A Life of Duty, Service, and Devotion
September 10, 2022

Timeliness

 

Timeliness is of fundamental importance in public administration and the exercise of statutory duties, powers, and functions.

And the Department of National Defence (DND) and Canadian Forces (CF) do not ‘do’ timeliness very well.

This issue – which I raise from time to time in my commentary on military law – was again at the forefront of my mind as I was preparing a series of Blog posts on the ‘new’ Military Justice at the Unit Level (MJUL).  My intent was to present a series of posts discussing what I view as some problematic aspects of the MJUL.

Key elements of the MJUL were introduced into the National Defence Act (NDA) by Bill C-77 in 2019.  Other elements were introduced in regulation.  And many of the provisions enacted in statute in 2019 only came into force in 2022, upon the enactment of amplifying regulations.  Indeed, the enactment of those regulations, three years after Bill C-77 received Royal Assent, is a marked example of the lack of timeliness in legislative action pertaining to the CF.

And as I was preparing my notes for my Blog posts (as well as notes for a presentation that I will be giving next week on the MJUL), not surprisingly, I found myself referring to the Queen’s Regulations and Orders for the Canadian Forces (QR&O).

And it occurred to me: are they still the QR&O?

With the passing of the late Queen Elizabeth II, of Blessed and Glorious memory, the Crown, not only of the United Kingdom of Great Britain and Norther Ireland, but also of Canada, is solely and rightfully come to the Prince Charles Philip Arthur George, now King Charles III.

The proclamation, read out by the Chief Herald of Canada on 10 September 2022, was:

 

TO ALL TO WHOM these presents shall come or whom the same may in any way concern,

GREETING:

Whereas our late Sovereign, Queen Elizabeth the Second, passed away on September 8, 2022, by whose death the Crown of Canada vests in His Royal Highness Prince Charles Philip Arthur George;

We, the Right Honourable Mary May Simon, Governor General of Canada, assisted by His Majesty’s Privy Council for Canada, proclaim that His Royal Highness Prince Charles Philip Arthur George is now, by the death of our late Sovereign, Charles the Third, by the Grace of God of the United Kingdom, Canada and His other Realms and Territories King, Head of the Commonwealth, Defender of the Faith, to whom we acknowledge faith and allegiance.

Given under my Hand and Seal of Office at Ottawa, this tenth day of September, two thousand and twenty-two.

Long Live the King

 

Even before this proclamation was read, the Courts of Queen’s Bench in New Brunswick, Manitoba, Alberta, and Saskatchewan all changed the nomenclature on their websites and in their correspondence to the Courts of King’s Bench.

Consequently, some might contend that the QR&O should now be referred to by the King’s Regulations and Orders for the Canadian Forces, or KR&O.

However, they are not.

At least, that’s not the terminology used on the Government of Canada website whereby the Director Strategic Corporate Services (DSCS) publishes the QR&O.  And, ever since 1 January 2006, the PDF version of the QR&O on that website represents the official version of the QR&O.  These regulations are exempt from publication in the Canada Gazette.

While the NDA expressly permits various constitutional and statutory actors (including the Governor in Council, the Minister of National Defence (MND) and the Treasury Board)[1] to enact regulations for various purposes under the NDA, the term “Queen’s Regulations and Orders for the Canadian Forces” is not actually used or prescribed in the NDA.  It is, however, the nomenclature that is used, and has been used (incorporating the word “Queen’s” or “King’s”, as appropriate), since long before the 1950 enactment of the modern NDA.

The title for the QR&O is established at art 1.01 of the QR&O:

This publication shall be called the Queen’s Regulations and Orders for the Canadian Forces and may be cited as QR&O.

 

This is a Ministerial regulation, lawfully enacted under the authority of sub-section 12(2) of the NDA.  There is no provision for substituting ‘King’ for ‘Queen’ upon the ascension of a King.

Therefore, notwithstanding that King Charles III was proclaimed King of Canada on 10 September 2022, and ascended the throne on 8 September 2022, the QR&O will remain the QR&O until the MND amends art 1.01 of the QR&O.

How long that takes remains to be seen.

I’d like to think that it will be done soon.  Technically, the MND could have done so already.  Of course, that would require replacing “Queen’s Regulations and Orders for the Canadian Forces” with “King’s Regulations and Orders for the Canadian Forces” and “QR&O” with “KR&O” is every instance in the entirety of the QR&O.  This would also involve amendment of amplifying orders, directives, etc., that make reference to the QR&O, although that is not a condition precedent in order to amend article 1.01 of the QR&O.  Even with the advantages of modern technology, that can be time-consuming work.  Presumably, no one considered doing this in anticipation of the inevitable death of the Monarch.

And consider that timely amendment of the QR&O is not exactly the forte of the Governor in Council, the MND, or the CF. Two years ago, the CF announced that it would change the rank designations of junior non-commissioned members (NCM) who wear naval uniform.  Theses rank designations, in descending order of rank and appointment, were announced as: Master Sailor; Leasing Sailor; Able Sailor; and, Ordinary Sailor.  This was announced by Canadian Forces General Message (CANFORGEN), but the announcement was not accompanied by any amendment of art. 3.01 of the QR&O.  Even Military Judges began using those designations at courts martial, notwithstanding that there was no lawful basis to do so: R. Fowler, “Has the Canadian Forces Completely Abandoned the Rule of Law?”, 28 August 2020.

And here we are, two years on, and art 3.01 of the QR&O still hasn’t been amended.

