Discretion is the Better Part of Valour Statutory Decision-Making

Part II – Discretion and the Code of Service Discipline

 

In Part I we examined the nature of discretionary decision-making in the Canadian Forces.  Relying on the example of a ‘negligent discharge’, we looked at how such circumstances could precipitate a ‘disciplinary’ response, an ‘administrative’ response, or both.  In doing so, we examined: (a) the nature and objectives of discretion; (b) the distinction between proper constraints on discretion and the improper fettering of discretion; and, (c) potential pitfalls in the exercise of discretion.

This discussion was prompted in part by the following comment, posted on LinkedIn, by a retired CF officer, in response to my (admittedly, intentionally provocative) Blog article “Rules are for Corporals, not for Colonels”:

In this whole long rant, not once does the author provide any evidence that corporals are treated more severely for the same offence as a colonel.  A couple of points.  If a corporal had a negligent discharge on operations, it was dealt with as a summery trial.  Over in a week, $1500 fine.  If a LCol made the same mistake, it was an automatic Court Martial, might take a year to resolve, was news in the newspapers, but ultimately usually resulted in the same fine.   Advantage Corporal.   By far.  Why is the administrative process, which is completely separate from the disciplinary system become more prominent?  Because lawyers, especially civilian lawyers, fundamentally don’t understand the fact that the military system is first and most importantly a disciplinary system   and only a justice system in the most serious incidents.  Lawyers have imposed themselves into a disciplinary system so that they have essentially ruined and rendered ineffective the disciplinary system.  This is mostly seen in the ruination of the summary trial process so that even minor disciplinary charges now go to court martial.   This has overwhelmed the system so that internal unit discipline problems are no longer dealt with expeditiously.

While Part I addressed many aspects of discretionary decision-making in the context of a ‘negligent discharge’, it did not address the commenter’s assertions that:

• The ‘opportunity’ to proceed with a summary trial rather than a court martial is an advantage;
• The Code of Service Discipline is bifurcated into a ‘disciplinary’ regime and a ‘criminal’ regime;
• Lawyers – particularly civilian lawyers, fail to understand this bifurcation and that they have ‘imposed’ themselves on the Code of Service Discipline;
• The summary justice system has somehow been ‘ruined’ by lawyers ‘imposing themselves’ on the Code of Service Discipline; and
• Therefore, the summary trial system has become overwhelmed, thereby causing and/or justifying the use of administrative measures as alternatives forms of discipline.

* As I noted under Part I, when the commenter referred to a ‘justice system’ in contrast to a ‘disciplinary system’, my assumption is that his intention was to distinguish between a ‘disciplinary system’ or regime and a ‘criminal justice system’ or regime.  Certainly, that interpretation would be consistent with the context of his comments.  It is also, I suggest, a common perception (or misperception) by many CF personnel, and one that I address below.

While I do not agree with many of these assertions (or, at least, some of the presumptions that underlie them), I certainly agree that some factors in the administration of the Code of Service Discipline can be a source of frustration for many senior CF decision-makers, as evidenced by the comment above.

In Part II of this article, we will explore these issues in order to identify some of the sources of this frustration.  I contend that much of this frustration arises from a mischaracterization or misunderstanding of the Code of Service Discipline.  I also contend that, in light of some of the received wisdom upon which both CF decision-makers and some legal advisors might act, this mischaracterization is understandable.

I will explore these issues again using the context of ‘negligent discharges’ in order to illuminate these mischaracterizations.  As such, it may be useful to you, Dear Reader, to review the fact scenario and ‘variations’ provided under Part I.

 

The Nature of the Code of Service Discipline

In all variations of the ‘negligent discharge’ example that I provided, the negligence was the same: a corporal failed to handle his or her service rifle in a r proper manner (and, in at least some of those examples, a safe manner).  The error (or, misconduct, if you are so inclined) was similar in all the examples.  What differed principally was the consequence, based upon either the nature of the ammunition in use, or the impact of the bullet fired from the service rifle.[1]

From a training perspective, the deficiency was the same (or very similar).  But within the context of the Code of Service Discipline, the severity of the potential offence that could be charged varied.  It varied because of the seriousness of the consequences of the negligent handling of the service rifle.

And that leads us to a discussion of the comment, above that “… the military system is first and most importantly a disciplinary system and only a justice system in the most serious incidents.”  Presumably, what the commenter meant was that the Code of Service Discipline is first and foremost a ‘disciplinary regime’ and is only a ‘criminal justice regime’ when it is used to address more serious allegations.

