A Word or Two on Release Items in the Canadian Forces
Compulsory release has been in the news frequently of late. Over the past few years, compulsory release has been one of the principal tools that the ‘chain of command’ of the Canadian Forces (CF) has used to address allegations of misconduct under the aegis of Op HONOUR. While compulsory release is an administrative measure, and not generally a function under the Code of Service Discipline, CF leadership have nevertheless relied heavily on this tool for what clearly appear to be disciplinary purposes, often in lieu of, on in preference over, the Code of Service Discipline.
Similarly, there has been more recent discussion concerning the CF’s response to allegations of extremism in the ranks and so-called ‘hateful conduct’. The response to this issue also appears to favour administrative action, such as compulsory release, over the Code of Service Discipline. Arguably, much of the public positioning by CF leaders is likely intended to respond to public criticism levelled at it by news media. This is not the first time that the desire to demonstrate that ‘something is being done’ has prompted administrative, rather than disciplinary, efforts.
The Minister of National Defence has recently announced the creation of a so-called ‘Advisory Panel’ to examine systemic racism, discrimination with a focus on anti-Indigenous and anti-Black racism, LGBTQ2 prejudice, gender bias and white supremacy in the CF. In addition to my recent comment on that panel, I would also suggest that the name of that panel could have been shorter and more generalized. The nomenclature employed in the news release appears to be quite literally ‘ripped from the headlines’ and is transparently intended to demonstrate ‘decisive action’ by the Minister in the face of recent news coverage.
We’ve been down this road before. It will seem particularly familiar to anyone who served throughout the 1990s. But before we examine the most recent ‘causes celebres’ in the Canadian Forces, an examination of the use – and misuse – of compulsory release items by CF decision-makers would be timely and informative for any future discussions concerning recent initiatives. This is particularly pertinent as compulsory release, rather than prosecution under the Code of Service Discipline, or any of a number of other responses, appears to be the preferred means of addressing such concerns.
The focus of this Blog article will be on compulsory release, and, in particular, the most frequent justifications for conduct-related compulsory release. Arguably, the legislative and policy framework surrounding release from the CF is due for rejuvenation. However, recommendations for reform will be left for a future article. The focus of the present article will be on the reasons for release that we can expect to see (or continue to see) within the context of Op HONOUR and the more recent administrative actions relating to allegations of extremis, racism and ‘hateful conduct’.
This Blog article will begin with a description of the legislative regime for release from the CF. I will then identify the five release ‘items’ established by the Governor in Council in the Queen’s Regulations and Orders for the Canadian Forces (QR&O), and will describe the nature of each, with a focus on conduct-related compulsory release items. I will also explain what distinguishes some of these release items. Using a couple of general examples pertaining to ‘sexual misconduct’ and ‘hateful conduct’, I will explain how these release items appear to be employed by the CF, including potential errors or abuses in the application of the release items. While the focus is on the substantive justifications of the release items, I will delve, briefly, into related procedural concerns.
Legislative Basis for Release
As with most administrative regimes for the CF, we start with the National Defence Act (NDA). ‘Release’ is defined as “… the termination of the service of an officer or non-commissioned member in any manner …”. This definition is reiterated at article 1.02 of the QR&O. In other words, ‘release’ refers to the way that a member of the CF retires or otherwise departs from service in the CF. It applies to both voluntary and compulsory termination of this service.
Section 30 relates to ‘release’ and subsection 30(1) states:
Except during an emergency, an officer or non-commissioned member who is not on active service is entitled to be released at the expiration of the term of service for which the officer or non-commissioned member is enrolled or re-engaged.
Note that this provision is permissive: a CF member is entitled to be released at the end of a term of service, but that is not obligatory. In other words, all things being equal, a CF member may elect to extend his or her terms of service.
The provision establishes two notable exceptions to this entitlement: during an emergency and when the CF member is on active service. The NDA defines emergency as “… an insurrection, riot, invasion, armed conflict or war, whether real or apprehended …”. This is reminiscent of the now-defunct War Measures Act. While the successor legislation, the Emergencies Act, does not employ the specific language of “war, riot, or insurrection”, it does address four types of emergencies: public welfare, public order, international, and war. We can anticipate that the use of the term ‘emergency’ in sub-section 30(1) of the NDA would be interpreted as including a national emergency for which the Emergencies Act is invoked.
Perhaps of more immediate concern is the relevance of ‘active service’. Officers and non-commissioned members (NCM) of the Regular Force are on active service (and have been for some time) by virtue of the Order in Council “… Placing Members of the Canadian Forces on Active Service for the Purpose of Fulfilling Canada’s Obligations Under the North Atlantic Treaty” [Active Service – NATO OiC]. This same Order also places officers and NCM of the Reserve Force on active service when they are serving beyond Canada’s borders. Other Orders in Council have placed officers and NCM on active service when deployed on certain operations.
Subsequent sub-sections provide Parliament’s guidance on the effect of illegal absence (such as being ‘absent without leave’ or desertion) on the calculation of a ‘period of service’ (sub-section 30(2)) or limitations on a right of release during an emergency or while on active service. Sub-section 30(3) states:
Where the term of service for which an officer or non-commissioned member is enrolled or re-engaged expires during an emergency or when the officer or non-commissioned member is on active service or within one year after the expiration of an emergency or after he has ceased to be on active service, the officer or non-commissioned member is liable to serve until the expiration of one year after the emergency has ceased to exist or after he has ceased to be on active service, as the case may be.
Acknowledging that the ‘OiC Active Service – NATO’ was the successor to earlier orders, we can observe that, for more than 30 years, the ‘right of release’ under sub-section 30(1) of the NDA for officers and NCM of the Regular Force has been restricted. While one might conclude that those officers and NCM have not technically been entitled to voluntary release upon the expiration of terms of service (and based solely upon the expiration of the terms of service), I am unaware of any officer or NCM who was refused a voluntary release for this reason.
I contend that, when administering release, CF administrators (who represent the Executive) do not rely significantly on these statutory provisions. More specifically, these provisions do not appear to be directly in the contemplation of those administrators. For this reason, subsection 12(1) of the NDA is just as important, as it is this statutory provision that permits the Governor in Council to “… make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of [the NDA] into effect.”
Similarly, when considering the nature and process(es) of release from the CF, we must also understand the process by which officers and non-commissioned members are enrolled in the CF (section 20 of the NDA) and the subsequent obligation to serve (section 23 of the NDA). All of these provisions can impact decision-making regarding release.
In addition to the statutory framework offered by Parliament, the common law doctrine regarding the Crown-soldier relationship continues to influence a variety of aspects of the administration of the affairs of the Canadian Forces, including ‘release’. The current articulation of this doctrine dates back to the Victorian era. Service in the CF – the armed forces of Her Majesty raised by Canada – is a unique relationship. It is governed by public law. Members of the CF are not employees of the Federal Public Administration employed by the Treasury Board under the Financial Administration Act. Members of the CF are not in privity of contract with the Crown, with whom they may be said to have a ‘direct relationship’. They are engaged in “… a unilateral commitment in return for which the Queen assumes no obligations, and that relations between the Queen and Her military personnel, as such, in no way give rise to a remedy in the civil Courts.”
Much can (and ought to) be said and written about the merit of this antiquated principle. Certainly, the assertion that members of the armed forces have no remedy before the civil courts can be questioned in light of the myriad applications and actions that have been brought by members of the CF and, perhaps most particularly, by classes of former and serving members of the CF. However, the principle that members of the CF are not in privity of contract with the Crown persists.
Thus, the ‘termination of service’ arising from a release is not a termination of a contract. It is a termination of a public law relationship governed by public law principles. Therefore, remedies that arise within the context of contract (a private law regime) are not typically available to members of the CF. Most often, they must satisfy themselves with remedy under public law regimes.
Sometimes, the nature of that relationship is not particularly well understood by: the leadership of the CF (who are also statutory decision-makers who regularly make decisions within the scope of this relationship); the personnel who are subject to this relationship; administrative tribunals who play a role in the governance of this relationship; or even the courts that are regularly called upon to adjudicate disputes arising from this relationship.
I suggest that most CF administrators will turn their mind to the QR&O rather than the NDA – assuming they turn their mind to legislation at all (rather than Standard Operating Procedures (SOP), checklists, or directives). When they do so, they will turn their minds to Chapter 15 of the QR&O, which amplifies the relatively limited direction that Parliament provides under the NDA. This chapter is comprised principally of regulations enacted by the Governor in Council pursuant to subsection 12(1) of the NDA.
Sub-article 15.01(1) of the QR&O expressly states: “An officer or non-commissioned member may be released, during his service, only in accordance with this article and the table hereto.”
