor-client confidence and I

cannot do that.

Q. What jurisdiction does the

Canadian Forces have to detain a deceased member's

personal effects?

A. The difficulty I have with

the question, sir, to begin with is the use of the

term "detain".

Q. Take custody of and -- take

and retain custody.

A. Other than observing the fact

that when a member of the Canadian Forces dies

there can be, and typically are, occasions where

personal effects of a member of the Canadian Forces

lie within the custody and the control of the

Canadian Forces. For example, if-- in my

experience, this much I can tell you, it doesn't

disclose a solicitor-client confidence -- when

members of the Canadian Forces are deployed on

operations, often they will have some personal

effects in the control or custody of the Canadian

Forces. They have got it stored in quartermaster

stores; they have got it stored someplace one with


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-- on a Canadian Forces base. If the individual

dies, those items therefore fall quite obviously

within the control of the Canadian Forces.

The extent of control, the lawful

authority to control the disbursement of those

personal effects, the lawful authority of any

member of the Canadian Forces to handle, to deal

with those, would be the subject of -- would likely

be the subject of legal advice and therefore, if

you are asking me who can exercise control, the

scope of the control of the exercise, what they may

do, what they must do with those personal effects,

you are asking me to opine on an area that is

covered under solicitor-client confidences and

therefore I cannot go further than that to answer

your question.

Q. There are more questions, but

they all follow the same pattern. I turn therefore

to the issue of statutory death benefits. How is

entitlement to statutory benefit determined, by

whom and pursuant to what regulation or authority?

A. Entitlement to statutory

death benefits is determined under the authority of

the Canadian Forces Superannuation Act, which

creates it. I don't think I go too far in


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suggesting that that's where it's found, under the

Canadian Forces Superannuation Act.

The administration of benefits

under the Canadian Forces Superannuation Act

principally falls to the director of Canadian

Forces -- wrong. DCFPS. Director of Canadian

Forces pensions services. DCFPS. Those are

statements of fact, whereas obvious statements

under the law with respect to the authority of

DCFPS to make certain determinations, if you have

questions about those, those are going to be

subject to solicitor-client confidences. Because

part of my duty as director of law, compensation,

benefits, pensions and estates was to provide

advice to DCFPS in the administration of service

pensions whether it's a supplementary death benefit

or any other aspect covered under the CFSA.

Q. There are a number of such

questions. I won't ask them. Consider them to be

asked. Is there any power or authority to

determine statutory death benefit entitlement

outside of the statutory death benefit form that we

have seen in the course of these proceedings? I

can probably look one up if you want it, but I

think you know the form I mean.


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A. Oh, I'm intimately familiar

with it, sir.

Q. I'm certain of that as well.

A. The extent to which there is

any authority beyond the specific form established

under the Canadian Forces superannuation

regulations would require me to opine on an area

that is covered under solicitor-client confidence.

Q. Well then I pass, even though

there are more specifics, to the issue of military

cross. What form or forms are necessary in order

to establish the person entitled to receive a

military cross in the event that the military

should chose to award one?


answer your question, sir, is there is a form that

has been presented under tab 8 of the documents

that you provided to me.

Q. Yes.

A. It is entitled the

Designation of Memorial Cross Recipient. There is

typically a DND or CF form numbers that accompanies

it; however, I cannot recall off the top of my head

what that is and the copy under tab 8 doesn't

provide that. I think it was cut off at the


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bottom. But there is a form number. Unfortunately

I can't tell you what the form number is.

I can go so far as to tell you

that, because it's public knowledge, that the

designation of memorial cross recipients was

altered in the wake of Captain Nicola Goddard

because traditionally -- this dates back to World

War I, and as historical knowledge that many people

are now aware of, traditionally it was given to

mothers or female spouses of service members

because back in World War I and World War II the

profession of arms was a male-dominated profession.

That is no longer the case, and so a requirement

was identified that we needed to allow greater

flexibility for that. I can't really go any

further into that.

Q. I'm going to ask, although

I'm confident I know that you will give me a

response that you are not able to answer the

question, but what I are the minimal formalities

necessary in order to establish a member's

intentions with respect to a military cross?

A. You are correct, sir. I

can't really provide you with any further

clarification because that would require me to


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opine on an area of solicitor-client confidences

and I cannot do so.

Q. Where there is no valid form

filled out by a member, what is the basis for the

-- any decision as to who should be awarded a

military cross?

A. Such a determination would

require me to opine on an area of law that would be

covered under a solicitor-client confidence.

Therefore I cannot answer that question either.

Q. There are more questions but

I turn instead to the issue of common law status.

What are the consequences of having entered into a

recognized common law relationship within the

Canadian Forces, for purposes of entitlement to

benefits?

A. I will answer this to the

extent that I believe I'm capable of doing so.

First, under the Queen's regulations and orders

specifically, and I believe you have it in here,

give me one second to confirm if you've got it in

here so I can direct your attention to it. You do.

Under tab 13, you have included,

it appears, all of Chapter 1 of the Queen's

regulations and orders. QR&O1.075 deals with


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common law partnerships as it pertains to the

Canadian Forces.

There is also, I can draw your

attention, I'm not sure if you have a copy in here,

but there is -- you've got a CFAO19-41 at tab 18.

CFAO 19-41 deals with common law relationships.

There is also a chief military

personnel. A chief military personnel is

essentially the personnel officer for the entire

Canadian Forces who has promulgated a directive on

common law partnerships. I'm not sure if it's in

here.

Twenty-three, right at the end.

So CMPInstruction 15/06 those are

when it comes to the administration of benefits

under the Canadian Forces. Three of the principal

sources that a unit administration officer or even

a member of a unit would turn to help them identify

their obligations, what is required with respect to

the recognition of a common law partnership under

the QR&O. That's probably the furthest I'm going

to be able to answer your question, because if I

were asked to opine on what are the requirements at

law to establish a common law partnership, then you

are going to be asking me to opine on an area that


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I can opine on before this Commission.

Q. In addition to the statutory

and regulatory sources you have discussed, does the

law of the province in which a soldier's residence

is to be found, does that law have any impact on

the establishment of common law status or the

entitlements by virtue of common law status for

military benefits?

A. The extent to which a

provincial regime would apply to the application of

benefits pursuant to the National Defence Act,

Canadian Forces Superannuation Act, or other

federal legislation would require me to opine on an

area that is covered under solicitor-client

confidence. Therefore, I cannot provide you with

greater information to answer your question.

Q. Does a common law spouse have

any recognized or defined specific entitlements

vis-à-vis a service estate or vis-à-vis military

benefits?

A. With respect to opining on

whether or not a common law partner has

entitlements or benefits pertaining to service

estates or other estates, I can't provide you with

any greater clarification. That would require


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solicitor-client confidence with respect to whether

or not a common law partner has an entitlement to

benefits under another regime, under the National

Defence Act.

The furthest I can go is to

suggest to you that generally speaking the National

Defence Act pertains to benefits awarded to members

of the Canadian Forces.

In fact, when you look at section

35 of the National Defence Act, it talks about

benefits that are attributed to members of the

Canadian Forces. That's about as far as I can go

in answering that question.

Q. Just give me one moment. I

think all of the other questions I could ask are

much of a same piece, and so I pass on to, I think,

my final general category which is responsibility

for accuracy of information compiled or maintained

in military records.

Who is responsible for the

accuracy of information in military records about a

member?

A. My responses is in no way

flippant because it's an accepted reality. We are

all of us within the Canadian Forces responsible


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for the accuracy of records, to the extent that we

are involved in either their generation, their

maintenance, or their disposal. So we all of us

under the National Defence Act have obligations

with respect to the maintenance and the generation

of records.

Q. If I understood your answer

correctly, you are asking about responsibility for

the accuracy of information by provided by a member

vis-à-vis his own or her own information and

status?

