Embarrassing the Government
So, a funny thing happened at a briefing recently. ‘Funny’ meaning ‘odd’; there was nothing humorous about this issue, once you start to peel the onion.
A briefing was held recently at what may be characterized as an educational institution under section 47 of the National Defence Act (NDA). I would certainly characterize it in that fashion, principally because that is precisely what Royal Military College of Canada (RMC) is. And, since the Cadets (and other students, including a surprising number of civilian students) have returned to RMC for the Fall semester (like the swallows returning to Capistrano), I thought that it was an opportune time to mention a peculiar aspect of this briefing.
The briefing was about cyber security. Cyber security is an important factor in our country’s national defence strategy. It is an important factor in force protection for the Canadian Forces (CF) and even the Department of National Defence (DND). Therefore, it is an important factor to brief to staff at a National Defence educational institution established under section 47 of the NDA.
So far, so good.
Early in the briefing a slide was presented (after all, it’s not a true CF briefing without an interminable number of PowerPoint slides) entitled “Reporting Security Incidents”. I have attached a copy of the slide here.
Note the risks identified on this slide deck, as well as the implied priority based upon the sequence of those ‘risks’:
I take no issue to items 2, 3 or 4.
I do take issue with #1.
I could insert a cheap and sarcastic remark about the frequency with which the Canadian government embarrasses itself, but that would be low-hanging fruit.
Instead, I wish to focus on what is implied by that comment.
First, you will have noticed that it is the first risk identified, implying that it is the most important or significant of the potential risks.
Second, it is relatively vague in its nature. It suggests that anything that embarrasses the Canadian government represents a strategic risk. It suggests that all CF personnel and Department employees have an obligation to protect the Canadian government from embarrassment. It suggests that any CF member or Department employee who does not take appropriate steps to save the government from embarrassment has failed in a duty. Worse still, if a CF member of Departmental employee does something to embarrass the government, that represents action that undermines strategic security.
And the term ‘embarrass’ is open to rather broad and vague interpretation that is defined principally by subjective public reaction, which can be unpredictable.
So, why is a lawyer, who focuses on military law and who writes about military legal issues in this Blog, concerned about an (arguably) innocuous briefing at a CF educational institution established under section 47 of the NDA?
Well, the implication of the content of this slide has some bearing on the application of the new Military Justice at the Unit Level (MJUL), which relies upon summary hearings, and which came into force on 20 June 2022.
While this briefing may apply to both CF personnel and Departmental employees, I will focus on the former. And I do so not solely because they are the ones who will be subject to the MJUL. I do so also because the raison d’etre of educational institutions established under section 47 of the NDA is, principally, to educate officers and non-commissioned members of the CF (notwithstanding that it appears that there are several hundred civilians who attend Royal Military College in a variety of ways, and whose connection with National Defence may be open to debate).
Under the MJUL and Summary Hearing process, there are at least a couple of ‘infractions’ that will be relevant to this issue:
Under art 120.03 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) – Infractions in Relation to Military Service – a “… person commits a service infraction who … (d) fails or while on duty is unfit to effectively perform their duties or carry out responsibilities … [or] … (i) otherwise behaves in a manner that adversely affects the discipline, efficiency or morale of the Canadian Forces.”
Note, in particular, the incredibly broad and subjective nature of the ‘infraction’ under para 120.03(i) of the QR&O. I anticipate that this particular infraction will be one of the infractions upon which the chain of command relies most frequently in the future. I also anticipate that this infraction will, essentially, be interpreted as arising whenever a CF member does something of which someone in the chain of command disapproves. And, certainly, if that impugned conduct is something reported in the media in a negative fashion (whether or not that response is objective or reasonable), the likelihood of reaction under the MJUL would likely increase exponentially.
And there are a couple of reasons why I anticipate that the overbreadth and vagueness of the ‘infraction’ under para 120.03(i) of the QR&O may be abused.
First, a person who charges a CF member under the MJUL with an alleged ‘service infraction’ is not obliged to seek legal advice prior to doing so unless “… the charge concerns a person against whom a service infraction is alleged to have been committed or who is alleged to have suffered physical or emotional harm, property damage or economic loss as a result of the alleged commission of the infraction.” (para 121.07(b) of the QR&O).
