Bill C-66 – Initial Observations

21 March 2024

 

I’ll be brutally honest: I was tempted to entitle this Blog “Bill C-66 is a ‘hot mess’”.  But I opted for a more pedestrian, and less pejorative, title.  This is my first comment on Bill C-66 – An Act to Amend the National Defence Act in this Blog.  It won’t be my last.  With time, I will delve into the contents of the proposed legislation in greater detail.  For the moment, I will try to offer a view from “30,000 feet” and pose some questions that merit further reflection.

I contend that Bill C-66 is not the solution that some might suggest.  And the principal reason why it isn’t a solution is because it fails to address the central issue that has undermined the maintenance of discipline, efficiency, and morale in the CF in relation to sexual misconduct.  And the reason that Bill C-66 – and so many other initiatives that have arisen of late – have missed the mark is because the problem isn’t sexual misconduct.

And before anyone loses their mind over that statement, I will reiterate what I have indicated previously on several occasions.  Sexual misconduct is not the core problem; it is a manifestation – and a serious one at that – of a failure to correct the core problem.  And it is not the only manifestation.

The core problem is a lack of accountability among the senior leadership of the Canadian Forces (CF).  Consequently, Bill C-66, which focuses principally on ‘sexual offences’[1] will miss the mark, because it is focused on a symptom, not the disease.

The “talking points” presented by senior CF spokespersons at a technical briefing held today referred to four factors or elements that Bill C-66 is supposed to address (and I may not have captured the specific articulation verbatim):

1. Jurisdiction of sexual offences that arise (or are alleged to have arisen) within Canada;
2. A response to the ‘independent’ inquiries by former Justices Fish and Arbour;
3. Modification of elements introduced into the National Defence Act (NDA) by Bill C-77; and
4. Modification/Implementation of factors relating to SOIRA and Publication Bans.

 

I won’t divide my discussion into these categories.  First, there is a degree of overlap among these factors in light of the fact that the principal purpose of Bill C-66 is to remove investigative and prosecutorial jurisdiction of sexual offences from the Code of Service Discipline where such offences are alleged to have arisen within Canada.  Second, this characterization of the key issues or elements obfuscates what the proposed amendments actually do and, perhaps more crucially, what they won’t accomplish.

Instead, I propose to address the following issues:

1. The lack of concrete data or evidence to support the conclusion that these amendments will improve the application of the Code of Service Discipline and the maintenance of discipline, efficiency, and morale in the CF;
2. The ‘Myth’ of the benefit of greater “independence”;
3. The incongruity of the proposed amendments and the purpose of the Code of Service Discipline to maintain the discipline, efficiency, and morale of the CF; and
4. The lack of clarity and safeguards regarding the implementation of these changes.

 

I will conclude with what I believe should be the focus of effective culture change in the CF.  But let’s start with the purpose of the Code of Service Discipline.

 

Purpose of the Code of Service Discipline

The purpose of the Code of Service Discipline is to maintain the discipline, efficiency, and morale of the Canadian Forces.  I am confident in making this statement because the Supreme Court of Canada (SCC) has told us that this is the purpose of the Code of Service Discipline in R v Généreux, [1992] 1 SCR 259 and in R v Stillman, 2019 SCC 40.  And, for good measure, Parliament tells us the same thing at s 55 of the NDA.  And for greater clarification, Parliament has indicated that this “… relates to the discipline, efficiency and morale of the Canadian Forces even when those persons are not on duty, in uniform or on a defence establishment.” (NDA, subs 55(2))

This is a very broad proposition and one that the SCC has upheld.

So why is the current government, the leadership of the CF, and the Judge Advocate General of the Canadian Forces (JAG) apparently abandoning this principle (if only in part)?

And if you think I am being melodramatic, sit back and consider what follows.

The Code of Service Discipline is not a tool for the JAG, or military lawyers generally, or the military police.  It is a tool for the chain of command of the CF to maintain discipline, efficiency, and morale within the CF.  And when the leadership fails to use this tool properly – which means to say effectively, timely, and reasonably – the fault does not lie with the tool.  It lies with the operator.

