Examining Vavilov’s Impact on Military Administration – Hypothetical Scenario

As promised in a previous Blog article, I present below a hypothetical scenario which we can use to examine the potential impact of the Vavilov decision on military administration or, perhaps more accurately, the review of the administration of the affairs of the Canadian Forces.

If the ‘devil is in the details’, then the Luciferian aspect of judicial review of the “… administration of the affairs of the Canadian Forces …” – which generally and often translates into judicial review of decisions by the final authority in the CF grievance process – is the CF’s control of both the process and the narrative of that process.  This command-centric control applies to both administrative processes generally, and to any grievance that might arise therefrom.

Since Op HONOUR-related matters continue to constitute the current cause célèbre in the Canadian Forces[1], I will present a hypothetical fact scenario that involves a significant accusation under Op HONOUR.

In presenting this narrative, I will, from time to time, derogate on a few tangents.  The fact scenario below is intended to place you, Dear Reader, in a position in which you might come to understand – even empathize – with an accused and respondent who is subject to the significant power and discretion exercised by senior CF statutory decision-makers.  While these tangents can potentially distract from the linear sequence of the hypothetical fact scenario, the different points in the hypothetical narrative offer an opportunity for me to raise ongoing issues that are relevant to the administration of the affairs of the CF.  While I may address many of these issues, in a more robust manner, in future blog articles, the present blog entry is an opportunity to identify these issues.

As an alternative to inserting these ‘tangents’ into the narrative below, I could have simply raised them in end-notes.  However, I find that, in this context, that would likely reduce the meaningful impact of those issues.  Consequently, Dear Reader, I ask for your patience as I embark on those brief tangential journeys.  For those of you that like to skip ahead, I have attempted to signal where the tangents start and stop.

 

Introduction of the narrative:

A CF member is accused of sexual assault.  Let’s call this CF member ‘Sergeant Fumbles’ (Sgt Fumbles)[2].

Military Police investigators from the Canadian Forces National Investigation Service (CFNIS) investigate and eventually lay a charge of sexual assault against Sgt Fumbles[3].  In light of the CFNIS’ track record with such investigations, this charge would likely be laid 9 to 15 months after the investigation was commenced.  As sexual assault is alleged, it will be investigated by the CFNIS not the ‘local’ Military Police platoon, flight, or detachment.  Also, we must note that any charge of sexual assault, laid under the Code of Service Discipline (CSD), cannot be tried by way of summary trial and must be referred to Court Martial.[4]  A charge of sexual assault would likely be laid by an officer or non-commissioned member (NCM) of the CFNIS, and not by a member of the accused’s chain of command.  However, a decision by the CFNIS not to lay a charge under the Code of Service Discipline would not preclude Sgt Fumbles’ chain of command from deciding to lay a charge.

 

Tangent #1 – Pre-Charge Review of CFNIS Files

If a charge of sexual assault is laid by the CFNIS, it will potentially be reviewed by a military prosecutor twice.  First, before the charge is laid, the CFNIS investigators will refer their investigation file to a military prosecutor whose primary duty is to conduct pre-charge screening of such files.  With Op HONOUR-related complaints, that military prosecutor would likely be part of the Sexual Misconduct Action Response Team (SMART).[5]   That military prosecutor is not a member of the CFNIS; he or she is posted to the Office of the Judge Advocate General. [6]  More particularly, he or she performs these functions under the direction of the Director of Military Prosecutions (DMP) as part of the Canadian Military Prosecution Service (CMPS).

Para 6 of the DMP Policy Directive 002/00 states: “Often when a Prosecutor is called upon to provide pre-charge advice the file may be incomplete as compared to the file at the time of court martial.”  That may be what DMP believes (or believed in 2000 when this policy was first drafted), however, that’s not actually the case.  In most cases, the CFNIS will not forward the file to the ‘screening prosecutor’ when the CFNIS investigators have sufficient evidence to justify an arrest or a charge.  It will only be forwarded for pre-charge screening once the file is completed.  In other words, this initial advisory step only arises once every ‘t’ is crossed, and every “i” dotted.  This often takes several months.  In comparison, in my experience, civilian police tend to complete comparable investigations (i.e. investigations of sexual assault, involving fewer than 10 witnesses, and where the allegations are not particularly complex) in two to four weeks.

 

Tangent #2 – Pre-charge Detention and Release Conditions

The reason this factor is important is that it is entirely possible that the subject of the investigation (who becomes ‘the accused’, once a charge is laid) may well have been arrested when the allegations are first raised.  Thus, while the CFNIS take their typical 9 to 15 months to conclude the investigation, it is entirely possible that the ‘suspect’ will have been placed under stringent release conditions by a custody review officer (CRO).  That CRO, in effect, performs functions that, in the civilian system, are performed either by a Justice of the Peace at a bail hearing, or by an ‘officer in charge’ in a police force.[7]

However, the CRO is neither a judicial actor nor a police officer.  The CRO is a member of the suspect’s chain of command.  She is not involved in the CFNIS investigation, nor is she privy to investigative steps or details known, generally, only to the Military Police.  Where an investigation is conducted by the CFNIS, even the ‘local’ Military Police will have limited access to the details of the investigation, if at all.  Most importantly, the CRO is not an independent actor, as she is a member of the chain of command and subject to direction from the commanding officer.

