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Judgments as ‘Remedial Measures’ – What we can learn from recent developments
October 2, 2020
Discretion is the Better Part of (Valour) Statutory Decision-Making – Part II
October 13, 2020

Discretion is the Better Part of Valour Statutory Decision-Making

 

[Author’s Note: During this past week-end, I learned that my friend and colleague, Major (retired) Charles Edmund Thomas, died unexpectedly on 10 October 2020.  Edmund was a long-serving member of the Canadian Forces and the Office of the JAG, who retired shortly after I did.  For a considerable period of his service, Edmund served in Defence Counsel Services, where he earned a reputation as an ethical, courteous and resolute advocate who served the interests of both his clients and military justice.  Following his retirement, Edmund eventually chose to pursue a PhD in Law at the University of Western Ontario.  Edmund had a continuing interest in military justice, and its reform, and a topic that was very important to him was how the Canadian Forces handles allegations of ‘negligent discharges’.  The Blog article below presents the issue of ‘negligent discharges’ as a useful context in which to discuss the exercise of discretion by military decision-makers.  While I would be hesitant to suggest that Edmund would agree with everything that I present below, I am confident that it would have prompted him to offer his own valuable views and perceptions on the subject.  I regret that I will now not have the benefit of his reasoned commentary on this subject.  What I can do is dedicate this two-part Blog article to the memory of a colleague who shared my passion for reasoned debate on issues of military justice.  Edmund, you will be missed.]

 

I get inspiration for Blog articles from a variety of sources.  Sometimes, newsworthy developments or an article from a journalist will prompt commentary from me.  Often, cases or matters for which I have been retained will motivate me to discuss certain issues.  In other instances, I will be inspired by scholarship that I review.

One of my more recent inspirations arrived in the form of a comment on LinkedIn in response to a Blog article that I posted and promulgated on that platform.

Whether the person who posted the comment realized it or not (and I suspect that he did not), his comment, though relatively brief, was weighted with a variety of factors and assumptions that pertain, either directly or indirectly, to the exercise of discretion in statutory decision-making.

The title of this Blog is taken from the adage or proverb attributed to the tragic-comic figure of Falstaff in the last Act, and second last Scene, of Henry IV, Part I.  Falstaff’s comment that “The better part of valour is discretion…” refers to his inclination towards caution rather than rash bravery.  In that form, the denotation of ‘discretion’ is distinct from its relevance in statutory decision-making.  For Falstaff, ‘discretion’ is the quality of behaving in a manner that exemplifies caution.  When applied to statutory decision-making, ‘discretion’ typically refers to the degree of freedom for the decision-maker to exercise that decision-making authority.  In the case of CF decision-makers, that authority is almost always statutory authority.

 

‘Inspiration’ and Issues

At the start of September, I posted my Blog Article “Rules are for Corporals, not for Colonels” on LinkedIn.  Of the Blog articles that I have posted on LinkedIn, it was one of the most widely viewed and shared.  It elicited a variety of reactions, including the following comment from a retired senior officer from the CF:

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.

I have included the entire comment in order to convey its context[1] and, frankly, to avoid any accusation that I have misrepresented its contents.  The present Blog article is not intended as a rebuttal; the article that is the subject of the comment does a pretty good job of defending the propositions therein.  I will state that the commenter appears to have missed the main thrust of that (admittedly, lengthy) article.  The thesis was not that corporals were treated more severely than colonels under the Code of Service Discipline or administrative regimes.  Rather, I demonstrated that, recently, when using predominantly administrative (rather than disciplinary) regimes to ‘discipline’ subordinates for failing to follow relevant rules, senior decision-makers are, themselves, failing to follow the relevant rules.

However, I suggest that the comment above is representative of the frustration and confusion that many senior officers have in applying the Code of Service Discipline and other enforcement regimes, and with the exercise of statutory powers generally.  Various assumptions, assertions, and complaints made in this statement offer an opportunity to illuminate some of the ongoing issues in the administration of the affairs of the Canadian Forces (CF), including, but not limited to, the Code of Service Discipline.

Specifically, this comment provides an opportunity to discuss the exercise of discretion by decision-makers within a specific context that is likely familiar to many CF personnel: namely, allegations that a member of the Canadian Forces has had a ‘negligent discharge’.  While this Blog article does not purport to present a comprehensive examination of the investigation and prosecution of ‘negligent discharges’, such matters provide a meaningful context in which to discuss the exercise of discretion by statutory decision-makers.

There is a lot to unpack in the statement, including (but not limited to):

  • The presumption that a ‘negligent discharge’ must necessarily lead to a Code of Service Discipline charge;
  • That there is somehow a ‘set fine’ for a ‘negligent discharge’;
  • That the opportunity to proceed with a summary trial rather than a court martial is an advantage;
  • That the Code of Service Discipline is bifurcated into a ‘disciplinary’ regime and a ‘criminal’[2] regime;
  • That lawyers – particularly civilian lawyers, fail to understand this bifurcation and that they have ‘imposed’ themselves on the Code of Service Discipline;
  • That 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.

 

This statement presents a number of issues that are worthy of discussion.  If I were to discuss all of those issues in a single Blog article, it would be a lengthy article (even longer than what I normally impose on my readers).  Consequently, I will present the discussion in two parts.

In Part I, I will address the exercise of discretion by statutory decision-makers, including:

  • The nature and objectives of the exercise of discretion;
  • Opportunities for the exercise of discretion;
  • Constraints on, and fettering of, discretion; and
  • Potential pitfalls in the exercise of discretion.

 

To aid with that discussion, we will use the example of a ‘negligent discharge’ suggested by the above-mentioned commenter.

Before discussing discretionary decision-making, I will provide a brief discussion on the exercise of duties, powers, and functions by statutory decision-makers and how that relates to CF statutory decision-makers.

In Part II, I will address the commenter’s concerns regarding the Code of Service Discipline and what it means in the administration of justice in the CF.

 

Part I – Discretionary Decision-making

Members of the Canadian Forces may be familiar with the phraseology that CF leaders and statutory actors exercise ‘duties, powers, and functions’ under the National Defence Act (NDA).  While the use of such terminology may be relatively common, the senior officers who exercise such duties, powers, and functions may not fully understand the distinction between those terms.  This is likely due, in part, to the dearth of training offered to statutory decision-makers regarding public and administrative law.

I suggest that understanding the distinction between these terms is of fundamental importance in understanding discretionary statutory decision-making.

Duties are analogous to obligations.  As I indicated in “Rules are for Corporals, not for Colonels”, legislation and policy impose obligations not just on subordinates, but also (and perhaps more crucially) on statutory decision-makers like senior officers.  In legislation, such duties are often described using imperative verbs such as ‘shall’.

For example, a CF member (of any rank or position) who wishes to grieve a “… decision, act, or omission in the administration of the affairs of the Canadian Forces …” using the statutory process set out under the NDA, must reduce that grievance to writing and submit that grievance to his or her commanding officer (Art 7.08(1) of the QR&O).  These are duties imposed on a CF member if that CF member wishes to avail him- or herself of the statutory grievance process.