Consequently, when this service is terminated, for whatever reason, the nature, justification, and consequence of that termination will be governed by public law, starting with the legislative regime enacted under the NDA and amplified by regulations under the QR&O. However, I have repeatedly encountered indicators that tend to signal that many of the decision-makers – and those whose duties and functions are intended to support those decision-makers – lack fundamental understanding of the regime created under Chapter 15 of the QR&O. Consequently, in the interests of educating persons who have a stake in this process, I will attempt to dispel some myths, and clarify some concerns, relating to release from the CF.
A variety of terms regarding release from the Canadian Forces have been bandied about by Members of Parliament, news reporters, CF decision-makers, and members of the public. Some of these terms have been mischaracterized. Some are simply incorrect. Therefore, this may be an opportune time to clarify the various items of release that affect members of the CF, and to identify what terms are, and are not, being used properly. After all – as I have mentioned repeatedly in this Blog: words have meaning.
Article 15.01 of the QR&O – and, more particularly, the Table to article 15.01 – establishes five release ‘items’ or categories for release from the CF:
As indicated in the introduction, the focus of this Blog article is compulsory release – i.e., items 1, 2, 3, and 5. In particular, I will focus on the reasons that are used most frequently in relation to allegations of misconduct and conduct deficiencies that tend to arise under Op HONOUR, and which we can anticipate will arise under any response to hateful conduct, racism, etc.
The Table to article 15.01 further sub-divides these release ‘items’ or categories into related “reasons for release”: i.e., 1(a), (b), (c) and (d); 2(a) and (b); 3(a) and (b); 4(a), (b) and (c); and, 5(a), (b), (c), (d), (e), and (f). Certain ‘reasons for release’ are used far more frequently than others.
Despite the terms ‘Item’, ‘Category’, and ‘Reasons for Release’ used as headers in the Table to article 15.01 of the QR&O, the alpha-numeric combination describing item, category, and reason for release will generally be referred to as a ‘release item’ in the administration of the affairs of the CF – e.g. if a CF member is released due to making a fraudulent statement on enrolment, the release of that CF member would typically be characterised as being under ‘release Item 1(d)’.
Release Items 1, 2, 3, and 5 are all involuntary or compulsory release items. In other words, they arise where a determination has been made by one or more CF decision-makers that a member of the CF must or will be released from the CF. Often, these decisions regarding compulsory release will be made following the conduct of an Administrative Review under Defence Administrative Order and Directive (DAOD) 5019-2. While I will not be delving, in detail, into the nature of Administrative Reviews in relation to release decisions, readers who are interested in that subject can review articles that I have posted on The Military Justice Project website: www.militaryjusticeproject.com:
The focus of the present discussion in on the release items and their requisite justifications or reasons.
The Canadian public (and members of the Canadian Forces) may have, from time to time, heard or read about Canadian Forces decision-makers ordering that a CF member will be released pursuant to a “dishonourable military discharge”. That turn of phrase was used by the New Democratic Party (NDP) Defence Critic, Randall Garrison, when interviewed by CBC reporter Murray Brewster approximately four years ago in relation to a motion Mr. Garrison brought to change the service records for LGBTQ personnel who were ‘kicked out’ of the CF: Commons committee demands service record change for LGBTQ kicked out of the Forces.
However, this turn of phrase is inaccurate and does not reflect the legislative context and character of compulsory release.
More recently, public reporting regarding the controversial status of Erik Myggland as a member of the Reserve Force component of the CF has also prompted discussion concerning whether he might be released for ‘misconduct’ or ‘dismissal with disgrace’: Canadian military was warned of reservist’s hard-right online ties by allied intelligence agency.
As indicated above, there are five release items created and defined under article 15.01 of the QR&O. Sub-article 15.01(4) expressly defines the notation that will be made to an officer or non-commissioned member’s record of service when that officer or NCM is released:
Several conclusions or observations should be clear from the foregoing. First, when the service of an officer or NCM of the CF is terminated, it is referred to as a ‘release’, not a discharge. While our American cousins to the south might use the term ‘discharge’, they are not part of the armed forces of Her Majesty raised by Canada for the defence of Canada. When discussing Canada’s armed forces, Members of Canada’s Parliament should use terminology found in Canadian statutes, or the regulations enacted under the statutory authority.
Second, none of the release items under article 15.01 of the QR&O use the term ‘Dishonourable’ and none of the release items will give rise to such a notation on an officer’s or NCM’s service record following release.
In fairness to Mr. Garrison, I suspect that he used the term ‘Dishonourable’ to describe the past release justifications of certain LGBTQ personnel. They may have been released under either Item 1 or Item 2, which do not carry the notation “Honourably Released”, and Mr. Garrison may have been drawing an inverse conclusion: if the release was not ‘honourable’, then it must have been ‘dishonourable’. Also, many of the former CF personnel for whom Mr. Garrison was advocating were released in the 1960s, 1970s, and 1980s. The construction of the provisions that I have identified above post-date the so-called ‘Gay Purge’ for the CF.
However, if we are going to discuss the current regime relating to release, we should use the terminology established by, or under, the current regime.
Third, there is no release item called ‘dismissal’ or ‘dismissal with disgrace’. These are punishments established under the Code of Service Discipline. A CF member sentenced to dismissal or dismissal with disgrace under the Code of Service Discipline will be released under Item 1(a) of QR&O 15.01. Release Item 1 is termed ‘Misconduct’, and Item 1(a) states “Sentenced to Dismissal” as the ‘reason for release’. The record of service of a CF member released under this item will be annotated “Dismissed with Disgrace for Misconduct” or “Dismissed for Misconduct”, as applicable.
As noted above, the prospect of ‘dismissal with disgrace’ or release for ’misconduct’ was recently raised in news reports pertaining to Erik Myggland. However, we also know from related news reports that Mr. Myggland has not been charged with any Code of Service Discipline offence. Since ‘Dismissal with Disgrace’ is a sentence under the Code of Service Discipline, and not a ‘release item’, it would be markedly difficult for CF authorities to impose ‘dismissal with disgrace’ upon Mr. Myggland absent any prosecution under the Code of Service Discipline.
Reasons for Release
Each release item under QR&O 15.01 has two or more ‘reasons for release’ identified in the Table to QR&O 15.01, with accompanying ‘Special Instructions’. These reasons are identified sequentially by letters and, consequently, when CF administrators refer to an ‘item of release’ they will typically refer not only to the number identifying the release item (and, therefore, category of release) but also with the accompanying letter identifying the ‘reason for release’. Therefore, a CF member who requests a voluntary release when he or she has a right of release based upon eligibility for an immediate annuity under the Canadian Forces Superannuation Act (CFSA), administrators will typically refer to the CF member as being released under ‘Item 4(a)’.
The Table to QR&O 15.01 is relatively self-explanatory. It is fairly detailed and functions very much like a checklist. A sizeable portion of training given to CF administrators – of various ranks and positions – involves the use of checklists to aid in analysis and decision-making. Consequently, I find the frequency with which errors are made when applying this regime to be disconcerting. I suspect many of those errors arise from various administrators’ misconceptions or misunderstanding of what the Table actually states, combined with a recurring failure to consult the actual legislation they purport to apply. The application of what they ‘think’ the legislation states – as opposed to what it actually states – can give rise to these repeated errors.
Therefore, let’s try to demystify the Table to QR&O 15.01. Some ‘reasons for release’ are used more frequently for conduct-related compulsory release than others, and the discussion that follows will focus on those reasons.
Release Item 1 – Misconduct
There is a variety of activity that might be characterized as ‘misconduct’ in the administration of the affairs of the CF. Certainly, DAOD 9005-1 Sexual Misconduct Response (and, before it, DAOD 5019-5 Sexual Misconduct and Sexual Disorders) offers a definition of ‘sexual misconduct’. However, ‘Misconduct’ as it is defined under QR&O 15.01 is much more specific. Perhaps it is not surprising that some CF administrators and decision-makers conflate the general denotative meaning of ‘misconduct’ with the specific category of release under item ‘1’ of the Table to QR&O 15.01.
The four ‘reasons for release’ under release Item 1 are:
a. Sentenced to Dismissal;
b. Service Misconduct;
c. Illegally absent; and
d. Fraudulent statement on Enrolment.
This discussion will focus on the first two.
Item 1(a) ought to be relatively clear. It will only be used as a reason for release (and must be used as the reason for release) if an officer or NCM is sentenced to Dismissal or Dismissal with Disgrace under the Code of Service Discipline. While these punishments do not deprive a CF member of his or her liberty, they are considered to be relatively high on the scale of punishments. ‘Dismissal with Disgrace’ is considered to be higher in the scale of punishment than ‘imprisonment for less than two years’ and is exceeded only by ‘imprisonment for more than two years’ and ‘imprisonment for life’.
This reason for release is one of the few in which administrative decision-makers have no discretion in ordering a release. A CF member sentenced to either of these punishments must be released under release Item 1(a). Even if the CF member might arguably be ‘eligible’ for another release item – such as medical grounds – this release item must be imposed. That said, to my knowledge, such conflicting ‘reasons for release’ have not been tested before the Federal Court or any other court of competent jurisdiction.