What is significant is that these restrictions on liberty typically arise well before the suspect is charged – if, in fact, he is ever charged.  In the civilian justice system, such constraints are placed on a person only once they have been charged.  When a person is charged by the police, the ‘clock starts ticking’ with respect to ‘post charge delay’ under R v Jordan, 2016 SCC 27.  However, the lengthy pre-charge delay while the CFNIS take exorbitantly long periods to conclude their investigations is generally not held against the Crown under Jordan: see, for example, R v W(T.S.), 2017 CM 2012, R v K.E., 2013 ONCA 175.

In any event, it won’t be open to the ‘suspect’ to grieve any of these decisions, as they are decisions under the Code of Service Discipline.[8]  But it is useful to understand the nature of this dynamic, if the Military Police investigation (or part of it) is subsequently relied upon to initiate administrative action against the subject of the investigation.  Note, in particular, that arrest, release on stringent release conditions, and other significant action can transpire without the ‘suspect’ actually being charged with any offence.

Since September 2018, it has been open to a person who is subject to such release conditions to seek review before a military judge.[9]  Prior to September 2018, this recourse was not available.  A CF member subject to unreasonable release conditions imposed by a CRO, and who had not actually been charged with any offence, would have been obliged to seek judicial review of the decision before the Federal Court.  Presumably, the CF member seeking judicial review of the release conditions would have had to pay for such legal representation out of his or her own pocket.

Interestingly, the military judiciary did not seem overly concerned about that state of affairs at the time (see: R v Caicedo, 2015 CM 4018).  That lack of concern appears to have been grounded, in part, on the belief that Defence Counsel Services could represent the CF member before the Federal Court.  Consequently, the military judge in Caicedo declined to find that this state of affairs contravened the accused’s right, under section 7 of the Charter “… to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice …”. However, in my review of the Defence Counsel Services mandate, it does not appear that such activities fall within the scope of services of Defence Counsel Services.

The principal reason the military judge in Caicedo rejected the application by the accused was that the military judge concluded that the applicant failed to convince him that “… precedents related to justices of the peace are authoritative in the military law context …” and also failed to convince him “…  that custody review officers and review authorities are not capable of acting judicially …”.

With all due respect to the military judge, liberty is liberty regardless of whether it is being examined within the military context, and, frankly, CRO cannot act judicially because they lack most, if not all, of the hallmarks of such functions.  I note that the same military judge who presided over Caicedo recently concluded in R v MCpl Pett, 2020 CM 4002, that the independence (actually, impartiality) of the military judiciary was impugned by the fact that they were subject to charge and trial under the Code of Service Discipline.  He therefore concluded that military judges are not subject to charge or proceedings under the Code of Service Discipline while they hold judicial office.  I offer a detailed examination of R v MCpl Pett here.  Evidently, the same concern did not arise in the performance of a CRO’s functions and duties.

In any event, since September 2018, that has changed, and a CF member released on conditions by a CRO, now has a right to have those conditions reviewed by a military judge[10], and would presumably be represented in such hearings by the capable counsel at Defence Counsel Services.

 

The Narrative Continues …

Consequently, at some point, several months after the investigation is begun, an officer or NCM of the CFNIS finally decides to lay a charge of sexual assault, under para 130(1)(a) of the National Defence Act (NDA), and contrary to section 271 of the Criminal Code, against Sgt Fumbles.  For our purposes, we’ll use 12 months, as that is quite common a timeframe for the CFNIS to investigate relatively uncomplicated allegations of sexual assault.

The charge is referred to Sgt Fumbles’ CO.  The CO must then decide how she will dispose of the charge.  She essentially has two choices: (a) she can choose not to proceed; or, (b) she can send the charge to a referral authority.

Although QR&O Chapter 107 deals with “Preparation, Laying, and Referral of Charges”; Sgt Fumbles’ CO won’t obtain her legislative direction from that chapter.  QR&O 107.09 indicates that a commanding officer shall “… (a) cause the charge to be proceeded with in accordance with Chapter 108 (Summary Proceedings); or (b) not proceed with the charge if, in the opinion of the commanding officer or superior commander, the charge should not be proceeded with…”.  However, this will not proceed by summary trial, and the CO won’t find the necessary direction in Chapter 107, or even under Chapter 108.

Under QR&O 108.16, the CO would review her jurisdiction as part of her ‘pre-trial determinations’ and conclude, based upon QR&O 108.07, that she does not have jurisdiction to preside over a summary trial concerning sexual assault, and would then apply to a referral authority under QR&O Chapter 109 (see QR&O 108.16(3)).  The term ‘pre-trial determinations’ is a bit of a misnomer, since there will be no summary trial.  While most CO might be generally aware that an allegation of sexual assault must eventually be referred to DMP if the CO wishes the prosecution to proceed, the actual chain of legislated duties, powers and functions is an awkward trail of authorities from Chapter 107 to 108, which eventually winds up at Chapter 109.

I suggest that, from a practical perspective, what actually happens is that a CO skips straight to QR&O Chapter 109.

Note, too, that if Sgt Fumbles’ CO chooses not to proceed with a charge laid by the CFNIS, she must “… communicate the decision in writing with reasons to the member of the military police who laid the charge or the officer or non-commissioned member under whose supervision the investigation was conducted.”[11]  The CO must also provide the same information to the officer to whom the CO is responsible in matters of discipline.[12]

If, after reviewing the reasons given by the CO for not proceeding with the charge, the officer or non-commissioned member of the CFNIS still believes that the charge should be proceeded with, the officer or non-commissioned member may refer the charge directly to a referral authority.[13]  So, let’s not fool ourselves into believing that the CO is much more than a rubber stamp.