A. Yes.

Q. Is there any responsibility

in the chain of command for the accuracy of

information about members subject to their command?

A. There will undoubtedly be

occasions in which the chain of command will play a

role, direct or indirect, in ensuring that

information is accurately recorded. The scope and

nature of that obligation, the further we define it

the more we get into an area where you would be

requiring me to disclose a solicitor-client

confidence. So I'm not too sure how much more

specific I can get in my response.

Q. Does the duty to ensure


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accuracy that you have just described extend to a

duty to ensure that members are notified as to

their own responsibilities for providing accurate

information?

A. If you are asking me whether

at law the chain of command generally has a duty of

care with respect to ensuring that personnel under

their command report accurately, you are asking me

to opine on something that would be the subject of

solicitor-client confidence.

If you are asking me if there is

generally anywhere you could look to find the

duties imposed upon officers or non-commissioned

members of the Canadian Forces, I would suggest the

first place you would look, following the National

Defence Act, would be the Queen's regulations and

orders.

Q. There are many other details,

but those are the main subject areas and should

give a relatively robust record upon which argument

can take place.

THE CHAIRPERSON: Thank you, Mr.

Mr. Freiman. Colonel Drapeau?

CROSS-EXAMINATION BY COL (RET'D) DRAPEAU:

Q. Major Fowler, good afternoon.


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A. Good afternoon.

Q. In your opening comments this

morning you gave a brief description of your duties

generally, or responsibilities. I didn't hear you

civil litigation. Is that part of your job, claims

being made against the Crown?

A. Are you talking about my

current job --

Q. No, as --

A. -- or my job as--

Q. In the estate.

A. As director of law,

compensation, benefits, pensions and estates? I

don't think I mentioned civil litigation. At the

end of the day-- as you are probably well aware; I

know you have dealt with those of us in the office

of the JAG as well as DND -- CFLA, the Department

of National Defence Canadian Forces legal advisor,

there is a specific directorate that deals with

claims and civil litigation, not surprisingly

called the directorate of claims and civil

litigation within DND CFLA.

Q. So it's not within the JAG?

A. DND -- claims and civil

litigation?


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Q. Right. It is not within the

JAG organization?

A. That directorate is not

within the office of the JAG. Whether or not the

office of the JAG has a role to play in claims and

civil litigation is another matter entirely.

Q. You referred a number of

times to the expression client-solicitor. Is the

client the Canadian public?

A. No, I would suggest -- and

what I would suggest, if I might, sir: The best

way to define this is to look at the statutory

mandate that the Judge Advocate General has. I

don't have a statutory mandate. My job as a legal

advisor to the Canadian Forces, regardless of what

particular post I might hold at the time that I am

a legal advisor, is ultimately traced back to the

Judge Advocate General. So specifically-- -and I'm

not sure; I think Ms Richards may have introduced

this to the Commission.

MS RICHARDS: If you want to

follow along with the legislation, I will just give

you the reference. It's collection F, volume 3,

tab 3.

As you'll recall, Mr. Chair, there


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was a summary provided by Lieutenant Colonel

MacGregor of the JAG branch regarding issues

surrounding the Judge Advocate General branch, and

included in that at tab 3 is relevant legislation

including Queen's regulations and orders.

THE CHAIRPERSON: Please proceed,

Major.

THE WITNESS: First off, under

section 9, specifically subsection 9 sub 1 of the

National Defence Act, the subsection states:

"The Governor-In-Council may

appoint an officer who is a

barrister-advocate with at

least 10 years' standing at

the bar of a province to be

the Judge Advocate General of

the Canadian Forces."

Presently that is Brigadier

General Blaise Cathcart. At the time, at the

relevant time back in early 2008, it was then

Brigadier General Ken Watkin. Under section 9.1:

"The Judge Advocate General

acts as legal advisor to the

Governor General, the

Minister, the Department, and


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the Canadian Forces in

matters relating to military

law." (As read)

So this, as I mentioned at the

outset of my testimony, there are four essential

clients recognized under statute, and those being

the Governor General, the Minister, the Department,

and the Canadian Forces. As I said at the outset,

the privilege of advising the Minister in persona

as the Minister, Minister McKay, rests with the

Judge Advocate General. I would not presume to do

that.

So essentially I, as a legal

officer, look at my client as being the Canadian

Forces and the Department of National Defence.

With respect to where I get that

authority, we turn to QR&O4.081. QR&O4.081

states:

"Every legal officer whose

duty is the provision of

legal services to the

Canadian Forces..."

At the relevant time that was my

duty.

"...shall be posted to a


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position established within

the office of the Judge

Advocate General." (As read)

I was posted to director --

specifically the position I held was director of

law, compensation, benefits, pensions and estates

2, because I was the number 2 legal officer.

"The Judge Advocate General

has command over all officers

non-commissioned members

posted to a position

established within the office

of the Judge Advocate

General." (As read)

So at the end of the day, the

Judge Advocate General had powers of command over

me. And finally, in sub-article 4:

"The duties of a legal

officer posted to a position

established within the office

of the Judge Advocate General

are determined by or under

the authority of the Judge

Advocate General and in

respect of the performance of


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those duties a legal officer

is not subject to the command

of an officer who is not a

legal officer." (As read)

So very specifically, General

Watkin at the time did not give me my specific

direction. Between myself and General Watkin in

the chain of command was at the time Colonel Pat

Gleeson who is the deputy Judge Advocate General

military justice and administrative law. He was my

immediate supervisor while I was the acting

director.

With respect to that relationship,

the Judge Advocate General is appointed by the

Governor-In-Council is responsible to the Minister

ultimately for the performance of his duties which

removes him from the chain of command of the

Canadian Forces. So even though the CDS would have

control and administration over the Canadian

Forces, in that particular role I was responsible

to the Judge Advocate General through deputy Judge

Advocate General military justice and

administrative law for the performance of my duties

as a legal advisor.

Q. Am I right to suggest the


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privilege belongs to the client?

A. It does indeed, sir. In

fact, going further, because what I'd mentioned

before was it was a confidence, and as you know,

sir, the confidence is broader than the evidentiary

rule of privilege. So the confidence that I hold

is not my confidence, it's the confidence of my

client. And in this particular case, the statutory

client is the Canadian Forces and the Department of

National Defence represented by the Minister of

National Defence.

Q. So whoever is asked to

divulge or to consent to the derogation of a

client-solicitor privilege is this amorphous mass

called the Canadian Forces?

A. I would suggest no, sir. I

would suggest that if you are looking for authority

to -- and again, in a way I am rendering a legal

opinion but I understand what you are getting at

here, sir-- is that ultimately the head of the

department, which is the Deputy Minister, or the

head of the department in the Canadian Forces,

ultimately the Minister under the National Defence

Act, that's who owns, if you will, the confidence.

So it's not my confidence to divulge. Neither is


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it the confidence of the commanding officer of 1

PPCLI to divulge.

COL (RET'D) DRAPEAU: Those are

all my questions.

THE CHAIRPERSON: Ms Richards.

CROSS-EXAMINATION BY MS RICHARDS:

Q. Thank you. Major Fowler, I

just have one question for you. Did you act as a

legal advisor at any point in time in relation to

any matters in the Langridge file?

A. I did.

Q. Thank you.

THE CHAIRPERSON: Anything

further, Mr. Freiman? Major, that concludes for

today. You won't be required any further. You may

be required in the future. I don't know that. But

in terms of your day, you wouldn't be required

further today for sure.

It's a difficulty spot you are in.

I appreciate that. And I know you have your roles

and responsibilities and duties and you apply them

according to your professional conduct, and I

appreciate and understand that. Thank you for your

testimony as well as your long service dating back

to days as a cadet, which you probably fondly


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remember, but I want to thank you very much.

THE WITNESS: Thank you, sir.

