An Example of Decision-Making on a ‘Balance of Probability’ Under Op HONOUR
In a previous post, I explained some of my misgivings about the reduced burden of proof for the ‘Summary Hearing’ process that will be introduced to the Code of Service Discipline (CSD) under Bill C-77, when that legislation eventually comes into force. I take the position that the reduced burden of proof is inappropriate for a punitive disciplinary system; it is not just inappropriate from a policy perspective – it contravenes basic protections under the Canadian Charter of Rights and Freedoms (Charter). Moreover, the senior leadership of the Canadian Forces (CF) has already demonstrated that it is particularly inept at properly applying the civil burden of proof in situations that allege blameworthy conduct by a member of the CF. In a future Blog post I will discuss how the Code of Service Discipline has been misrepresented as analogous to professional regulation regimes. However, this post will focus on why I am greatly concerned about any significant decision-making by senior CF decision-makers where those decisions are purported to be based upon the civil burden of proof – a ‘balance of probabilities’.
An examination of how Director Military Career Administration (DMCA) conducts Administrative Reviews (AR) under Defence Administrative Order and Directive (DAOD) 5019-4 is illustrative of my misgivings.
As the reader can likely appreciate, AR concerning Op HONOUR-related misconduct are very much in fashion these days. One might conclude that, the volume and frequency of such AR would contribute to: economies of scale; greater proficiency on the part of CF decision-makers and their staff; and, greater procedural fairness arising from increased familiarity with the legal obligations imposed on such decision-makers. Regrettably, such a conclusion would be misplaced.
A brief examination of Op HONOUR-related AR illustrates that such decision-makers and their staff tend to produce boiler-plate analysis of little or no value and certainly no substantive fairness or reasonableness. Indeed, referring to such a process as ‘boiler-plate analysis’ misuses the term ‘analysis’ and is likely insulting to ‘boiler-plate’ staff-work generally (and I am not someone who typically speaks of boiler-plate staff-work in a complimentary fashion).
I provide below a complete excerpt from a recent AR conducted under the authority of DMCA, relating to alleged misconduct that contravened the ubiquitous (but poorly understood) Op HONOUR. The excerpt includes the entirety of the ‘Analysis’ and ‘Recommendation’ portions of the AR. In order to protect the privacy of both the affected CF member, and any complainant, I have replaced any identifying information with ‘X’. It did not take me very long to remove any identifying information, which is indicative of the extent of the ‘boiler-plate’ approach by DMCA staff.
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.
IAW DAOD 5019-4, the standard of conduct for a CAF member is based on established military standards, ethics and values identified in regulations, orders, instructions and policies. The standard of performance for a CAF member is applicable to the CAF member’s current rank, military occupation, experience and position. CAF members are required to meet the applicable standard of conduct.
IAW DAOD 5019-5, sexual misconduct consists of, among other things, an act that is either sexual in nature or committed with the intent to commit an act or acts that are sexual in nature. Sexual misconduct destroys basic social and military values and undermines security, morale, discipline and cohesion in the CAF. It also reflects discredit on the CAF and is therefore not tolerated by the CAF.
IAW DAOD 7023-0, DND and the CAF are integral parts of our democratic society and must reflect and practice the values of that society. Fundamental to the effectiveness of DND and the CAF is the strength and vitality of its ethical culture. The Canadian public expects the highest level of adherence to ethical standards by CAF members.
IAW DAOD 5019-0, CAF members shall be held accountable for any failure to meet established standards of conduct and performance resulting from factors within their control. Collectively, CAF members have a core responsibility to the government and people of Canada to defend Canada and its interests and this responsibility entails its members to maintain a higher standard of conduct than any other Canadian citizen. The CoC may, when a CAF member fails to meet the expected standard of conduct, take administrative action to address any conduct or performance deficiencies considered to be unacceptable or bringing discredit to the CAF.
The CAF does not tolerate harmful and inappropriate harassment, racism and sexual behaviour. A sustained engagement on this issue is critical to our effectiveness as a military force and the continued support of the Canadian people. There are behaviours that are inconsistent with the Profession of Arms. Harmful and inappropriate sexual behaviour includes but is not limited to: actions that perpetuate stereotypes and modes of thinking that devalue members on the basis of their sex, sexuality, or sexual orientation, unacceptable language or jokes, accessing, distributing, or publishing material of a sexual nature, offensive sexual remarks, exploitation of power relationships for the purposes of sexual activity, unwelcome requests of a sexual nature, or verbal abuse of a sexual nature, publication of an intimate image of a person without their consent, voyeurism, indecent acts, sexual interference, sexual exploitation, and sexual assault.
To eliminate HISB within the CAF, the Chief of the Defence Staff (CDS) promulgated the OP HONOUR Op Order on 14 Aug 15. All CAF members have a duty to report, to the proper authority, any infringement of the pertinent statutes, regulations, rules, orders and instructions applicable to military members. Furthermore, where a complaint is made or where there are other reasons to believe that a service offence has been committed, an investigation shall be conducted as soon as practicable. Predators and bullies who act contrary to the betterment and well-being of any in our ranks are neither useful in operations nor in garrison and are not welcome in the CAF.
