Minister of National Defence’s Panel on Racism – What it is, and what it is not …

The Minister of National Defence, Harjit Sajjan, has apparently launched a Panel to probe allegations of racism in the Canadian Forces (CF).  This panel was clearly prompted by recent reports of alleged hateful conduct and racism, many of which have been reported by the CBC’s Murray Brewster.  According to Mr. Brewster’s recent online article: “The task of the panel, which has an open-ended mandate, is to take a deep look within the department to uncover ‘systemic discrimination, unconscious bias, [and] white supremacy’.”

Consequently, I think we need to ask ourselves what this Panel is, and what it is not.

From my perspective, the creation of this Panel is predominantly ‘political theatre’.  It is political theatre intended to demonstrate that the Canadian Forces and Department of National Defence (DND) is ‘doing something’.  It is political theatre intended to respond to media scrutiny – a not uncommon occurrence for the Canadian Forces and Department of National Defence.  It is the type of political theatre that tends to arise whenever there is public criticism of the Canadian Forces.

What it is not, is the basis for a meaningful inquiry.

If only there were a tool available to the Minister of National Defence that would assist him in investigating a serious matter connected with the government, discipline, administration or functions of the Canadian Forces, and which would provide a basis for reporting on that matter.

Oh … wait … there is.  It is called a Board of Inquiry.

Section 45 of the National Defence Act (NDA) provides:

The Minister, and such other authorities as the Minister may prescribe or appoint for that purpose, may, where it is expedient that the Minister or any such other authority should be informed on any matter connected with the government, discipline, administration or functions of the Canadian Forces or affecting any officer or non-commissioned member, convene a board of inquiry for the purpose of investigating and reporting on that matter.

In particular, a Board of Inquiry, or BoI, has the power: to compel witnesses to appear and to produce documents; to administer oaths to witnesses; to receive and accept, on oath or by affidavit or otherwise, any evidence and other information the board sees fit, whether or not the evidence or information is or would be admissible in a court of law; and, to examine any record and make any inquiry that the board considers necessary.

Those are broad and useful powers.  They do not fall all that short of the powers of a Commission of Inquiry under the Inquiries Act.  As under the Inquiries Act, there are consequence when a witness, summoned before a Board of Inquiry, either refuses to appear (NDA, s 118) or commits perjury.

Moreover, pursuant to section 45.1 of the NDA “…  No witness shall be excused from answering any question relating to a matter before a board of inquiry when required to do so by the board of inquiry on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.”

These statutory powers and functions are further amplified by Chapter 21 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), and even further amplified by Defence Administrative Orders and Directives (DAOD) 7002-0 Boards of Inquiry and Summary Investigations, 7002-1 Boards of Inquiry, 7002-3 Subjects of Investigations and References, and 7002-4 Examination of Witnesses.

In other words, there is a very robust legislated and policy framework for just this type of inquiry.

So why isn’t the Minister using this framework?

I can suggest at least two reasons:

1. As ‘political theatre’, the Panel doesn’t need the powers granted to a BoI, because the political merit of the panel is not the conduct of a thorough and objective inquiry, but in projecting an appearance that the government is ‘doing something’.
2. Many decision-makers in the Canadian Forces and Department of National Defence have forgotten what Boards of Inquiry are for, in part because the conceptualization of Boards of Inquiry has been ‘hijacked’ by inquiries into non-combat deaths of CF personnel.

The Panel will be comprised of four former members of the Canadian Forces.  Based upon Mr. Brewster’s article, they have apparently been selected principally because of personal characteristics that do not seem to be related directly to the skills necessary for the conduct of inquiries.  Thus, the Minister can point to this panel and proclaim: “Look at the diversity of the panel!”

I am not suggesting that the members of the Panel do not have the skill sets to perform this function.  (Although, they certainly won’t benefit from the broad statutory powers and functions granted by Parliament to a Board of Inquiry).  What I am saying is that there was very little explanation why these four Panel members have the skill sets and knowledge to conduct a broad and objective inquiry into a highly politicized issue.  Instead, the focus appeared to be on issues of ethnicity or whether they had, themselves, experienced improper conduct by others in the CF.

Nor has the Minister indicated what powers, if any, they will possess in conducting this inquiry.  Conversely, we also don’t know what protections potential witnesses will have when they appear before the Panel.

Unlike a Board of Inquiry, for which the scope of powers, functions, and duties are published and well-established, we know nothing about how the Panel will perform its functions.

