Duties of Officers and NCMs – Part I

 

I suspect that the Canadian military and veteran community is focused, at least in part, on the protests that have arisen in Ottawa and elsewhere in Canada, as well as on some videos posted on social media.  While the latter issue merits discussion in this Blog, that will have to wait for another day.  In the meantime, I have provided some commentary in the Global Military Justice Reform Blog, edited by my American colleague, Gene Fidell:  Canadian Forces Personnel & COVID-19 Commentary.

Today’s Blog post, and the two that will follow, examine a much more fundamental issue, and one that I forecasted in my last Blog post.    We will examine a couple of key provisions in the Queen’s Regulations and Orders for the Canadian Forces (QR&O) regarding the general duties and obligations for officers and non-commissioned members (NCM): article 4.02 and 5.01 of the QR&O.

These provisions are regularly cited in support of the administration of the affairs of the Canadian Forces (CF), from Remedial Measures to grievances to the Code of Service Discipline.  The emphasis that has been placed on the ‘duty to report’ in terms of sexual misconduct[1] – or, indeed, any misconduct – relies on these provisions as the basis of that ‘duty’.

Frankly, the concept of a ‘duty to report misconduct’ is neither particularly Earth-shattering, nor new.  However, as often as these provisions are cited, the extent to which they are truly understood and followed, including the consistency with which they are followed, is debatable.

Therefore, I propose to present the two provisions and discuss some of the key elements thereof.  They bear marked similarity to each other, with some distinctions arising from the differences between the status of officers and NCM.  (Despite a relatively egalitarian approach in recent years to the standing of officers and NCM in the CF, there do remain some distinctions.)

In the present Blog post, I will set out the two QR&O provisions and identify the three general elements that we will discuss in the present Blog post and the two that will follow.

 

Article 4.02:

[NB: Article 4.01 states: “An officer is responsible to his immediate superior for the proper and efficient performance of his duties.”]

 

(1) An officer shall:

a. become acquainted with, observe and enforce:

i. the National Defence Act,

ii. the Security of Information Act,

iii. QR&O, and

iv. all other regulations, rules, orders and instructions that pertain to the performance of the officer’s duties;

b. afford to all persons employed in the public service such assistance in the performance of their duties as is practical;

c. promote the welfare, efficiency and good discipline of all subordinates;

d. ensure the proper care and maintenance, and prevent the waste, of all public and non-public property within the officer’s control; and

e. report to the proper authority any infringement of the pertinent statutes, regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service Discipline when the officer cannot deal adequately with the matter.

(2) Subparagraph (1)(e) does not apply to any communication that the Director of Defence Counsel Services, or a barrister or advocate who assists the Director, receives in the course of the provision of legal services under article 101.11 (Legal Services Provided by Director of Defence Counsel Services).

 

Article 5.01:

[NB: This single article is the totality of Chapter 5 of the QR&O.]

 

A non-commissioned member shall:

a. become acquainted with, observe and enforce

i. the National Defence Act,

ii. the Security of Information Act,

iii. QR&O, and

iv. all other regulations, rules, orders and instructions that pertain to the performance of the member’s duties;

(See articles 1.22 – Accessibility of Regulations, Orders and Instructions and 4.26 – Publicity of Regulations, Orders, Instructions, Correspondence and Publications.)

b. afford to all persons employed in the public service such assistance in the performance of their duties as is practical;

c. promote the welfare, efficiency and good discipline of all who are subordinate to the member;

d. ensure the proper care and maintenance and prevent the waste of all public and non-public property within the member’s control; and

e. report to the proper authority any infringement of the pertinent statutes, regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service Discipline.

 

Both provisions are Ministerial regulations enacted under the authority of subs 12(2) of the National Defence Act (NDA).

The similarities are apparent.  Para 5.01(e.) differs from para 4.02(1)(e.) largely because NCM are not generally empowered directly under the NDA, or QR&O, to take statutory action for infringement of statutes, regulations, rules, orders, or instructions by someone subject to the Code of Service Discipline.  This does not mean that NCM do not have a vital role to play in the various processes created by, or under the authority of, the NDA; it is principally because the principal authority is vested in certain officers, and then delegated or devolved to others.