THE CHAIRPERSON: You are free to

go if you wish. Do we need to take 5 or 10minutes

before we hear submissions? We will take just a

short break. We will go to 10 to 3. And I would

like to hear submissions relative to the issue as

to jurisdiction that you believe I do or don't have

to rule on solicitor-client privilege. We will

adjourn until 10 to, to get your stuff in order.

--- Recess taken at 2:35 p.m.

--- Upon resuming at 2:52 p.m.

THE CHAIRPERSON: Just for purpose

of the gallery and any media that may be here, we

had talked about doing some submissions. Those

submissions are going to be done in the morning due

to a variety of reasons and we are going to hear

Lieutenant-Colonel King at this time.

Welcome, Lieutenant-Colonel.

Thank you for your patience and we are going to do

everything in our power to get your testimony in

today so that you can have a free day to travel

tomorrow.

THE WITNESS: Thank you.

SWORN: LIEUTENANT-COLONEL BRUCE KING


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EXAMINATION-IN-CHIEF BY MR. FREIMAN:

Q. Good afternoon,

Lieutenant-Colonel King. Let me just go over a

couple of ground rules that I intend to abide by

and maybe put you into the picture as to what has

happed so far.

You will no doubt be aware that

there has been active discussion as to the nature

of the testimony that members of the Judge Advocate

General are entitled to give in these proceedings

and that certain positions have been taken about

those limits.

While there is some disagreement

about those matters of substance, my own view is

that I'm not entitled to ask you about legal advice

that you provided, either the questions that you

were asked or the answers that you gave in response

to that to any such questions.

And if I do per chance ask such a

question, it is inadvertent; that's not my

intention. Beyond that, I think there is an active

disagreement between Commission counsel and counsel

for the Department of Justice and I think counsel

for the Complainants may take a view closer to that

of Commission counsel, but these things will work


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themselves out.

Let me first start by just asking

you to put us into the picture about your military

background, and then either as part of that or

separately, I would like to know a little bit about

your legal training and legal experience.

A. Sure. I am a reservist in

the Canadian Forces. I was called to the Bar of

Alberta in 1990, so I have been a lawyer for 22

years. When I graduated, I went into private

practice. I was a partner in a regional law firm

called Cruickshank Karvellas. Later on I was a

partner in a national law firm called Fraser Milner

Casgrain.

Q. I have heard of that place.

A. And then I started my own law

firm, so I have worked at those three law firms.

In 1999, I enrolled in the Canadian Force, so while

I was working in full-time private practice until

about 2008. It overlapped with reservist duties.

In about November2008, I started

on a full-time contract as a reservist and that's

really when I started working full-time in the AJAG

office and I did that for a period of time, and

then in 2010, I deployed on a couple of deployments


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and I was out of Alberta for almost a whole year.

In 2005, the Chief of Defence

Staff had a review team to look at boards of

inquiry generally and whether they were being

effective or not and I was appointed as a legal

advisor to that review them and so there is a

number of innovations that came out of that review

team that are in effect today.

For example, before then, family

members weren't allowed to attend boards of

inquiry, for example. That was an innovation from

that committee as well as other innovations like

the creation of the Administrative Investigative

Centre, the AISC.

Really since November2008, I have

essentially been on full-time service with the

Canadian Forces but in a reserve capacity.

Q. I wasn't here for parts of

last week so I'm not sure of all the testimony that

was heard. If I'm repeating some things, I

apologize in advance. I don't think that I am

touching on any areas that would have been

discussed last week.

What I was hoping to do to begin

your testimony was to go over with you the


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structure of the generation and provision of legal

advice within the structure of the Canadian Forces,

a bit of a who does what taxonomy so we understand

who is in charge of what.

Maybe the best way of doing it is

to start with the position that you held at the

material time, which I understand was AJAG for

Western Region.

A. Yes.

Q. What sorts of legal

questions, legal issues are within the jurisdiction

of the Western Region, Eastern Region of the

division of the Judge Advocate General that you led

at the material time?

A. We provide legal advice to

units that are in, at that time, Alberta and

Yellowknife.

Q. Perhaps you could help me by

telling me who would report to you and who in turn

would you report to?

A. My immediate supervisor is a

Deputy Judge Advocate General for regional services

and I supervise a number of lawyers in Alberta.

Q. Saying you provide legal

advice, can you help us with the kinds of topic


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areas that would be within your mandate, and I'm

going to ask you what sorts of things were outside

of the mandate of your office?

A. We provide advice on human

resources issues, military justice issues, a

variety of things. In some cases, we are a filter

of sorts. Due to the kind of issue that was being

raised, we might handle it. It might have been

referred to somebody in Ottawa.

Q. If I could use a homely

example from the world of private practice, which

is the only world I'm really familiar with, is it

safe to say that you would be providing the types

of service we would associate with in-house counsel

in major corporations, human resources issues,

procurement issues, contract negotiation or

administration issues, perhaps issues relating to

human rights claims, those sorts of issues, or am I

off base on that?

A. There would be a broad range

of issues that we potentially could give out advice

on.

Q. What would be the trigger

for, as I say, going outside, not doing things

in-house? What sorts of issues would not typically


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be within your mandate aside from -- we understand

if there is a resource issue and you have seven

lawyers or eight lawyers and they are up over their

heads, you may need to bring in somebody else. But

aside from simply capacity issues, what sorts of

issues are outside of your mandate?

A. For example, if a Statement

of Claim was served and a lawsuit was commenced,

that wouldn't be dealt with by our office. That

would be referred to DND CFLA in Ottawa.

Q. Let's stop for a moment. DND

CFLA is Department of National Defence Civil

Litigation --

A. -- Legal Advisors.

Q. What is their mandate? Are

they located within Alberta for your benefit or

some there or is it all centrally located?

A. They are located in Ottawa.

Q. Is there a limit to the size

of the claim before it gets referred out? Do you

ever administer your own claims?

A. We don't do any appearances

in court.

Q. What about preliminary

responses to demand letters and allegations? Does


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that goes out too?

A. There is an authority set out

in the DAOD.

Q. We went over that this

morning.

A. There is a DAOD that deals

with what you are asking.

Q. Off the top of your head, do

you have a recollection of what that would be?

A. Yes. It's which DAOD? 7004

and the limit is $25,000.

Q. If a claim is worth more than

$25,000 it gets booted up and if it's worth under

$25,000 you can at least do the initial response,

is that right?

A. I have a settlement authority

of up to $25,000 which may be different than what a

claimant is asking.

Q. Yes. If I understand

correctly, you have a certain discretion to think

through what the claim is really worth and just

because somebody is asking for a million dollars

doesn't mean you have to trouble the folks in

Ottawa.

A. I'm there as a legal advisor,


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so I apply some legal judgment.

Q. So far we have the ordinary

legal issues that any institution including the

military might generate. We have civil litigation

claims. We know that from time to time, there is a

need within the military to administer justice

whether it's by a courts martial or by some other

means. Who is responsible for prosecutions?

A. Prosecutors.

Q. What is the connection

between the prosecution authorities and your shop,

if I can call it that?

Q. I understand that a colleague

of mine Lieutenant-Colonel Bruce MacGregor is going

to be speaking exactly to that issue so I would

defer to him.

Q. So you are not prepared today

to discuss the way that the legal services

available to the military is structured.

A. That wasn't your question.

That's a different question, but your question

relating to the role of prosecutions, I leave to my

colleague who is going to testify to that.

Q. But you have no role in that.

A. In prosecutions?


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Q. Yes.

A. I don't do court martials or

anything like that. For summary trials, for

example, I may have a role.

Q. Let me rephrase what may have

been a badly phrased question then. I'm interested

in the administration of discipline through

judicial or quasi-judicial means, so it's taking

steps with respect to alleged offences and I

understand that there are several offences that are

serious in nature that are dealt with in a way that

we who are more familiar with the civil -- and it's

not contradiction in terms -- the non-military

criminal law. The more serious offences would

correspond to criminal trials, but within the

military, I understand there are less serious

proceedings, discipline offences, and I think you

have told me that for those, you or those under

your command might have some role.

