Myth and Reality about ‘Paid Leave’ in the CF as a Response to Crisis

The Canadian public are often not being provided by national news media with an accurate or clear concept of how statutory decision-making affecting officers and non-commissioned members (NCM) of the Canadian Forces (CF) unfolds.  In some cases, the public is being markedly misinformed.  What is often overlooked is the significant impact that the unique Crown-soldier relationship has on such statutory (and often politicized) decision-making, and the limited protections afforded CF personnel because of the antiquated nature of their relationship with the Crown.

A couple of weeks ago, Ashley Burke of the CBC news ran a story entitled “Taxpayers spent up to $720K on salaries for military leaders sidelined by sexual misconduct crisis”.  It appeared that she was trying to generate a bit more controversy regarding the ‘sexual misconduct crisis’ for the CF.  It seems to have been a bit of a damp squib, and did not generate that much discussion among the ‘chattering classes’.  However, since it did advance a misinformed perspective concerning the administration of the affairs of the CF, I thought it might be worthwhile to elaborate on some of the issues discussed in the article.

Ms Burke posits that a, presumably, significant amount of taxpayers’ money has been spent on the salaries for certain General Officers or Flag Officers (GOFO) who have been placed on leave while awaiting the outcomes of investigations or governmental decision-making.  Now, while $720,000 is not a small sum, neither is it significant when compared to the overall Defence budget.  And it is certainly markedly less than the $610 Million spent on the recent federal general election.

However, relying upon this issue, which is not much of an issue, and aided with commentary from Professor Megan Mackenzie from Simon Fraser University, Ms Burke advances an argument that the time for ‘civilian leadership’ has come and ‘something must be done’.

Unfortunately, these calls for action are accompanied by assertions that either misrepresent the administration of the affairs of the CF or are just plain incorrect.  So, let’s review what was written, and what may not have been entirely accurate.

What the article does get correct is that several GOFO were placed on leave pending the outcome of investigations or other dispositions.  And, although I have said this repeatedly, not all of those GOFO were the subject of investigations into sexual misconduct.  True, the CBC and other news media outlets like to group all of the GOFO together under the banner of ‘in connection with sexual misconduct’, but that can be a disingenuous characterization which may lead people, who might be inclined toward a cursory review of such matters, to draw incorrect conclusions.  It can reinforce a mob mentality.

However, what Ms Burke does not mention anywhere in her article is the fundamental difference between all members of the CF and any person who is an employee, whether of government or a private enterprise.  And that distinction is an important factor in how we examine the issues that Ms Burke raises in her article.

When people think of ‘employees’ they think of someone who is in a contractual relationship with her or his employer.  And that simply does not describe members of the CF.  As I have stated previously – repeatedly – members of the CF serve in a unilateral, non-contractual arrangement with the Crown, in return for which Her Majesty assumes no obligations.[1]  It’s a great deal for Her Majesty; less so for the individual CF member, regardless of rank.

In other words, members of the CF do not have any of the protections afforded by privity of contract.  If they are wrongfully or unfairly dismissed from service, they cannot seek damages for ‘wrongful’ or ‘constructive dismissal’.  Such actions require privity of contract.  The only protection that CF members have – and I cannot stress this enough – is procedural fairness in the public law decision-making that governs their service.

Therefore, unlike, say, a CBC reporter who is accused of wrong-doing, or a tenured professor at a university who is accused of wrong-doing, a member of the CF cannot rely on the protections arising from a contractual relationship.

And that applies to every member of the CF, from the most junior recruits to GOFO.  In fact, some positions within the CF (which can be distinguished from status as an officer or NCM of the CF) are held at pleasure, and the occupant does not even have a right of procedural fairness in the decision to remove her or him from that position.

Ms Burke reports that:

The Department of National Defence says all military members have the right to due process and are entitled to their pay during military police investigations. DND says Canadian law ensures that a workplace cannot punish employees unless they’ve been proven guilty.