The commenter does not define what he means by a ‘disciplinary system’ and how it is distinguishable from a ‘criminal justice regime’.  In fairness to the commenter, this was a comment to a LinkedIn post, and there is hardly sufficient space for a detailed comment that would define all potentially contentious terms.  It was written in response to an intentionally provocative Blog article.  As the commenter was a retired colonel, I suspect he took some offence to the contents of that article.  I do not think anyone would reasonably expect a detailed description or analysis in such a response on LinkedIn.  However, the sentiments conveyed in the comment certainly merit meaningful discussion.

I suspect that when the commenter used the term ‘disciplinary system’ he meant a system that does not require the same procedural and substantive safeguards as a criminal justice system (or, perhaps more pointedly, a civilian criminal justice system).  It would therefore be more flexible, more portable, and more efficient than the civilian criminal justice system.  In other words, certain safeguards of fairness (whether procedural or substantive) would be sacrificed in order to permit greater flexibility and efficiency.

For example, in lieu of constitutionally independent judges, military tribunals would be presided over by Superior Commanders, commanding officers, or delegated officers.  These officers do not remotely have the independence (security of tenure, security of remuneration, or even institutional arm’s length status) of judges, but they can potentially perform their duties with an open mind and possibly without bias.  Indeed, a significant difference, constitutionally, is that such officers are drawn from the ‘executive’ while the received wisdom at present is that Military Judges are part of the judicial branch of government.[2]

While legal counsel will not typically appear in a summary trial, an accused is not prohibited from seeking legal advice, and the unit legal advisor will advise the presiding officer and charge layer regarding the legal issues that they must consider.

I suspect a fair number of current and former CF personnel, including senior officers, would concur with the commenter’s sentiments (assuming that I have accurately captured the nature of those sentiments).  I suspect that there are a fair number of people who believe that the Code of Service Discipline is, indeed, a bifurcated system that permits prosecution of ‘disciplinary offences’ (whatever those may be) and ‘criminal offences’.

However – and you may want to be seated for this – I contend that this presumption is incorrect.

In fairness to the commenter, when he was still serving in the CF, that may very well have been how the Code of Service Discipline was explained to him.  Alternatively, that may be a theory that he developed over the years that he served.  But that theory is incorrect – or, perhaps more accurately, it fails to appreciate where the distinction between disciplinary and criminal punishment arises within the Code of Service Discipline.  It would also appear to distinguish significantly between the rights of CF personnel (including a senior officer who is charged with a Code of Service Discipline offence) within a ‘disciplinary regime’ and within a ‘criminal regime’.

There is one Code of Service Discipline.  It functions in parallel to the civilian criminal justice system.  It does not supplant the civilian criminal justice system; however, from a practical perspective, where CF decision-makers (Military Police investigators, the chain of command, or military prosecutors) choose to pursue investigation and prosecution under the Code of Service Discipline, it can displace the operation of the civilian criminal justice system.  While there are some offences under the NDA that do not, and could not, have an equivalent in the criminal justice system, the Code of Service Discipline is not intended as a substitute for the criminal justice system.

And, contrary to what some CF decision-makers may have been told, the Code of Service Discipline is not a bifurcated system – i.e. partially a ‘disciplinary regime’ and partially a ‘criminal regime’.  More specifically, the offences are not bifurcated.  All offences under the Code of Service Discipline are ‘mens rea’ offences – read: comparable to ‘criminal’ offences.  The nature of offences that can be tried both at summary trial and before a court martial do not change depending upon the military tribunal that tries the accused.  And that is an important factor to understand.

Not all convictions for select Code of Service Discipline offences will give rise to a ‘criminal record’.[3]  For select offences, if the sentence falls below a relatively low threshold, the conviction will not give rise to a ‘criminal record’.  However, this distinction arises at sentencing, not when a charge is laid or during the determination whether the accused is guilty.  All Code of Service Discipline offences can, potentially, give rise to a criminal record.

I suspect that the foregoing may well give rise to objections from many past and serving CF personnel.  I suspect that they will be quick to point out that the Code of Service Discipline is a two-tiered system, with summary trials conducted, and summary justice meted out, at ‘the unit level’, and courts martial used for more serious matters.  Certainly, based upon his comments, it would appear that this is the perspective of the unnamed commenter.  That is understandable.  It is correct that the intent behind summary trials is to deal with less serious breaches of discipline and more serious matters are the provenance of courts martial.  And the Code of Service Discipline is typically explained in this manner.  However, based upon the current structure, even objectively minor allegations may wind up before a court martial where a CF member elects for that mode of trial.

Moreover, the description of the Code of Service Discipline as a ‘two-tiered system’ fails to describe the nuances of the Code of Service Discipline adequately.

