A Word or Two About the DND/CF Ombudsman
February 12, 2021
What could the Minister of National Defence have investigated?
March 13, 2021

Some Observations on Recent Developments in the Canadian Forces

 

Allegations and Speculation

There has been a great deal of focus over the past couple of weeks on allegations of misconduct by select senior officers of the Canadian Forces (CF) – notably the former Chief of the Defence Staff (CDS), General Jonathan Vance, and, more recently, the current CDS, Admiral Art McDonald.  And to be clear – that is what we are dealing with at this point: allegations.  There has been a great deal of speculation about underlying facts and potential motives behind the actions and decisions of various statutory and constitutional actors and decision-makers.

Frankly, there is a lot more that the public does not know than what it does know.  Allegations have been made regarding General Vance, who has yet to have an opportunity to offer full answer and defence to those allegations.  His successor, Admiral McDonald, has ‘stepped aside’ from his position as CDS after just 6 weeks in the position.  Unspecified allegations have been mentioned – with a suggestion that they relate to sexual misconduct – however, the public knows even less about those allegations than what has been suggested regarding General Vance.

These allegations have prompted investigations by the Canadian Forces National Investigation Service (CFNIS).  Curiously, it appears that the Military Police General Occurrence (GO) file number regarding the investigation of Admiral McDonald was leaked to various news media.  It is not clear who leaked that information.

In addition to the CFNIS investigations, the House of Commons Standing Committee on National Defence has initiated an inquiry into the handling of the allegations against General Vance and, at least superficially, into steps that the CF has taken, and could take, in addressing sexual misconduct and other abuses of power in the CF.

There has been a great deal of speculation regarding a variety of facts relating to the specific allegations – particularly those against General Vance – as well as how those allegations may have been addressed in the past.  However, there has been relatively limited factual information presented publicly, and none of that information has been subject to the sort of testing and examination that would arise before a constitutionally independent court or tribunal.

There has also been limited commentary regarding the relevant legal framework or processes that are, or could be, applied to these circumstances.

I will not speculate regarding facts.  [NB: This Blog post was drafted prior to the appearance of the former DND/CF Ombudsman, Gary Walbourne, before the Standing Committee on National Defence on 3 March 2021.]  What I will present here is commentary on some of the legal processes and issues that have arisen or been identified regarding these matters.

 

Scope of Discussion

I proposed to address the following issues in this Blog:

  1. I will offer some observations about the nature and impact of the allegations that have been raised in the news media. In particular, I will address whether the allegations raised against General Vance fall within the ‘sexual misconduct’ as defined by the relevant CF policy.
  2. I will then discuss the nature of the position of CDS: Who appoints the CDS, and what impact does this have on who can remove a CDS?  Can a CDS be suspended?  What does it mean that Admiral McDonald has ‘stepped aside’?
  3. Finally, I will discuss the relevance of Boards of Inquiry at this stage in the process. Could the MND have ordered a Board of Inquiry to investigate the allegations against the former CDS, General Vance?  Should he have done so? What problems may have arisen if he had done so?

 

Allegations

Very little is known about the allegation(s) brought against Admiral McDonald, other than that there has been an allegation from a complainant and that there are purportedly other witnesses who have come forward.  The CFNIS is investigating.

More has been made public about the allegations against General Vance.  Based upon what has been reported in the news media, I have not noted any allegations that would amount to a Criminal Code[1] offence. There have been two distinct allegations raised against General Vance, principally by Global News. These two allegations may be summarized as follows:

  • Allegation #1: General Vance purportedly had an ongoing, and undeclared, consensual romantic relationship with a CF officer of lower rank; and
  • Allegation #2: General Vance purportedly made an inappropriate sexualized remark to a non-commissioned member (NCM) who had sought advice from him.

 

Most of the discussion in the news media has focused on the first of these allegations.

Neither of these allegations would appear to constitute a criminal offence.  One or both could, potentially, constitute a Code of Service Discipline offence under section 129 of the National Defence Act [NDA] if General Vance contravened “… any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof …”[2].  Specifically, he potentially could have contravened DAOD 5019-1 Personal Relationships and Fraternization (Allegation #1) or DAOD 5012-0 Harassment Prevention and Resolution (Allegation #2).  And contravention of either of these Defence Administrative Orders or Directives (DAOD) need not necessarily be dealt with as a Code of Service Discipline offence.  There are administrative measures that can be used regarding contravention of such directives, including Remedial Measures under DAOD 5019-4.  However, where the CF member involved is the CDS, that can be problematic.

