Minister of National Defence’s Panel on Racism – What it is, and what it is not …
December 21, 2020

Some unsolicited advice for the incoming Chief of the Defence Staff …

 

Admiral McDonald:

First, let me again congratulate you on being named the 18th Chief of the Defence Staff (CDS).  It is a great accomplishment, and I genuinely and sincerely wish you the best of luck in your new position.

That said, I thought that, on the eve (more or less) of the date on which you will assume command of the Canadian Forces – or, to put it in more precise statutory terms, the date on which you will assume control and administration of the Canadian Forces[1] – I thought that I might offer you some suggestions and observations.

I know – you have the Judge Advocate General (JAG) of the Canadian Forces and the entire Office of the JAG to provide you with legal advice on military law[2], as well as the Office of the Department of National Defence and Canadian Forces Legal Advisor (DND/CF LA) to advise you on legal matters that fall outside the remit of the JAG[3].  Plus, in a ‘Two-for-One’ sense, you have both the OJAG and DND/CF LA to advise you on areas of law where those two organizations disagree on who should advise you.

But I thought that I might nevertheless offer some unsolicited advice.  And, no, this advice is not subject to solicitor-client confidence …

 

Statutory Decision-Makers

You are a statutory actor and decision-maker.  You have been a statutory actor and decision-maker throughout your career.  But now you’re THE statutory actor and decision-maker of the Canadian Forces (CF).  And as a statutory actor and decision-maker, you are required to be fair in the processes you use for the control and administration of the Canadian Forces and substantively reasonable.  So are your subordinates.  It would be great if you could reinforce that point with those subordinates.

And statutory actors and decision-makers must function within the scope and authority of the statute (or statutes) that empowers them.  I am confident that, even if you were not aware of this before, you are aware of it now.  Particularly in light of the purported change of rank designation for Ordinary Seaman, Able Seaman, Leading Seaman and Master Seaman, which did not actually comply with what is established at section 21 of the National Defence Act.  I am confident that you now know that neither you, as Commander of the Royal Canadian Navy, nor the CDS, had the authority to change those rank designations by CANFORGEN.  That authority lies with the Governor in Council.  And if the Memo to Cabinet for the change of rank designations has not been staffed, you may want to get someone working on that ASAP.  After all, consistent with the statements from your Deputy Commander last July, if you cannot live by or support the rule of law, then you cannot defend it.  And if we have learned anything from our neighbour to the south over the past week, defending the rule of law is vital to defending a democracy.  Wouldn’t you agree?

I suppose that I could offer commentary on the requirement for procedurally fair, open-minded, substantively reasonable, and evidence-based decision-making.  But I have already done so here, here, here, and here (to name but a few examples).  I suspect that any reasonable person reading those blog articles will get my point.

 

Proper Use of Policy Instruments

And speaking of CANFORGENs, may I suggest that the CF stop using them as policy instruments?  After all, they are not intended to be used as such.  They are not easily researched by the personnel who must follow and enforce them.  And, while some of them can be accessed via ‘apps’ outside the Defence Wide Area Network (DWAN), that falls short of being notoriously published.  And notorious publication is a vital aspect of CF policies if you want them to be enforceable in a meaningful manner[4].  But, really, the central issue is that CANFORGENs ought not to be used for a purpose for which they were not designed.  You are an experienced commander, so I know that I do not need to explain the concept of ‘the right tool for the right job’.  The point is that CANFORGENs were created to be a message system.  They are a useful tool to announce policies and policy changes across the CF.  They are markedly less well-suited to function as the actual policy instruments.

Less problematic – but still a problem – is the use of Operations Orders as policy instruments.  However, I suggest the same principle applies.  I get it: it sounds really cool to characterize a significant policy initiative as an ‘operation’, particularly where a principal purpose of a policy initiative is to respond to criticism by the news media.  But I think you would agree that a policy of indeterminate duration is not well-suited to being called an ‘operation’ or being governed by an operations order.  That is also problematic if the ‘operation’ has as its end-state an outcome that is not objectively attainable – particularly when the author of the operation acknowledges that the stated objective is intentional hyperbole.  So, my suggestion is that you use the existing regimes intended as policy instruments in the manner for which they were designed and avoid using mechanisms that are not policy instruments as ‘ersatz’ policy instruments.

