Admiral McDonald and Procedural Fairness in the Canadian Forces
[Editorial Comment: Regular readers of this Blog will be aware that the content of this Blog typically relates to legislation, policies, processes, and practices pertaining to the Canadian Forces and their application to the statutory decision-making that governs the administration of the affairs of the Canadian Forces. My commentary not infrequently draws upon my experiences advising and representing members of the Canadian Forces. This can provide practical examples of the of the application of the above-mentioned legislation, policies, processes, and practices. Thus, even where I examine and discuss matters in the abstract, I remain able to offer actual examples of application – or misapplication – of the same. However, I do not tend to use this Blog to advocate for a specific client.
That doesn’t mean that I am forbidden from doing so. It is my Blog after all. Although the discussion that follows focuses specifically on factors arising over the past (approximately) nine months in relation to allegations brought against Admiral Art McDonald, I suggest that there are broader lessons that can be learned from these experiences, that merit discussion. However, in doing so, I will be transparent that I am offering commentary regarding matters that arose with a client, and which have attracted a not insignificant amount of public attention, and speculation.
Therefore, Dear Reader, you can draw your own conclusions regarding the reliability and merit of the observations and commentary that follows. You would certainly not be faulted for concluding that I present below a less-than-impartial discussion of these matters. I am not a neutral observer. However, as you will note in the discussion that follows, there has been a paucity of neutral, objective, and impartial commentary in this matter, and that, I suggest, is part of the problem.]
On 25 November 2021, the Prime Minister announced that General Wayne Eyre was appointed Chief of the Defence Staff of the Canadian Forces. The Prime Minister’s announcement did not mention Order in Council 2021-0964, issued by the Governor in Council, that removed Admiral Arthur McDonald from the position of Chief of the Defence Staff. The Prime Minister’s announcement made no mention of Admiral McDonald. And, consistent with how Admiral McDonald had been treated by the government that selected him as Chief of the Defence Staff, no one from the government reached out to contact Admiral McDonald to inform him of this decision or announcement prior to the press release communicating the Prime Minister’s announcement.
This was not unexpected in light of misinformation surrounding the allegations against him. Admiral McDonald has consistently maintained his innocence in relation to those allegations, and the absence of any charge – under the Criminal Code or the Code of Service Discipline – is demonstrative of the lack of merit to the allegations.
It had been Admiral McDonald’s intention to serve Canada and Canadians, faithfully, as he has served for the past 36 years, in the role of Chief of the Defence Staff. However, it is clear that, despite the absence of merit of the allegations against him, the speculation and occasional misrepresentation of evidence in this matter, ensured that it was unlikely that he could ever return to the duties to which he was appointed in January 2021.
Order in Council 2021-0964, which removed Admiral McDonald from the position of Chief of the Defence Staff, intimated that his conduct, in defending his reputation, somehow did not “… bear the closest public scrutiny …”. However, the façade of ‘procedural fairness’ that the Governor in Council attempted to convey in the Order in Council should not be exaggerated. The principal operative paragraph in the document is the last paragraph, in which the Governor in Council exercises the broad and unfettered discretion that Parliament has granted it under section 18 of the National Defence Act to appoint (or remove) an officer from the ‘at pleasure’ appointment of Chief of the Defence Staff. Such broad discretion does not require procedural fairness, and the steps enumerated in the Order in Council should not be mistaken for meeting the content of fairness that would be required from such a decision, if procedural fairness were required. Instead, it should be taken for what it is: a politicized fiction that Admiral McDonald has been treated fairly.
Admiral McDonald was unreasonably vilified in public, tried in the ‘court of public opinion’, and subjected to unanswered speculation over the past nine months. There was very little advocacy within the government or in the Canadian Forces for a fair and reasonable treatment of these allegations. There were some superficial statements made regarding procedural fairness and the need to avoid ‘witch-hunts’. However, when the desired outcomes did not arise for select people, the importance of procedural fairness appeared to be forgotten quickly. Disingenuous statements were made. When the Canadian Forces National Investigation Service (CFNIS) announced in early August that no charges would be laid, Admiral McDonald first learned of the news from journalists. That has become the norm, for Admiral McDonald, and for other senior officers accused of wrongdoing. Thus, Admiral McDonald was left on his own to advocate his innocence.