At present, not all relevant information regarding these allegations is known, and none of it has been tested before a court or a military tribunal.  As I discussed in a previous Blog article, due to a variety or procedural barriers, it is unlikely that General Vance could be prosecuted before a court martial.

Notwithstanding that the term ‘sexual misconduct’ has been repeatedly invoked regarding these allegations, some clarity is called for regarding the use of that term as it is defined under CF policy, particularly the now-cancelled DAOD 5019-5 Sexual Misconduct and Sexual Disorders, and the current DAOD 9005-1 Sexual Misconduct Response.

The timeframe of allegations against General Vance appears to have pre-dated the publication of DAOD 9005-1 on 18 November 2020.  Again, not all relevant details are publicly known.  Consequently, the applicable policy would likely be DAOD 5019-5, which is no longer publicly available.

DAOD 9005-1 defines ‘sexual misconduct’ as:

Conduct of a sexual nature that causes or could cause harm to others, and that the person knew or ought reasonably to have known could cause harm, including:

    • actions or words that devalue others on the basis of their sex, sexuality, sexual orientation, gender identity or expression;
    • jokes of a sexual nature, sexual remarks, advances of a sexual nature or verbal abuse of a sexual nature in the workplace;
    • harassment of a sexual nature, including initiation rites of a sexual nature;
    • viewing, accessing, distributing or displaying sexually explicit material in the workplace; and
    • any Criminal Code offence of a sexual nature, including:
      • section 162 (voyeurism, i.e. surreptitiously observing or recording a person in a place where the person exposes or could expose his or her genital organs or anal region or her breasts or could be engaged in explicit sexual activity, or distributing such a recording);
      • section 162.1 (publication, etc., of an intimate image without consent, i.e. publishing, distributing, transmitting, selling or making available an intimate image of another person without their consent, such as a visual recording in which the person depicted is nude, exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity); and
      • section 271 (sexual assault, i.e. engaging in any kind of sexual activity with another person without their consent). (Defence Terminology Bank record number 43247)

Note – Brief summaries of sections 162, 162.1 and 271 of the Criminal Code are provided above strictly for the convenience of readers. The actual sections in the Criminal Code should be consulted for all elements and other provisions of these offences.

 

However, this was not the applicable definition prior to 18 November 2020.

DAOD 5019-5 (which superseded Canadian Forces Administrative Order (CFAO) 19-36 Sexual Misconduct) defined ‘sexual misconduct’ as:

Sexual misconduct consists of one or more acts that:

    • are either sexual in nature or committed with the intent to commit an act or acts that are sexual in nature; and
    • constitutes an offence under the Criminal Code or Code of Service Discipline (CSD).

Note – Sexual misconduct includes offences such as sexual assault, indecent exposure, voyeurism and acts involving child pornography.

 

It also defined ‘Conduct Deficiencies of a Sexual Nature’:

Other conduct deficiencies of a sexual nature, dealt with at the unit level through the CSD or administrative action, or both, include, but are not limited to:

    • any sexual act between consenting adults in circumstances prohibited under the authority of the CSD;
    • any harassment in the form of sexual harassment that is prohibited under DAOD 5012-0, Harassment Prevention and Resolution;
    • any fraternization or a personal relationship involving an inappropriate sexual act between consenting adults that is prohibited under DAOD 5019-1, Personal Relationships and Fraternization; or
    • any use of ONO and CF electronic networks or computers, to access or distribute any material whose focus is pornography, nudity or sexual acts involving adults over age 18, that is prohibited under DAOD 6002-2, Acceptable Use of the Internet, Defence Intranet and Other Electronic Networks, and Computers.

 

If we were to apply the current DAOD 9005-1 to what is known about the allegations against General Vance, Allegation #2, if proven, would likely constitute sexual misconduct (at the lower end of the spectrum of the prohibited conduct) and Allegation #1, if proven, would not constitute ‘sexual misconduct’.

However, as I say, DAOD 9005-1 has only been in effect since 18 November 2020, and prohibitions created by CF policies cannot be applied retroactively under s 129 of the NDA.

If we were to apply DAOD 5019-5, as it existed prior to 18 November 2020, we would again conclude that Allegation #2, if proven, would likely constitute ‘conduct deficiency of a sexual nature’ and sexual misconduct, albeit at the lower end of the spectrum.  (And, again, I emphasize that very few facts have been presented to the Canadian public.)  An inappropriate sexualized comment made in the workplace by one CF member to another CF member, where the person uttering the comment knew, or ought reasonably to have known, that it would cause offence, falls within the definition of harassment under DAOD 5012-0.  Workplace harassment is prohibited under para 3.2 of DAOD 5012-0.  Consequently, it could be prosecuted as a Code of Service Discipline offence under s 129 of the NDA.  Workplace harassment of a sexual nature would constitute ‘sexual misconduct’ under what was DAOD 5019-5.

