A Few Comments on Bill C-77 … Redux

A lot can happen in 24 hours.

On 28 May 2019, contemporaneous with when I was putting the finishing touches on my previous Blog comments on Bill C-77, the Senate Committee on National Security and Defence voted in favour of the Bill with no amendments.

This is unfortunate.

It appears that the tactic of including a problematic Summary Hearing process with a highly-favoured Victims’ Rights Declaration was successful in convincing legislators to refrain from addressing the procedural defects of Summary Hearings.

But what I find truly interesting is that, of the two votes that the Committee held on 28 May 2019, the step toward depriving CF members of procedural protections under the Code of Service Discipline is not the vote upon which major media focused this morning.

As I watched the Committee’s live stream on May 28th, Senator Dagenais, the Vice Chair of the Committee, introduced a motion to examine the ‘suspension’ of Vice-Admiral Norman, the former Vice-Chief of the Defence Staff.  The motion passed, 7 to 5.

This morning, the Globe and Mail reported the ‘Norman Motion’ on its front page, ‘above the fold’.  Yet, there was no mention of what is, arguably, a more significant development in the administration of the affairs of the Canadian Forces – i.e. the support for Bill C-77.

I do not mean to suggest that Vice-Admiral Norman’s ordeal over the past 2 1/2 years is not worthy of examination.  To the contrary, there are many questions that Canadians have about how that process unfolded.  However, Bill C-77 has the potential to adversely affect the rights, interests, and privileges of hundreds of Canadian Forces personnel in the coming years.

Yet, that is not what seems to draw the focus of the media.

I can understand why: The narrative surrounding Vice-Admiral Norman’s suspension and prosecution is evocative and provocative.  It is visceral and politically-charged.  And it does not require the public consumer of media to delve into some of the less exciting minutiae of how the principles associated with the rule of law serve to protect the rights, interests, and privileges of persons who are subject to coercive public law regimes.

In other words: Discussion about the failings of Summary Hearings is more boring than the ‘scandal’ arising from the suspension and prosecution of Vice-Admiral Norman.

But consider this: imagine what might have happened to Vice-Admiral Norman if he had been subject to a regime that did not permit him to choose to be tried before a constitutionally independent decision-maker or to have the case against him proven beyond a reasonable doubt.

Presumably, the ‘average Canadian’ is concerned about the fact that Vice-Admiral Norman was suspended from his position as Vice-Chief of the Defence Staff.  (I note, tangentially, that even though a public affairs officer for the Canadian Forces first described it, in January 2017, as a “… temporary [relief] from the performance of military duty…”, it was neither ‘temporary’ nor a ‘relief from the performance of military duty’.)  If the average Canadian does consider that ‘suspension’ to have been carried out in an arbitrary and unfair manner, then I suggest that the same ‘average Canadian’ must necessarily be concerned about the potential for similarly problematic decision-making under the Summary Hearing process.

Canadian Forces personnel who will eventually be prosecuted under Summary Hearings – and it is a prosecution – run the risk of being found culpable in a similarly arbitrary fashion.  And once they are found culpable under this less rigorous process, their chain of command can then proceed to take additional adversarial steps such as compulsory release.

And those rank-and-file CF members won’t have notoriety or the glare of media attention to aid them by focusing public attention on the deprivation of their rights.

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