As no charges were laid against Admiral McDonald, he was provided no disclosure of the Military Police investigation against him. It appears that elements of this investigation were shared with a variety of people, including the complainant. It was also alleged that portions of the investigation were leaked to the news media. Admiral McDonald was obliged to seek information under the Privacy Act.
We eventually received a copy of the Military Police report concerning the allegations that precipitated the sequence of events over the past nine months. Despite a timely request under the Privacy Act, the Department of National Defence failed to satisfy this request in a timely manner or within the limitation period imposed under the statute. Despite the fact that elements of the investigation had apparently been shared with the complainant, and possibly leaked to the news media, Admiral McDonald had to wait three months after his request under the Privacy Act, for any information. And the information he did receive was heavily, and potentially unreasonably, redacted.
Requests under the Privacy Act must normally be satisfied within 30 days. That provides sufficient time to locate the pertinent records. If the Department wishes to redact information to suit their own purposes or to meet other obligations, that must be done within this limitation period. Shortly after the Admiral’s Privacy Act request was made, Departmental officials in the Directorate of Access to Information and Privacy (DAIP), which falls under the responsibility of the Deputy Minister, asserted a rote excuse to trigger a unilateral extension under paragraph 15(1)(a) of the Privacy Act. Their unsubstantiated claim was that “… the original time limit would unreasonably interfere with the operations of the Department.” They offered no objective explanation regarding what that interference was or could be. However, the Department was not really obliged to substantiate their claim, as there is no effective means of challenging it in a timely manner.
Based upon this unilaterally revised deadline, the Department had until 19 October 2021 to satisfy the request. When that deadline passed, and no disclosure was offered, we queried the ongoing delay. We were informed that DAIP had only just received the relevant records and had not yet reviewed them for redaction. To be clear: it apparently took the Canadian Forces Provost Marshal (CFPM) and his Access to Information and Privacy team two months to locate a Military Police report, that was well known to them, and recommend redactions.
On 21 October 2021, we queried when we could expect the requested information. We were informed that the disclosure would be satisfied within two weeks. That ‘new’ deadline came and went without the request being satisfied. On 8 November 2021, we were then informed that the request would be satisfied by the end of that week. That did not happen. It was eventually satisfied late in the afternoon of 19 November 2021, one month after the expiry of the unilateral deadline asserted by the Department under the Privacy Act.
The report that we received appears to have been redacted in an unreasonably excessive and unwarranted manner. Over half the information was redacted, including over 100 pages of investigative material that were redacted in their entirety. There will inevitably be redactions of information, even when Military Police reports are disclosed for prosecutorial purposes under R v Stinchcombe,  3 SCR 326. Some personal information, pertaining to other people, must necessarily be redacted. Any legal advice contained in the reports may be redacted. However, it is clear from the redactions that information pertaining to the allegations against Admiral McDonald (i.e., his ‘personal information’ as defined under the Privacy Act) was redacted by the Department. This is not justified redaction.
Nevertheless, the heavily redacted information that was provided confirmed that, of 38 witnesses interviewed by the Canadian Forces National Investigation Service (CFNIS), not one corroborated the complaint against Admiral McDonald that he pushed the head or face of a third person into the chest of the complainant. Contrary to the assertions broadcast by Corus Entertainment/Global News, there was no corroboration that Admiral McDonald perpetrated that act. What the heavily redacted disclosure conveyed was that the allegations against Admiral McDonald, which pertain to alleged events from over 10 years ago, lacked merit. That is why no charges were laid.
An innocent man was accused of wrong-doing and tried in the court of public opinion.
In what can be described as unprecedented, the CFPM made public statements about whether Admiral McDonald could be considered to have been exonerated by the absence of a charge. In my experience, I have never encountered a head of a law enforcement agency make such a public statement about a specific matter in which his organization has expressly declined to lay any charges. In so doing, the CFPM disingenuously cited the practices of Statistics Canada (Stats Can) as a basis for asserting that it would be incorrect to suggest that the allegations against Admiral McDonald lacked merit or that Admiral McDonald was exonerated.