But maybe that is part of the Minister’s intent.  After all, if I am correct that this is principally political theatre, then the duties, powers, and functions of the Panel are secondary to the ‘merit’ of its mere existence, and the less that is known or understood of its duties, powers, and functions, the more flexible – or malleable – a response it becomes.

We’ve been here before.

In 2016, the Chief of the Defence Staff (CDS) commissioned a non-doctrinal ‘Special Staff Assistance Visit’ (or SSAV) in response to complaints about poor morale and suicide at Royal Military College of Canada (RMC).  As with the present Ministerial Panel on Racism, the SSAV represented a bit of ‘political theatre’.  As with the present Ministerial Panel on Racism, the CDS opted not to use a statutory tool that exists to support this very type of inquiry.  Instead, the CDS opted for an ad hoc inquiry that was more flexible – or malleable – for the CDS’ desired outcome.  Whether that desired outcome was a truly objective inquiry remains in doubt.  Certainly, following the release of the SSAV Report on 29 March 2017, I published a Blog article that was critical of the decision not to use a Board of Inquiry.  I also demonstrated the shortcomings of the SSAV inquiry itself through the examination of two representative issues addressed by the SSAV.  It would not be unreasonable to conclude that the SSAV served, at least in part, as ‘theatre’ in support of an eventual report that purported to validate some questionable policies and administration at RMC.

It appears that the Minister’s Panel on Racism represents a similarly problematic approach to inquiry.

Frankly, I believe there is more to the aversion to the use of Boards of Inquiry than the desire to present ‘political theatre’.  After all, a BoI could also present a similar opportunity for political theatre, and one that benefits from being conducted within a well-established legislative regime.  Of course, then there would be rules that the inquiry would have to follow, and where there are rules, there is reduced scope to bend the process to a particular outcome.  Where there are rules, there is an obligation to be precise about direction.  However, based upon my experience with Boards of Inquiry, I believe there are other contributing factors to this aversion.

Many people, both within and without the Canadian Forces, will likely be familiar with Boards of Inquiry within the context of investigations into non-combat deaths of CF personnel.  Even if people are not familiar with the details of the legislative regime, they will likely be aware that Boards of Inquiry have been, and will be, conducted when a CF member dies other than in combat.  Some people may also be aware that these inquiries are also conducted not just where death occurs, but where serious injury or illness arises, other than in combat.  These deaths can arise in a variety of circumstances, including sudden medical trauma, accident, or misadventure.  However, I suspect most people will be aware of these BoI because of inquiries into suspected suicide.

By virtue of article 21.46 of the QR&O, where an officer or non-commissioned member (NCM) of the Regular Force, the Reserve Force (while on service), or the Special Force (which is not presently constituted) dies other than as a result of wounds received in action, the member’s commanding officer shall order a summary investigation or convene a board of inquiry.  Similarly, if such an officer or NCM suffers an injury, other than one received in action, that a medical officer certifies to be serious or likely to cause a permanent disability, or that is suspected to be the result of the officer’s or NCM’s own wilful act, then the commanding officer must order a summary investigation or Board of Inquiry.

As a matter of policy, inquiries into deaths or suspected self-inflicted injury will be investigated by a Board of Inquiry: CANFORGEN 105/11.  (Unfortunately, I cannot provide a link to this CANFORGEN, as CANFORGEN are published on the Vice Chief of the Defence Staff’s (VCDS) Defence Wide Area Network (DWAN) site.  This is an intranet site, that is only accessible from a DWAN account.  This is one of several reasons why CANFORGEN are markedly ill-suited as public policy instruments.  This is an observation I have made before, repeatedly.)

Although an administrative investigation, established under Chapter 21 of the QR&O, must be ordered and conducted into non-combat deaths and serious injury (and, by policy, these investigations will be Boards of Inquiry), that does not mean that this is the only type of inquiry that can, or should, be conducted via BoI.  I would go so far as to suggest that such inquiries are not the principal reason that the legislative regime exists for Boards of Inquiry.

Yet, it appears that such inquiries have dominated the public consciousness to the extent that this particular type of Board of Inquiry has ‘hijacked’ the understanding of Boards of Inquiry, both within the CF and in the public consciousness.   And I suggest that a lot of that has to do with the politicization – or, indeed, over-politicization – of inquiries into non-combat deaths.  This is particularly true in regard to Boards of Inquiry that have investigated suspected suicide.  Over the past several years, there has been an increasing politicization of the conduct of these BoI, of their findings (some of which are obligatory under article 21.47 of the QR&O), and of the misconception of the impact that these findings might have on financial benefits that are payable under a different statutory regime, administered by a different Department.

