Full Time Service is Not Active Service (or Active Duty)

 

While we’re waiting for the Governor in Council to finally get around to appointing a new Chief Military Judge, I thought I’d take the opportunity in this Blog to address a few topics that, while not particularly complex, merit some discussion.

The first topic is the occasional misuse of the term ‘Active Duty’ or ‘Active Service’ when describing full time service in the Canadian Forces.

For example, in a recent online article for the CBC, Murray Brewster presented a brief discussion about the firearms and ammunition reported to have been in the possession of Corey Hurren, the Canadian Ranger who allegedly rammed the gates of the Governor General’s Residence on 2 July 2020, when he was arrested.  In his report, Mr. Brewster stated:

Most of the charges against him relate to the loaded firearms, but the Canadian Ranger, who was on active duty at the time of the incident, is also accused of uttering a threat to “cause death or bodily harm” to Prime Minister Justin Trudeau.

I have stated, in this Blog, and elsewhere, that words have meaning, particularly when they are terms of art used in legislation.  Unfortunately, the term ‘active duty’, as used in Mr. Brewster’s account, does not convey the meaning that might be intended.

And, as an aside, this Blog article is not intended as a criticism of Mr. Brewster’s reporting.  I am a strong proponent of the efforts of journalists like Mr. Brewster to keep Canadians informed of issues arising in the Canadian Forces and National Defence and Security.  I enjoy his contribution to the national discourse, and, on select occasions, Mr. Brewster has contacted me to offer insight into legal issues that are relevant to his reporting.  My goal with the present Blog article is to educate Canadians about the nature of terminology used to describe service in the Canadian Forces so that we can all communicate more clearly about these concepts.

In order to do so, I will first address the nature of the term of art ‘Active Service’ – or, as Mr. Brewster has used, ‘active duty’.  I will then contrast this term with other relevant terms of art such as ‘Regular Force’, ‘Reserve Force’, ‘Full Time Service’, ‘Part Time Service’, and ‘Class’ of service (pertaining to the Reserve Force).  I will then offer some observations about why words have meaning in the administration of the affairs of the Canadian Forces.  I will conclude with some suggestions why terms of art relating to the administration of the affairs of the Canadian Forces are often misused or mischaracterized, and the potential impact of such errors.

First, the term ‘active duty’ is not actually a term used to describe service in the Canadian Forces.  It is an American term used to describe full time service in the US armed forces, regardless of whether the member of the armed forces is a member of the regular forces, Reserves, or National Guard.  I am not an American lawyer, nor do I purport to possess detailed knowledge of American military law.  And this Blog article is certainly not intended to discuss particulars of American military law.  The principal point that I wish to make at this juncture is that the term ‘active duty’ is a relevant American legal term of art.

A similar, yet not identical, Canadian legal term of art is ‘Active Service’, which I will describe in greater detail.

However, based upon what has been reported, Corey Hurren was not on Active Service.

Again – words have meaning.

Active Service is defined at section 31 of the National Defence Act (NDA):

31 (1) The Governor in Council may place the Canadian Forces or any component, unit or other element thereof or any officer or non-commissioned member thereof on active service anywhere in or beyond Canada at any time when it appears advisable to do so

(a) by reason of an emergency, for the defence of Canada;

(b) in consequence of any action undertaken by Canada under the United Nations Charter; or

(c) in consequence of any action undertaken by Canada under the North Atlantic Treaty, the North American Aerospace Defence Command Agreement or any other similar instrument to which Canada is a party.

When officers and non-commissioned members deemed on active service

(2) An officer or non-commissioned member who

(a) is a member of, serving with, or attached or seconded to, a component, unit or other element of the Canadian Forces that has been placed on active service,

(b) has been placed on active service, or

(c) pursuant to law has been attached or seconded to a portion of a force that has been placed on active service, shall be deemed to be on active service for all purposes.