But the significance of that statement is that procedural fairness is one of the very few things to which CF members are entitled in these decision-making processes.  And they don’t always get it, and some are punished – using administrative mechanisms, rather than the Code of Service Discipline – based upon negligible or problematic ‘evidence’.

What Ms Burke does not mention is that being placed on ‘leave with pay’ is a common practice for employers who have employment contracts with their employees (whether those are individual contracts or collective agreements) and where the employee must be removed from the workplace pending the outcome of an investigation or decision-making process.  In fact, where employees are subject to collective agreements, it is a common term of contract.  And these employment relationships are markedly less coercive in nature than the Crown-soldier relationship.

According to Ms Burke, Professor MacKenzie asserted that it’s not unusual to place military members on paid leave while they’re under investigation.

And here, I disagree with Professor MacKenzie.  Certainly, over the past 9 months, it has not been unusual for GOFO to be placed on leave pending the outcome of investigations or other dispositions.  And that is part of the problem with what has been transpiring over the course of the past year.  It is actually markedly uncommon in the administration of the affairs of the CF to place someone on leave for an extended period of time while a disciplinary investigation is conducted.  And, arguably, it is an improper recourse.

In the CF, where an allegation concerns some form of alleged personal conflict or harm (including, but not limited to, sexual misconduct) it is common to separate the complainant and the respondent/accused.  [And, since not all of these matters include circumstances in which a CF member is charged with a criminal or Code of Service Discipline offence – and, indeed, some have not even been accused of anything constituting a criminal or Code of Service Discipline offence, I will use the terms ‘complainant’ and ‘respondent’ in this discussion.]  Such complaints can often arise within the ‘workplace’ in which the complainant and respondent work in proximity.  Therefore, it is not unusual for the chain of command to be obliged to move one (and sometimes both) parties away from that workplace.  Typically, it is the respondent who is moved (although the chain of command will be quick to insist that this is not a form of punishment).

But the CF are not a large armed force, and it cannot afford to have a large segment of its personnel away from work.  So, it is the exception, not the rule, that someone will be removed from all potential workplaces.  Instead, the respondent will be given duties in a workplace away from the complainant.  Some units are sufficiently large that this is achievable without the need to post the respondent out of the unit.  Others are so small or centrally organized that it may be necessary to attach the respondent to a different unit.  The respondent may also have what can be characterized as coercive constraints placed upon him or her.  And note that it is not necessary to charge the respondent under the Code of Service Discipline to place such coercive constraints upon him or her.  Those constraints can arise from an arrest (without being charged) under the Code of Service Discipline or, as is often the case, can be based upon ‘administrative action’, that is nevertheless an exercise in coercive statutory powers.  And those constraints can last for several months or more than a year.

Removing the respondent from the workplace entirely is the ‘last resort’.  And it is not typically achieved by using ‘paid leave’.  The proper mechanism to use is ‘relief from performance of military duty’.  Where criminal or disciplinary wrong-doing is suspected, alleged, or charged, this will be done under article 101.09 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O).  Where there is a justification to relieve an officer or NCM from the performance of military duty, but criminal or disciplinary wrong-doing is not suspected, alleged, or charged, this will be accomplished under article 19.75 of the QR&O.  Where an officer or NCM of the Regular Force is relieved from performance of military duty, she or he will continue to get paid (just as any civilian employee would be treated).

[NB: I suspect that, at this point, officers and NCM of the Reserve Force would likely be quick to point out that, when a Reservist is relieved from performance of military duty, she or he will typically not be paid, because of the distinction in the nature of service between the Regular Force and Reserve Force components.  And, generally, they would be correct.  However, that subject could occupy a lengthy Blog post of its own.  I trust, Dear Reader, that you will forgive me if I do not venture along that tangent.  I am already prone to follow tangents in these Blog posts, so I would ask that you not encourage that particular quirk.]