It is a two-tiered system.  The powers of punishment of a commanding officer, delegated officer or Superior Commander at summary trial are more limited than the powers of punishment of a court martial.  Presiding officers are precluded from exercising jurisdiction over the most serious offences.[4]  Complicated matters, such as mental disorder[5] and complex evidentiary issues, will necessarily be placed before a court martial, not a presiding officer.

However, regardless of the mode of trial, the offences remain the same – they are all mens rea offences.

 

Mens Rea, Strict Liability, and Absolute Liability Offences

Under Canadian law, offences established under legislation are divided into three categories[6]:

1. Mens rea offences – Offences in which the Crown bears the burden of establishing (beyond a reasonable doubt) both the impugned act or actus reus and the mental element or mens rea. Mens rea can be based upon general intent, specific intent, wilful blindness, recklessness, or neglect.  However, there will still be a mental element of the offence;
2. Strict liability offences – Offences in which the Crown need only prove (typically beyond a reasonable doubt) the actus reus; the act creates a prima facie case, but it is open to the accused to rebut this presumption (typically on a balance of probabilities) that he or she was reasonably diligent, took all reasonable care, or that there was a mistake of fact; and
3. Absolute liability offences – Offences in which the Crown need only prove the actus reus and it is not open to the accused to raise the defence of ‘due diligence’. These types of offences are far less common than ‘strict liability offences’.

 

All truly criminal offences are mens rea offences.  There is a broad spectrum of punishments (i.e. sentences) for criminal offences, ranging from very light (such as probation or a fine) to severe (periods of imprisonment up to imprisonment for life with no opportunity for parole for 25 years).

Regulatory offences – for example, offences under the Highway Traffic Act like speeding, failure to stop at a stop sign, or careless driving – will typically constitute ‘strict liability offences’ or ‘absolute liability offences’.  It is also possible for certain regulatory offences to require proof of mens rea.

Examples of a strict liability offence include careless driving or driving without a seatbelt.  Examples of an absolute liability offence include speeding or failing to stop at a stop sign.

Mens rea offences require the Crown to prove all elements of the offences ‘beyond a reasonable doubt’ – i.e. the ‘criminal burden of proof’.  Typically, regulatory offences (whether strict liability or absolute liability) also require the Crown to prove the elements of the offences beyond a reasonable doubt.  One of the principal differences is that the Crown need not prove the mens rea; however, the burden of proof remains the same.  The reason for this is that the application of the coercive power of the Crown – even for non-criminal matters – obliges the use of the presumption of innocence in such prosecutorial matters.  This presumption must be displaced based upon proof beyond a reasonable doubt.[7]

To be clear: the presumption of innocence does not mean that we are obliged to conclude that all accused are ‘innocent’ if they are not found guilty.  Criminal or regulatory prosecution in Canada does not include the option of a ‘finding of innocence’.  When an accused is found ‘not guilty’ that is the extent of the finding: the Crown has failed to prove guilt beyond a reasonable doubt.  The ‘presumption of innocence’ is a legal construct or rebuttable presumption.  The Crown bears the burden of proving guilt in order to displace the ‘presumption’ of innocence.  A finding of ‘not guilty’ means that the Crown has failed to displace this rebuttable presumption.

Where a person’s life, liberty, or security of the person is affected by conviction for an offence, the principles of fundamental justice require that an offence be a ‘mens rea’ offence or, in some circumstances, a strict liability offence.  A person’s life, liberty, or security of the person cannot be infringed on the basis of an absolute liability offence.[8]

The Code of Service Discipline creates only mens rea offences.  Arguably, there is scope or potential for a strict liability offence (or, potentially, even an absolute liability offence), that is created under an Act of Parliament, to be incorporated into the Code of Service Discipline by virtue of section 130 of the NDA.  However, to my knowledge, that issue has never been tested before a court martial.

 

Returning to ‘Negligent Discharges’

I suspect that the commenter is not alone in his view regarding the supposed bifurcation of the Code of Service Discipline.  Negligent discharges are an ideal exemplar with which to discuss this issue.

And the example I will turn to is ‘Variation Three’ described in Part I.  I suspect many CF members have encountered, observed, or heard of such incidents.  They are often colloquially referred to as the ‘One Meter Range’, in reference to the fact that, when rounds are accidentally fired into the ‘clearing bay’, the distance is approximately one meter.  I suspect that there has been, and will continue to be, heated debate about whether that represents a ‘negligent discharge’.[9]

On the one hand, proponents of the conclusion that it is a negligent discharge will argue that the corporal failed to conduct a proper unload.  That is why a round fired, and the ‘harm’ or ‘mischief’ is the corporal’s failure to execute the unload drill properly.  The fact that the round was fired into a ‘clearing bay’ is simply a fortunate consequence and one that is relevant to sentencing.