 

The term ‘Active Service’ is not a modern term.  It was defined at sections 32 and 33 of the 1950 version of the NDA[1], and its use pre-dates even that legislation.  It was, and is, distinct from terms of art such as ‘Regular Force’, ‘Reserve Force’, Special Force’, ‘Militia’ or other terms used to describe the nature of a person’s engagement with the Crown as a member of the armed forces of Her Majesty raised by Canada[2].  Historically, ‘Active Service’ has generally been used to describe the nature of service provided during emergencies or times of war in defence of the Realm.  It would not be incorrect to suggest that it is linked to the Crown Prerogative to raise armed forces in defence of the Realm.  However, what was once largely defined within the scope of the Crown Prerogative under Common Law principles, is now defined in statute.[3]

What is important for our present discussion is that ‘Active Service’ is not representative of service in a specific component of the Canadian Forces, nor is it indicative of whether someone is serving on full time service or part time service.  And this particular distinction lies at the heart of the present discussion, as I suspect that what Murray Brewster meant, when he stated that Corey Hurren was on ‘active duty’, was that he was serving on full time service, notwithstanding that he is a member of the Reserve Force component of the Canadian Forces.

In sections 15 and 16 of the NDA, the CF is divided into three components:

1. The Regular Force;
2. The Reserve Force; and
3. The Special Force.

 

The ‘Special Force’ should not be confused with ‘Special Operations Forces’.  The Special Force, established under section 16 of the NDA, refers to a force consisting of officers and non-commissioned members (NCM) raised in response to an emergency or other objective of collective defence under the auspices of “…  the United Nations Charter or the North Atlantic Treaty, the North American Aerospace Defence Command Agreement or any other similar instrument to which Canada is a party …”[4].  Recalling that the ‘modern’ NDA was first enacted in 1950, the ‘Special Force’ raised by Canada for service in Korea from 1950 to 1953 is an object example of raising a ‘Special Force’.  It is a Force raised for a limited duration and for a specific purpose.  At present, the are no personnel enrolled in a ‘Special Force’.

That leaves us with the Regular Force, “…  that consists of officers and non-commissioned members who are enrolled for continuing, full-time military service …”[5] and the Reserve Force, “… that consists of officers and non-commissioned members who are enrolled for other than continuing, full-time military service when not on active service.”[6]

At the risk of heading off on a slight tangent, I suggest that these statutory descriptions of the Regular Force and Reserve Force tend to demand the question: what, precisely is meant, when someone refers to a ‘full time Reservist’?  Again, words have meaning, and that particular context is worthy of a separate Blog article.

For the present purposes, what I will offer is that the Reserve Force is further sub-divided, under the Ministerial regulation at article 2.034 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), into four separate sub-components:

1. The Primary Reserve;
2. The Supplementary Reserve;
3. The Cadet Organizations Administration and Training Service (COATS); and
4. The Canadian Rangers.

 

Note that members of these sub-components are members of the Reserve Force, regardless of their sub-component.  It was reported that Corey Hurren had once been a member of the Primary Reserve sub-component; however, at the time of his arrest, he was a Canadian Ranger.

Members of the Reserve Force will typically serve on one of three ‘Classes’ of service:

1. Class A;
2. Class B; and
3. Class C.

 

These Classes of service are defined at articles 9.06, 9.07, and 9.08 of the QR&O found here.

As a general rule, Class A service is part time service that is characterized by what many likely understand to be part-time service.  For example, Reserve Force personnel will ‘parade’ one night a week (sometimes two nights) and one week-end a month.  (This is a generalization.  This specific frequency is not expressly set out in the NDA or QR&O.)  Some people will often, erroneously, refer to such personnel as ‘Class A Reservists’.  Again – words have meaning.  There are four sub-components of the Reserve Force.  It is not inaccurate to characterize someone as a ‘Primary Reservist’, a COATS officer, or a Canadian Ranger.  However, the ‘Class’ of service describes the service, not the person.  Thus, a member of the Reserve Force might serve on ‘Class A service’, but that does not make her a ‘Class A Reservist’.

Class B service is purportedly temporary in nature even though it will be on ‘full time’ service.  Ostensibly, such service will include: service as instructional staff (often during summer training); service as a candidate on a course; or, “… duties of a temporary nature approved by the Chief of the Defence Staff, or by an authority designated by him, when it is not practical to employ members of the Regular Force on those duties.”  However, it is not unheard of for a Reserve Force member to occupy a ‘Class B’ position for up to three years, and subsequently either renew Class B service in that, or another position.  Some members of the Reserve Force can end up serving several years continuously in a ‘Class B’ position or positions.

