Disclosure of Personal Information Under Op HONOUR

It appears that the leadership of the Canadian Forces (CF) – and presumably the civilian and military legal advisors who support that leadership – have concluded that there are different ‘classes’ of persons within the CF when it comes to protection of personal information.

On August 1^st, 2019, The Maple Leaf – an ‘in-house’ publication of the CF – published an article entitled: Gap Closed on Information Disclosure to Complainants of Sexual Misconduct.

It’s a short article, but the contents of the article merit repeating here (if only for the sake of clarity):

One of the consistent observations made by victims who reported sexual misconduct is that they were not being informed about administrative actions imposed on those that had caused them harm. This issue was also highlighted in the Office of the Auditor General’s (OAG) Fall 2018 Report on Inappropriate Sexual Behaviour – Canadian Armed Forces, which noted that “due to obligations in the Privacy Act, in many cases, the chain of command did not tell victims whether administrative actions had been taken and why.”

Recognizing the importance of keeping victims of sexual misconduct fully informed throughout the complaint and investigation process, the CAF has worked with privacy experts to address this issue.

As a result, commanding officers can now provide victims with information about the outcomes and conclusions of administrative reviews related to their complaint, as well as administrative actions imposed by the chain of command on the person who caused them harm. This approach is consistent with what is already done in cases of harassment.

The process amendment reflects the principles of procedural fairness, while still maintaining important privacy protections. For example, the CAF will not disclose information about actions/measures that include highly sensitive personal information, such as medical or psycho-social assessments or treatment.

This important amendment will have a positive impact on victims and is part of the CAF’s ongoing efforts, through Operation HONOUR, to better support those affected by sexual misconduct.

The CAF has informed personnel of this process change through internal means. Details about its application have also been noted in the Operation HONOUR Manual and the Sexual Misconduct Incident Management Decision Tree, two essential guidance documents that help leaders respond appropriately to incidents and support victims. Commanding officers are also encouraged to contact the Sexual Misconduct Response Centre whenever they need advice on providing support to those affected by sexual misconduct.

I have to admit – this comes as a bit of a shock and a surprise to me.  It does, however, reinforce my own belief that senior CF decision-makers are increasingly turning to administrative measures to punish respondents of Op HONOUR-related complaints, notwithstanding protestations by those same decision-makers that ‘administrative measures’ are not punishment.

Permit me to explain.

Processes under the Code of Service Discipline are generally public.  Some aspects or processes may be shielded from public view (and, therefore, public scrutiny) for reasons of national security or for the protection of witnesses or complainants.  However, as a general rule, the processes are public.  The charges are public.  Military tribunals proceed in public.  The results are public and are expected to be published.  Whether an accused is found guilty or acquitted, this information can be, and often is, publicized.  That said, it appears that CF public affairs personnel are much more ‘active’ in announcing when charges are laid, and when an accused is found guilty, than when an accused is acquitted.  Perhaps they consider a finding of guilt more newsworthy than an acquittal.

The public nature of the Code of Service Discipline is vital to accomplishing many of its goals.  For example, it would be difficult to achieve the sentencing objectives of general deterrence and denunciation if conviction and sentencing of offenders could not be made public.  In fact, this is one of the reasons I am perplexed that many CF units and formations appear to have ceased to publish regular ‘Discipline Returns’ or similar notifications.  I suspect that the gradual deterioration of ‘Discipline Returns’ is related to the gradual deterioration of ‘Routine Orders’.  Twenty or thirty years ago, many units would publish weekly or monthly Routine Orders and the ‘Discipline Return’ would often be part of these Routine Orders.  With increasing computerization, such mechanisms appear to have gradually gone by the wayside.

Please forgive me for pining for ‘the good old days’.

However, these regular Discipline Returns served a vital function in ensuring that sentencing objectives are met.  After all, if a commanding officer (CO) wishes to ‘send a message’ (also known as general deterrence and denunciation) to unit members when sentencing an offender at summary trial, if the unit does not publish a regular Discipline Return of some sort, how would the CO expect to send that message?  By rumour mill?  By carrier pigeon?

But I digress.

The aforementioned Maple Leaf article tends to support a suggestion that I have made earlier that senior leaders appear to be gradually abandoning the Code of Service Discipline as the principal punitive tool under Op HONOUR, and have demonstrated a preference for administrative measures as an alternate form of punishment.

