The Arbour Report – Initial Observations      

 

It has been three weeks since the Report of the “Independent External Comprehensive Review into Sexual Misconduct and Sexual Harassment in the Department of National Defence and the Canadian Armed Forces” was released to the public on 30 May 2022.  It had been provided to the Minister of National Defence (MND) on 30 April 2022.

I will refer to this as the ‘Arbour Report’.  “The Report of the ‘Independent External Comprehensive Review into Sexual Misconduct and Sexual Harassment in the Department of National Defence and the Canadian Armed Forces’” is rather long and laborious to write or say and, let’s face it, everyone is referring to it as the ‘Arbour Report’.

I remain inclined to refer to Madame Arbour as Justice Arbour even though it has been several years since she sat on the Supreme Court of Canada and she is, technically, no longer a judge.  However, that particular nomenclature is relevant to a point that I raise below, so I will force myself to use the less formal, though still somewhat formal, nomenclature of Madame Arbour.

Madame Arbour offered forty-eight (48) recommendations in total.  Some of the recommendations may appear to be ‘obvious’ or broadly supported.  Others may be controversial.  Certainly, some of them have already garnered a great deal of controversy.  For example, many ring knockers – sorry, graduates of Military Colleges – have come out to defend their ‘alma mater(s)’ (rather reflexively) against Recommendation #29.  And some of the still-serving officers (particularly senior officers) who defended their alma mater(s) were, in turn, pilloried by certain news reporters for doing so.

We’ll get to those specific recommendations in due course.  There is a great deal to discuss, and, despite the inclinations of certain rent seekers to comment on those recommendations quickly and, supposedly, in a definitive manner, the Arbour Report raises issues that warrant due consideration and deliberate and deliberative discussion.

But, before I delve into specific recommendations, including the merits, advantages, and disadvantages of some of those recommendations, it is worth offering an observation or two on the nature of the ‘Arbour Inquiry’.  After all, the nature of the inquiry is relevant to its recommendations generally.

The Arbour Inquiry is representative of a trend of ‘inquiry’ employed by the Minister of National Defence (MND) recently, and which I consider to be, to an extent, either counter-intuitive to, or dismissive of, the statutory governance of the Canadian Forces and Department of National Defence.

An American colleague recently expressed to me the sentiment: “Canada seems to prepare terrific reports.  But then what? … I don’t understand why Canadian authorities continue to think a problem will be solved simply by drafting a retired judge to prepare a report.” [or words to that effect].

And he has a point.

I have commented previously about the nature of the governance of the CF and DND, often (but not solely) in response to calls for implementation of some sort of Parliamentary Ombudsman (or Ombudsperson, if you prefer such terms) by people who demonstrate either an ill-informed or biased comprehension of Parliamentary and Ministerial responsibility and accountability.

A Comment or Two on the Standing Committee on National Defence, 12 February 2021

A Word or Two About the DND/CF Ombudsman, 12 February 2021

Whither the DND/CF Ombudsman?, 18 March 2021

(It’s) the Impunity, Stupid, 9 April 2021

The MND’s New Policy and the Rule of Law, 19 November 2021

 

So, perhaps, in order to understand the nature of the ‘Arbour Inquiry’, we should return, briefly, to a discussion of governmental accountability and, thus, governance of the CF and DND, generally, before delving into specific issues such as the nature of ad hoc inquiries.

 

Government Accountability and Governance of the Canadian Forces

As we have discussed previously, the Canadian democracy can be described in a variety of ways.  Our nation is certainly described as a democracy, or ‘full democracy’, or even a liberal democracy (provided that discussion is not hijacked by people who do not understand the meaning of the term ‘liberal’ in its non-partisan sense).  Our democracy can be described as a constitutional monarchy, although that can be misleading, particularly when people over-emphasize the importance or significance of the separation of our constitutional head of state from our constitutional head of government.

When discussing governance of the CF, I have tended to favour the description that Canada is a constitutional Parliamentary democracy, predicated upon the concept of ‘responsible government’.  If you wish to split hairs, we could further specify that it is a constitutional Westminster-style Parliamentary democracy, predicated upon the concept of ‘responsible government’.  However, even there, one might be inclined to split hairs further as the Westminster model of Parliament was predicated upon a unitary state, rather than a federal state where powers are divided, constitutionally, between the national Parliament and sub-national legislatures.