‘Class C service’ is full time service that is distinct from Class B service principally because it is service (with the consent of the CDS) in a position on the Regular Force Establishment or supernumerary to the Regular Force establishment, or is on an operation (or type of operation) approved by or on behalf of the CDS.  If that sounds somewhat vague to you, Dear Reader, you are likely not alone.  Perhaps the best way to characterize the difference between a Class B position or service and a Class C position or service is that a position will be designated as a Class C position ‘because the CDS says so’.  That was essentially the crux of the determination in Armstrong v Canada (Attorney General), 2005 FC 1013, aff’d Armstrong v Canada (Attorney General), 2007 FCA 157.

The principal conclusion to draw from this increasingly convoluted description is that there is a marked distinction between the meaning of ‘Active Service’ and other descriptors of military service such as the ‘component’ to which a CF member belongs (e.g. Regular or Reserve) and, for members of the Reserve Force, the ‘Class’ of service on which he/she/they serve at any given moment.  Apples, oranges, grapefruit – these terms of art are distinct, with distinct meanings, and distinct application.

Absent any action by the Governor in Council, a member of the Canadian Forces is not on ‘Active Service’ by virtue of enrolling in a particular component of the CF.  Nor is ‘Active Service’ synonymous with full time service.  For example, absent any specific action by the Governor in Council relating to section 31 of the NDA, a member of the Regular Force is not on ‘Active Service’.  The Governor in Council must place members of the CF on ‘Active Service’.  Typically, this is done with an Order in Council (OiC) or other Statutory Instrument (SI).

For example, when CF personnel are deployed on operations approved by the Chief of the Defence Staff (CDS), an OiC will often be issued placing the CF personnel deployed on that operation on ‘Active Service’.  Typically, these will be operations outside Canada.  An older example of such an OiC is SI/92-42 (P.C. 1992-354) Order Placing Members of the Canadian Forces on Active Service (Yugoslavia), dated 27 February 1992.  This Statutory Instrument (SI) placed

… on active service beyond Canada those

(a) officers and non-commissioned members of the regular force of the Canadian Forces, and

(b) officers and non-commissioned members of the reserve force of the Canadian Forces

who are part of, or serve in immediate support of, the United Nations Protection Force.

 

In other words, regardless of the component of the CF in which an officer or NCM was enrolled, or (for members of the Reserve Force) the ‘Class of Service’ upon which they were serving, the officers and NCM who were deployed (beyond Canada) as part of the United Nations Protection Force (UNPROFOR) were on Active Service.

The Governor in Council has also issued an OiC of a much broader and more general nature that captures a broader scope of CF personnel: SI/89-103 (P.C. 1989-583) Order Placing Members of the Canadian Forces on Active Service for the Purpose of Fulfilling Canada’s Obligations Under the North Atlantic Treaty, dated 6 April 1989.  The significance of this OiC merits reproduction in its entirety:

Whereas it is desirable, in consequence of action undertaken by Canada to provide forces for collective defence under the North Atlantic Treaty, to place officers and non-commissioned members of the Canadian Forces on active service;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of National Defence, pursuant to paragraph 31(1)(b)* of the National Defence Act, is pleased hereby, for the purpose of fulfilling Canada’s obligations under the North Atlantic Treaty, to place

(a) officers and non-commissioned members of the regular force of the Canadian Forces on active service anywhere in or beyond Canada; and

(b) officers and non-commissioned members of the reserve force of the Canadian Forces on active service anywhere beyond Canada.

 

This OiC replaced prior, similar, OiC that served a similar purpose.  Astute readers will likely note that this Statutory Instrument was created when the CF still maintained a mechanized brigade group, and air assets, in what was then West Germany, as part of NATO’s forces.

However, the order was not limited to those personnel posted to 4 Canadian Mechanized Brigade Group, or any other unit or formation assigned to NATO.  The Statutory Instrument merely makes reference to Canada’s obligations under the North Atlantic Treaty (i.e. collective defence as a member of NATO).  Despite being over 30 years old, this OiC has not been revoked.