A. Yes.

Q. What would that role be?

A. Depending on the charge, we

may give pre-charge advice, we may give pretrial

advice. If it's a matter where there has been a

unit investigation, that's going to proceed to a


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summary trial, for example.

Q. We have dealt with, what I

call, in-house type things, we have dealt with

offences and dealing with offences. We have dealt

with civil claims and claims under 25,000, claims

over 25,000.

There is also within the military

the Military Police and they engage in

investigations. In the course of their

investigations, they often have a need for legal

advice. Who gives them that legal advice?

A. The Military Police?

Q. Yes.

A. That would come from an AJAG

office.

Q. From your office or from a

separate --

A. It could come from our

office.

Q. If it doesn't come from your

office, where does it come from?

A. It depends. It could come

from a prosecutor as well.

Q. Is there any rule of thumb as

to whom the NIS or the Military Police should turn


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to when they have legal questions whether it's with

relation to a charge or it's with relation to an

understanding of a legal matter material to the

prosecution?

A. Right. I'm talking purely

Military Police just so we are clear, not the NIS.

Q. Okay. Let's talk about

Military Police first.

A. The Military Police typically

do investigations which are turned over to a unit

to be dealt with in some fashion.

Q. Okay.

A. So we see Military Police

particularly when we are giving advice to the unit.

Q. Let's go to yet another kind

of issue and that is investigations conducted with

the National Investigation Service, the NIS. Where

do they get their advice?

A. They get it either from their

own legal advisor, an NIS appointed legal advisor,

or from prosecutions. We never give legal advice

to the NIS.

Q. Are there any safeguards or

are there any institutional walls that separate

those who are charged with giving advice to the


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chain of command, those are charged with giving

advice to the prosecution service, those who are

charged with giving advice to the NIS-- forget

about the MPs for awhile.

A. That very question again is

going to be dealt with by my colleague

Lieutenant-Colonel MacGregor so I will defer to

him.

Q. So you are not willing to

discuss that at the moment.

A. No.

Q. Because you don't know?

A. No. I'm deferring to my

colleague who is going to comment on it.

Q. I'm asking you from your

point of view what the boundaries as between those

various functions.

A. And I have given you my

answer.

Q. With respect, sir, you have

not. You have told me you don't want to answer.

You would rather have somebody else answer.

A. My colleague is going to

comment on the role of prosecution, which is

essentially what you are asking.


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Q. But I'm not asking your

colleague anything at the moment; I'm asking you.

A. Okay. I'm deferring to him.

THE CHAIRPERSON: You are required

to answer the question, please.

MS RICHARDS: In fairness, as the

Commission knows, there is already evidence that

has put in in respect of the information that has

been provided to the Commission, so if you would

like to refer him to that, that may assist the

witness.

MR. FREIMAN: I'm not sure what we

are referring to.

MS RICHARDS: Collection F, Volume

3, tabs 2 and 3.

MR. FREIMAN: Okay. If somebody

would like to find Collection F.

Q. Instead of taking you through

this, I'm going to ask you some specific issues

that you can deal with in the abstract or if you

want to draw in your own experience, that's fine

also.

Is there anything that you are

aware of that deals with the propriety or otherwise

of providing legal advice to the Canadian Forces on


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a topic or issue and subsequently providing legal

advice to a body charged with investigating that

very same event or issue?

A. That was so vague. I'm not

sure what you are asking.

Q. In a circumstance where a

member of your --

A. Rather than speaking in a

roundabout way, I mean, I'm here to give evidence

of a particular matter, why don't you ask me about

that?

Q. I admit that I'm relatively

incompetent in the way I formulate my questions,

but you will have to bear with me and let me ask

the questions.

If there are other questions that

you needed to have asked of you, you have counsel

here who is going to ask all the questions that

they --

A. I'm sorry. I don't mean to

be difficult.

Q. Okay. Let me try to --

THE CHAIRPERSON: Let me add some

ground rules. Counsel will ask the questions and

you answer them.


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THE WITNESS: I agree.

THE CHAIRPERSON: It doesn't go

the other way around.

MR. FREIMAN:

Q. If you are in any doubt, here

is the nature of my question. In a circumstance

where a member of -- I don't know whether you call

it your unit or your department, the folks who work

with you and under you.

If a member of that entity has

been called upon to give legal advice with respect

to a specific issue or with respect to the legal

dimensions of a certain event, is there anything

improper about that same person giving legal advice

to an investigative body that is looking into that

same issue and those same events?

A. It would really depend on the

investigative body and what the advice was before.

We would have to look at specific facts in order to

make an opinion on it.

Q. I'm going to give you three

different examples and I would like your comments

on it.

Let us assume that that there is a

death and that a Board of Inquiry is called into


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that death. Is there anything particularly

problematic about someone who has given advice with

respect to substantive issues involved in the death

or in the circumstances of the death subsequently

giving advice on those same issues to a Board of

Inquiry looking into the death?

MS RICHARDS: Mr. Chairman, I have

to object on a matter of natural justice and

procedural fairness. As Commission counsel knows,

the Complainants have raised as an actual

allegation in this case that Lieutenant-Colonel

King was in a real or apparent conflict of interest

because he provided advice to the Board of

Inquiries and other bodies.

What Commission Counsel is now

asking this witness to do is offer an opinion

evidence that could be used against himself and as

a matter of natural justice and procedural fairness

I really have to object.

MR. FREIMAN: First of all,

Lieutenant-Colonel King is not a subject of this

proceeding. There is no potential for an adverse

finding to be made against him. That would be

outside of any jurisdiction that this body has.

I ask the question as a more


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general one looking at general principles. If you

want me to ask a question in its bald specificity,

I will ask in the bald specificity, but I think the

more important question is the general one.

It's a question of principle. Is

there a problem with advising an investigative body

with respect to issues that a lawyer has previously

advised the military on a substantive basis.

MS RICHARDS: I'm sorry. But even

with that clarification, this witness has a

reputational interest. While this Commission

cannot make any binding findings against him, we

know as a matter of fact that the Complainants have

raised this very same allegation against him and it

is unseemly improper to try and elicit from him

opinion evidence that could and would be used

against him personally in terms of allegations that

have been made by the Complainants.


COL (RET'D) DRAPEAU: I find it

ironic. Here is the witness prepared to testify

now. Who else is better prepared or qualify or

interested in answering that very question? Him.

If there is a reputational aspect to it, let him

address it. Now is the time.


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MS RICHARDS: Then don't do it

under the guides of a hypothetical question. If

you want to ask him the actual question, ask him

the actual question. But in fairness, you can't

try and trap a witness by asking hypothetical

questions which are going to be used against him.

MR. FREIMAN: I do take more than

a little offense at the use of the word "trapping."

I have no intention of trapping anyone and I would

invite Ms Richards to draw that insinuation.

I'm trying to do this in as

principle to manner as possible and to allow the

witness any sort of latitude that he would like to

answer the question. I have a number of related

questions and it's not my intention here to pursue

any complaint or possible complaint or hypothetical

complaint and I'm not quite sure why I'm being

stopped -- the witness is being stopped from

addressing the question.

THE CHAIRPERSON: In terms of the

question, I have no problem with it. I will just

make comment in that I have no issue in terms of

the finding for Lieutenant-Colonel King. There is

no issue of finding. There is no issue of

wrongdoing. That's not the issue at all. If you


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want to ask the direct question, which you wanted

to avoid, I think that's what Ms Richards is asking

you to ask.

MS RICHARDS: Then it begs a

relevance question because, with respect, if there

is no issue of this Commission making finding on

that issue, then I question what the relevance is

of this evidence to this hearing. And if it is of

relevance to this hearing, then the reputational

and procedural fairness and natural justice of this

witness must be respected.

