Inaccurate Reporting Regarding Voluntary Release
Sloppy news reporting does not sit well with me.
On 8 October 2021, Ashley Burke of the CBC News published a report regarding the voluntary release of Commander Danny Croucher (now retired) from the Canadian Forces (CF): “Minister orders probe after ex-officer accused of sexual misconduct gets job at naval base”.
Although this news report referred to allegations brought against Croucher when he was still serving – Ms Burke reported that “… a complaint was lodged against Croucher alleging he made inappropriate and harmful comments said to be sexual in nature …” – the substance and merit of that complaint was not the focus of the report.
The present Blog post does not focus on the allegations against Danny Croucher. There is little information in the public domain on those allegations. And, as I explain below, it is quite possible that some of the information that has been reported concerning Commander (Cdr) Croucher (retired) ought not to be in the public domain.
The present Blog post concerns portions of the above-mentioned CBC news report that may have mischaracterized the relevant legislation pertaining to voluntary release from the CF, and release provisions in general.
And, for clarity for those who are not familiar with the term ‘release’ when used in connection with service in the CF, the term ‘release’ refers to the manner in which an officer or non-commissioned member (NCM) of the CF ceases to be an officer or NCM of the CF. In other word, it refers to the termination of the Crown-soldier relationship. For further information regarding the law and policy governing release from the CF, feel free to review: A Word or Two on Release Items in the Canadian Forces.
The news report in question does not expressly and unequivocally assert that Danny Croucher ought not to have been permitted to be released voluntarily from the CF, but there is a strong insinuation of such a conclusion.
And it is largely incorrect.
First, the article appears to conflate, improperly, administrative decision-making under Chapter 15 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) – “Release” – with ‘disciplinary’ decision-making, presumably under the Code of Service Discipline. That is understandable – though not entirely excusable – since the CF has been conflating administrative decision-making with disciplinary decision-making for a number of years now. More precisely, there has been a marked trend of using administrative ‘sanctions’ in lieu of disciplinary action under the Code of Service Discipline.
Back in June of this year, Ms Burke reported that “… the navy is taking ‘administrative action’ against Croucher, who has served with the military for 28 years.” Administrative action is not disciplinary action. Therefore, the headline of that earlier news report – “Navy disciplining ex-head of training school over claims of inappropriate, sexual comments: sources” – wasn’t entirely accurate.
However, I can understand why it might be characterized in this fashion. When CF decision-makers use administrative measures to punish personnel for alleged misconduct, they are often quick to assert that “… administrative action is not disciplinary action …” as they employ mechanisms that adversely affect the rights, interests, and privileges of CF personnel. And in many cases, the statutory decision-makers are quite clearly using administrative measures to punish alleged misconduct. And one of the principal distinctions between the use of the Code of Service Discipline and the use of ‘administrative measures’, is that the latter may be pursued without scrutiny by independent decision-makers, such as judges. To most observers, the adverse administrative action could certainly look like ersatz ‘discipline’. After all, many of these adverse administrative measures are predicated upon Military Police or other ‘disciplinary’ investigations. It’s simply that the chain of command then chooses to use administrative measures, rather than the Code of Service Discipline. But we are assured that the ‘administrative measures’ are not being used as punishment. We are assured of this.
However – if it walks like a disciplinary duck, and talks like a disciplinary duck, it’s quite likely a disciplinary duck, even if the nametag on the duck says: “Administrative Measures”. It’s just not a constitutionally independent judicial duck.
And, while conflating what are supposedly distinct disciplinary and administrative mechanisms (but which, in practice, are increasingly interwoven) does represent a mischaracterization of the governance of the CF, that is not the central error in this reporting.
Ms Burke refers to a “5-F” release – in reference to release item 5(f) of the Table to article 15.01 of the QR&O. Contrary to what is insinuated in the news report, a compulsory release under ‘item 5(f)’ is not a disciplinary mechanism – even though many CF personnel may construe it as disciplinary action, and notwithstanding that it is increasingly being used in lieu of disciplinary action.
Ms Burke reported, based upon information from ‘sources’, that Cdr Croucher (retired) was released under a ‘voluntary’ release item. Presumably, this was ‘item 4(a)’ of the Table to article 15.01 of the QR&O (and I expand upon this release item below). It is not entirely clear what authority those ‘sources’ had to release Cdr Croucher’s personal information. And, make no mistake, his ‘release item’ – and his release records – constitute his personal information as defined under section 3 of the Privacy Act.