So, the act of ‘embarrassing the Canadian government’ will not oblige the ‘charge layer’ to seek legal advice. Nor will the ‘officer conducting the summary hearing’ (and, frankly, someone in the CF needs to come up with a more concise term) be obliged to seek legal advice. In fact, even if the person accused of a service infraction raises a question or challenge regarding jurisdiction, the ‘officer conducting the summary hearing’ is not obliged to seek any legal advice: art 121.13 of the QR&O.
Second, even if there were a requirement for such legal advice, that is not a significant safeguard that the infraction will be interpreted and applied correctly, reasonably, and fairly by statutory decision-makers who lay such charges or conduct summary hearings.
Remember, prior to 20 June 2022, both the Office of the JAG and several statutory decision-makers in the CF consistently applied an incorrect and unreasonably large and liberal interpretation of a presiding officer’s capacity to withhold an accused’s right to elect trial by court martial under what was, then, art 108.17 of the QR&O (as it applied to charges under the Code of Service Discipline laid prior to 20 June 2022):
There is very little to serve as a check or balance on the over-broad (to the point of ambiguity) application of the ‘infraction’ at para 120.03(i) of the QR&O.
And remember, under the MJUL, there is no right to elect trial by court martial (NDA, s 162.4) and the burden of proof is the civil standard of ‘balance of probabilities’ (NDA, s 163.1). Time and again, CF decision-makers have demonstrated that they do not understand what this burden of proof really is, or how to apply it.
To be clear, this burden of proof is borne by the Crown (or the CF or the statutory actor) in the evaluation of evidence before the decision-maker. It is limited to the evaluation or weighing of evidence, particularly where the decision-maker is faced with contradictory evidence.
However, I have regularly encountered CF statutory decision-makers who apply this ‘burden’ to their interpretation of law or the application of facts to the law: e.g., “I find on a balance of probabilities that the appropriate action to take in light of your misconduct is a compulsory release under item 5(f).” That is not how the burden of proof should be applied.
Sometimes the decision-maker appears to forget that the burden is placed on the decision-maker, and not the ‘accused’. I have encountered CF statutory decision-makers who, through their statements, appear to begin with the presumption of guilt that the ‘accused’ must then displace. This often arises in Administrative Reviews under Defence Administrative Order and Directive (DAOD) 5019-2 where the analyst (often under the Director Military Careers Administration of DMCA) examines the ‘evidence’ for a particular matter before the analysis and contents of the Administrative Review file are disclosed to the affected CF member. While the CF member is, eventually permitted to respond to the analysis, it is after the analyst’s conclusions are made, giving rise to an appearance that the accused must then displace those conclusions.
These decision-makers often treat the civil ‘burden of proof’ as a license to believe whatever will provide their desired outcome, rather than demonstrate actual analysis of the merit of the evidence before them, and which results in a transparent and intelligible decision that is justified by the evidence: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, para 127, 133.
So, apparently, avoiding embarrassment of the Canadian government is something of strategic importance. As part of the CF’s and DND’s cyber defence strategy, all CF personnel and Departmental employees have an obligation to guard against embarrassment of the Canadian government.
Conceptually, failure to guard against the government’s embarrassment – or worse still, doing something that would embarrass the Canadian government – could lead to charges under the MJUL, potentially as a contravention of para 120.03(d) or (i) of the QR&O.
And anyone who is not concerned about the potential for abuse arising from such a conceptualization of a CF member’s duty, has not been paying attention to how discipline has been administered in the CF.
 National Defence Act, RSC 1985, c N-5, [NDA] subs 47(1): “)The Governor in Council, and any other authorities that are prescribed or appointed by the Governor in Council for that purpose, may in the interests of national defence establish institutions for the training and education of officers and non-commissioned members, officers and employees of the Department, candidates for enrolment in the Canadian Forces or for employment in the Department and other persons whose attendance has been authorized by or on behalf of the Minister.”