So, I will stick with “constitutional, federal Parliamentary democracy, predicated upon the concept of ‘responsible government’”.  If you have your own definition, feel free to visit the comment section below.

Within this structure, in which there is a degree of overlap between the executive and legislative branches of government, a Minister of the Crown, such as the Minister of National Defence, is both a member of the legislature and the executive.  She is a Member of Parliament, where all Members of Parliament are equal in terms of their role as Members of Parliament.  And she is a member of Her Majesty’s Privy Council for Canada – the Governor in Council – the executive branch.

Ministers of the Crown are responsible to Parliament and, when Parliament is performing its functions properly, Ministers of the Crown may be held accountable by Parliament.  This can be particularly true where there is a minority government and the party forming the government does not command a majority of seats in the House of Commons and, therefore, might not necessarily command the confidence of the House.

Usually.

Not so much these days.

Ministers of the Crown may also be held accountable by the Prime Minister.  This is particularly true when, as is presently the case, the Prime Minister centralizes decision-making and the Prime Minister’s Office (PMO) exercises a great deal of control over government decision-making, messaging, and governance in general.

After all, the position of a Minister of the Crown is a position held at pleasure.[1]  While it is a position held, ceremonially, at the pleasure of the Head of State and head of the executive – i.e., the Sovereign (or Her Majesty’s representative, the Governor General) – it is not Her Majesty who decides whether a Minister is appointed or removed.  Hence, when I see people proclaim the importance of the separation of Head of State from Head of Government, I tend to roll my eyes a wee bit.  That decision-making falls to the Prime Minister.  He is most assuredly not the Head of State for Canada.  However, he is the relevant executive decision-maker.

One of my central points here is that, in the form of government that we profess to have, Ministers of the Crown are accountable to Parliament and to the Prime Minister.  What that translates to in practical terms is that, when a Minister fails to perform her or his duties effectively, when she or he becomes a liability – or is perceived to be a liability – the Minister may be demoted or removed by the Prime Minister.  And the perception of ‘ineffectiveness’ or ‘liability’ can be driven by questioning in Parliament.  Where a government does not fear Question Period, a vote of non-confidence, or the displeasure of a disillusioned electorate, perhaps this driving factor is weakened.  Such perceptions can also be driven by reporting in news media, or behind closed doors in a party caucus or the PMO.

As I have observed previously, where a government commands the confidence of the House of Commons – as is typically the case where a political party occupies the majority of the seats in the House – it can be difficult for Parliament to hold Ministers of the Crown accountable for errors or inaction.  Conceptually, where a government does not presumptively command the confidence of the House – i.e., when it forms a ‘minority government’ – Parliament has an opportunity to bring greater pressure to bear, particularly if it precipitates a vote of non-confidence in the House.

If Parliament is unable to do so when a government does not hold a majority of the seats in the House, we need to ask ourselves: where does the fault lie?  With our system of government?  With the MPs themselves?  With an electorate that is disinclined to remove a government that has failed at several governmental tasks or obligations?

It may be that there is plenty of blame to go around.

But the salient point here is that in our current system of government, that is how Ministers of the Crown are held accountable.  It is certainly not perfect.  But I question a rationale that suggests that a specific Minister or a specific Department, or a specific Crown entity requires a different mechanism.  If we do not believe that Ministers of the Crown can be held accountable by Parliament, perhaps the pertinent question to pose is whether our Parliamentary system requires change, rather than creating a Department-specific Ombudsman who purportedly reports to Parliament.  After all, if Parliament cannot hold a Minister accountable, how does Parliament suddenly become reliable because an Ombudsman position has been created?

For the present, however, the MND is responsible for the management and direction of the Canadian Forces and all matters relating to National Defence.  I can make this assertion confidently, because that is precisely what the National Defence Act (NDA) states.[2]  And the NDA is the expression of Parliament’s will under the authority granted to it by section 91(7) of the Constitution Act, 1867.