Release Item 1(b) – ‘Service Misconduct’ – is the most severe form of discretionary release under article 15.01. The ‘special instructions’ in the Table provide three descriptors:
It should be clear that compulsory release under Item 1(b) requires satisfaction of a condition precedent – the CF member must be convicted of one or more offences described in the ‘special instructions’.
‘Serious offence’ is not defined under the QR&O generally, or Chapter 15. Nor has the definition of this term, in this context, been considered by a court of competent jurisdiction. Certainly, several courts martial and appeals before the Court Martial Appeal Court of Canada (CMAC) have examined the characterization of a ‘serious offence’ in the context of the Code of Service Discipline. However, these courts were not examining the application of the term found in the Table to QR&O article 15.01.
In Wagner v Canada (Attorney General), 2017 FC 801, the Federal Court examined what might constitute a ‘serious offence’ in the context of ‘release Item 2(a)’ (described below). Even then, the consideration of the term was brief. In her description of the background events in that matter, Justice McVeigh observed:
Item 2(a) is the release item that corresponds to civil convictions resulting from serious offences. Since the Applicant’s convictions included one indictable offence and two summary offences (which is not disputed), General Vance found that release item 2(a) was the most accurate category of why the Applicant was being released. General Vance concluded that it would be negligent and careless to use a less accurate release item.
Justice McVeigh eventually dismissed the application for judicial review, finding that the decision of the Chief of the Defence Staff, following a grievance by the applicant challenging the compulsory release, “… exhibit[ed] justification, transparency and intelligibility within the decision making process and also that the decision [was] within the range of possible, acceptable outcomes, defensible in fact and law (Dunsmuir v New Brunswick, 2008 SCC 9; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12).”
Justice McVeigh did not expressly define what ‘serious offence’ means under ‘release Item 2(a)’. She simply held that the CDS was reasonable in concluding that conviction for the offences of ‘break and enter’ (contrary to Criminal Code, section 348(1)(b)), breach of recognizance (possession of a weapon) (contrary to Criminal Code, section 145(3)), and breach of recognizance (failure to report to bail supervisor) (contrary to Criminal Code section 145(3)) constituted justifiable grounds for release under release Item 2(a).
Justice McVeigh also observed that, contrary to the applicant’s assertion that this release item amounted to a ‘dishonourable release’ or ‘dishonourable discharge’, his record of service noted that his service was terminated and the reason for his release is Unsatisfactory Conduct.
Objectively, where CF administrators apply release Item 1(b), I contend that it would be difficult to suggest that conviction of a Criminal Code offence by ‘summary conviction’ (particularly if the offence is one that can only be tried summarily) constitutes a ‘serious offence’. The Governor in Council has clearly used the term ‘serious offence’ to distinguish the relevant grounds from conviction of any offence. In the absence of a definition by Parliament under the NDA, or by the Governor in Council in the QR&O, we must look elsewhere.
The Criminal Code has defined the term ‘serious offence’ as having “… the same meaning as in subsection 467.1(1) [of the Act] …”. Subsections 467.1(1) of the Criminal Code defines ‘serious offence’ “… an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.”
In the absence of a clearer definition, I contend that the definition of ‘serious offence’ under the Criminal Code presents a reasonable definition for the purposes of article 15.01 of the QR&O. It is possible that another definition could be advanced by a statutory decision-maker purporting to exercise the duties, powers, and functions under Chapter 15 of the QR&O. However, absent a clearer definition, or even a relevant policy statement by an appropriate statutory actor, a decision-maker relying on a different definition would be obliged to provide a sufficient explanation in order to adequately justify reliance on such a definition.
Note that release under Item 1(b) will generally require some connection with military service. In addition to the actual term used for the ‘reason for release’ – “service misconduct” – the third of the ‘special instructions’ expressly refers to conviction by a civil court of an offence “… related to the performance of [the CF member’s] duties …”. Thus, the third ‘special instruction’ appears to require some sort of ‘military nexus’ relating to the conviction by a civil court. The same is not true for the special instructions describing conviction by a service tribunal or tribunals.
These provisions predate the Supreme Court of Canada’s (relatively) recent, definitive, rejection of a ‘nexus test’ regarding the exercise of jurisdiction by service tribunals: R v Stillman, 2019 SCC 40. When the release provisions were enacted in their present form, in 1999, the general received wisdom was that a ‘military nexus’ was not required for the application of the Code of Service Discipline, provided the broad statutory requirements for jurisdiction were met. However, there remained some debate. That debate was settled by Stillman.
Notwithstanding the apparent discrepancy between the ‘special instructions’, I contend that compulsory release under Item 1(b) requires that the underlying offence or offences must somehow relate to the CF member’s military service. If we examine the words of the regulation in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the NDA, Chapter 15 of the QR&O, and the specific provisions of the Table to article 15.01, that is the only reasonable conclusion to draw regarding the intent of the provision.
Where a CF member is convicted of an offence by a service tribunal (or a series of offences that indicate a course of misbehaviour that warrants compulsory release) that is not connected to military service, then release under Item 2(a) (see below) would be the more appropriate course of action.
I do not intend to examine release Items 1(c) and 1(d) in detail. I suggest that release under Item 1(c) would generally arise with significant (and continuing) illegal absence, as opposed to a minor breach of discipline for which the CF member is charged under section 90 of the NDA (absent without authority). I would also contend that the special instructions for release Item 1(d) are self explanatory.
Release Item 2 – Unsatisfactory Service
Release Item 2 is sub-divided into two distinct reasons for release:
I suggest that the former is much more frequently considered and used. And, as the present article is focused on conduct-related compulsory release, I will focus most of my discussion on that item. I also suggest that it is frequently misused or misapplied where the conditions described in the ‘special instructions’ are not met and cannot reasonably be expected to be met.
In many ways, compulsory release under Item 2(a) is the ‘little brother’ to release Item 1(b). The special instructions applicable to this reason for release mirror, with minor distinctions, the special instructions for release Item 1(b). A CF member may be released under Item 2(a):
Note that this release item does not require conviction for a serious offence by a service tribunal. Where a conviction arises before a civil court, the offence need not be related to the CF member’s duties but must still reflect discredit on the CF generally.
But what is also noteworthy is that this release item generally requires a conviction for an offence, either by a service tribunal or a civil court. Certainly, the circumstances described by the first two ‘special instructions’ clearly require a conviction by a service tribunal. In other words, it would not be sufficient to suggest that a CF member could be released under Item 2(a) because he or she is suspected of committing a ‘service offence’. It would not be sufficient for DMCA to order a CF member’s release under Item 2(a) because he or she could have been charged with a Code of Service Discipline offence.
That ought to be clear from the ‘special instructions’; however, in my experience this is a common source of error when applying this specific provision.
Only the circumstances described by the third ‘special instruction’ would appear to permit compulsory release under this item absent an actual conviction. However, even then, it appears that the “unsatisfactory civil conduct” requires more than a mere allegation. Again, we must examine the words of the regulation in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the NDA, Chapter 15 of the QR&O and the specific provisions of the Table to article 15.01.
‘Unsatisfactory civil conduct’ could potentially involve conduct that would not necessarily give rise to a criminal (or regulatory) offence but would still constitute misconduct of a comparable nature. However, such a circumstance is distinct from alleged ‘unsatisfactory civil conduct’ that could be prosecuted under the Code of Service Discipline or before a civil court, but where no such prosecution is pursued. In the latter circumstances, we must ask ourselves why a prosecution is not pursued and what impact it would have on the application of this release item. I explore this issue further, below, when I discuss the practical application of potential release items where ‘sexual or racist misconduct’ is alleged.
Note, too, that the third set of ‘special instructions’ for release Item 2(a) expressly refers to “unsatisfactory civil conduct’, and not unsatisfactory conduct within the CF workplace or environment. Presumably, such ‘unsatisfactory military conduct’ would be the subject of disciplinary action under the Code of Service Discipline and, if the CF member were convicted by a service tribunal, we would look to the other ‘special instructions’ for guidance. In other words, if unsatisfactory service conduct were alleged, it would require a conviction before a service tribunal to trigger a release under Item 2(a).
Release Item 3 – Medical
The purpose of the present Blog article is to examine conduct-related compulsory release items. The focus is, therefore, on release Items 1, 2, and 5. While release under Item 3 is also a form of compulsory release, it arises in a markedly distinct context.
Circumstances can arise in which a CF member accused of misconduct may also be suffering from medical limitations that might potentially give rise to a compulsory release for medical reasons. Statutory decision-makers like DMCA might then be obliged to consider compulsory release under Item 3 (Medical) in parallel to compulsory release under one or more of Items 1, 2, or 5. There is even guidance from the Chief of the Defence Staff on such circumstances: “Chief of the Defence Staff (CDS) Letter – Consideration for Attribution of a Release Item”, dated 14 July 2011. That subject merits a separate Blog article to examine the scope and nature of such determinations.