That said, in light of the current Op HONOUR atmosphere, it is difficult to conceive that a CO would choose not to proceed with the charge, so we will assume that Sgt Fumbles’ CO applies to the referral authority for disposal of the charges.[14]  Let’s assume that Sgt Fumbles belongs to a unit in 4^th Canadian Division (4 Cdn Div).  The referral authority would likely be Comd 4 Cdn Div.  Although Comd 4 Cdn Div is not a Commander of a Command (4 Cdn Div is a formation), he has been granted the powers of an Officer Commanding a Command by the Minister of National Defence (MND) in the Ministerial Organization Order (MOO) issued by the MND creating that formation and the position of Commander 4 Cdn Div.

Since there is likely a Brigade Commander (or other formation commander), to whom Sgt Fumbles’ CO is responsible for matters of discipline, she must also copy that commander on the application.[15]

Comd 4 Cdn Div will then refer the matter to DMP for disposal.  Note that, under QR&O 109.05, the Referral Authority has very little discretion.  Save for very narrow circumstances, the referral authority is obliged to refer the charge(s) to DMP.  The only time a Referral Authority may refer the charge back to the CO or Superior Commander making the application for referral is if the Referral Authority believes the CO or Superior Commander has adequate powers of punishment.  This discretion only applies where the referral was made on the initiative of the CO or Superior Commander.  It does not apply where an accused has elected trial by court martial or where a court martial is the only military tribunal with jurisdiction.  Thus, Comd 4 Cdn Div must refer Sgt Fumbles’ charge to DMP.

Both the CO and the Comd 4 Cdn Div will be obliged to seek the advice of their unit/formation legal advisor (LegAd) in the conduct of their duties.  I suggest that, where a charge is laid by the CFNIS, it is unlikely that the unit legal advisor will closely scrutinize the merit of the case.  Some might; but I suggest that, for most, that is not their focus.  Mostly, their roles will be to ensure that the correspondence that the CO and Referral Authority use for referral cite the appropriate legislative authorities and include the requisite commentary to ‘assist’ DMP with his eventual functions.  Mostly, these LegAds assist with preparing the letters used to refer the matter to DMP and in ensuring that the statutory actors, who exercise little, if any, discretion, perform these limited statutory roles correctly and efficiently.

I do not offer these comments as criticism of the unit legal advisors.  After all, prior to the charge being laid, the CFNIS would have sought legal review from a prosecutor in the CMPS – not just a prosecutor, but a SMART prosecutor – whose principal duty is to perform that review.  Moreover, they will also be aware that the military prosecutor to whom this matter is eventually assigned by DMP will also conduct post-charge screening.  Besides, in my experience, most military prosecutors are not particularly concerned about the views of unit legal advisors.  This last comment, I fully acknowledge, is a criticism; however, it is grounded in actual experience.

The referral to DMP could proceed relatively quickly – e.g. between 1 and 4 weeks from the date the charge is laid to the date that it is received by DMP.  Or it could take longer.  Many unit legal advisors I know pride themselves on ensuring that the referral process is not the ‘weak link’ in the court martial process.  A referral would almost certainly proceed faster than the actual CFNIS investigation.

Once the referral of Sgt Fumbles’ charge is received by DMP, he (or, more accurately, a Deputy DMP, acting on behalf of DMP) would assign the matter to a prosecutor.  That prosecutor would then conduct charge screening.  That could take about a month, but I have also encountered circumstances where the screening takes 4 to 6 months.

 

Tangent #3 – A Second Charge Screening?

I have always found this duplicative process intriguing.  And far from efficient.

In the civilian criminal justice system, it is typical for an Assistant Crown Attorney to conduct post-charge screening when charges are laid before a court of competent jurisdiction.  The time for such screening can vary.  In my experience, this tends to be conducted as fast as, or faster than, what arises in the ‘military justice system’.  But we also have to remember that civilian prosecutors are dealing with a markedly larger volume of matters.

But the timeframe for screening is not what intrigues me (although I do sometimes find it frustrating when it takes a long time).  In the civilian criminal justice system, save in specific matters (e.g. serious or high-profile matters) the first opportunity that the Crown Attorney (or, more accurately, an Assistant Crown Attorney) typically has to screen the charge is after the charge is laid.  Not so in the ‘military justice system’.

As I mention above, the DMP Policy on Charge Screening asserts that “Often when a Prosecutor is called upon to provide pre-charge advice the file may be incomplete as compared to the file at the time of court martial.”  I disagree with the accuracy of this assertion.  On the contrary, I suggest, based upon my own experiences, that the CFNIS almost always seek pre-charge screening only when the investigation is considered (by them) to be complete.  In fact, I contend that this is CFNIS policy and, in an application I recently argued before a civilian court of criminal jurisdiction, the CFNIS investigator who testified confirmed that this is their policy.

As I mention above, the CFNIS seek the legal advice from the CMPS prosecutor assigned to perform that function.  This applies to every investigation.  It can sometimes take several weeks, or even months, to obtain that advice.  And remember, this is the “… separate system of military tribunals … [that] allow[s] the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military …” that the late Chief Justice Lamer referred to in R v Généreux, [1992] 1 SCR 259.  The justification for this separate system, which resonated nearly 30 years later in R v Stillman, 2019 SCC 40, was justified based upon the observation that to “… maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently.” (Généreux, p 293, emphasis added)

Frankly, I doubt very much that the process presently followed by the CF is truly efficient and effective.

 

The Narrative Continues …

So, here we are: Sgt Fumbles has finally been charged by the CFNIS and the charge has been referred to DMP.  Based upon practice over the past several years, I suggest that, at this point in time, we are likely anywhere from 9 months (if I am being generous) to 18 months after the investigation was commenced.  If the complaint was made in a timely fashion, which is not always the case, we are also 9 to 18 months after the date of the allegations and the date of the alleged misconduct.

