Rules are for Corporals, Not for Colonels

 

It appears that rules are for Corporals, not for Colonels.

(Granted, much of what I discuss below concerns decision-making by General and Flag Officers, as well as Captains (Navy) – but there is an alliterative simplicity of comparing Corporals to Colonels.)

Alternatively, the title of this Blog post could be: “Do as I say, not as I do.”

The problem is that the evident hypocrisy in insisting that subordinates must ‘follow the rules’ when the senior officers who are imposing disciplinary and administrative punishments do not follow the rules in so doing, appears to be lost on a great many people – including those same decision-makers.

And “Do as I say, not as I do” is not the best leadership mantra.

And speaking of mantras, a good place to start our discussion of this topic can be found in the mantras pertaining to rules, ethics and policies that are commonly used in Administrative Reviews.

 

Rules, Policies and mantras

Over the last few years, I have repeatedly encountered the same boiler-plate text in documents prepared by the staff for Director Military Careers Administration (DMCA), which articulate the principles, policies, and obligations that are purportedly relevant to Administrative Reviews.

I say: “prepared by”, but I think “cut-and-pasted by” would likely be a more accurate and apt description of the text that appears in the synopses and documents comprising Administrative Reviews.  These documents present the same litany of Defence Administrative Orders and Directives (DAOD) in identical paragraphs.  (I note, tangentially, that these same cut-and-pasted paragraphs also consistently refer to these DAOD as ‘regulations’ – which, technically, they are not.  But who am I to question the logic of DMCA staff?)

These identical paragraphs consistently remonstrate the respondents in these Administrative Reviews for failing to follow the rules, policies, and dictates in these DAOD, and explain that said failure is contrary to the Defence Ethics articulated at DAOD 7023-1.  This, the respondents are told, undermines the morale and effectiveness of the Canadian Forces (or the Canadian Armed Forces for that matter).  In other words, they failed to follow the rules and they must be punished … errr … corrected.  They must be corrected.  (Which, in many of these circumstances, appears to require compulsory release from the Canadian Forces – which also means compulsory release from the Canadian Armed Forces.)

Respondents are told:

In accordance with DAOD 5019-4, the standard of conduct for a CAF member is based on established military standards, ethics and values identified in regulations, orders, instructions and policies. The standard of performance for a CAF member is applicable to the CAF member’s current rank, military occupation, experience and position. CAF members are required to meet the applicable standard of conduct.

Technically, the standards of conduct are typically established elsewhere, and the focus of DAOD 5019-4 is on the remedial measures used to assist the CF members in correcting their performance or conduct-related deficiency.

“Alright, Fowler,” I hear you say, “… let’s not stop to pick fly speck out of pepper …”.  Fair enough – let’s run with what the DMCA staff tell us.  Better yet, let’s assume that DMCA staff can learn from the shortcomings in previous processes and have improved their boiler-plate correspondence.

It’s entirely possible that DMCA’s boiler-plate correspondence may also elaborate:

DAOD 5019-4 explains that Remedial Measures are serious steps to assist a CAF member in overcoming their conduct or performance deficiency and are based on established CAF standards, ethics and values identified in regulations, orders, instructions and policies. The standard of conduct for a CAF member is applicable to the CAF member’s current rank, military occupation, experience and position. CAF members are required to meet all applicable standards of conduct. DAOD 5019-4 further states that an initiating authority may select an appropriate remedial measure without progressing from IC to RW to C&P. The determining factor is not the number of measures, but rather the overall character of the CAF member’s service.

Fair enough – that seems like a fairly accurate description of the purpose of remedial measures.  In fact, some of that phrasing appears to be lifted straight from the DAOD.  (Does that make it a cut-and-paste of a cut-and-paste?)

The same boiler-plate correspondence might also elaborate on accountability generally:

In accordance with DAOD 5019-0, CAF members shall be held accountable for any failure to meet established standards of conduct and performance resulting from factors within their control. The chain of command may, when a CAF member fails to meet the expected standard of conduct, take administrative action to address any conduct or performance deficiencies considered to be unacceptable or bringing discredit to the CAF. Collectively, CAF members have a core responsibility to the government and people of Canada to defend Canada and its interests and this responsibility entails its members to maintain a higher standard of conduct than any other Canadian citizen.

Again, that makes sense and reflects the nature and content of the DAOD 5019 series.  So far, so good.  (Although, personally, I likely wouldn’t use the term ‘entails’; I believe the appropriate term that DMCA staff are looking for is ‘obliges’ or ‘requires’, which have a subtly different meaning than ‘entails’.  But, again, who am I to question the logic of DMCA staff?)

