Duties of Officers and NCMs – Part III

 

“… 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 …”

 

Introduction

This is the third, and final, installment in the discussion on articles 4.02 and 5.01 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) – albeit, offered much later than intended.

Our discussion has focused on what these provisions convey and potential misinterpretations or misconceptions of these provisions, particularly those that might arise from an overly narrow focus on select elements of these provisions.

In Part I of this series, I set out the content of articles 4.02 and 5.01 of the QR&O, which establish similar duties and functions for officers and non-commissioned members (NCM), respectively.  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 under Defence Administrative Order and Directive (DAOD) 5019-4; and, Administrative Review under DAOD 5019-2.

I used 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.  And, in Part I, I explained the distinction between ‘administrative’ and ‘disciplinary’ decision-making and how, within Canadian Forces (CF) statutory decision-making, the distinction between the two has become blurred.

In Part II of this series, I discussed the implications of paras 4.02(1)(c) and 5.01(c) of the QR&O.  In particular, I explained that those provisions do not oblige officers and supervisory non-commissioned members (NCM) to focus solely upon maintenance of discipline.  In other words, those provisions do not represent a narrow focus on the need for punitive action, but, rather, the broader leadership functions associated with promoting “… welfare, efficiency, and good discipline …” among subordinates.

I explained how this provision might be viewed in relation to the repeated assertion that the Code of Service Discipline is intended to assist the chain of command with the maintenance of “… discipline, efficiency, and morale …” of the CF.  I also reminded readers that the Code of Service Discipline is not the only mechanism available to CF statutory decision-makers to achieve such aims.  In short, the various mechanisms available to such decision-makers, and the multiplicity of those functions, represent the type of poly-centric decision-making that is inherent to leadership in the armed forces.

Perhaps what is most important, then, is to ensure a principled approach to such decision-making, governed by key elements of the exercise of public authority, in a manner that complies with the spirit and the letter of the rule of law.

That brings us to our third topic, regarding paras 4.02(1)(e) and 5.01(e) of the QR&O: the so-called ‘duty to report’.

 

Legislative Provisions

Para 4.02(1)(e) of the QR&O states:

An officer shall:

… 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.

 

Para 5.01(e) of the QR&O states:

A non-commissioned member shall:

… 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.

 

Initial Perceptions

One of the first impressions arising from the review of paras 4.02(1)(e) and 5.01(e) of the QR&O is that, while the former empowers officers to act, where the officer has the power and authority to act, the latter could be viewed as suggesting than an NCM, regardless of rank, would not have the authority to act in any circumstance, and is therefore limited to “… report[ing] to the proper authority …” any infringement of rules by someone subject to the Code of Service Discipline.

Arguably, that is what a plain reading of the two provisions would suggest.

That said, I would posit that this distinction between officers and NCM has its roots in much earlier versions of the QR&O (which predate what some might characterize as a more progressive view of the roles of NCM) and reflects the fact that, in most circumstances, the NDA and QR&O empower, in particular, certain officers to act, whether under the Code of Service Discipline, or other mechanisms created by or under the authority of the NDA.

Some Canadians prefer to regard our society as one that has evolved beyond a class-based system.  We do not have an aristocracy and there have been some notable disputes when certain Canadians have sought such designations.[1]  Many Canadians strive, in their own way, for an egalitarian society.  So, for many of us, the idea of class distinction can be anathema to our view of how our society is ordered.  And that perception can be reflected in some approaches in administration of the affairs of the Canadian Forces.

But let’s not kid ourselves.  The CF is an inherently hierarchical institution.  And, even if we strive for a CF that reflects Canadian society, it will remain an inherently more stratified microcosm of the same.  Officers are placed higher in that hierarchy than NCM.  Notwithstanding that anyone acting under the authority of a statute is, ostensibly, a statutory decision-maker, the NDA (and the regulations, order, instructions, directives, etc. created under the authority of that Act) generally places most decision-making in the hands of officers, and it is increasingly senior officers who are empowered to make significant decisions.  While NCM are empowered to act, by or under the authority of the NDA, the authority to make determinative decisions in administrative or disciplinary regimes is vested with officers.