For our scenario, I will try to stick with what the data[16] suggests is the median time-frame: 12 months between the start of the investigation and the date the charge is laid, a month for referral, and 3 months for the second charge screening.  Let’s also assume that the complaint was made in a timely fashion.  So, here we are, 16 months after the allegations were raised, and 4 months after the charge was laid.

So, according to the received wisdom in R v Kalanj, [1989] 1 SCR 1594, (as amplified by subsequent judgments) there is only 4 months of post-charge delay.  Certainly, this is the view to which the Military Police and DMP subscribe.  That perception is understandable because that is also the view to which military judges subscribe: see R v MCpl Tuckett, 2019 CM 3006 for one of the most recent examples.

Consequently, I cannot envision the Military Police or DMP doing anything to try to speed up the investigative time frame.  Why would they?  There’s little motivation to do so, even when civilian police appear capable of completing such investigations in 1/10 the amount of time.  As was observed by the Alberta Court of Appeal in a matter concerning actions by professional regulators, “… Delay becomes the norm when it has no consequence.”: Wachtler v College of Physicians and Surgeons of the Province of Alberta, 2009 ABCA 130, para 49.[17]

Granted, Sgt Fumbles is likely concerned about all of the delay, since he may well have been arrested at the outset of the investigation and may have been serving under CRO-imposed release conditions for the entire period of time.  He may also have been subject to conditions imposed on his service.  While the chain of command will likely hold off on initiating an Administrative Review or Remedial measures under Defence Administrative Order and Directive (DAOD) 5019-4 until after the disciplinary process is complete, it is entirely possible (even likely) that Sgt Fumbles would be subject to significant immediate administrative action.

For example, if he was on a course at the time of the allegations, he could (and probably would) be removed from training (“… for his safety or for the safety of others …”).  Equally, if he anticipated going on course, his CO may conclude that it wouldn’t be prudent for him to proceed on a course.  He might even be removed from his unit in an administrative manner or even ‘relieved from performance of military duty’ under QR&O 101.09.

And remember, at this point in time, Sgt Fumbles has not been found guilty of anything, has not been offered any opportunity to make full answer and defence, and it was 12 months before he was even charged with any offence.  Yet he may well have been subject to significant disciplinary and administrative restrictions from the outset (i.e. when the allegations were fist raised).

I am not suggesting that such action is never permitted or never a reasonable course of action.  However, in my experience, particularly under Op HONOUR, it is de rigueur.  Indeed, blatant disregard for timely and fair decision-making appears to be justified, consistently, as an appropriate response to the purported sexualized environment in the CF.

Forgive my appeal to motherly platitudes, Dear Reader, but my mother always told me: “Two wrongs don’t make a right.”  If CF decision-makers wish to address wrong-doing in the ranks, it does not reinforce respect for the Rule of Law to do so in a manner that abrogates the rights and interests of others.

Returning to Sgt Fumbles’ specific matter, and remembering that the focus of our discussion in this blog article is on administrative (not disciplinary) decision-making, let’s posit that the screening prosecutor chooses not to prefer the charge.  That is a course of action available to the prosecutor.  (Technically, it is a decision attributable to DMP under section 165.11 of the NDA, but, by virtue of section 165.15, DMP may be assisted by other barristers and advocates.)  While there is no provision under the NDA that expressly states that DMP may choose not to prefer a charge, it is implicit in the discretionary aspects of this function under s 165.12 of the NDA.  It is also the type of decision that does arise from time to time, perhaps more frequently than some people may realize.

So, let’s posit that, 3 months after the charge was referred to DMP, the assigned prosecutor, ‘Major Discretion’, ‘non-prefers’ the charge (to use the colloquialism often used by DMP prosecutors).  He then communicates this decision to all the parties listed at QR&O 110.05: (a) the accused; (b) legal counsel for the accused; (c) the commanding officer of the accused; (d) the referral authority; (e) the Judge Advocate General; and (f) the Provost Marshal.

For the purposes of this example, we will not posit that the complainant or a relative of the complainant, then writes to the Minister, the CDS, the JAG, and/or DMP, criticizing Major Discretion’s decision not to prefer a charge.  Therefore, we will also refrain from including in our hypothetical scenario that DMP consequently assigns another prosecutor the task of conducting a second ‘charge screening’ in order to then make the ‘right decision’ and prefer the charge for court martial.  Just such a circumstance arose recently (R v Captain Stacey, 2019 CM 3017), with problematic results.  However, such questionable exercise of discretion and potential abuse of process might over-complicate our fact scenario.

Instead, since our focus is on administrative, not disciplinary, processes, our factual scenario will conclude the disciplinary process with a ‘non-preferral’.

When Major Discretion communicates the ‘non-preferral’ in accordance with QR&O 110.05, the letter doing so will likely be perfunctory.  It would not be surprising if Major Discretion’s letter was limited to two brief paragraphs:

1.  On 5 August 2019, you were charged under section 130 of the National Defence Act for Sexual Assault, contrary to section 271 of the Criminal Code of Canada.
2.  A post-charge screening has been conducted regarding potential disciplinary proceedings. Pursuant to subsection 165.12(1) of the National Defence Act, a decision has been made by the undersigned not to prefer this charge against you.

It can be that simple.  In fact, it will almost invariably be that simple.  DMP (and his prosecutors) are under no obligation to provide a detailed written justification under QR&O 110.05.

