Duties of Officers and NCMs – Part II

“Promote the Welfare, efficiency, and good discipline of all subordinates”

[Author’s Note: My initial intent was to present a 3-Part series on the ‘Duties of Officers and NCM’ over the course of a couple of weeks.  Part I of this series was posted on 14 February, and my intent was to publish Parts II and III on the successive Mondays, 21 and 28 February.  However, that did not arise, in part due to the Russian invasion of Ukraine – which I consider to be an act of aggression as that war crime is defined under the Rome Statute.  Other priorities also intervened.  Frankly, Dear Reader, I did not have the heart to publish those Blog posts – as important as I consider them – while Russia was amassing forces on its border with Ukraine and, later, when Russia invaded.  However, the Rule of Law remains a vital factor, both under International Humanitarian Law and the Law of Armed Conflict, as well as more ‘mundane’ aspects of the governance of the Canadian Forces.  Therefore, notwithstanding that there are certainly topics regarding the laws of war upon which I could write, I will adhere to my intended course of action – albeit, much later than intended.]

Introduction

In Part I of this series, I set out the content of articles 4.02 and 5.01 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), which establish similar duties and functions for officers and non-commissioned members (NCM), respectively.  In Part I, I provided some general observations regarding these provisions, and discussed their relevance in two of the more common ‘administrative’ actions that can be taken by the ‘chain of command’ when addressing alleged misconduct by subordinates: remedial measures (often Counselling & Probation, or C&P) under Defence Administrative Order and Directive (DAOD) 5019-4; and, Administrative Review under DAOD 5019-2.

I use inverted commas for the term ‘administrative’ to distinguish that category of statutory decision-making from decision-making under the Code of Service Discipline, which could be characterized as ‘disciplinary’ decision-making.  For practitioners and scholars of public and administrative law outside the paradigm of the Canadian Forces, this distinction can sometimes be misleading or problematic, so I will offer some observations here in order to ensure clarity of subsequent discussion.

Administrative and Disciplinary Decision-making in the CF

A not-insignificant category of public and administrative law concerns professional regulation.  The governance of professions such as those of doctors, nurses, law enforcement officers, lawyers, and government officials has given rise to a wide array of case law in the field of public and administrative law.  These governance regimes are often described, within respective professions, as ‘disciplinary’ processes.  For example, where a licensee of the Law Society of Ontario is the subject of a complaint relating to Law Society’s By-Laws or Rules of Professional Conduct, the licensee could find him- or herself the subject of an investigation under the Law Society Act and could eventually find him- or herslf before a Hearing Panel of the Law Society Tribunal (albeit, typically for serious matters that cannot be addressed by less formal mechanisms) which conducted Regulatory Hearings, which some people might refer to as a disciplinary process.  The Hearing Panel can impose a (limited) range of penalties that, other than a fine, typically revolve around the licensee’s license or standing (e.g. formal warning, temporary suspension of licence, or revocation of licence – disbarment).

Professional regulation that is characterized as a ‘disciplinary process’ is markedly different from the CF’s Code of Service Discipline.  The Code of Service Discipline more closely resembles a military criminal prosecution.  Indeed, the Code of Service Discipline incorporates offences under the Criminal Code as well as other Acts of Parliament.  The powers of punishment are markedly similar to the powers of punishment under the Criminal Code.  While the sanctions under various forms of professional regulation focus principally on the ’licensee’s’ standing or licence, the sanctions under the Code of Service Discipline are far broader and incorporate punishments up to, and including, imprisonment.

Processes such as Administrative Review (DAOD 5019-2), Remedial Measures (DAOD 5019-4), the Harassment Prevention and Resolution policy (DAOD 5012-0) and Sexual Misconduct Response (DAOD 9005-1) – which bear many similarities to the regulation of civilian professions – are referred to as ‘administrative’ processes, distinguishing them from ‘disciplinary’ processes under the Code of Service Discipline.[1]

There are many factors that distinguish CF administrative processes from disciplinary processes, some of which I have discussed in this Blog.  In particular: administrative processes are subject to markedly less judicial scrutiny, and the limited judicial scrutiny that does arise – typically under applications for judicial review brought before the Federal Court – will arise much, much later in the process.  Moreover, the Federal Court judges who scrutinize such decisions will typically afford the CF statutory decision-maker a relatively healthy ‘margin of appreciation’ under the ‘reasonableness’ standard of review.

