I left the CF because I cannot abide bullies.
Last Monday (25 October 2021), Murray Brewster, of the CBC, reported on statements made by the Acting Chief of the Defence Staff (A/CDS), General Wayne Eyre, at the Kingston Conference on International Security. The crux of the article was the difficulty the Canadian Forces (CF) is facing in the twin objectives of retention and recruiting.
According to General Eyre, “We need our mid-level leaders to dig deep and do this for the institution, to put service before self, not to retreat into retirement but to advance forward and face the challenges head-on …”. General Eyre also observed that morale is low among officers, upon whom he must rely to ‘rebuild’ the institution, as Murray Brewster put it: “… in the wake of the sexual misconduct crisis.”
Respectfully, that’s not actually the crisis that the CF is facing. Yes, that’s the crisis that has caught the eye of the Canadian public at the urging of repeated (and, sometimes, less than objective) reporting by news media. This is often the same news media that group all of the General Officers and Flag Officers (GOFO), who have faced criticism, together, in one homogenous group, even though the allegations against them vary significantly both in terms of nature and merit. And some of those allegations are not for ‘sexual misconduct’. And the Canadian public has certainly not had a full sounding of all relevant facts and factors. Unfortunately, that is what arises when some reporters abandon the role of reporting objectively on the news, and instead adopt the role of advocate.
And don’t get me wrong – I’m a big fan of advocacy. I am an advocate myself. But I do not then claim to report news.
I contend that the real crisis that the CF faces is one of problematic decision-making.
I contend that a significant part of the crisis facing the CF is bullying.
The Oxford English Dictionary defines a ‘bully’ as a person who deliberately intimidates or persecutes those who are weaker. Alternatively, a bully can be defined as a person who habitually seeks to harm or intimidate those whom they perceive as vulnerable. At its heart, I suggest that bullying encapsulates an exercise of power, over someone who is vulnerable or weaker, for the improper purpose of harming or intimidating that person.
Bullies exercise their power because they can – and that is often their justification. And that power can arise from a variety of different sources – physical size, dominance within a group, external sources of power such as a position in a hierarchy or even statutory authority, or influence within a group or society. Many of us have a pre-conceived notion, based upon our own experiences, of how a bully might appear. But not all bullies have a uniformed appearance or characteristics. What is common across the spectrum of bullies is the exercise of power, for an improper purpose or in an improper manner, against someone who is weaker or vulnerable.
What we see happening with certain GOFOs in the CF represents the tip of the statutory iceberg. What the Canadian public does not see are the numerous circumstances in which CF members are being subjected to procedurally unfair and substantively unreasonable decision-making. And much of this decision-making is being driven not by evidence, fair process, or an open-minded approach to the same. Instead, it is being driven by knee-jerk reactions to negative news media coverage and a desire to ‘demonstrate that something is being done’ – even if it is neither fair nor reasonable.
And this problematic decision-making in empowered by a markedly one-sided Crown-soldier relationship. You know, the “… unilateral commitment in return for which the Queen assumes no obligations, and … [in which] … relations between the Queen and Her military personnel … in no way give rise to a remedy in the civil courts.” [Gallant v The Queen in Right of Canada (1978), 91 DLR (3d) 695 (Fed Ct Trial Div)]. This judgment, now over 40 years old, and predicated upon antiquated Victorian notions that service to the Crown is derived from a Master-Servant relationship, continues to govern decision-making in the administration of the affairs of the CF.
I’ll say this for the judgment in Gallant and its progeny – notwithstanding its asymmetric flaws, it is a markedly egalitarian principle. It adversely affects members of the CF equally, regardless of rank, age, ethnicity, gender, sexual orientation, or any other characteristic that could be invoked in the context of discrimination. It empowers decision-makers to act with impunity across a broad spectrum of decision-making.
The statutory, non-contractual relationship affects corporals, captains, colonels, and GOFO alike. As we saw in the rather rote judgment in Fortin v Canada (Attorney General), 2021 FC 1061, the unsatisfactory remedy of relying on the CF grievance process applies equally to all.
