Has the Canadian Forces Completely Abandoned the Rule of Law?

While it is becoming clear that the CDS has little regard for the Rule of Law, I am starting to be concerned that this mind-set is spreading within the senior ranks of the Canadian Forces, and to senior decision-makers within the context of National Defence.

Yesterday, public affairs officials for National Defence published a press release – which was carried by most media – announcing that the ranks (in English) of Master Seaman, Leading Seaman, Able Seaman, and Ordinary Seaman, would be replaced, respectively, with the terms: Master Sailor, Sailor First Class, Sailor Second Class, and Sailor Third Class.

Purportedly the “… new rank designations will be effective upon the issuance of a CANFORGEN in early September.”

I think someone may have forgotten to tell Parliament or the Governor in Council.

Oh, yeah, that’s right: the Prime Minister prorogued Parliament.

But there is still a Governor in Council.

To paraphrase astronaut John Swigert: ‘Ottawa, I think we have a problem here.”[1]

When the NDA was first enacted in 1950 (National Defence Act, SC 1950, c 43,  14 Geo VI) – as distinguishable from the much more limited version of the 1922 enactment (National Defence Act, SC 1922, c 34, 12-13 Geo V) – section 22 of the Act stated:

The respective ranks that may be held by officers and men of the Canadian Forces shall be as from time to time prescribed in regulations made by the Governor in Council.

Following unification of the Canadian Forces (which blended the three existing ‘services’ into the unified ‘service’ of the Canadian Armed Forces), the ranks used in the Canadian Forces were established in the Schedule to section 21 of the National Defence Act (NDA).  Specifically, the schedule listed the ‘generic’ Canadian Forces rank in Column I and, in Columns II, III, and IV, respectively, listed the equivalent ranks in what had been the Royal Canadian Navy, the Canadian Army, and the Royal Canadian Air Force.

Up until approximately 5 years ago, subsection 21(1) of the NDA established the default ranks to be used as follows:

For the purposes of this Act, the ranks of the officers and non- commissioned members of the Canadian Forces shall be as set out in Column I of the schedule.

Subsection 21(2) permitted the alternative ranks in Columns II through IV to be used if permitted in Governor in Council regulations:

The Governor in Council may make regulations prescribing the circumstances in which a person holding a rank set out in Column I of the schedule shall use, or be referred to by, a designation of rank set out in Column II, III or IV of the schedule opposite the rank held by that person.

Up until 1 June 2015, the rank designations described in subsection 21(2) of the NDA were established in the schedule to section 21 of the NDA, and the Governor in Council could enact regulations permitting one or more columns to be used as rank designations.  In particular, since introduction of ‘Distinctive Environmental Uniforms’ (DEU), the ranks in Column II applied to personnel who wore a ‘naval uniform’ as prescribed under article 3.01 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) that was in force at the time.

There have been several amendments to the National Defence Act since the significant amendments introduced by Bill C-25 – An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, c 35 – which received Royal Assent in 1998.  Not all of those amendments came into force upon Royal Assent; in some cases subsequent regulatory enactments were necessary.

Some legislative changes have arisen under evocatively named legislation: Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24.  Other amendments have received little or no fanfare and have been introduced under omnibus legislation.  For example, the changes to section 21 of the NDA and its schedule were introduced under the rather banal sounding Economic Action Plan 2014 Act, No. 1, SC 2014, c 20, s 169 and 170.  These amendments came into force on a date fixed by the Governor in Council – specifically, 1 June 2015.

These amendments reduced the schedule to section 21 of the NDA to how it appears today – it essentially lists the ranks that were identified in ‘Column I’ of the previous version of the schedule.  The more distinct ‘rank designations’ that appeared in the other columns were (as of 1 June 2015) described in article 3.01 of the QR&O.  A significant difference, however, was that the ranks from the previous ‘Column IV’, which reflected the ranks used in the ‘pre-unification’ Royal Canadian Air Force, were now the same as used in the Canadian Army, with the exception of the rank designation for ‘Private’, which became ‘Aviator’.

Consequently, Section 21 of the NDA now directs that rank designations will be prescribed in Governor in Council regulations, but only in the circumstances set out in those regulations:

21 (1) For the purposes of this Act, the ranks of the officers and non-commissioned members of the Canadian Forces shall be as set out in the schedule.

(2) A person holding a rank set out in the schedule shall use, or be referred to by, a designation of rank prescribed in regulations made by the Governor in Council but only in the circumstances prescribed in those regulations.

QR&O art 3.01 serves this function.  That is the reason why, presently, the equivalent of a Lieutenant Colonel who wears a ‘naval uniform’ (i.e. naval DEU) is referred to as a ‘Commander’ and not a ‘Lieutenant-Colonel’.  It is also the reason why the equivalent of a Lieutenant-Colonel who wears an ‘air force’ uniform is called a ‘Lieutenant-Colonel’ and not a ‘Wing Commander’.  QR&O 3.01 does not designate ‘Wing Commander’ as rank designation for someone wearing an ‘air force’ uniform.