As I say, ‘timeliness’ is not the forte of the Governor-in-Council, MND, or any of a number of actors and decision-makers under the NDA.  Consequently, until art 1.01 of the QR&O is amended by the MND, I shall continue to refer to the QR&O as the QR&O.  I may have a traditional orientation, but part of that traditional perspective includes applying the law correctly.

And this minor issue of the eventual amendment of the QR&O prompted me to consider other instances in which the lack of timeliness adversely affects the administration of the affairs of the CF, including the administration of military justice.

An obvious example is the unconscionable delay in the adjudication of grievances under the NDA.  But frankly, that is low-hanging fruit, and I have discussed that issue previously.  Don’t get me wrong – that is still a huge problem in the administration of the affairs of the CF and it creates problematic second- and third-order effects for other processes.  It is worthy of discussion and the failings of the CF to correct this deficiency merit further scrutiny.  But I will leave that discussion for another day.

Instead, I will expand upon delay in two areas to which I have alluded (or even discussed) previously, and which I believe merit further discussion presently.  First, I address delay in the appointment of a key statutory actor in military justice, compared to more timely recent appointments.  Second, I will describe delay in the adjudication of Military Police conduct complaints.  And, since I will address one defect in the Military Police conduct complaint process, I will take the time to address a couple of other, related, problematic aspects of that process.

But, before I look at those two specific issues, I will offer some observations on the issue of delay arising outside the scope of prosecution of criminal (penal) offences and para 11(b) of the Canadian Charter of Rights and Freedoms (Charter).  Most discussions regarding ‘prosecutorial delay’ will invariably involve discussion of para 11(b) of the Charter and the Supreme Court of Canada (SCC) judgment in R v Jordan, 2016 SCC 27 and subsequent judicial analysis.  Instead, I will address what some might be inclined to term ‘administrative delay’, ‘delay in administrative decision-making’, or ‘delay in public and administrative law’.

 

Delay in Public and Administrative Law

Despite the impact that delay can have on decision-making under public and administrative law, there is often limited recourse and remedy for those adversely affected by such delay, where it arises outside the context of para 11(b) of the Charter (which relates to a person “… charged with an offence …”).

In Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, Bastarache J held, for the majority (5:4) of the Court, that delay, of itself, would not warrant a stay of proceedings in an adjudication under an administrative regime, and that remedy, short of a stay, for state-caused delay could be found within the principles of administrative law:

101     In my view, there are appropriate remedies available in the administrative law context to deal with state-caused delay in human rights proceedings.  However, delay, without more, will not warrant a stay of proceedings as an abuse of process at common law.  Staying proceedings for the mere passage of time would be tantamount to imposing a judicially created limitation period [citations omitted].  In the administrative law context, there must be proof of significant prejudice which results from an unacceptable delay.

102     There is no doubt that the principles of natural justice and the duty of fairness are part of every administrative proceeding.  Where delay impairs a party’s ability to answer the complaint against him or her, because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost, then administrative delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy [citations omitted].  It is thus accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied [citations omitted].

 

Justice Bastarache concluded his analysis of the impact of delay, and, in particular, potential sources of prejudice other than ‘abuse of process’, thusly:

115     I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised.  Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.  The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay.  It must however be emphasized that few lengthy delays will meet this threshold.  I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process.  It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute.  The difficult question before us is in deciding what is an “unacceptable delay” that amounts to an abuse of process.

 

He then proceeded to examine the principles of ‘Abuse of Process’ and when delay might contribute to, or constitute, such abuse.  However, the operative principle for remedy would be ‘abuse of process’, and not delay.

Nevertheless, Bastarache J still recognized the impact of delay on Robin Blencoe:

135     Nevertheless, I am very concerned with the lack of efficiency of the Commission and its lack of commitment to deal more expeditiously with complaints.  Lack of resources cannot explain every delay in giving information, appointing inquiry officers, filing reports, etc.; nor can it justify inordinate delay where it is found to exist.  The fact that most human rights commissions experience serious delays will not justify breaches of the principles of natural justice in appropriate cases.  In R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at p. 795, the Court stated that in the context of s. 11(b) of the Charter, the government “has a constitutional obligation to commit sufficient resources to prevent unreasonable delay”.  The demands of natural justice are apposite.

 

Unfortunately, the remedy in Blencoe amounted to, essentially, a stern word from the Court.  The Court held that the prejudice and harm that Robin Blencoe suffered was due primarily to adverse media coverage, and not delay and, in any event, the delay did not rise to the level of abuse of process.  The delay in processing the complaints would not offend the community’s sense of decency and fairness.  Unlike in criminal prosecutions, significant delay in non-penal, administrative decision-making will rarely, if ever, grant a significant remedy for the person who suffers from delay.  The majority did consider, however, that the Court could consider its discretion to award costs in the litigation.

I suspect that Mr. Blencoe viewed that outcome as cold comfort.

Justice LeBel, writing for the dissent, observed that the parties before the court focused principally on the Charter (and Charter remedies), as did the majority.  Justice LeBel, joined in dissent by three other judges, held that, “… [i]n the end, this approach turned into a constitutional problem, something that it was not.  The important and determinative issue should have been the role of judicial review and administrative law principles in the control of undue delay in administrative tribunal proceedings.”  Consequently, citing the axiom ‘justice delayed is justice denied’, Justice LeBel focused on review and remedy under principles of administrative law.  Notwithstanding this distinct approach, the dissent agreed that an absolute stay of proceedings, in response to the state’s shortcomings and failure to adhere to a timely process, would have been excessive and unfair to the non-state ‘innocent parties’.

