Deploying Reservists in a Crisis: The Problem with Vague and Imprecise Language

On 2 April 2020, Murray Brewster, of the CBC News, published an online article concerning the employment of members of the Reserve Force Component of the Canadian Forces (CF) (i.e. ‘Reservists’) as part of the CF’s potential response to the COVID-19 crisis.  The article, entitled “Reservists will be ready to fight COVID-19 in about a week, defence source says” raised some perplexing questions, largely due to the vague and imprecise language attributed to the CF source.  The imprecision related to supposed legal limitations or constraints.

And that should be a concern for all Canadians.

If senior CF planners and/or spokespersons do not understand the nature or extent of legal constraints and limitations, we cannot have confidence in their planning.

The concerns that I have arise from comments early in the article.  Here is what Mr. Brewster wrote in the opening paragraphs:

It will be about a week before the Canadian military has mobilized all the reservists needed to fight COVID-19 and there will be strict legal limitations on what they can do, a senior defence source tells CBC News.

The part-time soldiers, who are being converted to full-time status, will be used primarily for community-based humanitarian operations, as needed.

“This is not for enforcement stuff,” said the source, who spoke on background because of the sensitivity of the file. “There is a line between what they can and cannot do.”

Should a province require quarantine enforcement — or some kind of armed reinforcement of local police — that job would only be carried out by regular force troops, who are already mobilized and make up about three-quarters of the 24,000 personnel set to deal with COVID-19.

Under the law, members of the reserve force are not allowed to carry out armed operations on Canadian soil.

There is a lot that is either wrong or imprecise about those statements, and I doubt that it is a lack of understanding or transcription on the part of Mr. Brewster.  Rather, I believe that it is a lack of understanding by CF planners and spokespersons.  Some of those statements appear to be direct quotes taken from the CF source who spoke with Mr. Brewster.

So, let’s unpack that information.  As I have said before, words have meaning.  When senior CF officials or their spokespeople use terms incorrectly or use imprecise terms, we cannot have great confidence in their understanding of those terms.

First, the Canadian Forces doesn’t conduct “enforcement stuff”.  When the CF conducts domestic operations – which is the nature of what is discussed in Mr. Brewster’s article – there are generally three types of operations that might be conducted:

1. Public service, as defined under section 273.6 of the National Defence Act (NDA);
2. Aid of the Civil Power, as set out under sections 274 to 285 of the NDA; or
3. Assistance to Law Enforcement, which is typically conducted under the aegis of ‘public service’, but which could also be provided under ‘aid of the civil power’.

I would have thought that a “senior defence source” would have understood that.  Such confidence may have been misplaced.

I could assume that the spokesperson was describing ‘assistance to law enforcement’ as it is generally understood in the context of ‘public service’ under section 273.6 of the NDA.  I am forced to speculate.  I – and Mr. Brewster’s readers – would not have to speculate if the spokesperson had used the proper terminology.

It appears that the “senior defence source” indicated to Mr. Brewster that there is some sort of legislation – presumably statutory – that prohibits members of the Reserve Force from bearing arms in the conduct of domestic operations, while members of the Regular Force do not presumptively face that proscription.

The problem is that there is no provision in the NDA that expressly empowers members of the Regular Force to bear arms during domestic operations while precluding members of the Reserve Force from doing so.  Nor has the Governor in Council enacted regulations that expressly proscribe Reservists from bearing arms during domestic operations.

The source informing Mr. Brewster of this legal constraint was either being imprecise or, worse, was incorrect.

My field of practice as a lawyer and my field of study as a scholar focus on what can be characterized as ‘military law’.  Such imprecision or error is of concern for me.

And, frankly, it should be a concern for all Canadians.

Typically, legal officers of the CF do not give interviews about legal matters concerning CF operations.  Such interviews are conducted either by commanders (or, in some circumstances, senior members of their staff) or public affairs spokespersons.  The legal advisors of the Office of the JAG advise commanders, staff, and public affairs spokespersons.

When such persons make erroneous or imprecise statements about what can be characterized as ‘military law’, there are generally three possible reasons:

1. They have not consulted the appropriate legal advisor(s);
2. They have consulted with the appropriate legal advisor(s), but do not fully understand what the advisor(s) explained; or
3. They consulted with the legal advisor(s), and potentially understand the advice, but have chosen ‘to go a different way’.

Any of those possibilities is a cause for concern.

I have not suggested that the legal advisor(s) erred because, quite frankly, that is unlikely, provided the person or office seeking the advice presented the legal advisor(s) with all the relevant information.  The issues that could arise in such a scenario do not generally present novel legal issues for the Office of the JAG.

It might surprise some people that I would suggest that it is possible that the appropriate legal advisors were not consulted.  “Surely”, you might say, “in such circumstances a commander and staff would seek out the necessary legal advice!”  While that is a logical conclusion, it is also possible that a commander or staff might think: “Well, this is similar to other past contingency planning we have conducted for domestic operations, so we can just rely on the advice that we received for that planning.”

Even if we assume that the source who spoke to Mr. Brewster was discussing the potential for ‘assistance to law enforcement’, based upon Mr. Brewster’s article, it is unclear if the source was specifically discussing such assistance under ‘public service’ (under section 273.6 of the NDA) or within the context of ‘aid of the civil power’ (under sections 274 to 285 of the NDA).  In fact, it’s not clear if the source even understood that there is a difference between those two legislated regimes.  I assume that the source was contemplating ‘public service’.