As I have explained repeatedly in this blog, the exercise of decision-making relating to the Governance of the Canadian Forces is almost always traced back to the NDA – hence, the people making those decisions are statutory decision-makers who are subject to principles of public and administrative law, as well as the relevant legislation and policy created by, or under the authority of, the NDA.

That is not to say that all decisions relating to National Defence are traced back to the NDA.  There are areas of decision-making that invoke Crown Prerogative.[3]  However, in light of the constitutional principle that Parliament may place that Prerogative into abeyance[4], and the fact that a great many aspects of governance of the CF are established in the NDA, the governance of the CF is largely defined by exercises of statutory powers, not Prerogative powers.

 

Boards of Inquiry

And one of those statutory powers is pertinent to our present discussion – specifically, the power to convene Boards of Inquiry:

45 (1) The Minister, and such other authorities as the Minister may prescribe or appoint for that purpose, may, where it is expedient that the Minister or any such other authority should be informed on any matter connected with the government, discipline, administration or functions of the Canadian Forces or affecting any officer or non-commissioned member, convene a board of inquiry for the purpose of investigating and reporting on that matter.[5]

 

So, Dear Reader, ask yourself this: is the investigation and resolution of sexual harassment and sexual misconduct in the Canadian Forces connected to the government, discipline, administration or functions of the Canadian Forces?  Is it something that might affect any officer or non-commissioned member (NCM) of the Canadian Forces?  Is it something about which the MND may wish to be informed?

I’m going to go out on a limb and suggest that most, if not all, of you responded ‘yes’ to all of those questions.  I certainly did.

So, why didn’t the MND convene a Board of Inquiry?

And this isn’t the first time that an MND (or the CDS) has declined to use this statutory tool of inquiry.

The “External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces” – or ‘Deschamps Report’ – was another ad hoc inquiry that was conducted based upon Terms of Reference from the Minister of National Defence.

Hence, my American colleague’s (somewhat facetious) comment: “I don’t understand why Canadian authorities continue to think a problem will be solved simply by drafting a retired judge to prepare a report.”  And he has a point.

And it is not just inquiries conducted by former Puisne Justices of the Supreme Court of Canada – the Special Staff Assistance Visit (SSAV) at Royal Military College of Canada (RMC), producing the “Report on the Climate, Training Environment, Culture and ROTP Programme at the Royal Military College of Canada – Kingston”, dated 10 March 2017, was also an ad hoc inquiry.

What do all of these have in common?

All were ad hoc.  None had any statutory powers of inquiry.

Why is that significant?

Well, to start with, none of these inquiries gathered or tested evidence under oath.  None had the power to compel appearances or documents.

Had they been Boards of Inquiry, they would have been able to do so.

Unfortunately, Boards of Inquiry have been undermined by misconceptions and misrepresentations by various rent seekers.  As a result, they have been marginalized to the point that they are generally used only where they must be used, rather than where they can or should be used.

So, let’s look take a look at Boards of Inquiry and how they can be distinguished from the ad hoc inquiries that have been convened by past Chiefs of the Defence Staff (CDS) and MND.

Boards of Inquiry benefit from four specific powers:

1. They can summon any person before the board and compel the person to give oral or written evidence on oath and to produce any documents and things under the person’s control that it considers necessary for the full investigation and consideration of that matter;
2. They can administer oaths (which is particularly important if they are going to summon people to testify before them);
3. They can receive and accept, on oath or by affidavit or otherwise, any evidence and other information the board sees fit, whether or not the evidence or information is or would be admissible in a court of law; and
4. They can examine any record and make any inquiry that the board considers necessary.[6]

 

In so doing, the Board can conduct robust inquiry into “… any matter connected with the government, discipline, administration or functions of the Canadian Forces or affecting any officer or non-commissioned member …” for which the MND or any other such authority wishes to be informed.[7]

In many ways, a Board of Inquiry can be likened to a scaled down version of a Commission of Inquiry under the Inquiries Act.[8]

So why have they not been used for matters such as this?