These ‘administrative’ decisions and actions are taken by statutory decision-makers who are not independent from the chain of command; indeed, they are typically taken by the chain of command.  And, in many cases, the decision-maker will often not have an arm’s-length relationship to the matter.  Statutory decision-makers thus have much greater discretion regarding the action that they might take, and the absence of timely and meaningful judicial scrutiny can permit abuse of power or process.  Finally, when administrative measures are employed, there is less transparency for the military community and for the public generally (and, not infrequently, for the CF personnel affected by the decision-making).

The key point I wish to make is that ‘administrative’ decision-making by CF decision-makers can be characterized as decision-making under the National Defence Act (NDA) that is distinct from decision-making under the Code of Service Discipline.  But that does not mean that such decision-making does not have a punitive element or intention behind it.  Administrative decision-making occurs across a broad spectrum of matters and the chain of command of the CF generally has very broad discretion in making such decisions.  While those decisions are subject to constitutional and statutory constraints and limitations, a CF member must typically exhaust the CF grievance process before he or she can seek judicial scrutiny relating to those constraints or limitations.

We would also do well to remember that disciplinary and administrative decision-making in the CF are not discrete and unrelated ‘stove-pipes’.  These decisions are not only often made by the same (or connected) statutory decision-makers, decisions can be made under both the administrative and disciplinary processes based upon the same facts or allegations and these decisions can be – and often are – made for similar reasons or to obtain similar outcomes.

“Discipline, Efficiency, and Morale”

Legal officers in the Office of the JAG typically cite passages from the same three pages of the judgment in R v Généreux, [1992] 1 SCR 259 for the justification of the creation or existence of a separate system of military justice – a term defined narrowly by the Office of the JAG as being analogous to the Code of Service Discipline.[2]  This justification invariably includes the following assertion: “The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military.”[3]

That sentiment is repeated not only throughout the judgment by the late Chief Justice Lamer, but is also mentioned by the concurring judgment of Stevenson J and even the lone dissent by Justice L’Heureux‑Dubé.  However, as I have suggested previously, the Office of the JAG can tend to place more weight on this assertion than might otherwise be warranted, and can take an overly narrow view of what it represents.

First, the statement was obiter dictum.  The central issues addressed in Généreux – which actually resulted in overturning a conviction of possession or narcotics for the purpose of trafficking because courts martial, at that time, lacked sufficient independence – did not include whether the Code of Service Discipline, generally, was justified as a derogation from the civilian criminal justice system.  The appellant, Sgt Généreux, did not challenge the general justification of the existence of the Code of Service Discipline.  Chief Justice Lamer’s remarks were presented as background, to assist in evaluating the central issue at stake: the independence of courts martial and the Judge Advocates (as they were then called) who presided over them.

Second, in terms of status as the prevailing case representing the justification for a separate system of military justice – which is one of the most common reasons for which Généreux is cited – that case has largely been eclipsed by the more recent R v Stillman, 2019 SCC 40.

Third, and most importantly for our present discussion, what is often omitted when Généreux is cited for the above-mentioned purpose, is that the Code of Service Discipline is not the sole mechanism available to CF actors and decision-makers to ensure the discipline, efficiency, and morale of the armed forces.  Consider the following passage from Part I of James B. Fay’s 1975 dissertation “Canadian Military Criminal Law: An Examination of Military Justice”:

The ultimate objective of the military in time of peace is to prepare for war to support the policies of the civil government.  The military organization to meet this objective requires, as no other system, the highest standard of discipline able to function under the most adverse of conditions.  Discipline can be defined as an attitude of respect for authority which is developed by leadership, precept and training.  It is a state of mind that leads to a willingness to obey an order no matter how unpleasant the task to be performed.  This is not a characteristic of the civilian community.  It is the ultimate characteristic of the military organization.  It is the responsibility of those who command to instill discipline in those they command.  In doing so there must be the correction and the punishment of individuals.  Fairness and justice are indispensable.[4]

This was cited by Justice L’Heureux‑Dubé in her dissent in Généreux[5]; however, all three judgments in Généreux relied upon James Fay’s extensive dissertation – it was a common thread that bound all three judgments.  His dissertation recognized that training, culturalization, and other factors of military service were important not only in informing the officers who were responsible for dispensing military justice, but also for developing the ‘habit of obedience’ that was a vital aspect of military discipline, as well as ensuring the maintenance of discipline, efficiency, and morale.

