This is just ridiculous …

 

In my endeavours, sometimes I encounter unreasonable or unfair statutory decision-making.  Sometimes I encounter malicious action veiled in a ‘proper’ exercise of statutory decision-making.  Sometimes that ‘veil’ is fairly transparent.

And sometimes I encounter such utterly ridiculous maladministration and abuse of process that I truly have difficulty sitting down to compose a Blog post because I am so incensed at the utter malicious stupidity behind the acts of statutory decision-makers.

But bear with me – by the end of this, you’ll likely be shaking your head as much as I am.

 

Background

On several occasions I have encountered CF decision-makers who use ‘administrative’ processes for a disciplinary purpose.  And those administrative processes tend to be remedial measures under Defence Administrative Order and Directive (DAOD) 5019-4 and Administrative Review under DAOD 5019-2.  I contend that these statutory decision-makers do so in order to avoid the potential scrutiny that arises under the Code of Service Discipline, particularly if a matter proceeds to court martial.[1]

And I have encountered some markedly questionable (and even clearly improper) exercises of statutory power to avoid such scrutiny.  Prior to the significant amendment of the Code of Service Discipline when several provisions under Bill C-77 came into force on 20 June 2022, one of the more disingenuous tactics employed by the chain of command was the improper refusal to offer an accused an election for court marital so that the questionable decision-making by CF “leaders” won’t be scrutinized by a military judge.  Another tactic that I have encountered with alarming frequency was the ‘prosecution’ of alleged misconduct under remedial measures.

Of course, now that the CF has summary hearings for “service infractions”, CF decision-makers need not worry about those pesky elections for court martial.  And I anticipate that, over the course of the coming year, we will experience a marked increasing in service infractions prosecuted by summary hearing compared to the number of service offences prosecuted by summary trial for similar periods of time.

But that makes a recent decision that I encountered that much more ludicrous: the chain of command attempted to use a remedial measure to “prosecute” a service infraction.  As I explain below, if they had the evidence to support the prosecution of a “service infraction” they could have proceeded – and, more importantly, were obliged to proceed – with a summary hearing.  And I continue to question why they did not do so.

 

Prosecuting Discipline under Remedial Measures

I suspect that the improper exercise of statutory powers described below has, as its origin, the repeated use of remedial measures as improper substitutes for the Code of Service Discipline.  I have addressed this subject previously.

It starts with a disciplinary investigation.  It can be a Military Police investigation, or a Unit Disciplinary Investigation (UDI) conducted by the chain of command.  In any event, an allegation of misconduct is made and is investigated.  The investigation is intended to collect evidence of misconduct on the part of the ‘subject’ or ‘suspect’.  And the investigation is conducted as a disciplinary investigation – i.e., the ‘suspect’ is cautioned about his or her jeopardy and right to silence and may even be informed of a right to counsel and be permitted to contact counsel.  A key point to understand is that a person’s participatory rights and obligations under a disciplinary investigation are markedly different than the participatory rights and obligations under an administrative (inquisitorial) investigation.  And that is because the two types of investigations serve markedly different purposes and their respective roles in the adjudication of facts are different.

So, a disciplinary investigation is conducted – but no charges are laid.  Instead, the chain of command proceeds with administrative measures – typically remedial measures – to punish the individual.  (Sure, the chain of command will refer to it as corrective action, and, sometimes, it is.  But, usually, it’s principally meant as punishment and to ‘paper the file’ against the subject of the remedial measure.  The response to vaccine-hesitant CF personnel under COVID-19 offers an object example of such intent.)  And the chain of command relies on the disciplinary investigation to do so.

Of course, according to the chain of command (and the legal advisors in the Office of the JAG, and even lawyers in the Department of Justice) this is a lawful and reasonable exercise of discretion.  The chain of command doesn’t have to use the Code of Service Discipline to address issues of misconduct.  They can use administrative processes.