MR. FREIMAN: In order of

approximately what has been alleged, first of all,

it's not for counsel for the Department of Justice

any more than it is for the witness to formulate my

questions for me.

I may be entirely unable to

formulate a proper question and that will go to the

detriment of the Chair who is seen fit to appoint

me as his counsel. It's not a matter in which the

Chair needs the assistance of counsel.

With respect to what the purpose

of the question is, I submit it is presumptuous for

counsel to jump in and to attempt to conclude why a

question is being answered and where the questions


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are going; and thirdly, the question of relevance

is not a question for counsel to decide.

The decisions of the Federal Court

are clear that the Commission has to be given

considerable latitude in establishing the relevance

of their questions. If there is an issue of

fairness or of natural justice, Ms Richards has

more than ample opportunity to repair any slight

damage that I'm capable of doing with my poorly

formulated questions to the reputation of any

witness who is testifying.

MS RICHARDS: With respect on the

issue of relevance, I certainly hope I don't

understand my friend to be saying that I am

precluded from raising an objection as to

relevance. That's how this proceeding works. I'm

not determining it. I'm raising an objection, much

the same way that Commission counsel doesn't get to

decide what is relevant, Mr. Chair, you do. And so

I've raised the objection as I have on other

occasions as I will continue to do when it's

necessary.


Please proceed with your question.

MR. FREIMAN: Thank you.


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Q. Is there as a matter of

principle any problem with a lawyer who has given

advice on a substantive issue also giving advice to

a body that is investigating that substantive

issue?

A. You would have to look at the

circumstances. It's difficult to say in such a

vague way. In some cases, it may not be. In some

cases, it would be completely acceptable. You

would have to look at specific situations.

Q. I have asked you with the

specificity of a Board of Inquiry investigating the

death and if assistance have been given to the

Forces with respect to legal questions that arose

surrounding the death, whether there would be any

problem in providing the Board of Inquiry with

legal advice pertaining to those same issues.

A. It would depend. You would

have to look at what the issues are.

Q. Would that change at all if

the body that was doing the investigation was a

Summary Investigation?

A. You would have to look at the

circumstances. There is no blanket rule, right?

You would have to look at individual cases and


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individual circumstances.

Q. If I understand your answer

correctly, what you are saying is that the

provision of advice in those two circumstances and

whether there was an issue or wasn't an issue would

depend on the specific legal questions that are

being involved or the specific factual issues that

gives rise --

A. It could be a host of things.

It could be relationships. It could be legal

questions. It could be any range of issues that --

it could be personal interest that arise. There

can be all kinds of interests. You would have to

look at a specific situation.

Q. Has there been any

consideration given within the Judge Advocate

General to questions such as this, that is, where

the line is to be drawn in terms of providing

advice to multiple bodies on the same topic

especially when one body is investigating another?

A. You are asking whether

anybody has discussed it within the legal branch?

Q. Obviously you are not going

to tell me the internal discussions. I just want

to know whether that is an issue that has attracted


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any interest or attention.

A. I'm in Edmonton. I can't

comment on what they are working on in Ottawa.

Q. Let me ask you: If we are

dealing with a criminal investigation into the very

same issues upon the original advice was given.

A. Sorry, whether one lawyer who

gives general legal advice on some matter related

to a death, murder investigation or something and

that same lawyer --

Q. Yes. Could give advice to an

NIS investigation into those same issues.

A. It would really depend on the

issues. For example, you might have a Crown

prosecutor given advice -- and I'm just talking

generally in private practice, not military. He

may have given advice on a search warrant and then

that same prosecutor is now prosecuting. You are

suggesting that there may be a problem with that?

Q. No, I want to explore --

A. I just want to understand.

Is that what you are driving at?

Q. Let's see if we can give a

homely example. If a lawyer within a company had

been giving advice with respect to the existence or


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non-existence of a case of harassment and gave

advice to the company about whether there was or

wasn't harassment.

The analog would be if there was,

then an investigation -- I think the issues might

be whether there is an internal investigation or

whether there was an external investigation or

whether there was a formal complaint about

harassment, whether that same lawyer would provide

legal advice to those who are investigating the

complaint.

That's the analog. I have been

scolded all morning about not turning this into a

fact based endeavour that might lead to a divulging

of solicitor client material, so I'm trying not to.

A. I can certainly envision

instances where legal advice might be given and

then later on a lawyer continues to be involved in

that matter. We see that routinely, and I'm not

talking about the military, I'm talking about my

private practice experience.

Q. Just so there is no criticism

that you haven't been given an opportunity to

respond to complaints, there has been a suggestion

that you would have been in a situation of conflict


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by providing advice to a BOI in circumstances where

you may have been previously involved in other

aspects of the case. Do you believe --

A. Can you be specific about--

Q. I have no idea. There was an

allegation. It's not part of our jurisdiction and

it's nothing that I'm interested in pursuing. It's

your counsel who brought it up and I'm simply

affording you an opportunity to give any answer

that you might -- it had not been my intention to

raise this issue at all.

A. I have already testified that

I started on a full-time basis in November2008 and

the Board of Inquiry was called shortly after that.

That's all I can tell you factually at this point.

Q. That's fine. Let me take you

away from the world of high theory down to

practice. We have heard some discussion and some

evidence about you having an involvement with Mr.

and Mrs. Fynes in or around March of 2009. Can you

from your recollection tell me how you became to be

involved in discussions with the Fynes?

A. I'm not sure if their lawyer

called me or how it came to be, but at some point,

I was on the phone with their lawyer and we made an


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appointment to meet and we met and the details of

our meeting are set out in these letters that are

part of this record. I'm not sure who called who

first or how we came to be in a meeting, but there

we were.

Q. From your perspective, what

was the purpose of having a personal meeting with

the Fynes?

A. I understood that they wanted

to meet to discuss generally this whole situation

of frustrations they had. I had no idea where the

discussion would go. Because of ethical rules, I

cannot speak to them directly because they are

represented by counsel so I could only meet with

them in the presence of their counsel. In fact

that's the only time I ever had a conversation with

them directly was at this meeting.

It's the only time their lawyer

was around and so we met and you see the fruits of

the discussion in these letters.

Q. Can you help us with the

outcome of the discussions? Where was it left at

the end of the meeting?

A. The meeting started clearly

that this was going to be without prejudice meeting


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and that there was going to be litigation. That

ground work set and every letter you see begins

"without prejudice" for a reason.

Q. Can I just stop for a second?

I don't want to break the narrative but I just want

to deal with this issue of without prejudice.

What's your understanding of the Force of writing

the words "without prejudice" on a piece of paper?

A. "Without prejudice" is a well

settled device used by lawyers. It's not binding

but it means that the discussions that are to

follow will not be used in evidence in a tort case,

for example.

Q. Let me tell you what my

impression is and maybe you can confirm or deny

that your impression is the same or different. My

impression is that the words "without prejudice" on

their own may be an indication of someone's hope

that the situation being discussed falls within the

rules whereby confidence has to be maintained and

the contents of the discussions can't be used

afterwards but the words themselves aren't

determinative; it's the circumstances as to whether

there is real or anticipated litigation and whether

the discussions are in furtherance of something


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that might be described as settlement.

A. Yes, I agree. It depends on

the content. There is no magic to the words.

Q. That's right. Putting the

words "without prejudice" doesn't create the

privilege and forgetting to put the words "without

prejudice" doesn't prevent the privilege or the

confidence.

A. I would agree with that.

Q. I just wanted to get it out

of the way because I think there is some letters

that clearly fall within that category, and in some

cases, some authors may have just used the words

without necessarily having any effect, not that I'm

suggesting it has any interest or importance to us

either. You say that it was clear to you from the

outset that litigation was going to ensue.

A. Yes.

Q. Did you form an impression as

to the nature and range of the complaints that the

Fynes were presenting to you?