And, when it comes to interaction with fellow members of the CF, particularly in the context of allegations of harassment, respondents are also told:

DAOD 5012-0 affirms that a work environment that fosters teamwork and encourages individuals to contribute their best effort in order to achieve the defence objectives of Canada is essential. Mutual trust, support and respect for the dignity and rights of every person are essential characteristics of this environment and are directly linked to the first ethical principle (Respect the Dignity of all Persons) in the Department of National Defence and Canadian Forces Code of Values and Ethics. Harassment in certain forms is not only against the law, but also erodes mutual confidence and respect for individuals and can lead to a poisoned work environment. As a result, operational effectiveness, productivity, team cohesion and morale are placed at risk. Harassment is defined as the improper conduct by an individual, that is directed at and offensive to another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat. It also includes harassment within the meaning of the Canadian Human Rights Act (i.e. based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability, pardoned conviction and conviction for which a record suspension has been ordered).

No disagreement from me here.  These are pretty much ‘motherhood and apple pie statements’ – no reasonable person is going to disagree with these sentiments.

These boiler-plate Administrative Reviews will also likely state:

In accordance with DAOD 7023-0, the DND and the CAF are integral parts of our democratic society and must reflect and practice the values of that society. Fundamental to the effectiveness of the DND and the CAF is the strength and vitality of its ethical culture. The Canadian public expects the highest level of adherence to ethical standards by CAF members. DAOD 7023-1 Annex A, Statement of Defence Ethics, identifies specific values and expected behaviours for all CAF members. Respect the dignity of all persons, Serve Canada before self, and Obey and Support lawful authority are the three ethical principles and expected behaviours of all CAF members. Furthermore, Annex A stipulates that there are five core values and expected behaviours required by all CAF members: integrity, loyalty, courage, stewardship and excellence.

(They might even italicize some of those phrases in order to highlight their importance.)  Again, it would be difficult to disagree with these sentiments.

But the devil – as well as the hypocrisy and abuse of process – is in the details.

And pay close attention to those principles, objectives, and expectations.  They will be important in the discussion that follows.

 

Statutory Decision-Makers

So, let’s consider how some of these principles are applied by decision-makers like the Chief of the Defence Staff (CDS) and DMCA.  After all, these officers are also members of the Canadian Forces (and the Canadian Armed Forces).  Presumably, the above-mentioned principles, objectives, and expectations apply to them as well.  And, in light of their rank, military occupation, experience and position, one might also suggest that the standard of conduct to which they ought to be held is even higher than that of, say, a corporal.

We’ll see about that.

Here’s what causes me some concern: I have repeatedly encountered circumstances over the past 3 ½ years of private practice (not to mention the several years I spent as a legal officer in the Canadian Forces, and the several years that I spent as an infantry officer before that) in which senior CF decision-makers have failed to measure up to the standards to which they purport to hold their subordinates.

You see where I am going?

(As an aside, I certainly hope you see where I am going – I have been telegraphing this point in my Blog posts for some time now…)

And I am not referring solely to the marked disregard for the Rule of Law that the CDS has demonstrated recently.  Frankly, that alone should be cause for concern for all Canadians.  After all, according to DMCA and her staff: “Collectively, CAF members have a core responsibility to the government and people of Canada to defend Canada and its interests and this responsibility entails [or requires] its members to maintain a higher standard of conduct than any other Canadian citizen.”  One would think that the obligation under DAOD 7023-1 to obey and support lawful authority would include the Canadian Charter of Rights and Freedoms [Charter] and the Rule of Law.  After all, the Charter is entrenched in the Constitution Act, 1982 and therefore forms part of the supreme law of Canada.

But, as I say, rules are for Corporals, not for Colonels (or, it appears, Generals).

Like the old saying goes: “We’re here to defend democracy, not practice it!”  It’s not as if the Canadian Forces represent an integral part of our democratic society and must reflect and practice the values of that society and that an ethical culture is vital to the effectiveness of the Canadian Forces.

Wait a moment … are you saying, Dear Reader, that it is?

Next, you’ll be telling me that the Canadian public expects the highest level of adherence to ethical standards by all members of the Canadian Forces, including senior decision-makers like the CDS and DMCA.

Hold on … are you suggesting that they do?

See, aren’t you glad that I suggested that you pay close attention to the boiler-plate language of the DMCA synopses?

As a result, we are all learning something about the Rule of Law!

Consider the recent announcement that the Canadian Forces would be changing the rank designations for junior non-commissioned members who wear a ‘naval uniform’.