One of the problems with the CFPM’s statement is that he appeared to suggest that the Stats Can definition of ‘unfounded’ represented some form of decision-making threshold under criminal or disciplinary law. It does not. It is a definition used to categorize allegations for statistical purposes. In particular, it is applied to allegations of sexual assault, intimate partner violence, and other offences with nuanced complexities. The details can be found here:
The new definition of ‘unfounded’ was established in January 2018. This was shortly after the Globe and Mail ran its ‘Unfounded’ series and after a recommendation, in February 2017, by the president of the Canadian Association of Chiefs of Police (CACP). The term ‘unfounded’ is used to determine ‘incident clearing status’. In other words, it is applied when a law enforcement agency receives a complaint and must determine whether and investigation will ensue and how it will be treated.
An allegation can be ‘cleared’ for a variety of reasons. It can be ‘cleared’ when a charge is laid, regardless of whether there is an eventual finding of guilt. It can be ‘cleared’ when charges are recommended but declined by the Crown. It can be ‘cleared otherwise’ if the subject of the investigation (the ‘accused’) dies or there are other reasons why a charge or prosecution might nor proceed, such as diplomatic immunity, committal to a mental health facility, or the subject is outside Canada. An allegation is ‘not cleared’ where the investigation is still open, there is insufficient evidence to proceed, or the complainant declines to proceed.
As should be clear from the foregoing and the Stats Can website, the concepts of ‘unfounded’, ‘founded’, ‘cleared’, or ‘not cleared’, are not determinations guilt or even the merit of a potential prosecution. These are characterizations for statistical purposes. To be blunt, if a bit cynical, the shift in statistical terminology was driven, in part, by a desire to categorize the investigation of complaints to permit law enforcement agencies to demonstrate that they took the allegations seriously and conducted adequate investigations.
One of the consequences is that a larger number of allegations are now characterized, for statistical purposes, as ‘founded’. However, these conclusions are not indicative of the merit of evidence gathered by the law enforcement investigators. An allegation that satisfies the ‘incident clearing status’ of ‘founded’ could result in an extensive investigation that identified no additional inculpatory evidence. This would eventually be characterized as ‘not cleared (insufficient evidence to proceed)’.
The CFPM did not offer any clarification of his assertion. The CFPM asserted that ‘unfounded’ would be defined as “’After a police investigation it is concluded that no violation of the law took place nor was attempted.” In other words, the CFPM asserted that, to characterize a complaint as ‘unfounded’, there would have to be ‘evidence of a negative’ – evidence that the alleged offence did not take place.
That is disingenuous where the Military Police rather clearly were focused on inculpatory evidence. Further, here’s what the definition of ‘founded’, adopted in January 2018, states:
“An incident is founded if, after police investigation, it has been determined that the reported offence did occur or was attempted (even if the charged/suspect chargeable (CSC) is unknown) or there is no credible evidence to confirm that the reported incident did not take place. This includes third party reports that fit these criteria.”
Thus, an allegation would be considered ‘founded’ even if no alleged perpetrator could be identified. It is possible that someone did what the complainant alleges. But it certainly wasn’t Admiral McDonald. Nor did he witness that incident.
In the reporting on this matter, there was an intimation that Director of Military Prosecutions (DMP) recommended against the laying of charges, and that is why the CFNIS declined to lay any charges. It would not be a conceptual stretch to suggest that the commentary on that factor could appear to ‘blame’ military prosecutors for the fact that charges were not laid. That too is an incomplete and disingenuous explanation.
First, the prosecutors who function under the supervision of DMP advise on the laying of charges. Their advice is not binding. A charge layer who believes the complainant and believes that he or she has evidence to substantiate each element of an alleged offence may lay a charge. But the CFNIS did not lay a charge.
A charge layer might decline to lay a charge where the prosecutor has indicated that he or she does not believe there is a reasonable prospect of conviction, but that does not bind the discretion of the charge layer. Ultimately, it would be disingenuous to suggest that the CFNIS did not lay a charge solely because of the advice of military prosecutors. Also, notwithstanding the significant redaction of the information provided to Admiral McDonald, the summary of the report indicates that “… CFNIS investigators conducted a detailed review of the file and it was determined that the evidence did not support the laying of any charge in relation to the complaint …”.