A. Their lawyer summarizes it in

a letter and I responded to that. When I realized

what they were looking to have addressed, it was

not within my ability to deal with and not within


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the Board of Inquiry's ability to deal with.

I understand they were frustrated

because they wanted to have one stop to take care

of a range of issues, but when you look at the

issues that were raised, there is a whole host of

decision makers inside and outside the Canadian

Forces that are independent from the BOI process

and independent from the JAG branch that I would

have no ability to influence.

If you look at tab 14, I explain

in that letter, in that e-mail. I will give you a

moment.

Q. I appear to have brought in

two copies of Major Fowler. I'm sorry. In

addition to not formulating questions well, I also

can't keep my documents straight. So I'm with you

at tab 14. This is your response.

A. They want certain things to

happen and I'm trying to assist them to the extent

that I can. They wanted, for example, a change to

a registration of death. That's a Government of

Alberta document under Alberta legislation and the

only way it could be changed is by the Court of

Queen's Bench of Alberta.

Q. Yes.


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A. You will see there that I

point out that you are going to make a court

application and I make a commitment that if the

court order costs that those costs will be paid by

the CF. In fact at the end of that adjudication,

the court did not make an award of costs, but there

was that.

They wanted to deal with the

supplemental death benefit. That had been dealt

with well before. It's not within the purview of a

Board of Inquiry to address that so that had been

determined by someone else.

The next issue was an issue

relating to $125,000 in Veterans Affairs. Again,

that's a whole another ministry, a whole another

department, not within the scope of either the

Board of Inquiry or anything that I could

influence.

Q. Yes.

A. They then ask for a memorial

cross. Awards are given under the Crown

prerogative and there is a process for applying for

that. Normally the assisting officer would help

with that.

I didn't get into the nitty gritty


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of where they were at in an application process but

it's not something that could be dealt with as part

of a tort settlement. So when you look at the

medal that she was asking, that's not something

that the Board of Inquiry inquired into. It's not

something that I can deal with.

The $125,000 from Veterans Affairs

was not within the Canadian Forces' ability to deal

with. The supplemental death benefit, I think, was

also $125,000 --

Q. Right.

A. -- was dealt with by another

decision maker. I gave no legal advice on that. I

had no influence over that and the Board of Inquiry

wasn't inquiring into that. The court application

was dealt with by the Court of Queen's Bench, so

the list of things that was asked for were not

things that could be dealt with.

The only question was this issue

of the locker. They had rented a locker that had

been empty for some months and I didn't understand

why they were renting an empty locker for so long

and what the connection was, so those are my

questions around that.

In the end, the unit paid that and


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that was outside of the Board of Inquiry process

and beyond any legal advice, so none of those

issues -- I didn't know where this conversation was

going but when I saw where it was going, this is

where it ended up.

Q. And I think you are touching

on really what I wanted to discuss with you. There

seems to be some ambiguity at least in the evidence

as I understood it when Mrs. Fynes testified as to

whether this meeting was designed to deal with

issues arising out of the Board of Inquiry or

whether it was designed to deal with issues arising

beyond anything that the Board of Inquiry was

dealing with, as you have mentioned, matters of

civil litigation or civil dispute.

A. Until I got to the meeting, I

didn't know what the issues were that they wanted

to discuss, only that their lawyer wanted to have a

discussion. We were only, I think, five days or

so, five to ten days into testimony with a whole

range of witnesses yet to come.

Their lawyer had not attended the

Board of Inquiry and so he was not, I guess, aware

or up to speed or informed about what was happening

so there was very little discussion at the Board of


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Inquiry. It was really around this $250,000 and

the medal was really the focus of the conversation.

Q. Let me ask you, and this

isn't, believe me, in any accusatory fashion: Did

you consider that there was any issue of discussing

the government's, as it were, litigation position

with the Fynes which was largely an adverse

position at the same time as there was an ongoing

Board of Inquiry to look into the circumstances of

the death?

A. There is no litigation

position here. I don't have a position on a

memorial cross. It's dealt with by somebody else.

It can't be dealt with as a tort claim. A court

cannot order it. It could never be dealt with that

way. There is no litigation position. That is the

way it is.

Veterans Affairs is a separate

process. There is no litigation position. It will

be dealt with by their processes. It's completely

outside of the Department of National Defence.

There is no litigation position. They can't go to

court on that. They have to deal with it

administratively.

The supplemental death benefit had


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been dealt with. There is no litigation position.

It's already been determined. The ball is in their

court if they wish to pursue a remedy around that,

but the position has already been determined by

somebody else so I didn't decide that. I was

looking at what it is that they were raising. The

issue about the court application and going to the

Alberta government to have that changed, it's not a

litigation position.

That is a process available to

them if they wanted to correct the registration of

death. It has nothing to do with the Canadian

Forces so there is no litigation position here at

all. They are just clarifying, in fact, the

independence of a number of processes that they

needed to engage in order to achieve what they were

trying to achieve.

Q. Ms Rostad writes you a letter

that's at tab 36, I believe, amplifying a number of

positions taken by -- I see it's signed by Mr.

Odishaw. There is an amplification of a number of

the matters that have been discussed, and then if

you look at tab 13, there is a letter from you

dated May29th and you simply say:

"As I indicated in my March


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20 e-mail, determinations

have already made by the

relevant authorities

regarding the issues raised

in your April1 letter. I

have nothing further to add

to my comments." (As read)

From your perspective, then,

especially given what you have told us a couple of

minutes ago, was there anything left by way of a

civil dispute between the Fynes and the military?

A. Not that was raised with me.

All of the issues that were raised in this letter

and all of those processes except this storage

locker question were independent of the Board of

Inquiry and of JAG.

Q. So, then, let me get some

clarity. On whose behalf were you meeting with Mr.

and Mrs. Fynes and on whose behalf were you writing

to Mr. and Mrs. Fynes?

A. On whose behalf?

Q. To their lawyers.

A. I'm a member of the office of

the JAG.

Q. But are you answering as a


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legal advisor to the Board of Inquiry? Are you

answering as counsel to the Canadian military? Are

you answering as --

A. I'm both of those things,

right?

Q. Both of those.

A. I'm counsel.

Q. Yes.

A. I'm a member of the office of

the JAG and I'm legal counsel to a Board of

Inquiry.

Q. Yes. Are you also answering

substantively to allegations of -- whether they are

merited or not, whether they have anything behind

them -- especially the letter at tab 36, but the

discussion before that, tab 36 resembles a lawyer's

letter. It's a --

A. The letter from their lawyer.

Is it that one?

Q. Yes. It's a laundry list of

things that counsel believes the military has done

wrong and there is a strong implication that there

is some responsibility attaching to the military as

a result of what are described as wrong actions.

A. I've read their letter as


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well and so it's a matter of them engaging the

appropriate body to deal with it, so when they have

an issue with Veterans Affairs, they need to engage

Veterans Affairs, so there is no litigation

position there.

There is no assessment at all.

It's not something within my bailiwick. They need

to go talk to Veterans Affairs, for example. Same

with the memorial cross.

Q. That's really what I'm trying

to establish because you are wearing a number of

hats at this point and I wanted to establish --

A. I wear one hat. I'm legal

counsel. I'm a legal advisor.

Q. That hat has a number of

different styles because on the one hand you are a

legal advisor and you fulfill a number of roles.

Forget about the hats. You are filling a number of

roles. You are fulfilling the role with respect to

the Board of Inquiry. You are also meeting with

Mr. and Mrs. Fynes to discuss things that have

nothing to do with the Board of Inquiry as you

point out to them.

A. Yes, which I don't realize

until I get to the meeting what exactly what it is


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they wanted to discuss. If I had known, for

example, upfront they wanted some relief from

Veterans Affairs, I would have said there is no

point in talking to me. You better talk to

Veterans Affairs, for example. I wear one hat. I

work for the office of the JAG in support of his

mission and his mandate, so this division of roles

is somewhat artificial.

