What were they thinking?

It has been a busy time of year recently, and, coupled with research on judicial independence and drafting submissions for the Third Independent Review of the National Defence Act, the frequency with which I have offered commentary in this Blog has diminished.

But, fear not, Dear Reader, that doesn’t mean that you should expect lumps of coal in your military legal stockings this year.  Over the past few weeks, I have encountered some odd statements and issues that I would classify as falling into the ‘What were they thinking?’ category.

Naval Rank Designation

Some recent tragic news arising within the command called the Royal Canadian Navy drew my eye for reasons other than the unfortunate circumstances that gave rise to the news item.  Senior commanders in the Royal Canadian Navy referred to the rank of ‘Master Sailor’.  Presumably, they have also been using the terminology ‘Leading Sailor’, ‘Able Sailor’, and ‘Ordinary Sailor’.

I thought: “Hold on – I thought we discussed this before …”.  I also thought that, perhaps, the leadership of the Canadian Forces had actually taken the appropriate steps to amend the Governor in Council regulation that sets out rank designations.  So, I dutifully checked article 3.01 of the Queen’s Regulations and Order for the Canadian Forces.

Nope.  The rank designations for non-commissioned members (NCM) who wear ‘naval’ uniform continue to be: Ordinary Seaman, Able Seaman, Leading Seaman, and Master Seaman.

I have asked this before: Is the administration of the affairs of the Canadian Forces (CF) going to be governed, as all governmental activity should be, by the Rule of Law, or is it going to be governed by arbitrary whim?

Obviously, the question fell on deaf ears.  Moreover, the Office of the Judge Advocate General is either not pushing back on this officially sanctioned disregard for properly enacted regulation, or legal officers are voicing their concerns, and are being ignored.  Either possibility is problematic.

So, I will say this again for the ‘cheap seats’ and the senior CF leaders who might be hard of hearing: You don’t get to make things up as you go along.  You don’t get to ignore, selectively, applicable laws.  And, absent lawful authority to do so, you don’t get to exercise duties, powers, and functions that the National Defence Act expressly assigns to another statutory actor – particularly when that ‘statutory actor’ is also a constitutional actor like the Governor in Council.

And I suspect that some people might object to the position I take.  Some might suggest that the CF leadership is presently staffing the proposed changes through to the Governor in Council.  Others might be quick to point out that this is a minor or insignificant issue – “it’s not like someone’s rights, interests, or privileges are being adversely affected in a significant manner” (although, I doubt most senior decision-makers would express their objection in that way).

Frankly, neither of those objections have much merit.

If the appropriate staff in the CF is, indeed, staffing a Memorandum to Cabinet (presumably through the Minister), that’s great.  I wish them the best of luck for an efficient and effective handling of the matter.  But here’s the thing: until the Governor in Council amends article 3.01 of the QR&O, the current provision is the one that has the force of law.  The fact that you are presently staffing the recommendation doesn’t change the law.

The law that applies, and the law with which the leadership of the CF must comply, is the law that is presently enacted.  That is, more or less, how a constitutional democracy functions.  You don’t get to pretend the law is different because you plan on amending it.

I wonder how the Commander of the Royal Canadian Navy would respond if a subordinate, tasked with drafting a study or report, offered the following excuse if he or she were late in submitting the report: “I know you wanted it submitted on 15 December 2020, but I won’t have it done until some time in January 2021.  But I am presently drafting it, so that’s the same as completing the report, right?”

Yeah, that’s what I thought.

And that brings me to my second point: whether this is, indeed, a ‘minor’ breech of the Rule of Law.  And there are two distinct factors that merit consideration.  The first is similar to the ‘broken windows theory’ in criminal law and criminology.  Some people might use the adage “where there’s smoke, there’s fire”.  The ‘broken windows theory’ suggests that policing methods that target minor crimes help to create an atmosphere of order and lawfulness, thereby preventing more serious crimes.  Equally, respect for the Rule of Law in minor administration helps engender respect for the Rule of Law in more significant decision-making.

The inverse theory is also applicable.  Prevalence of minor crimes might point to greater issues of lawlessness, and the lack of enforcement regarding minor offences might embolden malfeasants to commit more serious offences.  Similarly, minor breaches in adherence to the Rule of Law by statutory decision-makers might well signal a broader disregard for the Rule of Law in more significant decision-making, or might even embolden them to play fast and loose with statutory decision-making of a more significant nature.