 

Boards of Inquiry

You might want to turn your mind to Boards of Inquiry – in particular, circumstances for which Boards of Inquiry are well suited, but where they are not used.  If the general consensus is that Boards of Inquiry are not ‘fit for purpose’, you may want to make such reform a priority.  If they are ‘fit for purpose’… well … may I suggest that the CF start using them for the purposes for which they were intended, and not solely for inquiry into non-combat deaths?

 

Military Judges

And, speaking of boards, commissions, and other tribunals, you might want to reconsider the position your predecessor took on military judges.  Granted, the Court Martial Appeal Court of Canada (CMAC) will hear a series of appeals on 29 January 2021, and their subsequent judgment may well offer a definitive outcome.[5]  In other words, if you don’t fix the problem, the CMAC will fix it for you.  They may even toss in some additional direction for the CF.  And I know that General and Flag Officers do not like to be told by lawyers and judges what they can, cannot, or must do.  But you can fix the issue before that arises.

Your predecessor was bound and determined to exercise disciplinary authority over military judges.  Even when he backed down from his Designation Order of 2 October 2019, he did not really back down.  In his Suspension Order of 15 September 2020, he simply substituted the jurisdiction offered by the Designation Order with the jurisdiction offered by Canadian Forces Organization Order (CFOO) 3763.  Then the CFOO was challenged.  And, eventually, two military judges concluded that he had simply changed the source of the problem, rather than correct the problem.[6]  His response was to hastily issue a flawed CFOO on 18 November 2020, and it appears that problematic CFOO remains in effect.  Essentially, over the course of the past year, your predecessor was subject to increasingly severe ‘judicial remedial measures’ arising from his intransigence on judicial independence.  And the deficiency which those remedial measures addressed remains.

Here’s the thing: how important is it that you (or anyone else) exercise Code of Service Discipline jurisdiction over four military judges, who, themselves, play a vital role in the Code of Service Discipline?  First, as we learned from the failed prosecution of Colonel Dutil, it would be markedly difficult to identify a military judge who could preside over such a court martial.  More significantly, these four officers are not the only officers for whom prosecution under the Code of Service Discipline would be legally or practically problematic.

Consider how the Code of Service Discipline might be applied to: you, as the Chief of the Defence Staff (CDS), the Vice Chief of the Defence Staff (VCDS), other General and Flag Officers, the JAG, the Canadian Forces Provost Marshal (CFPM), or the Director of Military Prosecutions (DMP).  From a practical perspective, none of these officers could be prosecuted under the Code of Service Discipline while they hold those offices.  As CDS, you sit at the apex of the CF.  You have no commanding officer or commander who could refer matters to court martial, and it would be impossible to establish a panel for a General Court Martial.  Arguably, due to limited numbers and potential conflicts of interest, it would be impractical to establish a panel for any General or Flag Officer above the rank of Rear-Admiral or Major-General (and, potentially impractical at that rank level).  Similarly, in light of the JAG’s role in superintending military justice[7], who could advise on charges laid against the JAG?  All prosecutions before courts martial are brought by or on behalf of DMP[8].  Who, then, could prosecute DMP?  Presumably, any Code of Service Discipline allegations brought against the CFPM would be investigated by the CFNIS.  However, the CFPM is responsible for such investigations[9] and commands the CFNIS.

Contrary to assertions by DMP that everyone is equal before the Code of Service Discipline, that is manifestly not the case.[10]  And the role that military judges play in the Code of Service Discipline makes them different.  To coin an expression commonly used in the military milieu: ‘Is that a hill you are prepared to die on?’.  Look at the damage that this year-long feud between the military judges and the CDS (and, frankly, the JAG and DMP) has done to the confidence that members of the CF and the Canadian public have in the Code of Service Discipline.  Instead of digging in your heels, why not find a real solution?  After all, Justice Fish is presently conducting the Third Independent Review of the National Defence Act.  If that isn’t serendipity, I don’t know what is.

Oh, and speaking of military judges, you may have noticed that even though General Vance announced his retirement almost six months ago, he has stayed in his position until you will succeed him on Monday.  In other words, there was not a gap between the outgoing and incoming CDS.  The last time there was a noticeable gap was when Vice-Admiral Murray was Acting CDS for almost a year.  (Coincidentally, he was the last ‘sailor’ to hold the job – sort of).  And that pre-dated even the 1998 reforms to the National Defence Act.  His ‘Acting’ appointment is the reason you are the 18th CDS, and not the 19th CDS.