The Code of Service Discipline is but one tool available to the chain of command for the purpose of maintaining discipline, efficiency, and morale of the armed forces.  Various administrative measures can also serve this end, although there are distinguishing characteristics.  Training, culturalization, and effective leadership also contribute to these ends.

These various factors are not discrete stove-pipes that function independently of one another.  They are inter-related and often mutually supporting.  In a future Blog post, we will explore the relationship between the Code of Service Discipline and remedial measures – including when they can (or should) be used together, when substitution of one for the other might be improper, and when one might conceivably preclude the use of the other.  For our present discussion, it should suffice to identify that the Code of Service Discipline is not the only tool or mechanism available to the CF chain of command to ensure the discipline, efficiency, and morale of the CF.

“Promote the Welfare, efficiency, and good discipline of all subordinates”

The two key provisions that we will examine in today’s Blog post are paras 4.02(1)(c) and 5.01(c) of the QR&O, which state: “… promote the welfare, efficiency and good discipline of all subordinates; …” and “…  promote the welfare, efficiency and good discipline of all who are subordinate to the member; …” respectively.

The phrasing is reminiscent of the oft-repeated mantra from Généreux, and that ought not be surprising.  And, like that phrasing from Généreux, I suggest that it need not have a consistently negative connotation or be interpreted in a disjunctive manner.  The direction in the QR&O and the sentiment in Généreux are not focused solely on punishing subordinates.

True, one of the principal purposes of the Code of Service Discipline is its punitive nature, through which it would presumably achieve the ends of deterrence (both general and specific) and denunciation.  And the Code of Service Discipline is also intended to serve rehabilitative and restorative ends.   However, as I indicated above, the Code of Service Discipline is not the only tool available to the chain of command to achieve its desired ends.

Although military supervisors are necessarily concerned with the discipline of their subordinates, that is a means to an end, rather than an end itself.  Military supervisors are obliged to maintain a disciplined force for a variety of reasons.  For example, under International Humanitarian Law, “[t]he armed forces of a Party to a conflict … shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.”[6]

And superiors must prevent and, where necessary, suppress and report to competent authorities, grave breaches committed by their subordinates. Where superiors fail in these duties, a commander risks being held criminally responsible for taking no action.[7]

One of the justifications for maintaining a Code of Service Discipline is that Canada must meet its international obligations.

But our discussion today is not just about ‘discipline’.  The effectiveness of an armed forces can be measured, in part, by the quality and quantity of the materiel at its disposal.  It can be measured in the resources of the nation that establishes the armed forces.  It will also be reliant upon the political will and strategic decision-making behind the use of the armed forces.

Invariably, the effectiveness of the armed forces will turn on the training, morale, cohesion, and will of the personnel who comprise those armed forces, and the skill, effectiveness, morale, and will of those who lead them.

This is why ‘maintenance of morale’ is one of the principles of war recognized in the training of the CF.  This is why, in modern manoeuvre warfare, we purportedly focus efforts on defeating the enemy’s will and morale, and not just simple physical attrition of the enemy’s armed forces.  Indeed, in the armed conflict unfolding in Ukraine presently, we are witnessing an objective display of the importance of the maintenance of morale in the armed forces of the Parties to an armed conflict.

The balancing of discipline and morale – two of the three factors listed in paras 4.02(1)(c) and 5.01(c) of the QR&O – can be a nuanced endeavour and a leadership challenge for many.  I think back to my time as an infantry officer and my observation of the company sergeants-major (CSM) with whom I served.  Among the various duties and functions of CSMs (or Squadron or Battery Sergeants-Major, or their equivalents in naval or air force occupations) is the maintenance of discipline and morale of the NCM within the sub-unit.  The skill and efficiency with which these objectives are balanced is often indicative of the skill and ability of the NCM occupying the CSMs position.  Those who performed these functions effectively and well never failed to impress me.

And these factors – discipline and morale – are not mutually exclusive; in fact, they can be viewed as mutually re-enforcing.  Effective discipline can enhance morale and high morale will contribute positively to the maintenance of discipline and will typically ensure that the maintenance of discipline will be more easily achieved.  High morale and effective discipline will contribute to an efficient unit or sub-unit.  And they all represent leadership challenges.