This policy change appears to have been initiated after robust consultation and for meritorious reasons.

Yet, some people oppose the change.  Some people oppose it for specious reasons grounded in so-called tradition.  Notwithstanding that it would be a propos, I will refrain from quoting Churchill.  And, according to some media reports, senior leaders in the Royal Canadian Navy were less than impressed with some of the comments made in social media about this policy change.

In response to purportedly misogynistic criticism about the Canadian Forces’ intention to change the rank designations for junior personnel who wear ‘naval uniform’, Rear Admiral Chris Sutherland, Deputy Commander of the Royal Canadian Navy, had this to say:

“I am shocked that you think that your comments would be acceptable, and that you are not able to recognize that those you are disparaging are the very people dedicating their lives to afford you the freedom to comment …”.

He also stated: “If you cannot live by or support the values of the Canadian Charter of Rights and Freedoms, then you cannot defend them.”

I agree with these sentiments.

But, as I observed recently, it appears that senior decision-makers in the Canadian Forces have indicated that they are changing these rank designations using a CANFORGEN, even though section 21 of the National Defence Act (amplified by QR&O art 3.01) clearly stipulates that rank designations can only be changed by regulations enacted by the Governor in Council.

Normally, I’d suggest that, before a General or Flag Officer starts sounding off about respect for the law and the values contained within the law, they might want to ensure that they, too, are complying with the Rule of Law.

But, rules are for Corporals, not for Colonels (or Flag Officers).

Returning to DMCA’s boiler-plate commentary from Administrative Reviews, we can conclude that integrity in statutory decision-making is one of the five core values and expected behaviours required by all members of the Canadian Forces, along with courage, stewardship and excellence.  Like the courage to point out when statutory decision-makers are not holding themselves to the same standards that they purport to hold subordinates.  Or stewardship of processes that lie at the heart of maintaining the discipline, efficiency and morale of the Canadian Forces – processes like the Code of Service Discipline.  (See R v Généreux, [1992] 1 SCR 259, 293 to 296, and the reiteration of these principles in R v Moriarity, 2015 SCC 55 and R v Stillman, 2019 SCC 40.)

The Oxford English Dictionary defines ‘stewardship’ as “… the act of taking care of or managing something, for example property, an organization, money or valuable objects.”  That is not too far removed from the definition of superintendence: “supervise, or be in charge of, something”.

If only there were someone who could intervene when statutory decision-makers are failing to uphold the principles and ethics for which DMCA has consistently remonstrated junior members of the Canadian Forces when they have failed to adhere to those standards of conduct.

If only there were someone who could tell the Colonels (and Generals) that rules apply to them as much as they apply to Corporals (and, perhaps, due to their rank, military occupation, experience and position, that it is even more important that they adhere to such rules and ethics).

If only someone could explain that, when a senior CF decision-maker fails to follow the rules him- or herself, it “… erodes mutual confidence and respect for individuals and can lead to a poisoned work environment.”

I suppose that, in the absence of anyone who has a statutory duty or function to superintend military justice – or the will to do so – we can rely on constitutionally independent judges to fill this void.

However, notwithstanding the merits of a constitutionally independent judiciary to hold the executive to account for breaches in the application of law, there are some noteworthy shortcoming to such reliance.

 

Difference between the Code of Service Discipline and Administrative Processes

The virtue of the recent judgments in courts martial like R v Edwards, 2020 CM 3006, which highlight the CDS’ disregard for the Rule of Law, is that these judgments are publicly available and, therefore, subject to public scrutiny.  There is an opportunity for people who are interested in the Rule of Law and military justice – and not solely lawyers or legal scholars – to read these judgments and participate in public discourse on this important issue.  And that public scrutiny and discourse is fundamentally important in a democracy that embraces principles such as the Rule of Law and accountability of statutory decision-makers.

However, the problem with the ‘disciplinary’ activity in the CF – particularly under Op HONOUR – is that, at present, much of it is not being taken under the Code of Service Discipline.  Instead, the CDS and other senior leaders – in particular DMCA – are using administrative measures to punish allegations of wrong-doing.  And one of the principle tools is the Administrative Review process under DAOD 5019-2.  Contrary to prosecutions before courts martial, these processes are not transparent.  They are not subject to public scrutiny.  And they have increasingly become dominated by a culture of impunity.

One of the reasons for this is that members of the Canadian Forces cannot typically challenge the actions taken by decision-makers like DMCA before the Federal Court – at least, not immediately.  They must first exhaust the time-consuming CF grievance process which, much like the Administrative Review process, is controlled entirely by the chain of command.  There is no contemporaneous public scrutiny of this decision-making.  And without public scrutiny, there is little accountability.  Contrary to the ‘culture of justification’ advocated recently by Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, respondents to Administrative Review face a culture of impunity.