I have previously examined some of the challenges and pitfalls in Administrative Reviews and decision-making relating to Medical Employment Limitations that would give rise to compulsory release under Item 3: Administrative Review – Medical Employment Limitations: Two Decisions for the Price of One!.
For the purposes of the present Blog article, I will restrict myself to some cursory observations regarding release Item 3 – Medical.
Unlike all other release items in the Table to article 15.01, there are no special instructions for either release Item 3(a) or 3(b). The only direction, under article 15.01, are the descriptors for the two ‘reasons for release:
a. On medical grounds, being disabled and unfit to perform duties as a member of the Service.
b. On medical grounds, being disabled and unfit to perform his duties in his present trade or employment, and not otherwise advantageously employable under existing service policy.
Taken on their face, this would appear to indicate that CF members who are medically unfit to serve in the Canadian Forces (i.e., cannot satisfy the conditions of Universality of Service) would typically be released under Item 3(a). In contrast, CF personnel who are medically unfit to perform the duties of their specific Military Occupation Specification (MOS) or employment, or are not otherwise advantageously employable (i.e., there are no military occupations for which they are eligible, which are open, and to which they are willing to transfer) the CF members would be released under Item 3(b).
But is that truly how these types of compulsory releases are being administered?
Based upon my own experience with such matters (which offers only anecdotal evidence) the significant majority of ‘medical releases’ appear to be under Item 3(b), even where the justification is purportedly that the CF member is in breach of the so-called Universality of Service (which, technically, only applies to members of the Regular Force).
Moreover, consider what articles 15.05 and 15.06 of the QR&O direct regarding release on medical grounds:
15.05 – RETENTION OF OFFICERS AND NON-COMMISSIONED MEMBERS ELIGIBLE FOR RELEASE ON MEDICAL GROUNDS
An officer or non-commissioned member of the Regular Force who is suffering from a disease or injury that necessitates his release as medically unfit may, at the discretion of the Chief of the Defence Staff or the officer commanding the command, be retained for prolonged treatment, institutional care or medical observation for a further period of not more than six months, at the end of which time he shall be released unless otherwise directed by the Minister.
15.06 – RELEASE AS MEDICALLY UNFIT
Where an officer or non-commissioned member is to be released as medically unfit, he shall be referred to the Department of Veterans Affairs if he requires treatment or institutional care and, subject to article 15.05 (Retention of Officers and Non-commissioned Members Eligible for Release on Medical Grounds), his release shall be completed as soon as possible after that reference.
Article 15.05, a Governor in Council regulation enacted pursuant to subsection 12(1) of the NDA, permits the CDS to authorize retention of a CF member, who has been determined to be medically unfit to continue to serve, for a maximum of 6 additional months. This cannot be extended, save by the Minister.
I know of no regulation enacted by the Minister of National Defence that has extended this period in general. Nor am I aware of any public direction by the Minister extending such a period generally. It is possible that, in individual cases, the Minister has authorized retention of a CF member beyond the period expressed in article 15.05 of the QR&O. But is this actually the case?
While the CF does not publish statistics on such circumstances, it would make for intriguing review to consider the number and circumstances of matters in which CF personnel have been retained in the CF beyond the prescribed 6-month period, and whether these extensions were actually authorized by the Minister. It would also be interesting to identify any potential distinctions that may have been drawn, or factors considered, by CF decision-makers concerning who is, and who is not, retained beyond that 6-month limitation period.
The manner in which ‘medical releases’ are evaluated and justified merits further examination beyond the scope of the present Blog article.
Release Item 5 – Service Completed
Release Item 5 has the greatest number of ‘reasons for release’, or sub-categories, of any of the release items. And, while the CF does not publish statistics regarding the numbers of compulsory releases on an annual basis, based upon my own experience and anecdotal evidence, I suggest that releases under Item 5 likely exceed releases under Items 1 and 2, and may well be comparable to, or exceed, the number of releases under Item 3. And, as I explain below, I contend that releases under Item 5 – particularly Item 5(f) – represent some of the most misunderstood justifications for compulsory release.
The various reasons for release under Item 5 include:
a. Retirement Age;
b. Reduction in Strength;
c. Completed Service for Which Required;
d. Not Advantageously Employable
e. Irregular enrolment; and
f. Unsuitable for further service.
The two release items upon which I will focus are Items 5(d) and 5(f). These are, I suggest, the two most common reasons for conduct-related compulsory release under Item 5. They are certainly the two most potentially contentious reasons for release.
Many of the other ‘reasons for release’ under Item 5 are self-explanatory. There are still some nuances to some of those reasons. For example, the issue of ‘retirement age’ as defined under Chapter 15 and amplified specifically under article 15.17 of the QR&O is largely not applied in the manner prescribed. Instead, most CF personnel, regardless of rank, are permitted to serve until they reach the Compulsory Retirement Age (CRA) of 60 years of age. Even then, it appears that some personnel have been permitted to serve beyond this age,
An analysis of all of the reasons for release under Item 5 could occupy a lengthy Blog article itself. As our discussion concerns conduct-related compulsory release, we will focus on Items 5(d) and 5(f).
Release under Item 5(d) is applied to CF members who are not advantageously employable and would be justified in the following circumstances:
(Obviously, where a CF member is not advantageously employable due to medical factors, release Item 3 ought to be considered.)
Ultimately, release Item 5(d) arises where a person is incapable of adapting to military life or contributing to the objectives of the Canadian Forces. It would not be surprising to see this release item applied early in the career of a CF member who consistently demonstrates an inability or lack of aptitude in terms of his or her Military Occupation or military life generally. It could also arise later in a CF member’s career where circumstances develop that impair the CF member’s ability or aptitude to contribute to the CF mission or to maintain effective working relationships.
It would not be surprising to learn that, prior to the development of the current institutional perspective regarding mental health injury suffered by CF personnel, several CF members were released under this release item because they developed personal weaknesses or other personal problems, due to factors beyond their control, that seriously impaired their usefulness to the CF or imposed an excessive administrative burden on the CF.
I suspect that, presently, where such impairment arises from diagnosed mental health injury or illness, the general trend will be to consider, and ultimately direct, release on medical grounds under item 3. I would also not be surprised if CF decision-makers, including those in CF Health Services, are more inclined to favour release under Item 3 where the mental health injury or illness is attributable to military service (e.g., where the injury or illness is viewed as connected to a deployment) even though such a nexus is not necessary or relevant.
Also, for greater clarity: the requirement for CF supervisors to perform their duties and functions, and to exercise their powers, in a proper and reasonable manner, does not constitute an “excessive administrative burden on the Canadian Forces”, even if these obligations or functions add to the supervisors’ administrative workload. I mention this, as I have often encountered circumstances in which CF supervisors have been quick to label a subordinate as an ‘administrative burden’ because the supervisors are required to perform their leadership roles, as directed under CF policies. The obligation for someone in a leadership position to perform the duties and functions of that position is not representative of an ‘excessive administrative burden’. It is called leadership. This factor is relevant to the discussion below.
Release under Item 5(f), where a CF member is unsuitable for further service, can be justified where:
One of the key distinctions between release Item 5(d) and release Item 5(f) is the source of the personal weakness, behaviour, or personal problems that impairs the CF member’s usefulness to the CF or that gives rise to an excessive administrative burden. Where the contributing factors (or the majority of the factors) are beyond the control of the CF member, then a release under Item 5(d) would be appropriate. Where the factors are wholly or principally within the CF member’s control, a release under Item 5(f) would be appropriate.
This distinction does not represent a breadth of discretion for the statutory CF decision-maker. It represents an obligation to make a reasonable, evidence-based, and procedurally fair determinations concerning the contributing factors. Unfortunately, some CF decision-makers appear to conclude, erroneously, that the requirement to make a factual determination represents some type of opportunity for ambiguous exercise of discretion.
While there are distinctions that can be drawn between release Items 5(d) and 5(f), they do share common characteristics. These determinations focus on whether a CF member is able to perform his or her duties and functions, both in terms of the CF member’s Military Occupation specifically, and, generally, as a member of the CF. These release items are about deficiencies – relating to conduct, performance, or both. Another, implied, requirement and factor for both release items is the extent to which CF leaders have assisted the CF member in overcoming the deficiency. After all, the CF does not simply hand a recruit a uniform, equipment, and a rifle and say “OK, now go soldier!”.
I suggest that these release items must necessarily be read in concert with CF policies such as DAOD 5019-0 Conduct and Performance Deficiencies and 5019-4 Remedial Measures. I am not suggesting that DAOD 5019-0 and 5019-4 are determinative of the interpretation of this portion of the Table to article 15.01 of the QR&O. After all, the DAOD are policy documents, issued under the authority of the Chief of the Defence Staff regarding the control and administration of the CF. Article 15.01 of the QR&O is a regulation enacted by the Governor in Council pursuant to subsection 12(1) of the NDA. The latter informs the former; the former does not alter the interpretation of the latter.