Similarly, under policy instruments like Defence Administrative Orders and Directives (DAOD), the decision-making authority is vested in certain officers, notwithstanding the various NCM may have important roles to play.

 

Scope of Discussion

I wish to highlight three specific portions of these provisions:

1. Paras 4.02(1)(a) and 5.01(a);
2. Paras 4.02(1)(c) and 5.01(c); and
3. Paras 4.02(1)(e) and 5.01(e).

 

The goal is not to offer a comprehensive examination of all potential implications of these provisions.  Rather, the goal is to set the stage for future discussions in which these provisions are relevant.  In other words, this is food for thought.

I will discuss the first pair of provisions below, and I will examine the two subsequent pairs of provisions in the two Blog posts that will follow later this week.

 

Paras 4.02(1)(a) and 5.01(a)

Note that these provisions require all officers and NCM to familiarize themselves with the NDA, the Security of Information Act, the QR&O, and all other regulations, rules, orders, and instructions that pertain to the performance of their duties.  And let me tell you: there are A LOT of other regulations, rules, orders, and instructions that pertain to the performance of an officer’s or NCM’s duties.  And I’m not even including CANFORGENs in that tally, which should not be used as policy instruments, notwithstanding that some CF decision-makers still try to use them for that problematic purpose.

Note that these provisions do not apply solely to the officers and NCM who are the subjects of powers and functions exercised, or decisions made and actions taken, under these statutes, regulations, orders, etc.  They also apply to the officers and NCM who perform these functions, exercise those powers, make those decisions, and take those actions under the authority of the statutes, regulations, orders, etc.

The reason for these provisions is likely obvious.  If CF personnel are going to be held a specific standard of conduct and performance, if they are going to be subject to specific norms, they need to familiarize themselves with those standards and norms.  These Ministerial regulations create a duty for all CF personnel to be familiar with, observe, and enforce the framework that governs the administration of the affairs of the CF.

It’s like the statutory and regulatory public law version of ‘Hair-club for Men’ – the officers (and NCM) wielding statutory powers aren’t just empowered by those provisions – they are subject to them as well.

Unfortunately, not infrequently, I encounter circumstances in which it is rather evident that some officers and NCM have not adequately acquainted themselves with the NDA, the QR&O, and all other regulations, rules, orders and instructions that pertain to the performance of their duties (and, therefore, do not observe and enforce them).  If they did, I would not encounter the errors by statutory decision-makers that I do encounter.

I do not wish to give an erroneous impression.  I am not suggesting that all, or even a majority of CF decision-makers fail to adhere to their obligations.  I cannot offer compelling data of the number of such occurrences, principally because I am not in a position to collect such data.  Many of the relevant exercises of powers and functions constitute personal information regarding individual CF personnel, and those decisions are not publicly available.  And, in any event, the institution itself is in a far more advantageous position to collate such data.  But there is not a lot of such information collated, and even less is made public.

Consequently, a fair bit of what I discuss regarding these issues is anecdotal, not just in the present Blog post, but generally.  However, notwithstanding this shortcoming, there are still valuable lessons to be learned.

Errors are made.  Sometimes those errors are significant, and sometimes those errors are ones that ought to be easily avoided.  And such errors tend to signal that decision-makers and their support staff are not actually acquainting themselves with “…all other regulations, rules, orders and instructions that pertain to the performance of …” their duties.

 

Notice of Intent to Issue Counselling & Probation – Disclosure

[NB: The following anecdote has been anonymized, but it reflects the salient points that arose.  And this anecdote is not an isolated incident, and is representative of many of the matters in which I have been involved.]

Recently, I was contacted by a CF member who received a Notice of Intent (NoI) for Counselling & Probation (C&P) for alleged sexual misconduct.  As is often the case, the matter had been the subject of a unit disciplinary investigation (UDI).  Where a matter is investigated by unit personnel and not the Military Police, that tends to be indicative of allegations of wrong-doing that do not rise to the level of a Criminal Code offence.  Criminal offences would typically be investigated by the Military Police, with more serious allegations investigated by the Canadian Forces National Investigation Service (CFNIS).  So, we can draw the conclusion that the allegations were likely on the lower end of the spectrum of alleged misconduct, such as improper comments or social media communication.  And, in this particular anecdote, that appears to be the nature of the allegation.