And that does not represent a value judgment regarding merit or worth of various personnel within the institution.  It’s a question of the dichotomy between authority and accountability.  The presumption is that both of these factors increase with seniority of rank.  Dissonance can arise when one of those factors shifts out of synch with the other – or is perceived to shift out of synch.  (And we will return to that factor below.)

We should not disregard positional power or authority that may accompany certain positions that are not, technically, command positions.  And that positional power or influence may be part of a formalized structure (e.g., the Regimental Sergeant Major, or equivalent position, or a sub-unit Sergeant-major, or equivalent position) or the product of informal recognition (e.g., a skilled and popular NCM who can influence decision-making but who, nevertheless, does not hold a senior appointment).

And, lest someone hasten to inform me that an RSM is part of the ‘command team’ alongside the CO … ack.  I am aware of that perspective, and that is precisely what I mean when I refer to the evolution of our perspectives regarding the organization and governance of the CF.  And that speaks to the positional power of the RSM.  But that does not alter the plain fact that it is the CO who commands the unit.

However, this Blog post is not intended to delve into the evolving nature of the roles of NCM or the evolution of power structures in the CF.  It is, instead, focused on the relevance of article 4.02 and 5.01 of the QR&O, and select, specific portions of those articles.

Reading paras 4.02(1)(e) and 5.01(e) together, it is clear that both officers and NCM have roles to play in reporting and enforcing infringement of ‘rules’, but that, ultimately, the principal decision-making and authority will rest with officers (presumably, at increasing levels of authority).

 

‘Duty to Report’

The second conclusion one might draw is that these provisions impose upon all CF personnel an obligation either to intervene or to report when they observe or learn of infringement “… of the pertinent statutes, regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service Discipline …”.  This is the source of the infamous ‘duty to report’ that has repeatedly been stressed, and discussed, within the context of sexual misconduct in the CF.

And, as a side note, I recall when the ‘duty to report’ was first described in concert with Op HONOUR: it was described almost as a revelation, as if someone had found King Solomon’s Mines, as opposed to a simple reading of a provision that has existed in article 4.02 and 5.01, in a similar form, since long before the date when I joined the CF over 30 years ago.

Ultimately, the ‘duty to report’ reflects an obligation that my friends in the Royal Canadian Regiment (RCR) might characterize as ‘never pass a fault’.  (And, yes, as strange as it may seem, I do have some friends in the RCR.  I know – it surprises me as well.)

This duty reflects the role that all CF members have in ensuring that the discipline, efficiency, and morale of the CF is maintained by those in positions to do so.  Paras 4.02(1)(e) and 5.01(e) are thereby clearly and directly linked to the other provisions in article 4.02 and 5.01.  Officers and NCM must acquaint themselves with the NDA, QR&O, and all other relevant “… regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service Discipline …”, in order to be able to: (a) follow them; (b) report infringement of the same; or, (c) where they have the authority, take appropriate action to correct such infringement.

In turn, this knowledge will empower officers and NCM to “… promote the welfare, efficiency and good discipline of all subordinates …” and to “… ensure the proper care and maintenance, and prevent the waste, of all public and non-public property within the officer’s control …”.

There is a logic to the construction of article 4.02 and 5.01 of the QR&O.

 

What about victims?

One subject that has arisen from time to time in public discourse concerns the extent to which the ‘duty to report’ applies to victims of misconduct, particularly sexual misconduct.  There has been a great deal said, and a great deal of ink shed, in the discussion of this point, and that has been accompanied by some enduring misconceptions.

A blunt and ordinary reading of the provisions would lead to a conclusion that, yes, a CF member who is a victim of an infringement of the pertinent statutes, regulations, etc., would be obliged to report such infringement.  However, that is a rather simplistic reading of the provision.  Ultimately, the impact of the duty can be viewed from the perspective of enforcement in the event of non-compliance.  From a practical perspective, an unenforced or unenforceable duty is not much of a duty.  Moreover, there can be exceptions to duties.