If a CF member is equipped with a C-7/C-8 rifle and cannot hit the broad side of a Figure 11, is our first inclination to conclude that the rifle is faulty, or will we at the very least consider that the fault might lie with a CF member who is failing to apply the principles of marksmanship?  And if the rifle is not faulty, what is the proper recourse?

And, if we are willing to accept that operator error could well be to blame for the failure to use a C-7/C-8 effectively, why are we so hesitant to apply the same logic to the Code of Service Discipline?

 

Where is the evidence?

We have consistently been told by select observers that the Code of Service Discipline is not “fit for purpose” to prosecute sexual offences.  Presumably, the military police are not “fit for purpose” to investigate such offences.

At today’s “technical briefing”, the JAG, BGen R. Holman, was quick to challenge the premise that Bill C-66 represents an acknowledgement or a suggestion that the Code of Service Discipline cannot be trusted for the investigation and prosecution of sexual offences.  Instead, according to the JAG, it was about clarity of what process will be used – namely the civilian criminal justice system.

And that stated position is consistent with some of what was suggested in the Third Independent Review of the NDA by former Justice Morris Fish (the “Fish Report”) and by former Justice Arbour in her Report of the Independent External Comprehensive Review (the “Arbour Report”).  However, there have also been clear indications – including in those reports – and even in the Orwellian Joint Statement by the Director of Military Prosecutions (DMP) and the Canadian Forces Provost Marshal (CFPM) on 5 November 2021 that some people have lost confidence in the capacity of the CF to investigate and prosecute sexual offences.  Certainly, that sentiment is repeated regularly in news media and social media.

So, it isn’t just about ‘clarity of process’.  And, even if it is principally about clarity of process, why should such clarity be offered only for sexual offences and not any other criminal offences?  Why is it objectionable that the Code of Service Discipline might have concurrent jurisdiction over sexual offences arising in Canada, but its not objectionable for concurrent jurisdiction over other serious offences, such as aggravated assault or assault causing bodily harm?  What if such offences are motivated by racist views, antisemitism, or other highly objectionable motives?  Why is the Code of Service Discipline fit for that purpose?

And, frankly, the justification that Bill C-66 is specifically (and narrowly) focused on specific recommendations in the Arbour Report and the Fish Report isn’t sufficient.  That simply highlights the piecemeal, ad hoc approach that is being taken.  It contradicts the need for a comprehensive approach to reform, if, in fact, legislative reform is what is required.

And where is the evidence that resort solely to the civilian criminal justice system will improve the maintenance of discipline, efficiency, and morale of the CF?  The investigation and prosecution of sexual offences have been referred to civil authorities for the past two years – or, at least, in November 2021, the (then) MND directed that this was to happen.  What were the results of those referrals?  Where is the data?

I will say this: the more notorious prosecutions before civil courts of criminal jurisdiction did not seem to resonate with success.

If I am correct, that the principal fault is a failure of leadership, then I suggest that this approach reduces the opportunities of the CF leadership to take meaningful steps to maintain discipline, efficiency, and morale.

Consequently, Bill C-66 has the appearance not of meaningful, considered, and deliberate reform with a view to improving the maintenance of discipline, efficiency, and morale in the CF, but, rather, it resembles a knee-jerk reaction by a government that is flailing about for a ‘good news story’.

 

Myth of independence

One of the principal examples of ‘sleight-of-hand’ or ‘smoke and mirrors’ in Bill C-66 is the suggestion that greater ‘independence’ for DMP, the CFPM (to be renamed, the Provost Marshal General or PMG), and Director Defence Counsel Services (DDCS), will improve the confidence that we can have in the military justice system.

If Bill C-66 becomes law, all three of these statutory actors will be appointed by the Governor in Council.  Presently, DMP and DDCS are appointed by the Minister[2], and the CFPM is appointed by the CDS.  In addition to being appointed by the Governor in Council, these three statutory actors will receive their direction from the Minister of National Defence.  At present, DMP takes his ‘marching orders’ from the JAG and the CFPM takes his ‘marching orders’ from the Vice Chief of the Defence Staff (VCDS).  And the NDA expressly stipulates what form that direction may take, as well as the obligation that it must be public.

