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October 11, 2019

The Sexual Misconduct Decision Tree & Closed-Minded Decision-Making

This past summer, the Canadian Forces (CF) issued the Operation HONOUR Manual (Interim Edition) – A Comprehensive Guide to Information and Resources on Sexual Misconduct.  The release date of the manual was July 2019.

My initial reactions was: After over three years of introspection, policy development, and training formulation, the manual that is produced is an ‘interim edition’?  One would think that, by this point in time, in light of all the horsepower dedicated to Op HONOUR, the manual would not need to be an ‘interim’ version.  Perhaps some people do not have great confidence in the content of the manual.

In due course, I will offer my views on the contents of this manual.  However, for the present discussion, my focus will be on the ‘Sexual Misconduct Incident Management Decision Tree’ that was issued concurrent with that Manual.

If you have been following this Blog, you will know that, in the past, I have expressed concerns about the likelihood that many Op HONOUR-related decisions are being made by closed-minded decision-makers who have applied a presumption of guilt to the respondents in administrative processes.  For the curious, you can find those blogs here, here, here, and here.  (And, yes, it is a recurring theme in my Blogs, which is an indication of how serious I consider this ongoing defect in public law decision-making in the CF).

The ‘Sexual Misconduct Incident Management Decision Tree’ supports my contention that the process is largely a pre-ordained and closed-minded process from which respondents do not benefit from true procedural fairness.

Let’s take a look at the ‘Decision Tree’.  It is constructed much like a flow chart.  It uses flow-chart symbols: a horizontal oval for the start and end; arrows to indicate connectors or direction of action or decision-making; rectangles for process; and diamonds for decisions.

But have a look at the flow-chart in its entirety.  Do you see anything out of the ordinary?  Is anything missing?  Take your time – I’ll wait.

Some of you – I’d like to think a great many of you – may have noticed that, despite being characterized as a ‘Decision Tree’ and constructed as a flow-chart, the result of the process is a foregone conclusion.  What is missing is any possibility that the eventual decision would be either: (i) the respondent is not culpable (or, let’s face it, what many are thinking is ‘guilty’) of sexual misconduct; and/or, (ii) no administrative action is required.

If you don’t believe me, have another look at the Decision Tree.  Again, I’ll wait.

So, for those who may have scoffed at the suggestion that the leadership of the CF, starting with the Chief of the Defence Staff (CDS), have stacked the deck against respondents in Op HONOUR-related administrative processes, here is your proof.  In a policy instrument handed down under the authority of the CDS himself, CF decision-makers are essentially being instructed to presume that the respondent is culpable (or guilty) or sexual misconduct and that administrative action must be taken.

It’s one thing for someone to be charged under the Code of Service Discipline and subsequently be found guilty of an offence that can properly and reasonably be characterized as falling within the rubrique of Op HONOUR.  In such circumstances, there has been a finding of guilt in a process (for the time being, until Bill C-77 comes fully into force) that applies a criminal burden of proof.

In those circumstances, ostensibly, Director Military Career Administration (DMCA) would then consider whether a Notice of Intent (NoI) to recommend release should be issued to the respondent in the administrative process (Step 9 in the Decision-Tree).  I say ‘ostensibly’, as, in my experience with Op HONOUR thus far, it appears that, even for very low-level sexual misconduct, issuing an ‘NoI’ appears to be de rigueur.

Regardless of whether an NoI is issued, there will be an Administrative Review (AR) conducted by DMCA (Step 11 in the Decision Tree) and administrative action will be issued.

While I do have concerns about how open-minded that process is, in light of the fact than an offender under the CSD will have already been punished (sometimes disproportionately severely), and there can be a tendency to ignore the fact that punishment under the CSD was imposed, that is not the truly alarming aspect of this Decision Tree.

Let’s go back to steps 6, 7 and 8.

