Stand By for Apologies – But, let’s talk about transparency…

 

Murray Brewster and the CBC reported today that the new Minister of National Defence and the Acting Chief of the Defence Staff (A/CDS) “… are expected to deliver a formal apology to survivors of sexual misconduct in the armed forces as early as this week …”.[1]

CBC News reports that it has obtained a “…37-page document [that] maps out in detail the department’s plan for extracting the military from its worst social, legal and political crisis in a generation.”

We’ll see.

As I have mentioned before, facile and simplistic announcements such as the Minister directing that certain offences will not be investigated by the Military Police or prosecuted under the Code of Service Discipline raise more questions than they answer.  Then again, as a spokesperson for the MND acknowledged in Mr. Brewster’s report “… there is no quick fix …”.

There’s that acknowledgement at least.

But what I discuss below is the significance of transparency in statutory decision-making.  There has been a great deal of discussion about the importance of ‘transparency’, but not a great deal of transparency.  And that includes some of the reporting on the current ‘crisis’.  The Canadian public is bombarded with selective information about allegations against high profile CF personnel, but there is a lot to be desired about the transparency regarding how some of those allegations have been conveyed.

And, while these ‘high profile’ allegations seem to dominate discussion regarding the ‘crisis’ the CF is facing, there is potential for that focus on the senior leadership to obscure another ‘crisis’ that is at least as significant.  The crisis I mean is the retreat from the Code of Service Discipline in favour of administrative processes and measures in order to punish allegations of misconduct.

I consider this to be a crisis because it has been going on for some time now – much longer than the sordid speculation regarding General Officers and Flag Officers (GOFO), that Mr. Brewster discusses in his report.  And it has largely gone unnoticed as the chattering classes focus their attention on the salacious speculation regarding GOFO.  And this lack of focus is what makes this issue – the improper use of administrative measures as a substitute for the Code of Service Discipline – so pernicious.  And those of us who served throughout the 1990s, may see some striking similarities.

One of the things that struck me in Mr. Brewster’s report was a comment by one of the commentators that the CBC has come to rely on over the past few months, Charlotte Duval-Lantoine.  I often take issue with some of the things that Ms Duval-Lantoine has had to say on these issues, in no small part due to her selective approach to how the law functions, or ought to function, and her misapprehension of legal norms.  I found myself agreeing with some of what she mentioned to Mr. Brewster.  However, as I explain below, I suspect that we have markedly different views of why her comments are significant.

She stated:

Whether or not people buy into [the anticipated apology and policy announcement] will depend on what happens afterwards, if measures are going to be put in place and if there is transparency.

[People] don’t want their leaders to continuously apologize … They also want them to learn from the lessons and change their ways.”

 

While I agree with most of these sentiments, I suspect that it is not for precisely the same reasons why Ms Duval-Lantoine uttered these comments.

In particular, while she may have had the past few months in mind when she offered these comments, I look back on the past several years, and I do not do so with a myopic view focused solely on sexual misconduct.

I, too, believe that there must be more transparency in decision-making, and that has been a common theme of my commentary on military legal matters, long before the current ‘scandal’.  But I find it ironic that someone who has been quick to draw public conclusions about guilt and culpability, in the absence of relevant evidence being tested before transparent and fair processes, now stresses the importance of transparency in these processes.

But Ms Duval-Lantoine is not alone – a fair number of commentators, self-styled experts, rent-seekers, and journalists have been quick to condemn a variety of people absent much evidence and certainly absent fair, objective, and transparent processes.

Where I disagree is the statement that people don’t want to hear their leaders apologize.  While I certainly tire of both the shortcomings that precipitate a need for apologies, and the inevitable hollow, politically expedient apologies that ensue, I am not so certain that this is universal.  Certainly, some of the memes I see on social media cause me to wonder if a not insignificant body of junior CF members (and, perhaps not-so-junior CF members) take perverse delight in seeing senior leaders pilloried in the national news media.