But here’s the thing: the Governor in Council, who appointed you, also appoints the Chief Military Judge.  The Governor in Council (and the Prime Minister, and the Minister) clearly did not want a gap between General Vance’s retirement and your appointment.  That is understandable.  It could undermine confidence in the CF at a critical period if there were a sizeable gap in time between General Vance’s retirement and the appointment of his successor.

But I suspect you would agree that, at present, the CF is experiencing a crisis of confidence in the Code of Service Discipline.  And part of the reason for that crisis was the intransigence of your predecessor with regard to disciplinary jurisdiction over military judges.  The former embattled Chief Military Judge retired nearly 10 months ago, and there is no indication when the Governor in Council will announce his successor.  This further undermines confidence in the Code of Service Discipline.  Granted, there is a de jure Acting Chief Military Judge[11]; however, that is no more a solution than it would have been to appoint you Acting CDS.  As I note above, it does not fall to you to appoint the next Chief Military Judge.  But, starting 11 January 2021, you will have control and administration of the CF.  This will become your problem, even if it isn’t your responsibility.  You might wish to urge the Minister to urge the Governor in Council to appoint a new Chief Military Judge.

 

Training

You have served in the CF long enough to know that timely and effective training will be part of any solution to problems faced by the CF.  And it must be more than a ‘box ticking’ exercise.  Part of the training solution for the CF must include meaningful training for its leadership, from sub-unit leadership to Commanders of Commands, in the exercise of statutory duties, powers, and functions.  The CF has training regimes for the Code of Service Discipline and Law of Armed Conflict (LOAC), but there is no meaningful training for statutory decision-making writ large.  And, let’s face it, the statutory actors and decision-makers over whom you will exercise control and administration make far more non-disciplinary statutory decisions, than they do decisions under the Code of Service Discipline or LOAC.  And those decisions often impact their subordinates far more significantly.  So why don’t they have the training for these broad and significant duties, powers, and functions?

You will need to ask the JAG.  But you will need to do more than that.  Because her response will likely include a comment that she lacks sufficient resources.  Whether that is truly the case is between you and the JAG.  But I will say this: the Canadian Forces Military Law Centre (CFMLC) can be an effective mechanism to train your subordinate statutory decision-makers.  It can be the ‘ounce of prevention’ that is worth a pound of cure arising from grievances, litigation, and administrative mechanisms that become bogged down in inefficiency and boiler-plate decision-making.  But you and the JAG are going to have to staff the CFMLC with a sufficient number of legal officers with the requisite skill sets and knowledge.

 

Conclusion

I suspect that you may have noticed a trend, not only in my suggestions above, but in my commentary on military law over the past few years.  (Please permit me the egotistical delusion of assuming that you may have read my commentary from time to time.)  That trend focuses on reinforcing respect for the rule of law.  Admittedly, that is my hobby horse – but for good reason.  The armed forces raised by a constitutional democracy – such as the armed forces of Her Majesty raised by Canada[12] – must be governed by the rule of law.  The simplistic – and erroneous – mantra “We’re here to defend democracy, not practice it.” is of little merit or assistance.

Respect for the rule of law is not an issue for lawyers and judges alone.  It is an issue for which all Canadians must be concerned and, ideally, in which all Canadians participate.  In particular, statutory actors and decision-makers who, like you, wield significant powers and have broad and complex duties and functions, must not only abide by and respect the rule of law, they must also instil that respect in subordinate decision-makers and actors.  And, respectfully Admiral, over the past few years there has been a noticeable lack of consistent respect for, and adherence to, the rule of law in the Canadian Forces.  It falls to you, now, to reinvigorate that respect.

 

[1] National Defence Act, RSC 1985, c N-5 [NDA], s 18(1).

[2] Id, s 9.1.

[3] Id, s 10.1.

[4] Id, s 129(2).

[5] Rory Fowler, “Breaking the Deadlock: Independence of the Military Judiciary and the Court Martial Appeal Court of Canada” (January 5, 2021), online: SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3760834>.

[6] R v Christmas, 2020, CM 3009; R v Proulx, 2020 CM 4012; R c Cloutier, 2020 CM 4013.

[7] NDA, n 1, s 9.2.

[8] Id, ss 165 and 165.11.

[9] Id, s 18.4

[10] Rory Fowler, n 5.

[11] NDA, n 1, s 165.29.

[12] Id, s 14.

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