Removal From Command

Over the past 24 hours, social media has been abuzz with both the apology from Vice-Admiral (VAdm) Craig Baines for having the temerity to golf with someone who has not been convicted of any wrong-doing – let alone charged with anything – and the subsequent response from Lieutenant-General (LGen) Wayne Eyre, the Acting Chief of the Defence Staff (Acting CDS) that both admonished VAdm Baines and indicated that he can keep his job as commander of the Royal Canadian Navy.

That was magnanimous of him.

But I was struck by comments attributed to LGen Eyre, which were published in the print edition of the Globe and Mail this morning:

Lt.-Gen. Eyre says in a message to Department of Defence and Canadian Armed Forces members on Tuesday that the golf game showed “poor judgment” and harmed victims and survivors, the institution and efforts to change its culture.

He adds there is no set process, procedure or guidance for making this decision on Vice-Adm. Baines’s future, nor is there a perfect answer, and he accepts that not all will agree regardless of the determination.

He says he took a very deliberate approach and sought a wide array of perspectives, including from sailors, other CAF members, victims and survivors, legal and conflict-of-interest experts and senior public servants.

“As expected, there is no clear consensus, with the exception that we can turn this into a learning opportunity,” he says.[1]

What caught my eye, specifically, was the assertion that there is no set process, procedure, or guidance for making this decision.

That’s not correct.  In fact, it is just plain wrong.

There is both a relevant policy and there are very clear principles of public and administrative law that apply.

The CDS Guidelines

Although the directive is nearly 20 years old, the CDS Guidelines – Removal from Command[2] are still extant and are still applicable.  Although issued by (then) CDS, General Henault, they were issued in his capacity as CDS, not as a personal order.  They remain applicable until and unless revoked by the office issuing the Guideline – i.e. the CDS.

I therefore find it remarkable that the Acting CDS suggests that there is no guidance for this process when there is, in fact, very specific guidance, issued by the CDS.

The Globe and Mail article indicates that the Acting CDS sought advice from, among others, ‘legal experts’.  Presumably, this would have included legal advisors from the Office of the Judge Advocate General of the Canadian Forces (OJAG).  The JAG, who was just reappointed by the Governor in Council for an additional two years, is responsible for providing the Canadian Forces, including the Acting CDS, with legal advice in matters relating to military law.[3]  I am fairly confident that removing a Commander of a Command from his position is a matter relating to military law.

Consequently, I am surprised that no one in the OJAG informed the Acting CDS that there is, in fact, specific guidance on this very issue.  And that it was issued by the CDS (albeit a previous CDS).  That seems like a rather glaring oversight.

In the event, General Eyre, that no one in the OJAG informed you of those guidelines, I have included a hyperlink, above, for ease of reference.

Where an officer is to be removed from command, it is important for the statutory decision-maker to turn his or her mind to those Guidelines, as the object of the decision has a legitimate expectation[4] that those Guidelines will be followed.  This principle and doctrine might not compel a particular decision, but it does require a statutory decision-maker to follow the process that it has set for itself.[5]

Principles of Public and Administrative Law

Even if there were no express guidance on the issue – and, as I hope I have made abundantly clear, there very much is express guidance on this issue – the principles of public and administrative law also provide specific guidance on making a statutory decision that impacts the rights, interests, and privileges of the person who is subject to the decision.[6]

While the content of fairness to be provided to the person subject to the decision may vary, the Supreme Court of Canada has conveniently provided clear, yet flexible, guidance on the content of fairness.  This guidance, which has been applied by statutory decision-makers consistently for over 20 years, is reflected in the CDS Guidelines – Removal from Command.

When considering the content of fairness that is warranted for a particular decision, a statutory decision-maker ought to consider:

1. the nature of the decision being made, and process followed in making it;
2. the nature of the statutory scheme in which the decision-maker operates;
3. the importance of the decision to the person(s) affected by the decision;
4. the legitimate expectations of the person(s) affected by the decision;
5. the choices of procedure made by the decision-maker.[7]

Fortunately, for the Acting CDS, these principles are manifest in the aforementioned CDS Guidelines.  And even without those Guidelines, Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 offers quite robust direction for statutory decision-makers.  This is amplified by (among many other cases) Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, which highlights that public law decision-making is driven by a ‘culture of justification’.

And that direction from the Supreme Court of Canada incorporates the requirement to offer the affected person participatory rights in the process, including sufficient notice, disclosure of relevant information that the decision-maker will consider, and an opportunity for the affected person(s) to make informed representations to the decision-maker.[8]

And, in light of the Acting CDS’ comments, had he decided to remove VAdm Baines from his command position (and assuming it was not at the direction of his political masters) he would have faced some significant obligations regarding disclosure.

The Acting CDS mentioned that he consulted a wide array of stakeholders regarding this decision.  Although it is the CDS who exercises the control and administration of the Canadian Forces[9], and, therefore, is both responsible and accountable for the decisions and actions made and taken in the exercise of those functions and powers, he is not prohibited from seeking advice and information.  Indeed, from the outset of officers’ careers, they are taught that, while officers are responsible for their decisions, they ought to seek and accept advice.

However, when exercising statutory powers and functions that affect the rights, interests, and privileges of another person, that officer has obligations that include disclosure of relevant information, upon which the decision may be based, to the affected person.  While there are some limited exceptions – such as the confidences arising from legal advice – the general rule is that the decision-maker must offer the affected person meaningful disclosure in order that the affected person can make informed representations to the decision-maker.  That constitutes part of the participatory rights expressed in Baker and subsequent judgments.