Once the CF member does so, the CO who receives the grievance then has various obligations, including: (a) acknowledging receipt of the grievance; (b) registering the grievance in the National grievance Registry; and, (c) determining whether he or she must act as initial authority (art 7.09(1) of the QR&O).  If the CO can act as the initial authority (IA), then the CO will have other duties (art 7.15 of the QR&O).

The enforcement of duties represents a significant aspect of public and administrative law.  However, in the administration of the affairs of the Canadian Forces, the power imbalance between statutory decision-makers and subordinates can sometimes make such enforcement problematic, if not impossible.  For example, any CF member who is familiar with the statutory grievance process established under the NDA will be aware that there are very few enforcement mechanisms regarding the duties imposed on CO and other key actors, whereas, failure by a CF member/grievor to comply with duties imposed on him or her can result in adverse outcomes.

For example, if a CO, who cannot act as IA, fails to forward a grievance to the Canadian Forces Grievance Authority (CFGA) within 10 days of receipt of the grievance (a duty imposed under art 7.09(2) of the QR&O), what is the consequence under the legislated regime?  There is none.  Recalling also that the 4-month limitation period imposed on an IA at art 7.15 of the QR&O starts only once the IA actually receives the grievance, if the CFGA does not forward a grievance to the appropriate IA “expeditiously” (art 7.10 of the QR&O), what recourse does a grievor have?  I would suggest very little.

Thus, duties equate to obligations and the diligence demonstrated in the exercise of these duties can be influenced by whether there is an efficient and effective enforcement mechanism for these duties.  Indeed, much could be written concerning whether the CF grievance process represents an efficient and effective mechanism for CF members to enforce their rights interests and privileges.[3]

Duties may be distinguished from powers.  For CF decision-makers, both are generally derived from, or created under the authority of, the NDA.  Now brace yourself, Dear Reader, for the potential backlash that my next comment may generate (particularly, it seems, from naval officers):  The power of CF decision-makers, particularly senior officers, is not derived from their Queen’s Commission.

[Pause for the furor to die down.  This may take some time.  Grab a coffee while you wait, if desired.]

OK – are we calm again?  Good.  Permit me to explain.

I am well aware of the historical and symbolic importance of the Queen’s Commission.  I have one myself.  It hangs on the wall of my office, much as it did throughout my career.  While I served in the CF, I read it regularly to remind myself of the sentiments contained therein.  I still do read it.  I am a nostalgic person.  But it wasn’t the source of my authority as an officer – or, perhaps more accurately, it was not the source, in and of itself, of my authority.  The best characterization I can provide for the modern-day Queen’s Commission is that it is an aid to statutory interpretation.

It was not always thus.  There was a time when the Queen’s (or King’s) Commission represented the actual source of a British (or English) officer’s authority.  But that time has passed.  The Queen’s (or King’s) Commission represented (and represents, though to a lesser degree) authority granted by the Royal Prerogative to one of Her (or His) Majesty’s officers.  Indeed, the recognition of this direct relationship to the Crown, distinguishable from a contractual employment relationship, remains today in what passes for modern jurisprudence relating to the Crown-soldier relationship[4].  That jurisprudence is in desperate need of modernization and better elaboration of key principles that underlie this relationship.  However, while the relationship between the Sovereign and His or Her officers in, say, the 17th Century, was governed by the expression of the Royal Prerogative through the Queen’s (or King’s) Commission, in Canada, at present, it is now governed by statute, principally the NDA.

The Crown Prerogative, as a constitutional principle, can be displaced by Parliament.[5]  The current received wisdom in the CF is that a decision to deploy Her Majesty’s forces raised in Canada on operations outside Canada’s borders represents an exercise of the Crown Prerogative.  It is also argued that the raising of the Canadian Forces falls under the Crown Prerogative, and that section 14 of the NDA does not represent the authority to raise the Canadian Forces (which supposedly remains part of the Crown Prerogative), but simply names the armed forces of Her Majesty raised in Canada.

However, assuming that this ‘received wisdom’ is correct, it does not describe the source of authority for the governance and administration of the Canadian Forces.  I suggest that Parliament has occupied the field with the NDA.  While the Crown retains the prerogative for granting a Commission, this now functions principally as an aid to interpretation under the NDA.  By holding the Queen’s Commission, an officer falls within the definition of “officer” as defined under section 2 of the NDA.  This then influences the duties, powers, and functions that are attributed to a commissioned officer within, and under the authority of, the NDA.

In fact, I would go so far as to suggest that scope of discretion for the granting and revocation[6] of the Queen’s Commission has been affected – specifically, narrowed – by the NDA.  Historically, this discretion was unfettered to the point that it could be described as arbitrary.  Yet, I would suggest that, in light of the implications under the NDA, a decision to refuse to grant a Commission to a graduate of an officer training plan, or to revoke the Commission of a serving officer, would require more than simply an arbitrary decision by the Governor General on behalf of the Sovereign.  Notwithstanding that such a decision remains within the Crown Prerogative, the implication within a governance regime that is defined under statute would require the requisite level of procedural fairness under common law rules.[7]  But, perhaps the debate on that issue is best left to another Blog article.  The main factor for the present is that, when an officer of the CF exercises duties, powers, or functions, that officer does so under the authority of the NDA.

So, we return to the nature of powers.  Powers are analogous to discretion – not Falstaff’s discretion, but a degree of freedom in decision-making: the option of choosing from more than one course of action leading to an intended outcome or consequence.  Discretion can be broad or narrow; however, it will always entail options.

Thus, while duties can be characterized as obligations, which often offer few, if any, options, the discretion inherent in the exercise of powers represents what could be characterized as ‘freedom of manoeuvre’ in decision-making.

Thus, while an IA for a grievance has a duty (read: obligation) to consider and determine a grievance, that same IA will likely exercise one or more powers in determining the grievance.  Arguably, the interaction between these duties and powers illustrates part of the problematic language in art 7.14 of the QR&O relating to the identification of the appropriate IA.  Where a CO cannot grant the redress sought by a grievor (art 7.14(1)(a) of the QR&O – i.e. the CO does not have the power to perform that specific duty) then then the CFGA must identify the appropriate IA.  This IA is defined at art 7.14(1) of the QR&O as:

(b) the commander, or officer appointed to the position of Director General or above at National Defence Headquarters, who is responsible for dealing with the matter that is the subject of the grievance. [emphasis added]

Note that the provision does not indicate that the IA must have the power to make a meaningful determination.  While some might assume that ‘responsible for dealing with’ equates to ‘a power to remedy’, such an interpretation, I suggest, would not be consistent with the meaning of the words read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the legislation, the object of the Act, and the intention of Parliament.[8]

Often, the ‘responsibility’ described in art 7.14 of the QR&O will carry the authority (or power) to offer a remedy (aka redress).  For example:

  • A CO imposes Counselling and Probation (C&P) on a subordinate;
  • The subordinate grieves that ‘decision in the administration of the affairs of the Canadian Forces’;
  • Upon review (possibly well after the monitoring period for the C&P is completed) the IA (the formation commander to whom the CO is immediately responsible for matters of discipline and administration) determines that the C&P was excessive and replaces it with a Recorded Warning (RW).