The nature of Allegation #1 is not as clear.  First, despite a great deal of discussion about these allegations, there are very few specific details regarding the nature of the alleged relationship between General Vance and Major Brennan, the officer who alleges that she was in a romantic relationship with General Vance.  Part of the analysis turns on whether they were in a relationship that contravened DAOD 5019-1 Personal Relationships and Fraternization.  Personal relationships between CF personnel are not prohibited, even if they are of different rank.

‘Personal relationships’ are not limited to romantic or sexual relationships.  Under DAOD 5019-1 they include:

An emotional, romantic, sexual or family relationship, including marriage or a common-law partnership or civil union, between two CAF members, or a CAF member and a DND employee or contractor, or member of an allied force.

A parental or sibling relationship would fall within this definition.  Of course, what we are concerned with at present is a romantic and/or sexual relationship.

There are some prohibitions under DAOD 5019-1.  For example, para 4.1 directs that:

4.1 CAF members in a personal relationship must refrain from conduct that may be considered unprofessional in a military context. For example, a CAF member while in uniform in public with another person must not:

a.  hold hands;

b.  kiss, except in greeting and farewell; or

c.  caress or embrace in a romantic manner.

 

Further guidance is offered at para 4.2 of DAOD 5019-1, which states:

4.2 A CAF member in a personal relationship with another CAF member, DND employee or member of an allied force, contractor or an employee of a contractor shall not be involved, regardless of rank or authority, in the other person’s:

a.  performance assessment or reporting, including training evaluations and audits;

b.  posting, transfer or attached posting;

c.  individual training or education;

d.  duties or scheduling for duties;

e.  documents or records;

f.  grievance process; or

g.  release proceedings.

 

Perhaps the most significant direction given regarding these ‘prohibitions’ can be found at para 4.3:

4.3 CAF members must notify their chain of command of any personal relationship that could compromise the objectives of this DAOD.

 

Thus, DAOD 5019-1 offers proscriptions (prohibited conduct), guidance, and prescribed obligations.  The bulk of the direction given under DAOD 5019-1 concerns guidance and administrative intervention where a personal relationship does arise between two CF personnel, particularly where it might be considered an ‘adverse personal relationship’.  Pursuant to Section 5 of the DAOD, an adverse personal relationship is one that “…  has a negative effect on the security, cohesion, discipline or morale of a unit …”.  In the event that an adverse personal relationship arises (and presumably is reported by the two participants in the relationship, pursuant to para 4.3 of the DAOD), administrative action must be taken to separate the two parties.  This separation is not intended to be punitive and there must not be a negative stigma or career implication toward either CF member.

Similarly, administrative intervention is typically required to ensure that personnel who are in a personal relationship are not placed in a circumstance where one of the CF members is placed in direct authority over the other.  Para 4.4 of the DAOD states:

4.4 In order to protect CAF members in vulnerable situations and to ensure fair treatment, restrictions may be imposed on the duty or posting of CAF members involved in a personal relationship if the circumstances could result in:

a.  an instructor/student relationship that would have an effect on the security, morale, cohesion and discipline of a unit; or

b.  a senior/subordinate or inter-rank personal relationship in the same direct chain of command if there is a difference in rank or authority.

 

Although this direction appears to be drafted from the perspective of a personal relationship that pre-dates a posting that would place one CF member in a position subordinate to the other CF member, it could also apply to a relationship that develops during the course of a posting.

Thus, it is not prohibited for one CF member to have, develop, or pursue a consensual romantic or sexual relationship with another CF member.  There is, however, a positive obligation on CF members to “… notify their chain of command of any personal relationship that could compromise the objectives of …” DAOD 5019-1.  That obligation is imposed on both CF members who are a party to a ‘personal relationship’.

The manner in which this obligation is characterized suggests that such notification is not limited solely to cases in which the relationship is clearly one that could compromise the objectives of the DAOD.  In other words, a CF member should ‘err on the side of caution’ and report a relationship if there is a reasonable prospect that it might do so.

Failure to comply with the DAOD could give rise to an offence under s 129 of the NDA.  Potentially, one might challenge whether this obligation was sufficiently precise to justify Code of Service Discipline prosecution.  However, for the sake of discussion, let’s assume that it would.

In order to be ‘sexual misconduct’ under what was DAOD 5019-5, the actions by a CF member must: (1) constitute an offence under the Criminal Code or Code of Service Discipline; and, (2) be either sexual in nature or committed with the intent to commit an act or acts that are sexual in nature.