What I am suggesting is that DAOD 5019-0 and 5019-4 are policy extensions of, among other things, the requirement for the CF leadership to take reasonable steps, first, to train subordinates and, subsequently, to assist subordinates in overcoming any conduct or performance deficiencies. This is true regardless of whether the factors leading to the deficiency or deficiencies are within, or beyond, the subordinate’s control. Those DAOD are thus policy extensions of the considerations for compulsory release under release Items 5(d) and 5(f).
Consider what paragraph 3.8 of Section 3 (Policy Direction) of DAOD 5019-0 states:
3.8 The CAF must provide education, counselling and treatment, as appropriate, to assist CAF members to prevent, correct or subsequently overcome conduct and performance deficiencies.
Consider what the first two paragraphs of Section 3 (General Principles) of DAOD 5019-4 states:
3.1 Each CAF member is responsible for meeting standards of conduct and performance. If a CAF member has demonstrated a conduct or performance deficiency, an appropriate remedial measure may be initiated.
3.2 Remedial measures are serious steps to assist a CAF member in overcoming their conduct or performance deficiency and are based on established CAF standards.
The policy direction is clear: CF members are not ‘on their own’ when it comes to correcting a deficiency. It is not just a function, but a duty, of CF leadership to assist subordinates in overcoming deficiencies. Neither is the performance of this leadership duty and function representative of an ‘excessive administrative burden’.
Therefore, before CF statutory decision-makers resort to compulsory release under Items 5(d) or 5(f), there is a legitimate expectation that they will first exhaust remedial measures under DAOD 5019-4 to assist a subordinate in overcoming the performance or conduct deficiency. At the very least, this approach will permit the ‘chain of command’ to determine if a deficiency is capable of being corrected and whether the deficiency is attributable to factors within, or beyond, the subordinate’s control.
Presumably, the ‘chain of command’ will also apply the remedial measure in the progressive and graduated sequence anticipated by the policy. In other words, Counselling & Probation, the most severe form of remedial measure, second only to compulsory release in terms of severity of administrative action, should typically not be the initial or ‘least severe’ administrative option considered in an Administrative Review arising from the first incident in which a deficiency is noted.
Release Item 5(f) is not the ‘Little Brother’ of Release Item 2(a)
Often, when Administrative Reviews are initiated for conduct deficiencies or misconduct – particularly heavily scrutinized issues like ‘sexual misconduct’ – the analysis in the Administrative Review (or, at least, what is characterized as ‘analysis’) will often examine three potential outcomes:
These three ‘options’ are typically presented to DMCA as the scope of choice available to her in a particular matter. Where I have been retained by respondents in such matters the language of the so-called ‘analysis’ is alarmingly identical. It is almost as if the ‘analysis’ is simply a cut-and-pasted boilerplate set of text. And I have frequently encountered these same ‘choices’ in matters where there is no evidence that CF supervisors have attempted to use lesser remedial measures (such as Initial Counselling or Recorded Warning) to address the alleged deficiency.
In particular, the oft-repeated characterization of release Items 2(a) and 5(f) appear to suggest that the latter is a lesser form of the former. The impression is given that a release under Item 5(f) would be warranted where the evidence upon which the administrative decision-maker relies does not describe conduct or a deficiency that is egregious enough to warrant release under Item 2(a).
But that is not how the process is structured or how the release items are defined. It is tantamount to comparing apples and oranges – or, perhaps more accurately, apples and bicycles.
I mention above that release under Item 2(a) can be characterized as the ‘little brother’ to release Item 1(b). This is supported by the similarity of the text in the ‘special instructions’ to those release items. Those ‘special instructions’ expressly direct that release under Item 2(a) ‘Unsatisfactory Conduct’ may be warranted where the offence or offences for which a CF member has been convicted are not serious enough to warrant release under Item 1(b). This is further reinforced by the distinction between conviction for a ‘serious offence’ by a service tribunal that would justify release under Item 1(b) and the absence of the term ‘serious’ in the comparable ‘special instruction’ for Item 2(a).
As I note above, what is common for both release Item 1(b) and 2(a) is conviction of one or more offences by a service tribunal or unsatisfactory civil conduct (which, under Item 1(b), would require an actual conviction by a civil court of an offence of a serious nature related to the performance of military duties).
Release Item 2(a) is intended to address service conduct that gives rise to a conviction by a service tribunal. Where a conduct deficiency relating to military service does not give rise to a conviction (or, more clearly still, a prosecution before a service tribunal), release Item 2(a) cannot reasonably be considered an option. Conduct deficiencies that are not identified via conviction of one or more offences under the Code of Service Discipline are the purview of release Item 5(f).
Conduct deficiencies can be distinguished from performance deficiencies, and release Item 2 draws such a distinction. A performance deficiency would normally give rise to a release under Item 5(d) or Item 5(f), depending upon whether the factors giving rise to the deficiency are within, or beyond, the control of the CF member. Where the performance deficiency is significant or the circumstances are egregious, and the CF member “… has the ability to improve but continues to display a lack of application or effort in the performance of his duties…”, release under Item 2(b) could be considered. However, as the ‘special instruction to Item 2(b) clearly indicates, “… for cases where unsatisfactory performance is attributable to an inherent lack of ability or aptitude …”, Item 5(d) is the appropriate course of action.
Moreover, whether a CF decision-maker is considering compulsory release under Item 2(b), 5(d), or 5(f), there must normally be evidence that the chain of command offered meaningful assistance to the CF member to overcome the performance deficiency or unsatisfactory performance.
I contend that, absent a conviction by a service tribunal for one or more offences under the Code of Service Discipline, an alleged conduct deficiency or deficiencies relating to service cannot reasonably be the subject of a compulsory release under Item 2(a). To be clear: it would be unreasonable – and manifestly so – for such a recommendation to be made, and certainly for any release authority to order a compulsory release under Item 2(a) under such circumstances.
Now that we have identified the principal compulsory release items that could be relevant to topics that have recently been the subject of discussion and speculation in the news media, let’s take a look at how these might be applied practically. I suggest that the manner in which CF decision-makers have addressed allegations of ‘sexual misconduct’ under Op HONOUR over the past five years would be illustrative. Finally, I do not propose to offer commentary on any specific proceeding that might presently be before a CF statutory decision-maker. However, I may draw inspiration from some of the more notorious reports in the news media.
In order to permit meaningful discussion regarding the application of the release items mentioned above, I will posit two circumstances in which allegations of misconduct are alleged against a CF member:
I have described these scenarios broadly, to permit us to discuss various nuances that might arise in each scenario.
In both scenarios, the allegations, if true, could potentially constitute offences under the Code of Service Discipline. At they very least, they would constitute acts or conduct to the prejudice of good order and discipline, contrary to section 129 of the NDA. It is alleged that the CF members contravened “… regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof … or … [contravened] … general, garrison, unit, station, standing, local or other orders …”.
In the scope of my private practice, I have frequently and consistently encountered circumstances in which a CF member has been accused of misconduct – specifically one or more offences under the Code of Service Discipline – but the CF member was not subsequently prosecuted under the Code of Service Discipline. Instead of being prosecuted, the CF member is subject instead to an Administrative Review under DAOD 5019-2 and subsequent adverse administrative action. Members of the Canadian public will no doubt have read of allegations of ‘hateful conduct’ by CF personnel in which CF decision-makers have not pursued prosecution under the Code of Service Discipline. Instead, CF spokespersons have indicated that they are pursuing ‘administrative action’.
Consequently, let’s add the following common factors to the two scenarios:
The focus of the present Blog article is on the proper application of the legislative and policy framework for release. I do not propose to delve into the procedural and substantive deficiencies of Administrative Reviews when used to evaluate contested evidence that purportedly establishes misconduct on the part of a CF member. For those interested in that issue, I have done so in previous Blog articles:
What I will focus on are the two recommended compulsory release items and the merit of each recommendation. I contend that, based upon the current construction of the relevant provisions, those recommendations are either clearly unreasonable and unjustifiable or, depending upon any additional relevant facts, potentially unreasonable and unjustifiable.
Scenario One. The CF member has not been convicted (or even tried) for one or more offences before a service tribunal. The alleged misconduct is not ‘civil conduct’. Consequently, none of the criteria described under the ‘special instructions’ for release Item 2(a) are, or could ever be, met. Release Item 2(a) is not, reasonably, a viable option for a DMCA analyst to recommend or for DMCA to consider.
However, consider this: in my experience, DMCA has not only considered such recommendations, but DMCA has actually ordered the release of CF personnel under those very circumstances. Where service-related misconduct is alleged, but a CF member has not been convicted of a Code of Service Discipline offence, I contend that it is not just disingenuous, but unreasonable, to try to rely on release Item 2(a).
