The MND’s New Policy and the Rule of Law

 

Has the new Minister of National Defence (MND) issued policy direction in a manner consistent with the National Defence Act (NDA)[1]?

A couple of weeks ago, the new MND announced that sexual misconduct matters would be investigated and prosecuted by civil authorities, and not by military authorities under the Code of Service Discipline.

At least, that is what was initially reported.

As is not infrequently the case, the initial reporting was not entirely accurate.  As reporting was refined, a more accurate characterization of the policy shift appeared to be that criminal offences of a sexual nature would be referred to civil authorities and prosecuted before civil courts of criminal jurisdiction.  Allegations of non-criminal sexual misconduct (or, again, more accurately, sexual misconduct not falling within the parameters of the Criminal Code) could continue to be investigated and prosecuted under the Code of Service Discipline, as would allegations of criminal misconduct not of a sexual nature.[2]

However, the exact process for referral and the necessary determinations was not entirely clear when the announcement was first made, and not much clarification has been forthcoming in the subsequent two weeks.

The present Blog post is not about the wisdom of this policy shift, or the merit of how it was announced and how it will proceed.  I have previously described how this is not the solution that some people appear to believe it may be.  Certainly, the Joint Statement by the Canadian Forces Provost Marshal (CFPM) and the Director of Military Prosecutions (DMP) – which repeatedly asserted the competence and professionalism of their respective organizations – tends to be undermined by a policy that suggests that they cannot be trusted to perform their functions regarding sexual misconduct of a criminal nature.  Similarly, it appears to be counter-intuitive to acknowledge, on the one hand, the “… current crisis of public confidence in the military justice system …” and then suggest that the transfer of responsibility for the investigation and prosecution of such matters to civil jurisdiction will somehow restore confidence in the military justice system.

The Joint Statement had more than a passing air of Orwellian double-speak.

Perhaps one of the more striking comments from the Joint Statement was the following:

The Canadian Forces Provost Marshal (CFPM) and the Director of Military Prosecutions (DMP) are independent actors within the military justice system, and will play an active role in support of the institutional changes needed from the Department of National Defence (DND) and the CAF.

 

Frankly, they are not that independent if they are now being directed to transfer “…criminal offences of a sexual nature …” to civil authorities.  However, as I have observed repeatedly in this Blog, the nature of ‘independence’ can vary, and is often touted in disingenuous ways.  Two of the principal questions that ought to be asked regarding ‘independence’ are: From whom? And, to what extent?

Clearly, they are not independent from some Ministerial control.  Nor would one expect them to be entirely independent from Ministerial decision-making.  After all, civilian control of the armed forces of Her Majesty raised by Canada[3] is a constitutional convention expressed, statutorily, in the NDA.  Certainly, there is no disputing that the MND, who has management and direction of the Canadian Forces (CF)[4], can set policy for the CF.  Notwithstanding that ‘criminal offences of a sexual nature’ fall within the jurisdiction of the Code of Service Discipline, even if they are alleged to have arisen within Canada (concurrent with the jurisdiction of civil courts of criminal jurisdiction), the Minister could direct that the CF will not, as a general practice, exercise such concurrent jurisdiction, and will, instead, transfer such matters to civil authorities.

Again, the purpose of the present Blog post is not to discuss the wisdom or merit of such policy decisions.  Instead, we will examine what is required to communicate such policy direction to the CF.  And I present this discussion because it is not entirely clear that the requirements for such policy direction, as set out by Parliament under the NDA, have been followed.

It is possible that the MND has complied with the statutory requirements for such direction, and the deficiencies relate to the clarity of communication.  After all, as I observe above, the initial reports about this policy shift tended to signal a much broader policy intent than was actually the case.  However, even if the relevant provisions of the NDA have been respected, shortcomings in the communication of such compliance should still be a cause for concern.  The Canadian public deserves to be informed of such matters in both a timely and accurate manner.

Therefore, this Blog post will examine the constitutional and statutory bases and requirements for the policy shift that the MND announced.

As I observe above, civilian control of the armed forces is a constitutional convention of a constitutional Parliamentary democracy such as Canada.  As we will discuss below, that does not necessarily mean that civilians issue direction directly to military actors.

Another principle of Canada’s constitutional Parliamentary democracy is that Parliament is supreme.  On the federal level, while the executive governs, laws are enacted by Parliament.  Now, some cynics may observe that Parliament cannot be supreme when its laws can be struck down by the courts under the Canadian Charter of Rights and Freedoms (Charter)[5].  However, we must remember that the Charter, and the Constitution Act, 1982[6] (and the Constitution Act, 1867[7]) are, ultimately, expressions of Parliament’s will.  By virtue of the amending formula in the Constitution Act, 1982[8], Parliament, in concert with the provincial legislatures (where required and to the extent necessary under the amending formula), has the power to amend the constitution.  Debate may ensue regarding the practicality of such amending processes; however, that is not the subject of the present Blog post.  Therefore, Dear Reader, for the purposes of the present discussion, I ask that you accept the broadly held principle that Parliament is supreme within the constitutional structure of federal governance.

