The Canadian Forces and ‘Hateful Conduct’

Over the past couple of days, Canadian media outlets have presented articles concerning the policy on ‘hateful conduct policy’ the Canadian Forces (CF) have unveiled, including this article by the CBC and this article by Global News.

There is a risk that the significance of this ‘new policy’ can be overstated or misconstrued.  Unfortunately, the media have done a less-than-adequate job of informing and educating the Canadian public about this matter.  So, let’s examine it a bit more closely in order to determine what it is, and what it isn’t.

First, it isn’t a new policy, not really.  It can best be described as a new definition inserted into an existing policy, Defence Administrative Order and Directive (DAOD) 5019-0 Conduct and Performance Deficiencies.

As described in DAOD 1000-1, DAODs are the principal policy instruments of the CF and Department of National Defence (DND).  These can be distinguished from statutes (like the National Defence Act) and regulations. DAOD can be divided into ‘policy’ DAOD (typically identified by the “-0” numerical suffix) and ‘instructional’ DAOD.  The former explain the overarching DND and CF position on a specific topic, establishes specific jurisdiction for decision-making, articulates the intended goals, and provides general guidance.  Instructional DAOD will describe the directives and orders necessary to implement the policy.  They are generally more procedural than the policy DAOD and are expected to be read in conjunction with the underlying policy direction in the policy DAOD.  In some cases, a policy DAOD will have several instructional DAOD.  The DAOD 5019 series is one such example.

The DAOD 5019 series concerns various topics relating to conduct and performance of CF personnel (the focus is principally on conduct and misconduct).  While it bears some similarity to disciplinary law and instruments – i.e. the Code of Service Discipline – the policy intent is distinct.  As I have explained previously in this Blog, the DAOD 5019 series can sometimes be abused insofar as it is used as an alternative to the Code of Service Discipline.

The DAOD 5019 series is used to address performance deficiencies and conduct deficiencies relating to misuse of drugs and alcohol, academic misconduct, fraternization and, perhaps most familiarly for Canadians, sexual misconduct.  Each of these subjects are identified in a separate instructional DAOD.  There are also instructional DAOD regarding the administrative process for reviewing performance and conduct deficiencies (DAOD 5019-2) and the remedial measures that may be employed by CF leadership to assist CF personnel in overcoming those deficiencies (DAOD 5019-4).

Interestingly, despite the seeming hoopla about the CF’s ‘new policy’, there was not a new instructional DAOD created for ‘hateful conduct’.  Rather, CF policy makers simply inserted a definition of ‘hateful conduct’ into DAOD 5019-0, the policy DAOD for the 5019 series.

Here is what the definition states:

hateful conduct

An act or conduct, including the display or communication of words, symbols or images, by a CAF member, that they knew or ought reasonably to have known would constitute, encourage, justify or promote violence or hatred against a person or persons of an identifiable group, based on their national or ethnic origin, race, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics or disability.

The CF hasn’t created a new policy to ‘combat hateful conduct’.  It has simply added a definition to an existing regime, which is already used extensively (and, in some cases, misused as an alternative to the Code of Service Discipline).

It is understandable that some people, including CF leadership, might try to characterize the addition of a definition paragraph to an existing policy as a ‘new policy to combat hatred’.  After all, the CF has been subject to scrutiny by the media over the past few months regarding personnel who have had links to what have been characterized as ‘hate groups’.  Whenever the CF is subject to such media scrutiny, there will be a strong urge for CF leaders and policy makers to demonstrate to the media and to Canadians that they are ‘doing something about it’. [Insert image of Tom Hanks with long hair and a beard yelling: “Look – I have made fire!”]

But let’s not over-state or misconstrue what has been done.

The CF has not created a new policy or policy structure for combatting hatred, racism, or discrimination.  That’s because the CF already had the necessary policy structures in place.  This is not unlike the disingenuous comments that the CDS has advanced regarding Op HONOUR.

The CDS introduced his ‘Operational Plan’ for Op HONOUR, touting it as a new tool for combating sexual misconduct in the CF.  However, the CF already had the tools it required under the Code of Service Discipline and the DAOD (e.g. DAOD 5012-0) to combat sexual misconduct.  As military judge, Commander S. Sukstorf, observed in R v Banting, 2019 CM 2009, Op HONOUR did not create any new prohibitions or prescriptions for CF personnel generally, and did not create a new offence:

… the CDS Op Order – Op HONOUR is not the type of order envisaged under subsection 129(2) [of the NDA]. As designed, it is not intended to be relied upon as the basis of a charge. Most noticeably, Op Honour does not provide parameters nor does it create offences. In short, Op HONOUR and its FRAGOs set out clear direction to the chain of command on how to deal with issues of inappropriate conduct in accordance with extant policy and the law. It does not establish new law or policies.

The problem was that CF leaders were not doing their job effectively.  There were not familiarizing themselves with the relevant law and policy upon which they could rely to govern and lead the CF effectively.  Even after Op HONOUR was launched, these same leaders focused on the Op Order, and not the existing policy infrastructure for addressing discipline and conduct.  This continuing misunderstanding has required people like Commander Sukstorf to explain to CF decision-makers how to use their own legal and policy regimes.