I suggest that there are at least three reasons why this is the case:

1. Boards of Inquiry have increasingly been captured by misconceptions regarding their nature and functions;
2. Rent seekers have successfully misrepresented Boards of Inquiry in public commentary; and
3. People misconceive or mischaracterize the utility of ad hoc

 

Misconceptions About Boards of Inquiry

First, when one mentions Boards of Inquiry in the CF these days, I suspect that many may associate them with inquiry into deaths (or injury) of CF personnel, including, but not limited to, suicide.  That is understandable.  There has been a fair bit of coverage of Boards of Inquiry in that context – and not all of it accurate.  And I contend that this factor has contributed to the marginalization of Boards of Inquiry as effective statutory tools of inquiry for the MND and CF leadership.

Certainly, the tragic deaths of four Cadets at RMC this past Spring, focused attention (yet again) on the use of Boards of Inquiry into non-combat deaths of CF personnel. [And, to be clear, lest my comments here be misrepresented, I am not suggesting that those recent tragic deaths at RMC were suicide.]

When a member of the Regular Force, the Reserve Force who is ‘on service’ at the material time, or the Special Force (which is not presently constituted) dies other than as a result of wounds received ‘in action’, a summary investigation or Board of Inquiry must be convened.[9]  Typically, this will be a Board of Inquiry.

Similarly, if an officer or non-commissioned member suffers an injury, other than one received in action, that: (a) a medical officer certifies to be either serious, or likely to cause a permanent disability; or, (b) is suspected to be the result of the officer’s or NCM’s own wilful act, an administrative investigation must be ordered.[10]  That will either be a summary investigation or a Board of Inquiry.

The administrative investigation that is convened, must then produce findings as to: (a) the cause and contributing factors of the injury or death; (b) whether the deceased or injured officer or non-commissioned member was on duty at the time of the injury or death; and (c) whether the injury or death was attributable to military service.[11]  The Convening Authority may – and often will – direct inquiry into other potential findings.

Thus, a Board of Inquiry is largely a fact-finding function.  However, conclusions may be drawn, and recommendations made.  Indeed, Convening Orders will typically ask for recommendations regarding related issues.  However, a Board of Inquiry is not intended to inquire into blameworthy conduct.  If blameworthy conduct is suspected, an administrative investigation should be halted in order to permit the relevant disciplinary investigation to proceed.

Boards of Inquiry may focus on narrow subjects – i.e., the death or injury of a single member of the CF – or they can focus on more complex matters.  However, increasingly, there is appears to be a perception that Boards of Inquiry are, or ought to be, limited only to those circumstances where an administrative investigation is mandatory.

One could argue that a type of ‘cottage industry’ has arisen for Boards of Inquiry and that the focus has devolved to very narrow uses.  Arguably, the focus of the Administrative Investigation Support Centre (AISC), which supports administrative investigations, has been shaped by the tendency to use such investigations for that narrow purpose.

 

Disingenuous Impact of Rent Seekers

The perceived utility of Boards of Inquiry to inform the MND or other authority regarding “…  any matter connected with the government, discipline, administration or functions of the Canadian Forces …” has been further fettered by misrepresentation of the nature of Boards of Inquiry by various rent seekers.

There have been suggestions that Boards of Inquiry, as ‘internal’ (whatever that means) inquiries, cannot be ‘trusted’ (again, whatever that means).  As I have explained above, Boards of Inquiry are statutory inquiries with relatively robust powers to received evidence under oath.  And, if independence and impartiality is vital, a Military Judge may be appointed to conduct a Board of Inquiry with the concurrence of the Chief Military Judge[12] (or, since it has been more than two years since the last Chief Military Judge retired, the Acting Chief Military Judge).

There have also been suggestions that Boards of Inquiry are not fit for purpose.  This suggestion appeared to arise again in the wake of the recent tragic deaths of four Cadets at RMC.  Some people have suggested that a Board of Inquiry is ill-suited to get the answers that families deserve and that consequently, a coroners’ inquest is required.

There is a lot to unpack from such suggestions, including several implicit misrepresentations.