But I doubt that this is healthy for the morale of the armed forces.

What I will suggest is that a far more universal concern for members of the armed forces, across ranks, across occupations, across gender, and across myriad demographics, is the desire for fair decision-making.  I suggest that CF personnel want decision-making that is procedurally fair.  They want decision-making that is objectively reasonable, and which is conducted by open minded decision-makers.  And they want transparency in the justifications offered.

And that ought not to be surprising, since that is one of the few ‘employment’ rights to which CF members are entitled.  As I have explained repeatedly in this Blog – CF members do not enjoy the safeguards, privileges, or rights that arise from contractual employment.  One of the few rights arising under the statutory Crown-soldier relationship is the right to procedurally fair adjudication before an unbiased decision-maker.  The nature of the procedural fairness and the degree of independence required from the ‘unbiased’ decision-maker will vary depending upon the significance of the right, interest, or privilege at stake in the decision-making process.[2]

The problem is that many CF members do not benefit from procedurally fair and objectively reasonable decision-making that is justified in a transparent manner.

And that is unacceptable.

Often, the blunt reality of the decisions, which can have significant impact on them, is that the rationale of the decision-maker boils down to: “Because I can.”

And I have previously explained what kind of person uses that kind of rationale.

Granted, the decision-maker may not necessarily characterize the decision in so brutally frank a fashion.  The decision-maker may fall back on certain disingenuous tropes.  “If you don’t like the decision, you can grieve it”, is a common refrain.  One of my favourites is “I have lost confidence in your ability to [perform whatever role is the subject of the decision] …”, regardless of whether, objectively, the relevant and proven facts support such a conclusion.  After all a ‘loss of confidence’ in someone in a leadership position is a ‘bullet proof’ justification, regardless of the facts or reality … isn’t it?  And, of course, recourse to the mantra “… I have determined on a balance of probabilities that …” is a common justification, regardless of what the actual evidence is, the capacity of the decision-maker to weigh conflicting evidence, or whether the decision-maker is capable of distinguishing the role of ‘weighing evidence’ from the role of applying facts (once the evidence is weighed) to a legal or policy regime.

A recurring problem for the CF – one that has existed long before the current scandal, long before Op HONOUR was created, and long before Justice Deschamps drafted her report – is the overwhelming desire to be seen to be doing something, rather than actually doing something, and ensuring that whatever is done is fair, reasonable, and legally defensible.

We talk of transparency in decision-making.  However, the overwhelming desire by CF and political decision-makers to be seen to be doing something about sexual misconduct has arguably led to increased use of administrative measures to punish alleged wrong-doing.  I have noted – albeit anecdotally – that there has been a marked increase in the use of administrative measures and processes in lieu of disciplinary action under the Code of Service Discipline, and that much of this appears to have been driven by the ill-conceived Op HONOUR and the CF’s response to sexual misconduct.

I have explained this before:

• The Potential Pitfalls of Op HONOUR-related Administration
• Rules are for Corporals, Not for Colonels
• Discretion is the Better Part of Valour Statutory Decision-Making (Part I)
• Discretion is the Better Part of Valour Statutory Decision-Making (Part II)
• (It’s) the Impunity, Stupid

 

I repeatedly encounter circumstances in which CF personnel are investigated for alleged misconduct, but despite the chain of command stressing how serious the misconduct is, they rely on administrative processes and administrative measures, and not the Code of Service Discipline, to address the alleged misconduct.

In these circumstances, the CF member is typically the subject of a disciplinary investigation, often by the Military Police, including the Canadian Forces National Investigation Service (CFNIS).  The CF member is told that the allegations are very serious.  The CF member will often be told by his or her chain of command that his or her conduct constitutes and offence under the Code of Service Discipline, and that he or she could have been charged.

But no charges are laid.

And no reason is given why the chain of command opted for administrative processes, rather than the Code of Service Discipline.  Sure, the chain of command will emphasize that they have broad discretion in such decision-making.  But that is a disingenuous justification, particularly amidst repeated assertions about how serious the misconduct is, and the fact that the chain of command treated the matter as a disciplinary matter – right up until they had to ‘put their money where their mouth is’ and lay a charge.