 

Thus, the commander who is likeliest to be selected as IA, will have the authority or power to countermand his or her subordinate’s decision.  And the exercise of that power is ultimately an exercise of discretion, albeit governed under principles of fairness in public and administrative decision-making.

But what if, in the above example, no remedial measure (not even a much less significant Initial Counselling) was justified?  What if the CO acted in a markedly unreasonable fashion and the allegations giving rise to the remedial measure (C&P) could not be reasonably proven, even on the civil burden of proof?  What if the CO had acted capriciously?  What if the actions of the CO resulted in the grievor becoming ineligible for a rare opportunity such as a unique posting that was subsequently filled by another person?  What if the grievor was (understandably) seeking more than simply the cancellation or modification of a remedial measure?

The IA could cancel the remedial measure altogether.  But what power does the IA have to remedy the fact that the grievor was subjected to an unjustified six-month monitoring period?  What power does the IA have to compensate or otherwise remedy the injustice of the capriciousness of the act?

Sometimes, a ‘redress authority’[9] may need to be creative in identifying an appropriate remedy or remedies.  However, we should not lose sight of the blunt reality that, sometimes, a ‘redress authority’ won’t have all the necessary powers to fulfil the duties imposed on him or her.  And that is because, in the statutory grievance process, but for one notable exception[10], ‘redress authorities’ are not granted any additional remedial powers beyond those that are inherent in their positions.[11]

Under the Canadian Forces Grievance Process Ex Gratia Payments Order, PC 2012-0861, the Chief of the Defence Staff (CDS) has been granted a narrowly defined power to award an ex gratia payment.  To my knowledge (based upon an Access to Information Act request that was satisfied only after significant delay) this power has been used twice since it was created in 2012.  And prudent grievors should note that this narrowly construed power does not extend to the functions exercised by any IA.

Although this Blog article is not intended as a comprehensive review of the CF grievance process, the foregoing does offer an example that some duties imposed on statutory actors and decision-makers might not also give rise to enforcement mechanisms if those duties are not performed within the scope of the legislated regime.  Other duties may not, in certain circumstances, grant requisite powers to fulfil those duties adequately.

Functions, though distinguishable from duties and powers, can encompass either of those factors and can serve as a definitional bridge.  Functions may be derived from duties and can also be expressed by the exercise of powers.  An IA has a statutory duty to consider and determine a grievance.  This is also a statutory function.  When exercising powers, an IA (or any CF decision-maker) will typically be perform functions that form the context in which those powers are exercised.

 

Fact Scenario

The fact scenario suggested by the commenter is a corporal who has a negligent discharge.  He contrasted that scenario with a lieutenant-colonel whom the commenter suggested would not have a ‘right’ to proceed by summary trial.[12]  Since 1 September 2018, a lieutenant-colonel may be tried by summary trial (art 108.12 of the QR&O).  However, in fairness to the commenter, I believe he retired in late 2015, prior to the amendments that extended the jurisdiction of summary trials to lieutenant-colonels, and the commenter also used ‘past tense’, so he may have been referring to the jurisdictional aspects prior to the time of his retirement.

For the purposes of our discussion, we will rely upon the following fact scenario and subsequent variations.  We will also presume that sufficient evidence is available to support the laying of a charge and subsequent prosecution (i.e. that the evidence would satisfy the threshold of ‘a reasonable prospect of conviction’: see paras 30 to 36 of DMP Policy Directive 002/00).  Certainly, whenever fact scenarios are suggested for illustrative purposes, clever members of the audience could likely ‘what if’ the scenario ad infinitum.  While you may certainly do so, Dear Reader, let’s try not to get too bogged down in the minutiae, in order to facilitate reasonable discussion.  (In other words: don’t fight the pinks, or whatever colour the Directing Staff notes happen to be…)

Understanding that many members of the CF have differing views about what constitutes a ‘negligent discharge’, I will set out my understanding of the term, so that the subsequent discussion may be viewed through a common perspective.  Indeed, the apparent fact that there remain variations of perspectives regarding what is meant by a ‘negligent discharge’ tends to highlight why this particular issue can give rise to heated disagreement and why the exercise of discretion within this context can be both contentious and illuminating.

Indeed, in defining ‘negligent discharge’ one may need to discuss what might constitute a ‘negligent discharge’ for a particular firearm, weapon, or weapon system.  This can then lead to debate about what constitutes a ‘weapon’ or ‘weapon system’, and down the rabbit hole we go.

For the purpose of our present discussion we will focus (as the commenter appeared to do) on the ‘negligent discharge’ of a variant of the C7/C8 service rifle issued to members of the Canadian Forces.  My characterization of a ‘negligent discharge’ involves the firing of a projectile from the service rifle when the firing of a projectile was either not intended or not authorized.  And I note that there is a difference between an unauthorized and a negligent (or unintended) discharge.  By way of example, the Australian Defence Force Discipline Act 1982 establishes two separate offences at sections 36A and 36B for ‘unauthorized discharge of a weapon’ and ‘negligent discharge of a weapon’, respectively.

I suggest that a lot of the potential disagreement can arise from the perception that ‘negligent discharge’ can be a bit of a misnomer.  And that is because the ‘harm’ or ‘mischief’ that is addressed by subsequent administrative or disciplinary action is not focused solely, or even principally, on the fact that a projectile was fired.  The principal ‘harm’ or ‘mischief’ can be attributed to the fact that service rifle was not operated properly, safely or as the operator had been taught.  Perhaps the term ‘negligent discharge’ would be better described as ‘failure to handle the service rifle properly.’  Indeed, the particulars of some charges reduced to writing on a Record of Disciplinary Proceeding (RDP) might use such terminology in lieu of ‘negligent discharge’.

While such ‘transactions’ often arise from negligence, that is not always the case.  I have encountered circumstances in which soldiers deliberately fired a firearm when not otherwise authorized to do so.  (For example, a handful of soldiers while on deployment decide to fire a pistol into the air in the Forward Operating Base ‘… because they felt like doing so …’.)  The ‘mischief’ arose quite deliberately, but nevertheless constituted a potential breach of discipline and training.  In some people’s eyes, it may be worse than a ‘negligent discharge’ because of the deliberate intent.

Principal fact scenario:

A corporal has a ‘negligent discharge’ with a service rifle issued to the corporal by the Canadian Forces for the purpose of carrying out the duties lawfully assigned to that corporal by the corporal’s military supervisors (i.e. the chain of command).  The corporal has been properly trained in the use of this service rifle.  The service rifle involved in the incident was functioning properly.  The service rifle was in the sole possession of the corporal at the time that a round was fired and that there is reliable evidence that the corporal was holding or manipulating the service rifle at the time that the rifle discharged.