I suggest that the second criterion would not be met.  Even if the relationship in question were romantic and sexual, it is not the relationship that constitutes the contravention of the DAOD, and, therefore, the offence.  It would be the failure to report the relationship.  And that failure is not ‘sexual in nature’.  Moreover, if both parties failed to report the personal relationship to their chain of command, both parties failed to comply with the DAOD and both, potentially, contravened the Code of Service Discipline.

Consequently, while Allegation #2 may, if proven, constitute sexual misconduct, I suggest that Allegation #1, even if true, does not fall within the definition of ‘sexual misconduct’, either under the now-superseded DAOD 5019-5, or under the current DAOD 9005-1.

Allegation #1 may be characterized as the principal complaint against General Vance.  It is alleged that he had an ongoing romantic relationship with an officer who was junior to him in rank.  There has been a suggestion that, at one point in time, this officer was under his supervision in some manner.  However, based upon the information that has been made public, the specific command relationship that existed at the alleged time is not clear.  Notwithstanding an interview broadcast by Global News on 21 February 2021, there are relatively limited details regarding the specific duration of the relationship, whether it was continuous or intermittent, the specific positions that the two parties held at various points during the relationship, or myriad other potentially relevant facts.

What has been alleged thus far is that there was a consensual romantic relationship between two adults, one of whom held a markedly higher military rank than the other.  There has not been any compelling suggestion that the difference in rank vitiated the consent of the more junior officer to participate in that relationship.

Perhaps, most importantly, only one of the two parties to that relationship has provided any information to the public.  General Vance, who is presently the subject of an investigation by the CFNIS has declined to provide further comment.  It is the right of any person in Canada to decline to provide a public comment or a statement to investigators when she or he is the subject of a police investigation.

The allegations that have been made have not been tested before any tribunal, nor has General Vance yet had an opportunity to make full answer and defence to these allegations.  I have been critical of many of General Vance’s policy decisions and statements in the past.  However, he, like any other CF member accused of wrong-doing, is entitled to make full answer and defence before an independent and impartial tribunal.

In a constitutional Parliamentary democracy governed by the Rule of Law, such as Canada, we do not try people for Code of Service Discipline or Criminal Code offences in the media.  We do that before impartial and independent tribunals and courts, and for good reason.

If, as I have suggested previously, the statutory structure of those courts or tribunals is deficient, then efforts must be made to correct those deficiencies.  But that does not give rise to an alternative system of ‘trial by media’.

 

Nature of the Position of CDS

The position of CDS is created and defined by statute – the NDA.  The CDS is appointed by the Governor in Council and exercises control and administration over the CF.[3]  In practice, the MND will recommend a candidate and the Governor in Council will typically appoint the officer nominated by the MND.  As the CDS is appointed by the Governor in Council, only the Governor in Council can remove an officer from the position of CDS.

There are three positions, or types of positions, created under the NDA, that are appointed by the Governor in Council.  Two are unique positions: the CDS and the Judge Advocate General of the Canadian Forces[4].  The third type of position is Military Judge, which is not limited to a single position.[5]  There is a unique position of Chief Military Judge, who is a military judge designated by the Governor in Council.[6]  This position has been vacant since the last Chief Military Judge retired on 20 March 2020.  The Governor in Council does not appear to be in a hurry to fill this vacancy.

Unlike military judges, who can only be removed from their position upon a recommendation from the Military Judges Inquiry Committee[7], the CDS is a truly ‘at pleasure’ appointment.  In the context of the current circumstances, this is a significant principle.

Traditionally, military positions were viewed as being ‘at pleasure’ appointments.  For over a hundred years the Crown-soldier relationship in Anglo-Common Law Commonwealth nations, including Canada, has been defined by a conclusory analysis in a judgment from Lord Esher, Master of the Rolls:

… the law is as clear as it can be, and that it has been laid down over and over again as the rule on this subject that all engagements between those in the military service of the Crown and the Crown are voluntary only on the part of the Crown, and give no occasion for an action in respect of any alleged contract.

…  whatever means of redress an officer may have in respect of a supposed grievance, he cannot as between himself and the Crown take proceedings in the courts of law in respect of anything which has happened between him and the Crown in consequence of his being a soldier. The courts of law have nothing whatever to do with such a matter.[8]

 

Mitchell v The Queen concerned a retired (half-pay) Lieutenant-Colonel seeking redress for what was essentially a retirement annuity.  Mitchell argued that the amount owed to him under Royal Warrant when he moved to half-pay was higher than what he was being paid.  He argued that he was owed the sum for which he had ‘contracted’.  The Master of the Rolls, the President and senior judge of the Civil Division of the Court of Appeal for England and Wales, held otherwise.