It is entirely possible that Major Discretion, one of the Deputy DMP, or DMP himself, might offer a more robust description, separately, to one or more of the parties listed in QR&O 110.05.  Nothing prohibits such action.  However, it is unlikely that DMP will provide a more robust explanation to the accused, lest the accused rely upon such information in a subsequent claim of malicious prosecution.  Also, in light of the aforementioned potential for complainants or family members to lodge complaints about non-preferral with various senior decision-makers, DMP may be disinclined to offer detailed explanations concerning decisions for which courts grant prosecutors broad discretion and do not require detailed justification.

So, Major Discretion informs various parties that DMP will not prefer the charge.  Presumably, such a decision would be due to insufficiency of evidence or other reasons to conclude that there is not a ‘reasonable prospect of conviction’.  I say ‘presumably’, because Sgt Fumbles will likely never know the reason the charge is not preferred.  There are two general reasons why a military prosecutor will not prefer a charge: absence of a reasonable prospect of conviction or the belief that the prosecution is not in the public interest.  Presumably, prosecution of sexual assault in the Canadian Forces is in the public interest.  Therefore, Sgt Fumbles can only assume that Major Discretion concluded that there was not a reasonable prospect for conviction, likely based upon a deficiency or defect in evidence.

Now, even though we will not inject a ‘dissatisfied complainant’ into our fact scenario, we will posit that Sgt Fumbles’ CO, who is not happy with the disciplinary result, issues a Notice of Intent to Recommend Release.  While, in my experience, such decisions are sometimes not made until several months after the ‘non-preferral’, let’s give the CO the benefit of the doubt and suggests that she does so within 3 months of the non-preferral.  Let’s assume that she first sought legal advice from her unit LegAd and also consulted with staff at Director Military Career Administration (DMCA).

Therefore, 19 months after the allegation is first raised (and quite possibly 19 months after the CO first took immediate administrative action against Sgt Fumbles) the CO issues an NoI under QR&O 15.26.  Let’s assume that the NoI is completed properly (which is not always the case) and adequately articulates the reason that the CO is recommending compulsory release (which is also not always the case).  After granting Sgt Fumbles the legislated 14 days to register any objection to the NoI (which will rarely ever alter the CO’s intent), the CO forwards the NoI to DMCA.

This precipitates an Administrative Review (AR) under DAOD 5019-2, based upon an allegation of sexual misconduct, contrary to DAOD 5019-5 and CANFORGEN 049/19.

 

Tangent #4 – CANFORGENS as Policy Instruments

At this stage in the process, I’d like to offer an observation on the perennial nonsense that is the use of CANFORGEN to promulgate CF policy.  CANFORGEN is an abbreviation for Canadian Forces General Message.  These communications date from an era before e-mail was prolific.  However, these messages continue to be used to communicate messages to the Canadian Forces.  There are similar message systems for Commands (e.g. CANLANDGEN for the Army).

But my point is this: this system is for messages, including messages announcing policy changes or development.  By they are not intended to be the actual policy instruments.  That is why the Canadian Forces has QR&O, DAOD, and similar instruments.  These instruments are intended to be used as policy instruments.  That’s why they are often referred to as policy instruments.

However, it has become common practice for senior CF policy-makers to use CANFORGEN to establish or articulate the policy, not simply announce it.

The problem with this approach (other than the obvious observation that policy-makers are using the wrong tool), is that, unlike QR&O and DAOD, which are available both on the DWAN intranet, and the wider internet, CANFORGEN, published on the VCDS DWAN intranet site, are not available on the internet.  In other words, they are not publicly available.  They are not ‘notoriously’ published.  Nor are they particularly amenable to a systematic search function (again, unlike the QR&O and DAOD).  CANFORGEN are remarkably ill-suited as policy instruments.  They are, however, ideally suited as a message system.  That’s likely because CANFORGEN were created as a messaging system, and not as policy instruments.[18]

It’s not clear why senior CF decision-makers continue to use CANFORGEN for a purpose for which they were not intended or designed.  I’d like to think that this is not because these decision-makers are trying to hide policy instruments from public scrutiny or that this is an intentional effort to make it difficult for CF personnel to find such instruments.

Based on a desire to appease my ‘better angels’, I’d prefer to conclude that it is out of laziness or an impatience with the process by which QR&O and DAOD are amended.  After all, to amend a DAOD, the policy-holder or policy-maker has to refer the matter to their legal advisor, who must then work with Corporate Services and the DND/CF Legal Advisor who, for whatever reason, appears to have the final say on legal advice regarding DAOD.  Amending a QR&O provision is even more challenging, as these provisions are regulations (save for orders made by the CDS).  And even the CDS’ orders in the QR&O must follow essentially the same amending process, which involves legislative drafters from the Department of Justice.

It’s far easier to draft a CANFORGEN and seek cursory review before it is ‘issued’, even if the result can be problematic.  After all, one of the principal reasons why development or amendment of DOAD or QR&O is so heavily process-driven and labour intensive is to ensure that the policy is fully and logically conceptualized, well-articulated, and consistent with the law.  That’s almost always a ‘good thing’ when it comes to policy development, particularly where policy-makers and decision-makers wield the kind of significant power and discretion wielded by senior CF policy- and decision-makers.

 

But Back to the Narrative …

In any event, over a year-and-a-half after the allegations against him are first raised, Sgt Fumbles now finds himself the subject of an Administrative Review (AR) based upon a recommendation by his CO that he should be released from the CF for sexual misconduct.  It is possible that his CO may have recommended release under Item 2(a) of the Table to QR&O 15.01.  However, his CO may have read my blog and concluded that it is problematic to recommend release under Item 2(a) where there has not been a conviction (or even a prosecution) under the civilian criminal justice system or the military justice system.