Note too that the rank designation applies to the uniform worn by a person, and not the command to which the person is posted.  I mention this because many spokespeople and commanders in the Canadian Forces appear to refer to commands like the Royal Canadian Navy, the Canadian Army, and the Royal Canadian Air Force as if they are separate services.  They are not.  They are commands, organized by the Minister under section 17 of the NDA.  The names ‘Royal Canadian Navy’, ‘Canadian Army’, and ‘Royal Canadian Air Force’ – applicable to commands – were introduced in the same banal omnibus statute that amended section 21 of the NDA.  These commands have not been separate services for over 50 years.  Thus, a person joins, or retires from, the Canadian Forces (or, conceivably, the Canadian Armed Forces).  People do not enrol in, or retire from, the Royal Canadian Navy.

But I digress.  The issue today is the ‘new’ rank designations for junior non-commissioned members who wear ‘naval’ uniform.  Perhaps I should say supposed new rank designations.

Here’s the problem: based upon the PDF version of QR&O art 3.01, published in accordance with QR&O article 1.21, and available today (28 August 2020) from a government website, the rank designations for Master Seaman, Leading Seaman, Able Seaman, and Ordinary Seaman, have not been amended by Governor in Council regulation.

And, as I have explained in the Blog previously, here and here, Canadian Forces General Messages (CANFORGEN) are not intended to be used as policy instruments.  They are supposed to be used to make general announcements to the Canadian Forces.

And they most certainly are not Orders in Council or Governor in Council regulations.

So just what, precisely, is going on?

Don’t get me wrong: I think this policy change is commendable.  It removes gender specificity from some of the only remaining rank designations that express gender specificity.  (Guardsman, Rifleman, Craftsman remain).  And, as the public affairs announcement indicates, it aligns the English language ranks with the French language ranks (which do not specify a gender).  These are, I suggest, sensible and progressive steps.

Moreover, I suspect some ‘traditionally-minded’ folks who wear (or used to wear) a ‘naval uniform’ and who think of themselves as serving in the Royal Canadian Navy as if it were a separate service, may well resent this change.  In my military career, I sometimes encountered people who instinctively resisted change, even change that made sense.  I would not be surprised if future attempts to change the gender-specific nature of Guardsman, Rifleman, Craftsman were met with some resistance.

But here’s the thing – and it does not relate to the merit of the proposed changes, but the lawfulness of the change and what that tells us about the extent to which senior CF and National Defence decision-makers respect the Rule of Law.  Neither the Commander of the Royal Canadian Navy (which is a command, not a service) nor the Chief of the Defence Staff, have the authority to amend QR&O art 3.01.  They certainly cannot do it with a CANFORGEN.  Even the Minister does not have the authority to make this change.

The tendency to act with impunity and disregard for the Rule of Law appears to be contagious.  We have already seen that the CDS and the chain of command appear to prefer to use administrative measures and actions, instead of the Code of Service Discipline, as punishment in the Op HONOUR campaign.  I suspect that this preference for administrative punishment is one of the reasons why the CDS has been reluctant to rescind his order that affects the independence of the military judiciary.

I suspect that the CDS is not overly concerned about the Code of Service Discipline, because it has fallen out of favour with the chain of command as a mechanism for enforcing discipline.  After all, decision-makers like the CDS and Director Military Careers Administration (DMCA) can act with far greater latitude, and in the absence of public and judicial scrutiny, when using administrative measures to punish CF members accused of wrong-doing.

I have previously raised the concern about the extent to which the Judge Advocate General (JAG) and the legal advisors in the Office of the Judge Advocate General (OJAG) have taken steps to impress upon the CDS and other senior CF statutory decision-makers the importance of respecting the Rule of Law.  I am concerned that some of these legal advisors have not capitalized on their arm’s-length relationship to the chain of command to advocate strenuously for adherence to the Rule of Law.

In the present circumstance, I have to ask: What were Deputy Judge Advocate General – Administrative Law and her subordinate legal advisors doing when this plan and public announcement were being developed?  Why didn’t someone raise the concern that only the Governor in Council or Parliament can change the ranks and rank designations mentioned in the news release?  And if this concern was raised, why was it then, apparently, disregarded?

The news release included quotes from the Minister of National Defence, the CDS, the Deputy Minister of National Defence, and the Commander of the Royal Canadian Navy.  Yet none of them acknowledge that the rank designations must be amended by the Governor in Council.  There is no indication when this regulatory amendment will be made.  And the news release certainly appears to suggest that the change will be made by a CANFORGEN.

This is incorrect.  Why does it appear that this was not addressed?

Is it because someone concluded that the risk of someone challenging the decision, or litigating the change, was low or negligible?  Has this become the threshold for deciding whether decision-making in the administration of the affairs of the Canadian Forces will comply with, and respect, the Rule of Law?

I have to ask: is the administration of the affairs of the Canadian Forces going to be governed, as all governmental activity should be, by the Rule of Law, or is it going to be governed by arbitrary whim?  Notwithstanding that the above-mentioned policy change is well-intentioned and has been initiated for a valid purpose, decision-making in the Canadian Forces must still comply with the relevant and applicable law.

[1] And yes, Dear Reader, I am aware that this statement is often regarded as a misquote of the statement “Houston, we’ve had a problem here”.  Certainly, words have meaning, but we need not get into a debate over the significance of verb tense.

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