The CBC article appears to suggest that Cdr Croucher (retired) should not have been permitted to release voluntarily. Although the specific paragraph of the QR&O is not identified, the comment reported by Ms Burke refers to paragraph 15.18(3) of the QR&O relating to voluntary release of officers:
Where a commanding officer recommends a voluntary release under paragraph (1) or the Chief of the Defence Staff recommends a voluntary release under paragraph (2), he shall certify that his recommendation is not made for the purpose of allowing the applicant to avoid the consequences of his inefficiency, unsuitability or misconduct.
The insinuation is that someone ‘signed off’ on his voluntary release and that this, perhaps, permitted him to avoid consequences relating to inefficiency, unsuitability, or misconduct.
Now, I could say that such an insinuation is presumptuous absent any determination of inefficiency, unsuitability, or misconduct. While he was subject to an investigation, and it appears that the investigation was completed, there is no indication in the news report of what, if any, adjudication by a relevant tribunal or statutory decision-maker was made following that investigation or whether such a determination related to any of the criteria enumerated at paragraph 15.18(3) of the QR&O. The term ‘inefficiency’ is not defined under section 2 of the NDA, article 1.02 of the QR&O or Chapter 15 of the QR&O. However, the term ‘unsuitability’ could be construed as referring to release item 5(f) “Unsuitable for Further Service”. And the term ‘misconduct’ may relate to release item 1 of the Table to article 15.01 of the QR&O.
Arguably, some people might suggest that drawing a distinction between allegations or a resulting investigation (on one hand) and an actual determination (on the other) is tantamount to ‘splitting hairs’. I suspect that the intent of Ms Burke’s report is that Cdr Croucher (retired) should not have been permitted to obtain a voluntary release from the CF when he was the subject of an investigation for ‘sexual misconduct’.
If that is the case – and I contend that such a suggestion is quite clear in the report – then it misconstrues the relevant legislative regime. The problem with this insinuation is that it does not consider the full legislative regime regarding voluntary release. Specifically, it does not account for a statutory right of release under article 15.02 of the QR&O. This regulatory provision (enacted by the Governor in Council pursuant to subsection 12(1) of the NDA) incorporates elements of section 30 of the NDA, which are further amplified by article 15.02 of the QR&O.
So, if you’ll permit me to emulate Paul Harvey Jr., here’s the rest of the story – or, at least, the rest of the relevant law…
Subsection 30(1) of the NDA, incorporated into paragraph 15.02(1) of the QR&O, states:
Except during an emergency, an officer or non-commissioned member who is not on active service is entitled to be released at the expiration of the term of service for which the officer or non-commissioned member is enrolled or re-engaged.
‘Emergency’ is defined under section 2 of the NDA:
emergency means an insurrection, riot, invasion, armed conflict or war, whether real or apprehended …
If you are wondering where you may have read that phrasing before, it was contained at sections 3, 4, 6 of the now-repealed War Measures Act, 1914. That specific phrasing is not used in the Emergencies Act, which replaced the War Measures Act, 1914.
We are not presently in an emergency as defined at section 2 of the NDA. However, by virtue of Order in Council (OiC) SI/89-103 Order Placing Members of the Canadian Forces on Active Service for the Purpose of Fulfilling Canada’s Obligations Under the North Atlantic Treaty, pursuant to paragraph 31(1)(b) of the NDA, all officers and NCM of the Regular Force “… anywhere in or beyond Canada …” are on active service (as defined under s 31 of the NDA). That OiC has remained in effect for over 30 years and was in effect when Cdr Croucher retired.
However, readers should note: those officers and NCM are placed on Active Service for the purposes of NATO commitments, and not due to an Emergency. So, Cdr Croucher would have been on Active Service when he sought voluntary release but was not on Active Service due to an Emergency.
And Cdr Croucher would have had a statutory right of release under paragraph 15.02(3) of the QR&O if he was entitled to an immediate and unreduced annuity under the Canadian Forces Superannuation Act (CFSA):
(3) Subject to paragraph (1), no officer or non-commissioned member may claim his release as of right except:
a. an officer not on active service by reason of an emergency
i. whose service entitles him to an immediate annuity under the Canadian Forces Superannuation Act,
iii. who has completed his fixed period of service …
We know from Ms Burke’s earlier report that Cdr Croucher had 28 years of service. We do not know what his specific Terms of Service were at the time of his release. However, if he had 25 years or more of pensionable service, he would have been entitled to an immediate and unreduced annuity under paragraph 16(1)(a) of the CFSA.
Since Cdr Croucher was not an Active Service due to an Emergency, if he was entitled to an immediate annuity, he would have a statutory right of release that he could claim. And no commanding officer (CO) or commander could refuse to grant that request. The CO or commander would be obliged to grant release under item 4(a) of the Table to article 15.01 of the QR&O.
