The JAG’s Application for Judicial Review

 

The morning of Friday, 20 January 2023, the National Post (and other Postmedia Network newspapers) published an article indicating that the Judge Advocate General (JAG) of the Canadian Forces (CF), Rear-Admiral (RAdm) Geneviève Bernatchez had brought an Application before the Federal Court seeking to bar publication of a probe into alleged wrong-doing: Christopher Nardi, “Top military lawyer tries blocking publication of probe into alleged wrongdoing” (20 January 2023), online: National Post.

The article was as interesting for what it left unsaid, and for the conclusions that it did not draw, as it was for the conclusions and observations that it presented.  And, as I suggest below, some of the conclusions that the article presented are debatable.

The discussion below addresses both the issues raised in the Postmedia article as well as a couple of issues that were not raised, but which remain important considerations.  Aided by what has been reported publicly, and my own knowledge of the organization and administration of the CF and the Department of National Defence (DND), I also draw some relevant inferences about this matter.  I conclude with discussion about an issue that was not raised in the Postmedia article, but which might be the most important issue arising in this context.

Specifically, while the application brought by the JAG may present a ‘headline-grabbing’ issue, prompting several pertinent questions, I suggest that the principal question that people ought to be asking is this: in light of the decisions that the current government has made regarding a variety of General or Flag Officers (GOFO), and in light of the circumstances of the allegations against RAdm Bernatchez, why was she re-appointed to the position of JAG at the end of June 2021.

 

What has been reported or is known publicly:

Based upon the Postmedia article and other sources of information (such as the Federal Court website), the JAG filed a Notice of Application before the Federal Court on 18 January 2023.  The contents of the Notice of Application were not publicized.  However, it is a safe assumption that the JAG’s application will seek a writ of prohibition or other interlocutory relief to bar the publication of an ‘internal investigation’ conducted by the DND.  According to the Postmedia article, the JAG alleged, among other shortcomings, that the investigation was “procedurally and judicially flawed”, was “tainted with serious irregularities”, and the decision was “completely unreasonable”.

Among other bases for her application, the JAG asserted that, since her First Official Language is French, a francophone (or, presumably at least, fluently bilingual) investigator should have been assigned to the matter.  She then asserts that the investigation relied upon translations of her written and oral statements that were “riddled with errors” or “incomplete”.  She complained about the delay in informing her of the allegations.  She also asserted that since other bodies, external to the CF and DND (specifically, the Information Commissioner of Canada and the Barreau du Québec), had declined to investigate the same or similar complaints, it was improper for any office within the DND to do so.

The article is hyperlinked above, and you may review it at your leisure.

There are several pertinent points that were not described in the newspaper article.  It did not indicate who had conducted the investigation.  In her application, the JAG alleged that almost all of 16 allegations were determined to be ‘unfounded’.  The one complaint that was ‘founded’, according to the Postmedia article, was that the JAG interfered in the promotion of a subordinate.  The name of that subordinate, and the specific nature of the other allegations, were not described.

The article also quoted one observer as stating that “… the armed forces are in a worse position than [he] thought when one of their most senior officers has to go to [civilian] court to get a sense of justice …”.

 

What are the implications of what was reported?

It would be easy to be glib about this event.  However, there are several pertinent issues that were raised, and this offers an opportunity to illuminate a variety of issues regarding the administration of the affairs of the CF.  Some of those issues were raised in the article, others were not.

But first, it would be useful to draw some logical inferences in order to augment the limited factual detail that was provided in the article.

The investigative agency was not named.  One potential investigative agency is the Military Police.  The Military Police normally investigate only criminal or serious disciplinary misconduct.  And serious criminal misconduct is normally investigated by the Canadian Forces National Investigation Service (CFNIS).  Note, however, that allegations of disciplinary misconduct by a very senior officer – like the Chief of the Defence Staff (CDS) or the JAG – would normally be investigated by the CFNIS even if the allegations were not criminal in nature.  The investigative mandate of the CFNIS extends to alleged disciplinary misconduct by senior officers due to the hierarchical nature of the CF.