Time and again, the true justification for decision-making in the administration of the affairs of the CF amounts to the bully’s refrain: “Because I can.”
Sure, it may be dressed up in a semblance of procedural fairness, although this can frequently be lacking in the decision at first instance. However, the sluggish grievance process will provide a ‘mulligan’ for the chain of command. And, save for select narrow exceptions, a CF member is obliged to use the CF grievance process to seek remedy in the administration of the affairs of the CF. And, as long as the statutory decision-maker uses ‘magic words’ like “…I have lost confidence in …” or “… I have kept an open mind and considered all relevant factors and evidence …”, then they can maintain the fiction that a CF member has been able to seek a remedy before an open-minded decision-maker in a procedurally fair and substantively reasonable process. Provided that the grievor has the patience to wait a few years. And, if the final authority in the CF grievance process is faced with the unpalatable prospect of having to admit that a decision at first instance was unreasonable, and that the CF grievance process is an inadequate remedy, he can always drag his heels in determining the grievance.
At present, the CF is focused on eradicating sexual misconduct. Sexual misconduct – by anyone – has an adverse impact on the morale of the CF and, consequently, on the effectiveness and efficiency of Canada’s armed forces. It is a form of bullying – a particularly malicious form of bullying. But it’s not the only form of bullying that can arise. Procedurally unfair or unreasonable decision-making, where the subject of such decisions has limited and often ineffectual recourse for remedy, and where the decision-maker knows that she or he can act with nearly unfettered impunity, can manifest another form of bullying. There is little merit in replacing one form of bullying for another. And that is the real crisis facing the CF.
Granted, Wayne Eyre is likely not referring to people like me in his comments. I retired nearly 5 years ago. However, I suspect that my reasons for retiring were quite similar to the reasons why many leaders are retiring at present. And, frankly, the reasons for retiring are likely as diverse as the people who are leaving the CF. Not everyone is ‘retreating’ into retirement, General Eyre, and it is more than a bit presumptuous for you to make that assumption. Some people are likely retiring because they have other opportunities elsewhere. Some may be retiring because they have completed the period of service they set out to complete. Others may be retiring because they are seeking a different lifestyle. And some, like me, may have retired because they cannot abide bullies, even if those bullies cloak themselves in supposedly righteous exercise of broad statutory discretion. And some may perceive that they can help the CF more out of uniform than they could if they remained in the unilateral service mentioned in Gallant.
I dedicated the latter half of my CF career to supporting fair and reasonable statutory decision-making in the administration of the affairs of the CF. I stressed the importance of ‘speaking truth to power’. I envisioned the role of a legal officer in the CF as ensuring that justice was done in the service of the Crown. But I could also see the writing on the wall when Op HONOUR was introduced. I could see that senior decision-makers would be inclined to make unfair and unreasonable decisions in order to counter criticism by the national news media (or, at least, be perceived to be countering the criticism). I anticipated that senior decision-makers would place the need to ‘appear to be doing something’ over the need to respect principles pertaining to the rule of law, upon which Canada is presumably governed.
In other words, in order to contend with allegations of bullying, statutory decision-makers would adopt their own form of bullying.
And I cannot abide a bully.
There is an element of the Canadian Forces that has a role in ensuring that justice is done in the administration of the affairs of the CF. That element has a privileged position to speak truth to power, and to ensure that ‘… justice is done, though the heavens may fall’. That adage, coined in Latin, can be a double-edged sword. It could represent an intransigent adherence to the functional elements of justice mechanisms, even if they do not produce a just result. I do not subscribe to that approach. But it can also represent a resolute adherence to the functionality of mechanisms that are designed to produce a fair, reasonable, and just outcome. In other words, it reflects a respect for a culture of justification inherent in procedurally fair and substantively reasonable decision-making, which, in turn, is a fundamental basis for public decision-making: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.