Technically, pursuant to paragraph 15.01(3) of the QR&O, the approving authority for the release of a commissioned officer is the Governor General. Such approval is often made retrospectively and, in any event, is subject to the legislated decision-making under Chapter 15 of the QR&O. The Governor General approves the releases – she does not conduct the initial discretionary (or non-discretionary) decision-making.
Notwithstanding that paragraph 15.18(3) of the QR&O applies to ‘all’ requests for voluntary releases, practically, it can only bar a request for voluntary release where there is no statutory right of release – i.e. a release under item 4(c) of the Table to article 15.01 of the QR&O.
If Cdr Croucher had a statutory right of release – and it certainly appears that he did – no one contravened the QR&O in granting his release. In fact, had a CO or other statutory decision-maker refused to approve a release lawfully claimed under art 15.02 of the QR&O, then that would have constituted a contravention of the legislation.
Just as whoever disclosed Cdr Croucher’s personal information would have contravened the Privacy Act if it was done without lawful authority.
The CBC news report also appears to insinuate that the ‘avoidance’ of a so-called ‘5(f) release’ was done to permit Cdr Croucher to obtain civilian employment:
Sources said a subsequent investigation found wrongdoing on Croucher’s part. Sources said he was expected to receive a so-called “5-F” — an involuntary release from the military. Instead, multiple sources confirmed Croucher’s request for a voluntary release was granted, permitting him to land a civilian job at the base in June.
That assertion also appears to be predicated upon an incorrect appreciation of law and policy. A release under item 5(f) is not a ‘misconduct’ release. Nor is it a ‘dishonourable release’ – principally because ‘dishonourable releases’ do not actually exist under Chapter 15 of the QR&O. In fact, pursuant to paragraph 15.01(4) of the QR&O, a release under item 5(f) of the Table to QR&O 15.01 is an ‘Honourable Release’, just like a release under item 3 (Medical) or item 4 (Voluntary). A release under item 5(f) would not bar employment in the federal public administration. It could potentially bar the released officer or NCM from rejoining the CF, but that is not an absolute certainty.
A release under item 2(a) of the Table to article 15.01 of the QR&O (“Service Terminated”) would typically prevent a person from rejoining the CF or seeking employment with the federal public administration. A release under item 1(a) (“Dismissed with Disgrace for Misconduct” or “Dismissed for Misconduct”) or items 1 (b), (c), or (d) (“Released for Misconduct”) would also bar the former officer or NCM from rejoining the CF or seeking employment with the federal public administration. And, frankly, the type of conviction that would lead to a release under item 1(a) or item 1(b) would bar such opportunities in any event.
Finally, I would hasten to add that a release from the CF does not terminate, absolutely, any liability under the Code of Service Discipline. Pursuant to subsection 60(2) of the NDA:
Every person subject to the Code of Service Discipline under subsection (1) at the time of the alleged commission by the person of a service offence continues to be liable to be charged, dealt with and tried in respect of that offence under the Code of Service Discipline notwithstanding that the person may have, since the commission of that offence, ceased to be a person described in subsection (1).
Cdr Croucher (retired) would not escape the jurisdiction of the Code of Service Discipline by virtue of his voluntary release – or any other form of release. However, there is no discussion in the CBC report regarding the actual application of true disciplinary mechanisms. The focus is on ‘administrative measures’ and apparent complaints that they are not being used in a sufficiently robust manner to ‘discipline’ Cdr Croucher (retired). And, as I indicate above, therein lies part of the problem with how these issues are being miscommunicated to the Canadian public.
From the limited information that is publicly available, we can draw the following conclusions:
If the Minister of National Defence is inclined to direct investigations into impropriety, he may wish to start with the repeated leaks of Military Police investigations and personal information. That appears to be an ongoing concern.
As for the allegations against Cdr Croucher (retired) – maybe he made inappropriate comments; maybe he didn’t. The CBC report states that ‘sources’ indicated that the complaint was founded. To be clear: that is not an adjudication by a service tribunal. Depending upon the evidence identified by the investigation, it may well support the laying of charges under the Code of Service Discipline. This would then permit the appropriate service tribunal to adjudicate the matter and make a determination regarding allegations misconduct. And, if the focus is on discipline relating to alleged misconduct, that would be the appropriate course of action.
But that is not what the CBC news report discussed. The CBC news report doesn’t really tell us much about the underlying complaint, its merits, or the severity of the purported comments. It does not discuss the actual disciplinary process used by the CF. What it does appear to do is misrepresent the relevant legislation governing release from the CF.
 Ashley Burke, “Navy disciplining ex-head of training school over claims of inappropriate, sexual comments: sources”, (10 June 2021), online: CBC News <https://www.cbc.ca/news/politics/former-head-navy-training-school-investigated-inappropriate-comments-1.6059881>.