In effect, this Statutory Instrument placed all members of the Regular Force on Active Service regardless of where they are serving.  It placed members of the Reserve Force on Active Service if they are serving outside Canada – regardless of the Class of Reserve Force service.

And that is an important distinction to draw.  Often, some personnel – including senior decision-makers – equate Class C service, upon which a member of the Reserve Force is engaged, to Active Service.  And that misunderstanding arises from a lack of understanding the distinction between ‘Class’ of service and Active Service.  And that appears to have been the basis from Mr. Brewster’s comment regarding Corey Hurren being on ‘active duty’.

Certainly, when a member of the Reserve Force deploys on a CDS-approved operation outside Canada, the CF member will typically serve on Class C service.  And, often, in the past, these operations were made the subject of Statutory Instruments placing on Active Service those officers and NCM who were deployed on the operations.  (Indeed, SI 89-103, described supra, would likely broadly apply even if there was not a ‘mission-specific’ OiC placing CF personnel on Active Service.)  However, the Class of service and the status of being on Active Service are two distinct factors, based upon distinct statutory bases.  Officers and NCM of the Reserve Force serve on Class C service when that Class of service is authorized by the CDS.  When they are on Active Service, their status is established by virtue of a Statutory Instrument created by the Governor in Council, placing them (and members of the Regular Force) on Active Service.

I suspect I know what you’re thinking right now: “Could you be more pedantic?” [insert Matthew Perry meme here].

Two things: First, you’d better believe that I could be more pedantic.  I am a ninja at pedantry.

Second, words have meaning.  When we are communicating concepts, ideas, and factors of significance, we need to ensure that we are as clear as possible.  An apt comment – possibly apocryphal – that “The United States and Great Britain are two countries separated by a common language” is attributed to George Bernard Shaw.  (Alternatively, it has been attributed to Winston Churchill.)  The sense of the comment is that, notwithstanding a common tongue, meaning can be lost if there is not a common point of reference.

Murray Brewster mentioned that Corey Hurren was on ‘active duty’.  Presumably, he offered this statement because he believed that it held some significance.  However, if we cannot be certain of what Mr. Brewster meant, and Mr. Brewster cannot be certain of what we, as consumers of his journalistic efforts, will understand by this statement, then there is a breakdown in communication.  I suspect that what Mr. Brewster thought was significant was that Corey Hurren was, at the time, on ‘full time service’ with the Canadian Forces.  Consequently, he was being paid for that full time service and, even if he was not ‘on duty’ at the time (which is yet another term of art that is commonly misconstrued) he was, at the very least, liable for service, at the time that he decided to (allegedly) go on a bit of a rampage at the residence of the Commander in Chief of the Canadian Forces.

But the purpose of the present Blog article is not to ‘correct’ Mr. Brewster’s use of the term ‘active duty’.  I could simply have contacted him and subjected him, and him alone, to my pedantry.  But I am not that cruel a person.

The reason why I have committed these thoughts to public dissemination and consideration is because Mr. Brewster is not the only person to struggle with these terms of art.  As I have identified previously in this Blog, senior CF decision-makers and their public affairs spokespersons also struggle with the accurate use of terms of legal art drawn from the NDA and its amplifying regulations, directives, and instructions.  Whether it’s the CDS (or his spokes person) mischaracterizing ‘relief from performance of military duty’, misrepresenting what members of the Reserve Force may (and cannot) do while deployed on ‘domestic operations’, or mischaracterizing the legal norms of statutory decision-making – words have meaning.

The problem is that it appears that senior CF decision-makers continue to make mistakes regarding the nature of statutory decision-making and misconstrue terms of art established under the NDA.  And I suspect that these errors arise from a lack of sufficient training and education relating to those subject areas.