Q. I'm especially thinking in

terms of what from the outside might seem to be a

role responding to civil litigation claims no

matter how poorly phrased, but as you said, they

made it clear they were pursuing litigation. I'm

trying to establish whether, first of all, in your

mind you are responding to what looked like civil

litigation claims whether rightly or wrongly

formulated or whether you are simply giving advice

to wanting to hear what's on their mind and telling

them or through their lawyers where they should be

looking for relief.

A. Like I said, I didn't know

what they wanted to discuss when I got to the

meeting.

Q. Right.

A. So it was laid on the table


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and then when I sat down and looked at it, I

realized there were a number of independent

agencies that needed to deal with it, so it never

went any further than that.

Q. We have seen, subsequent to

this, some correspondence written by-- was it Major

Fullerton? I think he was Major at the time.

A. Lieutenant-Colonel Fullerton?

Q. Lieutenant-Colonel Fullerton.

Sorry. I sometimes have difficulty keeping

people's rank straight. His correspondence, again,

is addressed to the law firm and deals with some of

the same issues. One point his advice is that

these claims exceed his settlement mandate and so

he can't deal with them any longer.

What I'm trying to establish is

whether the role that you were filling at the time

that you wrote these letters including the letter

at tab 13 and the letter at tab 14 whether you were

fulfilling a similar mandate whether you were

responding on behalf of the military to what

appeared to be civil claims whether well phrased or

not well phrased?

A. I can't speak for

Lieutenant-Colonel Fullerton but when they


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explained what their concerns were, they were not

legal claims. They are claims that need to be made

to other bodies, so it was never considered to be a

legal claim because there wasn't one.

Q. Was that letter of May29th

the last involvement you had in terms of dealing

with the kinds of complaints that we have just been

talking about, the ones that were raised at the in

person meeting and the ones that were raised in the

subsequent letter?

A. Sorry. Which one is the

May29th letter?

Q. Tab 13.

A. Yes, I believe that was the

termination of it, from my perspective. I tried to

point them in the right direction where they needed

to go and I ended the discussion.

Q. I think I may have misled

you, not intentionally. I do see a without

prejudice letter at tab 10 dated November13th and

that's a request --

A. I think they asked for

$10,000 in relation to legal fees for having the

registration of death changed.

Q. In writing that letter, are


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you functioning as a legal representative capable

of settling a claim in the amount of $10,000?

A. I certainly did it as a legal

advisor to the Canadian Forces.

Q. Okay. My understanding is

from your answers that you don't differentiate

between -- because you do wear one hat that you

don't differentiate between instances where you are

responding to a demand for money or for some other

restitution from instances where you are dealing

with matters that arise out of the Board of

Inquiry.

A. Just to be clear, this

doesn't arise out of the Board of Inquiry.

Q. No.

A. It was not the subject of the

Board of Inquiry. It is utterly independent of the

Board of Inquiry.

Q. Exactly.

A. Okay.

Q. Yes. The Board of Inquiry

dealt with the circumstances leading up to and

including the death of Corporal Langridge and

especially with medical issues and medical care.

These are all things that arise thereafter. I'm


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not suggesting that there is any overlap

whatsoever.

What I wanted to know is whether

you differentiate in your own mind between the

roles that you were fulfilling with respect to

those two different subject matters.

A. It would depend on the

circumstances. In the circumstances of this case,

I asked for this information.

Q. I'm not sure that you are

allowed to answer. If you are, fine. If not, just

tell me you are not. Was that in furtherance of a

settlement of this claim or a potential settlement

of this claim?

A. I think it was just a request

for $10,000, and before I made any assessment I

just wanted to see the basis of it.

Q. Okay. At some point we know

that the National Service Investigation did begin

an investigation of some of the issues that were

raised in the complaint letters and in the

complaints raised viva voce with you in your

meeting with the Fynes.

A. Sorry. I'm not what you mean

by the complaint letters. You mean from their


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lawyer?

Q. Yes. What we have looked at

before both the topics they raised with you at the

meeting and what their lawyer raised with you in

terms of military culpability for issues relating

to the registration of death, for issues relating

to their inability to exercise proper control of

the funeral, a variety of issues. The NIS, I

believe, launched two separate investigations whose

foundation were some of those complaints. Were you

aware of the fact that NIS was conducting such

investigations?

A. No.

Q. Were you ever contacted by

the NIS to discuss either your role in relation to

any of these matters or to discuss your

understanding of the legal issues arising from

those complaints?

A. I had no contact with the

NIS, none.

Q. At some point there was an

interaction between the Office of the Military

Ombudsman Mr. Martel and the NIS who were

conducting these investigations. We have some of

the documents. Tab 21 purports to be an account of


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the meeting between the representatives of the

Office of the Ombudsman, I believe. No, I'm sorry.

It was Ms McLaughlin and Major Dandurand who

attended the Ombudsman's office to obtain a

briefing. Here is what it says:

"It was discussed during the

meeting that Mr. Martel had

identified that Captain

Lubiniecki was negligent when

he appointed Ms Hamilton-Tree

as the next of kin. Captain

Lubiniecki had no

documentation to support this

statement as the unit

adjutant should have known

better. It was further

identified that Lieutenant

Colonel King was negligent in

providing a legal decision

advising that Corporal

Langridge and Ms

Hamilton-Tree were legally in

a common law relationship at

the time of this death." (As

read)


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I just want to stop there. Did

anyone ever bring to your attention the fact that

the Fynes had complained about activities of yours?

A. No, the first I learned of it

was a couple months ago. It looks like Mr. Martel

made his complaint on November17, 2009 to the NIS

and then he made some inquiries with me for

information when he immediately submitted the NIS

so I don't know what to read into that. It's

problematic, right?

Q. We do have an affidavit by

Mr. Martel, and just for fullness, we find that at

tab 44.

A. Yes. That's where I get the

information that he contacted NIS on November 17

and then made a number of inquiries of me after

that.

Q. Mr. Martel for what it's

worth maintains that he didn't actually make a

complaint against you. He simply noted some issues

that in fact he didn't make any complaints and it

wasn't his place to make complaints. He brought

facts to the attention of the NIS just for what

it's worth.

I take it that there was no


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follow-up on the part of the NIS to investigate

these complaints that you are aware of?

A. I never spoke to the NIS. I

don't know what they do. I just know they didn't

talk to me.

Q. We have seen an allegation

that Major Dandurand may have had a discussion with

you about some of the underlying facts. Is there

any basis for that allegation?

A. No. I think Patrick Martel

misspoke himself when he wrote that.

Q. Okay. I have just a couple

more general topic areas to discuss with you.

First, this is just a general legal question

whether you can help us with or not. Do the

Canadian Forces have authority to conduct a suicide

watch?

A. Do they have the authority --

Q. -- authority to conduct a

suicide watch?

MS RICHARDS: Objection.

Solicitor-client privilege.

MR. FREIMAN: Is there a

suggestion that Lieutenant-Colonel King advised on

this?


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MS RICHARDS: He may have. It's

certainly one of the controversial issues before

this Commission and there may have been legal

advice provided, so, again, it's the same as Major

Fowler. By asking that same type of generic

question, it's our submission that you are getting

at legal advice that may have been provided within

the Judge Advocate General's branch.

MR. FREIMAN: Okay. We will deal

with that objection the way we have dealt with

previous ones.

Q. We have seen your name on

e-mails with respect to the formulation of media

lines by the Public Affairs office. Does the JAG

have a role to play in assisting the PAO in putting

together media lines?

A. There is a number of versions

of that and I was involved in an earlier version,

not the version that's in here, but certainly in

early version. There may be some legal information

that goes from the JAG office to the PAO to make

sure that it's accurate, what's being said.