Ostensibly, the failure of a CF member to report an “… infringement of the pertinent statutes, regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service Discipline …” by someone subject to the Code of Service Discipline could, absent any exceptions or exemptions, constitute a potential offence under section 129 of the NDA.   It would, itself, represent an infringement of a regulation that governs the conduct of a person subject to the Code of Service Discipline.[2]

But let’s examine that ‘duty to report’ in the context of sexual misconduct.  Relatively recently, the ‘Survivor Support Consultation Group’ published a report that purportedly asserted that “… the so-called duty to report was a ‘recurring topic of concern’ during its work, echoing past criticisms about forcing victims and their confidantes to report incidents when they are not ready to do so or don’t want to.”[3]

But is it actually the case that victims of sexual misconduct can be compelled, through threat of prosecution under the Code of Service Discipline (or other adverse ‘administrative’ action) if they fail to report the misconduct?  I would suggest that DAOD 9005-1 Sexual Misconduct Response, takes a nuanced approach to such matters.

There are express exemptions to the ‘Duty to Report’.  For example, para 5.3 of DAOD 9005-1 states:

5.3 DND employees and other civilians are not generally required to report sexual misconduct incidents. This includes civilians who work for DND, such as those at the SMRC, CCMS and CF Health Services.

Note – Some professionals have an obligation, in certain circumstances, to report in accordance with their professional code of conduct and certain provincial legislation, for example, if there is an imminent risk of harm or risk to children.

 

At the risk of ‘splitting hairs’, para 5.3 does not actually create an exemption.  It would be more accurate to describe this para as recognizing that the duties created by articles 4.02 and 5.01 of the QR&O are expressly limited to officers and NCM of the CF.  They do not create a duty for civilian employees of the Department of National Defence or any other civilians.

Additionally, the ‘duty to report’ does not apply to legal officers posted to Defence Counsel Services when the officer receives such information as part of her or his duties under art 101.11 of the QR&O (art 4.02(2) of the QR&O).  I will assume that I do not need to explain, here, why that exception exists.

What DAOD 9005-1 does do is present a nuance approach to this issue.  Note, in particular, the provisions under Part 7 of DAOD 9005-1.

We should also remember that not all infringements of the pertinent statutes, regulations, etc. will necessarily affect an individual, identifiable victim.  Some ‘rules infringement’ harms discipline generally, rather than victimizing a specific individual.  Someone stealing money from the unit canteen does not harm a specific CF member; it adversely affects the discipline and morale of the unit.  And not all persons who observe infringement of the rules will be victims.

But it remains a pertinent question: what if a victim – or any other CF member – is reluctant to report an infringement of the rules?  Are there potential repercussions?

We know from the CF’s marked focus on sexual misconduct, that a victim of sexual misconduct will not be punished for failing to report such misconduct.  At least, that appears to be the nuance of what is conveyed in DAOD 9005-1, particularly in Part 7.  I have heard of rare circumstances in which complainants (or victims) were told (perhaps by over-zealous supervisors) that they could face adverse measures if they refused to report misconduct of a sexualized nature.  Such concerns have also been raised from time to time in consultations and in the news media.  I suggest that the nuanced approach in DAOD 9005-1 reflects the CF’s response to those issues as does the “DND/CAF Response to the Final Report by the Survivor Support Consultation Group”.

These consultations, discussions, and responses, focus expressly on sexual misconduct.  And such reluctance does not arise solely in the context of sexual misconduct.  It is understandable that, in light of the near myopic focus of CF leadership on sexual misconduct (or, at the very least, an understandable, yet disproportionate focus on sexual misconduct) the CF’s policy regarding this approach to the ‘duty to report’ would seem to be limited to incidents of sexual misconduct.

However, there are also circumstances in which a CF member might be disinclined to report misconduct of a non-sexual nature.  And I am not referring to incidents in which the CF member is a party to the misconduct (after all, the right against self-incrimination would be relevant in such circumstances).  I am referring to incidents in which a CF member may face ostracization from peers for reporting misconduct, or where the person fears reprisal from someone in a position of authority.