Senior CF decision- and policy-makers are typically quick to assert that administrative remedial measurements are not punishments.  However, that is increasingly difficult to accept where a respondent to an Op HONOUR complaint is subject to significant administrative action (i.e. compulsory release) where the respondent is either acquitted by a military tribunal or, as is increasingly the case, is not even tried by a military tribunal.

One need only examine the statistics presented by the Chief of the Defence Staff in his ‘Progress Reports’ to see that the number of ‘administrative responses’ to complaints far outstrips the ‘disciplinary responses’.

Could it be that the chain of command is demonstrating a lack of confidence in the Code of Service Discipline and is instead resorting to administrative measures as punitive sanctions?  After all, there’s no right to elect trial before a constitutionally independent military judge when confronted by an Administrative Review by Director Military Career Administration (DMCA).  In fact, if a respondent were subject to an adverse decision by DMCA, the respondent would first have to exhaust the internal CF grievance process before he (or she) could seek judicial review before a constitutionally independent judge of the Federal Court.  Of course, by then, the respondent would likely have been released by the CF – and, based upon the track record of the CF grievance process, the release would likely arise several months, or even years, before the grievance process was exhausted.

But fear not intrepid CF leaders, salvation is on its way in the form of Bill C-77.  Once the as-yet-to-be-drafted regulations are in place, you will be able to punish personnel based upon a reduced burden of proof and without having to tolerate that pesky right to elect trial by court martial.  Until that time, I suspect that you’ll have to continue to use administrative measures as an alternative to the Code of Service Discipline.

Which is where the recent announcement in the Maple Leaf is relevant.  The problem with administrative measures is that they are, by their nature, personal information.  And, as most CF leaders are aware, personal information is protected under the Privacy Act.

Section 7 of the Privacy Act states:

7 Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be used by the institution except

(a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose; or

(b) for a purpose for which the information may be

disclosed to the institution under subsection 8(2).

Sub-section 8(1) prohibits the disclosure of this information without the consent of the person to whom it relates:

8 (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.

However, subsection 8(2) provides for a series of exceptions to this general rule.

Typically, if a CF member is subject to an administrative punishment – oops, administrative measure … a thousand pardons – that information cannot be shared with anyone other than those whose duty it is to administer such … measures.

According to the recent Maple Leaf article, “… commanding officers can now provide victims with information about the outcomes and conclusions of administrative reviews related to their complaint, as well as administrative actions imposed by the chain of command on the person who caused them harm.”  This is purportedly consistent with “… what is already done in cases of harassment.”

Leaving aside the unavoidable question (if that is what is done in cases of harassment, why doesn’t the CF simply apply its existing harassment policy?), not much explanation is provided regarding why commanding officers are permitted to share such information.  Nor is there much direction concerning the scope and nature of what may be shared.

The Maple Leaf article states that personnel have been “… informed … of this process change through internal means. Details about its application have also been noted in the Operation HONOUR Manual and the Sexual Misconduct Incident Management Decision Tree …”.  However, upon perusing the Op HONOUR Manual, I have not found much in the way of express direction on sharing a respondent’s personal information with the complainant.  Nor is there any mention of any constraints placed upon the complainant regarding what she (or he) may do with that information.

Here’s my overarching concern regarding this announcement: it is unlikely that the respondent of an Op HONOUR complaint will have a clear notion of the scope of his (or her) personal information that is being shared with other people, particularly people who might wish to use that information – potentially in an improper fashion – against him or her.

Notwithstanding that the Op HONOUR Manual asserts that “… COs must deal with disciplinary and administrative issues in a firm, fair, consistent, and transparent manner with particular emphasis on exercising personal empathy, discretion and a genuine commitment to promoting the welfare of personnel and their families …”[1], the policy direction is obscure concerning the extent to which the respondent’s personal information will be protected.  After all, CO are unlikely to review the Privacy Act and any relevant judgments pertaining to the protection of personal information.  They tend to rely on policy manuals for such guidance.