There are two ways that the process can wind up at step 8:

First, the respondent might not be charged, either under the CSD or under a civilian process.  I would include in this category circumstances where a person is charged and the charge is subsequently withdrawn by a prosecutor or charge-layer, or circumstances in which Director Military Prosecutions (DMP), or an officer under DMP’s supervision, decides not to prefer a charge.  In all of these examples, a charge is not brought before a military (or civilian) tribunal for a determination of guilt.

In other words, there is no separate finding of guilt upon which an administrative decision-maker can rely.

In those circumstances, the administrative decision-maker would proceed from Step 6 in the Decision Tree to Step 8.

Alternatively, an eventual respondent might be prosecuted (either before a military tribunal or a civilian court) with an eventual finding of not guilty, or, perhaps more accurately, the absence of a finding of guilt.

The tribunal could conclude without a finding of guilt for a variety of reasons.  The court may conclude the that prosecution did not prove its case beyond a reasonable doubt.  Or, perhaps the judge concludes that the prosecution failed to establish a prima facie case.  Perhaps the trier of fact does not believe the complainant due to apparent inconsistencies and contradictions in the complainant’s testimony and rejects the complainant’s evidence as neither credible nor reliable.  Perhaps the matter is terminated or stayed before the matter is tried on its merit.

In any of these examples, the administrative decision-maker would proceed from Step 7 to Step 8.

And that’s where the Decision Tree becomes problematic.  Alternatively, one could conclude that that’s where the CDS shows his true colours about his expectations regarding the degree of fairness in administrative decision-making under Op HONOUR.

In the interests of transparency – because transparency is a ‘good thing’ in administrative decision-making – I have reproduced the entirety of the Note to Step 8 below:

Administrative action, including remedial measures, may be taken regardless of the outcome of any disciplinary/criminal investigation or trial. For a conviction in a court, the standard of proof is ‘beyond a reasonable doubt’, for administrative purposes the standard of proof is ‘balance of probabilities’. In conducting the review of the case, keep these principles in mind and carefully look at the evidence based on this standard of proof in order to determine whether an  incident, special circumstance, or professional deficiency has occurred. If so, then, in accordance with DAOD 5019-2, carefully look at the facts of the case, their entire period of service (taking into account the CAF member’s rank, military occupation, experience and position), previous conduct deficiencies, if any, and leadership role, if any, in order to ensure that the most appropriate administrative action is selected. Investigation reports may be sought from the MPs/CFNIS by the commanding officer as part of the review. Civilian investigative reports are not normally made available to the chain of command; however, in the event that a CAF member is found “not guilty”, a review of the trial transcript, decision of the court, or account of the proceedings obtained from the attending officer may be necessary to determine whether there is sufficient evidence to determine, on a balance of probabilities, that sexual misconduct did occur. Legal advice should be sought in such cases, and Director Military Career Administration (DMCA) 2 consulted, to ensure consistency across the CAF.

We’ve been here before with this blog.

It is true that decision-making under DAOD 5019-2 (and, indeed, the entire DAOD 5019 series) is made on a civil burden of proof – i.e. a ‘balance of probabilities’.  And, it is true that a finding of ‘not guilty’ at trial or the absence of a criminal or disciplinary prosecution does not prohibit administrative action ‘on a balance of probabilities’.

The problem is that CF statutory decision-makers appear to use the description of a balance of probabilities as some sort of mantra or proof against fair, reasonable, and evidence-based decision-making.

Even if a decision-maker is applying the civil burden of proof, the decision-maker must still base his or her decision on actual evidence.  And that evidence must be disclosed to the respondent.  And the respondent must have an opportunity to make meaningful representations to an unbiased decision-maker.  At the very least, in these types of processes, the decision-maker must have an open-mind.

However, under the ‘Sexual Misconduct Incident Management Decision Tree’, there is no open-mind.  It is a foregone conclusion that adverse administrative action will be taken against the respondent.  If you follow the flow-chart, there is no option to conclude that the complaint is not founded or that no further action will be taken.  This isn’t surprising, as the Decision Tree clearly presumes that the complainant is a victim.  Where there is a victim, there is an offender.