There are valid arguments why such hesitation should not displace the ‘duty to report’.

One could reasonably argue that the failure to report misconduct for fear of ostracization by those committing the misconduct is toxic to the maintenance of the efficiency and good discipline of a unit.  A CF member in such circumstances would face a tough decision, but all of us face tough decisions from time to time, and the strength of ethics and character demanded of CF personnel ought to compel personnel to ‘do the right thing’.

Those are bold words, until someone is placed in such a position.  And we cannot expect someone to come forward to report such misconduct if the chain of command is not prepared to support that person.  That concern is not unique to the context of sexual misconduct.

Similarly, I suspect that some observers may be quick to point out that article 19.15 of the QR&O prohibits reprisals against “… any person who has, in good faith, reported to a 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, made a disclosure of wrongdoing or cooperated in an investigation carried out in respect of such a report or disclosure.”  And this prohibition is repeated in the notes to articles 4.02 and 5.01 of the QR&O.

So … done and dusted.  Don’t worry Corporal Bloggins, you are safe from reprisal for reporting wrong-doing by Master Warrant Officer Smith and Major Brown.

And, if you believe that, I have a causeway to sell you located just east of Fort Frontenac.  It’s a little worse for wear these days, but it’s a bargain.

My point is this: it is not just victims of sexual misconduct who may be reluctant to report misconduct.  In fact, it’s not just victims generally, who may be reluctant to report misconduct.

CF leaders must be attuned to the possibility that there may be compelling reasons why someone may be reluctant to report wrong-doing.  And the willingness of subordinates to bring such matters to the attention of their chain of command is not just a product of enforcement of discipline through the Code of Service Discipline.  It’s a product of mutual trust and confidence.

As I explained in the earlier Parts of this series, mechanisms like the Code of Service Discipline are but part of the broader leadership paradigm.  The focus must be on creating an environment that is conducive to promoting welfare, efficiency, and good discipline – and that does not always involve using the blunt force of the Code of Service Discipline.  Nor does it necessarily mean that the more nuanced tool of remedial measures under DAOD 5019-4 should be used as a punitive alternative to the Code of Service Discipline, simply because there is markedly diminished potential for judicial scrutiny of such actions.

It requires a more comprehensive approach to the general responsibilities at articles 4.02 and 5.01 of the QR&O.

 

What About when Decision-Makers Fail to Follow the Rules?

A continuing theme of this Blog is the failure of CF statutory decision-makers to follow the National Defence Act, its regulations, and other pertinent “… regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service Discipline …”.  In particular, I have discussed circumstances in which CF statutory decision-makers have taken adverse action against subordinates who have purportedly infringed the NDA or other pertinent “…  regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service Discipline …” but, in so doing have, themselves, failed to follow the obligations imposed on them by law and policy.

Consider: Rules are for Corporals, not for Colonels or (It’s) the Impunity, Stupid

And I have consistently described such conduct by CF statutory decision-makers with a particular word.

And that word is hypocrisy.

And such decision-making represents more than mere hypocrisy; it also often represents unlawful decision-making.  After all, a statutory decision-maker must make such decisions in a manner that is both procedurally fair and reasonable, commensurate with: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the term of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person affected by the decision; and (5) the choices of procedure made by the statutory decision-maker.[4]  Generally, a procedurally unfair or unreasonable decision by a statutory decision-maker is an unlawful decision.  That is what permits a court of competent jurisdiction, in its role of supervising the executive in the exercise of statutory powers, to intervene and quash such decisions.[5]

So, what happens when an officer or NCM, acting under paras 4.02(1)(e) or 5.01(e), respectively, fails to follow the rules themselves?  What is the appropriate response?

Here’s a hint: “If you don’t like it, you can grieve it” may not be the ideal response by an ethical leader who wishes to instil in subordinates a respect for the rule of law and who wishes to “… promote the welfare, efficiency and good discipline of all subordinates.”