The UDI was conducted relatively quickly.  However, it took over 3 months for the chain of command to take any action.  It appears that most of this delay arose waiting for legal advice from the unit legal advisor and from the staff at Director Military Careers Administration (DMCA), who had been consulted.

The unit leadership eventually decided to take ‘administrative action’ rather than pursue the matter under the Code of Service Discipline.  This decision is noteworthy, as the unit had apparently initially proceeded on the presumption that they would address the allegations as a disciplinary matter – i.e. it was investigated as a breach of discipline using a UDI.

I have discussed before – repeatedly – the problematic nature of using a disciplinary investigation for an administrative purpose, such as Remedial Measures.  See, for example:

“Discretion is the Better Part of Valour Statutory Decision-Making, Part I and Part II”

A UDI or a Military Police investigation can be used to support administrative actions and decision-making.  However, additional safeguards in such decision-making are necessary.  One of the principal reasons for this is that disciplinary investigations often do not include all potential sources of information.  During a disciplinary or police investigation, the subject of the investigation has a right to silence protected under the Canadian Charter of Rights and Freedoms (Charter).  And a UDI is manifestly not the same as an harassment investigation conducted under DAOD 5012-0 and the Canadian Forces Harassment Prevention and Resolution Instructions.

Disciplinary action and administrative action taken under the NDA are distinct.  Therefore, I get concerned when I hear that a unit is advised to forego disciplinary action against a ‘suspect’ in favour of “… taking swift and decisive administrative action …”.  After all, isn’t the Code of Service Discipline designed to take swift and decisive action?

It causes me to wonder if the real motive behind such an exercise of discretion is that the chain of command wishes to avoid permitting the accused – or respondent – to avail him- or herself of all of the procedural and substantive protections that are offered under the Code of Service Discipline.  It causes me to wonder if the chain of command is attempting to avoid judicial scrutiny of their decision-making.

But more on that later.

I wish to focus on what occurred when the CF member received the NoI to be placed on C&P.  I note, tangentially, that the CF member had not been subject to any prior Remedial Measures (for sexual misconduct or otherwise).

When he received the copy of the NoI for C&P, it was not accompanied by any disclosure.  Indeed, in Part 3 of the NoI form (DND 2827-E) in which the Initiating Authority (in this case, the commanding officer) was required to identify the documents that “… will be considered when deciding whether to initiate C&P, and are hereby disclosed to [the recipient] …” the Initiating Authority listed DAOD 9005-1, Sexual Misconduct Response and DAOD 5019-4, Remedial Measures.  Those are CF policy instruments.  They are the types of ‘orders’ mentioned in paras 4.02(1)(a) and 5.01(a) of the QR&O.  They do not represent the type of documentary evidence that is anticipated in Part 3 of the Form 2827-E.  There was no mention of the UDI upon which the Initiating Authority was clearly relying.

When the CF member queried why he was not receiving any disclosure, he was told by the unit Adjutant words to the effect of: “You aren’t getting any disclosure; you know what you did.”

In light of the fact that Part 2 of the same form did not mention dates, times, locations, or the names of any other people involved, the pre-supposition that the recipient knew precisely what the allegations were is problematic.  Remember, at this point in time, the Initiating Authority is relying upon a UDI, that may very well not include any statements from the person who is accused of wrong-doing, and which has not been tested by any reliable process, including a summary trial.  These are simply allegations at this point.  The recipient of the NoI may well have little or no knowledge of the allegations.  Presumably, he was expected to intuit the basis of the C&P.

But that’s not even the principal problem with the response that he received.  It is far more basic and foundational than that, and it pertains to article 4.02(1)(a) of the QR&O.