Certainly, someone could suggest that I am reading the Decision Tree too literally.  But am I?

This is offered as a tool for decision-making.  It is offered in concert with the Op HONOR Manual (Interim Edition), and we are told that this manual was:

… issued on the authority of the Chief of the Defence Staff (CDS). It was developed in cooperation with, and on the expert advice of, the Sexual Misconduct Response Centre (SMRC), in consultation with the External Advisory Council. It is intended to provide all Canadian Armed Forces (CAF) personnel with guidance, tools, and resources to promote a common understanding regarding sexual misconduct response, prevention, and support. … [emphasis added]

Presumably, if the CF is going to issue direction and a decision-making tool under the authority of the CDS, the tool would present an accurate and sufficiently detailed process that contemplates the full scope of decision-making activity.  The ‘defensive tone’ to the Note to Step 8 makes it fairly clear: this process is about justifying adverse administrative action in all cases and setting conditions to defend those actions in the rare event when they are eventually brought before the scrutiny of a constitutionally independent judge (such as would arise under an application for judicial review before the Federal Court).

Consequently, I suggest that this Decision Tree demonstrates the true direction that the CDS is giving his subordinates: you will find respondents culpable (guilty) of sexual misconduct and you will take administrative actions against them.

So, let’s return to the Note to Step 8 in the Decision Tree.  It’s one thing to proceed against someone who was found not guilty at trial because the prosecution did not prove its case beyond a reasonable doubt.  But what if a charge wasn’t even laid or prosecuted?

Under the CSD, any contravention of a CF rule, directive, or even norm of conduct, can potentially be the subject of a charge, often under section 129 of the National Defence Act (NDA).  Addressing instances of sexual misconduct is a priority for the CDS.  Consequently, one could reasonably presume that, if there were evidence of sexual misconduct by a CF member, a charge under the CSD would typically follow.  If a charge is not laid, presumably it is because the evidence would not support a reasonable belief that the offence occurred.

Now ‘reasonable belief’ is a very low evidentiary threshold – all that is required is some evidence for each element of the offence.  That is far lower a threshold than a ‘balance of probabilities’ in which the merit of the evidence is (or should be) weighed.

The same is true if a charge is withdrawn or a DMP prosecutor chooses not to prefer a charge.  In those cases, there are two considerations: whether there is a reasonable prospect of conviction, and whether it is in the public interest to proceed with the prosecution.

Presumably, in light of the inescapable media coverage and the continuous commentary by senior CF officials about the steps the CF is taking to eradicate sexual misconduct in the CF, it would be exceedingly rare that a prosecutor would conclude that it was not in the public interest to proceed with a CSD prosecution for sexual misconduct-related offences.  Therefore, any decision to withdraw or not prefer a charge must then be based upon the conclusion that there is not a reasonable prospect of conviction.

According to DMP Policy:

The threshold test of “reasonable prospect of conviction” is objective. This standard is higher than a “prima facie” case that merely requires that there is evidence whereby a reasonable jury, properly instructed, could convict. On the other hand, the standard does not require “a probability of conviction”, that is, a conclusion that a conviction is more likely than not.

A prosecution is not legally sustainable unless there is evidence to support the accusation that a person subject to the CSD has committed a service offence. In the assessment of the evidence, an actual and reasonable belief that the offence has been committed is necessary but not sufficient. The evidence must be evaluated to determine how strong the case is likely to be when presented at any service tribunal and should be made on the assumption that the trier of fact will act impartially and according to law. This will require a proper assessment on whether all of the elements of the alleged offence have been established, the relevance and admissibility of evidence implicating the accused, as well as the competence and objective credibility of witnesses.

The role of the Prosecutor in assessing the reasonable prospect of conviction determination is quasi-judicial in nature. The assessment of the evidence requires a fair evaluation of evidence in all the circumstances of the case. Prosecutors must guard against a perception or view of the case simply adopted from the views or enthusiasm of others. As a case develops and changes during the prosecution process, the Prosecutor must guard and maintain the independence and integrity required to fairly reassess a case as it evolves.