Since the Canadian Forces Provost Marshal, Brigadier General Simon Trudeau, was not sounding off with disingenuous conclusions that could be drawn from a military police investigation where no charges are laid and the investigation is not public, it is likely a safe bet that the investigation was not conducted by the Military Police.  Although the JAG also alleged that the investigation took an unreasonably long time, which is a hallmark of Military Police investigations, delay is not unique to the Military Police.

In light of the limited information that is available, it was likely an administrative investigation.  The complainants were described as being the JAG’s subordinates.  They were likely, therefore, legal officers.  Since the subject of the investigation was the JAG, and the complainants were likely legal officers, the investigation could not be conducted by anyone within the Office of the JAG (OJAG).  Such an approach would have been fraught with problems.

The investigation was somehow connected with the JAG’s alleged attempt to suppress or otherwise obfuscate a report regarding the court martial process (the “Court Martial Comprehensive Review”) that had been commissioned by her predecessor and which was prepared by legal officers in the Office of the JAG.  That report was eventually published online (where it was alleged to have been a ‘Draft’) after the controversy broke 5 years ago.

Based upon the article, it appears that the most appropriate characterization of the allegations against RAdm Bernatchez would be ‘harassment’ and/or ‘abuse of power’.  Such allegations, if not investigated as a disciplinary matter, would normally be investigated under DAOD 5012-0 Harassment Prevention and Resolution and the CF Harassment Prevention and Resolution Instructions.

I say ‘normally’, as that is increasingly not the case.  As I have mentioned in this Blog – repeatedly – there is a trend in the CF for allegations of harassment or abuse of power to be investigated by the Military Police, particularly if the allegations include misconduct of a sexualized nature.  When such investigations do not lead to charges under the Code of Service Discipline, (which is a not infrequent circumstance), the CF chain of command then takes adverse action against the subject of the investigation based upon the untested Military Police investigation (the quality of which can vary markedly).  It is not uncommon for the chain of command to fail to disclose the entirety of the investigation (and, sometimes, any of the investigation).  Certainly, in many of these cases, the process described under DAOD 5012-0, which the respondents to such allegations have a legitimate expectation will be used when harassment is addressed ‘administratively’, is not employed by the relevant CF decision-maker.

Since the allegations were brought against the JAG herself, the investigation could not be conducted by anyone in the OJAG.  Also, since the allegations appear to have been brought by one or more of the JAG’s subordinates in the OJAG, it would be problematic for the CDS, or any other senior CF officer, to have directed or ordered the investigation.  Pursuant to art 4.081 of the Queen’s regulations and Orders for the Canadian Forces (QR&O) the JAG has command of the OJAG.  Pursuant to s 9.3 of the National Defence Act (NDA)[1], the JAG is responsible to the Minister of National Defence, not the CDS, in the performance of her duties and functions.

It is not clear to what extent the Minister was informed of the allegations or involved in the investigation.  However, it is unlikely that the investigation would have been conducted by CF officials.  It is much more likely that it would have been a Departmental official.  And the likeliest organization is the Assistant Deputy Minister – Review Services (ADM-RS), formerly Chief Review Services (CRS).  The Directorate of Special Examinations and Inquiries (DSEI) is the appropriate organization to conduct such an inquiry (see: DAOD 7024-0, Disclosure of Wrongdoings in the Workplace; DAOD 7026-0, Administrative Investigations; DAOD 7026-1, Management of Administrative Investigations).  Note, too, that it appears that these were complaints by CF members, not DND employees.  Therefore, notwithstanding that section 1of DAOD 7024-1, Internal Procedures for Disclosure by DND Employees of Wrongdoings in the Workplace states that the DAOD is “… an order that applies to officers and non-commissioned members of the Canadian Armed Forces …”, its application to an officer of the CF is negligible, since that DAOD only describes the application to DND employees (and CF personnel are not DND employees, or employees of the Treasury Board).

Is the fact that the JAG has brought an application before the Federal Court indicative that the CF and it’s administrative and justice systems are a mess?

I think not.