In other words, Parliament enacts laws, and the Governor in Council (the executive at the federal level) must govern within the constraints imposed by Parliament.  Some may be quick to assert that, where the executive controls the House of Commons, this relationship is inverted.  However, that is a question of the practicality of a Parliamentary democracy, particularly where a majority of seats are held by a single party.  That is not presently the case, and, in any event, it does not alter the fundamental distinction that Parliament, and not the executive, enact statutes.

Also, while some people may be quick to suggest that, in terms of governance of the CF, the Crown Prerogative remains a relevant basis of authority for the Governor in Council to act, we must remember that, where Parliament has spoken, such power can be abolished or limited by statute, or otherwise placed into abeyance[9].

And when it comes to the MND’s authority to issue direction to the CF, Parliament has spoken rather clearly in the NDA.  And the manner in which Parliament has spoken is directly relevant to the limited independence of the CFPM and the DMP.

The MND has decided that criminal offences of a sexual nature, alleged to have been committed by members of the CF, will, without exception, be referred to civil authorities.  That includes matters that are presently the subject of investigation by the Military Police (principally the Canadian Forces National Investigation Service or CFNIS) but which are not yet complete or nearing completion.  The MND can, potentially, issue such direction in the management of the CF.  What is less transparent is how this has been done in the present circumstances.  And the manner in which it was done is directly relevant to the rule of law.  Specifically, the MND is obliged to issue the direction in a manner consistent with the statutory framework enacted by Parliament in the NDA.

So, let’s look at what the NDA has to say about how direction shall be issued to the CF.  We start with section 18 of the NDA, which concerns the role and functions of the Chief of the Defence Staff:

18 (1) The Governor in Council may appoint an officer to be the Chief of the Defence Staff, who shall hold such rank as the Governor in Council may prescribe and who shall, subject to the regulations and under the direction of the Minister, be charged with the control and administration of the Canadian Forces.

(2) Unless the Governor in Council otherwise directs, all orders and instructions to the Canadian Forces that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the Minister shall be issued by or through the Chief of the Defence Staff. [emphasis added]

 

This is where my first concern arises.  The MND does not command the CF.  She does not issue direction to the CF.  She issues direction to the CDS (or, when the Governor in Council places the CDS on indeterminate leave and designates another officer to be the Acting CDS, the Acting CDS), and the CDS then issues direction to the CF.

I have not seen any such direction to or from the Acting CDS.

I could be mistaken – after all, as I note above, there has not infrequently been a degree of imprecision in CF and DND news releases and in the reporting of Defence Policy, particularly in the context of military justice.  [Remember, back in early 2017, when VAdm Norman was relieved from performance of military duty … or was he?]  However, the news announcement two weeks ago, combined with the Joint Statement from the CFPM and the DMP, did make it sound like the MND was giving direction directly to the CFPM and DMP regarding the investigation and prosecution of allegations of ‘criminal offences of a sexual nature’ implicating CF personnel.

And that’s not how Parliament has indicated the direction is supposed to proceed.

The NDA anticipates that the CFPM and DMP can receive specific direction regarding these issues – just not from the MND.

Section 18.3 of the NDA establishes the position of the CFPM, who is appointed by the CDS.  The position is held for a term of no more than four years and is held ‘during good behaviour’.  The CFPM may be removed “… from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.”

Sections 18.4 and 18.5 of the NDA further amplify the CFPM’s role and functions, how the CFPM is supervised, and how direction may be issued to the CFPM:

18.4 The Provost Marshal’s responsibilities include

(a) investigations conducted by any unit or other element under his or her command;

(b) the establishment of selection and training standards applicable to candidates for the military police and the ensuring of compliance with those standards;

(c) the establishment of training and professional standards applicable to the military police and the ensuring of compliance with those standards; and

(d) investigations in respect of conduct that is inconsistent with the professional standards applicable to the military police or the Military Police Professional Code of Conduct.

 

18.5 (1) The Provost Marshal acts under the general supervision of the Vice Chief of the Defence Staff in respect of the responsibilities described in paragraphs 18.4(a) to (d).

(2) The Vice Chief of the Defence Staff may issue general instructions or guidelines in writing in respect of the responsibilities described in paragraphs 18.4(a) to (d). The Provost Marshal shall ensure that they are available to the public.

(3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.

(4) The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

(5) Subsection (4) does not apply in respect of an instruction or guideline, or of a part of one, if the Provost Marshal considers that it would not be in the best interests of the administration of justice for the instruction or guideline, or that part of it, to be available to the public. [Emphasis added]

 

There has been no indication of any direction given to the CFPM by the Vice Chief of the Defence Staff (VCDS).  There has been no indication of any direction given by the Acting CDS to the VCDS, pursuant to section 18 of the NDA.  In light of the significance of the purported direction, one would expect it to have been issued in writing and made available to the public, as required under subsection 18.5(2) of the NDA.  I doubt very much that there would be justification in the public interest, under subsection 18.5(5) of the NDA, to withhold such direction from the public.