Opponents of that conclusion may argue “… that’s what the clearing bay is for and negligence-based offences are determined by consequences.  Fowler said so!”  (OK, maybe they won’t invoke my name in their argument.)

Such arguments can become quite heated around a ‘stand-up table’ in the mess, and there can be a risk that participants could come to blows – giving rise to a completely different discussion about the Code of Service Discipline.

Much like the differing perspectives of ‘Major Tom’ and ‘Major Major’ (described in Part I of this Blog article), both of these perspectives have their merit.  Both proponents and opponents of the conclusion are correct – to a point.

In ‘Variation Three’ the corporal failed to perform the unload drill correctly.  As I noted in Part I, the term ‘negligent discharge’ is a bit of a misnomer – often a more apt description would be ‘negligent weapon handling’.  However, there is merit in the suggestion that it does not constitute an offence under the Code of Service Discipline because it does not represent a ‘marked departure’ from acceptable conduct that is necessary to establish a negligence-based mens rea offence.

That was certainly the conclusion of a military judge in the court martial of R v Lieutenant-Colonel Nauss, 2013 CM 3008.  The facts of that case can be reviewed via the hyperlinked case; however, the relevant facts are generally consistent with ‘Variation Three’.  The judgment of Lieutenant-Colonel d’Auteuil, presently the Deputy Chief Military Judge (and de jure Acting Chief Military Judge), concluded with the following passages at paras 56 and 57:

[56]    Properly handling a weapon when unloading it appears to the court as a standard of conduct, not a standard of care, for which the court cannot rely on to assess negligence in this case.  As pointed out earlier, the notion of negligence refers to the concept of standard of care, which is different from a standard of conduct.  As established by the prosecution through the particulars of both charges, the standard of care in this case is about handling a C7 rifle in a safe manner, not in a proper or correct manner.  However, it is true that in some situations, by handling a weapon in an incorrect or improper manner, it may result in an unsafe way to handle a weapon, which is not the case here.

[57]    I could not agree more with the defence counsel that by pointing his C7A2 rifle in the clearing barrel on 25 October 2012 at Camp Eggers, Lieutenant-Colonel Nauss did handle his weapon in the safest manner he could, as established by the evidence.  As a matter of fact, he did not properly unload his rifle, which resulted in a bullet discharged in the clearing barrel.  However, by having his weapon in that position, he did not expose anybody to any danger or risk as it was expected.

The military judge drew a distinction between safe handling and correct handling of the service rifle.  Lieutenant-Colonel Nauss clearly conducted an improper ‘unload’ of his service rifle.  However, in the view of the military judge, this is distinct from unsafe – at least to the to point of a ‘marked departure’ from the norm that would meet the threshold of criminal wrong-doing.

The reasoning in this judgment was followed in subsequent courts martial, including: R v Warrant Officer Brideau, 2014 CM 1005 (per Colonel Dutil, Chief Military Judge) and R v Corporal Kent, 2013 CM 3031 (per LCol d’Auteuil).  It was also followed (again by Colonel Dutil) in R v Corporal Abao, 2017 CM 1004 in relation to facts analogous with ‘Variation Two’ presented in Part I.

 

[Expletive] Lawyers; [Expletive] Judges!

I suspect that there was much gnashing of teeth and rending of clothes when these judgments were handed down.  I suspect that many senior CF decision-makers bemoaned the state of the Code of Service Discipline and blamed: (1) military judges who did not understand soldiering; (2) military lawyers who did not understand how to adequately explain the importance of proper weapon handling; and, perhaps even (3) legislators who did not understand how to legislate a disciplinary code.  (In my experience, most CF decision-makers tend to blame the lawyers and judges, and not the legislators.)

In fact, I suspect that the author of the ‘inspirational’ LinkedIn comment that prompted the present Blog article would assert that this is precisely what is wrong with the Code of Service Discipline.  The commenter might even assert that the military judge ‘got it wrong’ because a ‘negligent discharge’ is a disciplinary issue and it shouldn’t require application of the ‘marked departure’ test necessary to demonstrate criminally blameworthy conduct.

Frankly, the frustration and the cognitive dissonance experienced by those CF decision-makers who likely reacted so viscerally to the judgments in Nauss and Brideau are likely attributed to the fact that, for years, ‘negligent discharges’ were prosecuted predominantly under the summary trial system with very few safeguards for a meaningful examination of the law.  It is likely that presiding officers were treating ‘negligent discharges’ under section 129 of the NDA as de facto and de jure strict liability (or even absolute liability) offences, although they may not have realized it at the time.  I suspect the legal analysis of some unit legal advisors may have made the same error.