Based upon LGen Eyre’s statement, he sought input from a wide array of stakeholders.  He would have been obliged to disclose most of that information to VAdm Baines.  If the decision is ‘favourable’ (i.e. that he would not remove VAdm Baines from his command position) then any lapse in procedural fairness likely would not be challenged or even come to light.  But had the decision been adverse to VAdm Baines’ interests, the news reports may have taken on a markedly different tone.

Such a failure could have prompted further litigation.

Here’s What Would Impress Me

The messages from VAdm Baines and LGen Eyre have an air of theatre about them.  The contrition expressed, particularly by VAdm Baines, rises to the level of self-flagellation.

There are undoubtedly some people who were greatly offended by the fact that select General and Flag Officers (GOFO) chose to play a round of golf with the ‘disgraced’ former CDS, Jonathan Vance.  Certainly, according to LGen Eyre, those actions purportedly “… harmed victims and survivors …” [presumably of sexual misconduct].

I again feel compelled to point out that Jonathan Vance has not yet been convicted of, or even charged with, any Code of Service Discipline or criminal offence.  He has certainly been accused of wrong-doing by national news media – and one source in particular.

And again, I feel compelled to point out that, in Canada, we do not try people in the media.  And we do not burn, hang, drown, press, or otherwise execute witches.  And when the state does take adverse action against persons in a manner that is unfair, unreasonable, or unjustified, that offends our sensibilities as citizens and residents of a free and fair democracy.  Or it ought to.

And we ought to be offended when others do not receive adequate protection of the law, because we certainly would be offended if we did not receive it.

The problem with ‘trial-by-media’ is that it does not offer a fair and objective means for the accused person to offer full answer and defence to allegations.  And trial by media can become suspect when the media accuse someone of sexual misconduct when the alleged misconduct does not actually fall within the applicable definition of sexual misconduct.

But leaving aside the frailties of ‘trial-by-media’, some people will nevertheless still be offended by the fact that VAdm Baines chose to go golfing, on his own personal time, with someone he has known for several years.  I won’t gainsay others’ personal feelings – such matters are entirely subjective.

But what I will comment on is the objective principle of harm in relation to the actions of statutory decision-makers.

LGen Eyre and VAdm Baines apologized for causing harm that, presumably, is measured subjectively.

What I would be interested in knowing, quite genuinely, is when there will be apologies for CF personnel who were subject to procedurally unfair, substantively unreasonable, and objectively unjustified statutory decisions that affected them in significant ways.  Because that harm is objectively identifiable.

It appears that many junior CF personnel may not be particularly sympathetic to the GOFO who have been subject to what appear to have been, consistently, procedurally unfair and unreasonable decisions.  Several GOFO have been, for all practical purposes, relieved from performance of military duties, but without the relevant decision-makers actually using the prescribed process for such decision-making.[10]  There are allegations of political interference or direction regarding these decisions.  There has seemingly been an utter absence of procedural fairness.

I suspect than many junior CF personnel are not particularly sympathetic because they have all too frequently witnessed the same impunity arising in decision-making that affects them.  One of the principal differences is that the national news media, typically, does not fixate on unfair and unreasonable decision-making regarding a corporal’s career.  When the national news media would prefer to report on a 2-week-old round of golf rather than an important judgment from the Court Martial Appeal Court of Canada, it is hardly surprising that they are disinterested in examining unjust administrative decision-making in the CF.

I suppose that, looking for a silver lining, at the very least, the circumstances of the past few weeks have likely given GOFO, generally, a greater appreciation for how junior CF personnel feel when they are subject to unfair, unreasonable, or unjustified statutory decisions.  Perhaps this will give GOFO a greater appreciation for the ‘Golden Rule’.

In their rush to demonstrate that they are taking sexual misconduct seriously, senior officers like the Acting CDS appear to have forgotten that there is a broader issue.  They cannot fix the issue of sexual misconduct – or any form of misconduct – if they do not correct the issue of impunity in statutory decision-making in the CF.

As I say: now that you have apologized for what was, objectively, a relatively mundane round of golf, where are the apologies – and more importantly, remedies – for all the CF personnel who have been subject to unfair, unreasonable, and unjustified statutory decisions and acts?  Where is the open-minded re-examination of decisions, acts, and omissions that are the subject of grievances relating to circumstances in which statutory decision-makers over-reacted or erred?  Where are the apologies and remedies for the actual, and objectively identifiable, harm done to specific CF personnel?

[1] Canadian Press, “Navy commander who golfed with Jonathan Vance amid sexual misconduct probe to keep his job”, (29 June 2021), online: Globe and Mail <https://www.theglobeandmail.com/politics/article-navy-commander-who-golfed-with-jonathan-vance-amid-sexual-misconduct/>.

[2] Chief of the Defence Staff, Guidelines – Removal from Command, 12 December 2001.

[3] National Defence Act, RSC 1985, c N-5, s 9.1 [NDA].

[4] C.U.P.E. v Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 SCR 539, para 131.

[5] Reference Re Canada Assistance Plan (B.C.), [1991] 2 SCR 525, 557 to 558.

[6] Knight v Indian Head School Division No 19, [1990] 1 SCR 653.

[7] Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, paras 21 to 28 [Baker].

[8] Id, paras 30 to 34.  For a dated (it pre-dates Baker by five years) but still relevant example pertaining to the CF, see: Gayler v Canada (Director Personnel Careers Administration Other Ranks, National Defence Headquarter), [1995] 1 FC 801.  See also Gerard Jones v Canada (Attorney General), 2007 FC 386.  Contrary to many applications for judicial review by CF personnel, both of these applicants were successful.  They were also able to bring applications without first exhausting the CF grievance process.

[9] NDA, n 2, s 18.

[10] Queen’s Regulations and Orders for the Canadian Forces, arts 19.75 and 101.09.

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