So, I am inclined to ask: Where is the written direction from the CDS to the VCDS?  Where are the written guidelines from the VCDS to the CFPM?

Similarly, I have not seen any direction from the JAG to the DMP regarding the prosecution of ‘criminal offences of a sexual nature’.

Section 9 of the NDA describes the appointment of the JAG.  Section 9.1 of the NDA establishes that the JAG is the “… legal adviser to the Governor General, the Minister, the Department and the Canadian Forces in matters relating to military law.”  Section 9.2 of the NDA establishes the JAG’s role as superintendent of the administration of military justice.

Unlike other officers of the CF, the JAG is not subject to the direction of the CDS for the performance of the JAG’s duties as legal advisor or superintendent of the administration of military justice.  By virtue of section 9.3 of the NDA, the JAG is responsible to the Minister directly.  So, the Minister could issue direction to the JAG.  But is that what has actually transpired?

And, notwithstanding DMP’s claims of independence, the JAG could then issue direction to DMP.  Section 165.17 of the NDA states:

165.17 (1) The Director of Military Prosecutions acts under the general supervision of the Judge Advocate General.

(2) The Judge Advocate General may issue general instructions or guidelines in writing in respect of prosecutions. The Director of Military Prosecutions shall ensure that they are available to the public.

(3) The Judge Advocate General may issue instructions or guidelines in writing in respect of a particular prosecution.

(4) The Director of Military Prosecutions shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

(5) Subsection (4) does not apply where the Director of Military Prosecutions considers that it would not be in the best interests of the administration of military justice for any instruction or guideline, or any part of it, to be available to the public. [Emphasis added]

(6) The Judge Advocate General shall provide the Minister with a copy of every instruction and guideline made under this section.

 

Again, regarding the policy shift announced by the MND, one would have expected the Minister to have issued direction to the JAG.  The JAG would have then issued general instructions to the DMP.  In light of the nature of the policy shift, one would expect these instructions to have been reduced to writing and made public.

So where are those instructions?

In a constitutional Parliamentary democracy governed by the rule of law – such as Canada – Parliament is supreme.  Parliament enacts laws.  When governing, the Governor in Council, the Prime Minister, and Ministers of the Crown, must comply with the laws enacted by Parliament.

In terms of the policy shift announced by the MND two weeks ago, such compliance is not entirely clear.  It may well be that direction that has been issued has been issued in a manner consistent with the NDA, and the shortcoming is in the public dissemination and communication of that direction.  However, in light of Parliament’s clear direction that such policy guidance from the CDS, VCDS, and JAG ought usually to be made public, we are left to speculate about whether the various constitutional and statutory actors have complied with Parliament’s will.

It may be that the announcement was principally ‘aspirational’, and that the actual direction, compliant with the NDA, will be forthcoming.

But I would have expected such details to have been communicated more clearly, particularly when the direction represents a significant policy shift, which runs counter to many of the efforts by the CF generally, and by the JAG and DMP specifically, in recent years.[10]

Some people may be inclined to conclude that I am ‘making a mountain out of a molehill’.  After all, ultimately, the MND may issue such policy direction; so, is it really a big deal if she did not follow the letter of the law?

Well, yes, in a constitutional Parliamentary democracy, governed by the rule of law, compliance with the law by governmental statutory actors is crucial to upholding the rule of law.

 

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

[2] That said, we must bear in mind that the jurisdiction of the Code of Service Discipline is concurrent with civil jurisdiction over criminal law.  Nothing bars (or barred) a complainant from reporting allegations of criminal misconduct involving a CF member to civil law enforcement.  It is possible that representatives of civil law enforcement would then refer the complainant to Military Police; however, it would also be open to them to investigate, and eventually prosecute allegations before a civil court of criminal jurisdiction.

[3] NDA, n1, s 14.

[4] Id, s 4.

[5] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[6] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act, 1982].

[7] Constitution Act, 1867, 30 & 31 Vict, c 3.

[8] Constitution Act, 1982, n6, ss 38 to 49.

[9] Attorney-General v De Keyser’s Royal Hotel Limited, [1920] AC 508, [1920] UKHL 1; Ross River Dena Council Band v Canada, 2002 SCC 54, [2002] 2 SCR 816, para 54.

[10] Consider the following: The MND appears to suggest that the Code of Service Discipline and the key participants thereunder, cannot be trusted to ensure that justice is done regarding ‘criminal offences of a sexual nature’.  This issue strikes at the core of what the JAG – both the current JAG and her predecessors – consistently argued is a central tenet of the Code of Service Discipline: that the maintenance of discipline, efficiency, and morale of the CF applies broadly, to include all criminal offences.  That was the Crown (and JAG) position in R v Stillman, 2019 SCC 40.  The current DMP was the lead counsel for the Crown/Minister in that appeal.  They argued, successfully, that inclusion of all criminal offences (save those exempted by s 70 of the NDA) under the Code of Service Discipline, regardless of any ‘military nexus’, was consistent with section 11(f) of the Charter.  Over the years, the officers serving as JAG and DMP have rigorously defended the broad application of the Code of Service Discipline.