But here’s the question that I suspect many of us have: if the allegations were investigated as a breach of discipline – during which investigation the ‘subject’ will likely exercise his “right to silence” under the Charter – why does the chain of command suddenly shift gears to address the alleged misconduct under administrative processes, which have a markedly distinct adjudicative process?

This question takes on greater dimension when the characterization of the alleged misconduct, conveyed in the remedial measure, uses terminology typically found in the particulars of a charge articulated in what used to be referred to as a Record of Disciplinary Proceeding, and what is now called a Charge Report, under the Code of Service Discipline.  It’s at that point that the so-called administrative measure starts to look more and more like an ersatz disciplinary prosecution, but without the procedural fairness required under the Code of Service Discipline.

Often, these remedial measures are based upon alleged contravention of one or more regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof.  And, as we know, by virtue of para 129(2)(b) of the NDA, any contravention of regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof, is an act, conduct, disorder, or neglect to the prejudice of good order and discipline that is punishable as a service offence.

Similarly, contravention of regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof, could also be prosecuted as a service infraction under any of a number of provisions under art 120.03 of the QR&O, including para 120.03(i).

So why doesn’t the chain of command use the Code of Service Discipline?  After all, the Office of the JAG has fought hard to maintain this tool for the maintenance of discipline, efficiency and morale of the armed forces.[2]  It would be a shame not to use it for the very purpose for which it is designed and for which Parliament enacted significant portions of the NDA.

So, why the reluctance to use this tool?

I suspect that a lot of the times that the chain of command has turned its back on the Code of Service Discipline – particularly before the creation of service infractions and summary hearings – is due to deficiency of the evidence that has been collected in the disciplinary investigation.  And that can manifest in a variety of ways.  Perhaps there are few witnesses of the alleged misconduct.  Perhaps the one or two witnesses who provided statements had inconsistencies in those statements.  Perhaps there were other factors that undermined the reliability of the statements.

However, as I have explained previously, unreliable statements in a criminal or Code of Service Discipline prosecution remain unreliable statements in an administrative process.

No worry – if the chain of command proceeds administratively, there is no risk of cross-examination.  Heck, they can even refrain from disclosing the statements to the accused … errrr … I mean CF member subject to the remedial measure.  That happens far more frequently than you might think.[3]

After all, if the affected CF member – now treated like an offender even though he or she did not benefit from the opportunity to make full answer and defence under the Code of Service Discipline – grieves the unfair and unreasonable remedial measure, any fairness-related shortcoming can be ‘fixed’ in the grievance process.  After all, that’s why there is a grievance process.  It’s not there to serve as a remedy for the grievor.  It’s there to allow the chain of command to reverse-engineer the same outcome from the initial impugned process, by correcting any procedural defects while ignoring the underlying maladministration or abuse of process by the chain of command.

But back to the reasons why the chain of command doesn’t use the Code of Service Discipline for the purpose for which it was designed …

Another reason why the chain of command might cower away from the Code of Service Discipline is because they know that, even though they largely control the process, and (prior to 20 June 2022) could disingenuously refuse to offer an accused an election for court martial, they still have to prove the elements of an offence.  And in some cases, there are policy limitations.

For example, a common basis for remedial measure is contravention of DAOD 5012-0 Harassment Prevention and Resolution.  Now, as I point out above, these allegations are typically investigated as disciplinary misconduct.  DAOD 5012-0 creates, through the Harassment Prevention and Resolution Instructions, a detailed policy structure for the investigation of alleged harassment.  This is an inquisitorial administrative investigation with participatory rights (and obligations) for both the complainant and the respondent.  It is well suited to support subsequent administrative action to resolve the harassment complaint.  The clue is in the name of the policy.  However, more often than not, the chain of command does not use the Harassment Prevention and Resolution Instructions to investigate such allegations.  Why would they?  It’s not like they were created for that very purpose, were they?

Oh wait … they were???