However, regardless of the source of authority for the conduct of the anticipated operation(s), there is no express proscription against Reserve Force personnel conducting domestic operations while armed while also permitting Regular Force personnel to do so.

There may be policy reasons why CF commanders and senior staff may wish to limit who will conduct domestic operations while armed – and such policy considerations may also extend to Regular Force personnel – but there is a difference between a policy constraint and a prohibition at law.

The vague and imprecise language offered by the “senior defence source” obliges me to speculate about what he or she might have meant.

It is possible that the source was contemplating the employment of Military Police (MP) in domestic law enforcement.

Now, anyone who has read my blog is likely aware of criticism that I have raised concerning the efficiency and effectiveness of Military Police investigations, particularly in the context of Op HONOUR.  So, let’s set to one side the issue of whether employment of MP for civilian policing is a ‘good idea’, from a policy perspective.  And, lest there be any doubt, I consider that to be a ‘bad idea’.

However, I raise the issue of Military Police powers and functions in an effort to try to understand what the “senior defence source” may have been thinking when he or she offered the above-mentioned problematic statements to Mr. Brewster.

Typically, Military Police of the Reserve Force are not ‘credentialed’.  They are not issued a Military Police Badge and accompanying Military Police Identification Card.  They are therefore not in lawful possession of a Military Police Badge under QR&O article 22.02.  Consequently, they are not peace officers by virtue of article 22.02 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) and do not fall under the definition of ‘peace officer’ under paragraph 2(g) of the Criminal Code.

Even those Military Police who are ‘credentialed’ are only peace officers for the purpose of fulfilling duties under section 156 of the NDA.  Thus, when dealing with someone subject to the Code of Service Discipline, they are peace officers.  When dealing with security of a defence establishment (i.e. a building or location designated a defence establishment by the Minister of National Defence), they are peace officers.

But they are not typically peace officers when they encounter civilians who are not on or within a defence establishment.  Unless their interaction with a person relates directly to the enforcement of the Code of Service Discipline or security of a Defence Establishment, they are simply members of the Canadian Forces.  Perhaps more to the point, when they are kitted out with their MP uniform (which looks remarkably like civilian police uniforms) and sidearm, they are armed members of the Canadian Forces.

As I say, any trained (i.e. qualified) Regular Force MP will typically be ‘credentialed’.  The exception would be someone whose credentials have been suspended or revoked in accordance with QR&O article 22.04.

Most Reserve Force Military Police are not credentialed.  They may be in the MP military occupation, but they typically won’t have status as peace officers because they will not have completed the requisite training necessary to obtain and maintain the requisite qualification.  That’s understandable, as most members of the Reserve Force are not in a position to dedicate sufficient time to such training.  That said, it remains possible for an MP in the Reserve Force to conduct the necessary training to obtain and maintain the requisite qualification.

Thus, there is no legal prohibition against a Reserve Force MP obtaining Military Police ‘credentials’.  Any limitation would arise either from a policy decision or a limitation of available training time.

Granted, this brief discussion about Military Police is a bit of a digression.  However, I am trying to understand what the “senior defence source” may have meant when he or she suggested to Mr. Brewster that there is a legislated prohibition that specifically prevents members of the Reserve Force from conducting domestic operations while armed, while members of the Regular Force may do so.

And that is because there is no such legislated prohibition.

While there is a distinction between members of the Reserve Force and members of the Regular Force under ‘aid of the civil power’ – and, as I say, it is not clear whether the source was referring to ‘public service’ or ‘aid of the civil power’ – that distinction does not relate to who may carry or use weapons in the conduct of domestic operations.  If the CF is called out in ‘aid or the civil power’ by virtue of a request of an attorney general of a province (or any other government minister described at section 274 of the NDA), such a ‘call out’ does not alter the liability to serve for any member of the Reserve Force.  Section 276 of the NDA states:

Nothing in this Part shall be deemed to impose liability to serve in aid of the civil power, without his consent, on an officer or non-commissioned member of the reserve force who is, by virtue of the terms of his enrolment, liable to perform duty on active service only.

But this does not pertain to the carrying or use of weapons during the conduct of domestic operations.

So we are left to speculate about what the source really meant when he or she offered those comments to Mr. Brewster and the authority upon which he or she was relying – or, perhaps more accurately, the authority upon which the source thought he or she was relying.  My concern is that the source – and, potentially, CF planners and decision-makers – may be relying upon a misunderstanding of the advice that they received or upon advice or discussions that they had received or had when facing other, different, domestic crises.

Moreover, the discussions relating to those prior domestic crises may have focused on policy constraints, not legal constraints.  Certainly, many policy constraints are informed by, and can arise from, legal principles or considerations; however, a policy constraint is distinct from a legislated prohibition.

That brings us back to my initial point and over-riding concern: words have meaning and CF commanders, staff, and spokespersons have an obligation to understand those meanings and, in a time of crisis, convey that understanding clearly.  I suggest that, based upon Mr. Brewster’s article, that is not what has been done and that is not what has arisen.

How can we, as Canadians, be confident that CF decision-makers are complying with the law when conducting operations if the comments offered by senior CF officials are, at best, imprecise, and at worst, incorrect, about the law that governs them during those operations?

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