I do not propose to explore, here, the many misconceptions relating to Boards of Inquiry into non-combat deaths (in particular, suspected suicide).  That is certainly a worthy topic for a future Blog article, and I will endeavour to address that subject in 2021.  For the present, I will simply posit (based principally on anecdotal evidence – though compelling anecdotal evidence nevertheless) that both the public consciousness, and the misconceptions of senior leaders within the CF and Department of National Defence, have increasingly associated statutory Boards of Inquiry with inquiry into deaths of CF personnel (particularly suspected suicide), and that this association has increasingly, and erroneously, linked Boards of Inquiry to such inquiries, to the exclusion of any other inquisitorial function.

Certainly, a ‘cottage industry’ has appeared to grow up around Boards of Inquiry that examine the circumstances of an officer’s or NCM’s death.  I would suggest that the Administrative Investigation Support Centre (AISC), an office that falls under the Assistant Deputy Minister (Review Services) (ADM(RS)), which supports the conduct of BoI, has developed an increasingly myopic focus on ‘inquiries into death’.

And that comment should not be interpreted as a criticism of the AISC.  Their focus is a product of the manner and method of scrutiny of such BoI by the media, by the Canadian public and stake-holders, and by the leadership of the CF and DND.  Their focus is a product of the increased politicization of the process by various stake-holders other than the CF personnel who conduct those inquiries.  As a result, I suggest that the officers and NCM who conduct these BoI have been obliged to focus increasingly on the politicized perception of the investigative functions they perform, instead of the actual investigative process, or objective analysis of relevant evidence, leading to reasonable findings and conclusions.

As a result, the leadership of the CF – and potentially, even political leadership – appear to have stressed factors due to political considerations, rather than objective relevance to the determinations that must, or can, be made by such Boards of Inquiry.  Arguably, some policy choices have been prompted due to political considerations, rather than objective investigative concerns.  And even where a policy is objectively neutral, the pressure brought to bear on those conducting the inquiry can further politicize the process.  The BoI process, which was enacted as a broad tool of inquiry for the Minister and the CF leadership, has increasingly been narrowed in purpose and scope.  Even then, some Boards can experience mission creep.

While the following observation is based upon my own anecdotal experience in private practice, it still reflects an example of a problematic trend.  Article 21.47 was amended 5 March 2009 to remove the mandatory finding “… whether the deceased or injured officer or non-commissioned member or any other person was to blame for the injury or death.”  Nevertheless, some Boards will still be tempted to make improper determinations (or offer thinly veiled inferences) regarding blame, particularly where a death of a CF member has become politicized through public commentary by media or stake-holders.  One might even posit that the 2009 amendment was introduced, in part, to remove a focus on ‘blame’.  And, in light of the possibility that some might ascribe an improper legislative motive to this amendment, I would hasten to add that including blameworthy conduct in the scope of mandatory findings of an administrative, inquisitorial investigation, is problematic.  Blameworthy conduct ought to be the focus of disciplinary (or Military Police) investigations.

For the purpose of the present Blog article, my reason for discussing Boards of Inquiries into the death (or serious injury) of CF members is to highlight how a particular type of BoI has significantly altered the understanding of the use and function of Boards of Inquiry generally.  I suggest that this skewed perspective is manifest in the Canadian public generally, and the military and National Defence leadership specifically.  This has led to an improperly narrow conceptualization of when and where Boards of Inquiry can, and should, be used.  Based upon this unreasonably narrow perspective, coupled with the tendency to resort to ‘political theatre’ whenever the national media scrutinize any aspect of National Defence or the governance of the Canadian Forces, perhaps I should not be overly surprised when the Minister opts not to use a robust tool of inquiry that Parliament has provided in the NDA.

Inquiry into allegations of extremist behaviour, racism, and hateful conduct are certainly matters about which any reasonable Minister of National Defence would wish to be informed.  However, it would not be inappropriate to question how the present Minister is pursuing such inquiry.  Parliament and the Governor in Council have given the Minister and the Canadian Forces a robust tool for such inquiry.  Senior National Defence and CF decision-makers have previously avoided using a mechanism designed specifically for this purpose, just as the Minister is doing now.  Members of the Canadian Forces and the Canadian public ought to ask themselves: Why are these decision-makers avoiding using that tool?  And if it is because the Minister, the CDS, and other decision-makers do not believe it is ‘fit for purpose’, why aren’t they taking any steps to amend the regime so that it is?

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