OK … but, in this case, the allegations were investigated as disciplinary misconduct by the Military Police or in a UDI.  So, there was an investigation.  Ok … granted … that investigation was for a disciplinary purpose and that type of investigation is markedly different than an inquisitorial investigation under the Harassment Prevention and Resolution Instructions.  But there’s nothing that says that the chain of command cannot mix and match the approach … a little bit from disciplinary column A … and a little bit from administrative column B.  It’s not like CF personnel have a legitimate expectation that allegations of harassment that will be addressed administratively will be addressed using the mechanisms that the CF has expressly developed for that purpose.  Who’s to complain?  Besides, if the affected CF member doesn’t like it, he can grieve it.  And the grievance process is an ‘adequate alternative remedy’.  Huzzah!

So, if Corporal ‘X’ sends Corporal ‘Y’ a Facebook message outside of work, and Corporal ‘Y’ objects to that message, that still constitutes harassment, right?

Well, let’s take a look at what DAOD 5012-0 says about harassment in the workplace:

Harassment is defined under DAOD 5012-0 as:

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 doesn’t represent a high bar.  If Corporal ‘Y’ is offended by the remark and Corporal ‘X’ knew or reasonably ought to have known that Corporal ‘Y’ would have been offended, then harassment is established.  And, let’s face it, the objective ‘reasonable person’ test that the chain of command should apply (“… ought reasonably to have known …”) will likely verge pretty close to the subjective – “Well, Corporal ‘Y’ was offended, so Corporal ‘X’ ought reasonably have known that his/her comment would offend …”.  [And, no, that’s not actually how the objective ‘reasonable person’ test is applied.]  Indeed, I have encountered Presiding Officers and Review Authorities who, in the context of summary trials (and reviews thereof) have literally stated: “It doesn’t matter what you intended … all that matters is that [Person X] was offended …”.  SO let’s not delude ourselves that the chain of command is actually applying objective standards where such are required.

The definition of “workplace” presents a bigger obstacle.  DAOD 5012-0 defines “workplace” as:

Any location where work-related functions and other activities take place and work relationships exist, such as:

• • on travel status;
  • at a conference where the attendance is sanctioned by the DND or the CAF;
  • at DND or CAF sanctioned instruction or training activities, or information sessions; or
  • at DND or CAF sanctioned events, including social events.

 

Facebook isn’t the workplace unless you actually work for Mark Zukerberg.  And, last time I checked, he wasn’t the Chief of the Defence Staff (or His Majesty, the King).

So, what the chain of command does is that they try to tie it in to the DND and CAF Code of Values and Ethics under DAOD 7023-0 and 7023-1.  But that is still a dodgy justification and one that likely wouldn’t withstand scrutiny at court martial and perhaps not even at summary trial or summary hearing.  Wait, who am I kidding – an Officer Conducting a Summary Hearing isn’t going to worry about nuances like the law and the proper interpretation of policy.

And, so, the chain of command has developed a tendency to ‘prosecute’ such matters using remedial measures.  And they do so not because it changes the definition of “workplace” – because it doesn’t – it merely changes the nature of the scrutiny of their decision-making.  It insulates the disingenuous decision-making from scrutiny through the intervening grievance process.  It aids in the exercise of impunity.

Consequently, there has been an increasing tendency over the past few years for the chain of command to discipline subordinates not through the Code of Service Discipline, but through remedial measures.  It has become routine.  And it bears a significant similarity to the trend in the 1990s when the chain of command turned away from the Code of Service Discipline in favour of ‘informal’ punitive measures.  And that worked out OK, right?

And that is what brings us to the remedial measure that I encountered recently.

 

Problematic Remedial Measure

The remedial measure in question may be found here: Problematic Remedial Measure.

I have removed information identifying the recipient of the remedial measure as well as the name of the officer who was the Initiating Authority (IA).  I have done so to protect the recipient from reprisal from his chain of command.  Unfortunately, he has been a victim of such reprisal in the past.  I have not done it to protect the identity of the decision-maker who issued such a fundamentally flawed remedial measure.  There is no need to name the Initial Authority in this Blog at this time.