In considering this case, it shall be noted that the purpose of this AR is to review· the member’s conduct (not his performance). As well, the issues at stake and consequences of the decision compel the approving authority (DMCA) to provide a comprehensive decision that will be in line with the higher standard of conduct expected of CAF members by the Canadian population. To this end, the deciding authority must be convinced, based on reliable evidence that is it more likely than not that the incident occurred. The quality of the answer will depend upon the quality, the relevance, the reliability and the weight of the evidence supporting it.
It is clear from the facts presented in XXX XXXXXX’s XXXX that he XXXX XXXXXXXXXX XXXXXX XXXXX XXXX XX X XXXXXX XXXXXX. It is also clear that XXX XXXXXX was implicated in XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXXX. XXX XXXXXX’s acknowledgment of CANFORGEN 016/18 on Professional Military Conduct and subsequent conduct are troubling and indicative of someone who can not follow direction. IAW DAOD 5019-2, a CAF member is required to maintain professional standards of conduct.
XXX XXXXXX’s actions are completely unacceptable and he did not respect the dignity of all persons or show strength of character. He has demonstrated weaknesses and inappropriate behaviour that impairs his usefulness to the CAF. The member’s CO has recommended he be released under item 2(a)- Unsatisfactory Conduct.
Based on the criteria outlined in DAOD 5019-2 (paragraph 5.7) and on the direction provided in OP HONOUR, it has been determined that the most likely administrative action in this case consistent with all the applicable orders and directives would be to release XXX XXXXXX under item 5(f) – Unsuitable for Further Service. However, it should be noted that the final decision rests with DMCA who is the AA. All possible decisions for this case include:
a. Retention in the CAF and placed on C&P for a period of six months; and
b. Release under item 5(f) – Unsuitable for Further Service; and
c. Release under item 2(a) – Unsatisfactory Conduct.
I suspect that any CF member who has been the subject of an AR by DMCA for Op HONOUR-related accusations will recognize this text. In any Op HONOUR-related AR with which I have been involved, the ‘Analysis’ and ‘Recommendation’ portions of the AR are identical, save for a very brief mention of the respondent’s name and a brief accusation (typically no more than a sentence) of the alleged misconduct. It is not so much a ‘boiler-plate’ process, but quite literally a ‘cut-and-paste’ of identical text. That this is lazy staff work is undeniable. However, of greater concern to me is what this says about the fairness of the process, the reasonableness of the decision-making, and whether or not the decision-maker is even approaching this process with an open mind. After all, according to the ‘analysis’, this is intended as “… a comprehensive decision that will be in line with the higher standard of conduct expected of CAF members by the Canadian population.” Is it too much to ask that this purportedly comprehensive decision will also be in line with fundamental requirements of public law decision-making in which blameworthy conduct is alleged, and where the decision will have a significant impact on the rights, interests, and privileges of the affected CF member?
I suggest that, regardless of the staff-work being performed, the ‘analysis’ portion of any staff work is expected to do the ‘heavy lifting’. The ‘analysis’ portion is where the analyst presents arguments for and against various courses of action available to the decision-maker. In particular, the analysis should explain why the course of action that is recommended or proposed to the decision-maker is the best (or better) choice, compared to other potential courses of action. Otherwise, it’s not really analysis and the person conducting the staff work probably shouldn’t be called an analyst.
Unfortunately, ‘analysis’ is not actually what is presented in the example above or, I suggest, in any of the Op HONOUR-related AR being conducted by DMCA. Instead, CF members are being compulsorily released from the CF under adverse release items (such as Item 5f or Item 2a of the Table to QR&O 15.01) based upon a boiler-plate cut-and-paste of text, following a listing of whatever muck the DMCA analyst can dredge up against the CF member (whether or not it is reliably supported by clear, convincing, and cogent evidence). There is nothing that remotely resembles analysis or constructive decision-making in the portion of the AR that is entitled ‘analysis’.
It shouldn’t be that difficult. The CF sends dozens (if not hundreds) of officers (and NCM) on courses every year to teach them operational planning. Operational planning is essentially process-driven, evidence-based decision-making in which staff present factors (i.e. ‘evidence’) in the development of potential courses of action, and then present to a commander (a decision-maker) a briefing on which course of action is the preferred option, and why this is so. In fact, that briefing is called a ‘Decision Brief’. It’s not like decision-making under administrative law is all that foreign a concept.
If any commander were to send subordinates into harm’s way based upon an analysis of the ‘quality’ demonstrated in these frequent DMCA AR, I would truly and sincerely fear for the safety of those military personnel and would hold out little hope for mission success.
Frankly, to suggest that the AR decision-making demonstrated by the above example is a ‘travesty of justice’ gives that process more credit than it deserves.