Q. I take it though that the

fact that the media delivers lines does not

necessarily mean that the lines as delivered


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represent the legal view of the Canadian Forces or

does it?

A. No, it's not a legal

position. The Canadian Forces took no legal

positions. You keep referring to legal positions,

there aren't any.

Q. Maybe you can explain that to

me. Doesn't the Canadian Forces take a view as to

what the proper lies in the certain circumstance

that may be different from the view taken by

others?

A. I mean litigation positions

with respect to this particular case. That's what

I'm talking about.

Q. This is obviously not an

incident of litigation and has no bearing one way

or another on litigation. It's a public statement

made by the Public Affairs Office.

My question is: When a statement

is issued by the PAO, is there an implication that

insofar as it represents a legal position or

delivers a comment that has a legal component that

that has been approved by the authorities and

therefore is an official position including on the

law?


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A. We don't communicate legal

positions through the media, but we would assist to

make sure that it's informed in what it says, but

it would be bizarre to be taking legal positions in

the way you are suggesting through a media release.

Q. Would it be bizarre to try to

inform the public of the perspective that the

Canadian Forces take on a certain issue including

the legal perspective?

A. It wasn't your original

question but it would depend on the situation, but

we want to make sure that it's informed.

Q. My understanding is that the

purpose of statements released by the Public

Affairs Office or media lines as they are sometimes

called is to inform the Canadian public on matters

about which the military wishes to communicate to

the public. Isn't that your understanding as well?

A. Presumably.

Q. That insofar as the Canadian

Forces are communicating with the public, I wanted

to know whether there is an assumption that the

legal content of that communication has been

verified and is an accurate representation of the

views of the Canadian Forces?


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A. I couldn't speak for every

media lines that are out there, but certainly in

this case, at least in one version of that, a much

earlier version, I gave some information on it.

Q. The reason I'm asking, if you

look at tab 25, I understand that this is a much

revised document, but it does set out some legal

positions.

I'm not going to ask you whether

the law is accurate or not because I know there is

going to be an objection. In this case, I

understand the objection, but there are statements

about the CFNIS investigation about policies

relating to whether material could be released or

couldn't be released, all of which have a legal

dimension.

Do I understand correctly that at

least insofar as you were involved in the review of

any of these releases and that you weren't involved

in all of them, one of the goals was to set out an

legally accurate formulation of position?

A. I'm not the author of this

document so I don't know what went into it.

Q. I won't go on with the Access

to Information because I know the answers I'm going


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to get. Subject to the refusals and anything that

may arise therefrom, those are my questions.


CROSS-EXAMINATION BY COL (RET'D) DRAPEAU:

Q. Thank you, Mr. Chair. You

said during your testimony concerning the meeting

that you had with Mr. and Mrs. Fynes' solicitor

that they wanted to meet, that is, Mr. and Mrs.

Fynes.

A. We had a meeting, yes.

Q. How does this meeting come

about?

A. I'm not sure. I don't

recall. I don't know if their lawyer phoned, but

somehow we got together and had a meeting.

Q. Did you meet with Mr. and

Mrs. Fynes first and said "I should be meeting with

your lawyers" or did they come to you or what?

A. I would not have spoken to

them because I knew they were represented by

counsel so I was extremely careful to not have

contact with them in the absence of their counsel,

so I'm not sure whether their lawyer -- I can't

recall if they called me or how we ended up in a

meeting but we scheduled a meeting.


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Q. How would their lawyers know

what your role was and whether or not you were in

fact legal counsel for whoever?

A. I don't know what was in

their mind. I don't know. I just can't recall the

circumstances but clearly we somehow got together

and had a meeting.

Q. You said a couple times that

you went to this meeting and you didn't know what

the issues were before attending your meetings,

right?

A. Right.

Q. And you have been at the time

about 20 years at the bar?

A. Yes.

Q. And you go in this meeting

with individuals who you would have known because

of your party in the Board of Inquiry, who Mr. And

Mrs. Fynes were.

A. Yes, I knew who they were.

Q. During that discussion with

the other counsel, you would not have asked as to

why do we want to meet?

A. It was to talk generally

about these circumstances and so...


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Q. So you knew.

A. At some point you have to dip

your toe in the water. I can't recall if we talked

about general content on the phone, but we set a

meeting and I went to it to hear what they had to

say.

Q. But all likely you would have

walked into the meeting blind not doing what the

meeting was all about.

A. No, I would have been

receptive to a meeting. I don't have to -- I can

just listen. I don't have to formulate legal

positions instantly or to react to what they are

saying. I would have been open to listening what

they had to say. The Canadian Forces are concerned

about families particularly in the Fynes' position.

That's why I would have been open to a meeting.

Q. Did you act as counsel also

for the Summary Investigation?

A. Yes, I was legal advisor for

that as well.

Q. Then again you had no

difficulty not from your end but the end of people

watching as to the independence of the Summary

Investigation or Board of Inquiry or whatever?


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A. Independent from what?

Q. The perception of

independence that you are the same individual, a

powerful position, you are providing legal advice

to a whole range of people and Commission counsel

has raised that and the Board of Inquiry and the

Summary Investigation. In fact you became a key

player, didn't you?

A. I'm just a legal advisor.

I'm not a decision maker in either the Board of

Inquiry or the Summary Investigation.

Q. But you do play a very

important position and you know the law and you

were able to make the linkages between these

various investigative bodies.

A. I was a legal advisor to both

and they looked at different issues. They looked

at completely separate issues.

Q. And you have no problem with

that.

A. There is no overlap.

Q. And no difficulty from your

perspective on multiplicity of roles overlapping

roles --

A. You haven't been clear. You


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suggest that there is a conflict and there is a

lack of independence and you talk so vaguely that I

think you are unclear of really about what you are

alleging.

Q. I suggest to you the

perception is there is a certain conflict there as

to the same individual acting various capacity,

some of them in conflict of one another

potentially.

A. One capacity only, which was

as legal advisor and they looked at both the

different circumstances.

Q. Okay. Thank you.

A. The only thing that was the

same was the two parties. To be clear, you make

the allegation of a conflict. There is no

conflict. There is no personal interest in the

outcome of either of these. The BOI and SI, they

do not. They do not award remedies that influence

any of the matters that they were concerned about.

Q. We will never know, would we?

Because as client-solicitors, you will never reveal

what advice you provided to the President of the

Board of Inquiry, what advice would have presented

to the President of the Summary Investigation, what


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advice you would have provided to the commander of

the LdSH or the commander of the brigade, all of

these individual coming to the same fountain, you,

for advice.

A. It's the report that matters

and the reports you have.

Q. That's all my questions.

THE CHAIRPERSON: Ms Richards?

MS RICHARDS: No questions. Thank

you.

THE CHAIRPERSON: Thank you for

your attendance today. A couple of rocky spots

there but once we got going we are okay. But I

appreciate your service and I understand your roles

that you have to play as a legal counsel and the

job that you have to do. So thank you.

THE WITNESS: Thank you.

THE CHAIRPERSON: That concludes

-- I don't believe we need to recall you. If we

do, we will figure something out and maybe have to

give you an all expense paid trip back to Edmonton

if we need to speak to you again or telephone or

something. There is different ways to do things if

it comes to that.

We are adjourned till 9:30 and


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tomorrow morning we will discuss the issues

relative to the jurisdiction. Thank you.

--- Whereupon the proceedings adjourned

at 4:06 p.m.


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I HEREBY CERTIFY THAT I have, to the best

of my skill and ability, accurately recorded

by shorthand and transcribed therefrom, the

foregoing proceeding using real time computer

aided transcription.

____________________________________

Marion Liang, Court Reporter

and

I HEREBY CERTIFY THAT I have, to the best

of my skill and ability, accurately recorded

by Stenomask and transcribed therefrom,

the foregoing proceeding.

_______________________________

Suzanne Hubbard, Stenomask Reporter

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