I contend that the remedial measure identified above is a clear object example of the tendency to use remedial measures as an improper substitute for the Code of Service Discipline.

The deficiency reads like (poorly worded) particulars for a service infraction.  It expressly states that the recipient is alleged to have committed two service infractions:

It has been reported by witnesses that the member made a warning comment towards a superior on January 20, 2023. During the interview of is feedback note, he said: “If I’m going down, he’s going down with me”.

According to the QR&O Vol II, division 3, Service Infractions and Summary Hearings, Chapter 120 Service Infractions, para 120.03 – Infractions in relation to military service, a person commits a service infraction who:

(c) behaves in a manner that could reasonably undermine the authority of a superior officer;

(i) otherwise behaves in a manner that adversely affects the discipline, efficiency or morale of the Canadian Forces.

Considering the collected testimonies, I have a reasonable doubt to believe that you committed, according to the balance of probability, a service infraction in reference to the QR&O mentionned [sic] above.

 

There are so many things wrong with this remedial measure, that it is necessary to itemize them here:

1. Service infractions may only be prosected by summary hearing. The astute among you will have noted that a remedial measure is not a summary hearing.
2. The allegation is remarkably vague.
3. The explanation of the determination and the evidentiary basis for that determination is utterly incoherent.
4. Finally, what won’t be self-evident from the wording of the ‘deficiency’ is that the subject of the remedial measure received no disclosure for it or even a verbal synopsis of the evidentiary basis for the IC.

 

Oh, and as an aside – not that procedural fairness matters in such exercises of statutory powers – the Initiating Authority also did not inform the recipient that he had a right to make representations to the Initiating Authority.  The Initiating Authority did not provide the CAF member with a reasonable opportunity to respond – certainly not the “best practice” of notifying him 24 hours in advance to allow him an opportunity to raise any concerns.  After all, it’s not like there is express written policy instructions for the IA to ensure that such procedural fairness is provided.

Wait … what’s that you say?  There is?  It’s explained, in detail, in DAOD 5019-4 Remedial Measures (notably in Part 6 of the DAOD)?  The Devil you say!

So, let’s look at all the missteps in this matter.

 

Improper Substitute for the Code of Service Discipline

The remedial measure claims that the recipient committed not one, but two, service infractions, contrary to paras 120.03(c) and (i) of the QR&O.

[And, as an aside, have a look at the infraction at para 120.03(i).  Do you think that there might be a risk that this provision will eventually come to be interpretated as being “anything the chain of command doesn’t like”?  Yeah … me too.  Service infractions will rarely, if ever, be subject to judicial scrutiny.  Certainly, they won’t be scrutinized by courts martial.  And judicial scrutiny will arise from applications for judicial review after the legislated review process is exhausted under Chapter 124 of the QR&O.  Don’t hold your breath for many such applications, and we can anticipate that the Federal Court will afford CF decision-makers a large margin of appreciation in the interpretation of the provisions.  You can expect a fair bit of impunity.]

OK, so if the recipient allegedly committed one or more service infractions, where are the charges?  Isn’t that why summary hearings were created?  Under s 162.4 of the NDA, “… [s]ervice infractions may be dealt with only by summary hearing.”

Now, one rebuttal of my assertion might be characterized as follows: What s 162.4 of the NDA means is that they cannot be prosecuted by court martial.  In other words, the amendments of the NDA that came into force on 20 June 2022 created two distinct processes: courts martial will try service offences; summary hearings will try service infractions.  But that doesn’t mean that service infractions cannot be the subject of remedial measures.

Really?  I don’t buy that.  It’s a dodgy rationale, particularly since summary hearings have a reduced evidentiary threshold.