Additionally, DMP and DDCS will each be appointed for terms of 7 years, which cannot be renewed.  The CFPM – or what I will refer to as the CFPM/PMG – will be appointed for a period of up to 4 years (and, since the legislation is silent on re-appointment, this appointment could presumably be renewed).

There are some other factors, such as the requirement for the CFPM/PMG to submit an annual report to the Minister and must do so within 3 months of the end of the fiscal year.

A lot of questions arise from these proposals:

• Why would DMP and DDCS be appointed for 7 years? Why not 5?  Or 10?
• Why then, can the JAG, who purportedly superintends military justice, be appointed for only up to 4 years, but can be reappointed?
• Why do DMP and DDCS benefit from a specific statutory process regarding their removal, but the JAG apparently serves at the pleasure of the Governor in Council?
• Why does the CFPM/PMG have a 3-month deadline for an annual report, but the JAG, who is habitually late with such reports, does not have any deadline?
• And, since there is no apparent consequence if the CFPM/PMG fails to meet that deadline, how much of a deadline is it? And, absent any direction regarding the content of such a report, how significant is it?
• Why must the PMG be a General Officer when the CF Military Police Group (CF MP Gp) at present only has one colonel (plus the CFPM)? Will this invite rank creep within the CF MP Gp?
• And, since, the investigative functions of the military police will be reduced rather significantly, doesn’t that tend to suggest that an increase in rank is less justified?

 

Here’s the thing: we have seen little, if any, evidence of problematic decision-making from DMP and the CFPM arising from interference by the chain of command.  There is no evidence of which I am aware that the JAG has interfered with DMP’s functions or that the VCDS has interfered with the CFPM’s functions.

On the other hand, we have seen some problematic issues arise both in the investigation and the prosecution of sexual offences that were driven by factors that are not addressed by Bill C-66, and conceivably could not be address directly by legislation.  There were leaks of military police investigations of General Officers.  Not only do we not know why and how those leaks occurred, there is little indication that there has been any effort to get to the bottom of those leaks.  And Bill C-66 won’t address that issue.

And, while there is a process for submitting “military police conduct complaints”, when the Professional Standards section of the CF MP Gp takes two years to complete relatively straightforward investigations, how much confidence can we have in such investigations?

There have been problematic prosecutions brought where we eventually learned that there was not a reasonable prospect of conviction.  Those did not arise due to improper influence by the JAG or the chain of command.

Frankly, the only thing that Bill C-66 would appear to address in this regard is the improper direction that the Minister of National Defence appeared to give directly to DMP and the CFPM back in November 2021, even if the current MND insists that such direction was never given.

But, does the fact that it now falls to the Minister to give direction to DMP and the CFPM/PMG give us greater confidence in their exercise of their functions?  Or are we now concerned about undue political interference in such functions?

Presumably, the lengthy appointment of DMP (7 years), combined with a prohibition against re-appointment, is to give the public confidence that DMP will not be unduly influenced by the prospect of reappointment in the performance of his or her functions.  Presumably, we can be take comfort in the presumption that he (or she) won’t tailor prosecutorial decisions to satisfy his (or her) political masters.  However, the officer occupying that position may still have other ambitions.  The potential for influence by political factors remains.  And nothing in Bill C-66 will insulate prosecutorial decisions from the glare of media scrutiny, even if that scrutiny might not always be objective or informed.  And only a naif would conclude that news media criticism did not influence prosecutorial decision-making over the past few years.

In other words, this greater ‘independence’ that is supposedly provided by Bill C-66 is not a solution to any existing problem.  It does, however, give rise to further questions.

If DMP is no longer accountable to the JAG – and Bill C-66 essentially makes DMP accountable to the Minister and the Governor in Council – how, precisely, will the JAG superintend military justice?  And why does DMP benefit from statutory mechanisms regarding removal from his position, but the JAG does not?