The Initiating Authority listed DAOD 5019-4, Remedial Measures in Part 3 of the NoI form (DND 2827-E) as one of the ‘documents’ upon which the Initiating Authority was relying.  That’s not really the purpose of that portion of the form; it is principally for listing or identifying the documentary evidence upon which the Initiating Authority intends to rely.  Moreover, since the form itself relates to Remedial Measures under DAOD 5019-4, it is a safe assumption that the Initiating Authority plans on relying on DAOD 5019-4.

But let’s run with what is on the form.  The Initiating Authority states that he or she is relying on DAOD 5019-4.  Presumably, then, The Initiating Authority, and the unit Adjutant, have reviewed that policy.  In any event, by virtue of para 4.02(1)(a) of the QR&O, the Initiating Authority and the Adjutant are obliged to acquaint themselves with DAOD 5019-4, and to observe and enforce those provisions, when exercising those powers and functions.

DAOD 5019-4 was approved and issued by Chief of Military Personnel (CMP) on behalf of the CDS.  Section 49 of the NDA empowers the CMP to do so, and section 18 of the NDA empowers the CDS to issue such direction to the CF as part of his control and administration over the CF.

Article 6.5 of DAOD 5019-4 sets out a table regarding “Notice of Intent and Initiation of C&P” and sets out mandatory steps in the process.

Step 1 in the process requires the Initiating Authority to complete Form DND 2827-E (or 2827-F in French), which includes “… the reasons that support the initiation of C&P.”  It is debatable whether the form in this particular case met that requirement.  Often, in my experience, this portion of the NoI for C&P, and the subsequent DND 2826-E used to ‘issue’ the C&P, typically are written in a manner reminiscent of the ‘particulars’ on a Record of Disciplinary Proceeding (aka a ‘charge sheet’).  That tends to signal the true intent of such Remedial Measures – they are used as improper substitutes for a prosecution under the Code of Service Discipline.

In any event, it is incontrovertible that the Initiating Authority failed (initially) to meet the second step in the process:

• The IA must disclose to the CAF member copies of all documents that:
  • substantiate the proposed C&P; and
  • are to be considered before making a final decision.

 

When the CF member received the NoI for C&P, he asked why he was not receiving disclosure.  Initially, he was told that he wasn’t going to receive disclosure, because ‘he knew what he did’.  He did, eventually, receive disclosure – of a sort.  There were conditions placed on that disclosure.  He was not actually provided copies of the documents.  He was allowed to review the disclosure in a ‘controlled environment’.  He was permitted to take notes, but he was not permitted to make actual copies of any of the documents.

And, while such disclosure could be characterized as meeting the minimum requirements of Step 2 of article 6.5 of DAOD 5019-4, that kind of controlled disclosure is problematic.  If the CF member wishes to challenge the C&P – based upon the assumption that there is likely little likelihood that his chain of command will be dissuaded from using the most severe form of Remedial Measure based upon untested evidence – he will have to rely on the CF’s ‘adequate alternative remedy’ to litigation: the CF grievance process.

Unfortunately, when presenting his grievance, the CF member won’t be able to present the initial authority (who will necessarily have to be senior to CF member’s commanding officer, who was the Initiating Authority for the C&P) with all relevant information, because he won’t actually have copies of that information.  Hopefully, if he does bring a grievance, the Initiating Authority will then be obliged to provide copies of all of the relevant evidence upon which the Initiating Authority relied.

However, as I learned early in my military career: ‘Hope is not a method’.

I mention this to illustrate just how bloody-minded such a tactic of ‘restricting disclosure’ can be.  It’s an administrative process.  It is subject to the CF grievance process.  That information will have to be disclosed fully eventually.

But the main purpose of this anecdote is to demonstrate the importance of ensuring that everyone complies with paras 4.02(1)(a) and 5.01(a) of the QR&O, and not just those who are one the ‘receiving end’ of decisions and actions.  This is but one anecdote of many.

I could give the Adjutant and commanding officer (Initiating Authority) described above the benefit of the doubt.  After all, they did, eventually, correct their error.  The response by the Adjutant may well have been an off-hand remark.  But I am not inclined to do so, and I have compelling reasons for that reluctance.