Consider this example from labour law in Quebec: an employer can share the result of an administrative action to deter others, providing the employer does not identify the specific employee. But the employer must protect the “reputation, honour and dignity’ of the employee.[2]   Although members of the CF are not ‘employees’ in the normal sense of that term – “… a person who joins the Forces enters into a unilateral commitment in return for which the Queen assumes no obligations …”[3] – a key purpose of protecting a respondent’s personal information is to protect that person’s reputation, honour and dignity.

Even if one accepts that complainants have a legitimate interest in knowing what happened to their complaints, there is a marked difference between informing a complainant that a complaint was founded and (generally) that appropriate administrative action was taken, and disclosing to a complainant all the specific details of the respondent’s career affected by the complaint.  Moreover, there must be safeguards to ensure that the information provided to the complainants is provided only to them.  There must necessarily be meaningful and enforceable constraints that, if the complainants share, publish or use the information in any proceedings, or for any additional purpose, they then expose themselves to sanctions by the ‘employer’.  Just as the CF has a duty to protect the complainant’s personal information and reputation, the CF has a duty to protect a respondent’s reputation where the administrative sanction is used (as CF decision-makers continue to assert) to assist the respondent in correcting his (or her) deficiencies.

In light of this recent announcement, I suggest that, where a respondent is subject to administrative measures arising in the context of an Op HONOUR complaint, he (or she) would be well served by requesting, in writing, confirmation from his (or her) CO specifying what personal information is being conveyed to the complainant (or any other party) and what constraints (if any) have been placed on the use, communication, or other dissemination of that information.  The respondent could also request from the CO, again in writing, the specific legal justification or authority upon which the CO relies in disseminating that personal information.  In doing so, the respondent may not (initially) be able to prevent the improper disclosure of his (or her) personal information.  However, he (or she) will at least have a better idea of what is being disclosed and may be able, subsequently, to hold public actors accountable for any improper disclosure of personal information.  The CO may very well refuse to provide such written confirmation.  I suggest that such a response, itself, is indicative of the dubious merit of any such disclosure.

The Maple Leaf article asserts that the CF “…  has worked with privacy experts to address this issue.”  Presumably, these ‘privacy experts’ were staff in the Directorate of Access to Information and Privacy (DAIP) and the legal advisors in the Office of the Department of National Defence and Canadian Forces Legal Advisor (DND/CF LA), specifically, the Public and Labour Law (PLL) section.  Presumably, the policy decision-makers have obtained written legal advice in support of their policy position or action.

In my experience, senior CF policy- and decision-makers will often ‘reinforce’ their position by asserting that they have legal advice that supports their actions.  There’s always the risk of a ‘generous’ application of such legal advice to the extent that the eventual policy decision may not precisely align with the predicate legal advice.  However, one thing is often invariable: that legal advice remains a solicitor-client confidence.

That’s what distinguishes legal advice from, say, a judgment of a constitutionally independent judge.  Anybody who has the support of a lawyer can obtain legal advice.  It’s not public, nor is it binding.  It’s legal advice.

A judgment of a court is binding, and it’s public.

So, I tend to take pronouncements from government decision-makers that their position is supported by comprehensive legal advice with a grain of salt.

Now, it could be possible for the legal advisors in DND/CF LA to disclose the content of their advice so that it may be subject to public scrutiny.  Obviously, they would not be permitted to disclose a solicitor-client confidence without the permission of their ‘client’.  Their statutory client is the Department of National Defence and Canadian Forces, represented by the Minister of National Defence.  The Minister (or the Deputy Minister[4]) could permit the disclosure of that legal advice.

After all, if they are that confident that the advice is solid and defensible, they should not be afraid of a little public scrutiny of said advice.  That way, both members of the CF, and members of the public who are interested in fairness and the rule of law in the administration of the affairs of the Canadian Forces, would have an opportunity to discuss and debate important privacy issues.

If the policy position is well supported at law, you shouldn’t be reluctant to expose the legal basis of the policy to the cold light of public scrutiny.  So, go on – I dare you.

In fact – I triple-dog-dare you.

[1] The Operation HONOUR Manual (interim Edition), July 2019, article 3.22.

[2] Durand c Hydro-Québec, 2002 CanLII 37538 (QC CS).

[3] Gallant v The Queen (1978) 91 DLR (3d) 695, 696.

[4] Interpretation Act, RSC 1985, c I-21, para 24(2)(c).

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