I contend that the chain of command repeatedly avoids laying a charge to avoid the scrutiny that can arise in a Code of Service Discipline proceeding, particularly a court martial.  They opt, instead, to pursue punishment in administrative processes that fall entirely within their control and discretion.  In so doing, they undermine transparency.

If a CF member is charged under the Code of Service Discipline, in most cases, particularly for serious misconduct, the CF member will have a right to elect trial by court martial.[3]  In some circumstances, an offence (such as sexual assault) can only be prosecuted before court martial.[4]  Other factors, such as the limits on a presiding officer’s powers of punishment, the seriousness of the allegations, the passage of time, concerns regarding the accused’s fitness to stand trial due to mental disorder, or other factors may oblige or prompt a commanding officer to seek a referral to court martial.[5]  Where a matter is referred to court martial, and the Director of Military Prosecutions (DMP) prefers charges[6], the CF member will be tried before a constitutionally independent military judge, either alone, or with a Panel.[7]  And that constitutionally independent judge, and not the chain of command, will control the court martial proceeding.

At court martial, unless the CF member elects to represent him- or herself (which is never a wise choice), the CF member will be represented by legal counsel (either counsel from Defence Counsel Services, or civilian counsel that the CF member has retained).  The CF member will be entitled to disclosure of the case against him or her.[8]  Where that disclosure is deficient or not provided, the legal counsel representing the CF member has ready recourse before the military judge to oblige the military prosecutor to comply with the accused’s right to disclosure.  Through his or her counsel, the CF member will be permitted to make full answer and defence, including the opportunity to test the evidence against him or her through cross-examination of witnesses.  The CF member will also be able to present evidence before the court martial.  And, just as the CF member may test the evidence presented against him or her, the military prosecutor may test the accused’s evidence.

Where a General Court Martial is convened (i.e., a military judge and a Panel), the military judge will instruct the Panel (the ‘trier of fact’) in the performance of their functions through public instructions offered at the close of evidence.  Where a Standing Court Martial is convened (i.e., a military judge alone) – which is markedly more common than a General Court Martial – the military judge must provide reasons for the verdict, whether it is ‘guilty’ or ‘not guilty’.  Reasons will be based upon an evaluation of the evidence presented before the court martial.

Where the military judge must make pre-trial determinations, or rule on issues arising during the trial, or rule of applications under statute or the Canadian Charter of Rights and Freedoms (Charter), the judge must provide reasons.  If a CF member is found guilty of one or more offences, the military judge can either issue an absolute discharge (which is rare) or impose a sentence.  Again, reasons must be provided, and these will be based upon evidence presented, and tested, before the court martial.

The military judges’ reasons are reduced to writing.  They are published, both on the Chief Military Judge website, and other databases such as CanLII.  Barring exceptions – which must also be justified with reasons – court martial proceedings are public.  The reasons are public.  The judgments and sentences are public.  And while some measures are employed to protect vulnerable witnesses or participants in the process of issues of national security (e.g., the use of initials in the ‘style of cause’ and body of a judgment in order to protect vulnerable witnesses, victims or other participants; redaction from judgements; excluding the public from certain portions of testimony, or testimony using protective screens or closed-circuit monitors), the default for courts martial, as with criminal proceedings, is that they will be conducted in public, and reported publicly.

Courts martial are procedurally fair.  Their determinations are predicated upon evidence.  The decisions arising within courts martial must be objectively reasonable, evidence-based, and justified in public judgments.  If they are not, they are subject to appeal, before the Court Martial Appeal Court of Canada (and, potentially, the Supreme Court of Canada).  These courts, too, must deliver judgments that are evidence-based, rational, objectively reasonable, and public.

These are transparent processes.

The administrative measures and processes that are increasingly being used as substitutes for the Code of Service Discipline are not.  And these processes often fail regarding many of the requirements for procedural fairness.