For the purposes of illustrating the nature of discretion, I describe below additional circumstances which consequently offer variations on the fact scenario.

 

Variation One: Blank round during an exercise

The ‘round’ that was fired was a blank round when the service rifle was fitted with an issued blank firing attachment (BFA).  This occurred during a field training exercise.  No one was physically harmed.

 

Variation Two: During training on a conventional range

The ‘round’ that was fired was on a conventional firing range.  It was fired downrange by the corporal during a ‘watch and shoot’ application when the targets would ‘pop up’ for 5-second exposures.  The Range Conducting Officer had briefed the firers at the start of the range practice and again, prior to that specific serial.   The corporal shot the round when no targets were exposed, and several seconds after the targets had ‘dropped’ out of sight.  No one was physically harmed.

 

Variation Three: The ‘One Meter Range’

The round was a live round, fired into a ‘clearing bay’, after the corporal failed to conduct a proper unload (e.g. the corporal removed the magazine after cocking the rifle twice, and failed to observe that this action simply loaded, unloaded, and loaded subsequent cartridges).  No one was physically harmed by the round that was fired.  The corporal’s pride was bruised.

 

Variation Four: During a Patrol

The round was a live round, fired during a daylight ‘presence’ patrol in a theatre of operations in what could be described as a rural environment.  No one was physically harmed.  The patrol was not compromised insofar as it was not concealing its presence.

 

Variation Five: A near miss during a patrol

As for Variation Four; however, the bullet struck the ground within 10 feet of another patrol member.

 

Variation Six: Criminal Negligence

As for Variation Four; however, the round struck a civilian nearby, wounding him.

 

Certainly, as with any potential Code of Service Discipline matter, the quality of the evidence (particularly the inculpatory evidence), the existence of exculpatory evidence, the manner and effectiveness of the evidence gathering/investigation, and other factors will all be relevant.  Such factors are worthy of discussion in professional development for legal officers and statutory CF decision-makers alike.  But for our present purposes, I have presented the relatively sparse facts above.

 

Nature and Purpose of Discretion

If you were to liken statutory decision-making to machinery – and I suggest that this can be an apt metaphor – then discretion can be likened to the lubricant in that machinery.  It is the factor that permits the mechanism to function notwithstanding tension, friction, and potentially minor imperfections.  Too little discretion (e.g. the fettering of discretion) and you run the risk of the machinery seizing up, binding, or not functioning.  At worst, it can explode spectacularly.  Too much discretion, and the machinery can run out of control and will not function as it should.  Again, at worst, it can explode spectacularly.

I’d suggest that one of the principal complaints voiced by our unnamed commenter was that ‘lawyers’ have unreasonably constrained or fettered the exercise of discretion; or, alternatively, that legislation has been enacted (at the prompting of those same damnable lawyers) resulting in the same seizing of the disciplinary machinery.

While I disagree with that proposition, it does warrant discussion.

What we need to understand is that, regardless of the system – criminal, disciplinary, administrative, military, or civilian – the exercise of discretion by a statutory decision-maker will be vital to the proper functioning of the system.  Insufficient discretion can lead to paralysis of the system or a shift by statutory decision-makers away from that system to a separate system that is viewed more favourably or more permissive by those decision-makers.  Too much discretion, and a process risks becoming arbitrary and unjust.  And I suggest that these two considerations are neither mutually exclusive nor unrelated.

And, regardless of whether we are examining the Code of Service Discipline or an administrative process authorized by or under the authority of the NDA, discretion is not exercised only once in a process, nor is it necessarily a ‘fire and forget’ exercise of statutory power.  Like the ‘10th principle of war’ – administration – discretion can potentially be exercised throughout (or at various stages of) a process.  It can be exercised by a statutory decision-maker to change the applicable process.  Indeed, one of the ongoing challenges for statutory decision-makers in the CF (and their legal advisors) is understanding the scope and scale of discretion at various stages of one or more processes and appreciating the nature and impact of constraints upon that discretion.

As I have observed previously, one of the means for the CF to address this seeming lacuna would be for the Office of the JAG, in concert with the Canadian Forces Military Law Centre, to develop a comprehensive ‘statutory decision-makers course’.  From my perspective, the target audience for a pilot version of such a course would be statutory decision-makers at the rank of colonel.  (The title of my previous Blog article was no accident.)

Any takers?  Anyone?  Bueller?  Bueller?  [Nothing by crickets….]

 

Opportunities for the Exercise of Discretion

So, let’s start at the beginning of the process.

According to the commenter, it would appear to be a simple matter of charging the corporal, conducting a summary trial, finding the corporal guilty (presumably based upon sufficient evidence, and a finding ‘beyond a reasonable doubt’) and imposing a fine on the corporal in the amount of $1500.00.

But is it that straight forward?

In fairness to the commenter, he would not have had much space in a LinkedIn comment to provide much of an analysis, and there are likely several unstated assumptions behind his comment.  I do not know for certain what the commenter was thinking, but he may have made the following assumptions:

  • It was a ‘negligent discharge’ not unlike that described in ‘Variation Four’ – i.e. on operations, with ball ammunition (although it is entirely possible that the commenter was contemplating a less serious scenario);
  • No one was physically harmed by the round that was fired, nor was the operation compromised; and
  • The accused did not elect trial by court martial.

 

The commenter also likely assumed that there were no other significant aggravating or mitigating factors.  In other words, the soldier would receive a fine in the amount of what the commenter or other senior officers might characterize as ‘the going rate’.  A legal advisor might describe the fine as falling within a range of acceptable sentences (since it would be incorrect at law to suggest that there is a ‘going rate’, even though, often, that is likely precisely what a presiding officer would be thinking).

In fact, regarding the fine, I suggest that the origins of the quantum of the fine is grounded in the approximate amount of what might be generally (if not entirely accurately) described as the ‘Operational Allowance’[13] that a CF member might receive while deployed on operations.

I suggest that there are multiple junctures at which various CF decision-makers will need to exercise discretion and, in identifying those junctures, we may better understand the nature of discretionary decision-making in the CF.  Discretion could be exercised in the following ways:

  • Is an investigation necessary?
  • If an investigation is warranted, should it be a disciplinary investigation or an administrative investigation?
  • Who should conduct it?
  • At what point is the investigation complete? (i.e. what factors must be examined)?
  • Once the investigation is completed, should a charge or charges be laid?
  • Which charge or charges should be laid?
  • Is there a reasonable or more appropriate alternative to disciplinary action?
  • Should both administrative and disciplinary action be pursued?
  • If both should be pursued, which, if either, should be pursued first?
  • If a charge is laid, and the accused is found guilty, what is the appropriate sentence?
  • If a remedial measure or administrative action is warranted, what is the appropriate measure or action?

 

Although lengthy, this list is not exhaustive.

Clearly, a great deal of discretion is exercised in such matters, and it will be exercised by different decision-makers.  Within the scope of the exercise of discretion, some decision-makers can influence the exercise of discretion by other decision-makers.