However, if confronted with this logic, CF decision-makers will typically fall back on the recommendation for compulsory release under Item 5(f). After all, based upon the cut-and-paste boilerplate ‘analysis’ that I have seen in many Administrative Reviews, it appears that DMCA analysts, and even DMCA herself, regard Item 5(f) as a lesser form of release Item 2(a). As I have demonstrated above, it is nothing of the sort.
If, in ‘Scenario One’, the respondent CF member has never been subject to any remedial measure for the alleged conduct deficiency, and there is no evidence of any prior efforts by the chain of command to assist the respondent in overcoming the deficiency, where is the justification for a compulsory release under Item 5(f)?
Presumably, the justification upon which DMCA might rely might be characterized as follows:
The conduct displayed by [Rank, Name] meet the definition of misconduct under DAOD 5019-5 Sexual Misconduct and Sexual Disorders (now, DAOD 9005-1 Sexual Misconduct Response). His actions were unacceptable and cannot be tolerated in the CAF. His conscious decisions led him to behave in a reprehensible manner that had negative impact on [his subordinates, the victim, his peers, etc.] and his unit generally. He has failed to abide by the established rules and regulations regarding conduct. In addition, his unethical behaviour violates the basic tenets of ethics required by all CAF members as detailed in the Statement of Defence Ethics as defined at Annex A to DAOD 7023-1. I agree with his CO’s recommendation to release the member. [Rank, Name] can no longer be relied upon in a position of leadership and trust. Therefore, [Rank, Name] is to be released under QR&O 15.01, Item 5(f) Unsuitable for further service.
Fair enough, but that does not explain why compulsory release was necessary when there had been no prior remedial measures. The alleged conduct was so reprehensible that it warranted compulsory release without recourse to any remedial measures, but not so reprehensible that it warranted a prosecution under the Code of Service Discipline. In fact, in the incident that inspired the phrasing above, no charges were even laid. And before anyone laments the delay that can arise from disciplinary proceedings, I will offer this: in the matter that inspired the foregoing, the compulsory release was ordered over two years after the alleged incident.
Perhaps a more honest and transparent (but markedly less defensible) determination by DMCA would be as follows:
[Rank, Name] is alleged to have conducted himself in a manner that meets the definition of misconduct under DAOD 5019-5 Sexual Misconduct and Sexual Disorders (now, DAOD 9005-1 Sexual Misconduct Response). His actions, if proven, were unacceptable and cannot be tolerated in the CAF. The Canadian Forces National Investigation Service (CFNIS) conducted a detailed investigation into the allegations. They completed the investigation in six months, which is a remarkably quick investigation by the CFNIS. Granted, they only interviewed three witnesses, but that is still faster than is typically the case. However, the CFNIS have declined to lay any charges. While it would have been open to [Rank, Name]’s chain of command to lay charges against him, it is understandable why they did not.
Even based upon a prima facie examination of the evidence gathered by the CFNIS, the allegations were not sufficiently reliable to meet the relatively low threshold for laying a charge (i.e., an actual and reasonable believe that an offence was committed) or the slightly higher threshold of a ‘reasonable prospect of conviction’. And we also have to bear in mind that the evidence gathered by the CFNIS does not include a statement by [Rank, Name], as he has a right under the Canadian Charter of Rights and Freedoms to decline to offer a statement at the investigative stage.
So, declining to proceed under the Code of Service Discipline is a no-brainer. However, we still face repeated criticism in the news media for not doing enough to address sexual misconduct. The Chief of the Defence Staff has made Operation HONOUR his priority. Fortunately, there is no immediate scrutiny of Administrative Review by a constitutionally independent judge. Therefore, I can simply make bold assertions about how [Rank, Name] made a conscious decision to behave in a reprehensible manner that had negative impact on his subordinates, the victim, his peers, and his unit generally. Using words like ‘reprehensible’ help distract from deficiencies in the actual analysis (limited though it may be) in this process.
I can also assert that [Rank, Name] failed to abide by the established rules and regulations regarding conduct. His unethical behaviour violates the basic tenets of ethics required by all CAF members as detailed in the Statement of Defence Ethics as defined at Annex A to DAOD 7023-1. Granted, these are policy directives, not regulations, but the expression ‘rules and regulations’ has an alliterative quality to it and makes it sound more official. It helps gloss over the fact that, although the National Defence Act includes an offence under section 129 that is expressly meant to support a prosecution under the Code of Service Discipline for contravention of notoriously published rules and directives, we simply avoided the awkward necessity of proving misconduct in a process specifically designed for such a purpose.
Instead, I will simply reiterate my mantra about proof on a ‘balance of probabilities – i.e., a preponderance of evidence or a likelihood greater than 50%, whatever that means – as justification for my conclusory findings. After all, I don’t actually need to weigh and consider evidence, provided that I repeat that mantra at appropriate opportunities. Besides, the Administrative Review process is not well suited to evaluating conflicting evidence and markedly different versions of events. I acknowledge that service tribunals under the Code of Service Discipline are designed for that very function – but, again, the evidence we had was fairly dodgy and it would look sketchy if we took this action after [Rank, Name] had been acquitted at court martial. This administrative process is not any faster than the Code of Service Discipline, but at least we have far greater control over the process and outcome, and that is crucial when we want to send a message to the Canadian public that we are ‘doing something’ about sexual misconduct.
I agree with his CO’s recommendation to release the member. This might not be a particularly fair and open-minded way of making these decisions, but sometimes it is necessary to sacrifice fairness, equity, and reasonableness on the altar of political expediency. This permits me to draw the conclusion that [Rank, Name] can no longer be relied upon in a position of leadership and trust. Therefore, [Rank, Name] is to be released under QR&O 15.01, Item 5(f) Unsuitable for further service. While he has the right to grieve this decision, by the time that he obtains a procedurally fair determination from the final authority, he will be long gone from the CAF, and I will no longer be DMCA. So, I am not particularly concerned about the ramifications of the lack of fairness or reasonableness in this process.
Granted, there may be a hint of sarcasm underlying my ‘alternative’ reasons. Nevertheless, I contend that these ‘alternative reasons’ accurately characterize the rationale that underlies DMCA decision-making in circumstances in which the evidence obtained in disciplinary investigations is not particularly reliable or compelling.
Ultimately, where service-related misconduct is alleged, and even investigated, but prosecution under the Code of Service Discipline is not pursued, compulsory release under Item 2(a) cannot be justified. Where adequate efforts to correct a conduct deficiency are not pursued, and where there is no history of prior similar conduct deficiencies, compulsory release under Item 5(f) (or even 5(d)) cannot be justified.
Yet, these are common occurrences.
Consider the sequence of events. Misconduct is alleged. An investigation ensues. The purpose of the investigation is to gather admissible evidence that is relevant to the alleged misconduct. Subsequent reliance on the investigation during an adverse administrative process would tend to suggest that the investigation was successful in gathering evidence. However, the absence of a prosecution under the Code of Service Discipline raises the inevitable question: Why were charges not laid or prosecuted?
Administrative Reviews will typically identify one or more notoriously published CF policies that the respondent allegedly contravened. In other words, it is alleged that the respondent contravened “… regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof … or … [contravened] … general, garrison, unit, station, standing, local or other orders …”. Such acts or omissions would constitute an offence under section 129 of the NDA.
Yet, charges are not laid, or are not prosecuted.
Instead, statutory decision-makers rely on administrative action – often compulsory release.
And they will do so brandishing the mantra of ‘decision-making on a balance of probability’ as some sort of shield against allegations of unreasonable decision-making. DMCA and her staff will assert, in an almost Pavlovian manner, that:
The standard of proof in administrative cases is different from that applied in criminal cases. The accepted standard of proof in administrative cases is the civil standard of proof: based on the balance of probability. A member may be found not guilty in a criminal case but an administrative review may find that the facts prove that the member engaged in the alleged conduct based on an administrative standard of proof.
But that is often not what the Respondent of an Administrative Review will face. Increasingly, the respondent will not have had his (or her) day in court because a prosecution is not actually pursued. The respondent won’t benefit from the comprehensive disclosure required for a court martial. The respondent is not afforded an opportunity to ‘confront his (or her) accusers’ (in the juridical sense). The respondent is not afforded an opportunity to present full answer and defence.
Instead, having used its considerable powers to pursue a disciplinary or criminal investigation, and having purportedly concluded that the respondent likely committed one or more offences, the chain of command opts, instead, to pursue an administrative outcome. Let’s examine what that means.
Upon completion of an investigation, the threshold to lay a charge under the Code of Service Discipline is an ‘actual and reasonable belief that a service offence has been committed’. Chapter 8 of B-GG-005-027/AF-011 Military Justice at the Summary Trial Level 2.2 provides the following guidance for ‘charge layers’:
The charge layer is not required or expected to test the credibility and reliability of the evidence in a manner similar to what would be expected before a service tribunal. The charge layer must be satisfied that, on its face, the evidence is likely admissible and reliable, and that it will satisfy each element of the alleged offence.