And I am not suggesting that the CF’s administrative and justice systems are free from problems or issues – on the contrary, I have attempted to highlight many issues and problems over the past few years (and will continue to do so).  I simply suggest that the JAG’s decision to seek relief before the Federal Court is not indicative of such issues.

Rather, the JAG is doing what countless other CF personnel, of various ranks, have done in the past when they believed that they were subject to unreasonable or improper statutory actions or decision-making: they brought applications (and in some cases, actions) before the Federal Court.

I would be more concerned if the JAG were able to obtain a remedy without recourse to the courts or other remedial processes, when so many more junior personnel must rely on such a course of action in order to seek review of executive decision-making.  That would be indicative of preferential treatment.  That would highlight the impunity that I have discussed previously.

And, doubtlessly, more than one person who has read the recent news article has likely thought: “Well, why doesn’t she grieve it?  After all, if that is good enough for a corporal, a captain, or a colonel – or even Major General (MGen) Dany Fortin – it should be good enough for the JAG!”

And that is a valid question.  (And, again, one ought to resist the urge to approach this matter with a degree of glibness.)

And it will be interesting if the Attorney General of Canada advances the same type of motion to dismiss that was brought in Fortin v Canada, 2021 FC 1061.  Specifically, they would bring a motion to dismiss based upon the availability of an ‘adequate alternative remedy’.

Presumably, RAdm Bernatchez’ counsel (who was not named in the Postmedia article and, as of the publication of the present Blog post on 23 January 2023, is not listed on the Federal Court website) will defend against any such motion by arguing that the CF statutory grievance process could not possibly form an adequate alternative remedy.  If I am correct, and the investigation was conducted by DSEI, the CDS has no authority over what ADM-RS does with the report.  ADM-RS reports to the Deputy Minister (DM).

However, if the presiding Federal Court judge applies the same rationale and analysis as Justice McDonald in Fortin v Canada, then presumably the presiding judge would grant the Crown’s motion to dismiss.

I would consider such a determination to be vulnerable on appeal, much as I consider the judgment in Fortin v Canada to be vulnerable on appeal.  As I have mentioned previously – Rory Fowler, “MGen Fortin’s Appeal” (3 October 2022), online: Law Office of Rory G Fowler – MGen Fortin alleged that the decision by which he was aggrieved was made by political decision-makers, namely the Prime Minister, and the Ministers of Health and National Defence.  A grievance to the CDS could not possibly have been a reasonable remedy.  And, on such a motion to dismiss, the judge must assume that the pleadings are true.  Putting aside the fact that MGen Fortin presented fairly compelling evidence that the decision-making did, indeed, originate at the Ministerial level, on such a motion, the presiding judge should not weigh the evidence presented for the application.  Rather, the judge must assume that the pleadings are true, and then evaluate whether there is a basis to dismiss the application.

Similarly, with the Application brought by Rear-Admiral Bernatchez, there is likely a compelling argument to be made that the grievance process is not a feasible complaint mechanism.

That does not mean that all of the arguments brought by RAdm Bernatchez (as reported by Postmedia) are compelling.  For example, the fact that the Information Commissioner or the Barreau du Québec opted not to investigate is not determinative (or, frankly, even indicative) of the jurisdiction of DSEI or the appropriateness of an investigation under its mandate.  Similar arguments have been advanced by other CF personnel facing an investigation by a CF or DND organization after another organization has chosen not to investigate.  And, in those cases, CF and Departmental decision-makers informed the CF members that the decision by one investigative agency to take no action does not bar a separate investigative agency from doing so.  And, they have likely provided such a response supported by legal advice from the OJAG.

In the present circumstances, the Information Commissioner of Canada, the Barreau du Québec, and DSEI have different and distinct mandates and purposes.  The Information Commissioner is concerned about the disclosure (or not) of information under the Access to Information Act.  One of the principal functions of the Barreau du Québec is to protect the public against the misconduct of its licensees.  While we do not have many details about the complaints brought against RAdm Bernatchez, the Postmedia article does state that the one complaint that was ‘founded’ concerned the allegation that the JAG improperly interfered with a subordinate’s promotion.  Neither the Information Commissioner nor the Barreau du Québec have a mandate to investigate such an allegation.  However, such an allegation can be investigated under DAOD 5012-0 or DAOD 7024-0 or 7026-0.

