Criminal Law Case
R v Bourque, 2020 CM 2008: The Rule of Law Applies to the Chief of the Defence Staff
July 21, 2020

Chief of the Defence Staff Announces Retirement

 

The Chief of the Defence Staff (CDS) stated in his letter of 23 July 2020 that he would “… relinquish command of the Canadian Armed Forces …” when the government identifies his successor.  As I have stated before: words have meaning.  He did not state that he would retire.  The word ‘retire’ does not appear anywhere in his one-page letter to, among others, the members of the Canadian Forces.  However, according to some reports, the present federal government has indicated that they “… formally refused …” to forward General Vance’s name as a nominee for the Chair of NATO’s Military Committee.  Consequently, it does appear that he will retire from the Canadian Forces.

General Vance has much for which he should be proud.  First, he has served Canada and the Crown for four decades, and for over five years as the CDS.  He has dedicated his entire adult life, thus far, to the service of Crown and country.  Those are remarkable achievements in themselves.  He served, twice, as Commander of Canada’s contribution to NATO’s efforts in Afghanistan, the second time replacing a General Officer who was removed from Command for misconduct.  By any objective measure, he has certainly projected an image of resolute leadership.

As Murray Brewster mentioned in a LinkedIn post accompanying his online article on 23 July 2020, “… There will be lots of parsing of [his] legacy in the coming days, weeks and months …”.  Many pundits have already started, and initial criticism regarding that legacy has focused on his handling of what may be termed the ‘Norman Affair’.  Some critics, including another retired General Officer, Andrew Leslie, have indicated that they were not happy with the way Vice-Admiral (retired) Mark Norman was treated[1].

Certainly, there remain many questions about the motives and thought processes of the Prime Minister, the Minister of National Defence, and General Vance regarding the actions taken against Vice-Admiral (retired) Norman.  And not all those questions will likely be answered, including the full nature of General Vance’s role in what unfolded.  Back in January 2017, a public affairs officer, speaking on behalf of the CDS, informed the media that (then) Vice-Admiral Norman was ‘relived from performance of military duty’.  However, as it turned out, it appeared that the public affairs officer either misstated what the CDS had done, or, his comments truly reflected the CDS’ intent, but the content of the CDS’ order was deficient.

That announcement (and the CDS’ underlying action) demonstrated a theme that has been repeated throughout the CDS’ tenure: either a misunderstanding of basic principles of law relating to how a public actor must make decisions, or a troubling disregard for the rule of law.

Many people understandably focus on General Vance’s ‘military accomplishments’.  And he has certainly impressed many with his leadership style.  However, for someone like me, whose professional and academic focus is on public and administrative law, the CDS’ tenure as a statutory decision-maker – because that is what the CDS ultimately is – has raised several problematic issues.  And the most significant is his creation of Op HONOUR and the unfair and unreasonable decision-making this initiative has engendered.

Back in 2017, I suggested that General Vance demonstrated at least three goals that I characterized as his ‘Legacy Objectives‘: (1) his mission to eliminate sexual misconduct in the CF under Op HONOUR; (2) his intention to ‘fix’ the problems at Royal Military College of Canada; and, (3) his desire to ‘fix’ the legislative and policy structure regarding the impact of universality of service on wounded members of the CF. I contend that Op HONOUR was, and is, his primary ‘Legacy Objective’.  Certainly, we can anticipate that it will be the focus of much future ‘parsing’ of his legacy (to borrow the term applied by Murray Brewster).

Undoubtedly, many people will take the position that sexual misconduct cannot be tolerated in the CF and must be eradicated.  That is a logical position to take, and one that I share.  However, that laudable objective does not justify unreasonable or procedurally unfair decision-making by statutory actors, and that is largely what the CDS has engendered in his Op HONOUR policies (or operations orders) and rhetoric.

Under Op HONOUR there has been a discernable shift away from using the Code of Service Discipline to enforce discipline, toward using administrative processes.  I subscribe to the theory that the Code of Service Discipline is but one tool available to the chain of command to instil the habit of obedience in subordinates and to ensure the “… the discipline, efficiency and morale of the military …”, which was of central concern in judgments like R v Généreux, [1992] 1 SCR 259, R v Moriarity, 2015 SCC 55, and R v Stillman, 2019 SCC 40.  Administrative measures have their place within the broader paradigm of military justice, even if the JAG and her predecessors have consistently defined ‘military justice’ as equating solely to the Code of Service Discipline.  (And, this narrow construction of ‘military justice’ was a minor part of the legislative reform presented in Bill C-77.)

