Setting Conditions for Failure

Lee Berthiaume, from the Canadian Press, recently published a news report across several news services with the head-line: “Ottawa’s plan to off-load military sexual assault cases sparks feud with provinces”.

Much of the narrative appears to revolve around budget and resources constraints, and some suggest that this is principally a tactic by provinces to seek resources from the federal government.  While there may be merit in that cynical suggestion, the heart of the problem lies with how the decision-making unfolded.  And the blame lies squarely at the feet of the Minister of National Defence (MND).

Back in early November 2021, the MND made the bold, though somewhat ambiguous, announcement that “… sexual misconduct cases will be handled by civilians.”  As I mentioned at the time, that announcement raised more questions than it answered.

What we subsequently learned, with a bit more clarity, was that sexual misconduct cases of a criminal nature (e.g., offences under the Criminal Code) would be transferred to civilian jurisdiction.

Provided that those civil authorities were on board with that decision.

And it seems that this is not always the case.

This is what happens when a federal cabinet minister makes ‘bold’ policy announcements without first ensuring that adequate staff-checks and liaison are conducted.  And it is rather clear that such staff-checks and liaison were not conducted.  Frankly, I doubt that there was much consultation with the relevant organizations within the Canadian Forces, (CF), including the Office of the Judge Advocate General (OJAG), including the Canadian Military Prosecution Service (CMPS), as well as the Military Police.

And the limited internal consultation that did take place was likely a ‘one-way conversation’.  I doubt that the MND asked for options; it is much more likely that she issued direction.  And, frankly, from what I have seen regarding ‘military justice’ over the past few years, I doubt any of the senior statutory actors involved were inclined to ‘rock the boat’ or suggest that the MND was being hasty or imprudent.

Indeed, when the MND made her policy announcement, it appeared that she was issuing direction directly to the Director of Military Prosecutions (DMP) and the Canadian Forces Provost Marshal (CFPM), even though the National Defence Act (NDA) rather clearly requires such direction to flow through the Judge Advocate General (JAG) and the Chief of the Defence Staff (CDS), respectively.

There were, and are, a fair number of indicators that there was insufficient consultation, both internal to the CF and externally with the provinces, before the MND made her announcement.

And, while provincial and municipal police forces, and provincial Attorneys General have concurrent jurisdiction with the CF regarding the investigation and prosecution of criminal offences alleged to have been committed by CF personnel in Canada, the hard truth that the MND is learning presently – and of which she must have been aware last November – is that provincial and municipal police forces, and provincial Crown Attorneys do not work for her.

The MND can ride roughshod over the JAG, DMP, and CF legal officers and the CFPM and Military Police.  She can suggest that they are not fit for purpose while those same stakeholders issue Orwellian statements that the Code of Service Discipline is fit for purpose while simultaneously acquiescing to the MND’s implied conclusion that it is not.  This gives rise to statements like the following from the “Joint Statement of the Canadian Forces Provost Marshal and the Director of Military Prosecutions” on 5 November 2021:

Canadians can and should have confidence in the military justice system.  Canada’s military justice system has evolved to be a full partner in administering justice alongside the civilian justice system. This has been consistently recognized by the Supreme Court of Canada and the successive independent reviews of the National Defence Act.  The military justice system is crucial to the maintenance of discipline, efficiency and morale of the CAF, and now largely mirrors the civilian criminal justice system.

It’s difficult to have much faith in such statements when the decision-makers who are making them – who are supposed to have a modicum of independence form politicized decision-making – are simultaneously acquiescing to political direction of debatable merit.

I would be curious to know – and, frankly, we will likely never know – the extent to which the JAG, DMP, or the CFPM ‘pushed back’ on a hasty implementation of the MND’s policy direction that rather clearly proceeded without adequate initial consultation with provincial decision-makers.  I’d be curious to know if any of these senior statutory actors were inclined to provide the MND with realistic advice, even if she was not inclined to heed it.  I’d be curious to know if any of these senior statutory decision-makers had been willing to take a principled stand – potentially, to resign – if the MND was disinclined to consider their advice on the imprudence of making such an announcement absent adequate initial consultation.

And, unfortunately, I suspect that I can accurately predict the answer to that last question.

Criminal investigations and prosecutions should not be treated as a ‘political football’.  Police and prosecutors enjoy a modicum of independence for this very reason.  Investigations and prosecutions should be driven by principled decision-making based upon due consideration of evidence and the law.  What we are witnessing is the erosion of such principled decision-making in the context of the Code of Service Discipline.

As I have suggested previously, many of these decisions are predicated upon a desire ‘to be seen to be doing something’, rather than making decisions grounded in evidence, consistent adherence to legal principles, and adequate preparation and consultation.  This desire to appease the mob and to respond to the ‘15-second sound bite’ frequently gives rise to poor policy making or implementation.

This is the sort of decision-making that gives rise to sloppy or hastily conducted investigations.  This is the sort of decision-making that leads to prosecution where there is no reasonable prospect of conviction (and, sometimes, no prima facie case).  This is the sort of decision-making that undermines the administration of justice, whether in the military, or the broader community.

And, while it is clear that much of the fault lies with the MND, we should also question whether those stakeholders in military justice, who have been involved in military justice far longer than the MND, were willing to be as bold in advising the MND as she was in issuing her hasty policy announcement.

There is plenty of fault to go around.

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