This description is based largely upon the Province of Ontario’s Ministry of the Attorney General Crown Policy Manual, dated 21 March 2005, and is similar to the position espoused by the Federal Prosecution Service.

A key conclusion to draw from this description is that, while the determination of a ‘reasonable prospect of conviction’ requires more than a ‘prima facie case’ (which is a very low evidentiary threshold), it does not rise to the level of even a balance of probabilities.

Therefore, when a charge is not laid by CF authorities, or where CF prosecutors withdraw a charge or choose not to prefer the charge, it is presumably because of fundamental weaknesses in the evidence.  It is therefore surprising when an administrative decision-maker subsequently concludes that evidence is sufficiently compelling to justify administrative sanctions on what is, objectively, a higher standard of proof than is applied in the early stages of charge-laying and prosecution.

Often, at that stage in the process, the statutory decision-maker will trot out the oft-quoted definition of what a balance of probabilities requires (much as is done in Step 8 of the Decision Tree) and compare it to the higher criminal evidentiary burden ‘beyond a reasonable doubt’.

However, it is quite common for the same decision-maker to either ignore or arbitrarily brush off the pertinent concern that, if there was insufficient evidence to support the low threshold of laying a charge or proceeding with a prosecution, how could there be sufficient evidence to satisfy the civil burden of proof where wrong-doing is alleged must be predicated upon evidence that is “… sufficiently clear, convincing and cogent to satisfy the balance of probabilities test.” (F.H. v McDougall, [2008] 3 SCR 41, 2008 SCC 53, para 46 per Rothstein J)?

I suggest that one reason for this behaviour is that many CF statutory decision-makers do not have an adequate grasp of their responsibilities even when applying the civil burden of proof.  They too easily regard it as a licence to do what they wish, absent any true scrutiny of the evidence before them, or even consideration of the actual evidence.  This is highlighted in circumstances that I have encountered where there has been a marked failure in disclosure of evidence to the respondent.  CF decision-makers often proceed based upon a summary (such as a summary in an MP report) rather than actual evidence.

I suggest that another reason for this behaviour is that, unlike what arises within the context of a court martial, CF decision-makers are acutely aware that their actions will not initially be subject to scrutiny by a constitutionally independent decision-maker who is well-informed of the relevant law.  While a DMP prosecutor knows that a military judge will scrutinize her or his legal arguments and the merit of the evidence, CF administrative statutory decision-makers know that they control the process.  There is no constitutionally independent judge scrutinizing their reasoning and raising pesky issues like sufficiency or evidence or legal principles.  The statutory decision-maker knows that, even if the respondent wishes to challenge an adverse administrative decision, the respondent must first exhaust the CF grievance process, before any Federal Court judge will have an opportunity to review the matter.

And what of circumstances in which a complainant’s reliability and credibility before a military disciplinary tribunal is either doubted, or, more strikingly, rejected by the trier of fact, particularly where that trier of fact is a military judge, sitting alone, who must provide sufficient reasons for his or her determinations?

In a circumstance in which a complainant’s reliability and/or credibility is in doubt following rigorous examination and cross-examination, how could an administrative decision-maker subsequently conclude, solely based upon a paper record, and often without as complete an evidentiary record as was before the court martial, that the complainant is reliable and credible?

I suggest that, if a CF statutory decision-maker follows the ‘Sexual Misconduct Incident Management Decision Tree’ the answer is: it doesn’t matter, the decision-maker must find an excuse to take administrative action against the respondent.  If necessary, the decision-maker will fall back on the oft-cited trope: ‘For a conviction in a court, the standard of proof is beyond a reasonable doubt, for administrative purposes the standard of proof is balance of probabilities’.  As if that mantra explains away myriad evidentiary short-comings that may have arisen in the administrative process.

After all, just as all roads led to Rome a millennium ago, all paths in the Sexual Misconduct Incident Management Decision Tree lead to mandatory adverse administrative action.


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