They are supposed to be procedurally fair.[9]  They are supposed to be evidence-based.  The affected CF member is supposed to receive disclosure of the relevant evidence against him or her.[10]  And this disclosure must be more than superficial.  The rationale behind the disclosure is that the CF member may then make informed representations to the statutory decision-maker.[11]  One would therefore expect the disclosure to be robust.

The eventual decisions by the statutory decision-makers are supposed to be predicated upon rational and objective analysis of relevant evidence by an open-minded decision-maker.  And the decision-maker is expected to provide reasons that are based upon a reasonable evaluation of the relevant evidence, and which justify the eventual decision.[12]

There are often failings in these steps in CF administrative processes, sometimes significant failings.  And, even when they are conducted properly, there is limited transparency.  They are not conducted publicly.  Reasons are not published.  Nor can they normally be published – they often deal with personal information.

But I contend that the principal failings of these administrative processes, when they are used (improperly) as substitutes for the Code of Service Discipline, is that the failure to adhere to the various safeguards of fair and reasonable statutory decision-making does not have any tangible consequences for the decision-maker, even though there are significant adverse implications for the affected CF member.

And part of the explanation can be found in one of the facile and disingenuous mantras that I identify above: “If you don’t like it, you can grieve it.”

If a prosecutor fails to provide adequate or reasonable disclosure (or, worse still, any disclosure) in a court martial, it is inevitable that this failing will be challenged, successfully, by the accused’s defence counsel before the constitutionally independent military judge hearing the prosecution.  If the military prosecutor attempts to introduce irrelevant evidence before the court martial, that, too, will be challenged.  Where evidence is unreliable or not credible, regardless of whether it is presented by the prosecution or defence, the process by which it is tested before the court martial will expose those frailties.  Procedural defects arising in a court martial are subject to challenge either during the very process, or immediately after, in an appeal to the Court Martial Appeal Court of Canada.  And the party challenging the impugned defect will be able to do so before a constitutionally independent court.

That does not arise in administrative proceedings, even though the impact of those proceedings can have a significant negative impact – often equal to or greater than the severity of a sentence under the Code of Service Discipline – on the CF member who is the subject of the decision.

There is no constitutionally independent decision-maker in these administrative proceedings.  Decisions are made by the chain of command.  And make no mistake – a decision by Director Military Careers Administration (DMCA), ordering a compulsory release, is a decision by the chain of command.  In lieu of objectively reasonable decision-making, we have a largely boiler-plate process.  In lieu of a meaningful opportunity to make full answer and defence before a tribunal designed to test evidence, we have a ‘paper hearing’ that does not provide for cross-examination, and in which determinations of fact are shielded by a rote “… I have decided on a balance of probabilities …” even where the decision involves the application of facts to a legal or policy regime (i.e. a decision of mixed law and fact) rather than a factual determination based upon tested evidence.

But the main frailty of administrative processes as a substitute for the Code of Service Discipline is that there is no reasonable means for the affected CF member to challenge a failure of procedural fairness, before an independent decision-maker, within the process itself.  So, if the administrative decision-maker fails to provide disclosure, fails to provide a reasonable opportunity to make full answer and defence, or fails to provide adequate reasons for the eventual statutory decision, the CF member is often limited to relying on the CF grievance process.

That process is not conducted before independent decision-makers.  It is conducted before the same chain of command that is driven to ‘appear to be doing something’.  Nor is it a timely process.

Here is an illustrative example:  The judgment of Zimmerman v Canada (Attorney General), 2011 FCA 43, rev’g Zimmerman v Canada (Attorney General), 2009 FC 1298 concerned a grievance by a Chaplain regarding a decision not to promote him.  From the date that the grievance was first submitted, 12 January 2005, to the date that the final authority (FA) in the CF grievance process communicated his decision, 16 May 2009, took 4 years and 4 months, or 52 months total.