For example, a CO could issue specific direction regarding the handling of suspected ‘negligent discharges’, including distinguishing between different ‘types’ of ‘negligent discharges’ or differing circumstances.  This would obviate the need for repeatedly providing case-specific direction.  A CO would also need to ensure that he or she does not unreasonably fetter the exercise of discretion by a subordinate (see below).

What is likely obvious from the list of potential discretionary decisions above is that one of the key exercises of discretion concerns the decision whether or not the alleged ‘negligent discharge’ should be addressed under the Code of Service Discipline.  Indeed, I suggest that this particular exercise of discretion is a source of continued debate among CF decision-makers.

Some forms of misconduct (whether they are viewed as disciplinary or criminal, or whether such a distinction can actually be drawn) are indicative of a lack or failure of the ‘habit of obedience’ or are indicative of ill-discipline.  Others can be indicative of a training or performance deficiency or even dependency issues.  Many can be indicative of both.

For example, a CF member at CFB Petawawa who is incapable of controlling his or her emotions and consequently assaults a peer in a fit of rage, with no provocation, has presumably committed an assault.  This is a criminal offence (section 266 of the Criminal Code), and, therefore, also a Code of Service Discipline Offence (paragraph 130(1)(a) of the NDA).  It is also an example of poor discipline.  There may be underlying psychological issues that would need to be investigated both in terms of a criminal/disciplinary prosecution as well as any parallel or subsequent administrative actions.  However, it is not controversial to suggest that this is, on its face, a disciplinary issue that can (and probably should) be addressed under the Code of Service Discipline.  While an investigation may identify other relevant factors that could influence the exercise of discretion concerning the appropriate action to take, the initial conclusion is likely that a disciplinary or criminal investigation should proceed.

Similarly, drunken behaviour could be something that is best addressed by a Code of Service Discipline charge under section 97 of the NDA (‘Drunkenness’).  However, it might also be indicative of an alcohol dependency that is best dealt with using remedial tools with which the chain of command can assist the CF member in over-coming this dependency: e.g. Defence Administrative Order and Directive (DAOD) 5019-4 – Remedial Measures and DAOD 5019-7 – Alcohol Misconduct.  Depending upon the circumstances, other mechanisms, such as Administrative Review (DAOD 5019-2) may be required or advisable.

Conceivably, both disciplinary and administrative tools might be necessary.  But what is important to remember is that a remedial measure under DAOD 5019-4 is intended to be used to assist the CF member in overcoming the deficiency.  It is not intended, and should not be used as, a disciplinary tool to punish the CF member because the chain of command doesn’t like the fact that the Code of Service Discipline has a higher evidentiary threshold and the accused could potentially have the right to elect trial by court martial.  Unfortunately, in the course of my practice, I am noticing an increasing use of this remedial measure (and others) in lieu of disciplinary action under the Code of Service Discipline.

The point is that these two processes – the Code of Service Discipline and remedial measures (or other administrative action) – serve two distinct purposes.  The approach that I took when I was advising CF statutory decision-makers was that, as a general rule, the Code of Service Discipline should be used to address discrete breaches of discipline – individual ‘transactions’ – that required a sharp correction regarding the ‘habit of obedience’ or, where relevant, criminal misconduct.  Remedial or administrative measures should be used to address patterns or broad failings in conduct or performance.

And the selection of either, or both, represents a significant exercise of discretion.

And to exercise this discretion properly, the decision-maker requires a degree of knowledge of the underlying problem.  Sometimes it may be apparent early on.  Sometimes the relevant information will be identified during a unit disciplinary investigation.  Sometimes this information might not arise until a trial on the facts.  Consequently, a decision-maker must maintain an open mind and must understand that the exercise of discretion is an ongoing function.  Perhaps, most importantly, a decision-maker should not improperly fetter her or his discretion, nor should supervisors improperly fetter the discretion of subordinates.

 

Constraints on, and Fettering of, Discretion

There is a distinction between constraints and improper fettering of discretion.  For example, the legislative framework of the Code of Service Discipline imposes constraints on various decision-makers.  Commissioned officers and non-commissioned members at the rank of Warrant Officer or higher can only be tried by a Superior Commander.[14]  A commanding officer (CO) may delegate her or his powers of trial and punishment to another officer; however, the delegation must be in writing and the delegate must be at least of the rank of Captain and must have completed Presiding Officer Certification Training.[15]  A person who investigates an alleged service offence cannot preside over a summary trial relating to that alleged offence.[16]

All of these constraints limit (or fetter) the exercise of jurisdiction and discretion.  But they do not represent an improper fettering of jurisdiction or discretion.  All of these constraints are imposed by legislation – the same legislation that creates the duties, powers, and functions that are exercised under the Code of Service Discipline.  However, CF decision-makers can also impose constraints within this legislated regime.

When a CO delegates powers of trial and punishment, the CO can place limitations or caveats on that delegation: QR&O art 108.10.  These limitations are typically expressed in terms of: rank (e.g. a CO may choose not to delegate powers of trial and punishment regarding NCM of the rank of Sergeant); types of offences over which a ‘delegated officer’ might preside; or other contextual factors.  Technically, a CO could impose significant limitations (e.g. the CO could choose not delegate powers of trial and punishment regarding an accused at or above the rank of corporal) or could choose to delegate these powers only to one or two subordinates (or even to no one).  When exercising the discretion to delegate powers of trial and punishment, a CO has relatively broad discretion under the NDA and QR&O, but the delegations must be consistent with the powers and constrained granted and imposed under the legislation.  I suggest that none of the examples I provide in this paragraph represent improper fettering of discretion.

However, constraints are not solely legislative or derived from legislative functions and powers.  Some constraints are practical.  A CO of a 650-person infantry battalion would be hard pressed to administer discipline if she or he chose to delegate powers of trial and punishment to only one or two other officers.  Practical considerations also act to constrain or influence the exercise of discretion.  Again, these do not represent improper fettering.

When we speak of improper fettering of discretion, we mean constraints that are imposed arbitrarily, for an improper purpose, or which would prevent the open-minded or reasonably independent exercise of discretion.  For example, the manual B-GG-005-027/AF-011 Military Justice at the Summary Trial Level 2.2 states, at para 20 of Chapter 4: “It would be improper for a superior officer to produce a policy that puts rigid constraints on the factors to be considered by the presiding officer when making a decision at a summary trial.”  That is a rather broad (and vague) comment, so I will provide a more concrete example.

An example that has been given consistently in Presiding Officer Certification Training (POCT) relates to a commander who instructs subordinates to find people guilty of specific offences or to impose specific sentences.  In other words, using ‘negligent discharges’ as an example, it would be improper fettering of discretion (and rather clearly so) for a deployed Task Force Commander to tell his subordinates:

“I am sick and tired of all these [expletive] negligent discharges!  Starting now, I want any soldier who has a [expletive] negligent discharge to be charged, found guilty and sent [the expletive] home [i.e. repatriated]!”

You’d think that such comments by a senior or General Officer would be so clearly representative of improper fettering that it would not be necessary to use such an example in POCT to explain why it is wrong.  You’d think that it would not be necessary to explain why it is wrong.