In order to bring a matter before the Federal Court, a CF member must have the fortitude and tenacity to fight through the Administrative Review, and then fight through the 2-tiered grievance process.  And that can take a while.

CF members are told that they don’t need a lawyer to assist them with this process.  Unlike when CF members face court martial, they won’t be provided with counsel at Crown expense.  The can rely on an assisting member, but, as we know from Section 7 of DAOD 2017-1, Military Grievance Process, an assisting member’s responsibilities are limited to: explaining their role to the grievor; ensuring that the grievor is aware of the manner and conditions for the submission of a grievance; explaining the nature of the applicable regulations and policies; and, assisting the grievor in the preparation of their grievance.

An assisting member is not: (i) the personal representative of the grievor; (ii) responsible for locating documents and information that may be required by the grievor; or, (iii) responsible for writing the grievance.  An assisting member does not necessarily have any special training or education relevant to that role, and there is no guarantee that the assisting member will have the requisite experience required to assist with complex grievances.  And the discussions between the grievor and the assisting member are not subject to protections of ‘confidence’ or evidentiary rules of privilege.

And, let’s face it, some grievances can be fairly complex.  The greater the stakes (e.g. if the CF member is facing a compulsory release), the likelihood of complex legal issues will increase.  And let’s not forget that a compulsory release for a performance or conduct deficiency will typically be completed 30 days after DMCA makes that decision.  If the respondent CF member chooses to grieve the decision, it could take that long just to get the grievance before the appropriate initial authority (who will then have four months to consider and determine the grievance: QR&O art 7.15(2)).  And the final authority faces no limitation period.

Throughout this process, the chain of command has access to legal advice from the Office of the Judge Advocate General (OJAG).  If a CF member wishes to have the assistance of counsel, he or she will have to pay for it out of their own pocket.  And even then, some bright penny in the OJAG may attempt to suggest that privately retained counsel do not have a right to offer representations on behalf of their client.

Only once these lengthy processes are exhausted, will the CF member typically have the right to bring the matter before the Federal Court for judicial review.  By that point, typically at least 2 to 3 years after the Administrative Review was completed – and sometimes much, much longer – the CF member will likely be emotionally exhausted.  If the CF member was subject to a compulsory release, he or she will invariably have been a civilian for most of that time.  And they may not have the financial resources to carry on the fight.

And remember, the Federal Court will not conduct a de novo review – the focus generally will be on whether the final authority in the grievance process was reasonable and offered sufficient reasons to justify the result.  The actual decision against which the CF member was initially fighting – for example, a decision by DMCA to order a compulsory release – will not be the subject of the judicial review.  Instead, the court will examine the subsequent review by the final authority in the grievance process (the CDS or his delegate).  And this is the first time that the CF decision-making apparatus in that specific case will be subject to public scrutiny.  This is the first occasion for the Canadian public to take a peek – and it really is just a peek – at the internal working of CF statutory decision-making.  Like a visit to a meat rendering facility – sometimes it is not a pretty sight.

And remember, in many cases, the CF members who are adversely affected by these decisions, and who have even been subjected to abuses of process, will not have the emotional stamina and financial resources to carry on through the grievance process and eventual judicial review.  So, the matters that get to the Federal Court can often represent only the ‘tip of the iceberg’.

Is it any wonder then that CF decision-makers like the CDS and DMCA prefer recourse to administrative punishment over the Code of Service Discipline?  Is it any surprise that the CDS does not appear to be particularly concerned that his refusal to rescind his order, which places military judges under the disciplinary authority of the Deputy Vice Chief of the Defence Staff, could cause the administration of the Code of Service Discipline to grind to a halt?

Of course not – not when he and DMCA can rely on a less-than-transparent Administrative Review process to punish CF personnel.

Because rules are for Corporals, not for Colonels.

After all, by using administrative process to punish CF personnel, the chain of command avoids:

• The elevated burden of proof in a Code of Service Discipline proceeding (i.e. ‘beyond a reasonable doubt’);
• Immediate scrutiny of evidence and the application of law by a constitutionally independent judge; and
• Circumstances where a CF member has an opportunity to make full answer and defence with the assistance of counsel that the CF member need not pay out of pocket.

By avoiding all of these factors the CF chain of command can avoid the inconvenience of the application of the Rule of Law in their decision-making.