First, placing someone on C&P is not an insignificant act.  By its very definition, it is the last step in assisting a CF member with salvaging his or her career.  The next step in a progressive application of CF policy (not that this instance represents progressive action) would be to issue a Notice of Intent to Recommend Release, followed by an Administrative Review by DMCA, and, potentially, compulsory release.

Second, this was a deliberate administrative act.  It began with a UDI.  Presumably, the unit sought legal advice on whether to proceed under the Code of Service Discipline or an administrative process.  Interestingly, the advice appears to have been that the administrative process would be ‘swift and decisive’.  That tends to give rise to the corollary question: if the administrative process is ‘swift and decisive’, what do the unit legal advisors think the Code of Service Discipline represents?

Third, it should not have come as a surprise to the Adjutant or Initiating Authority that the affected CF member would want disclosure.  The DAOD clearly indicates that he is entitled to disclosure.  Moreover, if the Adjutant or Initiating Authority had been subject, themselves, to similar action, I am willing to bet that they would have wanted disclosure too.  As I have indicated before in this Blog, many errors in the administration of the affairs of the CF could likely be avoided if the decision-makers or administrators applied the ‘Golden Rule’ in their process.

Fourth, in addition to having access to legal advice without personal expense to themselves, the relevant DAOD is written in clear and unambiguous language.  True, as I mention above, the CF has a multitude of instructions, orders, directives, etc. relating to its governance.  There is a lot for a decision-maker to know.  But DAOD 5019-4 is readily available – even to civilians – via the DND Corporate Services website page for DAOD.  The Initiating Authority made express mention of DAOD 5019-4 in the NoI form.  And DAOD 5019-4 is not an obscure directive.  The chain of command relies on it on a regular basis.

Finally, there is a degree of irony when decision-makers in the chain of command take punitive administrative action against a subordinate for failing to comply with one or more “… regulations, rules, orders and instructions that pertain to the performance of the [subordinate’s] duties …” when those same decision-makers fail to comply with the very directive that authorizes the action that they are taking.

In fact, it’s more than ironic; it’s rank hypocrisy.

And it happens more frequently than it should.

 

Improper Use of Administrative Review

One of the most significant examples is the repeated use by DMCA of Administrative Review under DAOD 5019-2, as an improper substitute for an harassment investigation under DAOD 5012-0.  I have repeatedly encountered Administrative Reviews conducted by DMCA, which alleged misconduct contrary to DAOD 5012-0 (essentially ‘sexual harassment’) that rely on untested disciplinary investigations as justifications for significant adverse action taken without the benefit of true procedural fairness.  There are commonalities in many of these administrative reviews:

• Disciplinary investigations are conducted, either UDI conducted by unit personnel or investigations by the Military Police;
• No charges are laid, even though the alleged misconduct is characterized as being a very serious breach of discipline or ethics;
• Instead, administrative action is taken either under DAOD 5019-4 Remedial Measures, or DAOD 5019-2 Administrative Review;
• In some cases, the untested disciplinary investigation will be used to justify a Recommendation for Compulsory Release, followed by an Administrative Review;
• The disciplinary investigations are often not disclosed to the CF member who is the subject of the Administrative Review. When disclosure is offered, it is typically limited to the investigation summary.  Witness statements are often not disclosed.  It is rare for the entire, untested, disciplinary investigation to be disclosed.  The investigation summary is essentially a hearsay summary offered by the investigator.

 

Those practices alone denote various shortcomings in procedural fairness.  However, the principal shortcoming is the abuse of process that arises from the failure to use one of the processes that the affected CF member has a legitimate expectation will be used: either the Code of Service Discipline or DAOD 5012-0 and an harassment investigation under the CF Harassment Presentation and Resolution Instructions.

I have discussed this phenomenon previously: The Right Tool for the Job: Administrative Review is neither a Code of Service Discipline prosecution nor an Harassment Investigation.

The above-mentioned Blog post delves into this issue in detail.  However, I will summarize it here.  When the CF chain of command receives a complaint of ‘sexual misconduct’ in the form of ‘sexual harassment’, there is more than once course of action that they can pursue.  They can deal with it under the Code of Service Discipline, or they can deal with it using a non-disciplinary administrative process under DAOD 5012-0.  They can even use both, provided that, generally, the disciplinary process precedes the administrative process[2].