To find a CF member guilty of a service infraction, one need only present proof that convinces the trier of fact (the “Officer Conducting the Summary Hearing” or OCSH – Osh Kosh by gosh!) on a balance of probabilities (s 163.1 of the NDA).  The summary hearing process was created expressly to try service infractions.  Remedial measures – which are not a product of legislation, but a policy instrument issued under the CDS’ general authority under s 18 of the NDA – cannot be used to displace a statutory process expressly designed to deal with service infractions.

What you see here is a compelling example of what has been happening for some time now: the CF chain of command uses remedial measures for the improper purpose of side-stepping the Code of Service Discipline to punish CF members for alleged disciplinary misconduct.  What you see here is an object example of the sort of abuse of process to which the Office of the JAG has routinely turned a blind eye.  What you see here is the sort of routine abuse of process for which most CF members cannot obtain remedy because they must first exhaust the CF grievance process that is controlled by the same chain of command that continues to permit nonsense like this to continue.

 

The Allegation is Vague

Whether the chain of command is using remedial measures or the Code of Service Discipline, the particulars of an allegation must generally satisfy the “five Ws”: who, what, when, where, and why/how? (Or, at least the first four.)

The particulars of this service infraction … sorry … remedial measure … might satisfy half of those.  The remedial measure identified the recipient as the “offender”.  We know the date of the alleged service infractions, but not the time.  We don’t know the place.  The recipient might – and I emphasize might – be able to infer the time, place, and nature of the discussion, but that is not certain.  It is not clear who the superior was.  It’s not clear if that superior was the one conducting the “interview” or if a 3^rd person was conducting the interview, and the “accused” referred to the “superior”.  Presumably the unidentified superior was the person who the would be “… going down with [the recipient] …”.  Again, both we, and the recipient of the remedial measure, are forced to speculate.

Part of the problem is that, if the recipient is a corporal or a private, there are likely a great many people who would fall within the definition of a “superior officer”.  How difficult would it have been to be precise?

And the absence of any notice, explanation, or disclosure contributes to the utter vagueness of the allegations.  It would be markedly difficult for any CF member to make full answer and defence to these allegations.

Maybe that was the intent …

 

What Kind of Evidentiary Basis is That?

The IA concluded:

Considering the collected testimonies, I have a reasonable doubt to believe that you committed, according to the balance of probability, a service infraction in reference to the QR&O mentionned [sic] above.

 

If I take this at face value, the Initiating Authority is stating that he has a reasonable doubt to believe that the recipient committed the service infractions identified above.  OK … then why is he imposing a remedial measure?

Alright – I’m being a little cheeky.  Let’s give the Initiating Authority the benefit of the doubt – which is a stretch, since he clearly did not give the recipient of this remedial measure the benefit of the doubt – and assume that English is not the Initiating Authority’s first official language (FOL).  If that’s the case, perhaps the Initiating Authority ought to have had someone proof-read the remedial measure before he issued it.  Heck, he could have taken the 24 hours that he ought to have given the recipient to respond to have someone proof-read this dog’s breakfast of a remedial measure.

Or here’s a wild thought – since he is purporting to prosecute the recipient for two service infractions – he could have sought legal advice – free of charge I might add – from his unit legal advisor.  After all, had he treated the alleged service infractions in the manner anticipated under Chapters 102, 120, 121, and 122 of the QR&O, he may have been inclined to seek legal advice.

Then again, as a senior legal officer in the Office of the JAG once told me: “We’re not the CF’s compliance officers.”

Well, that’s obvious – because there are a great many statutory decision-makers in the CF who don’t comply with the law.

But that’s OK … it’ll all be fixed in the grievance.

Returning to the remedial measure, the Initiating Authority based his decision – whatever that decision actually was – on “collected testimonies”.  However, there was no testimony because there was no summary hearing.  Again, giving the Initial Authority the benefit of the doubt that he most certainly does not deserve, let’s assume that what he means by “testimonies” were statements that had been collected in some unidentified UDI.  You know, the unsworn, untested, statements by unknown witnesses that were never disclosed to the recipient of the remedial measure.  Those “testimonies”.