CF decision-makers receive a modicum of training and education regarding the Code of Service Discipline.  Significant efforts are expended by the Office of the Judge Advocate General (OJAG) to support such training and education.  Moreover, serious disciplinary matters are brought before military judges who preside over courts martial.  Scrutiny by those constitutionally independent judges will motivate CF decision-makers and actors, and the legal officers who support them, to demonstrate greater attention to detail when using relevant terms of art.  Successive Judge Advocates General (JAG) have narrowly construed the JAG’s statutory ‘superintendence of military justice’ under section 9.2 of the NDA to be restricted to the Code of Service Discipline.  This long-standing narrow construction of the term was included (disingenuously, I contend) in the amendments introduced in Bill C-77.  The specific amendment regarding the definition of ‘military justice’ has not yet come into force.  Consequently, there is a perception, with which I disagree, that ‘superintendence of military justice’ does not extend to how CF decision-makers use administrative measures to punish, or otherwise influence the conduct of subordinates.

Therefore, when CF statutory decision-makers function outside the context of the Code of Service Discipline, the attention to detail that might arise under the Code of Service Discipline can be lacking.  Presiding Officer Certification Training has existed for two decades and has been tweaked from time to time.  There is still no statutory decision-maker training offered for CF decision-makers.  Moreover, the ‘Military Administrative Law Manual’ (A-LG-007-000/AF-010), which had not been updated since October 2008, was withdrawn from use and has not since been replaced.

This is particularly troubling in light of the increase in administrative decision-making as a means of disciplining CF personnel under Op HONOUR.  Notwithstanding that statutory decision-making outside of the context of the Code of Service Discipline has typically been more frequent than decision-making under the Code of Service Discipline, there has been a noticeable shift in the approach that the CDS and senior CF decision-makers have taken in order to discipline personnel who are accused of ‘sexual misconduct’.  Administrative measures are increasingly the preferred tool for addressing such allegations.  Presumably, those same decision-makers will also demonstrate a similar approach when addressing the alleged rise in ‘hateful conduct’.

Combined with a lack of adequate training in the exercise of these statutory powers and functions (and duties), there is markedly less independent or external scrutiny in what legal officers of the OJAG characterize as ‘internal decision making’.  No constitutionally independent judges preside over these processes.  Indeed, before such matters will ever be viewed by an independent judge or decision-maker, the ‘internal process’ must first be completed.  Then, if the affected CF member feels that he/she/they has been aggrieved, the CF member must first exhaust the 2-tiered statutory grievance process (which those same legal officers characterize as yet another ‘internal process’).  Only then, after additional CF decision-makers have taken 2, 3, 4 or more years to review the subject matter and render subsequent determinations – sometimes long after the CF member has borne the full brunt of the ‘internal decision’ – will the CF member have an opportunity to bring the matter before an  independent adjudicator.

My view is this: Wouldn’t it be better if the statutory decision-maker had a more robust understanding of the terms of art, processes, and principles that applied to a particular decision or decision-making process?  Wouldn’t it also be better if this robust understanding were complemented by a truly open mind, rather than trite recourse to boiler-plate mantras about how administrative decisions are predicated upon the civil burden of proof?  And, when that burden of proof is applied, wouldn’t it be much more acceptable if the determination were based upon actual evidence, rather than redacted summaries of allegations?  And where there are conflicting versions of events, and credibility is at stake, wouldn’t something more than a ‘paper hearing’, based upon incomplete evidence, be called for?

But it all starts with a decision-maker who has an adequate understanding of the legal terms of art, processes, and legal principles that apply to a particular decision.  Unfortunately, I am not confident that this is often the case in statutory decision-making in the CF.  Nor am I confident that the legal advisors in the OJAG are doing enough to set conditions for such fair and adequate decision-making.

 

[1] The National Defence Act (1950), 14 Geo VI, c 43.

[2] National Defence Act, RSC 1985 c N-5 [NDA], s 14.

[3] For those interested, the Government of Canada website relating to National Defence offers a detailed exposition on the Crown Prerogative in a ‘Strategic Legal Analysis Paper’ from the OJAG: https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law/crown-prerogative.html.  While I would not go so far as to suggest that I agree with every aspect of that paper, it is a comprehensive description of the Crown Prerogative in Canada, particularly as it pertains to the armed forces of Her Majesty raised in Canada.  It is also publicly available scholarship that is worthy of review by anyone interested in that subject.

[4] NDA, n 2, s 16(1).

[5] Id, s 15(1).

[6] Id, s 15(3).