What typically happens is that they use a little bit from ‘column A’ and a little bit from ‘column B’ in a disciplinary porridge that does not comply with either process.

Typically, a disciplinary investigation will be conducted, but charges are not laid.  Then, the untested disciplinary investigation will be relied upon by the chain of command either to place the accused – sorry … respondent – on a Remedial Measure (typically C&P), or they will proceed straight to an Administrative Review by DMCA, followed by compulsory release.

The problem is that Administrative Review is not designed to weigh untested evidence, particularly where credibility and reliability is at stake.  In contrast, disciplinary tribunals under the Code of Service Discipline (summary trials and courts martial) are designed precisely for that purpose.  But, as I say, those are often not used.

There is an administrative alternative: Harassment Investigations under DAOD 5012-0 and the CF Harassment Prevention and Resolution Instructions.  And, while this process is not as robust a mechanism for testing evidence as a court martial, it is manifestly better suited than an Administrative Review.  And that is because an Administrative Review is not designed to be an investigation and it is not designed to receive and weigh previously untested evidence.

An Administrative Review is essentially a ‘file review’.  It is invariably a documentary review.  The process reviews outcomes from other processes – often properly constituted tribunals, or, at the very least, proper administrative processes designed to receive and evaluate evidence.

An Administrative Review can incorporate findings and sentences from Code of Service Discipline proceedings (summary trials or courts martial).  It can incorporate findings from civil courts.  It can incorporate findings from Harassment Investigations.  It can even incorporate prior recourse to remedial measures.  However, when the fairness of those prior Remedial Measures is challenged by grievances, DMCA needs to be cautious about relying on such potentially flawed outcomes if the grievance process has not yet run its course.  Remember: the CF grievance process is the ‘adequate alternative remedy’ to litigation and is a CF member’s sole opportunity to challenge the asymmetric decision-making authority of the CF chain of command.

However – and I cannot stress this too much – Administrative Review is not a substitute for these processes.

So, if the chain of command receives a complaint of harassment, they can deal with it as a disciplinary issue under the Code of Service Discipline, or they can deal with it as an harassment complaint under DAOD 5012-0.  Both the complainant and the respondent have a legitimate expectation that CF decision-makers will use at least one of these two processes (or both, provided that the Code of Service Discipline is used first).

In particular, since the accused/respondent will bear the brunt of the coercive powers granted to the chain of command under the NDA, the legitimate expectations of the accused/respondent are relevant concerns.

CF decision-makers like DMCA must become acquainted with, observe, and enforce, such regulations, rules, orders, and instructions.  When a CF decision-maker – such as DMCA – fails to use the processes that are expressly created to deal with such matters, those decision-makers infringe upon the affected CF member’s legitimate expectations.  This is a procedural error that undermines the procedural fairness of such decision-making.  It constitutes an abuse of process.  It is manifestation of a failure to comply with art 4.02 of the QR&O.  And, since DMCA typically takes adverse action against CF personnel because of their failure to comply with the NDA, the QR&O, or other regulations, rules, orders and instructions that pertain to the performance of their duties, it gives rise to something else.

It gives rise to hypocrisy.

 

We will next turn to paras 4.02(1)(c) and 5.01(c) of the QR&O, in particular, why that provision is not concerned solely with ‘discipline’.

 

[1] See Defence Administrative Order and Directive (DAOD) 9005-1 Sexual Misconduct Response, article 5.1: <https://www.canada.ca/en/department-national-defence/corporate/policies-standards/defence-administrative-orders-directives/9000-series/9005/9005-1-sexual-misconduct-response.html>.

[2] As a general rule of thumb, the suspect’s ‘right to silence’ in a criminal or disciplinary investigation, protected under section 7 of the Charter, will conflict directly with the right to make informed representations in an administrative process.  Consequently, the disciplinary process typically must be exhausted first, unless safeguards are put in place to ensure that statements made in the administrative process do not impair the suspect’s right to silence.