Consequently, the judgment in Blencoe has often been viewed by many practitioners in public and administrative law as ‘shorthand’ for limited remedy in administrative proceedings for significant state-caused delay.  Is it any wonder then that there is little incentive for the Canadian Forces to improve the timeliness of the adjudication of grievances or other administrative processes?

This issue was considered by the SCC as recently as this year in Law Society of Saskatchewan v Abrametz, 2022 SCC 29.

The Law Society of Saskatchewan brought disciplinary proceedings against one of its member lawyers in 2012. In 2018, the member was found guilty of four charges of conduct unbecoming a lawyer, and in 2019, was disbarred without a right to apply for readmission for almost two years. During the disciplinary proceedings, the member applied for a stay of the proceedings on the basis of inordinate delay amounting to an abuse of process. His application was dismissed by the Hearing Committee of the Law Society. The Court of Appeal dismissed the member’s conduct appeal but allowed his appeal of the stay decision, and purportedly granted the stay, concluding that there had been inordinate delay which resulted in significant prejudice to the member such that the public’s sense of decency and fairness would be affected, and the Law Society’s disciplinary process was brought into disrepute.

A majority of the SCC (with only Côté J dissenting) held that the appeal by the Law Society should be allowed.  The judgment of the Court of Appeal was set aside, and the matter was remitted to the Court of Appeal to address the outstanding grounds of appeal.  The majority held that, even where abuse of process is established, the appropriate remedy will not always be a stay.

Per Rowe J at paras 89 and 90:

When an abuse of process is established, but the abuse is not such that a stay of proceedings is warranted, other remedies may be appropriate …

The threshold to grant such remedies will be lower than that required for a stay. While proof of significant prejudice is required to establish an abuse of process, the remedies ordered may vary according to the degree of prejudice. A high degree of prejudice may justify a stay. Lesser, but nevertheless significant prejudice, could justify other remedies. In such cases, the public interest can be properly served by continuation of the proceedings, while the applicant receives some compensation for the abuse that he or she suffered.

 

Justice Côté (who, it should be noted, is often joined by Justice Rowe when she dissents) disagreed.  As is often the case when I read a dissent authored by Justice Côté, I found her analysis compelling.  She astutely observed that, despite the characterization of the decision by the Court of Appeal, it did not actually grant a stay of proceeding.  Instead, it maintained the finding of the Hearing Committee but quashed the penalty as a result of in ordinate and unexplained delay (see para 217).  Paras 217 to 224 of Justice Côté’s judgment merit review.

In Blencoe, both the majority and the dissent essentially agreed that the remedy for delay in administrative proceedings must be found in principles of administrative law.  Despite this, the majority of the Court in Abrametz focused on ‘abuse of process’ and when it might justify a ‘stay of proceeding’.  I suggest that Justice Côté offers a pragmatic and principled example of how a broader scope of remedy may be examined and how effective remedy might be provided.

Justice Côté’s observations are also consistent with a poignant observation from the Court of Appeal of Alberta in Wachtler v College of Physicians and Surgeons of the Province of Alberta, 2009 ABCA 130 [Wachtler].  The Court of Appeal reviewed a decision of the Council of the College of Physicians and Surgeons of Alberta upholding the conclusion of its Investigating Committee that Dr. Wachtler was guilty of unbecoming conduct and deserved sanction.

The Court held that Dr. Wachtler’s experiences were on the ‘cusp’ of unreasonable delay, but he certainly suffered greater delay and harm that Mr. Blencoe.  And, considering the SCC judgment in Blencoe, the Court of Appeal held that “… Dr. Wachtler experienced a process that is out of the ordinary, and note that the Supreme Court in Blencoe directed that delay falling short of requiring a stay may call for other remedies.” (para 37).  Ultimately, the Court of Appeal modified the penalty imposed on Dr. Wachtler, quashing a costs order against him as well as an additional suspension of two months, which the Court held was not warranted.

However, it is the Court’s commentary at para 49 of Wachtler regarding the obligations of administrative tribunals that is worthy of note:

It is also important to impress upon disciplinary bodies that there will be consequences for undue delays. Delay becomes the norm when it has no consequence. One alleged benefit of administrative processes is that they avoid the formalities of court process in the interests of speedy justice. A 7-year process is hardly speedy. Simply telling those responsible for professional discipline that they must do better or, worse, turning a blind eye to delay, leads to more delay. The Council only addressed the issue of delay in considering the question of prejudice in the context of hearing fairness. It did not consider delay to be a factor that needed addressing at the penalty phase of its decision. We conclude that the failure to consider delay in imposing a penalty, in the circumstances of this case, was an unreasonable exercise of the Council’s discretion. [emphasis added]

 

Perhaps the time has come to ensure that appropriate consequences arise not only for those whose conduct is adjudicated by administrative tribunals, but also for tribunals that do not perform their duties and functions in a timely manner.

 

Delay in the CF – Appointment Processes

Delay arising in the exercise of statutory duties, powers, and functions in the context of the DND and CF extends beyond solely adjudicative proceedings – although there is significant delay in many adjudicative proceedings within the CF.

Delay even arises in the exercise of broad (and largely unfettered) discretionary powers and functions conferred on the Executive (whether it is the Governor-in-Council, the MND, or another representative of the Executive branch of government), including the discretion to make appointments under the NDA.  These powers and functions are separate from the duties, powers, and functions related to adjudicative processes (e.g., grievances, the use of remedial measures under DAOD 5019-4, or the adjudication of harassment complaints under DAOD 5012-0), but they can still have significant impact on the administration of the affairs of the CF, and the efficacy and reliability of, and confidence in, military justice.