First, the Board of Inquiry that will almost certainly be convened regarding those deaths is not the only investigation that has been, or will be, conducted in relation to those deaths.  Very clearly, a police investigation (conducted by the Military Police, assisted by civilian law enforcement agencies) was conducted first.  This is typical, in order to identify whether any wrongdoing was involved – again, Boards of Inquiry do not inquire into blameworthy conduct.  And the police investigation inevitably would have included detailed accident reconstruction.

Second, notwithstanding the DND/CF Ombudsman’s Report entitled “Families in Focus” – and, equally, some people’s perception or misperception about what that Report stated or its impact on Boards of Inquiry – the statutory purpose of Boards of Inquiry remains what is established by, and under the authority of, the NDA (and which I describe above).  And, specifically, in circumstances described at art 21.46 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), regarding the death or injury of an officer or NCM of the CF, an administrative investigation is mandatory.  These are conducted for purposes relating to the governance of the CF.  While CF authorities and decision-makers are expected to be supportive of family members, Boards of Inquiry are not convened principally for the benefit of families.

Third, there appears to be a misconception over why and when coroner’s inquests are conducted.  The roles and functions of coroners are defined under provincial law, which will vary from province to province.[13]  While there will be a degree of commonality between provinces, the following should be viewed as a very broad and generalized commentary.

The role of a coroner, generally, is to establish who died, how they died, and the manner of death.  Not all inquiry by a coroner will be in the form of an inquest.  Not unlike Boards of Inquiry, a coroner’s inquest serves a public purpose relating to public governance; its principal purpose is not to support families, although, undoubtedly, families can be comforted by the certainty that such investigations may have.  There can be a degree of overlap between the functions of a coroner and of a Board of Inquiry convened in relation to arts 21.46 and 21.47 of the QR&O.  However, they have different purposes.  The Board of Inquiry is convened to inform CF decision-makers regarding a “… matter connected with the government, discipline, administration or functions of the Canadian Forces …”, and, specifically, the factors identified under Chapter 21 of the QR&O, in particular, arts 21.46 and 21.47.  The coroner’s functions serve a provincial purpose under provincial law and focus on matters such as public health and safety.

And, as I indicate above, a coroner’s investigation does not occur in a vacuum.  Using the recent deaths at RMC (Point Frederick) as an example, there was also a (presumably) detailed police investigation, which included an accident reconstruction.  Consequently, those insisting that an inquest – a very particular type of inquiry by a coroner – must or should be conducted, likely misconstrue or misunderstand the role of a coroner.

An inquest is held when there is potentially a public safety issue that is otherwise unaddressed or uninvestigated.  By way of example, if there are concerns that a motor vehicle accident may have been caused by excessive speed, intoxicants, or driver error, and that motor vehicle accident is the subject of a detailed police investigation, including accident reconstruction, then an inquest may well not be required.  Where such factors form part of the police investigation, they are not new and uninvestigated factors.  Nor are they lacking in existing public safety guidelines.

And a coroner is unlikely to conduct an inquest into matters of unique relevance to the governance of the CF and, arguably, that would fall outside not only the statutory mandate of a provincial coroner, but outside the constitutional jurisdiction of provincial law.

I contend that the misrepresentation of the nature and utility of Boards of Inquiry has contributed to a marginalization of their use.  They remain in use where legislation obliges their use; however, this robust tool of inquiry is not used as frequently as it might be.  Not only has its use been marginalized by misrepresentation in public discourse – which the MND and senior CF actors have largely failed to correct – but it appears to have been captured by the compulsory legislative uses described above.

I contend that the focus on inquiry into death or serious injury – and the politicization of such inquiry – have led to an over-emphasis on ‘managing’ this tool within that context.  So much time and effort has been put to justifying the use of Boards of Inquiry for the purposes described at arts 21.46 and 21.47 of the QR&O – which often perpetuates certain myths about such inquiries – that the broader statutory role for Boards of Inquiry has been ignored.

Instead, the Minister and CDS have repeatedly turned to ad hoc inquiries, and the presumed merit of this preference over Boards of Inquiry is dubious.