But then again, you’d also think that it is not necessary to put labels on vending machines telling people that, if they try to tip them over to dislodge their contents, a person runs the risk of having the vending machine land on them.[17]

In the context of the Canadian Forces, that particular example in POCT is the label on the vending machine that is the Code of Service Discipline.  And, based upon my own experiences, there are still senior officers who choose, rather blatantly, to ‘tip the vending machine’.

 

Potential Pitfalls in the Exercise of Discretion

Most putative presiding officers will likely be alive to the potential fettering of their discretion by a superior.  The training they receive from the Office of the Judge Advocate General (OJAG) not only expressly addresses this issue, they are also advised by unit legal advisors when they exercise duties, powers, and functions relating to the Code of Service Discipline.  They will also generally have a degree of experience before being entrusted with these duties, powers, and functions.  All of these factors act as safeguards in the process, as do the post-trial review of the RDP by the unit legal advisor and the right of an offender to seek review of both a finding of guilt and sentence made at summary trial.

However, no individual safeguard is absolutely certain to prevent a miscarriage of justice, which is why there are several, overlapping safeguards.

What might be less apparent to a person exercising statutory duties, powers, and functions are the occasions in which she or he (often unknowingly) fetters her or his own discretion.  Such circumstances can be more subtle.  Using the example provided by the unnamed commenter, it would be an example of ‘self-fettering’ if a presiding officer assumed that she or he must impose a fine of $1,500.00 in all cases of a ‘negligent discharge’ in order to be fair.  Such an approach fails to recognize the principle that, although “… a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances …” (para 203.3(b) of the NDA) there are several individual factors for each offender that a presiding officer must consider upon sentencing (see article 104.14 of the QR&O).  And that it why it is crucial that a decision-maker understand the nature of the exercise of discretion within statutory decision-making and to maintain a truly open mind, and not simply a pretence of an open mind or a rote approach to discretionary decision-making.

A CF officer should be as meticulous in the application of the statutory decision-making under disciplinary and administrative regimes as she or he is in the planning or conduct of operations.  Both are exercised of duties, powers, and functions relating to the exerciser of leadership.

As I mention above, the exercise of discretion can start with a decision before an investigation is launched.  For example, if one member of a unit raises allegations of harassment by a peer, must the CO or other statutory decision-maker proceed with a disciplinary investigation, or can the CO, as Responsible Officer, proceed under the CF’s Harassment Prevention and Resolution Policy (DAOD 5012-0)?

I suggest that a CO has discretion to proceed with one or the other, or both, provided that the disciplinary process is completed first.[18]

And, if a CO decides to proceed first with a disciplinary investigation, the CO can still exercise the discretion, subsequently, to proceed instead under DAOD 5012-0.  However, as I have explained before, when so doing, the CO, as Responsible Officer, must be clear and transparent regarding the decision to proceed under the policy described under DAOD 5012-0 and must actually comply with the procedure described under that policy.  It would not be sufficient to rely on the disciplinary investigation to find the respondent ‘guilty’ in a process that complies with neither the Code of Service Discipline not the CF Harassment Prevention and Resolution Instructions.

Let’s use our ‘negligent discharge’ example to examine the various elements of discretion, and the potential pitfalls.

First, the variations on the example that I have set out would likely be viewed by many CF decision-makers as representing escalating examples of seriousness.  Some of the CF personnel who read this Blog may be inclined to suggest that “… any negligent discharge is serious because it demonstrates a failure to control ones’ service rifle properly!”  I do not disagree.  There is merit in the adage: “Train like you fight and you’ll fight like you train” (or variations on that sentiment).  However, when we are looking at negligence-based offences – and that is indeed what we are looking at in the variations of the example I have offered – part of the evaluation of the severity of the putative offence is the harm arising from the negligence.

If we look at ‘Variation One’ I suggest that there will be CF decision-makers (including commanding officers, ‘delegated officers’, senior NCOs and Warrant Officers) who might view the harm arising from the corporal’s negligence as being as much an indicator of a performance or training deficiency as it is disciplinary misconduct.

To be clear: in the example I have proffered, the corporal is already trained in the use of the service rifle.  There is no suggestion that this occurred during initial training on the service rifle.  Some CF decision-makers might view that negligence as something that warrants remedial training rather than a Code of Service Discipline charge.

For example, Major Tom, CO of The Royal Independent Flashlight Battery (RIFB), might conclude that the appropriate action in those circumstances would typically be remedial training for that soldier, while Major Major, Major Tom’s predecessor, may have been of the view that negligent discharges should generally attract disciplinary action.

Here’s the thing: conceptually, neither officer is incorrect, provided neither they, nor any supervisor, improperly fetters their discretion.  As I state above, the exercise of discretion is characterized by the existence of different options, all of which potentially fall within a range of reasonable outcomes.  And negligent handling of service rifles, particularly where no physical harm arises to another person, can be said to fall within both the ‘training’ and ‘disciplinary’ spheres.

Now, to be clear: I offer these comments knowing that the threshold for which a ‘negligent discharge’ properly attracts Code of Service Discipline sanction has in the past decade, been the subject of judgment by military judges.  That is discussed in Part II of this Blog article.  For the present, we will proceed with the hypothesis that ‘negligent discharges’, generally, potentially fall within both the ‘training’ and ‘disciplinary’ spheres.

It would not be improper for a CO to direct his subordinate leaders to treat incidents described in ‘Variation One’ as presumptively indicative of a training or performance deficiency and, barring other factors, will not generally be addressed under the Code of Service Discipline.  If it is predicated upon a reasonable and articulable rationale – e.g. that the ‘harm’ is best addressed via remedial training – such direction does not represent arbitrary or improper fettering of discretion.  After all, if that is the CO’s perspective, then even if such an incident were the subject of a disciplinary investigation and subsequent charge under section 129 of the NDA, it would be open to the CO, as a presiding officer, to exercise her or his discretion not to proceed with the charge for the very same reason.

Generally, the placing of caveats on laying charges in such circumstances (i.e. circumstances which will generally serve to limit the scope in which charges are laid) is far less likely to be challenged than the example of the Task Force Commander who wants soldiers “charged, found guilty, and sent home” (i.e. circumstances that direct not only that charges must be laid, but that the accused must be found guilty).  The latter type of order would give rise to a compelling argument that the discretion of all of the subordinate COs and delegated officers had been fettered to the point than an accused will not be offered a fair trial, even acknowledging and accepting the inherent limitation on the independence of Presiding Officers within the summary trial process.

Where a decision is made not to proceed with charges, statutory decision-makers must pay particular attention to the impact that such decisions may have on the morale and cohesion of a unit.  After all, the Code of Service discipline is intended to assist commanders with “… maintaining the discipline, efficiency and morale of the …” Canadian Forces.[19]  But it is not the only tool or function available to commanders to achieve these outcomes.  And, many presiding officers will stress the importance of general deterrence and “… sending a message to all members of a unit …” when imposing certain sentences.