And that leads to the second factor regarding whether this derogation from the law is ‘minor’.  The Deputy Commander of the Royal Canadian Navy, Rear Admiral Chris Sutherland, responded quite viscerally to critics of the proposed change to the rank designations in question: “Rear Admiral lashes out at ‘hateful’ comments as navy looks to drop ‘seaman’“.  When he did so, via Facebook post, he expressly invoked the importance of compliance with the law:

“To those of you currently serving with these beliefs, I would like to emphatically state you have no place in our Navy. If you cannot live by or support the values of the Canadian Charter of Rights and Freedoms, then you cannot defend them. …”

Well, admiral, what’s good for the goose is good for the gander (or, perhaps, what’s good for the sailor – or seaman – is good for the Admiral): You are correct that your subordinates are obliged to comply with the law and promote the Rule of Law.  But, so are you.  It is doubly important for senior personnel to demonstrate such compliance.  It’s called leadership by example.

In light of prior public commentary on the lack of authority of CF decision-makers to change rank designations without Governor in Council approval, I have to ask: What were they thinking?

‘New’ CFOO for the Office of the Chief Military Judge

This past year has brought repeated applications by various ‘accused’ (being tried by court martial) regarding the independence of the military judiciary.

The first casualty was the Chief of the Defence Staff’s ‘Designation Order’ of 2 October 2019.  The order placed military judges under the disciplinary decision-making jurisdiction of the Deputy Vice Chief of the Defence Staff.  After several months of clear warning signs from various military judges that the order was unacceptable, and progressively escalating judicial orders following declarations of non-compliance with the Canadian Charter of Rights and Freedoms, the Chief of the Defence Staff (CDS) finally suspended the ‘Designation Order’.

It was clear from the content of the ‘Suspension Order’ that the CDS did so reluctantly and was disinclined to actually withdraw or cancel the impugned ‘Designation Order’.  Based upon the timing of the ‘Suspension Order’, dated 15 September 2020, it appeared that the CDS took this action only after a ‘hue and cry’ was raised when the prosecution of multiple charges of sexual assault, laid against an officer of the Cadet Instructor Cadre, were stayed.

However, when the CDS issued his ‘Suspension Order’, he expressly reminded military judges that they remained subject to the disciplinary jurisdiction of the Executive.  Specifically, they were then subject to the disciplinary decision-making of an officer holding the rank of Captain (Navy)/Colonel, who commanded CFB Ottawa-Gatineau.  Under the now-suspended ‘Designation Order’, that decision-making was relegated to an officer typically holding the rank of Rear-Admiral/Major-General.

Not surprisingly, the applications under the Charter regarding judicial independence continued.  Notwithstanding what may be considered an ‘outlier’ judgment in R v MacPherson and Chauhan and J.L., 2020 CM 2012, at least two military judges resumed issuing stays of prosecution based upon declarations that the Canadian Forces Organization Order (CFOO) 3763, dated 27 Feb 2008, which established (among other things) the disciplinary chain of command over military judges, infringed the right of an accused to a trial before an independent and impartial tribunal, as guaranteed by section 11(d) of the Charter.

In effect, the CDS had simply substituted the unacceptable disciplinary jurisdiction under the ‘Declaration Order’ with a similarly unacceptable disciplinary jurisdiction under the CFOO.  To quote Military Judge Commander M. Pelletier in R v Proulx, 2020 CM 4012 [Proulx] “… the Suspension Order not only fails to cure the previously identified symptom, it creates a new symptom revealing that the disease—the lack of independence of military judges in relation to the executive—has not been cured.” [para 67]

Just as the Deputy Chief Military Judge, Lieutenant-Colonel L-V. d’Auteuil had done in R v Christmas, 2020 CM 3009, Commander Pelletier stayed the prosecution.  He declined to limit his remedy solely to a declaration of unconstitutionality for the matter before him: “I believe doing so only invites authorities to apply “Band-Aid” solutions to individual symptoms instead of taking concrete steps to acknowledge the disease and its cure so that we can move ahead with reassurances to the public, accused persons and the reasonable, well-informed person that military judges have sufficient independence from the executive.” [Proulx, para 99]

In response to the clear intention, communicated by at least two military judges, to stay prosecutions until the Executive addressed the ‘disease’ and not merely the ‘symptoms’ (to employ Commander Pelletier’s – possibly pandemic-inspired – analogy), the CDS again took action to try to salvage the mess that the Executive had begun to make of the Code of Service Discipline.  However, this was yet another ‘Band-Aid’ solution, and one that was apparently not well-conceived or scrutinized.