That’s one of the ongoing problems with governance in the CF.  When actions or inaction by CF leaders is scrutinized and criticized, the initial instinct appears to be: ‘What new policy can we design to show that we are doing something about this?’  Often, the more appropriate course of action would be for CF leaders to familiarize themselves with the existing legal and policy regimes and then do their job.

And the actions of CF leaders under Op HONOUR give us an indication of what we can expect with respect to ‘hateful conduct’.  If the CF leadership reacts in a manner similar to Op HONOUR, there will be increasing recourse to administrative tools, rather than the Code of Service Discipline, and a ‘zero tolerance’ approach that could potentially veer into unreasonable decision-making.

And, frankly, that’s what the new definition appears designed to facilitate.

Contrary to what was reported in the CBC article, the definition inserted into DAOD 5019-0 does not bar possible action under the Code of Service Discipline or the Criminal Code.  Not all racist conduct will rise to the level of a criminal act.  Indeed, there are very few actual ‘hate crimes’ established under the Criminal Code.  The offences of ‘advocating genocide’ and ‘public incitement of hatred’ are established under section 318 and 319 of the Criminal Code.

However, what many people likely construe as ‘hate crimes’ are common criminal offences like assault (and the various categories of assault) where the motive for the offence was based upon bias, prejudice or hatred relating to race, ethnicity, religion, sex, sexual orientation, etc.  In those cases, the relevant provisions in the Criminal Code that relate to the ‘hate based’ nature of the conduct are not found in the definition of the offence, but in the sentencing principles under section 718.2.  In effect, by virtue of sub-paragraph 718.2(a)(i) of the Criminal Code, when a criminal act is motivated by bias, prejudice or hate, it is treated as an aggravating factor at sentencing.

This same statutory sentencing principle is incorporated into the Code of Service Discipline at sub-paragraph 203.3(a)(ii) of the NDA.

The applicability of the Criminal Code and the Code of Service Discipline does not change as a result of CF policy makers adding a definition of ‘hateful conduct’ to DAOD 5019-0.  The new definition does not bar the use of the Code of Service Discipline or the incorporation of Criminal Code offences into the Code of Service Discipline.

It does not bar the military police (MP), including the Canadian Forces National Investigation Service (CFNIS), from investigating hate-based misconduct; however, neither does it make it a priority for the MP or CFNIS.

Where a criminal act is perpetrated by a CF member, it certainly doesn’t empower CF leadership to shield the perpetrator from criminal liability.

But not all hateful conduct is criminal.  Most crimes that are characterized ‘hate crimes’ when described in a public forum are criminal acts which were motivated by bias, prejudice or hate.  If a young person is beaten up by a group of other young people because of his, her, or their sexual orientation or sexual identity, many people would characterize that crime as a ‘hate crime’.  Under the Criminal Code, it is an assault (or, potentially, aggravated assault, or assault causing bodily harm).  But when sentencing the perpetrators, the court will recognize the motive for the crime as an aggravating factor.

However, a person calling that young person a hateful name because of his, her, or their sexual orientation or sexual identity is not a criminal act.  Calling someone a epithet based upon one of the characteristics enumerated in the ‘hateful conduct’ definition is hurtful, degrading, unwarranted, and harmful to our society.  However, barring any underlying criminal act or omission, it is not a criminal offence.

The same action arising within the context of the CF, where cohesion and morale is vital to the maintenance of an effective fighting force, can be a breach of discipline.  What the new definition in DAOD 5019-0 could do, particularly in combination with policies like DAOD 5012-0 Harassment Prevention and Resolution, is make it easier for the CF leadership to pursue disciplinary action under the Code of Service Discipline, specifically section 129 of the NDA.

However, I return to my earlier observation that this new definition appears principally to be designed to ‘demonstrate that the CF is doing something’.  After all, just as DAOD 5012-0 already created a policy that specifically addressed sexual harassment, DAOD 5012-0 also addresses harassment that is perpetrated based upon other characteristics.

Consider the definition of ‘harassment’ at part 2 (Definitions) of DAOD 5012-0:

Improper conduct by an individual, that offends another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat. It also includes harassment within the meaning of the Canadian Human Rights Act (i.e. based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered). Harassment is normally a series of incidents but can be one severe incident which has a lasting impact on the individual. Harassment that is not related to grounds set out in the Canadian Human Rights Act must be directed at an individual or at a group of which the individual is known by the harassing individual to be a member.

And, notwithstanding that part 2 offers this robust definition, part 3 (Policy Direction) of DAOD 5012-0 also offers further definitions of harassment in para 3.1 (Interpretation):

“harassment” may include the abuse or misuse of authority inherent in the position of an individual;

“harassment” is also any act that involves participation as a result of expressed or implied coercion, and that demeans, belittles or causes personal humiliation or embarrassment at any ceremony or other event, such as an initiation rite;

The new definition in DAOD 5019-0 doesn’t change much.  At best, it reduces to writing in a policy document, a policy expression that has already been captured in other legislation and policy.  It certainly allows CF leadership to hold something up to show the media “Look what we have done!”

The CBC article states: “…  military leaders said the CAF deliberately included racism and discrimination in this policy to address any behavioural problems early, before they escalate to hateful conduct considered an offence under the Criminal Code.”  But, isn’t that why the CF already had DAOD 5012-0?

Frankly, it would not be unreasonable to characterize the CF reaction, and the ‘policy development’, as a bit of a damp squib.

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