But regardless of the mechanism used to hold someone accountable for alleged sexual misconduct, it must be procedurally fair and it must produce reasonable decisions that are justifiable based upon reasoned decision-making, responsiveness, demonstrated (and not presumed) expertise and outcomes that are contextually reasonable and appropriate: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.  This threshold constitutes what many scholars are refer to as the ‘culture of justification’ in public and administrative law.

Ideally, the relevant decision-making will also be sufficiently transparent.  As Justice O’Connor stated in his report in the Arar Inquiry: “… [o]penness and transparency are hallmarks of legal proceedings in our system of justice. Exposure to public scrutiny is unquestionably the most effective tool in achieving accountability for those whose actions are being examined and in building public confidence in the process and resulting decision.”[2]  And, as demonstrated with the Arar inquiry, that transparency is not limited solely to criminal or Code of Service Discipline proceedings.

Fairness, reasonableness, and unbiased open-mindedness can be described as the basis of the ‘golden rule’ of statutory decision-making.  It’s also good leadership.  But we have not consistently seen these characteristics arising in Op HONOUR decision-making.

As I have indicated in previous Blog articles (here, here, and here) based upon the CDS’ leadership and direction, CF decision-makers have increasingly turned their back on using the Code of Service Discipline for disciplinary purposes – particularly regarding Op HONOUR – and have relied instead on administrative mechanisms to punish alleged wrong-doing.  This has also often led to the ‘terminal’ solution of compulsory release.  The most common tool that these CF decision-makers have used has been the Administrative Review process under Defence Administrative Order and Directive (DAOD) 5019-2.  While this process can be useful for making certain administrative decisions, it is woefully inadequate for making findings of fact where there is conflicting or contentious evidence.  These ‘paper hearings’ are insufficient for adjudicating disputed facts, yet they have become the principal tool for meting out justice under Op HONOUR.

The recurring shortcoming of these processes is the seeming presumption of guilt whenever a complaint is made.  A material example of this presumption – and the accompanying presumption that adverse action against the accused/respondent will always be necessary – is the problematic Sexual Misconduct Incident Management Decision Tree, promulgated by the CDS.  This Decision Tree, constructed as a flowchart, appears to oblige adverse action by the chain of command in all cases.  A conclusion that a complaint is not founded or that action is not required, does not appear to be available to the decision-maker.

Requiring proof and unbiased adjudication of evidence does not equate to a culture of disbelieving complainants.  Over the past several months, when I have posted Blog articles critical of the CDS’ approach under Op HONOUR, some people – including people who purport to be educated and knowledgeable – appear to misconstrue the two concepts.  Certainly, a culture in which complainants are discouraged from coming forward or where the statutory actors disregard or discount the complaints that they receive must be corrected.  A complaint of sexual misconduct must be taken seriously, it must be investigated, and the statutory decision-makers who seek to address such misconduct must take appropriate steps to remedy the circumstances, once a fair and reasonable determination has been made.

And it appears that I cannot stress this point enough: the actions of those statutory decision-makers must be fair and reasonable.  And it is not just the accused/respondent who benefits from fair, reasonable, open-minded, and transparent decision-making.  The complainant also benefits from those processes, as do the Canadian Forces and the Canadian public.

When critics (like myself) raise these concerns regarding the short-comings of the decision-making processes being used to address Op HONOUR complaints, the unfortunate and disingenuous response from some quarters is often expressed with the following suggestion: “If a CF member doesn’t like it, he can grieve it.”  While those exact words may not always be uttered (and I suggest that very phrase is often uttered), that is the sentiment expressed.  However, the availability of a grievance process does not justify unreasonable and procedurally unfair decision-making at first instance.  The grievance process is not a licence for the initial decision-maker to run roughshod over the rights, interests, and privileges of the CF personnel that the decision-maker is expected to lead.

A procedurally unfair or unreasonable decision may, eventually, be over-turned.  I say ‘may’ because this result does not always arise.  The subject of an unfair or unreasonable decision “… in the administration of the affairs of the CF …” must have the fortitude and resolve to grieve the decision under the CF’s statutory process.  If the grievor does not obtain a reasonable outcome in the grievance process, he or she may need to seek judicial review before the Federal Court.  This is necessary where CF decision-makers stubbornly refuse to acknowledge when they have made a mistake or that the ‘remedy’ offered in the grievance process is insufficient: Bouchard v Canada (Attorney General), 2014 FC 1231; Armstrong v Canada (Attorney General), 2018 FC 184.

Even putting aside the fact that the grievance process continues to take too long and cannot offer all potentially necessary remedies, relying on the grievance process to correct readily apparent shortcomings in decisions at first instance presents a markedly inefficient process.  And when the statutory decision is eventually over-turned, no one will be left with a satisfactory result.

