What is an ‘internal’ process?

When we examine the administration of the affairs of the Canadian Forces (CF), what is meant when someone characterizes something as an ‘internal process’?  Is there significance to that nomenclature, or is it just an ambiguous term that can be used for a disingenuous purpose?

I tend to view it as the latter.

Recently, I have received various communications from different legal advisors in the Office of the JAG (OJAG) asserting that various processes – the CF grievance process, the Military Police complaints process, Administrative Review under DAOD 5019-2 – are ‘internal’ processes, and that this status somehow influences what I can and cannot do as a licensed practitioner of the Law Society of Ontario when I advise and represent clients who have retained me.

For example, consider the following statement in an e-mail that I recently received from a legal officer in the OJAG:

As you are aware, the grievance process is statutory, and is internal to the CAF at the IA level. There is no provision for a third party to make representations on behalf of a grievor. In fact, to the contrary, if a member has an assisting member, that assisting member is not permitted to make representations on behalf of the grievor in accordance with DAOD 2017-1. While there is nothing preventing a member from retaining civilian counsel, and certainly a member has every right to do so, the grievance process is described by DAOD 2017-1. Para 9.4 is very clear that all representations are to be made by the grievor to the grievance analyst. I would respectfully encourage that you abide by this process in the future, by ensuring that any representations be signed by the member and submitted directly to the IA analyst, rather than signed by yourself.

Frankly there is a lot ‘going on’ with the assertions advanced by the legal officer, and much with which I disagree.  I contend that paragraph 9.4 of DAOD 2017-1 is not ‘very clear’ that legal counsel retained by a CF member is prohibited from presenting written representations on behalf of a client.  In fact, I would dispute the contention that counsel representing a grievor should be characterized as a 3^rd Party.  But what I wish to focus on in this Blog is the use of the term ‘internal’ in the above-mentioned context.

This term is vague and ambiguous and is largely meaningless in this context.  The suggestion – and I contend that it is a dangerous suggestion – that CF legal advisors appear to be making is that, because the processes are ‘internal’, persons who are not members of the CF, including privately retained counsel, have no direct role to play in such processes.

For someone like myself, who joined the CF prior to the 1990s, and who served through the 1990s (and the 2000s, and most of the 2010s) an assertion that a process is ‘internal’, and that such status gives rise to certain exclusions, is cause for concern.  Several controversies arose in the context of the CF in the 1990s.  And, frankly, I consider some of these to have been legitimate, while others were exaggerated.  Anyone with a recollection of the controversies that arose in the 1990s may well recall a tendency by some CF statutory decision-makers to assert that a matter, conflict, complaint, or allegation would be handled via ‘internal’ mechanisms.  You could almost hear the inverted commas when those people spoke.  In those cases, the term ‘internal’ was often synonymous with ad hoc measures and processes that were not prescribed in statute, regulation, or public policy directive.  In that regard, they were also often synonymous with a lack of transparency, fairness, or even proper authority to act.

For example, instead of charging a soldier with a Code of Service Discipline offence, or using a policy-based remedial measure, the chain of command would handle it ‘internally’.  (Yup, I definitely heard the inverted commas that time!)  Many changes to the administration of military justice (which I construe broadly, not as a narrow reference to solely the Code of Service Discipline) arose because of such ‘internal’ measures or processes.

Consequently, whenever I hear someone within the CF assert that something is being handled via an ‘internal’ process, I tend to scrutinize the meaning of such statements and processes closely.

Now, I am not suggesting that the legal officer who sent the above-quoted e-mail was insinuating that an ad hoc process would be followed.  Clearly, she was referring to a process that is established in statute, amplified in regulations, and further amplified in a policy directive.  But there remains a question about what is truly meant by ‘internal’, including whether the purported meaning has any significance or merit.

Certainly, the CF grievance process is a statutory process.  The administration of the affairs of the CF is inevitably traced back to a statute – the National Defence Act (NDA).  The CF grievance process is established by statute and amplified under the authority of that same statute.  Referring to it as a statutory process conveys some meaning.  And, as I have asserted in previous public blogs, I contend that the principal rationale for entrenching the CF grievance process in statute is to create a statutory litigation avoidance mechanism for the CF.  By enshrining the process in statute, the Crown strengthens the argument that the grievance process represents a broad and comprehensive ‘adequate alternative remedy’.  It is no surprise that the enactment of significant statutory and regulatory changes from 1998 to 2000 arose a few years after the judgment in Gayler v Canada (Director Personnel Careers Administration Other Ranks, National Defence Headquarters), [1995] 1 FC 801, in which a Federal Court judge held that, despite not exhausting the CF’s grievance process, the applicant, Corporal Gayler, could obtain a remedy through judicial review of an unreasonable decision by a ‘Director Personnel Careers Administration – Other Ranks’ (a precursor to the current position of DMCA).