That is one of the principal reasons why administrative measures, such as remedial measures, are ineffective disciplinary tools – privacy considerations bar promulgation of the details pertaining to this action.  Notwithstanding the dubious merit of the assertion in a Maple Leaf article on 1 August 2019 that “… 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 …” there are limits regarding the extent to which information on administrative measures may be made public.  It is markedly difficult to promote denunciation and general deterrence if the nature of administrative actions cannot be publicised.  On the other hand, speculation will certainly fuel the ‘rumour mill’.  Raise your hand if you think that the ‘rumour mill’ is a useful tool in maintaining the discipline, morale, and efficiency of the Canadian Forces.

But let’s take a look at an exercise of discretion relating to a ‘negligent discharge’ that might not assist in maintaining discipline, efficiency, and morale in the Canadian Forces.  When I was a young(ish) infantry officer, I deployed with a Battle Group on a ‘CDS-approved operation’.  This pre-dated the significant 1998 amendments to the Code of Service Discipline; however, this example can still serve an illustrative purpose.

As happens on such deployments some soldiers, of various ranks, had what would fall within the definition of ‘negligent discharge’ that I have provided.  The law of averages being what it is, many of the soldiers were relatively junior.  And, as the unnamed commenter suggests, they were charged, tried by summary trial, and were fined, rather consistently, $1,400.00.  That fine seemed to be applied, regardless of the rank of the offender, or the specific circumstances for each offence.  That is an object example of a presiding officers applying a ‘going rate’ to sentencing.[20]  Coincidentally, $1,400.00 was approximately the amount of ‘Operational Allowance’ (using that term generically) that a relatively junior member of the Battle Group would have received each month.

On one occasion, an officer at the rank of major, had (allegedly) what would fall within the definition of a ‘negligent discharge’ that I have provided.  Specifically (and, allegedly) he accidentally fired his 9mm Browning Hi-Power sidearm while in his accommodations.  I use the term ‘allegedly’ because he was not charged with a Code of Service Discipline offence, nor was he tried by any military tribunal.  And to be clear, as a major under the pre-1998 Code of Service Discipline, he could have been tried at a summary trial by a Superior Commander.  The Canadian Contingent Commander, a colonel, presumably had been granted the powers of an Officer Commanding a Formation, which would have placed that officer within the definition of a Superior Commander.[21]

Instead of being charged, the Battle Group chain of command passed, through the regular briefings or ‘morning prayers’, the information that the officer in question had made a $1,400.00 donation to the Regimental Fund.  So, all done and dusted, and everything is copacetic, right?  After all, the Regiment benefitted from the money, rather than remitting funds back to the Minister of National Revenue and the Consolidated Revenue Fund.  The officer in question was, in essence, if not in law, fined and had acknowledged his misconduct.  And the Battle Group avoided the rigamarole of having to set up a summary trial involving an officer who was not co-located with the Battle Group.  Who could reasonably complain?

Well … the troops for one (or 700).

Frankly, when this information was passed to us, I looked rather quizzically at my company commander when he intimated that this was an appropriate outcome.  Surely, I thought, he, as a much more experienced officer than I was at the time, would realize that the more junior members of the Battle Group (and likely some of the more senior members) would perceive this as a double standard.

Perhaps some people might conclude that a Code of Service Discipline conviction for an officer would be much graver than for a junior NCM, and that this justified markedly different treatment.

I must admit – I am not one of those people.

I will leave it to you, Dear Reader, to draw your own conclusions regarding the impact of the exercise of discretion in that circumstance.  The important lesson to learn from these examples is that the exercise of discretion must not be arbitrary.  It must be fair.  It must be reasonable.  The decision-maker must be able to articulate a reasonable justification.  And the statutory decision-maker must maintain an open mind throughout the process(es) in order to evaluate the potential impact of the exercise of discretion.

Certainly, as the harm arising from the ‘negligent discharge’ increases to the level of criminal wrong-doing, such as negligence causing bodily harm (Variation Six) the reasonableness of treating the matter solely as a ‘training issue’ will diminish.  And that is because the seriousness of negligence-based offences is determined by the seriousness of the consequences.

Indeed, as the seriousness of the circumstances increases, the discretion that a CO or related CF decision-maker may exercise will become increasing constrained by both the legislated regime and practical considerations.  For example, Variation Six can be described as criminal negligence.  While some of the other Variations might be the subject of a unit disciplinary investigation, Variation Six would invariably be investigated not just by the Military Police, but by the Canadian Forces National Investigation Service (CFNIS).[22]

A CO does not have the power (i.e. discretion) to dictate whether or not the CFNIS will investigate the circumstances of an incident.  Nor may a CO take steps that would interfere with that investigation.  However, once the investigation is completed, and if a Criminal Code charge is laid under the Code of Service Discipline (in the context of Variation Six, this would likely be pursuant to paragraph 130(1)(b) of the NDA), then a CO may exercise discretion.

If the CFNIS lay a charge in such circumstances, it would likely not be under section 129 of the NDA (which is the provision that has, historically be relied upon for ‘negligent discharges’ where the consequences of the negligence were not serious).  Instead, the charge would likely be under either section 124 of the NDA ‘Negligent Performance of a Military Duty’ or section 221 of the Criminal Code ‘Causing Bodily Harm by Criminal Negligence’.  It is possible that both of these charges could be laid in the alternative.

While a CO does not have the power (discretion) to influence the CFNIS investigation directly, the CO could, arguably, choose not to dispose of the charges by applying to a referral authority.  The CO would be obliged to comply with art 107.12 of the QR&O; however, the CO does have that discretion.  If the RDP included the Criminal Code charge ‘Criminal Negligence Causing Bodily Harm’ or ‘Negligent Performance of a Military Duty’, the charges could not be tried by summary trial.  A CO’s discretion would be limited to deciding whether to apply to a ‘referral authority’ for disposition of the charges (art 109.03 of the QR&O).   Of course, if the CO chooses not to apply to a referral authority, the charge layer from the CFNIS has the power (discretion) under art 107.12(3) of the QR&O to apply directly to the referral authority.

Regardless of who applies to the Referral Authority, where a charge cannot be tried by summary trial (as is the case with ‘Criminal Negligence Causing Bodily Harm’ or ‘Negligent Performance of a Military Duty’) the Referral Authority does not have the discretion to choose not to refer the matter to Director of Military Prosecutions (DMP).  The Referral Authority has the duty to refer the matter to DMP.  DMP, subsequently, may exercise prosecutorial discretion in relation to a variety of decisions.

 

Conclusion of Part I

This concludes our discussion of the exercise of discretion within the context of the exercise of statutory duties, powers, and functions by CF decision-makers.  While I would not suggest that I have provided a comprehensive (or definitive) discussion of these issues, I trust that I have provided a meaningful discussion regarding:

  • The nature and objectives of the exercise of discretion;
  • Opportunities for the exercise of discretion;
  • Constraints on, and Fettering of, discretion; and
  • Potential pitfalls in the exercise of discretion.