By way of example, this week I learned that my friend and colleague, Lieutenant-Colonel Nooral (Noor) Ahmed (or, perhaps Colonel Ahmed, by the time this is posted), previously the Assistant Judge Advocate General Prairie Region, had been selected by the MND as the next Director of Defence Counsel Services.[2]  This comes relatively soon after the retirement of his predecessor, Colonel Jean-Bruno (J-B) Cloutier.  And I wish my colleague success and meaningful experience in his new position.

Similarly, a little over a year ago, Lieutenant-Colonel (as he then was) Dylan Kerr was selected by the (then) MND to succeed Colonel Bruce MacGregor as Director of Military Prosecutions (DMP).[3]  Colonel Kerr’s appointment was formalized by a ceremony, presided over by the Judge Advocate General (JAG), RAdm Bernatchez, on 26 July 2021.  The appointment was announced by CANFORGEN on 26 July 2021 and was effective from 29 June 2021.

RAdm Bernatchez, herself, had been re-appointed to a subsequent 2-year term as JAG only a month prior to presiding over Colonel Kerr’s appointment.  On 28 June 2021, the (then) MND, Harjit Sajjan announced her re-appointment – although it remains unclear whether this announcement was made just before, or just after, RAdm Bernatchez’s first 4-year term was due to expire.[4]

Granted, in the tumultuous year that followed, we have heard very little from the JAG and, since her re-appointment, for most, if not all, of that time, the Office of the JAG has been led by an Acting JAG.  And one might be inclined to wonder, in the event that the re-appointment of the JAG was not confirmed until after her tenure – the maximum duration of which is fixed by statute – had expired, whether this affected her capacity to provide legal advice to the CF (and, by extension, of all legal officers posted to the OJAG, to do so).

Nevertheless, the Governor in Council and the MND have demonstrated that they are capable of approving appointments, or re-appointments, for key positions within the military justice structure, in a relatively timely fashion.

Some of the time.

Their ability to appoint officers to the key positions of DDCS and DMP[5] in a timely manner stands in marked contrast to their continued inaction in designating a Chief Military Judge.[6]

Tuesday, 20 September 2022, will mark 2 ½ years since the last Chief Military Judge, Colonel Mario Dutil, retired when he reached the Compulsory Retirement Age (CRA).  His retirement came shortly after a failed and ill-conceived attempt by the (then) DMP, Colonel MacGregor, to prosecute the Chief Military Judge:

R c Colonel Dutil, 2019 CM 3003;

Canada (Director of Military Prosecutions) v Canada (Office of the Chief Military Judge), 2020 FC 330;

R. Fowler, “‘Bad Facts’ and Awkward Law: The Director of Military Prosecutions v Deputy Chief Military Judge, et al., 2020 FC 330”, 4 March 2020;

Fowler, “Director of Military Prosecutions Withdraws Charges Against the Chief Military Judge of the Canadian Forces”, 11 March 2020.

 

Contemporaneously, throughout 2020, three of the four remaining Military Judges consistently held that their independence was undermined by the jurisdiction of the Code of Service Discipline, exercised by the Executive, over them.  As I have explained previously, most of the advocacy before courts martial, and the judgments of the Military Judges themselves, focused on orders from the Chief of the Defence Staff (CDS), rather than the statutory and regulatory provisions that made such orders necessary.  Eventually, the statutory foundation for the jurisdiction of the Code of Service Discipline was challenged:   R c Capitaine Crépeau, 2020 CM 3007.  But, even as the Military Judge in that matter terminated the prosecution under the Code of Service Discipline, he rejected the challenge to the legislative basis for jurisdiction, adhering to the prior judgments of courts martial.

Eventually, the Court Martial Appeal Court of Canada (CMAC) overturned the series of judgments at first instance, holding that Military Judges’ independence was not undermined by either the CDS orders or the legislative framework that subjected Military Judges to the supervision of the Executive by making them liable to be charged and prosecuted under the Code of Service Discipline: R v Edwards; R v Crépeau; R v Fontaine; R v Iredale, 2021 CMAC 2.

I have already offered significant discussion on this issue, and I will not repeat the entirety of that analysis here.  You are welcome to review that prior discussion:

Court Martial Appeal Court of Canada – R v Edwards, et al., 2021 CMAC 2, Global Military Justice Reform, 14 June 2021

R v Christmas – Beware the Ghosts of Judgments Past, 13 November 2020 

R v MacPherson et. al.: Judicial Independence Redux, 27 October 2020

Judgments as ‘Remedial Measures’, 2 October 2020

Military Judicial Independence: I have heard of orders, and rumours of orders …, 26 September 2020

In the Current Dialogue with the Military Judiciary, the CDS isn’t Listening, 18 August 2020

 

However, I raise this issue in the context of delay in Executive decision-making under the National Defence Act (NDA).  The MND acted in a relatively timely fashion to appoint a new DMP and a new DDCS, and the Governor in Council was relatively timely in re-appointing the JAG.  All of these officers have important roles to play in the administration of military justice.  As I have explained previously, two of these officers could not, feasibly, be prosecuted at court martial under the Code of Service Discipline.  [I have my reservations whether the JAG and DMP could be ‘dealt with’ under the ‘new’ Military Justice at the Unit Level (MJUL), but that discussion is for another Blog post.]

So why has the Governor in Council been so cavalier in not designating a new Chief Military Judge?  True, the Deputy Chief Military Judge has been the de facto and de jure Acting Chief Military Judge since 21 March 2020.[7]  However, by that logic, there was no great rush to appoint a new DMP or DDCS, or to re-appoint the JAG (particularly considering that the OJAG has been led by an Acting JAG for most of the past year).