As for the CFPM/PMG, if the military police will no longer investigate allegations of sexual misconduct arising in Canada (which is a significant percentage of their current functions) and if the CFPM/PMG (and through him, the military police) are no longer subject to direction from the chain of command regarding their policing duties, why do we even need military police?  Why not have civilian “National Defence Police” or assign the task to the RCMP?  We could simply have a “force protection” service to perform the ‘tactical’ or ‘field’ or ‘non-police’ functions of the military police such as handling Prisoners of War (PW), route security, and force protection.

Again, Bill C-66 reeks of a narrow, ad hoc perspective that does not reflect a comprehensive, logical, or meaningful approach to reform.

 

Incongruity with the Purpose of the Code of Service Discipline

In cases like Stillman, DMP fought hard to maintain broad jurisdiction over all (or almost all) Criminal Code offences under the Code of Service Discipline.  Indeed, in Stillman, the SCC handed down a judgment that (with a degree of tautological legerdemain) defined “offences under military law” as all offences under the Code of Service Discipline, even if those offences are actually Criminal Code offences and not unique military offences (Stillman, paras 82 to 113).  The rationale behind DMP’s position was found in Généreux, and was reinforced by Parliament at s 55 of the NDA.

The rationale was that any breach of criminal law, regardless of when and where it arose, and regardless of the identity of the victim, was a breach of military discipline, and warranted prosecution under the Code of Service Discipline to the extent permitted by Parliament.  Gone was the ‘military nexus test’.

With Bill C-66, however, the Code of Service Discipline will be stripped of jurisdiction for all sexual offences.  And whether one subscribes to the position that the Code of Service Discipline cannot be trusted with sexual offences, or chooses instead the position suggested by the Minister and the JAG that this provides ‘clarity’ of jurisdiction, the overall rationale remains incongruous.

Why can the Code of Service Discipline be trusted with offences that are not sexual in nature?  Alternatively, why is there no need for clarity regarding offences that are not sexual in nature?

I am waiting for a coherent answer – and ‘for clarity’, a disingenuous suggestion that the government and CF are focusing on sexual offences because that is what Madam Arbour focused on, does not offer a coherent explanation that is consistent with the purpose of the Code of Service Discipline.

I suggest that any answer to this question is ‘uncomfortable’.  And it is uncomfortable because it is not grounded in logic or evidence.  The answer is, essentially, “… because we said so”.  The answer is that a segment of the Canadian population has vociferously asserted that jurisdiction should be removed from the Code of Service Discipline, just as, a generation ago, a segment of the Canadian populace vociferously asserted that jurisdiction should be granted to the Code of Service Discipline, giving rise to Bill C-25.

Presumably, in another generation, we’ll revisit this issue again when Bill C-66 and any of its progeny prove to be ineffective.  And Bill C-66 will be ineffective because it is not addressing the core problem.

 

Lack of Clarity and Safeguards

Bill C-66 isn’t a solution.  However, it will certainly give rise to problems.

If it is enacted, military police will have markedly less exposure to the investigation of sexual offences.  Military prosecutors and military defence counsel will have less experience prosecuting, and defending against, such allegations.  Military judges will have less experience presiding over courts martial concerning such offences.

But, since jurisdiction for allegations arising outside Canada will remain, they will still be called upon, respectively, to investigate, to prosecute, to defend, and to preside over such charges.  It’s just that they will do so with less experience.

Does anyone realistically believe that will improve the maintenance of discipline, efficiency, and morale of the CF?

Now that investigation of sexual misconduct (which arises in Canada) will largely be removed from the chain of command and any ‘force multipliers’ that the chain of command might otherwise employ or upon which they might rely, they will be hampered in their leadership functions.  Arguably, they will be given a handy excuse to delay taking action, or to take limited action.

And it remains unclear how any action the chain of command might take, whether under the non-penal Military Justice at the Unit Level (MJUL) or under statutory processes described in Defence Administrative Orders and Directives (DAOD) – such as DAOD 5019-2 Administrative Review or DAOD 5019-4 Remedial measures – would be deconflicted with civilian investigation and prosecution of such offences.

Indeed, the problem with the co-ordination of such disparate processes was one of the principal reasons why sexual offences arising in Canada were brought within the jurisdiction of the Code of Service Discipline a generation ago.