But perhaps the most disingenuous aspect of the CFPM’s unprecedented remarks is that he appeared to ignore the assertion by the complainant and by Global News that the allegations against Admiral McDonald were corroborated by other witnesses. Based upon the investigation by the CFNIS – at least, the limited portions that have actually been provided under the Privacy Act – no one corroborated the allegation that Admiral McDonald pushed anybody’s head or face into the complainant’s chest. The person who was allegedly pushed did not corroborate those allegations. Nor did the duty officer. The CFPM publicly challenged Admiral McDonald’s contention that, in light of the very low threshold to lay a charge, the absence of a charge is indicative of exoneration. However, the CFPM appeared to ignore a public mischaracterization of whether other evidence corroborated the allegations.
The reporting by Global News included intimations that civilian prosecutors would have proceeded with a prosecution. That is dubious.
Charges have been laid on weak evidence, both in the military justice system and the civilian criminal justice system. A ‘zero tolerance’ approach to both sexual assault and intimate partner violence has led to charges being laid where the evidence is weak and there is a marginal prospect of conviction. Frankly, prosecutors – military or civilian – would rather run a weak prosecution and fail, than be accused of failing to take such matters seriously. The fact that no charges were laid in this matter is a significant indicator of the frailty of the evidence available to the CFNIS and DMP.
A charge-layer or a prosecutor must avoid usurping the role of the ‘trier of fact’. Although the threshold to lay a charge is slightly less onerous than the determination of a ‘reasonable prospect of conviction’, they are sufficiently similar that they can be grouped together for the purposes of this discussion. The job of the charge-layer and prosecutor is not to weigh the evidence in terms of guilt; their job is to determine whether there is sufficient admissible evidence to prosecute the matter. The charge-layer will ask him- or herself: “Do I have admissible evidence in support of each element of the offence?” The threshold for laying a charge is quite low. If the CFNIS believed the complainant, notwithstanding the absence of corroboration, they could have laid a charge, under the Code of Service Discipline or under the Criminal Code. They did not.
So, in response to the CFPM’s disingenuous assertions: (1) If you believe the complainant and she has provided credible evidence in support of each element of an offence, then you had the grounds to lay a charge. (2) If you aren’t going to lay a charge, then at least have the integrity to acknowledge not only that you do not have evidence to lay a charge, but that the relevant threshold is particularly low. (3) If you are going to challenge Admiral McDonald’s assertions of innocence, when you are unwilling to lay a charge, then demonstrate the integrity to acknowledge when others have misrepresented the evidence that was gathered.
The manner in which these allegations have been conveyed publicly, including certain disingenuous statements by select officials, made it impossible for Admiral McDonald to resume the duties of the Chief of the Defence Staff. Throughout his career, he has endeavoured to do what is best for the Canadian Forces, its mission, and its personnel. Unfortunately, in light of the toxicity arising from speculation and misinformation, his continued standing as Chief of the Defence staff caused consternation among both Canadian Forces personnel and the Canadian public. Presumably, then, his continued standing as the Chief of the Defence Staff was untenable for the Governor in Council (or to be blunt: the Prime Minister), who has appeared to consistently assert that support for complainants, victims, and survivors must trump even procedural fairness and reasonable decision-making. This has led to an unfettered exercise of power – an Order in Council removing Admiral McDonald from the position of Chief of the Defence Staff. Although this broad, unfettered discretion is largely arbitrary, Parliament has granted the Governor in Council such power under the National Defence Act.
Admiral McDonald has contended that the public vilification of his character is both unreasonable and unwarranted. No doubt, this statement has caused some people – many of whom have pre-judged him based upon little or no evidence, and certainly without the benefit of a fair process – to decry his lack of compassion for victims and survivors. On the contrary, throughout his career, he sought to support personnel who have faced misconduct and abuse of power. However, his support of survivors does not oblige him to admit to allegations against him that are not true, or to accept conclusions drawn based upon unfair and unreasonable processes.