I know what you’re thinking Dear Reader: it is presumptuous of me to believe that my Blog is widely read.  However, I live in hope.  But let’s assume that someone has been listening, perhaps in DMCA’s office, and the CO’s recommendation was for release under item 5(f), which many CF decision-makers improperly view it as a ‘lesser version of Item 2(a)’, even though those two release items have markedly different justifications.

Undoubtedly, when the AR is conducted by DMCA there will be repeated reference to the fact that an administrative decision need only proceed on a civil burden of proof (i.e. ‘balance of probabilities’).  It is also entirely possible that the ‘evidence’ upon which DMCA will base her decision will be limited to the summaries in the CFNIS investigation, drafted by the CFNIS investigators, as opposed to the actual witness statements.  It is also possible that information, such as the identities of witnesses, will be improperly redacted from the meagre disclosure offered to the subject of the AR.  I have consistently encountered all of these tendencies in matters in which I have represented members of the CF.

We must recall that the evidentiary threshold of ‘reasonable prospect of conviction’ is actually lower than the civil burden of proof.  Consequently, although a decision by a military prosecutor is not binding on DMCA, it stands to reason that an evidentiary deficiency in the determination of a ‘reasonable prospect of conviction’ will also be an evidentiary deficiency in applying the civil burden of proof when the two decision-makers are relying on the same evidence.  This factor is even more profound if DMCA is not relying on the entirety of a military police investigation, which is what the prosecutor would rely on when making a ‘preferral decision’.

However, the CDS has made it clear that sexual misconduct must be rooted out and ‘them’s marching orders!’.  This is no time for sufficiency of evidence or the Rule of Law to interfere with public perception.  After all, doesn’t ‘balance of probabilities’ mean that evidence is less important?

In our fact scenario, let’s posit that, when the time comes that Sgt Fumbles actually gets to offer ‘full answer and defence’, he frankly admits that he had sexual intercourse with the complainant and, moreover, that it was consensual.  In fact, it may be that the reason Major Discretion chose not to prefer the charge was because there was either evidence in the investigation that either strongly indicated that the complainant consented or that there was evidence that would seriously undermine her credibility.  Although a prosecutor is not to adopt the position of a trier of fact when screening for ‘reasonable prospect of conviction’, the prosecutor may (or, arguably, must) assess the credibility of witnesses.  If there were a significant indication that the complainant’s credibility was compromised, that may have been the reason for the non-preferral.

That said, it is unlikely that Sgt Fumbles will ever know why Major Discretion ‘non-preferred’ the charge.

If DMCA intends to rely on the content of the CFNIS investigation – assuming that DMCA seeks to obtain, and then discloses to Sgt Fumbles, the actual contents of the investigation – then this matter may turn largely on credibility.  Presumably, when interviewed by the Military Police, the complainant asserted that the sex was not consensual.  In contrast, Sgt Fumbles asserts that it was.

If, as has often been the case in my experience, the ‘disclosure’ offered to Sgt Fumbles in the AR process is limited solely to the investigation summaries, it will be difficult for Sgt Fumbles to offer ‘full answer and defence’ to the allegations.  However, let’s assume for the purpose of our scenario that Sgt Fumbles offers as complete a version of events as possible, even in the face of inadequate and improperly redacted disclosure (which is far too common an occurrence).

In my experience, the duration of such AR varies significantly.  From the date the CO issues the NoI to the respondent, to the date that DMCA eventually makes a determination, an AR can take anywhere from 6 months to over a year.  This process incorporates: (a) issuing the NoI to Recommend Release and waiting for the respondent’s representations (at least 2 weeks); (b) communicating the NoI to DMCA (another week or two); (c) DMCA 2 staff will open a file, send a message to the respondent’s unit notifying them (and him) of the file number and asking for confirmation from the respondent for his preferred (official) language for communication (1 to 4 weeks); (d) the DMCA 2 analyst will compile the file, prepare a synopsis, and prepare and send disclosure to the respondent (3 to 9 months, but can vary significantly).

Once the Respondent receives his disclosure, he will be given 15 working days (3 weeks) to respond.  While extensions are technically possible, they are often rejected save for extremely compelling reasons.  This appears to be one of the few steps in the entire process in which administrators appear to be concerned about timeliness.  Once the respondent offers his response, a decision from DMCA could take 1 to 3 months, or several months.

For our fact scenario, let’s assume that the process from initial NoI to DMCA decision takes 9 months (and I am likely being generous here).  That takes us to 28 months after the allegations were initially raised.  And remember, Sgt Fumbles’ career has likely been ‘on hold’ for this entire period of time.

We will posit that DMCA rejects the respondent’s representations – because that is typically what happens.  DMCA’s reasons likely follow the same boilerplate construct that I have seen repeatedly over the past few years.  However, I will acknowledge that DMCA does appear to be taking some steps to improve the content of these templates, so that they are not quite so obviously boilerplates.  However, that does not mean that they contain compelling or robust analysis.

In this particular case, DMCA will need to make a determination of credibility, since, barring any other evidence of misconduct, there was no sexual misconduct if the sexual interaction was consensual.  However, let’s posit – as is often the case – that DMCA offers only conclusory reasons why she prefers the evidence of the complainant over that of the respondent.