I did not hear any compelling suggestions from CF spokespeople today regarding measures to ensure that an accused’s rights under various statutory processes would be safeguarded when disparate processes are employed by markedly different statutory actors.  And, contrary to what the JAG suggested, these are not case-by-case issues.  The CF chain of command has repeatedly demonstrated a lack of familiarity with, and understanding of, procedural safeguards, even when those safeguards are described clearly in policies (which are often not read by the statutory decision-makers who employ them).

That is why we encountered statutory decision-makers who, under the previous version of the Code of Service Discipline, improperly denied accused a right to elect trial by court martial.  That is why we have had CF decision-makers attempt to prosecute service infractions and service offences using remedial measures under DAOD 5019-4.  That is why we have grievances that are as old as some CF recruits.

And what if a civilian prosecutor chooses not to prosecute a sexual offence, as arose in R v MacPherson, 2022 CMAC 8, aff’g 2021 CM 2014?  Would the CF then try to prosecute allegations as disgraceful conduct under s 93 of the NDA?  Despite the so-called clarity offered in Bill C-66, would an accused still be subject to venue-shopping when the glare of media scrutiny again turns to the CF?

There is one thing of which I am fairly certain: CF members who are alleged to have committed sexual offences within the performance of their military functions, or within a military environment, are going to spend tens of thousands of dollars on counsel who may, or may not, have adequate knowledge of the military environment.  Most, if not all, of these accused will likely not be entitled to legal aid in support of their access to justice.  If they want the sort of quality representation that is provided by counsel like Major Ferguson at Defence Counsel Services, they will pay out of pocket.

And I cannot help but think that is one of the unstated objectives of the proposed legislation.  If one of the goals is to increase the rate of conviction (and it is debatable that an increase in a conviction rate represents an improvement of justice), then increasing barriers to access to justice is one way to accomplish that.

 

What is the Problem?

The problem is not the Code of Service Discipline – or, more specifically, the legislative basis of the Code of Service Discipline.  The problem is not the tools that are available to CF leaders.  The problem is a failure of leadership, and a failure to hold leaders accountable.  Junior CF personnel are routinely admonished in administrative and disciplinary processes for a failure to uphold CF Values and Ethics.  The same is not true for senior leaders.

Unfortunately – and ironically – some CF statutory decision-makers (aka “leaders”) have failed to uphold CF Values and Ethics when punishing subordinates for purportedly failing to uphold CF Values and Ethics.

And this isn’t just about sexual misconduct.

A CF leader who fails to consider and determine a grievance in a timely fashion undermines the discipline, efficiency, and morale of the CF.

A senior leader who misemploys remedial measures undermines the discipline, efficiency, and morale of the CF.

A senior leader who fails to investigate leaks of military police reports undermines the discipline, efficiency, and morale of the CF.

A senior leader who refuses to acknowledge that military police subordinates failed to perform their duties properly, even in the face of a report from the Military Police Complaints Commission (MPCC) supporting such a conclusion, undermines the discipline, efficiency, and morale of the CF.

A senior leader who permits the contravention of an accused’s rights under the Code of Service Discipline undermines the discipline, efficiency, and morale of the CF.

A senior leader who pursues a prosecution that does not have a reasonable prospect of conviction undermines the discipline, efficiency, and morale of the CF.

And senior leaders who have acted improperly, who have failed to act properly, or who have tolerated improper actions, have often not been held accountable.  That leads to impunity.  And that undermines the discipline, efficiency, and morale of the CF.

And that is the problem.

And Bill C-66 won’t fix it.

 

[1] I will use the term “sexual offences” to describe the offences listed at Clause 7 of Bill C-66.  It would rapidly become burdensome to refer to “criminal offences of a sexual nature that will be included in the exceptions under section 70 of the National Defence Act”.  I trust that you will not object to the use of “sexual offences” as a much more manageable descriptor.

[2] And what I know of the processes used in support of those appointments does not fill me with confidence in Ministerial processes.  To be clear, that comment does not reflect on the officers appointed as DMP and DDCS.  I know both of those officers, and they have demonstrable accomplishments.  Rather, my concern is about how those selection processes were applied.  And for the sake of transparency: I was not an applicant for either process.