This judgment has resounded through subsequent decades whenever members of Her Majesty’s armed forces have sought redress before constitutionally independent courts.  This rationale has been incorporated into Canadian case law, notably in Gallant v The Queen[9]:

Both English and Canadian Courts have always considered, and have repeated whenever the occasion arose, that the Crown is in no way contractually bound to the members of the Armed Forces, that a person who joins the Forces enters into a unilateral commitment in return for which the Queen assumes no obligations, and that relations between the Queen and Her military personnel, as such, in no way give rise to a remedy in the civil Courts. This principle … was clearly and definitively confirmed in England in the oft-cited case of Mitchell v. The Queen, [1896] 1 Q.B. 121 …[10] [emphasis added]

 

Remarkably, the “oft-cited case of Mitchell v The Queen”, was simply a footnote to a case in which a civil servant, who served ‘at pleasure’, sued the Crown for dismissal.  In Dunn v The Queen[11], the Court of Appeal for England and Wales relied upon Mitchell in support of the conclusion that a civil servant, holding a post ‘at pleasure’, had no right of remedy against the Crown before the courts.

There is a distinction between appointments that are ‘at pleasure’ and those held ‘during good behaviour’.[12]  One of the key distinctions is that a person may be removed from a position held ‘at pleasure’ without recourse to any procedural fairness or assertion of contractual rights.  A person may be removed from such a position summarily.  However, positions held ‘during good conduct’ attract either procedural fairness, contractual rights, or both.

Notwithstanding that, 125 years ago, all military positions appear to have been held ‘at pleasure’, the same cannot be said today.  Certainly, the courts have continued to assert, as was asserted in Gallant v The Queen over 40 years ago, that members of Her Majesty’s armed forces raised in Canada are not in privity of contract with Her Majesty.  That has remained the same over the decades.  However, they are entitled to procedural fairness before being removed, compulsorily, from the CF.[13]

We must also draw a distinction between service in the CF generally and holding specific positions.  Members of the CF who are subject to the exercise of statutory powers by persons in authority over them, will be entitled, generally, to a degree of procedural fairness commensurate with the impact that a decision will have on their rights, interests, and privileges.[14]  A decision to compulsorily release a CF member for a performance or conduct deficiency will give rise to significant ‘content of fairness’.  Placing the same CF member on ‘Initial Counselling’ – the lowest form of remedial measure under DAOD 5019-4 and which does not directly impair career progress – will attract a markedly lower content of fairness.

But decisions pertaining to whether a CF member will continue to hold unique positions are different than decisions regarding removal from the CF.  By way of example: if a commanding officer (CO) is removed prematurely and permanently from a CO position based upon allegations of misconduct – i.e. removal ‘for cause’ – then the CO can expect a robust degree of procedural fairness.[15]  For operational or safety concerns, it may be necessary to remove the CO temporarily, and without the full measure of procedural fairness.  However, such action must truly be temporary (i.e. it must not be a permanent or long-term removal masquerading as a ‘temporary’ removal).  It is the actual nature and impact of the decision, not the label given to it, that determines whether it is temporary or permanent.

There are several reasons for this requirement for procedural fairness:

  1. Most officers expect to serve in that capacity for a specific period of time (e.g. 2 or 3 years);
  2. Service in that role is directly relevant to career progression – officers are subject to selection processes prior to being appointed as CO; and
  3. Such removal is typically done ‘for cause’, even if such terminology is not expressly used.

 

In sum, it is contextually implied that officers serve in such positions ‘during good conduct’.  Certainly, CF policy appears to presume this requirement.[16]

The same is not true for all positions.  Where a position is not subject to ‘succession planning’ or where the occupant of a position may change due to exigencies of the service (e.g. the CF member has been selected for a course, the CF member’s services are required elsewhere) a person may be removed from, or placed in, a particular position.  Absent express provisions in legislation (or in policy) the right of procedural fairness will be driven by contextual factors.

In some cases, specific legislative factors will make it clear that an occupant serves ‘during good conduct’ – in other words, the person may only be removed ‘for cause’.  There are several such examples under the NDA.

Due to the constitutional need for military judges to preside over courts martial in an independent and impartial manner, they may only be removed upon recommendation of the Military Judges Inquiry Committee.[17]

Similarly, the Canadian Forces Provost Marshal (CFPM), the Director of Military Prosecutions (DMP), and the Director of Defence Counsel Services (DDCS) all expressly hold their positions “… during good behaviour …” for terms up to 4 years[18], and may only be removed from their position upon the recommendation of an inquiry committee constituted under the NDA.[19]  These positions benefit from those protections in order to safeguard the independence and impartiality of their roles under the Code of Service Discipline.