 

ad hoc Inquiries

In comparison with Boards of Inquiry, these ad hoc processes have no capacity to administer oaths or receive evidence under oath.  They cannot compel the production of documents.  They have no means of compelling attendance.  Nor is there an intrinsic mechanism for testing evidence.

That does not mean that such inquiries are without merit.  They represent one form of gathering and analyzing information.  Certainly, they bear some similarity to the statutory process for the review of the National Defence Act[14], of which the third such review was completed recently by former Justice Morris Fish.  And, as pointed out above, both the Deschamps Inquiry and the Arbour Inquiry were also conducted by former Puisne Justices of the Supreme Court of Canada.

But the perception appears to be that because an ad hoc inquiry was conducted by a former Puisne Justice of the Supreme Court of Canada, the recommendations are sacrosanct.  Indeed, following the release of the Reports for those inquiries, invariably, one of the first questions that was posed by news media to the Minister was: “Do you accept all the recommendations from [insert name of former Supreme Court of Canada Justice here]?” (or words to that effect).  The corollary to that question is then: “If you do not accept one or more recommendations, why not?”

The implication is clear: this is a recommendation from a former Supreme Court of Canada Justice whom you hand-picked to conduct this inquiry – how can you possibly reject her or his recommendation?

One question that never seems to be asked by – or even occur to – the reporters who occupy themselves with such matters is: “Why did you use this ad hoc mechanism, when you could have convened a Board of Inquiry?”  Or: “If a Board of Inquiry is not sufficiently robust, why did you not consider a Commission of Inquiry under the Inquiries Act?”

[And, lest I be misconstrued, I am not suggesting that the Independent Review of the NDA under section 273.601 of the NDA is ad hoc.  It is distinguishable from the Deschamps Inquiry and Arbour Inquiry, as it is expressly mandated under the NDA.  However, their methodologies are not dissimilar.  And one could argue that the tendency to use retired judges for the statutorily required periodic reviews of the NDA, which expressly touch upon judicial and criminal or quasi-criminal processes such as courts martial, have prompted a broader reliance on ad hoc inquiry by retired judges regarding issues of governance of the CF.]

In other words, why have ad hoc inquiries led by retired judges become the presumed ‘gold standard’ for such inquiry?

Again, there can be some misconceptions driving people’s perspectives.

Perhaps these former jurists are viewed as being independent and impartial.  They aren’t – or, at least, no more than any other person.  They no longer benefit from judicial independence.  Many of these former jurists are now counsel (or similar positions) in prestigious law firms.  They are presumably as impartial as any other well-educated person who is experienced in their field.

They bring with them the skills, knowledge, and experience they have gathered over lengthy careers, as well as the skills, knowledge, and experience of the members of their team.  For example, Morris Fish’s team included an accomplished partner from Davies Ward Phillips & Vineberg LLP and Morris Rosenberg, a former Deputy Minister of the Department of Justice (and, therefore, Deputy Attorney General), Deputy Minister of Health, and Deputy Minister of Foreign Affairs (now called Global Affairs Canada).  Objectively, it was a review team with impressive credentials.

And, along with those skills, knowledge, and experience, they will bring their own perceptions and biases.

But the same could be said of any team of accomplished persons.

And, typically, the people conducting these ad hoc reviews have limited knowledge and experience with the Canadian Forces.  There are advantages and disadvantages that arise from that limited experience.  They will not bring biases arising from that prior experience – they will be less likely to view certain aspects of the Canadian Forces as sacrosanct or beyond question.  However, their lack of familiarity with the Canadian Forces can bring with it distinct biases or misunderstanding.

And, again, I note that the inquiry conducted by Morris Fish was expressly mandated under section 273.601 of the NDA, and therefore not, strictly speaking, an ad hoc review.  However, that very broad and general provision does not provide for any express mechanism for review.  And, as I observe above, the use of retired judges for the periodic reviews mandated under the NDA appears to have evolved into a default use of retired judges for all manner of reviews relating to the CF.

By selecting former judges – particularly former Puisne Justices of the Supreme Court of Canada – a Minister may seek to leverage the perception of independence and impartiality.  Unlike the problematic myths that have arisen concerning the supposed unreliability of Boards of Inquiry, the Minister can point to a former judge heading an ad hoc inquiry and state: “See, this is being conducted by an independent and impartial former judge…”, even though the person heading the inquiry is no more (or less) independent and impartial than any other learned person who might be selected for such a task.