On 18 November 2020, the CDS issued a ‘new’ CFOO 3763.  This ‘new’ CFOO is problematic and appears to have been the result of poorly scrutinized, and hastily cut-and-pasted, mediocre staff work.  And, contrary to being truly ’new’, it appears to have been resurrected from an older version of the CFOO.  To my knowledge, this CFOO is the current order governing the Office of the Chief Military Judge.  I cannot be certain, as CFOO are not publicly available, and are only available via the Defence Wide Area Network (DWAN) (the CF’s intranet).

Based upon para 4 of CFOO 3763, dated 18 November 2020, either Parliament reintroduced Disciplinary Courts Martial and Special General Courts Martial (which were removed from the Code of Service Discipline in 2008 under Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, SC 2008, c 29) while no one was paying attention, or someone at Chief of Programme (C Prog) hastily re-drafted a previous CFOO and staffed it for approval, quite probably without obtaining any legal review from the Directorate of Administrative Law.  At least, I hope that this error arose because of a failure to seek legal review from the appropriate legal advisor.

In addition to the inclusion of references to types of courts martial that have not existed for over a decade, the CFOO also uses terminology that was removed from the Code of Service Discipline lexicon in 1998.  The CFOO refers to appointment of “… military trial judges to preside as Presidents … at Standing Courts Martial …” and the appointment of “… military trial judges to officiate as judge advocates at Disciplinary and General Courts Martial …”.  Military Judges have been referred to as ‘Military Judges’, and not ‘Military Trial Judges’, since the reforms introduced in Bill C-25 in 1998.  They are no longer referred to as ‘Presidents’ of Standing Courts Martial or ‘Judge Advocates’ of General Courts Martial..

One possible reaction to the revelation might be that I am, yet again, ‘making a mountain out of a molehill’.  After all, these errors do not alter the fact that the ‘new’ CFOO allegedly achieved the objective of removing the disciplinary jurisdiction of the Executive over military judges.

While that may be true on a very narrow construction of the order, the problem with the CFOO is that it reflects not only sloppy staff work and, potentially, neglect to seek adequate legal review of a document that would inevitably be scrutinized in future court martial proceedings, it also reflects continued inattentiveness to meaningful and deliberative reform (or even administration) of the Code of Service Discipline.

Indeed, notwithstanding that sub-article 4.091(2) of the QR&O expressly states: “The Chief Military Judge shall not exercise the powers or jurisdiction of a commanding officer or an officer commanding a command in respect of any disciplinary matter or a grievance.” [emphasis added], para 6 of the CFOO states: “After adjudication of a grievance by the commanding officer of the Office of the CMJ in his capacity as a commanding officer, the next senior authority for the grievance is the CDS.”

That makes no sense.  Putting aside the awkward grammar of para 6 of the CFOO, both article 4.091(2) of the QR&O and para 5 of the CFOO expressly state that the Chief Military Judge cannot exercise the powers or jurisdiction of a commanding officer (or officer commanding a command) in relation to a grievance. The current CFOO 3763 does not identify any other commanding officer for the Office of the Chief Military Judge.

It is possible that there is an expectation that the CO/Base Commander for CFB Ottawa-Gatineau would exercise these powers under CFOO 0002 – CFB Ottawa-Gatineau, dated 29 October 2019, in conjunction with article 3.23 of the QR&O.  However, if that were the case, one would have expected the CFOO to provide some sort of direction regarding those functions.  It also gives rise to continuing ambiguity about the extent to which members of the Executive exercise authority over Military Judges.  This ambiguity further highlights the deficiency of the ‘new’ CFOO in addressing the issues that have now been raised, multiple times, concerning the governance of the Office of the Chief Military Judge and the exercise of disciplinary jurisdiction (or not) by the Executive over military judges.

CFOO represent some of the fundamental building blocks of the Canadian Forces and play a direct role in the governance and administration of the affairs of the Canadian Forces.  They therefore require the requisite attention to detail of any other foundational order or directive, particularly when they lie at the centre of an ongoing controversy concerning the functioning of the Code of Service Discipline.

Again, I have to ask: What were people thinking when this CFOO was approved and published?

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