There is a lesson in this matter. ‘Trial by media’ is a markedly deficient substitute for the proper, reasonable, and fair functioning of public powers conveyed under statute. Where select reporters purport to assume the mantle of both advocate as well as judge and jury, we cannot reasonably expect a balanced and thorough examination of relevant information. This is particularly true when relevant information is excluded or misrepresented. The merits of the Code of Service Discipline and Service Tribunals have come under criticism over the past months, often based upon vague and largely debatable assertions. However, courts martial, conducted before constitutionally independent military judges, where evidence can be examined and tested by prosecutors and defence counsel, is markedly more balanced, fair, transparent, and reliable than the ‘Trial by Media’ that we have seen unfold over the past several months. At a time when the military justice system is at a crossroads, we would all do well to draw lessons from how this matter has unfolded.
On 1 November 2021, when he responded to a letter from the Privy Council Office, Admiral McDonald indicated that he continued to believe resolutely that we must support complainants, victims, and survivors of misconduct. We do so through continued support of, and improvement to, the mechanisms by which allegations of wrongdoing are investigated and, where there is evidence to support the allegations, prosecution before a competent court or tribunal. We do so by creating additional mechanisms designed to support victims and survivors and to aid them in overcoming any harm incurred. And we support our personnel through procedurally fair, and evidence-based statutory decision-making.
We must guard against a chilling effect that would impair the reporting of misconduct by complainants and survivors. But we must also guard against a chilling effect on any person’s right to make full answer and defence to allegations. And we need ensure that, once allegations have been investigated, the results of due process are respected. No public institution – particularly one predicated upon the unique Crown-soldier relationship – can be governed with an absence of procedural fairness, a lack of transparency, or based upon arbitrariness. Decision-making by public actors must be governed by reason, evidence, and open-minded analysis. And public comments by authorities must carefully balance these needs if ours is to be a fair and just system.
Uncertainty and consternation arose from the Canadian Forces having a Chief of the Defence Staff (who was placed on indeterminate leave by Order in Council), and an Acting Chief of the Defence Staff, bearing equivalent rank, left in command of the Canadian Forces. This could have been avoided had a modicum of respect been extended to Admiral McDonald by a variety of actors.
When Admiral McDonald first, voluntarily, stepped away from his duties as Chief of the Defence Staff in February 2021, it was a consequence of a discussion that he had with the Chief of Staff for the (then) Minister of National Defence. When the allegations came to light, the Minister did not extend the courtesy of meeting with Admiral McDonald. Instead, he sent his Chief of Staff. This same person was subsequently interviewed by CFNIS investigators, who attempted to glean from him information about how Admiral McDonald reacted to the news. In addition to such information having highly dubious probative value, it demonstrates how, from the outset, Admiral McDonald was marginalized.
Admiral McDonald voluntarily stepped away from his duties as Chief of the Defence Staff. He did so to respect the complainant’s opportunity to bring the complaint forward. He did so to respect the investigative process. By stepping away from his duties, he minimized, to the extent possible, any potential fettering of the process. This permitted witnesses to come forward and be interviewed. It permitted the CFPM and his CFNIS investigators to perform their functions without the subject of the investigation performing the duties and functions of the Chief of the Defence Staff. He remained silent throughout the investigative process. Not only is that the right of any subject of a criminal or disciplinary investigation, but he also avoided making any statements that could have a chilling effect on the investigation involving him, or any other senior officer.
Admiral McDonald also remained silent throughout the recent federal election. He made limited public commentary, and only after he was patently, and repeatedly, ignored by the Prime Minister and Minister of National Defence, while also being vilified in news reporting.
The CFNIS investigation appeared to be completed before the end of April 2021. Yet, it was not until 6 August, over 3 months later, that the CFNIS announced that there was insufficient evidence to lay a charge. And, just as Major General Fortin learned of the referral of an investigation to a civil prosecutor, Admiral McDonald first learned of this decision from the media, and not from an official of the Department or the Canadian Forces.
After that announcement was made, no one reached out to speak with Admiral McDonald. Not the Prime Minister. Not the Minister. Not the Acting Chief of the Defence Staff. Not even the Minister’s Chief of Staff. They had surely been briefed on that outcome long before the announcement was made to the media. The following week, when Admiral McDonald tried to contact the Prime Minister, his calls were consistently declined. Eventually, a junior staffer contacted Admiral McDonald’s counsel and simply instructed the Admiral to wait.