When I retired in early 2017, the judgment in Vavilov was still two years away. And while judgments pertaining to the exercise of public powers were certainly signalling the importance of a culture of justification, we still had two years before the Supreme Court of Canada would offer a judgment that would provide such a focal point. However, I was concerned that statutory decision-making in the CF would be driven by appearances rather than substance. I was concerned that reasoned and objective decision-making would be hijacked by a Pavlovian desire to appease a particular public narrative, regardless of whether that narrative was based upon an objective and thorough examination of all relevant facts. I was concerned that the operating minds of the Canadian Forces and of the federal executive would march to the diktat of those who chose to shape the national discourse, regardless of the merit of their assertions.
I was concerned about the rise of a different kind of bully – one with its own inherent ‘soap box’ and which was not accountable to voters or even, in large measure, the courts.
And I was concerned that the element of the CF with a role to play in safeguarding objective, reasonable, and fair decision-making would cower from that role.
While I make no claim to prescience, I am afraid that many of my concerns have come to fruition.
While some suggest that the CF is facing a crisis of sexual misconduct, I contend that the CF faces a greater crisis regarding decision-making. The senior leadership is largely reactive to the advocacy of select news media. Amidst the pursuit of ‘culture change’ within the CF, the senior leadership is failing to promote a culture of justification in public decision-making. Instead, it is retreating to the security of condemnation based upon an arbitrary and one-sided approach to decision-making. And the CF leadership is not alone in that approach.
Procedural fairness, objective and reasonable decision-making, and an opportunity for an accused or respondent to make full answer and defence is being abandoned for the convenience of presumption of guilt, arbitrary decision-making, and, ultimately, when asked by an accused or respondent why he or she is being treated in an asymmetrically unfair manner, a justification predicated upon the rationale: “Because I can.”
That is the justification of a bully.
Presently, CF members have limited recourse to unfair decisions. Generally, they must first exhaust the CF grievance process, in which CF statutory decision-makers have not one, but two, opportunities to reverse-engineer a justification for an initial unfair and unreasonable decision. There is no time limit on the second stage of this process before the final authority, a factor that initial authorities in the first stage are quick to remind grievors when those initial authorities seek additional adjudicative time beyond their 4-month limitation period.
Even once the grievance process has run its course, there is limited scope for remedy. Rarely will there be any financial compensation for the aggrieved CF member. After all, as we know from Gallant, members of the armed forces are not in privity of contract with the Crown. Where there is not contract, there is no right to damages under the laws of contract. There is rarely any right to damages, even if a decision is unreasonable. And, in any event, the various remedial authorities in the CF grievance process do not have any authority to grant damages or settle claims against the Crown. The limited capacity of the final authority to grant an ex gratia payment under Order in Council 2012-0861 is narrowly construed and rarely used.
Even once the grievance process runs its course, if a grievor pursues an application for judicial review, the Federal Court will only intervene with the decision if it is unreasonable. In light of the broad deference granted by the court to statutory decision-makers, this will only typically arise where the decisions fall outside a fairly broad range of possible outcomes or if the process of the grievance (not the initial decision) was clearly procedurally flawed. Even when such applications are successful, the result is typically that the final authority’s determination is quashed, and the final authority is then given another opportunity to offer a new justification.
Some parties advocate for the creation of a ‘professional association’ or unionization of the CF. However, such combines, presently prohibited under article 19.10 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), would have limited utility where CF personnel remain governed by a markedly asymmetrical arrangement (not contract) for the sole benefit of the Crown and in return for which the Crown assumes no obligations.
So, why do CF and governmental decision-makers treat some CF personnel with such arbitrary contempt? Because they can.
Why do certain advocates in national news media, cloaked in the fiction of objective reporting, treat CF members as grist for the mill? Because they can.
Why do those same news media advocates present arbitrarily selective information? Because they can.
Why does the final authority take years to consider and determine grievances? Because he can.
Why do the initial decision-makers continue to make procedurally unfair or unreasonable decisions? Because they can.
They do so knowing that the respondents’ recourse lies with the grievance process. They do so because they know that it is highly unlikely that they will be held accountable for unfair or unreasonable decision-making. And they do so because they know that any grievance will likely take years to be resolved.
Without meaningful consequences for unfair and unreasonable decision-making, bullies will thrive.
And I cannot abide bullies.