If a charge is laid, the decision to pursue a prosecution is based upon a two-part evaluation. The prosecutor must conclude that there is a reasonable prospect of conviction and that it is in the public interest to pursue a prosecution. Presumably, misconduct that warrants compulsory release under Item 2(a) (or even Item 5(f)) would be in the public interest to pursue. Consequently, the principal consideration is likely whether there is a reasonable prospect of conviction.
The articulation of ‘reasonable prospect of conviction’ upon which the Director of Military Prosecutions relies states:
Thus, a ‘reasonable prospect of conviction’ is ‘higher’ than the ‘actual and reasonable belief’ necessary to lay a charge, but it does not rise to the level of a factual determination by a tribunal, even on a balance of probability, where the evidence must be clear, cogent, and convincing. In other words, the ‘test’ for a reasonable prospect of conviction is lower or less robust than the civil burden of proof that DMCA must apply when making a determination of blameworthy conduct in an Administrative Review.
Moreover, the ‘balance of probabilities’ test is applicable to determinations of fact based upon conflicting evidence. This test is not determinative of (or applicable to) the reasonableness of an administrative measure once the relevant factual determinations have been made. Where the criteria for a compulsory release have not been satisfied (as described in the ‘special instructions’ for the relevant reasons for release), the issue is not what factual determinations DMCA has made ‘on a balance of probabilities’. The issue is whether the administrative action that has been ordered is reasonable and justified. And a key component of that justification is whether it is consistent with the regulations enacted by the Governor in Council.
Thus, where service-related misconduct is alleged and a charge or charges are not laid under the Code of Service Discipline, or, where a charge or charges are laid but not pursued, it is difficult to contemplate how the investigation could support a conclusion that release under Item 2(a) can even be contemplated.
In most of the matters I have encountered, the alleged misconduct has been characterized as sexual misconduct within the military context. Where allegations are advanced that a CF member did or said something to one or more other CF members, particularly within the expansive definition of ‘workplace’ described in DAOD 5012-0, such conduct could not reasonably be characterized as ‘civil conduct’. Presumably, then, DMCA would have to rely on one of the first two ‘special instructions’ offered for release Item 2(a). Absent a conviction by a service tribunal, release Item 2(a) could not conceivably be available.
The viability of release under Item 5(f) depends, in part, upon whether, pursuant to DAOD 5019-4, the respondent’s supervisors have taken adequate steps to assist him to correct “… factors within his control …” in order to overcome any “… personal weakness or behaviour or … domestic or other personal problems that seriously impair his usefulness to …” the Canadian Forces. Note, too, that this obligation, imposed on CF supervisors under DAOD 5019-4, as well as articles 4.02 and 5.01 of the QR&O, does not constitute “… an excessive administrative burden …”. It is their leadership obligation.
Scenario Two. The scenario involving ‘hateful conduct’ can be distinguished from ‘Scenario One’, based upon potential challenges with jurisdiction. A CF member who makes improper sexual comments to another CF member in the ‘workplace’ would be subject to the Code of Service Discipline. This would almost certainly be true, even if the alleged offender were a member of the Reserve Force, as the circumstances described for Scenario One would appear to satisfy the jurisdictional nexus under para 60(1)(c) of the NDA.
However, that jurisdiction is potentially in doubt where a member of the Reserve Force posts a ‘hateful message’ on social media when he or she is not in uniform, present at a defence establishment, conducting training, or any of the other criteria that might establish jurisdiction under the Code of Service Discipline. And, regarding membership in a prohibited ‘group’, the Commander of the Canadian Army has certainly expressed doubts about the jurisdiction of the Code of Service Discipline where it concerns a member of the Reserve Force who serves on part-time service.
However, in such circumstances, is inaction under the Code of Service Discipline prompted by a lack of jurisdiction, or by concerns about whether they could actually prove conduct that would constitute one or more offences under the Code of Service Discipline? Both the Code of Service Discipline and Administrative Review (followed by administrative measures) are tools available to the chain of command. Statutory decision-makers choose the tool or tools that they will use. And a key difference between the Code of Service Discipline and administrative action is that the chain of command does not exercise absolute control over the former.
I contend that the issue is not simply one of potential challenges to jurisdiction, but also potential challenges to the grounds upon which charges could be laid or administrative action taken. The present Blog article is not intended as an examination of the Code of Service Discipline, but, rather, the use of compulsory release as an alternative to disciplinary action. However, I will suggest that, where issues of ‘free speech’ may arise, the chain of command may be reluctant to put those issues to the test before (presumably) constitutionally independent military judges.
I contend that the chain of command will be far more inclined to rely on the administrative process that they control, knowing that any review of these decisions, by constitutionally independent judges, will only arise after the decisions are made, and after any grievance process is exhausted. Even then, judicial scrutiny will focus on judicial review of the decision by the final authority in the CF grievance process, and not the initial decision to release a CF member.
The issue for discussion here, therefore, is the potential administrative recourse, principally compulsory release under Items 2(a), 2(b), 5(d) or 5(f).
Under ‘Scenario Two’, many of the same issues will arise that arise under ‘Scenario One’. Absent a conviction by a service tribunal of one or more offences, two of the three justifications offered by the ‘special instructions’ to release Item 2(a) are not met. Potentially, the chain of command might attempt to justify compulsory release under Item 2(a) by virtue of “… unsatisfactory civil conduct … of a serious nature not related to the performance of his duties but reflecting discredit on the Service …”. While, technically, this does not require conviction by a civil court (as would be required under release Item 1(b)) the ‘unsatisfactory civil conduct’ would still need to be serious and the chain of command would need to identify the mechanism under which the conduct was proven.
And the chain of command still faces the issue of free speech. I have purposefully not offered a specific example of a statement that could be made on social media. I have done so principally because the focus of the present Blog article is on the nature and process of compulsory release, and not whether specific statements might be defensible under section 2(b) of the Charter.
I anticipate that, as the focus of the CF chain of command shifts to include ‘hateful’ or ‘racist’ conduct, and the chain of command pursues ‘administrative recourse’ to address their concerns (as appears to be the case), we can anticipate that Administrative Reviews will be initiated in a manner similar to the Administrative Reviews that have been initiated under Op HONOUR.
We can also anticipate that decision-makers like DMCA (and their staff, who conduct the initial ‘analysis’ in Administrative Reviews) will likely attempt to link the alleged improper social media statements or membership in impugned groups to CF policies, including: the definition of ‘hateful conduct’ under DAOD 5019-0; respective Command policies (in the absence of a general CF policy) regarding impugned groups, such as CAO 11-82; and, the Defence Ethics Programme and Statement of Defence Ethics under DAOD 7023-0 and 7023-1. Potentially, these policies may be raised in support of a decision to release a CF member under Item 2(a).
However, there is an inherent contradiction that would arise from such a justification. As I observe above, absent a conviction by a service tribunal, release under Item 2(a) can only be justified due to “… unsatisfactory civil conduct … of a serious nature not related to the performance of his duties but reflecting discredit on the Service …”. However, in citing various service-related duties and prohibitions, decision-makers and their staff would appear to imply that the conduct is somehow related to duties imposed on the respondent in the course of his or her military service. In which case, they would need to identify the conviction by a service tribunal upon which the release under Item 2(a) would be justified. Either that, or the decision-maker would need to acknowledge that Item 2(a) is not a reasonable option.
The problem that the decision-maker then encounters is that, absent a demonstrable attempt to assist the CF member in correcting a deficiency, release Items 2(b), 5(d) and 5(f) are also not normally available.
It may well be that some form of remedial action or remedial measure is called for. But it would be difficult to justify the most severe form of administrative action – i.e., compulsory release – where the chain of command has not even attempted to proceed under the Code of service Discipline and where progressive and graduated remedial measures have not been employed.
This does not mean that the chain of command will decline to use compulsory release as an administrative ‘solution’ to allegations of ‘extremism’ or ‘hateful conduct’ (and, equally, as a solution to continued scrutiny and questioning by national news media). In circumstances such as those suggested by ‘Scenario Two’, the chain of command will be quick to use evocative labels such as ‘extremism’, ‘racism’, and ‘white supremacy’ to justify significant administrative action. In some cases, such descriptors may be apt. The chain of command will then draw a connection between membership in such groups and the corrosive impact on the cohesion, morale, efficiency, and discipline of CF units and formations.
But a label is simply a label. Statutory decisions that significantly affect the rights, interests, or privileges of a CF member must be predicated upon clear, cogent, and convincing evidence and a fair process that permits the affected CF member to test that evidence where conflicting evidence is presented or where reliability and credibility are at issue. And that process must respect the regimes created by, or under the authority of, the NDA. This includes the progressive and graduated nature of remedial measures under DAOD 5019-4 and the obligation imposed on CF supervisors to assist subordinates in overcoming performance and conduct deficiencies.