 

An Examination of the Administrative Regimes

In light of the fact that many of these matters will not be subject to public scrutiny before the Federal Court,  I thought it might be useful to present some recurring themes, so that the Canadian public can judge for themselves whether justice is being done in the administration of the affairs of the Canadian Forces.

 

Using Disciplinary Investigations for Administrative Purposes

A recurring dynamic is the use of unit disciplinary investigations (UDI) or Military Police reports for administrative purposes.  Technically, Military Police investigations can be used for administrative decision-making (as distinguished from prosecution under the Code of Service Discipline).  However, the manner in which they are actually used should be of concern for the Canadian public.

First, the term ‘disciplinary investigation’ offers a fairly obvious indication regarding the intended use for the investigation.  It should not come as a shock or surprise to anyone that a ‘disciplinary investigation’ is (or should be) used to support a prosecution under the Code of Service Discipline.   The clue is in the use of the word ‘discipline’.

Yet, increasingly, disciplinary investigations – whether UDI or Military Police investigations – are being used solely or principally for administrative purposes.  And this is problematic because of the distinction that has been drawn between the nature of disciplinary investigations and the nature of administrative investigative processes that are established by regulation and policy.

And I am not referring here to circumstances in which a prosecution under the Code of Service Discipline is conducted and concluded and then administrative action is also taken.  I am not referring to circumstances in which a prosecution is pursued, the accused is found not guilty based upon the criminal burden of proof (‘beyond a reasonable doubt’) but administrative action is pursued because the evidentiary threshold is lower (‘balance of probabilities’).

I am talking about circumstances where little or no effort is made to pursue a disciplinary prosecution, even though a disciplinary investigation was conducted.  This arises where:

• Disciplinary investigations are conducted, but charges are not laid under the Code of Service Discipline;
• Charges are laid following a disciplinary investigation, but are subsequently withdrawn (typically without offering any meaningful reasons for doing so); or,
• An investigation is conducted, charges are laid and referred to DMP, but DMP ‘non-prefers’ the charges (again, without offering meaningful reasons why he is doing so).

In all of these examples, the person who is the subject of the disciplinary investigation is not given his (or her) day in court.  However, the chain of command then treats the untested investigation as proof of wrong-doing (even though no one appeared to have the stomach to pursue a prosecution).

Thus, even though the chain of command does not rely on the disciplinary investigation for a disciplinary prosecution, this does not mean that the chain of command does not get to punish the CF member.

Because rules are for Corporals, not for Colonels.

Instead, the chain of command will initiate an administrative process, whether it’s an administrative review under DAOD 5019-2 or a remedial measure under DAOD 5019-4.

If the matter touches upon Op HONOUR – as is increasingly the theme these days – the chain of command will undoubtedly cite DAOD 5012-0 as a justification for their actions, typically in the manner similar to the text presented earlier in the present Blog post.  And that is because Op HONOUR does not actually create prohibited types of conduct for CF members.  Op HONOUR is principally a framework by which the CDS has directed his subordinate leaders to address allegations of sexual misconduct: R v Banting, 2019 CM 2009.  Therefore, if allegations of misconduct are alleged, the chain of command must point to the specific policies that have been breached.  The CF Harassment Prevention and Resolution policy at DAOD 5012-0 is a common basis for such allegations.  The same is true for the ‘new’ policy on ‘hateful conduct’.

The problem is that the chain of command will cherry-pick the aspects of DAOD 5012-0 that they wish to uphold.  They will focus on the prohibitions contained in that policy, but not the procedural obligations imposed on the chain of command.

Why do they do this?  Because rules are for Corporals, not for Colonels.

Even though DAOD 5012-0 gives rise to the CF’s Harassment Prevention and Resolutions Instructions, those instructions are often not followed when punishing a CF member with administrative sanctions, particularly where there has been a ‘disciplinary investigation’.  The Harassment Prevention and Resolution Instructions establish detailed steps for the assessment of an harassment complaint and, if necessary, the conduct of an harassment investigation.  This is an administrative investigation, which is conducted in a different manner than a disciplinary investigation.

However, if the chain of command has in its possession a recently completed UDI or Military Police investigation into the same subject matter, they are likely going to ask themselves: Why bother following the Instructions established under DAOD 5012-0?

The answer I would normally provide is that application of the policy under DAOD 5012-0 requires them to apply the entire policy, and not cherry-pick the portions that they find useful.

However, they are unlikely to adopt such a reasonable approach.

After all, rules are for Corporals, not for Colonels.