I suggest that an ethical leader, who appreciates the significance of articles 4.02 and 5.01 of the QR&O, might wish to reflect upon whether she or he has complied with the pertinent statutes, regulations and policy instruments that govern her or his decision-making.  To do so requires an open mind – not just the façade of an open mind that one might assert when faced with judicial review, but a truly open mind by which that decision-maker might re-evaluate the merit of the decision she or he has made: Was I truly reasonable in my approach?  Did I offer my subordinate procedural fairness – and not just a ‘box-ticking exercise’ – but true procedural fairness commensurate with the gravity of the decision?  In other words, did I apply the ‘Golden Rule’?  Did I treat my subordinate in a manner that I would wish to be treated if I were the subject of similar decision-making by someone higher in the chain of command?

Moreover, if a subordinate points out to the decision-maker where the decision-maker erred, perhaps the appropriate response is not “This isn’t about the merit of my actions, this is about what you did wrong.”  I often encounter that sentiment when I represent clients who point out the flaws in their supervisors’ decision-making.  And, frankly, that sounds an awful lot like “Don’t do as I do, do as I say!”  And that isn’t a very compelling sentiment.  It doesn’t reflect the spirit of articles 4.02 and 5.01 of the QR&O.  Nor is it effective leadership.

Recalling my comment above regarding the dissonance that can arise when accountability and authority shift out of synch with each other, the question that I return to time and again is this: If you are a statutory decision-maker in the CF who seeks to impose sanctions on a subordinate – whether you characterize them as ‘administrative’ or ‘disciplinary’ – when the subordinate purportedly fails to comply with a pertinent statute, regulation, policy instrument, or norm of behaviour, can you sustain the merit of your action if, in so doing, you fail to adhere to a pertinent statute, regulation, policy instrument, or norm of behaviour?  How can you do so and not be a hypocrite?  How can you assert that you are serving a just end, serving discipline and efficiency in the CF, and reinforcing morale, if you fail to act in a just manner?  How can you purport to uphold the rule of law while simultaneously disregarding it?

And if that same subordinate, whom you seek to punish or ‘correct’, establishes that you have also failed to comply with a pertinent statute, regulation, policy instrument, or norm of behaviour, how can you assert that the subordinate must acknowledge and correct her or his shortcomings, if you are not willing to acknowledge and correct your own?

 

Conclusion

The goal of this short (and delayed) Blog series was to highlight some basic tenets, and misconceptions, about the general duties imposed on officers and NCM by articles 4.02 and 5.01 of the QR&O.  As I indicated in the first of the three Blog posts, the goal was not to offer a comprehensive examination of all of the potential implications of these provisions.  Rather, these posts have been presented as ‘food for thought’, as a general foundation for future discussions about the roles and responsibilities of statutory decision makers.

In turn, this will aid in discussions regarding how duties, powers, and functions of statutory decision-makers – which are typically established under common law principles, legislation, and policy instruments – interact with other principles of leadership and theories of command philosophy within armed forces.

 

[1] Black v Canada (Prime Minister) (2001), 199 DLR (4th) 228, 54 OR (3d) 215 (ON CA).

[2] National Defence Act, RSC 1985, c N-5, para 129(2)(a): “An act or omission constituting an offence under section 72 or a contravention by any person of … any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof … is an act, conduct, disorder or neglect to the prejudice of good order and discipline.”

[3] Lee Berthiaume, “Military faces fresh calls to end ‘duty to report’ sexual misconduct” (21 December 2021), Canadian Press, CBC online: <https://www.cbc.ca/news/politics/military-report-duty-report-1.6294518>.  See also: Survivor Support Consultation Group: Summary Report, Schedule N to the Canadian Armed Forces (CAF)/Department of National Defence (DND) Sexual Misconduct Class Action Settlement, (October 2021) online: <file:///C:/Users/roryf/Downloads/sscg-summary-report-oct-2021.pdf>, 68 to 70.

[4] Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.

[5] See, for example: Crevier v A.G. (Québec) et al., [1981] 2 SCR 220 in discussing the application of Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, s 96.  This principle endures: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, para 24.