This is because the so-called ‘analysis’ is not intended to be a true, open-minded, and comprehensive consideration of relevant factors in order to identify a procedurally fair and substantively reasonable decision. The AR is transparently intended to ensure that the CF decision-maker has included all the terms of art and jargon that the staff and decision-makers believe will insulate the decision from judicial review by a constitutionally-independent judge. They will also undoubtedly be aware that, before a CF member can seek such review, the CF member must first exhaust the laboriously slow CF grievance process, where CF decision-makers will get at least one – if not two – attempt to reverse-engineer a justification for the original decision (even if that reverse-engineered reason is markedly different than the original rationale).
That ‘alternative remedy’ will be cold comfort to the CF member who was subjected to this flawed process. The compulsory release could be effective in as little as 30 days after the CF member receives DMCA’s contrived decision. The grievance would, conservatively, take 2 to 3 years to run its course through the initial authority to the final authority. I suggest that DMCA and DMCA staff are well aware of this asymmetric reality.
This is how the CF administers justice ‘on a balance of probabilities’ presently. It is a fair assumption to suggest that this is how the ‘balance of probabilities’ will be addressed in the forthcoming ‘Summary Hearings’. Note the focus in the boiler-plate ‘analysis’: It starts with an assertion about what the ‘balance of probabilities’ means. However, it says very little about what it means to make such a decision where blameworthy conduct is alleged. And it says nothing about how the merit of evidence is to be weighed. In fact, there’s very little discussion about what it means to embark on evidence-based decision-making. There is no mention of the fact that, notwithstanding that the civil burden is lower than the criminal burden, it must still be based upon clear, convincing, and cogent evidence, and the decision-maker must still enter into an evaluation of the reliability of the evidence with an open mind.
The most worrisome aspect of this ‘analysis’ is that there isn’t any actual analysis. Out of nine paragraphs, eight are simply verbatim reiteration of general policy observations: “Misconduct is bad, and the CF has several policy statements to that effect.” Great. But what is the evidence that the CF has of an individual’s misconduct? What are the sources of that evidence, and how does it affect the reliability of it? And, equally importantly, is there contrary evidence that either refutes or calls into question the merit of the inculpatory evidence? How clear, convincing, and cogent is the evidence of the alleged wrong-doing?
Finally, based upon the reliable, clear, cogent, and convincing evidence, why is the recommended course of action the most reasonable course of action? Note that the boiler-plate ‘Findings’ are just as problematic as the ‘Analysis’. First, it starts with the presumption that there are only three possible courses of action open to DMCA. Leaving aside that the options are left to the end of the ‘Findings’ – presumably it would make more sense to identify the options at the start of this ‘analysis’ – the analyst appears artificially to limit the potential options. What about retention with a Recorded Warning? If the misconduct was already the subject of punishment under the Code of Service Discipline, perhaps it would be sufficient to rely on that punishment to correct the misconduct. After all, two of the principal objectives of punishment under the Code of Service Discipline are specific deterrence and rehabilitation. Is the analyst taking the position that the Code of Service Discipline is insufficient to maintain discipline in the CF? That is a problematic conclusion to draw. Or is it that a Code of Service Discipline conviction for minor misconduct is a convenient excuse to then recommend the disproportionately severe consequence of compulsory release?
While I clearly have several questions for DMCA regarding this mismanaged process, there are questions that are just as pressing for the Judge Advocate General (JAG) of the Canadian Forces, and her subordinates, the Deputy Judge Advocate General – Administrative Law (DJAG AL) and Director of Law – Military Personnel (D Law Mil Pers). How is it that this problematic process can continue? Granted, a flawed administrative process that leads to compulsory release of vilified CF members does not fit within their artificially narrow perception of ‘military justice’. Consequently, it would not fall within the JAG’s superintendence function under section 9.2 of the National Defence Act (NDA) – at least, not how the JAG current defines that term, and how Bill C-77 would redefine that term.
But, surely, a procedurally flawed mechanism, that doesn’t come close to providing a truly fair or substantively reasonable consideration of a CF member’s circumstances, is something of a concern for these legal advisors. In my experience, some commanders and decision-makers – far too many for my liking – tend to fall back on the rather trite defence of “… if you don’t like it you can grieve it …”. Such a response has never sat well with me, as it ignores the ethical, if not legal, obligation on a public law decision-maker to exercise his or her duties, powers, and functions in a fair and reasonable manner. The boiler-plate ‘analysis’ above speaks of the ethics and morality of behaviour expected from all members of the CF. What about the ethics and morality of procedurally fair and substantively reasonable decision-making by public law actors? Simply cutting-and-pasting the same rote paragraphs from an Op HONOUR Template does not constitute procedural fairness.
Disturbingly, based upon the prevalence of these problematic boiler-plate justifications, it appears that the JAG and her legal officers are not taking appropriate steps to ensure that these decisions, which have significant impact on the rights, interests, and privileges of many CF members, are being made fairly and reasonably.
What does this mean for the rule of law in the CF?
And what does this augur for the upcoming changes to the Code of Service Discipline under Bill C-77?