So, the Initiating Authority who issued this remedial measure managed to conflate the burden of proof for service offences (beyond a reasonable doubt) with the burden of proof for service infractions (balance of probabilities) and then asserted, it appears, that he was left with a reasonable doubt about guilt.  And, since we have no idea what evidence he considered or how it applied to the alleged service infractions, neither we nor (more importantly) the recipient of the remedial measure have any idea how the Initiating Authority came to that conclusion.

And, when the recipient asked for disclosure of the case against him, the Initiating Authority informed him: “I don’t have any other document to give you since this is a right of management.”

Well, isn’t that special.

The one thing we can be certain about is that the Initiating Authority was using a remedial measure for the improper purpose of prosecuting a subordinate for a couple of alleged service infractions.

And, speaking of service infractions, if we are examining actions that might “… adversely affect the discipline, efficiency or morale of the Canadian Forces …” as prohibited by the service infraction under para 120.03(i) of the QR&O, do you think the improper use of a remedial measure to prosecute a service infraction, combined with a failure to follow the requisite process for issuing a remedial measure, might fall within the scope of such misconduct?

I do.

But I very much doubt that the Initiating Authority who issued this nonsensical remedial measure will face any consequences for his improper exercise of statutory powers or the abuse of power that it represents.

Perhaps he thought that he’d get away with it because it was just “Initial Counselling”.

What I find particularly poignant about this rubbish remedial measure are the tasks that the IA imposed on the recipient.  His confused subordinate was ordered to:

• Read the Queen’s Regulations and Orders (QR&O) Volume II – Disciplinary;
• Read the Department of National Defence and Canadian Forces Code of Values and Ethics.

 

Volume II of the QR&O is 650 pages.  And I’m not certain how an in-depth review of court martial process is going to be of much use to the recipient of this remedial measure, particularly since his chain of command seems intent on avoiding using the Code of Service Discipline for its intended purpose.

And, frankly, the recipient is not the CF member who needs to brush up on his understanding of the Code of Service Discipline and the DND and CAF Code of Values and Ethics.  The Initiating Authority could use a little … OK, a LOT … of remedial training in both the Code of Service Discipline and the DND and CAF Code of Values and Ethics.  In particular, in the latter policy the Initiating Authority may want to look at:

• Ethical Principle #1 – Respect the Dignity of all Persons. This includes treating every person with respect and fairness.  You know … like fairness in the application of remedial measures.
• Ethical Principle #2 – Serve Canada Before Self. This includes performing duties and responsibilities to the highest ethical standards.  So that we’re clear: the dog’s breakfast that is the remedial measure that I describe above is not remotely close to being representative of such performance.
• Ethical Principle #3 – Obey and Support Lawful Authority. This includes respecting the Rule of law.  I’m going to assume that, in the wake of the foregoing, I don’t need to belabour this point.
• Value #1 – Integrity. Again, the remedial measure that I present above, and the manner in which it was administered, is an object example of a lack of integrity.

 

And if his legal advisors are too busy “not being CF compliance officers” to provide him with this remedial training, I can do it for them.

But he’ll have to pay me my hourly rate.  And, in light of how badly he mangled that process, it could take a while.  And that could be an expensive proposition.

[OK, to be clear, it would be a conflict of interest for me to advise the Initiating Authority in this matter – but I was feeling cheeky.]

 

Conclusion

This remedial measure falls under the category of “you can’t make this stuff up”.  And I encounter this nonsense on a regular basis.  And I contend that I see this sort of abuse of process on a regular basis for at least a couple of reasons.

First, the Office of the JAG has a laissez-faire attitude to such abuses.  After all, they aren’t the CF’s “compliance officers”.  Well, if they aren’t, then no one is.  Let justice prevail indeed.