At no point, throughout the past 9 months, has the Prime Minister, or either the former or current Minister of National Defence, demonstrated the courtesy of speaking with Admiral McDonald personally. They did not do so on 25 November 2021 either. Instead, Admiral McDonald was informed of the Order in Council, removing him from the position of Chief of the Defence Staff, by an email from the Deputy Secretary to the Cabinet, Senior Personnel and Public Service Renewal, who sent the email after the Prime Minister issued a press release announcing that General Eyre was appointed the new Chief of the Defence Staff (and which did not mention Admiral McDonald).
I might not be the Prime Minister or a Minister of the Crown, and I did not reach General Officer rank, but, during my service in the Canadian Forces, if I had occasion to remove someone from a position or take other adverse action under powers granted by Parliament under the National Defence Act, I would have had the decency, integrity, and leadership to have met with them face to face to do so (or, if a personal meeting were not feasible, I would have contacted the other person directly). Nothing barred the Prime Minister or the Minister of National Defence from contacting Admiral McDonald. The fact that he retained counsel does not bar such action. Indeed, legal officers of the Office of the Judge Advocate General routine ‘remind’ civilian legal counsel, retained by Canadian Forces personnel, that nothing bars the ‘chain of command’ from speaking directly with subordinates regarding the administration of the affairs of the Canadian Forces.
Had the Prime Minister or Minister of National Defence extended the courtesy due any senior public official, particularly a Flag Officer who had dedicated his entire adult life to the service of our country and our armed forces, this could have been handled in a much more dignified manner.
Doubtlessly, various social media platforms have been abuzz with various comments about Admiral McDonald, including spurious comments predicated upon the limited and untested information that has been presented to the public. For my part, I truly hope that people making such comments do not find themselves the subject of untrue allegations or the subject of ‘trial by media’. It can be a pernicious experience.
However, as I say, there are lessons that can be derived from this rather public drama regarding the administration of justice in the Canadian Forces.
The more notorious matters involving senior officers reflect similar defects regarding the fairness and reasonableness of decisions affecting more junior personnel. Granted, there are fewer instances of actual ‘Trial by Media’ arising in matters affecting more junior personnel; however, there is still tangible evidence of the driving desire by statutory decision-makers to be ‘seen to be doing something’, regardless of whether it is fair or reasonable for the CF member affected by the decisions.
There remain repeated examples where CF statutory decision-makers have avoided using the Code of Service Discipline for disciplinary matters, and have, instead, relied upon administrative measures in order to deliver a similar punitive effect. They thus employ mechanisms that are ill-suited to adjudicative purposes involving contested evidence. They do so in a manner that is not transparent. The affected CF members have limited recourse to challenge the decisions and the principal recourse – the CF grievance process – remains inefficient and sub-optimal in terms of fairness. And I contend that this is done to avoid the inevitable scrutiny by constitutionally independent judges that would arise at court martial. Similarly, the accused or respondent will not benefit from a robust and professional defence offered by the counsel at defence counsel services.
The importance of procedurally fair, reasonable, transparent, and evidence-based decision-making cannot be over-stated. The importance of a reasonable and practical means of testing disputed evidence is vital for effective and fair decision-making, whether in an ‘adversarial’ disciplinary or criminal process, or an ‘inquisitorial’ administrative process. A complainant (or, if you wish – a victim or survivor) must have an unfettered opportunity to bring a complaint forward, regardless of who the respondent might be. And the respondent must be given an opportunity to make full answer and defence. This requires adequacy of disclosure of the allegations and the ‘case to meet’. It required a robust and fair process before an unbiased decision-maker. And the content of fairness must be commensurate with the impact on the person’s rights, interests, and privileges.
Frankly, none of these lessons are new. There is no need to ‘learn’ these lessons. They are all well established public law principles.
So why does it so often appear that the Canadian Forces have a recurring need to learn these lessons?
I wish the new Chief of the Defence Staff, General Wayne Eyre, well. However, the ‘unsolicited advice’ that I offered his predecessor on 7 January 2021, and the principles underlying that ‘advice’, applies to him as well. While a lot has happened in the intervening 10+ months, not much has changed.
 Queen’s Regulations and Orders for the Canadian Forces [QR&O], art 107.03; DMP Policy Directive 002/00 – Pre-Charge Screening, dated 1 March 2000, updated 1 September 2018. See also, QR&O, art 107.11.