Specifically, DMCA doesn’t offer analysis concerning specific indicators of reliability (or unreliability).  That’s not surprising, as it is a ‘paper hearing’.  DMCA is simply reviewing written statements.  There is no cross-examination of any witnesses.  Frankly, there’s no guarantee that the ‘disclosure’ upon which the decision is based will actually include the witness statements from the CFNIS investigation.  It is possible, even probable, that the ‘disclosure’ was limited to the investigators’ summaries and is therefore most accurately described as the MP’s (rather biased) interpretation of the complainant’s version of events.

After all, the burden of proof is ‘balance of probabilities’ – doesn’t that mean that DMCA doesn’t need to offer sufficiently robust reasons for rejecting one party’s evidence and accepting contradictory evidence?

I suggest that the perfunctory assessment of evidence in these types of AR is not attributable to a single reason, such as a poor qualitative understanding of what ‘balance of probabilities’ really means.  Under Op HONOUR, another reason is likely the overwhelming desire of senior decision-makers to ‘send a message’ that they are doing something about sexual misconduct.  After all, the CF was excoriated in the media over allegations that it was not doing enough.  The inclination of decision-makers would be to demonstrate the significance of its reaction to such criticism.  Alternatively, decision-makers such as DMCA may exhibit an overwhelming desire to avoid drawing criticism from the CDS for not seeming to do enough.

It may also be due, in part, from a reluctance by some legal advisors to be overly critical of decision-making under Op HONOUR, since that appears to be the CDS’ main effort, and there may be a fear that if senior decision-makers are reluctant to listen to legal advisors who insist on respect for the Rule of Law, the Office of the JAG may decline in relevance.

There is also a deficiency in training of senior CF decision-makers concerning the exercise of statutory powers in administrative decision-making.  There are specific courses offered by the Canadian Forces Military Law Center and the Office of the Judge Advocate General for the Law of Armed Conflict and the application of the Code of Service Discipline at the Summary Trial Level.  There is no similar course for administrative decision-making, notwithstanding that such decisions are far more frequent and comprises a greater degree of a commander’s decision-making.

However, if I had to pick one reason, above all others, why decision-makers such as DMCA are not worried about defects in their decision-making process, it is this: they know that their decision will not be the subject of scrutiny by a constitutionally independent judge of the Federal Court.  They don’t have to make a decision that with withstand scrutiny by a judge; they just have to make a decision that will withstand scrutiny by the CDS.  And we already know what the CDS wants as a result.

So, DMCA orders the compulsory release of the CF member based upon the conclusion, ‘on a balance of probabilities’, that the CF member was guilty of sexual assault, even though the ‘paper hearing’ conducted by DMCA is insufficient to conduct a reasonable assessment of credibility.  It is doubtful that DMCA will offer meaningful or compelling reasons for accepting or rejecting certain evidence.

The CF member normally cannot challenge this decision before the Federal Court; instead, he must initiate a grievance, a so-called ‘adequate alternative remedy’.[19]  Since most compulsory release decisions under Item 5(f) (or Item 2(a)) are directed to take effect 30 days after the decision is made, the grievor won’t get a decision on his grievance until after he is released.  In fact, in light of the delays in referring grievances to initial authorities, it is entirely possible that the grievance won’t even be delivered to the initial authority before the release takes effect.

Here’s where things can get disingenuous.  Upon review – either before the initial authority or final authority – someone might realize that there were a few procedural and substantive errors.  You, Dear Reader, may have identified a few of those:

• Administrative tribunals do not make findings of criminal culpability on a balance of probabilities;
• Decisions must be based upon actual evidence. An improperly redacted summary drafted by a Military Police investigator does not constitute a ‘witness statement’ from a complainant;
• Paper reviews are inadequate to conduct determinations of credibility; and
• In any event, even if a matter is determined on a paper record, and on a civil burden of proof, when faced with material but contradictory evidence, the decision-maker must still provide reasons for accepting certain evidence and rejecting other evidence.

It’s entirely possible that additional evidence might come to light that the complainant gave conflicting statements about what transpired and had earlier suggested that the sexual interaction was, in fact, consensual.  Perhaps that was the reason the military prosecutor chose not to prefer charges.  It is possible that this evidence was not presented in the Administrative Review before DMCA.  After all, that would have made it difficult to make the desired decision.

Now the initial authority or final authority has a conundrum.  The CDS has made his intent clear.  The Sexual Misconduct Decision Tree also makes it clear: doing nothing or finding that sexual misconduct did not arise are not options.  So, what should the grievance remedial authority do?

Then some bright penny concludes that the CF grievance process purportedly constitutes a de novo review of the matter and can ‘cure’ both procedural and substantive defects in the prior adjudication.[20]  In light of the evidentiary shortcomings, focus shifts to the fact that the respondent (now grievor) acknowledged that he had sex with the complainant.  Even if it was consensual, the grievance adjudicator (whether the initial authority or final authority) concludes that this contravened the CF’s policies on personal relationships.  Salvation is at hand – the adjudicative authority can maintain the substantive outcome – the compulsory release – but for completely different reasons.

Granted, that determination appears to ignore the following considerations:

• Contravention of a policy concerning personal relationships by engaging in consensual sex is objectively much less egregious than sexual assault;
• Remedial measures under DAOD 5019-4 are intended to be a graduated response, and there are measures (Initial Counselling, Recorded Warning, Counselling and Probation) which are less intrusive, and which can address the impugned conduct in a reasonable fashion; and
• If contravention of the policy by engaging in consensual sex is worthy of remedial action, why was only one of the two participants subject to corrective measures?