In turn, this may well be an illustrative example of why senior officers like the commenter conclude that the Code of Service Discipline has been ‘ruined’ by lawyers – particularly civilian lawyers (cue gasps of astonishment) – who ‘impose’ themselves on the Code of Service Discipline (oh, Matron!) resulting in an ‘overwhelmed’ summary trial system[10], which forces (or encourages) CF leaders and decision-makers to turn to administrative mechanisms.

As I have mentioned previously, there is a lot to unpack in that statement or sentiment.  And, frankly, if you share that perspective, you are likely not going to like what I have to say next.  In fact, some resentment may have been building as you have been reading the present article.  So, here’s a suggestion: take a seat or take a knee, take a deep breath, and keep an open mind.  Because I am going to present you with some brutal truth, and you might not like it.

As frustrating as it might be, the analysis in Nauss and the subsequent ‘negligent discharges’ cases appears to be a correct explanation of the relevant law in the context of the Code of Service Discipline.  (“Of course you’d say that”, I hear you exclaim.  “You’re just another [expletive] lawyer!”)

If the Code of Service Discipline – or, at least, part of the Code of Service Discipline – were based upon ‘disciplinary offences’ as distinct from ‘criminal’ or mens rea offences, the commenter might have a valid point.  But it isn’t, and he doesn’t.

Since the first enactment of the ‘modern’ NDA in 1950 – before either I or the commenter were born – the Code of Service Discipline has functioned in parallel (and not mutually exclusive) to the civilian criminal justice system.  Granted, it would be another 28 years before the Supreme Court of Canada would hand down its judgment in R v Sault Ste. Marie, [1978] 2 SCR 1299 which distinguished between mens rea, strict liability, and absolute liability offences.  It would be yet another 20 years after that judgment before the significant reforms introduced to the NDA in 1998.  However, the Code of Service Discipline offences created under the NDA have consistently been treated as parallel to the criminal justice system.  The Code of Service Discipline has never, in its modern context, been a bifurcated disciplinary code in the manner that the commenter appears to suggest.  It has only ever been a parallel military ‘criminal justice’ system, which has, over time developed similar safeguards as the civilian criminal justice system.

Senior officers in the CF do not possess some inherent God- or Sovereign-given right to punish subordinates as they see fit.  As I explained in Part I, when an officer in the CF takes what could be characterized as adverse, coercive, or punitive action regarding a subordinate, that officer is not exercising some vague or ambiguous power derived from his or her Queen’s Commission.  That officer is exercising statutory powers established by or under the authority of the NDA.  Therefore, that officer must:

• Be able to identify the source of the duty, power and/or function the officer purports to exercise;
• Comply with the constraints imposed by the legislated regime that establishes the duty, power, or function;
• Comply with the ‘supreme law of Canada’ – meaning the constitution, which includes the Canadian Charter of Rights and Freedoms; and
• In addition to the express constraints established by or under the relevant legislation and the constitution, exercise the duty, power and function in a reasonable and justified manner, having regard to the nature and scope of the impact on the rights, interests and privileges of the affected subordinate.[11]

And before anyone starts using strong language that might hurt my fragile feelings, understand this: While it might be judges or lawyers who identify specific legal constraints, principles, or issues, due to their expertise with the law, the frustration that some senior officers may experience is not due to those judges and lawyers ‘imposing’ themselves on the Code of Service Discipline.

The frustration – or, more accurately, the cognitive dissonance – that you might be experiencing is likely derived from a misapprehension of the source, scope, or nature of your statutory authority.

Canada is a country governed by the Rule of Law – not the Rule of Lawyers.  We benefit from a written and unwritten constitution, which entrenches a Charter of Rights and Freedoms.  As an extension of the executive, officers of the CF must comply not only with the laws that grant them the very powers and functions they purport to wield, but they must also comply with all other laws, enacted by Parliament or, where permitted, subordinate legislation enacted under statutory authority.  So, ‘suck it up sunshine’, you’re not Connor MacLeod after he wins The Prize[12]; you don’t have unlimited power.

 

The Current ‘Plan’ – Bill C-77

But is that the end of the matter?  If the Code of Service Discipline is not, in fact or at law, a bifurcated system that creates distinct disciplinary and criminal offences, does that mean that it could never be such a system?

Frankly, no.

But to create a ‘bifurcated system’ would require establishing separate and distinct disciplinary offences.  For example, in the context of ‘unauthorized discharges’ and ‘negligent discharges’ or other offences that commanders might view as ‘disciplinary’ offences, Parliament could enact a ‘regulatory offence’ – e.g. a strict liability offence – similar to what is perceived to have been done in Australia.[13]

And note that much of what we discussed in terms of discretionary decision-making in Part I would still apply.  It would still be open to a commander to decide whether the deficiency was related to ‘discipline’ or to ‘training’ (or to both), and then respond accordingly.