Second, the CF grievance process is used as a broad justification for inaction by the courts.  The state of the law at present is such that the Federal Court will not intervene until a CF member has exhausted the grievance process.  “If you don’t like it, you can grieve it”.  And, as the Honourable Morris Fish has explained (and the late Chief Justice Lamer and the Honourable Patrick J. LeSage also previously explained), that process can take an inexorably long time.  And, by the time the grievance is considered and determined, the damage will be done.  It is often irreparable – but not according to the Attorney General of Canada, who seems to think that the mere opportunity to bring a complaint in the grievance process is sufficient.  After all, if Parliament wanted CF personnel to have a better remedy, it would have enacted one.

Moreover, in the CF grievance process, the actions of the chain of command are reviewed by the chain of command.  And even in circumstances in which the final authority renders an unreasonable or unfair decision, the recourse following judicial review (which the CF member must pay for out of his or her own pocket) is a ‘mulligan’ for the CF.  The problematic decision is simply referred back to the final authority so that he can reverse engineer a different justification for the impugned decision.  It is rare for a CF member to obtain actual, meaningful justice.

And if you think this isn’t a problem, then consider this: why do you suppose that the government of Canada is paying out over a billion dollars (including lawyers’ fees) for sexual misconduct that arose in the context of the CF?  You’ll note that, in the class action that led to the settlement the Crown did not rely on all the grounds that are routinely trotted out by the Attorney General of Canada to seek dismissal of actions (and some applications) brought by individual CF members.  Could it be that the misconduct that is said to have grown in the CF arose because of ineffective remedial processes?

Sexual violence and sexual misconduct can have a lasting impact on its victims.  But that is not the only misconduct by which CF personnel can be victimized.  A CF member who is subject to maladministration and abuse of process like what I have described above is no less a victim.  And CF members who are treated in such a remarkably unfair manner can also suffer considerable harm.  True, it’s not as salacious as sexual misconduct.  It is not as evocative.  It doesn’t grab the headlines in the same way.  Indeed, ‘breach of procedural fairness’ has a banal, mundane, almost academic ring to it.  Moreover, it tends not to fall within an established head of tort.  And CF personnel are not in privity of contract with the Crown.

But a failure of procedural fairness leading to unreasonable decision-making is also a source of harm.  And it happens with alarming frequency in the CF.  And where there is little or no accountability for such maladministration, it will continue to fester.

And if it appears that I am frustrated and fed up with the status quo, it is because I am.

It is because the prevailing orthodoxy of the jurisprudence relating to the administration of the affairs of the CF is that such decisions should be left to the knowledge and expertise of the CF’s statutory decision-makers.

Well, ladies and gentlemen, and justices of the Federal Court, here is an object example of the knowledge and expertise of CF statutory decision-makers.

And if that doesn’t raise cause for concern, then you haven’t been paying attention.

Oh, and by way of post-script, the recipient of this nonsensical remedial measure submitted a Notice of Intent (NoI) to Grieve the remedial measure.  [As an aside, I have explained previously that the NoI to grieve is a largely pointless step to pursue.]  As a consequence, his chain of command decided to direct Alternative Dispute Resolution (ADR).  And the commanding officer assigned the officer who as the Initiating Authority for the remedial measure to assist the potential grievor in the ADR process.

Like I said: you cannot make this stuff up.

 

[1] Bear in mind, however, now that the Code of Service Discipline has been separate into two very distinct processes upon the implementation of Bill C-77 – summary hearings presiding over service infractions and courts martial presiding over service offences – we will likely see a marked increase in the prosecution of service infractions (compared to past use of summary trials) since service infractions don’t give rise to that pesky ‘election for court martial’ and the chain of command need not worry about independent and impartial adjudication of allegations.

[2] R v Généreux, [1992] 1 SCR 259; R v Stillman, 2019 SCC 40.

[3] And, just to be clear: if the chain of command does intend to take adverse action against a subordinate based upon statements from other persons, the chain of command has an obligation to disclose at least the nature of that information, if not the actual statements, as part of their obligation to provide procedural fairness commensurate with the nature of the adverse action.  Unfortunately, many so-called leaders fail to provide this level of procedural fairness.