RAdm Bernatchez’ assertion that the investigation was flawed also presents an interesting dynamic.  In my experience, I have found DSEI investigations to be more comprehensive and reliable than a great many Military Police investigations that I have encountered.  However, we’ll put that to one side for the moment.  Recalling that (according to the Postmedia article) almost all of the allegations against RAdm Bernatchez were ‘unfounded’, suggesting that the investigation was flawed presents a potentially problematic argument.  After all, one potential conclusion that could be drawn is that any errors generally favoured RAdm Bernatchez as the respondent.  Undoubtedly, that is not what RAdm Bernatchez and her counsel argue in their pleadings; however, it remains a potential conclusion.

I will say this: based upon the limited information that has been reported, it seems to me that the JAG benefitted from more procedural fairness than many CF personnel, of varying ranks, have received over the past few years.  She appears to have benefitted from a lengthy and comprehensive investigation by, presumably, DSEI.  She was not subject to administrative action based upon an untested Military Police investigation that was shoe-horned into an administrative process such as Administrative Review (DAOD 5019-2) and which is not designed to test such evidence.  There is no mention of any alleged discrepancy in disclosure, which is all too common in administrative action against CF personnel.  And it does not appear that the administrative process was used as an improper substitute for the Code of Service Discipline.

And I find it more than a little bit ironic that the JAG – the head of the organization that advises the CF on matters of military law and military justice – is now complaining that she did not receive a fair hearing or adjudication.  Meanwhile, CF decision-makers, advised by her office, have been subjecting more junior personnel (and some senior personnel) to processes that were clearly unfair or based upon processes that were misused.

As I say, it is difficult not to be a little glib in these circumstances.  It is difficult for me not to say: “See, it’s not very pleasant to be subject to decision-making that is not fair and open-minded, is it?  Where was this concern when your office was advising on administrative processes applied to other CF personnel?”

I have said this before: many senior officers in the CF see no problem with the administrative processes that are used (and misused) in the administration of the affairs of the CF, until they are subject to those same processes.  How difficult is it to apply the “Golden Rule’?

 

But what about the issues that are not discussed in the article … ?

To my mind, there are a couple of glaring questions that arise from the article, but which were left unanswered by the limited discussion and analysis presented therein.  One of those questions is: Why did the JAG bring this Application if her concern (or one of her principal concerns) was unwanted notoriety?

And, perhaps the most noteworthy element of this matter was not raised or discussed in the Postmedia article.  And that issue does not concern what the JAG did or has done recently, but what the Minister and the Governor in Council have done, and not done.

I do not know precisely what the JAG was contemplating or what her desired end-state is.  Like everyone else, I am obliged to take her statements at face value.  She indicates that she objected to how the investigation was conducted and its findings.  She also appears to have objected to the announcement for the search for her replacement (either the timing of the announcement, the nature of the announcement, or some other unnamed factor).  And the news article began with the assertion that she was attempting to bar the DND from publishing the report.

Let’s deal with each of those matters.

First, many CF personnel have objected to the conduct of various types of investigations.  However, litigation (or even retaining counsel to assist with the CF’s various remedial mechanisms or administrative processes) can be an expensive undertaking.  And litigation – particularly by a senior CF officer – can attract news media attention.  Therefore, such an option will be pursued typically when the affected CF member has a tangible objective or benefit to obtain from the litigation (or other process).

Consequently, it is not the flawed investigations or processes that trigger such processes.  It is the decision or action resulting from the investigation or process that triggers the litigation.  A CF member won’t spend thousands of dollars challenging an allegedly flawed Administrative Review under DAOD 5109-2 unless that Administrative Review produces a result – a decision or other action – that is adverse to the CF member’s interests.  For example, an Administrative Review that results in a Recorded Warning might give rise to a grievance; it might not.  However, an Administrative Review that gives rise to a decision to compulsorily release a CF member is much more likely to give rise to a grievance and litigation.