Indeed, I suggest that the creation in Bill C-77[14] of ‘Summary Hearings’, with ‘Service Infractions’ in lieu of ‘offences’, can be characterized as the legislative response to the dissatisfaction that the chain of command has expressed regarding the Code of Service Discipline over the past few years.

It appears that the intent is to create a ‘regulatory’ regime distinct from the mens rea offence regime that currently comprises the Code of Service Discipline.  When, and if, this regime comes into force, there will be several distinctions from the current Code of Service Discipline:

• Service infractions are not offences, and can only be dealt with by summary hearing;
• There is a marked avoidance of the term ‘guilt’ in the legislation; the determination is based upon whether an officer conducting the summary hearing finds, on a balance of probabilities, that a person has committed a service infraction;
• A finding that a person has committed a service infraction would not preclude the subsequent laying of a charge in relation to an offence under the Criminal Code of Code of Service Discipline. In other words, the principles of autrefois convict and autrefois acquis would not apply to a finding that a person had committed a service infraction;
• However, a prior conviction or acquittal by a court martial or civilian court for an offence relating to the same facts would preclude a summary hearing of an alleged service infraction (in other words, you had better hurry up with the Summary Hearing before a criminal or Code of Service Discipline prosecution pre-empts you…);
• There is no right to elect trial by court martial for the alleged service infraction (after all, it’s not an ‘offence’); and
• The burden of proof is the civil burden of proof: balance of probabilities.

 

I suspect that the comment above asserting ‘overwhelmed summary trial system’ is actually an expression of frustration that a CF member often has the option of electing trial by court martial, even when charged with what could be construed as a ‘minor’ or less serious offence.  I suspect the source of frustration for some senior officers is the fact that a CF member has the audacious right to elect trial before an independent decision-maker who is well-versed in the law.[15]

Although the ‘Summary Hearing’ might be likened to a regulatory regime, it is markedly different than most regulatory prosecutorial regimes, such as offences under the Highway Traffic Act (or equivalent legislation) of a province.

Officials within the Office of the JAG have likened the ‘Summary Hearing’ regime to the disciplinary regimes for provincial regulating bodies such as Colleges of Surgeons/Physicians, Law Societies, and Colleges of Nurses.  Those regulatory bodies certainly make determinations of blameworthy conduct based upon the civil burden of proof (balance of probabilities), albeit based upon clear, cogent, and convincing evidence.  However, the scope of the ‘blameworthy conduct’ tends to be related to the performance of the professional duties defined and regulated by the ‘regulating body’.  In other words, the regulatory enforcement powers are relatively narrowly construed.

I could suggest – as I have done before – that senior CF decision-makers have demonstrated a problematic application and a marked lack of understanding of what is actually meant by the civil burden of proof in Administrative Review.  Certainly, in my experience, some Administrative Reviews under DAOD 5019-2 have fallen markedly short of the required clear, cogent, and convincing evidence that is required[16] when applying the civil burden of proof.  Frankly, many of the miscarriages of justice in Administrative Reviews arise from a remarkably poor understanding of what constitutes sufficient evidence for determinations of blameworthy conduct and rather deficient adherence to procedural fairness.  And, like the current Administrative Reviews, the proposed ‘Summary Hearings’ would not be subject to scrutiny (at least not immediately) by constitutionally independent judges to ensure that the evidence actually rises to the requisite threshold.  However, that is not the principal failing of the proposed process.

Provincial regulators of professions (e.g. physicians, lawyers, nurses) are inapt comparators for the proposed changes to the Code of Service Discipline.  First, their scope of disciplinary powers is markedly narrower than what we can expect for ‘Summary Hearings’.  These regulators generally have the power to either rescind licences (to practice the relevant profession) or to place conditions on the licence.  They can order payment of costs for the hearings, but do not generally levy fines.

Summary hearings will have similar powers of punishment (although they are called ‘sanctions’) as current summary trials.  I say ‘similar’, but they are pretty much identical (although the power to levy fines will actually be more severe).  These will include as-yet-unknown ‘minor sanctions’.  Frankly, the ‘sanctions’ are transparently ‘cut-and-pasted’ from existing powers of punishment for summary trials.  Presumably, the ‘minor sanctions’ that will be established under regulation will include the punishments – sorry, sanctions – of confinement to barracks/ship – and the deprivation of liberty that this entails.

Even based upon the ‘sanctions’ proposed in the statutory amendment, the punitive nature of this process markedly exceeds that of any provincial regulator.

I am not suggesting that Parliament does not have the authority to create such punishments for a regulatory regime.  However, I do challenge the suggestion that these are similar to the disciplinary scope and scale of provincial professional regulators.  It is not an apt comparator.  And the necessary safeguards for that regulatory regime are open to challenge.