Thus, where the circumstances of the allegations against an officer or NCM are such that the only reasonable course of action is the ‘last resort’ of relieving her or him from performance of military duty, that measure can be implemented under either article 101.09 or 19.75 of the QR&O, both of which are regulations enacted by the Minister of National Defence pursuant to subsection 12(2) of the National Defence Act (NDA).  But that is not what has been done with any of these GOFO, and that is significant.

Placing an officer or NCM of the Regular Force on ‘paid leave’ does not grant any greater benefits than relieving her or him from performance of military duty.  What it does do, is side-step the obligations placed upon the decision-maker under the two above-mentioned articles of the QR&O.  In other words, it deprives the respondent of the one thing to which he or she is entitled under the NDA: procedural fairness.

Indeed, that is what counsel for Major-General (MGen) Dany Fortin argued in their pleadings leading to Fortin v Canada (Attorney General), 2021 FC 1061, and which MGen Fortin is appealing.

Professor MacKenzie is also reported by Ms Burke as having stated:

“I think it’s signaling that we really need leadership on this issue. We need civilian leaders. We need the prime minister and the minister of defence to come to help to solve this issue.”

Ironically, however, the pleadings presented by MGen Fortin’s counsel have argued just that: that the Prime Minister and select Ministers of the Crown directly involved themselves in the decision-making that led to MGen Fortin being placed on indeterminate leave, and without the procedural safeguards under article 101.09 of the QR&O.  The pleadings included evidence of notes from the Acting Chief of the Defence Staff (A/CDS), General Wayne Eyre, which appear to corroborate their argument.

Professor MacKenzie suggests that ‘… we need civilian leaders …’ but she does not explain how they would do a better job than the military leadership of the CF.  Indeed, it appears that many of the decisions that have been made thus far were made by the ‘civilian leaders’, either directly, or through military proxies, and some of those decisions have questionable merit.

Recalling that the now former Minister of National Defence, Harjit Sajjan, allegedly angrily ignored attempts by the DND/CF Ombudsman in March 2018 to raise issues with him, it is not at all clear that ‘civilian leaders’ are the panacea that some might claim.

Perhaps what we really need is ‘leadership’ in general, which has been in short supply.  And, equally importantly, I suggest that whoever is exercising that leadership ought to ensure that they comply with the requirements established by and under the authority of the NDA and ensure that the decisions that are made are fair and reasonable.

Nor does Professor MacKenzie explain how further involvement from civilian leaders, who have already demonstrated some rather problematic decision-making, would obviate the requirement for procedural fairness and evidence-based decision-making.

Professor MacKenzie is quoted as stating that investigations are taking “a very long time,” with service members stuck at home while they wait to learn the outcome.  So, while Ms Burke and Professor MacKenzie were silent on the utter lack of procedural fairness in the decision-making leading to what was essentially compulsory leave for various GOFO, what they appear to insinuate is that the duration of said compulsory leave, thus far, has been unreasonably long.  However, they offer no objective comparison with any analogous circumstances.  Had they done so, they may have concluded that periods of 6 to 12 months are not that unusual in comparable circumstances.  Ms Burke’s former CBC colleague, Gian Ghomeshi, was retained by CBC for several months after he advised his employer that he was the subject of an investigation by the Toronto Star, and after CBC retained the crisis management firm, Navigator Ltd., to address the allegations.

Regardless of whether the decision-maker is civilian or military, if a decision under the NDA must respect principles of procedural fairness (and not all decisions under the NDA must comply with procedural fairness) then there must still be reliable evidence upon which the decision will be made.  It will take time to collect that evidence.  The evidence must be disclosed to the respondent, and sufficient time must be granted for the respondent to make informed representations to the decision-maker.  The decision-maker must be sufficiently open-minded and arm’s length from the issue or incident to make a fair determination.  And the decision-maker must provide sufficient reasons to justify the decision in a transparent and reasonable manner.  That takes time and a sufficiently robust mechanism.  And the more significant the rights, interests, or privileges at stake, the more robust the procedural fairness that would be required.