When a ‘suspect’ is interviewed by a ‘disciplinary investigator’ (whether that investigator is a member of the suspect’s unit or a Military Police investigator) in relation to allegations of disciplinary or criminal wrong-doing, he or she has a right to remain silent.  The ‘suspect’ will often exercise that right.  And no adverse inferences are generally permissible when the person exercises that Charter right – in common parlance, the CF member cannot be faulted for exercising that right.

The right to remain silent can be contrasted with the right to make informed representations in an administrative investigation and process.  While a disciplinary or criminal investigation must necessarily permit the exercise of the right to silence, a person’s right to liberty and ‘security of the person’, guaranteed by section 7 of the Charter, is not typically at stake in an administrative process.  The ‘respondent’ does not typically have a right to remain silent.  Nor, presumably, would the ‘respondent’ wish to remain silent in the face of allegations addressed in an administrative framework.

And this distinction is due, in part, to the separation between the ‘investigative stage’ and ‘adjudicative stage’ in a disciplinary or criminal proceeding.  Breaches of the Code of Service Discipline are adjudicated by someone other than the investigator, at a different stage in the process.  The ‘adjudicative stage’ of the process, conducted before (ideally) an independent and unbiased decision-maker, will arise only after the investigative stage is complete and the accused has received sufficient disclosure to make full answer and defence.  Where liberty or security of the person is at stake (section 7 of the Charter), the adjudicator will typically require guarantees of judicial independence and impartiality (section 11(d) of the Charter).

Disciplinary processes can be contrasted with the inquisitorial nature of an administrative investigation which stresses the opportunity to make informed representations, since the respondent’s liberty under section 7 of the Charter is not typically implicated in the process.

The marked differences in the nature and sequencing of disciplinary and administrative processes is one of the compelling reasons why the structure of the two types of investigations (and the eventual adjudications) are different, and demand different approaches.

However, I have noted that CF statutory decision-makers, including DMCA, don’t appear to have any concerns about misusing disciplinary investigations in lieu of the administrative investigations that are expressly directed under policies like DAOD 5012-0.

But why let the Rule of Law and fairness interfere with the chain of command’s desired end-state?

After all, rules are for Corporals, not for Colonels.

It’s not as if a CF member has a legitimate expectation that the CF’s Harassment Prevention and Resolution Policy will be applied where there are allegations of harassment that are not going to be resolved under the Code of Service Discipline.  After all, the chain of command is not obliged to address misconduct solely through the Code of Service Discipline.

Wait … what’s that you say, Dear Reader?  You’ve read a Blog recently that suggests that, notwithstanding that the CF chain of command has the discretion to proceed with either a disciplinary or an administrative process, a CF member has a legitimate expectation that, once the chain of command decides on a particular course of action – whether disciplinary or administrative – the chain of command must use the process that is expressly established under legislation and policy?

Next, you’ll be telling me that it would be an abuse of process if the chain of command failed to comply with that legitimate expectation.

Hold on – it is?!?

Are you suggesting, Dear Reader, that if DMCA orders a compulsory release or other significant administrative sanction, based upon allegations of harassment that were not proven under either the process established for the Code of Service Discipline or the CF’s Harassment Prevention and Resolution Instructions, that DMCA would be perpetrating an abuse of process because she failed to adhere to the principle of legitimate expectation?

Surely that would not happen in a Canadian Forces that adheres to ethical principles including the respect for the dignity of all persons (including an accused or respondent) and obedience to lawful authority (including legal obligations imposed on statutory decision-makers).  After all, those are the very same ethical principles that DMCA and her staff assert in Administrative Reviews.  Those are the same ethical principles to which respondents in those Administrative Reviews are held accountable.  Surely you are not suggesting, Dear Reader, that DMCA would fail to uphold those same principles.  To do so could “… erode mutual confidence and respect for individuals and can lead to a poisoned work environment.”

If it’s true that rules are for Corporals, and not for Colonels, I shouldn’t really be surprised.

 

Evaluation of Evidence

And improper reliance on the incorrect investigative mechanism is not the only example of disregard for the rule of law in the use of administrative processes to punish members of the CF.  The examination and evaluation of evidence in those ‘proceedings’ also demonstrates the failure of CF statutory decision-makers, like DMCA, to apply the law fairly, properly, and consistently.  And these shortcomings often arise from the improper use of disciplinary investigations as a substitute for the proper administrative processes.

Let’s take the example described above, of a UDI or Military Police investigation that is used for an administrative decision-making process.

Despite conducting a disciplinary investigation, the chain of command opts not to lay a charge under the Code of Service Discipline.  The ‘prima facie’ threshold for laying a charge is relatively low.  It requires a reasonable and actual suspicion that a Code of Service Discipline offence occurred.  This requires some evidence for each element of the offence.  The evidence is not weighed.  Credibility is not questioned.  The threshold is fairly low – lower even than the ‘balance of probabilities’ that is repeatedly cited in Administrative Reviews.