The problem is that courts – specifically, the Federal Court – is reluctant to interfere with ‘disciplinary’ decision-making in the CF.  Potential (and reasonable) judicial responses to the concerns raised above include:

• It is for CF decision-makers, based upon their expertise and their knowledge of personnel management and leadership, to determine and apply the appropriate remedial or corrective measure;
• Provided that reasons are given, and that these reasons are based upon the tribunal record, the issue for the court is not what it would have decided, but whether the decision by CF decision-makers was reasonable; and
• The focus of the grievance and judicial review is on the grievor/applicant, not whether a 3^rd party was, or was not, also subject to sanctions.

The foregoing conclusions could still be drawn under the Vavilov regime.  But what does that say about the Rule of Law that Vavilov purports to support?

Senior CF decision-makers not only control the process, but they largely control the narrative in such administrative proceedings.  In the example that I have provided – and which is typical of decision-making in the “… administration of the affairs of the CF …”, there are three levels of administrative decision-making before a CF member is ever able to bring the matter before a constitutionally independent judge.  There is the ‘decision at first instance’ (DMCA), the determination by the initial authority (likely Director General Military Careers or Chief Military Personnel), and, finally, the final authority (the CDS or his delegate).  It is only the CDS’ decision that will be subject to scrutiny by a constitutionally independent and impartial Federal Court judge.

By the time that the Federal Court is in a position to scrutinize the CDS’s decision, it is a near certainty that Sgt Fumbles will now be Mr. Fumbles, consequent to a compulsory release.  In fact, he will likely have been a civilian for at least a couple of years before the matter is brought before the Federal Court.  And remember, according to our hypothetical scenario (which reflects what I have encountered in the administration of the affairs of the CF) Sgt Fumbles would have been subject to significant restrictions, under both administrative and disciplinary processes under the NDA, for more than two years before his release.

I would invite you, Dear Reader, to apply the framework presented in Vavilov, and draw your own conclusions about the extent to which that framework will encourage respect for the Rule of Law in the administration of the affairs of the Canadian Forces.

Op HONOUR may be viewed by some as necessary and successful in reducing sexual misconduct in the CF; however, it has also become a broad justification for the exercise of unreasonable decision-making and impunity.  And the judgment in Vavilov will do little to empower victims of such impunity to seek remedy for such excesses in statutory decision-making.

 

[1] Although addressing ‘hateful comments’ appears to be gaining ground – but that will have to wait for a future Blog article.

[2] Why ‘Fumbles’?  First, ‘Bloggins’ is over-used.  Second, “… it was always Fumbles …”.  I will leave it to you, Dear Reader, to deduce from where that quote originates.

[3] Contrary to section 271 of the Criminal Code, RSC 1985, c C-46, and under para 130(1)(a) of the National Defence Act, RSC 1985, c N-5 [NDA].

[4] QR&O, art 108.07.

[5] That is a clever acronym – it seems that with high profile issues, there is motivation for media-sensitive decision-makers to come up with clever-sounding acronyms.  I also note the use of the term ‘action’ in the acronym.  This is not unlike American news channels that use ‘Action’ in the name of their news broadcasts: it’s not just ‘news’, it’s ‘action news’.  I suspect that it also reflects the desire to demonstrate that ‘something is being done’ – it’s not just a ‘response team’, it’s an ‘action response team’.

[6] A legal officer whose duty is to provide legal advice, must be posted to the Office of the Judge Advocate General: QR&O art 4.081.

[7] See QR&O chapter 105, section 3 (arts 105.18 to 105.22).

[8] QR&O, art 7.03.

[9] QR&O, chapter 105, section 6 (arts 105.29 to 105.298).

[10] NDA, n 3, s 158.7.

[11] QR&O, art 107.12(1).

[12] QR&O, art 107.12(2).

[13] QR&O, art 107.12(3).

[14] QR&O, art 109.03.

[15] QR&O, art 109.03(3).

[16] Drawn from the Judge Advocate General’s annual reports over the past several years as well as my own experience with the Code of Service Discipline before courts martial.

[17] No doubt, advocates for the Military Police and DMP might assert that Wachtler concerned administrative statutory decision-making, not criminal or Code of Service Discipline regimes.  In response, I suggest the following: First, Wachtler concerned disciplinary regulation by a statutory decision-maker.  It is not all that far removed from the Code of Service Discipline, particularly in light of the position taken by the Office of the JAG in light of Bill C-77.  Second, examination of delay and reasonableness by statutory decision-makers in administrative and disciplinary/criminal processes is not defined by rigid ‘stove-pipes’.

[18] And, Dear Reader, if you believe that I am making a ‘mountain out of a molehill’, consider this: Would a Battle Group Commander (or one of her subordinates) call a Regimental Fire-mission to neutralize a section-sized enemy force in a built-up area, which included civilians and other non-combatants, or would she use the numerous direct-fire assets that are integral to the Battle Group?  The short answer is: no, she would use the right tool for the right job.

[19] Vaughan v Canada, 2005 SCC 11 is a perennial favourite of Department of Justice litigators who seek summary dismissal of actions (and applications) brought by aggrieved CF members who have not yet exhausted the CF grievance process, even if the CF grievance process is not a truly adequate remedy in the specific circumstances.

[20] For example: Parisé v Canada, [2000] FCA no 900, rev’g Parisé v Canada, [1997] FCJ No 932, 136 FTR 132; McBride v Canada (National Defence), 2012 FCA 181; Higgins v Canada (Attorney General), 2016 FC 32, aff’d Higgins v Canada (Attorney General), 2018 FCA 49