I have observed in this Blog – again, repeatedly – that Military Police investigations, particularly those of the Canadian Forces National Investigation Service (CFNIS), take an unreasonably long time.  I have repeatedly encountered Military Police investigations of matters that were not particularly complex, and which would normally take most competent civilian police forces four to six weeks (or less) to complete, take eight to twelve months for the CFNIS to complete.  Or longer.

In comparison, investigations against some of the GOFO were completed in six months or less.  (Remember: not all of the GOFO listed in the CBC News article entitled “A military in crisis: Here are the senior leaders embroiled in sexual misconduct cases” were actually the subject of Military Police investigations or were even accused of criminal or disciplinary wrong-doing.)  And most of the allegations investigated by the CFNIS were what can be characterized as ‘historical complaints’, ranging from over 10 years ago, to more than 30 years ago.  Those are more difficult to investigate and, consequently, tend to take more time.  Yet, by Military Police standards, these investigations were completed in a relatively timely fashion.  Sure, there were some inexplicable leaks of information, and a couple of disingenuous statements by the Canadian Forces Provost Marshal, but these investigations were completed in a timelier manner than is the norm.  I suspect the focus of the news media may have had something to do with that sense of urgency.

So, in sum:

• CF personnel are not in privity of contract with the Crown and do not have the protections that a contractual relationship affords employees.
• One of the few protections that CF personnel have – often the only protection – regarding the exercise of the statutory decision-making that affects them, is procedural fairness.
• Procedural fairness takes time (and an open-minded and unbiased decision-maker, and evidence, and disclosure of that evidence to the respondent, and an opportunity for the respondent to make informed representations to said open-minded decision-maker, and reasonableness, and justification …).
• Ordering someone on ‘leave with pay’ is not the usual response when a CF member is accused of wrong-doing. There are any number of lesser administrative measures that can be used and must be considered by the decision-maker.
• As a last resort, personnel can be relieved from performance of military duty. This has an effect analogous to placing an employee on leave with pay (for members of the Regular Force).  This process has express steps, established by Ministerial regulation, to ensure a modicum of procedural fairness.
• The GOFO who were, essentially, ordered on leave, were not afforded the procedural fairness required for relief from performance of military duty.
• In some of the matters involving GOFO, it appears that the decision-making was directed by the ‘civilian leaders’ that Professor MacKenzie envisions as the ‘solution’ to the ‘crisis’. And these ‘civilian leaders’ appeared to be more concerned about ‘political calculus’ than procedural fairness.

We are not seeing a great deal of accuracy or in-depth analysis from the national news media on these issues.  Instead, what we are seeing is a rather facile rehashing of the same allegations as various GOFO are tried in the media circus.

Some of you may be wondering: “Fowler, why do you care so much about these GOFO?  What about the troops?”  That’s a fair question.

I do not care solely about the GOFO.  I care about injustice arising in the administration of the affairs of the CF.  I care about the rule of law.  I care about fairness and reasonableness in statutory decision-making.  And I am consistently perplexed by the rather one-sided and disingenuous ‘trial by media’ that we see, consistently, regarding the CF.  And because such ‘trial by media’ relies upon presentation of selective ‘evidence’, no opportunity to test said evidence, and typically substitutes outrage and conjecture for reason and evidence, it does not lead to a better-informed Canadian public, particularly when reporters leave out crucial information.  And when a media circus drives political decision-making – the aforementioned ‘political calculus’ – all Canadians must be concerned about whether political decision-makers are truly relying upon evidence, reason, fairness, and justification in public decision-making.

But the short answer to your question, Dear Reader is: If this is how GOFO are being treated, what do you think happens to the corporals, sergeants, and captains who are subjected to decision-making driven by ‘political calculus’ and a desire to be seen to be doing something, rather than the evidence, reason, and justification demanded by procedural fairness and the rule of law?

[1] Gallant v The Queen In Right of Canada (1978), 91 DLR (3d) 695 (Fed Ct T D).

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