And, in light of what could be characterized as a challenge to the independence of the military judiciary, the ongoing refusal by the Governor in Council to designate a new Chief Military Judge could be seen, by a reasonable and dispassionate observer, fully informed of the relevant facts and law, as a subtle rebuke for the temerity of three-quarters of the military bench that held that they lacked independence because of the actions of the Executive.

Notwithstanding that the CMAC held that the independence of Military Judges is not undermined by the possibility of prosecution under the Code of Service Discipline, leave has been sought to appeal the CMAC judgments in Edwards, et al, to the SCC (SCC Application #39820).  The SCC has yet to rule on the Application for Leave to Appeal.

I contend that the independence of the military judiciary is not fully resolved, and this issue is at least as important as the extra-territorial application of the Charter arising in the context of the Code of Service Discipline (see: R v McGregor, 2020 CMAC 8, Leave to Appeal granted Corporal C.R. McGregor v Her Majesty the Queen, 2021 CanLII 98081).  If the SCC does grant leave to appeal, the ongoing refusal by the Executive to designate a Chief Military Judge ought to be one of the factors considered by the Court.

 

Military Police and Repeated Delay

Questionable refusal or delay by the Governor in Council to exercise its statutory powers and functions to uphold the repute of military justice is not the only source of delay that adversely affects the administration of justice in the CF.

I have commented previously about unreasonable delay in the conduct of Military Police investigations.  This shortcoming is widely recognized by many CF personnel and has not improved much in the past few years.  The unfortunate inverse circumstance has also arisen of late: recklessly or imprudently rushed investigations, leading to a ‘rush to judgment’ by Military Police investigators, which can lead to incomplete or ineffective investigations.

Some of these were doubtlessly precipitated by the MND’s problematic policy decision to refer allegations of ‘sexual misconduct of a criminal nature’ to civil courts of criminal jurisdiction:

The MND’s New Policy and the Rule of Law, 19 November 2021

Setting Conditions for Failure, 11 July 2022

 

The Military Police – in particular, the Canadian Forces National Investigation Service (CFNIS) – likely realizing that they could not take the leisurely pace that typically characterizes investigations under the Code of Service Discipline, have sporadically laid charges before civil courts of criminal jurisdiction after conducting hastily-completed investigations.  ‘Timeliness’ is only a benefit when accompanied by its siblings ‘effectiveness’ and ‘thoroughness’.  That can present a demanding threshold of competence; however, a truly professional police force ought to be able to meet such a threshold.

A professional and competent police force should also be capable of timely resolution of conduct complaints against its personnel.

Sadly, this is not the case with the Military Police.

I have the unfortunate experience of assisting clients with Military Police conduct complaints.  The resolution of these complaints often represents the antithesis of timely and effective adjudication.  By way of example, one such complaint remains unresolved after more than five years, and not for lack of effort by the complainant.  Indeed, the Canadian Forces Provost Marshal (CFPM) and his staff delayed taking any action on the complaint for two years.  Their justification was that the investigation that gave rise to the complaint was ‘ongoing’.  That is a common excuse offered by the CFPM and his staff.  It is also disingenuous.

In that matter, and in others, the investigation was not ‘ongoing’.  The investigation had long been concluded.  Indeed, one of the reasons why the Military Police – particularly the CFNIS – are so slow in laying charges under the Code of Service Discipline, is that they generally do so only after the investigation is concluded in its entirety, as opposed to when a suspect is arrested or when they have sufficient evidence to warrant the laying of a charge.  The real excuse for the delay in adjudicating conduct complaints, and one that is often not acknowledged directly, is that there is an ongoing process (typically, but not always, a prosecution) based upon the investigation.  Presumably, the Military Police are concerned that an inquiry into misconduct by investigators might undermine the investigation and, consequently, any prosecutorial process that relies upon the investigation.

However, such a justification lacks merit.

If the complaint against the Military Police is unfounded, then it is highly unlikely to affect the merit of the investigation or subsequent prosecution.  And if the complaint against the Military Police is, in fact, meritorious, then that is relevant to both the investigation and any process that relies upon it.  After all, if the Military Police investigators infringed the Charter rights of the subject of the investigation, infringed other laws of Canada, contravened the Military Police Code of Conduct, or their conduct otherwise represented an abuse of process, that will inevitably be relevant to the merit of the evidence they gather and the fairness of the process that relies upon the investigation.

The rote refusal by the CFPM and his staff even to conduct preliminary examination of readily available evidence relating to a Military Police conduct complaint creates unreasonable delay and undermines the pursuit of justice.  It brings the administration of justice into disrepute.

By way of example, nothing would bar Professional Standards investigators from reviewing a complaint, reviewing supporting documents provided by the complainant, and even reviewing copies of the relevant Military Police investigations, in order to conduct an initial appraisal of the complaint.  This would permit them to identify potential avenues and methods of inquiry.  They could identify gaps or ambiguity in the complaint.  They could seek clarification from the complainant.  And all of this could be done as initial staff checks, without recourse to interviewing the Military Police personnel who are the subjects of the complaint.

Instead, they wait months, or even years, before they even examine the nature of the complaint.  They then take several months – consistent with the slow pace of Military Police investigations generally – to conclude their investigations.  And even once the Professional Standards investigations are completed, there is no guarantee of a meaningful resolution.

In one matter in which I was involved, the purported adjudication of the Military Police conduct complaint under s 250.29 of the NDA resulted in an ambiguous ‘determination’ by the Deputy Commander Canadian Forces Military Police Group (D Comd CF MP Gp) that misconduct may have arisen.