Interestingly, the nature of the appointment of the Judge Advocate General (JAG) differs.  While the JAG is appointed for a period “… not exceeding four years …” and may be reappointed for subsequent terms of office, there is neither reference to ‘during good behaviour’ nor to an inquiry committee established to review whether a JAG could be dismissed.[20]  And the JAG’s superintendence of military justice[21] ought to be construed as being at least as important to the functioning of the Code of Service Discipline as the roles of the  Canadian Forces Provost Marshal, the Director of Military Prosecutions, and the Director of Defence Counsel Services.  Arguably, in light of the statutory language of appointment, if the JAG were dismissed before the expiration of her or his term of office, an argument could be made that she or he was the only member of the CF entitled to pecuniary damages for premature termination in a position.  And only the Governor in Council could dismiss a JAG.

But note that the foregoing discussion focuses on a particular office, not service in the CF generally.  Like the JAG, the CDS is appointed by the Governor in Council.  Like the JAG, only the Governor in Council could remove an officer from the position of CDS.  But, unlike the JAG, the CDS is not appointed for a set term.  Unlike the CFPM, DMP or DDCS, the CDS does not serve ‘during good behaviour’.  And unlike the CFPM, DMP, and DDCS, there is no inquiry committee established under the NDA to examine whether there is ‘cause’ to remove a CDS.

The CDS truly serves at pleasure and may be removed at the discretion of the Governor in Council.  Removal for cause is not required; neither is procedural fairness.

I mention this because, on Monday 22 February 2021, representatives of the Privy Council Office (PCO) appeared to suggest that the CDS would have been entitled to procedural fairness if, in 2018, the MND had chosen to recommend his removal from that position.  That is not correct.

Certainly, the Governor in Council could have opted to provide procedural fairness to any process that might lead to the removal of an officer from the position of CDS.  There is no prohibition against providing more procedural fairness than is required.  But it was not an obligation placed upon the Governor in Council.

While some Governor in Council appointees may be subject to terms of service that either expressly or impliedly require procedural fairness relating to removal from office or are contractual in nature, or similar to contract, and may thereby be entitled to either ‘notice’ or procedural fairness if they are removed from such positions, the same is not true for the CDS.  The witnesses from the PCO appeared to acknowledge the unique nature of both military service and the position of the CDS specifically.  It may be that, in the course of answering questions from the Standing Committee, they may have selected their terminology in haste.

However, to be clear: under the NDA, the officer holding the position of CDS is not entitled, at law, to procedural fairness, if the Governor in Council chooses to remove him (or her) from the position of CDS.

But what about something less than removal?  Two terms have been used in testimony before the Standing Committee and in the news media: (1) it has been suggested that the Minister could have ‘suspended’ the CDS temporarily; and (2) news media have reported that the current CDS, Art McDonald has ‘stepped aside’ (indeed, some have used the term ‘resigned’).  What, if anything, do these terms mean?

One past example may be illustrative about the awkwardness of using terms that are either imprecise or are not actually defined (directly or inferentially) by or under the NDA – and that is the example of the removal of Vice Admiral (VAdm) Mark Norman from the position of the Vice Chief of the Defence Staff (VCDS) in 2017.  (Although some members of the Standing Committee raised the comparison of VAdm Norman’s circumstances to those of General Vance, that is not the reason why I raise this particular example.  I rely on this example as it, too, involved the use of imprecise language.  As I have said repeatedly in this Blog, ‘words have meaning’.)

Various news media outlets reported on 16 January 2017 the ‘relief’ of the (then) VCDS, VAdm Norman. Lieutenant-Colonel (LCol) Jason Proulx, the spokesperson for the (then) CDS, stated: “The CDS has temporarily relieved the VCDS, VAdm Mark Norman, from the performance of military duty…”. Even the Minister of National Defence used the expression ‘relieved from performance of military duty’ when describing the actions taken by the CDS (General Vance) in removing VAdm Norman from his position.  However, that’s not exactly what the CDS’ letter stated.

The letter, dated 13 January 2017, and reported by several media sources, stated:

Effective immediately and until further notice, Vice-Admiral M.A.G. Norman will not exercise the powers, duties and functions, including command of the Vice Chief of the Defence Staff (VCDS). I hereby appoint Vice- Admiral M.F.R. Lloyd to exercise all of the powers, duties and functions of the VCDS, including command, on an acting basis.