If a charge is laid, then the decision-maker who will prosecute the charge, or otherwise bring it before the lawful adjudicative authority, must make two decisions: is there a reasonable prospect of conviction and is it in the public interest to proceed with the prosecution?

The latter question should not be contentious if the alleged misconduct is sufficiently serious that it warrants significant administrative action such as compulsory release.  Presumably then, a decision not to prosecute will turn on whether there is a reasonable prospect of conviction.  I have explained this in a previous Blog post, but a summary merits repeating here.

The threshold test of ‘reasonable prospect of conviction’ (or RPC) is objective.  The standard is higher than a ‘prima facie’ case that merely requires evidence upon which a reasonable jury, properly instructed, could convict.   But RPC does not require a probability of conviction.

An actual and reasonable belief that the offence has been committed is necessary but not sufficient. The evidence must be evaluated to determine how strong the case is likely to be when presented at any service tribunal and should be made on the assumption that the trier of fact will act impartially and according to law. This will require a proper assessment on whether all of the elements of the alleged offence have been established, the relevance and admissibility of evidence implicating the accused, as well as the competence and objective credibility of witnesses.

The assessment of the evidence requires a fair evaluation of evidence in all the circumstances of the case. Prosecutors must guard against a perception or view of the case simply adopted from the views or enthusiasm of others.  Equally, the prosecutor must also guard against supplanting the eventual role of the ‘trier of fact’.

At is core, however, the threshold for ‘RPC’ is lower than a ‘balance of probabilities’.  Consequently, if the evidence supporting allegations of misconduct is not sufficient to meet the ‘RPC’ threshold, an objective observer would be inclined to question how it could support a determination of blameworthy conduct on a balance of probabilities.

But that’s not the only problem arising when allegations of misconduct are ‘prosecuted’ using administrative processes and CF members are punished using administrative measures.

Often, these processes do not rely on actual evidence.  I have repeatedly encountered circumstances in which DMCA has made decisions based upon summaries of evidence, written by the investigator, purporting to describe the evidence that the investigator gathered.  However, the actual evidence is not presented to the decision-maker or the CF member who is the subject of the decision.  This has arisen in Administrative Reviews conducted by DMCA and administrative remedial measures imposed by other statutory CF decision-makers.

In some cases, evidence is omitted or redacted for inexplicable reasons.  In other cases, the fruits of earlier investigations have been left out entirely, particularly where the evidence gathered in the earlier investigation contradicted the evidence in the subsequent investigation.  In that case it was not surprising that no Code of Service Discipline charges were laid.  Yet an Administrative Review was conducted, leading to a compulsory release.

Perhaps one of the most ludicrous things I have read in an Administrative Review was that a CF member was found ‘guilty’, on a balance of probabilities, of a Criminal Code offence, within an Administrative Review.

And even if these administrative processes did not suffer from evidentiary deficiencies – and many of them do – certain administrative processes themselves suffer from a significant procedural deficiency.  Administrative Reviews under DAOD 5019-2 are markedly deficient mechanisms for evaluating credibility or conflicting evidence.  There is no means for cross-examination and no mechanism for the decision-maker to test the evidence reasonably.

A disciplinary investigation is not the basis for determination of guilt at court martial, or even a summary trial.  It is simply an indication of the anticipated evidence.  The evidence presented in these disciplinary processes tends to be viva voce evidence from witnesses, or other forms of evidence (documents, video/audio recordings) that are introduced based upon viva voce evidence.  The trier of fact is able to evaluate the credibility of the evidence.  More importantly, the accused is permitted to cross-examine the witnesses who offer inculpatory evidence.  Similarly the prosecutor may cross-examine witnesses who offer exculpatory evidence.  Cross-examination is one of the chief tools used to assist an adjudicator to evaluate evidence, particularly where conflicting evidence is presented.

Those mechanisms are absent from an Administrative Review.

Not that it matters – the analysis of evidence in most Administrative Reviews (and in the synopses presented to respondents prior to the DMCA decision) are often simplistic and rely heavily on assertion (rather than evaluation of evidence) and boiler-plate language.  There is remarkably limited analysis, even where the respondent offers evidence that contradicts the evidence brought against him.

While the process established for Harassment Investigations under DAOD 5012-0 and the Harassment Prevention and Resolution Instructions might not rise to the level of a prosecution at court martial in terms of offering the respondent ‘full answer and defence’, it is remarkably superior to an Administrative Review as a process for obtaining and evaluating evidence.