Unfair and unreasonable decision-making tends to precipitate complex grievances.  This creates further workload on a system that is already inefficient and stressed by the weight of the current grievances.  In light of the increasingly politicized climate of Op HONOUR, initial and final authorities in the grievance process will be reluctant to over-turn ‘Op HONOUR decisions’ that were procedurally unfair and unreasonable.  After all, the final authority – the CDS – is the same person who created Op HONOUR in the first place.  As we can see with cases such as Bouchard (supra), an ‘entrenched’ mindset within the grievance process will tend to lead to an increase in litigation through judicial review.  That creates a financial and personal cost to the grievor and places an additional burden on the Federal Court.

Despite the fact that Op HONOUR has been around for four years, many of the grievances generated early in the process appear to still be ‘in the system’.  I anticipate that the litigation generated by Op HONOUR will likely start to materialize after General Vance retires.  This highlights the lack of accountability in the CF when senior decision-makers make unfair and unreasonable decisions.  Grievances often take several years to filter through the system, and when they are finally resolved, corrective action regarding the flawed decision-maker may not be feasible, even if there was the will to take such steps.

Consider the case of Zimmerman v Canada (Attorney General), 2011 FCA 43: It took less than 20 months, total, for the grievor’s application for judicial review to be considered by the Federal Court and his subsequent appeal to be adjudicated by the Federal Court of Appeal.  In comparison, his grievance took over 4 years to be adjudicated under the CF’s 2-tiered grievance process.  The Federal Court of Appeal eventually concluded that the decision by the CDS, as the final authority in the grievance process, was unreasonable, notwithstanding the fairly robust margin of appreciation that the courts typically granted to the CDS at that time.

By the time an error is identified in the CF grievance process (or subsequent litigation) the senior decision-maker who was responsible for the unreasonable or unfair decision will likely have moved on to a new position, sometimes by virtue of a promotion.  In any event, there is rarely, if ever, any consequence imposed on decision-makers for unfair or unreasonable decision-making that is eventually corrected within the CF grievance process.

This can lead to a culture of impunity.[3]

All of these shortcomings and inefficiencies are unlikely to instil confidence in the military community or, more broadly, the Canadian public.  It also does little to demonstrate respect for the rule of law.

The CDS is responsible for the leadership and welfare of all members of the CF.  His goal of ‘eliminating’ sexual misconduct from the CF is laudable (even if the absolute eradication of sexual misconduct represents hyperbole that is markedly unrealistic).  However, the merits of an objective do not empower the CDS, as a statutory actor and decision-maker, to ignore principles of public and administrative law, or to thumb his nose at the rule of law.  It does not justify the creation of policies or leadership attitudes that brand all respondents to complaints of sexual misconduct as malefactors or undesirables before a proper, reasonable, and fair adjudication has been made.  And, unfortunately, that is what has been transpiring.  While it may not always be the CDS who is ‘branding’ people in this manner, the direction and leadership that he has provided has led directly to the current culture of presumed guilt and the culture of impunity.

Consequently, no matter what General Vance’s other laudable accomplishments may be, when it comes to Op HONOUR and his desire to create a legacy of being ‘the CDS who stamped out sexual misconduct in the Canadian Forces’, the result has been a failing grade.  Pundits, commentators, and members of the public may respond that the opinion of a retired legal officer and practitioner and scholar of public and administrative law is neither determinative, nor even indicative, of the merit of the CDS’ efforts.  However, I contend that, when the dust settles after the resolution of the grievances and litigation that Op HONOUR has generated (and will generate), the results of those processes will highlight the misguided course that the CDS has charted under Op HONOUR.  I suggest that one of the priorities for General Vance’s successor will be to fix the problems of Op HONOUR in order to regain the confidence of all members of the CF and the Canadian public.  The next CDS must demonstrate the respect for the rule of law that has been sorely missing from General Vance’s leadership.

 

[1] “Chief of Defence Staff to Retire”, Globe & Mail, 24 July 2020.

[2] Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations, (Ottawa: Public Works and Government Services Canada, 2006), 304.

[3] Consider an unreasonable or unfair decision by a senior officer to impose a remedial measure or other adverse administrative action on a subordinate.  Invariably, the senior officer will cite one or more rules or policies that the subordinate failed to follow or respect.  As a consequence, the senior officer will impose a remedial measure.  However, some senior officers do so in a procedurally unfair or unreasonable manner.  In other words, in correcting a subordinate’s conduct- or performance-related shortcoming, the senior officer also demonstrates a conduct- or performance-related shortcoming.  The recurring irony of grievances relating to ‘remedial measures’ and similar administrative actions is that, if such measures or actions are unfair or unreasonable and are over-turned by virtue of a grievance, there are typically no consequences for the initial decision-maker.  This creates a remarkable double-standard and CF leaders are deluding themselves if they believe that junior CF personnel do not notice every time this arises.

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