That was an astounding result.  In every process I have observed in which a CF statutory decision-maker has imposed an adverse and coercive decision on a CF subordinate, the decision-maker was invariably definitive in the result.  The decision-maker would confidently proclaim, based upon the oft-used and seldom-understood mantra “… on a balance of probabilities …” that misconduct had arisen, and the adverse, coercive result was justified.

Yet here, the (then) DComd CF MP Gp offered the equivocal and ambiguous result that perhaps misconduct had arisen.

Moreover, in the same process, the CFPM was asked to provide a remedy under the Charter.  In response, the DComd CF MP Gp stated:

Please be advised that upon review of your complaint it has been determined that the Office of PS [Professional Standards] will not be able to make any findings regarding alleged rights violations in keeping with the Canadian Charter of Rights and Freedoms (the Charter). Section 24(1) of the Charter states “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances“. As the Office of PS is not “a court of competent jurisdiction” it has no mandate to make a determination with respect to any alleged violations of the Charter. We will however be examining other aspects of these allegations in order to determine if the actions of the Military Police (MP) involved were in accordance with MP Professional Code of Conduct, policies, and procedures. [emphasis in original]

 

This statement demonstrated a remarkable lack of understanding of the function of the Military Police conduct complaint process and the role of the various statutory actors and decision-makers in that process.

First, it is irrelevant whether the Office of Professional Standards has a mandate to make determinations in respect of the Charter.  The Professional Standards section makes recommendations to the actual statutory decision-maker: the CFPM.  The Professional Standards investigators are not the decision-maker assigned this duty and function by Parliament.  Second, the decision-maker (which should be the CFPM and not the DComd CF MP Gp) is entirely capable of making a determination of under the Charter, and can even provide a remedy for any Charter infringement, provided that the remedy falls within the scope of the decision-maker’s powers and functions (R v Conway, 2010 SCC 22, para 40, per Abella J).  And remember: the officer who made this marked error had access to legal advice, free of charge, from the Office of the JAG.

When faced with concerns about inordinate delay in the process, the same DComd CF MP Gp stated:

With respect to the issue you raised on timeliness of the conclusion of the review, the NDA stipulates a duty to investigate a complaint as soon as practicable, and a one-year deadline for disposal. In this case, your client’s complaint was put into abeyance pending completion of judicial proceedings, including an appeal, on matters germane to the conduct complaint.

 

In other words, taking three years to adjudicate a Military Police conduct complaint is OK, provided that you unreasonably delay the commencement of the process and adjudication of the complaint for two years.

And the fact that the DComd CF MP Gp was purporting to adjudicate the complaint was also problematic in light of the fact that the NDA clearly assigns this duty and function to the CFPM.

The justification apparently advanced by the CFPM for this improper sub-delegation is that he, the CFPM, must be kept apart from such determinations because the CFPM may also be called upon to preside over Military Police Credential Review and that, in any event, section 49 of the NDA permits him to sub-delegate this function.

However, that rationale is problematic.

Let’s first deal with the issue of sub-delegation generally, and then turn to whether the CFPM’s role in ‘Credential Review’ warrants an exception.

In the administration of the affairs of the CF, subordinates can, in certain circumstances, perform the duties and functions, or exercise the powers, of a superior either under a delegation or devolution of powers.  However, the basis by which DComd CF MP Gp purports to exercise the CFPM’s duties, powers, and functions in this particular circumstance is, at best, unclear, and, at worst, unsubstantiated or unjustified.

In relation to the CFPM’s duties, powers and functions under Division 2 of Part IV of the NDA – i.e., the adjudication of Military Police conduct complaints in the first tier of that process – there is no express authority for him to delegate these duties, powers, and functions to another officer.  That does not mean that officers and non-commissioned members (NCM) cannot assist the CFPM in performing these duties, powers, and functions.  And, clearly, one of the roles of the Military Police Professional Standards section is to do just that (noting that, contrary to the above-statement by the (then) DComd CF MP Gp, the Professional Standards section is not making a ‘determination’ – they merely offer recommendations).  There is a distinction between assistance and the actual adjudicative role.

There is no basis for the CFPM to sub-delegate the duties, powers, and functions in question.  There is no express provision for delegation within the relevant provisions under the NDA, and I contend that the construction of the relevant provisions does not suggest an inference that the duties, powers, and functions may be delegated.

Senior Military Police officers have asserted that section 49 of the NDA permits this sub-delegation.  Section 49 of the NDA provides that:

Any power or jurisdiction given to, and any act or thing to be done by, to or before any officer or non-commissioned member may be exercised by, or done by, to or before any other officer or non-commissioned member for the time being authorized in that behalf by regulations or according to the custom of the service.  [emphasis added]

 

However, these same Military Police officers have not described either a regulation or a custom of the service that would permit a devolution of the CFPM’s powers to the Deputy Commander of the CF Military Police Group.  The QR&O, the Military Police Professional Code of Conduct, SOR/2000-4 (“Code of Conduct”), and even the Defence Administrative Orders and Directives (DAOD) are silent on this issue.  I contend that there are no regulations that empower the DComd CF MP Gp to exercise the duties, powers, and functions of the CFPM in this role.  Nor has anyone pointed to a valid “custom of the service” that would support such a contention.

Moreover, I contend that the construction of these provisions anticipates that the CFPM will perform these duties, powers, and functions personally.[8]  The regime for Military Police conduct complaints was introduced in the 1998 amendments to the NDA which also introduced significant reform to the Code of Service Discipline and the CF grievance process.[9]  Those amendments introduced clear and express provisions for delegation of powers in terms of the adjudication of both matters under the Code of Service Discipline and of grievances.  In contrast, Part IV of the NDA did not include any authorization for the CFPM to delegate his duties, powers, or functions in respect of Military Police conduct complaints.