 

There is no mention of Article 19.75 (or Article 101.09) of the Queen’s Regulations and Orders for the Canadian Forces (QR&O).  These ministerial regulations (the former under the administrative volume, the latter under the disciplinary volume) form the basis for the last-resort measure that results in stripping a member of the Canadian Forces, regardless of rank or position, of all military duties.  More particularly, the CDS order clearly indicated that VAdm Norman was removed from his position as the VCDS. Whether he was relieved from performance of military duty was a distinct issue, and was more ambiguous.

So, either LCol Proulx misstated what the CDS had done, or his comments truly reflected the CDS’ intent, but the content of the CDS’ order was deficient. It was not clear at that time which of those two conclusions reflected the reality of the situation.

Moreover, had the intent been to relieve VAdm Norman from performance of military duty in accordance with QR&O article 19.75 (or article 101.09), the CDS would have been obliged to provide VAdm Norman with sufficient reasons for his actions, and an opportunity to make meaningful representations, as is required under sub-article 19.75(6) (or sub-article 101.09(5)).

In retrospect, it now appears (although it remains uncertain) that the CDS removed VAdm Norman from his position as VCDS and assigned no further duties.  While the CDS’ actions may have had a similar practical effect to ‘relief from performance of military duty’, it appears that the CDS had relied on neither article 19.75 nor article 101.09 of the QR&O.  Although the position of VCDS is created, expressly, by the NDA, the appointment of an officer to that position falls within the CDS’ authority.

And that is one of the principal distinctions that can be drawn between the actions taken in 2017 concerning VAdm Norman, and any actions that could have been taken regarding General Vance when he was serving as CDS.

The CDS had the authority to relieve VAdm Norman from performance of military duty.  The CDS would have been obliged to comply with QR&O art 119.75 or 101.09, but he clearly had that authority.  He also had the authority to remove VAdm Norman from his position as VCDS.  It would have been more helpful if he had been clearer about what, precisely, he was doing, and under which specific authority he was acting; however, both of those options were available to the CDS.

Actions taken regarding the officer holding the position of CDS are markedly different.  He has control and administration of the CF.[22]  There is no CF officer who has supervisory duties over the CDS and who can exercise any powers or functions under QR&O 19.75 or 101.09.[23]

The Governor in Council appoints an officer to the position of CDS; the MND cannot remove that officer from the position of CDS.  Neither can the MND exercise powers and functions under either art 19.75 ort 101.09 of the QR&O to relieve the CDS (or any other officer) from the performance of military duty.

Neither the NDA, nor the QR&O, nor the DAOD mention a power to ‘suspend’ a CDS.  The manner in which it has been used suggests that it might have the same impact as ‘relief from performance of military duty’.  It is not clear what might be meant by this term.  In any event, since the CDS is appointed by the Governor in Council, no lesser authority may remove the officer appointed to that role.  While the CDS is subject to the Minister’s direction when the CDS ‘controls and administers’ the CF, that does not convey on the MND, a power granted by the same statute to the Governor in Council.

Thus far, we have discussed the steps that may be taken to remove an officer from the position of CDS.  However, can an officer ‘step aside’ or resign from that position?

It is unclear what is meant by the term ‘step aside’.  It would appear that Admiral McDonald is voluntarily, and temporarily, ceding control and administration of the CF while he is being investigated by the CFNIS.  In effect, he is ‘relieving himself’ of performance of military function in the absence of any officer with such power to do so.  Arguably – albeit in a perverse way – pursuant to article 101.09 of the QR&O the CDS may relieve himself of performance of military duty if he concludes that he may have committed an offence under an Act of Parliament (and a Code of Service Discipline offence is such an offence) and an investigation has been commenced.  I doubt that the CDS went through such mental gymnastics; rather, it appears that he opted simply to use the term ‘step aside’ to convey that he would not exercise his powers and functions as CDS.

Clearly, this obviated the requirement for the Governor in Council to take steps to remove him from that position, and also permitted the MND, pursuant to his statutory management and direction of the CF[24], to appoint an Acting CDS.  I won’t speculate on what discussions may have been held in order to facilitate this voluntary action on the part of Admiral McDonald such that the Governor in Council was not obliged to act.

 

Boards of Inquiry

It has been suggested that the MND could have convened a Board of Inquiry (BoI) in 2018 to investigate allegations of wrong-doing concerning the CDS.

BoI are (and were in 2018) generally prohibited from investigating blameworthy conduct that might constitute a Code of Service Discipline offence.  It should be noted that misconduct under the Code of Service Discipline goes beyond criminal misconduct.

By way of example, a requirement to identify blame or responsibility for BoI into death or injury was expressly removed from articles 21.46 and 21.47 of the QR&O in 2009.