So, what was the JAG’s driving motivation?  It could not possibly have been the search for her replacement.  At least, I find it difficult to believe that this, alone, was the source of her motivation.  Surely that was expected.  While some of her predecessors (MGen J.S.T. Pitzul and MGen B. Blaise Cathcart) had, like her, been appointed to second terms as JAG, none were appointed to a third term.  The last JAG that served for an exceptionally long time (i.e., more than 8 years) was Brigadier-General William J. Lawson (who was appointed JAG contemporaneously with the introduction of the ‘modern’ NDA), who served as JAG from 1950 to 1969.  His predecessor, Brigadier Reginald John Orde, had served as JAG even longer: from 1920 to 1950.  But that was a different era.

Unlike MGen Pitzul and MGen Cathcart, RAdm Bernatchez was not appointed to a second 4-year term; she was only appointed to a subsequent 2-year term.  However, she will have been JAG for six years by the time her current mandate expires in June of this year.  That is certainly a lengthy term.  It will certainly ensure that her annuity under the Canadian Forces Superannuation Act (CFSA) will be based upon her salary as JAG (which is typically equivalent to that of a Federal Court judge).

So, she should not have been surprised that the Governor in Council would take steps to seek her successor.  True – it is a bit surprising that the Governor in Council demonstrated the foresight needed to start the process over 6 months before the JAG’s current tenure expires.  This government has a reputation for last-minute decision-making on such appointments.  RAdm Bernatchez was reappointed for her second term as JAG a week before her tenure was set to expire, and there is no evidence that there had been a search for a possible successor prior to her reappointment.  One is left with the impression that, in 2021, the Minister of National Defence procrastinated until there was little option but to reappoint the JAG to a subsequent term.

Note, too, that 20 March 2023 will make the three-year anniversary of the retirement of the former Chief Military Judge, Colonel Mario Dutil.  And, while the Deputy Chief Military Judge, Lieutenant-Colonel L-V d’Auteil has been Acting Chief Military Judge since then, the Governor in Council has failed to designate a new Chief Military Judge for the past 34 months.

Thus, while many of us may be legitimately surprised at the timely foresight of CANFORGEN 186-22 (issued 5 December 2022), that really should not have prompted litigation.  [And, for what it’s worth, that is the proper use of a CANFORGEN – to make announcements for such processes, rather than being used as a policy instrument.]

And, based upon the limited information that has been reported, it does not appear that the JAG was facing ‘early termination’ of her mandate.  Indeed, unlike the positions of the Director of Military Prosecutions (DMP)[2], Director of Defence Counsel Services (DDCS)[3], the Canadian Forces Provost Marshal (CFPM)[4], and even Military Judges[5], there is no process established under the NDA for the removal of the JAG.  Moreover, unlike other Governor in Council appointees, the JAG is typically appointed to a fixed term.[6]  As I have suggested previously, these two factors – the absence of a statutory mechanism for removal from office and the fixed term of the JAG mandate – present an argument that the JAG might be entitled to contract-like damages if her mandate were terminated prematurely, particularly without cause.[7]

However, as interesting as such a theoretical tangent might be in the analysis of the Crown-soldier relationship, nothing has been made public to suggest that the JAG was facing an early termination of her mandate.   (Although, one does wonder about the discussions that may have occurred behind closed doors.)

That leaves the concern about the publication of the report.  And, frankly, that is still somewhat puzzling.  As I note above, this was undoubtedly an administrative investigation.  It would have necessarily involved significant personal information about the complainants, the respondent (the JAG), and even other witnesses.  We don’t really know who was planning on publishing the report or in what form, but, presumably, it would have been fairly cursory in order to protect personal information.  Moreover, the current government takes marked steps to avoid controversy and to limit information that is made public.  Anyone who has filed a request under the Privacy Act or Access to Information Act is painfully aware that the present government is not particularly transparent.  (To be fair, past governments have also been very reluctant to act transparently.  However, the current government campaigned on an unfulfilled promise of transparency.)