And that can be a double-edged sword for the Minister.  After emphasizing the significance of assigning a former Puisne Justice of the Supreme Court of Canada to head an inquiry, it would be very difficult for the Minister to reject any recommendation, regardless of the merit of that recommendation or the evidence or methodology upon which it is based.  It can lead to a perception of ‘unassailability’ of those recommendations.

And that is one of the potential weaknesses of these ad hoc inquiries.  They do not collect and test evidence.  Not really.  They collect information, observations, commentary, and opinions from persons who are, essentially, self-selected contributors.  And, make no mistake, Dear Reader, I number among those self-selected commentators.  The merit and reliability of the information, observations, commentary, and opinions will vary markedly.  And, while the persons conducting these ad hoc reviews will certainly scrutinize the merits of the information, observations, commentary, and opinions that they receive, their means of testing that evidence are limited.

The transparency of these processes is also limited.  There may be compelling reasons for the maintenance of confidentiality, particularly when people are revealing sensitive, personal information.  However, there is a reason why Commissions of Inquiry, like many judicial processes, are conducted in public.  Public scrutiny, particularly when conducted in a well-defined process designed to test the merit of evidence, improves the likelihood of arriving at truth.  Moreover, Boards of Inquiry have the capacity to receive evidence in camera.  Indeed, as indicated at art 21.12 of the QR&O: “Unless the convening authority otherwise directs, a board of inquiry shall exclude from its meetings all persons except: (a) a witness while giving evidence; (b) an officer or non-commissioned member whose presence is permitted under paragraph (4) of article 21.10 (Procedure) or under article 21.14 (When Adviser to Board of Inquiry Permitted); (c) a person whose attendance is required by the president; and (d) counsel while his client is giving evidence.”  Note, too, that a Convening Authority can open the proceedings to the public.

So, while these ad hoc inquires may serve a useful function, I contend that they are not the sole means, or even the best means, of conducting such inquiry.  Other tools are available to the MND and the CF leadership, and when those tools appear to be dismissed or ignored, we would do well to ask why that is.  We would also do well to remind ourselves of the other mechanisms of inquiry that can, and should, be used.

And, as we explore some of the recommendations offered by the Arbour Inquiry, we would do well to remember that, notwithstanding the time, expense, skill, and knowledge that went into producing such recommendations, they are neither binding nor infallible.  They certainly represent thoughtful analysis that is well worth considering.  But it would be an abdication of responsibility (and accountability) by the MND and CF and Departmental leadership if they were to simply accept all of the recommendations as incontrovertible, notwithstanding the pressure of the public news media to treat them as such.

 

[1] National Defence Act, RSC 1985, c N-5, s 4 [NDA].

[2] Id.

[3] Consider: A-LG-007-SLA/AF-002 The Crown Prerogative as Applied to Military Operations.  Unfortunately, in terms of examining the Crown Prerogative in relation to the Canadian Forces, much of the focus of the Office of the JAG has been on ‘operational’ implications, rather than the extent to which it does, and does not, impact on governance issues.

[4] Attorney-General v De Keyser’s Royal Hotel Limited, [1920] AC 508, [1920] UKHL 1; Parliament of Canada Act, RSC 1985, c P‑1, s 4; R v Operation Dismantle Inc., [1983] 1 FC 745 (FCA), 780, aff’d [1985] 1 SCR 441, 464.

[5] NDA, n 1, subs 45(1).

[6] NDA, n 1, subs 45(2).

[7] NDA, n 1, subs 45(1).

[8] Inquiries Act, RSC 1985, c I-11.

[9] Queen’s Regulations and Orders for the Canadian Forces [QR&O], art 21.46.

[10] QR&O, id, art 21.46(3).

[11] QR&O, n 9, art 21.47.

[12] QR&O, n 9, art 21.081.

[13] In Ontario: Coroners Act, RSO 1990, c C-37.

[14] NDA, n 1, s 273.601.