In addition to the marked difference in punitive powers between officers who will preside at summary hearings compared to provincial professional regulatory bodies, we should also bear in mind that members of a profession – doctors, lawyers, nurses, etc. – are empowered under the provincial legislation that creates the regulatory bodies, to select the representatives, from among their membership, who form the governing (regulating) bodies for that profession.  Each member of the profession is eligible to be nominated to stand for election to the governing body for the profession.  And this selection process is typically conducted through a direct vote.

That is one of the defining characteristics of a self-governing regulated profession.

The same is not true for members of the Canadian Forces.  True, every member of the Canadian Forces (who is 18 years of age) can vote in federal elections.  However, that is very much an ‘apples and oranges’ comparison.  All Canadian citizens get to vote.  Members of the Canadian Forces are not selecting a self-governing body from amongst members of their profession.  And remember, members of the Regular Force are not only prohibited from entering such elections[17], their rights regarding commentary are (justifiably) curtailed.[18]  They are also forbidden from joining or forming combines (e.g. unions).[19]

Also, when hearings are conducted by provincial professional regulators into allegations of misconduct by a licensee, the licensee not only has a right to be represented by counsel at those hearings, there is an expectation that the licensee will be represented by counsel (after all, the provincial regulator is typically represented by counsel).  That expectation is not surprising, in light of the fact that the licensee typically carries mandatory insurance relating to the exercise of his or her professional duties, and that insurance will typically include scope for payment of counsel in regulatory proceedings.

To suggest that the yet-to-come-into-force ‘Summary Hearings’ are comparable to measures in place for self-regulating bodies is pointedly disingenuous.  And I suggest that one of the reasons for this disingenuity to justify the lowered evidentiary threshold.

A class or type of regulatory enforcement regime that is a potentially better comparator is represented by the various provincial Police Services Acts (or comparable legislation).  Rather than a self-governing profession, these regimes include enforceable codes of conduct, which bear some similarity to the Code of Service Discipline.  However, the powers of punishment (or ‘sanction’) in these regimes still falls markedly short of the powers anticipated for Summary Hearings.

Second, unlike the Code of Service Discipline, the ‘codes of conduct’ for civilian police forces are not parallel codes of conduct for the civilian criminal justice system. Unlike the Code of Service Discipline, they do not overlap or function in parallel.  Consequently, the powers of punishment are markedly more restrained.

Third, the evidentiary burden tends to be higher than a ‘balance of probabilities’. Using Ontario’s Police Services Act[20] as an example, the burden of proof relating to allegations of a breach of conduct is ‘clear and convincing evidence’.  While this may sound like the qualitative description of the common law principles applicable to the civil burden of proof for blameworthy conduct (F.H. v McDougall, 2008 SCC 53, [2008] 3 SCR 41) it is actually a distinct evidentiary threshold that is described as being higher than a balance of probabilities (Penner v Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 SCR 125).

A far more apt comparator under provincial law would be the regulatory enforcement regimes such as Ontario’s Highway Traffic Act[21] and similar regimes in which Crown actors enforce compliance with broad non-criminal codes of conduct through coercive mechanisms.  However, unlike the proposed ‘Summary Hearings’, those regulatory prosecution regimes (which also do not give rise to criminal records) require proof beyond a reasonable doubt – even for absolute liability offences.

I suggest that these coercive regulatory regimes present the proper comparator.  In fact, I suggest that there is a compelling argument that the requirement for proof beyond a reasonable doubt for coercive regulatory regimes (which are distinct from professional regulatory regimes) is a principle of fundamental justice within the meaning of section 7 of the Canadian Charter of Rights and Freedoms where a person’s liberty and security of the person is concerned.  Even though ‘imprisonment’ and ‘detention’ are not included in the list of ‘sanctions’ for the anticipated ‘Summary Hearings’, that does not mean that a person’s liberty and security of the person won’t be affected by the sanctions that will be available to ‘Summary Hearing Officers’.

Moreover, despite the disingenuous word-play in Bill C-77, it is open for a reviewing court to examine whether the ‘infractions’ and ‘sanctions’ actually represent a penal code (albeit, a lower order penal code) as is understood under section 11 of the Charter.

When, and if, the ‘Summary Hearing’ process actually comes into force, and the full scope of the regime is established by Governor in Council regulations, there will be an opportunity both to comment on any constitutional issues that arise, as well as to test those issues before actual courts of competent jurisdiction.