Absent clearer information about what the Minister or any other departmental or governmental official planned to do with the report, it does not seem likely that the current government would seek to advertise the fact that their appointee as JAG was the subject of complaints by one or more of her subordinates and that a complaint against her, of interfering with a subordinate’s career, was founded.

And, if, as the JAG alleges, almost all of the 16 complaints against her were determined to be unfounded, how damaging could the publication of a brief and superficial report have been?

Frankly, it likely would have garnered limited scrutiny.  The application brought by RAdm Bernatchez will likely generate more scrutiny than an innocuous report would have done.  If her intent had been to minimize her exposure regarding the allegations against her and the outcome of the administrative investigation, I suggest that bringing an application was not the ideal means of doing so.

And that brings us to what I consider to be a significant issue that was not discussed in the Postmedia article, but which may have occurred to those who have been observing military justice in the CF over the past few years.

If the issues that were investigated (presumably by DSEI) date back to 2017, and were connected to the controversy reported by CTV News five years ago, regarding the alleged attempt by military lawyers to suppress the “Court Martial Comprehensive Review”, then why was the JAG reappointed for an additional 2 years in 2021?

Now, I’m not suggesting that any CF member should be subject to significant adverse actions or decisions when a proper investigation has yet to be concluded.  And any CF member facing adverse action should benefit from a fair and open-minded process in which the resulting decision or action can be justified with transparent reasons.  These Blog pages are filled with such commentary.

However, that has not been the typical response of the present government.  The Governor in Council, the Prime Minister, the Minister of National Defence, and the CDS have removed GOFO from positions and, in effect (if not properly at law), relieved them from performance of military duty, for less.  They have done so before investigations were completed.  They have done so before the GOFO had any opportunity to defend himself.  In fact, they have removed GOFO from positions where, objectively, the allegations against the GOFO do not actually describe improper actions or wrongdoing.  They have done so largely where the allegations drew unflattering media attention and scrutiny.

Yet, in these circumstances, the JAG was facing allegations of, apparently, abuse of power, as well as what could be characterized as a breach of DND and CF Ethics and Values.  Certainly, alleged breach of DAOD 7023-1, Defence Ethics Programme has been used to justify adverse action against many CF personnel over the past few years, including compulsory release.  And those decisions were made following Administrative Review that often did not permit the ‘accused’ CF member to make full answer and defence.

And remember, what we are talking about here is the reappointment of the JAG by the Governor in Council.  We are not talking about a process that requires the hallmarks of procedural fairness.  We are talking about a decision in which the Governor in Council enjoys broad, nearly unfettered, discretion.   And that broad discretion has been in evidence fairly recently.  According to the present government, “… Governor in Council appointees have an obligation to act in a manner that will bear the closest public scrutiny, an obligation that is not fully discharged by simply acting within the law …”.

If that is the case, why did the Minister of National Defence reappoint as JAG an officer who was subject to allegations of wrong-doing by one or more of her subordinates and who was at the center of an unresolved ethical controversy five years ago.  Note, too, that the JAG is described in the Postmedia article as being on “medical leave”.  Assuming that this is not a convenient dodge – after all, the current government has, in effect, relieved many GOFO from performance of military duty by placing them on “administrative leave” [NB: all leave is, technically, administrative] – then that adds yet another factor to the query.  It appears that RAdm Bernatchez has spent considerable amount of time, extending to before her reappointment as JAG, on extended medical leave.  There has been an Acting JAG for much of the past 2+ years, and for most of that period the Acting JAG was Colonel Rob Holman.

Again, more junior CF personnel have been released when they were medically barred from performing their duties and functions.  And, again, the decision by the Governor in Council in the summer of 2021 (presumably at the request of the (then) Minister of National Defence) to reappoint RAdm Bernatchez to the position of JAG is not, largely, a reviewable adjudicative action.  It is an expression of broad statutory discretion.  Although there is a compelling argument that the appointment (or reappointment) of the JAG is not an expression of the Crown Prerogative (as the power is expressed at section 9 of the NDA), it is, nevertheless, largely unfettered discretion.