Even if devolution of the CFPM’s adjudicative role were permitted under the NDA (and it clearly is not permitted), I contend that the DComd CF MP Gp could not exercise those duties, powers, and functions.

The CFPM is a staff principal at National Defence Headquarters (NDHQ).  I am aware that the officer who occupies the position of CFPM is also appointed as the Officer Commanding the CF Military Police Group, a formation of the CF.  In other words, the same officer occupies two offices in what is colloquially referred to as ‘double-hatting’.  And that distinction is important; these are two distinct offices.  At present, Brigadier General S. Trudeau is both a ‘Level 2’ Staff Principal at NDHQ, as well as a formation commander.  Those are two distinct offices, and two distinct roles, with two distinct sets of duties, powers, and functions.

The CFPM may delegate duties, powers and functions to a subordinate, where such delegation is permitted.  In some circumstances, a subordinate may also exercise duties, powers, and functions devolved from the CFPM, again, where devolution is permitted at law.  The same is true in relation to the Commander, CF Military Police Group.  However, such delegation and devolution must follow the respective hierarchies.  The DComd CF MP Gp is a subordinate of the Commander, CF MP Gp.  He is not a subordinate of the CFPM.

This is not a question of mere semantics.  If an officer purports to exercise devolved or delegated duties, powers, and functions, such delegation or devolution must be clear and must be lawful.  That officer, who purports to exercise specific statutory powers, must be able to articulate the lawful basis for doing so.  This is not about semantics; this is about the rule of law in a constitutional democracy and in an armed forces governed under an enabling statute.

There is no express provision permitting the CFPM to delegate his duties, powers, and functions in resolving Military Police conduct complaints.  If a subordinate of the CFPM purports to rely on devolution of those duties, powers, and functions, that subordinate must, as an office, be subordinate to the CFPM.  Moreover, in the interests of transparency and clarity in the exercise of statutory duties, powers, and functions, the subordinate should be capable of identifying and articulating the source of such devolution.  As I indicate above, the construction of the Military Police complaint process under the NDA clearly anticipates that the duty and function will be performed by the CFPM personally and cannot devolve to a subordinate.

But what of potential conflict of interest where the CFPM must adjudicate Military Police Credential Reviews?  Frankly, what they are really referring to is bias, and not conflict of interest.  And there is not much, if any, risk of either conflict of interest or bias.  Second, the adjudication of such Credential Reviews is established in regulation, and not statute.  The CFPM’s regulatory obligations must be interpreted in a manner consistent to his statutory obligation to adjudicate conduct complaints, which takes precedence.

The duty and function of the CFPM to adjudicate Military Police conduct complaints is expressly established within the NDA.[10]  The Military Police Credential Review process has been created in regulation, by the Governor in Council, under the authority of the NDA.[11]

The Military Police Credential Review Board is convened under art 22.04 of the QR&O.  Under sub-art 22.04(4), the Board consists of: a Chairperson and two Vice-Chairpersons, each of whom is an officer and a member of the Military Police, appointed by the Vice-Chief of the Defence Staff, upon the recommendation of the CFPM; and not more than 22 other members appointed by the CFPM.  The Chairperson is typically the DComd CF MP Gp.

Where a member of the Military Police responsible for professional standards (i.e., within the Professional Standards section) “… considers that there has been a breach of [the Military Police Code of Conduct] by another member of the military police that warrants review, that member shall refer the matter to the Chairperson …”.[12]  The Chairperson shall then assign a panel to review the matter.

Upon completion of its review, the Panel may make any recommendation to the CFPM that it considers appropriate, including, if it determines that a member of the military police has breached the Code of Conduct, a recommendation that the CFPM: (a) revoke the Military Police Credentials of the member; (b) suspend the Military Police Credentials of the member for a period of not more than 180 days, on any terms or conditions that it considers appropriate; or (c) re-instate the Military Police Credentials of the member, with or without terms or conditions.[13]  The Panel shall give reasons for its recommendations.[14]

Based upon the anticipated action by the CFPM under art 22.04 of the QR&O, perhaps someone might conclude that there would be a potential conflict of interest or bias if the CFPM were to also adjudicate a Military Police conduct complaint that concerns the same material facts as a matter brought before the Military Police Credential Review Board.  Indeed, a determination that a Military Police conduct complaint was founded could lead to a matter being referred to the Military Police Credential Review Board.

But would that actually represent a conflict of interest or give rise to bias?  Would it be procedurally unfair to an officer or NCM of the Military Police if the CFPM were to adjudicate both a conduct complaint and, if that conduct complaint were founded, the appropriate recourse regarding that officer or NCM of the Military Police?  Or would those two actions represent two distinct, yet related, aspects of the CFPM’s statutory duties and functions established at section 18.4 of the NDA, and reiterated at art 22.002 of the QR&O?

We must remember that, when conducting Military Police Credential Review, the CFPM does not perform this role alone.  He is aided by a Panel, established in regulation, and which provides recommendations that are expected to be backed by intelligible and transparent reasons.  Presumably, the CFPM will typically, if not always, adopt these recommendations.  Similarly, any adjudication and result of a Military Police conduct complaint would necessarily be relevant to a Credential Review, regardless of who adjudicated that complaint.

And we must also remember that in administrative adjudication under the NDA, as it is broadly conceptualized, the corporate approach of the CF is that decision-makers need not be independent (at least, in the same manner as the judiciary) or even arm’s length from the CF itself.  Claims of ‘institutional bias’ arising from the fact that the decision-maker happens to be a senior CF leader typically fail.[15]  The expectation is that they will approach the matter with an open mind[16] and will articulate transparent and intelligible reasons to justify the decision[17].