Prior to 1998, legislation pertaining to the CF grievance process consisted of a single provision under the NDA amplified by two articles under the Queen’s Regulations and Orders for the Canadian Forces (QR&O) – articles 19.26 and 19.27 to be precise.  The legislation was amplified by Canadian Forces Administrative Order (CFAO) 19-32, entitled ‘Redress of Grievance’.  (As an aside, the title of that now-defunct CFAO is likely a principal reason why some older – and perhaps not so old – CF personnel state that they are ‘submitting a redress’ when they are, in fact, submitting a grievance.  ‘Redress’ is the remedy sought from the appropriate adjudicative authority, referred to as ‘Redress Authority’ in DAOD 2017-1.)  Following the significant amendment of the NDA in 1998, the statutory grievance process is now established by several statutory provisions, an entire chapter of the QR&O (Chapter 7), and amplified by DAOD 2017-0 and 2017-1 (which superseded CFAO 19-32).

Consequently, unlike what transpired in Gayler, litigation counsel from the Department of Justice are largely successful in obtaining dismissal of, or summary judgment for, applications for judicial review that are brought by CF personnel who have not first exhausted the supposed ‘adequate alternative remedy’ offered by the statutory CF grievance process.[1]  There are still some infrequent exceptions to this rule[2], which tend to be driven by the unique facts of a particular case and, quite possibly, sympathetic factual circumstances.

Thus, the robust statutory grievance process available to CF personnel can be, and typically is, presented by counsel representing the Crown as a bar to seeking remedy before constitutionally independent courts until that process is completed.  In other words, the statutory grievance process is not properly characterized as an optional recourse for CF personnel; it is a mandatory mechanism if CF personnel wish to enforce what few rights they do have in the Crown-soldier relationship[3], or to challenge unfair, unreasonable, or just plain bad decision-making by CF decision-makers.  And I contend that this marked limitation is by Parliament’s design.

While the CF statutory grievance process is ‘internal’ insofar as the decision-makers – both the initial authority (IA) and the final authority (FA) – are senior CF officers, that structure, imposed by Parliament and amplified by the Governor in Council, does not expressly remove privately-retained legal counsel from the process.  The same can be said of the Code of Service Discipline.

Under the Code of Service Discipline, alleged offences are investigated by CF personnel.  Charges are laid by CF personnel.  Military tribunals, whether summary trials or courts martial, are conducted by, and comprised of, CF personnel.  Presiding officers at summary trial are CF officers.  Military judges hold both judicial office and the Queen’s commission.  The Panels for General Courts Martial are comprised by CF personnel.  Courts martial are ‘internal’ CF processes.  Yet there is no prohibition regarding the appearance of civilian counsel.  I ought to know: I have appeared at courts martial as a civilian counsel.

CF personnel are not permitted to form or join ‘combines’ relating to their military service – in common parlance, unions.[4]  Purportedly, “… the Crown is in no way contractually bound to the members of the Armed Forces …” and “… a person who joins the Forces enters into a unilateral commitment in return for which the Queen assumes no obligations, and that relations between the Queen and Her military personnel, as such, in no way give rise to a remedy in the civil Courts.”[5]  Frankly, the contention that a member of the CF cannot seek a remedy before the ‘civil courts’ tends to be undermined by the numerous applications and actions in which CF personnel have done just that (consider the massive settlement in the class action in Heyder v Canada, 2019 FC 1477).  However, the contention that CF personnel do not benefit from ‘traditional’ employment rights is still very much in vogue.

Thus, we have Canadian citizens and permanent residents, who are willing to place their life at risk for the benefit of the state (and the Crown), and, in return for this commitment, they do not benefit from the same employment rights that apply to people who do not submit to the risks of “unlimited liability”.  When they encounter decisions, acts and omissions that adversely affect them, they are obliged to use the statutory grievance process created by, and under, the NDA, which then places the decision-making authority for resolving those grievances exclusively in the hands of what can loosely be described as their employer (although, members of the CF are not actually ‘employed’ by the Crown).

On occasion, some CF personnel who rely on the statutory grievance process (which legal advisors of the OJAG characterize as an ‘internal’ process) also choose to engage the assistance of privately-retained legal counsel.  In so doing, they are not much different from civilian employees who choose to retain counsel in a labour dispute.  As indicated above, an ‘employment dispute’ for CF personnel will differ from one arising with a civilian employee, due in no small part to the fact that the CF member is not a contracted employee of the Crown.

However, a distinction regarding the nature of an ‘employment relationship’ (for lack of a better term) does not merit a distinction in how the ‘employee’ or Crown servant might protect his or her rights, interests, or privileges.