As well, DAOD 7002-1, Boards of Inquiry, states:

2.5 A convening authority shall not convene a BOI if any purpose of the BOI is to obtain evidence relating to a potential breach of the Code of Service Discipline or to assign criminal responsibility.

2.6 The purpose of a BOI shall be ascertainable from its convening order and the conduct of its proceedings.

2.7 The convening order for a BOI shall not call for the assignment of criminal liability with respect to a specific person whose conduct is to be examined. If the BOI compels a person to testify, the evidence obtained from that person shall be relevant to a purpose other than to compel that person to give self-incriminating evidence.

2.8 If it is determined that a BOI cannot be completed without receiving evidence that relates to the commission of an offence:

    • the president of the BOI shall adjourn the BOI and notify the convening authority; and
    • the convening authority shall refer the matter to the nearest JAG representative for legal advice.

 

Since the significant reforms of 1998, no BoI has been convened with a Military Judge at its head.

Not only would a BoI be (and have been) prohibited from investigating a Code of Service Discipline offence, it could have interfered with any Code of Service Discipline investigation if had been conducted prior to, or in parallel with, a disciplinary or Military Police investigation.  Phillips v Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 SCR 97 is clear on the need for procedural safeguards when such investigations are conducted in parallel.  Even now, if a BoI were convened in parallel with the current CFNIS investigation, it would likely have to suspend any functions until the CFNIS investigation is completed.

As I have mentioned in a previous Blog article, if charges are laid against General Vance (or, now, Admiral McDonald), it will likely be practically impossible to convene a General Court Martial to preside over either of those matters.

If the MND were to conclude that there is significant practical and legal uncertainty that a Code of Service Discipline prosecution could ever proceed, it would be open to the MND to determine that an administrative investigation into what transpired is more vital to maintaining the cohesion, morale, and efficiency of the CF than an investigation into blameworthy conduct.  He could then order a Board of Inquiry to examine not only the specific issues arising in the allegations against General Vance, but also the policies and practices relating to circumstances of abuse of power and related matters.

However, at this point, the utility of a Board of Inquiry may be moot.  I would suggest that, in light of issues arising from what the MND, DM, PCO and PM knew, or didn’t know, about both the allegations surrounding General Vance and, now, Admiral McDonald, a Commission of Inquiry under the Inquiries Act, RSC 1985, c I-11, might be a more pertinent recourse for Parliament.  However, that may have to wait until the CFNIS investigations are done.  Moreover, the current minority government would likely not be in favour of such recourse, and it falls to the Governor in Council to cause such inquiries to take place.

 

[1] Criminal Code, RSC 1986. C C-46.

[2] National Defence Act, RSC 1985, c N-5, [NDA] para 129(2)(b).

[3] Ibid, s 18.

[4] Ibid, s 9.

[5] Ibid, s 165.21.

[6] Ibid, s 165.24.

[7] Ibid, subs 165.21(3).

[8] Mitchell v The Queen, [1896] 1 QB 121 (EWCA) [Mitchell].

[9] Gallant v The Queen (1978), 91 DLR (3d) 695 (FCTD) per Marceau J [Gallant].

[10] Ibid, 696.

[11] Dunn v The Queen, [1896] 1 QB 116 (EWCA) [Dunn].  Reference to Mitchell, n 8, is sometimes cited as Dunn v The Queen, [1896] 1 QB 116, 121 n1, as it was included as a footnote.  Mitchell had been decided in 1890.

[12] Wells v Newfoundland and Board of Commissioners of Public Utilities (Nfld.) (1993), 126 Nfld & PEIR 295 (NL SC), aff’d Wells v Newfoundland, [1999] 3 SCR 199.  See also: Reilly v The King, [1934] AC 176, 1 DLR 434, 1 WWR 298 (UK JCPC).

[13] For but one example of this, see: Gerard Jones v Canada (Attorney General), 2007 FC 386.

[14] Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.

[15] CDS Guidelines on Removal from Command, dated 12 December 2001.  For a Command-specific example: Canadian Army Order (CAO) 11-94 Removal or Relinquishment from Command or Senior/Key Positions Within the Canadian Army, re-issued March 2015.

[16] Ibid.

[17] NDA, n 2, ss 165.21(3), 165.31, and 165.32.

[18] Ibid, ss 18.3, 165.1, and 249.18, respectively.

[19] Ibid.

[20] Ibid, s 9.

[21] Ibid, s 9.2.

[22] Ibid, s 18.

[23] It is also worth noting that a military judge, the CFPM, DMP, and DDCS are not subject to ‘relief from performance of military duty’ under arts 19.75 and 101.09 of the QR&O.

[24] NDA, n 2, s 4.

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