The Governor in Council was not obliged to reappoint the JAG to her position in June 2021.  The current government has demonstrated a track record of removing GOFO from positions in the face of unproven allegations and allegations that do not objectively describe wrongdoing.  And such decisions are typically an expression of adjudicative process (albeit one in which the government enjoys a significant ‘margin of appreciation’ from the courts).  Yet, when faced with the decision whether to reappoint RAdm Bernatchez as JAG, the Governor in Council did not follow its well-established pattern of conduct.

Some people might suggest that these circumstances were different.  Many (but not all) of the allegations against other GOFO described sexual misconduct.  Some were, allegedly, indirectly related to incidents of sexual misconduct.  However, I would not find such arguments particularly compelling.

First, as I have explained before, the principal issue that the CF should be examining is impunity in the exercise of statutory powers and functions.  While sexual misconduct is a specific problem for the CF, and a specific manifestation of impunity, it is part of a broader issue.  Myopically addressing sexual misconduct, without addressing the broader issue of impunity, is unlikely to solve the larger problem.  And, replacing impunity arising from sexual misconduct with a different form of impunity in the decision-making to address sexual misconduct simply modifies the nature of the problem.  Based upon what has been reported, the allegations against the JAG fell within the rubrique of ‘impunity’.

Second, I would suggest that allegations of recent unethical conduct by the chief military legal advisor to the Governor General, Minister, CF, and DND is, objectively, just as problematic as alleged sexual misconduct by a GOFO over 30 years ago.

No matter how the current government chooses to ‘spin’ this particular news, they have clearly treated the JAG differently than other GOFO accused of misconduct.  And, frankly, so have the national news media.

 

Conclusions

The Postmedia article generates as many questions as it answers.  We now know that there was an investigation of allegations against the JAG, brought by one or more of her subordinates.  We know that the investigation was completed.  We are told that the majority of the complaints were determined by the investigator to be ‘unfounded’, but that at least one – an allegation of interference with the promotion of a subordinate – was ‘founded’.

But there are many things that we do not know.

We do not know why the JAG decided to pursue rather public litigation if one of her concerns was unwanted public attention or scrutiny.

We do not know who the complaints were or the full extent and nature of all of the complaints.

We do not know what the Minister (either past or present) knew or when (or if) the Minister was apprised of the relevant issues.  We also do not know what, if anything, the present Minister has done with the report.

And, perhaps, most importantly, we do not know why the Prime Minister, the Minister, and the Governor in Council treated this particular GOFO differently than other GOFO who were accused of wrong-doing.  We could speculate – God knows that there has been a great deal of speculation when it comes to many of the allegations against GOFO – but we shouldn’t have to speculate if a government is committed to transparency.

And this episode presents an object reminder that, all too frequently, if a CF member wishes to obtain justice in the administration of the affairs of the CF, that CF member will typically have to resort to an application (or action) before the Federal Court.  Unfortunately, some CF members have more robust means than other to seek justice in that manner.

Ideally, statutory decision-making in the administration of the affairs of the CF would be reasonable, procedurally fair, and conducted by truly open-minded decision-makers, who employ legislated or policy mechanisms properly and for the purpose for which they are intended.  Regrettably, that is often not the case.  And, until the administration of military justice and the affairs of the CF improves, recourse to the Federal Court, in the narrow circumstances in which CF personnel may do so, will continue to be cold comfort in the face of impunity.

Let justice prevail, though the heavens may fall … indeed.

 

[1] National Defence Act, RSC 1985, c N-5, [NDA], s 9.3.

[2] NDA, s 165.1.

[3] NDA, s 249.18.

[4] NDA, s 18.3.

[5] NDA, ss 165.31 and 165.32.

[6] NDA, subs 9(2).

[7] Over the past 25 years, the JAG has been appointed, and, in some cases, reappointed, to terms of specific duration.  Arguably, instead of appointing the JAG to a term of “four years”, the Governor in Council could appoint the JAG to a term of “… not more than four years …”.  This could, conceivably, permit the Governor in Council to terminate the appointment without giving rise to an argument that contract-like damages might be owed.