Perhaps this misunderstanding arises out of the inapt comparison of private counsel with an ‘assisting member’, a term and function defined under Section 7 of DAOD 2017-1.  Certainly the DAOD (which amplifies the legislation that creates the CF grievance process) does state, at paragraph 7.5, that “An assisting member assists a grievor but is not: (a) the personal representative of the grievor; (b) responsible for locating documents and information that may be required by the grievor; or (c) responsible for writing the grievance.”

Contrary to what was asserted by a representative of the OJAG, the provisions relating to assisting members do not expressly prohibit the assisting member from making representations on behalf of a grievor.  The provision simply states that the ‘assisting member’ is not responsible for writing the grievance.  As I have mentioned in this Blog on previous occasions, words have meaning – even the ones used in policy directives, as opposed to legislation.

More importantly, sub-para 7.5(a) of the DAOD highlights a principal distinction that the representative of the OJAG appears to have overlooked.  The ‘assisting member’ is not the personal representative of the grievor.  However, privately retained counsel is the personal representative of the grievor.  Again – words have meaning.  When I represent a client, I am not a 3^rd party.

Again, comparison with another ‘internal’ process established by the NDA, the Code of Service Discipline, is illuminating.  In particular, Chapter 112 of the QR&O, which sets out the “Procedure at Courts Martial and Other Proceedings Before a Military Judge”, does not make mention of ‘defence counsel’ (civilian or otherwise), even though it does mention, on several occasions, the ‘prosecutor’.  We know from section 165.11 of the NDA that the Director of Military Prosecutions (DMP) is responsible for the “… preferral of all charges to be tried by court martial and for the conduct of all prosecutions at courts martial” as well as acting as counsel or the Minister of National Defence on appeals.  And we know that, under section 165.15, DMP “…  may be assisted and represented, to the extent determined by [DMP], by officers who are barristers or advocates with standing at the bar of a province.”

Instead of ‘defence counsel’, the QR&O refer directly to the ‘accused person’.  Save in rare circumstances when an accused person represents him- or herself, it is the defence counsel, as the personal representative of the accused person before the military tribunal, who speaks on behalf of the accused person.

A grievance must be reduced to writing, signed by the grievor, and submitted to the grievor’s CO.[6]  I have commented previously on what it means to sign a grievance.  There are no prohibitions, or even prescriptions, under the NDA or QR&O Chapter 7, which limit the ability of privately-retained counsel to offer additional representations on behalf of their clients, particularly where the counsel extend the courtesy of sending those representations to the legal advisors in the OJAG who advise the relevant decision-maker.  Quite often, in my experience, complex legal issues can arise in a grievance, and there is merit to frank representations offered by counsel for the grievor to the legal advisors to the CF statutory decision-maker.  There is also merit in ensuring that such representations are added to the ‘tribunal record’ in the event that judicial review before the constitutionally independent Federal Court becomes necessary.

I suggest that it is problematic for legal officers from the Office of the JAG to posit prohibitions that are not supported by the legislative regime that establishes the CF grievance process, or the amplifying policy directives.  And I suggest that it would be problematic for the CF to attempt to establish policy directives that would impair a CF member’s right to be represented by legal counsel before what are essentially statutory tribunals created under the NDA.  Administrative tribunals are increasingly viewed as vital elements in safeguarding the rule of law and offering individuals effective voice in protecting their rights, interests, and privileges within the context of statutory decision-making.[7]  No good can come from attempts by statutory actors to stifle the effectiveness by which those voices may be heard.

[1]  Vaughn v Canada, 2005 SCC 11 (CanLII), [2005] 1 SCR 146; Moodie v Canada (National Defence), 2008 FC 1233, paras 27 to 30; Kleckner v Canada (Attorney General), 2014 ONSC 322; Chua v Canada (Attorney General), 2014 FC 285.

[2] Gerard Jones v Canada (Attorney General), 2007 FC 386; Bernath v Canada, 2007 FC 104 (CanLII),321 FTR 1, per Noel J, rev’g Bernath v Canada, 2005 FC 1232 (CanLII), 275 FTR 232; Manuge v Canada, 2008 FC 624 (CanLII), [2008] FCJ No 787 per Barnes J; Heyder v Canada, 2019 FC 1477.

[3] Gallant v The Queen In Right of Canada (1978) 91 DLR (3d) 695, [1978] FCJ No 1122 (QL) [Gallant].

[4] QR&O art 19.10.

[5] Gallant, n 3, 696.

[6] QR&O art 7.06.

[7] See, for example, Paul Daly, “Administrative Law: A Values Based Approach” 2012 CanLII Docs 4.

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