As I have noted above, CF decision-makers who conclude that a compulsory release is the appropriate outcome, regardless of any legal constrains imposed on them, are likely to make the decision that will obtain the desired short-term result. If a grievance ensues, then a grievance ensues. By the time a determination is made by the final authority, most decision-makers involved in the initial decision will have moved on.
I don’t dispute that there are groups organized in Canada, and ‘online’, who promote hateful, racist, or toxic beliefs and conduct. By their very nature, such groups are corrosive to the fabric of a society that is predicated upon respect for others and for the rule of law. People who espouse such views and who refuse to consider the toxic nature of such views and to take appropriate action to mitigate them, are unlikely to contribute positively to the morale, discipline, and efficiency of the CF.
But there is a distinction between such toxic views and respectful dissent, or even misguided beliefs.
Purportedly, a principal function of the Code of Service Discipline is to ‘instil the habit of obedience’ in CF personnel. Arguably, the Code of Service Discipline, augmented by administrative processes, training, and constructive culturalization of CF personnel, contributes to CF personnel understanding their role in the CF and the CF’s role in Canadian society. Where a CF member demonstrates a failing in one or more of these factors – a conduct or performance deficiency – there are mechanisms available to the CF leadership to assist the CF member with overcoming these deficiencies. Indeed, there is a legitimate expectation that these mechanisms will be used.
In some cases, the Code of Service Discipline will be the appropriate mechanism. In others, progressive administrative mechanisms – administered in a fair, reasonable, and open-minded fashion – may be the appropriate mechanism. If any of these mechanisms are deficient for their intended purpose(s), the CF leadership must take appropriate steps to amend or improve the tools available to them.
However, declining to use a mechanism because it is inconvenient, is not justifiable. Declining to use a mechanism reasonably and fairly, because you have already decided upon an outcome, is not justifiable. And using a mechanism in a manner for which it was demonstrably not intended, out of political expediency, is not justified.
Compulsory release is an administrative measure available to CF statutory decision-makers to assist with the governance of the CF. However, this measure is subject to constraints imposed by Parliament, the Governor in Council, principles of administrative law, and even the very policies that CF decision-makers and policy makers have created and implemented. The availability of compulsory release is not a carte blanche for statutory decision-makers to impose arbitrary or unreasonable outcomes upon CF personnel for the sake of political expediency or because the news media is scrutinizing CF administration.
CF statutory decision makers must still make reasonable decisions within the legislative and common law constraints imposed on them, and they must be able to justify those decisions with articulable reasons. The fact that scrutiny by independent courts will be delayed due to the statutory CF grievance process does not justify decisions that are unfair, unreasonable, or inconsistent with the legislated regime.
 National Defence, “Minister of National Defence announce Advisory Panel on Systemic Racism, Discrimination with a focus on anti-Indigenous and anti-Black racism, LGBTQ2 Prejudice, Gender Bias and White Supremacy”, (17 December 2020), online: News Release < https://www.canada.ca/en/department-national-defence/news/2020/12/minister-of-national-defence-announces-advisory-panel-on-systemic-racism-discrimination-lgbtq2-prejudice-gender-bias-and-white-supremacy.html>.
 National Defence Act, RSC 1985, c N-5 [NDA].
 Id, s 2, “release”.
 Id, s 2, “emergency”.
 War Measures Act, (1914) 5 George V, c 2, s 3.
 Emergencies Act, RSC 1985, c 22 (4th Supp).
 NDA, n 2, ss 31 and 32.
 These were often United Nations operations (e.g., “Order Placing Members of the Canadian Forces on Active Service (Yugoslavia)”, SI/92-42). NATO sponsored international operations such as the Stabilization Force in the Former Republic of Yugoslavia (SFOR) or the international Security Assistance Force (ISAF) in Afghanistan, could rely upon the Active Service-NATO OiC.
 By virtue of QR&O 15.02(3) an entitlement for voluntary release does arise where an officer or NCM is not on active service by reason of an emergency and: (1) is entitled to an immediate annuity under the Canadian Forces Superannuation Act, RSC 1985, c C-17; or, (2) completes a Fixed Period of Service. Also, an officer cadet may seek release under ‘release item 4(c)’ where the officer cadet “… will otherwise be reverted to the rank from which he was promoted to officer cadet …”. This regulatory provision, enacted by the Governor in Council, appears to restrict, or alter, subs 30(1) of the NDA. I do not propose to explore this issue in the present article.
 Mitchell v The Queen,  1 QB 121n (CA), per Lord Esher, MR, cited in Dunn v The Queen,  1 QB 116. Technically, Mitchell v The Queen was an unreported judgment from 1890 that was relied upon in Dunn v The Queen.
 NDA, n 2, s 14.
 Financial Administration Act, RSC 1985, c F-11, s 7, 11, and 11.1.
 Gallant v The Queen in Right of Canada (1978), 91 DLR (3d) 695; see also, Mitchell v The Queen, n 11.
 Manuge v Canada,  3 SCR 672; Manuge v Canada, 2013 FC 341; Cross v Sullivan,  OTC 614; Meggeson v Canada (Attorney General), 2012 FCA 175; Heyder v Canada (Attorney General), 2019 FC 1477.
 McClennan v Canada (Minister of National Defence), 2002 FCT 244; Bissonnette v Canada, 2007 FC 281; Gligbe v Canada, 2015 FC 1265; Gligbe v Canada, 2016 FC 467; Gligbe v Canada, 2017 FC 311 to name but a few examples.
 The most common terminology used in this administration is ‘release item’. I suggest this arises from the formulation of the Table to QR&O article 15.01. The Table identifies ‘Items’ by number, which coincides with a descriptive ‘category’ – e.g., ‘Release Item 1’ is described by the category ‘Misconduct’.
 Murray Brewster, “Commons committee demands service record change for LGBTQ kicked out of the Forces”, (25 October 2016), online: CNC News <https://www.cbc.ca/news/politics/lgbtq-military-discharges-1.3820957>.
 Murray Brewster, “Canadian military was warned of reservist’s hard-right online ties by allied intelligence agency”, (9 December 2020), online: CBC News <https://www.cbc.ca/news/politics/myggland-rangers-armed-forces-far-right-soldiers-odin-1.5831273>.
 See also Wagner v Canada (Attorney General), 2017 FC 801 [Wagner].
 NDA, n 2, s 139, 140.1 and 141; QR&O arts 104.02 and 104.08.
 Murray Brewster, “Ranger who backed far-right groups to be dropped from reserves within weeks, says commander”, (10 September 2020), online: CBC News <https://www.cbc.ca/news/politics/ranger-canadian-forces-far-right-1.5717949>
 NDA, n 2, s 139; QR&O 104.02.
 Wagner, n 20, para 17. Technically, contrary to what McVeigh J suggested when she stated that “Item 2(a) is the release item that corresponds to civil convictions resulting from serious offences”, release under Item 2(a) does not require conviction for a ‘serious’ offence.
 Id, para 56.
 Id, paras 47, 49, and 50.
 Criminal Code, RSC 1985, c C-46, s 2, ‘serious offence’.
 Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], paras 91 to 98.
 Arguably, the issue of ‘military nexus’ was settled in R v Reddick, 1996 DMAC 393 [Reddick]. This appeared to be questioned (in passing obiter) by the same court in R v Nystrom, 2005 CMAC 7 [Nystrom]. However, the CMAC clearly applied Reddick favourably in R v Royes, 2016 CMAC 1 and R v Déry, 2017 CMAC 2 (neither of which mentioned the obiter comment in Nystrom). Nevertheless, the issue of ‘military nexus’, in the context of section 11(f) of the Canadian Charter of Rights and Freedoms, was again raised in Beaudry v R, 2018 CMAC 4. Arguably, this issue was finally laid to rest in R v Stillman, 2019 SCC 40 [Stillman].
 Rizzo & Rizzo Shoes Ltd. (Re),  1 SCR 27, 41.
 However, this supposed policy document is not publicly available, which, for a public policy document, is problematic.
 NDA, n 2, s 33.
 NDA, n 2, s 18.
 NDA, n 2, s 129(2).
 Technically, the investigation should collect bot inculpatory and exculpatory evidence. However, it would not be unreasonable to suggest that the focus of the investigator(s) will be on inculpatory evidence.
 Murray Brewster, n 22.
 Canadian Charter of Rights and Freedoms, s 2(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 91(24) [Charter].
 The issue of the independence of military judges has been a recurring theme throughout 2020. That issue will be addressed by the Court Martial Appeal Court of Canada (CMAC) in a series of joined appeals that will be heard on 29 January 2021: R v Leading Seaman Edwards, CMAC-606; R c Capitaine Crépeau, CMAC-607; R c Artilleur Fontaine, CMAC-608; R v Captain Iredale, CMAC-609.
 Stillman, n 29, para 100 and 101.