 

We will continue the discussion in Part II of this article, in which we will examine the nature of the Code of Service Discipline in the administration of justice in the CF.  We will examine the nature of the frustration conveyed by our unnamed LinkedIn commenter.  In particular, is it accurate to characterize the Code of Service Discipline as consisting of both a ‘disciplinary regime’ and a ‘criminal regime’?  Has the ‘imposition of lawyers’ ruined the ‘disciplinary’ nature of the Code of Service Discipline?  If the chain of command has, indeed, turned away from the Code of Service Discipline in favour of more easily manipulated administrative measures, what is the implication for military justice?  And, if this is true, what could be done and what is being done, to rectify this situation?

 

[1] Context is, after all, the indispensable handmaiden of proper characterization: Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 SCR 877, 939, per Bastarache J.

[2] The commenter distinguishes between a ‘disciplinary’ system and a ‘justice’ system.  I suspect that what he meant by ‘justice system’ was a ‘criminal justice system’.  Although this is an assumption on my part, it would appear to be consistent with the nature of the comment.  I would suggest that any adjudicative process established under statutory authority – whether it is the Code of Service Discipline, an administrative review process, or a professional regulatory body could be termed a ‘justice process’.  I suspect that the ambiguity in the comment arose from a lack of familiarity with the relevant terminology and/or the limited space in which a comment might be offered in a LinkedIn post.

[3] Rory Fowler “The Canadian Forces Grievance Process: How Adequate an Alternative Remedy Is It?” (2014) 27 Can J Admin L & Prac 277.

[4] Mitchell v The Queen, [1896] 1 QB 121n; Leaman v The King, [1920] 3 KB 663; Bacon v The King (1921), 61 DLR 455 (Exch Ct); Gallant v The Queen (1978), 91 DLR (3d) 695 (FC); Gligbe v Canada, 2015 FC 1265.

[5] Attorney-General v De Keyser’s Royal Hotel Limited, [1920] AC 508, [1920] UKHL 1; Parliament of Canada Act, RSC 1985, c P‑1, s 4; R v Operation Dismantle Inc., [1983] 1 FC 745 (FCA), 780, aff’d [1985] 1 SCR 441, 464.  Note what section 19 of the National Defence Act, RSC 1985, c N-5 states about ‘powers of command’: “The authority and powers of command of officers
and non-commissioned members shall be as prescribed in regulations.”

[6] To my knowledge, the only instance in which a Queen’s Commission has been revoked by the Governor General since the ‘modern’ NDA was enacted in 1950 was when convicted murderer, Russell Williams, was subject to such an order.  It was, presumably, predicated upon his convictions: “Russell Williams expelled from military”, CBC online: https://www.cbc.ca/news/canada/russell-williams-expelled-from-military-1.910425#:~:text=Hubert%20Genest%2C%20spokesman%20for%20the,murders%20in%20Ontario%20of%20Cpl.

[7] This can be distinguished from the award of honours: Black v Canada (Prime Minister) (2001), 54 OR (3d) 215 (CA).  Consider as well that the award and revocation of decorations and medals is regulated under QR&O provisions, enacted under s 12(2) of the NDA: see Chapter 18 of the QR&O, particularly arts 18.27 to 18.29.

[8] Re: Rizzo & Rizzo Shoes Ltd., [1998] 1 SCR 27.

[9] See DAOD 2017-1 Military Grievance Process, Part 8.

[10] Canadian Forces Grievance Process Ex Gratia Payments Order, PC 2012-0861, 19 June 2012.

[11] We must also remember that, unlike many federal “… commissions, boards, or tribunals …”, the ‘redress authorities’ under the CF grievance process are not created for the sole of principal reason of exercising duties, powers , and functions under the CF grievance process.  Unlike, for example, the Veteran’s Review and Appeal Board, ‘redress authorities’ are not created under an Act of Parliament for the sole purpose of adjudicating specific disputes or grievances.  The functions of initial and final authority are imposed upon certain officers in furtherance of what can generally be characterized as ‘leadership responsibilities’ under the NDA.  Their ‘power of redress’ is tied to their leadership functions.  This distinguishes these statutory decision-makers from administrative tribunals that are created, and empowered, under an Act of Parliament, for specific adjudicative functions.

[12] I note, tangentially, that the actual right granted to an accused pertaining to disciplinary tribunals is the right to elect trial by court martial, not a ‘right’ to elect trial by summary trial.

[13] I use this term rather broadly, to signal one or more of the various allowances – taxable or not – that A CF member might received while deployed on operations.  These may vary significantly, depending upon the nature of the deployment, and various factors that are specific to the CF member.

[14] QR&O, art 108.12.

[15] QR&O, art 108.10.

[16] QR&O, arts 108.09 and 108.13.

[17] And if the ‘take away’ that you wish to attribute to this anecdote, Dear Reader, is that lawyers are to blame for the existence of such labels, then you are free to do so.  It may even make you feel good to ‘blame the lawyers’.  But the point is that the warning exists because someone was simple-minded enough to try to perform such actions on a vending machine, and then blamed the owner of the vending machine or premises for the misfortune that the person visited upon him- or herself.  The same analogy can be applied to the senior officer who failed to grasp the most rudimentary of fairness requirements.  The warning is there not just for the commander who fails to understand even basic fairness, but for all persons who rely on the Code of Service Discipline to enforce discipline.  One commander, in exercising powers improperly, can potentially jeopardize the integrity of the very system they are relying on.  The same goes for other processes established under the authority of the NDA.

[18] In Phillips v Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy),  [1995] 2 SCR 97 [Westray], the Supreme Court of Canada recognized that, where an administrative proceeding is conducted in parallel to a criminal prosecution, adequate safeguards must be provided to address the tension between the competing right to silence in the criminal process and the right to make informed representations in the administrative process.  In CF adjudicative mechanisms, this typically – but not always or consistently – results in steps to exhaust disciplinary processes before the administrative process are initiated or completed.

[19] R v Généreux, [1992] 1 SCR 259; R v Moriarity, [2015] 3 SCR 485; R v Stillman, 2019 SCC 40.

[20] I am not suggesting that consistency in sentencing is a ‘bad thing’.  However, if decision-makers are going to be slavishly consistent, to the penny, they must still explain why they arrived at a specific sentence, and that explanation must be reasonable, if the sentence is to serve the purposes outlined at article 104.14 of the QR&O.

[21] Frankly, I would suggest that the attention to detail regarding whether senior officers – such as Contingent Commanders or Task Forces Commanders – have actually been assigned the powers and functions of ‘formation commanders’ while deployed on operations may have varied over the years and such authority may not always have been clear or, indeed, actually conferred.

[22] While I would prefer to provide a link to a web-based description of Military Police and CFNIS investigative policy, that information is no longer publicly accessible.  There is an ‘archived’ version of this information; however, it cannot be relied upon as a current articulation of that policy:  http://www.forces.gc.ca/en/news/article.page?doc=the-canadian-forces-national-investigation-service/hnps1u2k.

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