The inverse is, unfortunately, equally true.  Poor morale can arise from an ill-disciplined unit or sub-unit and can make the maintenance of discipline and efficiency more difficult to achieve.

Unfortunately, over the past few years, it appears that the focus, nationally, has been principally on the maintenance of discipline, sometimes to the detriment of the other two factors.  In the pursuit of discipline – albeit, not always using the Code of Service Discipline – CF decision-makers appear to have often given short shrift to morale and efficiency.  I suggest that they have also tended to view the nature of morale and efficiency in a facile manner.

Granted, due to the focus of my commentary in the Blog, there is the risk that I am influenced by confirmation bias.  However, I have noticed distinct trends when CF decision-makers have cited, relied upon, or turned their attention to the obligations under para 4.02(1)(c) and 5.01(c) of the QR&O.  There is a clear emphasis on promoting discipline – specifically, the ‘negative’ or adverse context of punishing alleged breaches of discipline (using either the Code of Service Discipline, administrative measures, or both) – but not necessarily promoting morale or efficiency (save when uttering those terms in a rote manner as a justification for punitive action).

In my view, much of what has driven this skewed perspective is the response to sexual misconduct.  While it is understandable that sexual misconduct in the CF will be a significant driving force behind policy- and decision-making, reliance on that concern as an excuse for unfair, unreasonable, or improper decision-making or problematic policies is indicative of poor leadership and a misguided response to a serious issue.

Misconduct of any nature is detrimental to the morale, cohesion, and effectiveness of the armed forces.  Sexual misconduct can be particularly pernicious and can undermine discipline, morale, and efficiency in a toxic manner.  Abuse of power can have a similar effect.  Acting with impunity can often be problematic.

Procedurally unfair decision-making, substantively unreasonable decisions, and a lack of transparency and open-mindedness in pursuit of discipline (specifically, in punishing alleged malfeasance) can be just as detrimental to morale, cohesion, and discipline as doing nothing.  At a time when the Minister of National Defence has stated that “… there is an urgent need to attract more Canadian Armed Forces (CAF) personnel amid a ‘clear and present’ danger to the rules based international order …”[8], decision-makers must turn their minds to the subtleties of the message that they are transmitting regarding fairness in such decision-making.   Minister Anand has also stated: “We’ve got to make sure that members of the Canadian public who are deciding how they’re going to spend their lives see the Canadian Armed Forces as a viable option for them.”[9]  Where it appears that CF personnel are subject to procedurally unfair, unreasonable, closed-minded, or heavy-handed decision-making, we should not be surprised if recruiters will face marked challenges.

It is appropriate for CF leadership to pursue robust efforts to address sexual misconduct (or racism, or discrimination) arising within the armed forces, using the various tools available to them.  But in seeking to reduce (or eliminate) the adverse impact on morale, discipline, and efficiency caused by sexual misconduct (or other forms of misconduct), CF leadership must be careful not to replace those adverse catalysts with different, yet similarly harmful, factors.

[1] However, we should also note that contravention of Administrative Orders and Directives, such as DAOD 5012-0 Harassment Prevention and Resolution and DAOD 9005-1 can form the basis of a charge under the Code of Service Discipline, pursuant to s 129 of the NDA.

[2] I apply a more liberal definition of ‘military justice’ to include other statutory decision-making that affects the rights, interests, and privileges of CF personnel.  And, until the ‘new’ definition of ‘military justice’, introduced in Bill C-77, takes effect, it remains debatable which definition is more appropriate.

[3] R v Généreux, [1992] 1 SCR 259 [Généreux], 293, per Lamer CJ.

[4] James B. Fay, “Canadian Military Criminal Law: An Examination of Military Justice” (1975), 23 Chitty’s L J 120, 123.

[5] Généreux, n 3, 325 to 326.

[6] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977

1125 UNTS 3 [Additional Protocol I], art 43.

[7] Id, art 87.

[8] Sarah Turnbull, “’We’ve got to grow’: Anand says CAF must recruit more troops amid heightened global uncertainty”, CTV News, March 11, 2022, <https://www.ctvnews.ca/politics/we-ve-got-to-grow-anand-says-caf-must-recruit-more-troops-amid-heightened-global-uncertainty-1.5816056>.

[9] Id.

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