The role of the CFPM in adjudicating Military Police conduct complaints is assigned directly and expressly to the CFPM by Parliament in the NDA.  The CFPM has also been assigned the role of making the final determination in Credential Review.  He does so with the assistance of a panel from the Military Police Credential Review Board.  However, this was assigned by the Governor in Council under regulation (as is the role and function of the Military Police Credential Review Board).  As a matter of statutory and regulatory construction and interpretation, regulations, like statutes, benefit from a presumption of validity.  However, as part of this presumption, it is presumed that the Governor in Council would not enact regulations under the authority of the NDA that are inconsistent with the CFPM’s statutory duties assigned by Parliament.  The regulations, therefore, must be interpreted in a manner that reconciles the regulation in a manner consistent with the NDA, its enabling statute (and not the other way around).[18]

Military Police conduct complaints are often not resolved in a timely fashion.  The CFPM cites disingenuous reasons for this unreasonable delay.  The CFPM also evades his statutory duty and function in relation to these complaints by improperly sub-delegating them to the DComd CF MP Gp.  As a result of delay and improper exercise of the statutory duty and function, this aspect of the administration of justice in the CF is undermined and can be brought into disrepute.

 

Conclusion

Timeliness is vital in the administration of justice generally, and in the governance of the CF specifically.  Timeliness is of fundamental importance in the maintenance of discipline, efficiency, and morale of the CF.  As we will discuss in future Blog posts regarding Military Justice at the Unit Level (MJUL), the recent replacement of ‘summary trials’ with ‘summary hearings’ was driven in large part by the goal of delivering more timely ‘justice’.  Unfortunately, as I have observed previously, and will expand upon in the upcoming series on MJUL, a principal driving factor was the desire to make it easier to ‘convict’ CF personnel accused of misconduct.  Summary hearings will almost certainly be timely.  Whether they will be just is an entirely different question.

Timely justice is not solely about punishing CF personnel more quickly.  It must also extend to timely resolution of complaints, grievances, and basic administration in the affairs of the CF.  It must extend to the timely appointment of key actors, particularly those entrusted with important roles in the administration of military justice.  And ‘timeliness’ must be accompanied by its siblings ‘effectiveness’ and ‘thoroughness’.  Better still, it would be great if their ‘open-minded’ cousin also joined them and encouraged them to provide transparent and intelligible reasons that justify the outcomes of their decisions.

And I am not describing an ‘ideal’ standard – that is the baseline for competent statutory decision-making.

One day, I hope to see this arising within the context of the administration of the affairs of the Canadian Forces.  [However, as I learned early in my career: ‘hope’ is not a method.]

 

[1] An object example arises with s 12 of the National Defence Act, RSC 1985, c N-5 [NDA], which empowers the Governor in Council (subs 12(1)) and the Minister of National Defence (subs 12(2)) to enact regulations “… for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of [the NDA] into effect …” and the Treasury Board (subs 12(3)) to enact regulations providing for matters such as pay, allowances and reimbursement of expenses of officers

and non-commissioned members of the Canadian Forces.

[2] NDA, n1, s 249.18.

[3] NDA, n1, s 165.1.

[4] NDA, n1, s 9.

[5] I am less inclined to describe the re-appointment of RAdm Bernatchez as JAG as an example of timely decision-making by the Executive.  It has the hallmarks of a lazy decision; in lieu of the more difficult process of selecting a successor for a JAG (who has been working under the cloud of a scandal regarding the reluctant disclosure of a study on Courts Martial, ordered by her predecessor, and the disingenuous justifications offered for attempting to withhold its disclosure), it appears that the MND and Governor in Council opted for the more expedient approach of re-appointing the same officer, ‘at the last minute’, for a shorter term.

[6] NDA, n1, s 165.23.

[7] NDA, n1, s 165.29.

[8] Carltona, Ltd. v Commissioners of Works, [1943] 2 All ER 560 (CA); The Queen v Harrison, [1977] 1 SCR 238, 245-46 per Dickson J; Comeau’s Sea Foods Ltd. v Canada (Minister of Fisheries and Oceans), [1997] 1 SCR 12, 22 per Major J.  While these cases focus on the devolution of Ministerial authority, similar principles apply in the devolution of statutory powers.  ‘Devolution doctrine’ rests upon principles of statutory interpretation.  For a useful summary of relevant analysis, see: Ann Chaplin, “Carltona Revisited: Accountability and the Devolution of Statutory Powers” (2007) 39:3 Ottawa L Rev 495.

[9] An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, c 35 [Bill C-25].

[10] NDA, n1, ss 250.26 to 250.29.

[11] In particular, see: QR&O art 22.044 and Appendix 7.1, Military Police Code of Professional Conduct, SOR 2000-14.  Both regulations were enacted by the Governor in Council under the authority of NDA, n1, subs 12(1).

[12] QR&O, sub-art 22.04(7).

[13] QR&O, sub-art 22.04(11).

[14] QR&O, sub-art 22.04(12).

[15] See, for example: McBain v Canada (Attorney General), 2012 FCA 23, aff’g McBain v Canada (Attorney General), 2011 FC 745.

[16] See, for example: Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817Imperial Oil Ltd. v Quebec (Minister of the Environment), 2003 SCC 58, para 28.

[17] Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

[18] See: Katz Group Canada Inc. v Ontario (Health and Long‑Term Care), 2013 SCC 64, paras 24 to 28.

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