In comparison, from the date that the grievor (then applicant) submitted his application for judicial review, 15 June 2009, to the date of the judgment from the Federal Court of Appeal, 4 February 2011, took 1 year and 8 months, or 20 months total.  The process of application for judicial review (which was unsuccessful) to appeal (which was successful), combined, took less than 40% of the time to complete the two-tiered CF grievance process.

Now, that comparison could be viewed as a bit disingenuous.  After all, in both stages of the grievance process, the various participants had to obtain and/or present documentary evidence, and, during the second stage of the grievance process, the file had to be provided to the ‘Canadian Forces Grievance Board’ (CFGB), now the Military Grievances External Review Committee (MGERC), an arm’s length body outside the CF that provides findings and recommendations (F&R) to the FA.  The CF did not, and does not, control the pace at which the CFGB (now the MGERC) prepared (or prepares) their F&R, and, in the Zimmerman grievance, that took approximately a year.

In comparison, the Federal Court does not conduct evidentiary hearings.  The judicial review is predicated upon the ‘Tribunal Record’, and that is, essentially, the CF grievance file.  Similarly, the Federal Court of Appeal relies upon the record before the Federal Court.  But this matter remains indicative of delays in the CF grievance process.

So where does this leave us?

There is a lack of transparency in the processes that are increasingly being used to punish alleged wrongdoing in the CF.  I contend that much of this is being driven by the desire by the CF chain of command (and their political masters) to signal that ‘something is being done’ about sexual misconduct.  And it is a lot easier to take the desired action, regardless of the strength of the evidence gathered and presented, if the chain of command does not have to satisfy a constitutionally independent military judge.  And it is a lot easier to have the desired effect – at least on the CF member who is the subject of the statutory decision-making – if the sole recourse is not initially to the constitutionally independent court, but to the same chain of command, through the CF grievance process.

And one of the big problems with this arrangement is that this is hardly transparent.  These processes are not conducted publicly.  The results are not generally public.  The complainants do not have much visibility on the process or outcome.  The affected CF member does not have the reassurance that the decision-making is being subject to public scrutiny.  And the Canadian public does not have access to the processes, or the outcomes.  Additionally, other CF members, in similar circumstances, do not have the benefit of public judgments regarding similar circumstances and similar issues, on which to rely for the purposes of their own processes.

Where there is no transparency, we cannot be confident that there is fairness or reasonableness.  Where we cannot be confident that fairness and reasonableness are satisfied, we cannot have faith that justice is being served.

In contrast, these shortcomings do not arise when allegations of serious misconduct are prosecuted under the Code of Service Discipline before public, and constitutionally independent courts martial.

So, we should be asking: If there is evidence to justify significant administrative action, why are these allegations not being dealt with under the transparent Code of Service Discipline (or, alternatively, the criminal justice process)?

 

[1] Murray Brewster, “Government, military set to formally apologize to sexual misconduct victims”, (16 November 2021), Online: CBC News <https://www.cbc.ca/news/politics/armed-forces-eyre-anand-sexual-misconduct-military-1.6249981>.

[2] Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker].

[3] National Defence Act, RSC 1985, c N-5, s 162.1 [NDA]; Queen’s Regulations and Orders for the Canadian Forces (QR&O), art 108.17.

[4] QR&O, id, art 108.07 and 108.125.

[5] QR&O, id, art 108.16.

[6] NDA, n 3, s 165.

[7] Some matters may only be tried by Standing Court Martial (military judge alone), NDA, n 3, s 165.192.  Others may be tried only by General Court Martial (military judge and a Panel), NDA, s 165.191.  In some cases, the accused may elect one or the other, NDA, s 165.193.

[8] R v Stinchcombe, [1991] 3 SCR 326.

[9] Baker, n 2.

[10] Sheriff v Canada (Attorney General), 2006 FCA 139 [Sheriff].

[11] Baker, n 2; Sheriff, id.

[12] Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65; Dunsmuir v New Brunswick, 2008 SCC 9.