So why do these circumstances continue to arise?  Why are disciplinary investigations increasingly being used for administrative processes, and not disciplinary prosecutions?

You’ve likely guessed by now: Because rules are for Corporals, not for Colonels.

More specifically, if a Code of Service Discipline charge is laid, the accused will benefit from the safeguards I mention above.  If they have the right to elect trial by court martial, they will benefit from:

• Full disclosure;
• Representation by legal counsel;
• Trial before an independent and impartial adjudicator; and
• A process that is not controlled by the chain of command.

 

In a politicized environment in which the CDS is desperate to demonstrate all that he and his subordinates are doing to eliminate sexual misconduct, is it any wonder that they are increasingly resorting to administrative processes which:

• Might not provide full disclosure (and often do not);
• Requires the respondent to pay for legal counsel out of pocket (and in which legal counsel are not permitted to represent the respondent directly);
• Are not presided over by an impartial and independent adjudicator (and, frankly, it is debatable whether statutory decision-makers demonstrate the requisite ‘open mind’);
• Are neither public, nor transparent; and
• Typically offer limited analysis or reasoning in rendering decisions.

Likely the single most significant factor that influences the extent to which the chain of command is disinclined to ensure that the process is fair and transparent is that DMCA and other statutory decision-makers know that their decisions will not be subject to judicial scrutiny.  Any decision by DMCA – including a decision to order compulsory release – or any other statutory decision-maker will first have to be reviewed through the CF grievance process.  This insulates many (but not all) of the deficiencies in the Administrative Review process.  It certainly leads to a culture of impunity.

 

Conclusion

I fully acknowledge that there is more than a hint of sarcasm in some of the passages above.  If I convey a degree of scorn in these passages, it is not without reason.

Time and again, CF members have been subject to significant adverse administrative action by statutory decision-makers who, objectively, pursue certain end-states with an air of impunity.  They are able to do so because they know that their decisions and actions are not immediately subject to public scrutiny.  They are able to act with impunity because a constitutionally independent judge is not adjudicating the merit of their analysis or their application of law and policy.  They are able to do so because they know that they hold all the cards and control not only the immediate decision-making process, but also the grievance process that is, generally, a CF member’s sole recourse to obtain a remedy to improper decision-making.  And that grievance process can be exhausting and time-consuming for the CF member and is not conducted before an independent decision-maker.  Quite frankly, there are times when I am not convinced it is even conducted before an open-minded decision-maker.

And even if a CF member demonstrates the resolve to pursue a fair and just outcome in an Administrative Review, and, subsequently, through the 2-tiered grievance process, there is no guarantee of a just result, particularly if the matter arises within the politically charged environment of Op HONOUR.  If the CF member does not obtain justice from the grievance process, he or she can seek judicial review.  However, in the event that the CF member is able to demonstrate that the decision of the final authority is unreasonable or lacked sufficient justification, the most that the CF member can typically expect is to have the final authority’s decision quashed and remitted back to the final authority for re-determination.

That is cold comfort for a CF member who did not obtain a just outcome from the final authority in the first place.  It’s particularly frigid comfort if the impugned decision that is the object of the grievance was an order for compulsory release and if the grievance process took 3 or more years to resolve the issue.  Remember: members of the armed forces are not in ‘privity of contract’ with Her Majesty and, therefore, cannot obtain damages for an unjust compulsory release.  Even if the CF member is successful with judicial review, the outcome is essentially a ‘mulligan’ for the chain of command.

That is why impunity and hypocrisy in statutory decision-making in the administration of the affairs of the Canadian Forces are unacceptable.  That is why a double standard regarding who should follow the rules is unacceptable.  That is why it is unacceptable to follow an approach in which rules apply only to Corporals, and not to Colonels.

All statutory decision-makers in the Canadian Forces, from the CDS down, have an obligation not only to comply with the law, but to uphold the Rule of Law.  I am well aware that such a perspective denotes an ideal.  Not all CF statutory decision-makers will uphold the Rule of Law.  Not all of them will recognize this principle in all that they do.

Ultimately, that is why someone in the Canadian Forces must stand up for the Rule of Law in administrative decision-making.  Military justice must necessarily mean more than the application of the Code of Service Discipline.  From my perspective, there is a statutory actor whose position outside the chain of command permits that statutory actor to safeguard the Rule of Law in the administration of the affairs of the Canadian Forces.

Someone needs to demonstrate that rules are for everyone, not just Corporals.

From my perspective, it is obvious who is in a position to do so.