 

Conclusion

Contrary to what some former and serving CF personnel may believe, I contend that it is incorrect to assert that the Code of Service Discipline represents a bifurcated regime that consists of a lower order ‘disciplinary regime’ at summary trial and a higher order ‘criminal justice regime’ at court martial.  There is one Code of Service Discipline, with one set of offences.  And these offences are all mens rea offences, save where strict or absolute liability offences might be incorporated under s 130 of the NDA.

This requires such offences to be proven beyond a reasonable doubt within the context of mens rea offences.

This uncomfortable reality is not the product of ‘meddling lawyers and judges’; it is the product of a society governed by the Rule of Law.  This is the same Rule of Law that assigns duties, powers, and functions to the officers who lead the Canadian Forces.  And, as should likely be profoundly obvious to anyone who has read any of my Blog offerings: the law, rules, and norms of conduct that senior CF decision-makers purport to enforce upon their subordinates, are equally applicable to those same officers.

It is open to Parliament to create a truly bifurcated regime.  Indeed, that is what appears to have been the intent behind the creation of the ‘Summary Hearing regime’ in Bill C-77.  However, notwithstanding that Bill C-77 received royal assent on 21 June 2019, that regime has yet to come into force and will not come into force until fairly comprehensive regulations (within the QR&O) are enacted by the Governor in Council.  Once the regime does come into force, there is potential for certain aspects of the regime to come under Charter challenge and scrutiny.

Until that time arises, I suggest that CF officers, who exercise duties, powers, and functions under the NDA, would benefit from a better understanding of the source, nature, and scope of their statutory roles.  A better understanding could lead to less cognitive dissonance and the frustration arising therefrom.  It might even lead to better statutory decision-making, both under the Code of Service Discipline, as well as in the other regimes established by, or under the authority of, the NDA.

 

[1] I do acknowledge that there were also subtle differences in the nature of the ‘negligent’ handling of the service rifle.  In ‘Variation Three’, for example, the specific negligence was, presumably, the improper conduct of the ‘unload drill’.  In ‘Variation Two’, it may well have been a failure to place the rifle on ‘safe’ between ‘exposures’ and/or resting the ‘trigger finger’ on the trigger.  It may also have been a question of ‘nerves’.  In most of the other Variations, the source of the negligence may have varied, but could have pertained to any of: the corporal ‘playing’ with the safety lever (as some soldiers do), inattentive handling regarding the hand located on the pistol grip of the rifle, or any of several variations on inattentive weapon handling.

[2] The nature and evolution of the Military Judiciary warrants detailed examination; however, that represents a tangential issue (albeit an important one) and one for which there is insufficient space in the present Blog article.

[3] National Defence Act, RSC 1985, c N-5, [NDA], s 249.27.

[4] QR&O arts 108.07 and 108.125.

[5] QR&O art 108.16(1)(a)(iv).

[6] R v Sault Ste. Marie, [1978] 2 SCR 1299; Re B.C. Motor Vehicle Act, [1985] 2 SCR 486.

[7] R v Wholesale Travel Group Inc., [1991] 3 SCR 154.

[8] Re B.C. Motor Vehicles Act, n 6.

[9] There are some firearms, employed by the CF, in which “… a round may fire …” even if the ‘unload drill’ has been conducted properly.  The C7/C8 variants of the service rifle are not such firearms.

[10] Frankly, I have seen no evidence that the summary trial system is ‘overwhelmed’.  What I have noticed is that many CF members have elected trail by court martial in order to benefit from the safeguards that such trial afford them.  The CF members who have elected trial by court martial range from privates to lieutenant-colonels.  I suspect that the resentment concerning the allegedly ‘overwhelmed summary trial system’ is more accurately characterized as resentment over the fact that CF members have a right to elect trial by court martial, even for allegations of some allegedly ‘minor’ offences.

[11] See, for example, Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 and Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, among others.

[12] If you have not seen the 1986 movie Highlander, you really should.  It is a great movie, with a phenomenal soundtrack.  However – and I cannot stress this too much – do not watch the sequels.  They will just leave you bitter and upset.

[13] Defence Force Discipline Act 1982, ss 36A and 36B.

[14] An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, SC 2019, c 15 [Bill C-77].

[15] I do not wish to distract from the present discussion.  However, this tends to highlight the conceptual dissonance that there are some minor Code of Service Discipline offences for which, under certain circumstances, an accused does not have a right to elect trial by court martial: QR&O para 108.17(1)(a).  While I am aware of the rationale underlying this exception, I find that rationale less than convincing.  However, that is a subject for another day.

[16] DAOD 5019-2, para 5.6; F.H. v McDougall, [2008] 3 SCR 41, para 46.

[17] QR&O art 19.44.

[18] QR&O art 19.36.

[19] QR&O art 19.10.

[20] Police Services Act, RSO 1990, c P 15.

[21] Highway Traffic Act, RSO 1990, c H 8.