Yellow Card for the PM and his Deputy
The focus of this blog is on ‘military law’, particularly public and administrative law pertaining to the Canadian Forces. Due to the nature of those topics, political actions and decisions, and politics generally, can inform the subject matter about which I write. From time to time, that necessitates discussion about political actions, decisions, and even motives. However, I try to avoid making purely political commentary. My goal is to inform the public, and particularly the military community, on relevant issues and aspects of ‘military law’.
That said, I would be remiss if I did not offer some pertinent observations regarding comments and actions of certain key politicians over the course of the past couple of days.
Following the public comments of the Acting Chief of the Defence Staff (A/CDS), Lieutenant-General (LGen) Eyre regarding his decision concerning what action he would, or would not take, in relation to the Commander of the Royal Canadian Navy (RCN), Vice-Admiral (VAdm) Craig Baines, the Prime Minister, Justin Trudeau, and his Deputy Prime Minister, Chrystia Freeland, appeared to experience an over-whelming compulsion to voice their concerns about LGen Eyre’s decision.
And, in statements reported on 30 June 2021, they were far from supportive.
I suggest that they also stepped outside their ‘lane’ – hence the ‘yellow card’.
The freshly shaven Prime Minister was reported to have stated: “Many women and people I talk to are disappointed … This further demonstrates the work that the military and the military’s leadership needs to do to regain the trust of Canadians, because there is such a deep need for real and substantive culture change and change in actions.”
His Deputy was equally dismissive of LGen Eyre’s decision: “I was surprised and disturbed by the decision … My immediate thought was, ‘How would I feel if I were a Canadian woman in the Armed Forces?’”
She went on to say: “I know, and I think every single woman in Canada knows after the revelations of recent months, that Canadian women in uniform work in a toxic culture. They work in a toxic system which must be changed.”
We’ll return to the issue of toxic work culture in a moment.
And what did the Minister of National Defence, Harjit Sajjan, think of all this?
Well, initially he was circumspect, and his spokesperson offered that “… the Minister agrees with the Acting Chief of the Defence Staff that the recent golf game showed a lack of judgment … [and] … The Minister expects regular updates on the steps that the Commander of the Navy will be taking to rebuild the trust of those who serve and Canadians…”. However, there was no comment regarding whether the A/CDS consulted with the Minister, or what the Minister thought of the decision.
While the Prime Minister and his deputy were clearly not supportive of LGen Eyre, the Prime Minister did voice his support for his Minister of National Defence.
Then, yesterday, on a Canada Day marked by both reflection and muted celebration, the Minister of National Defence expressed continued support, if muted, of the A/CDS.
So, it appeared that the current government was attempting to play both ends of the issue: the Prime Minister and his Deputy condemned the general officer whom they have placed in a difficult situation, while their cabinet colleague, the Minister of National Defence, expressed support for that same officer (albeit delayed).
So much for the principle of Cabinet solidarity.
Then, today, 2 July 2021, the Prime Minister ‘flip-flopped’ – to an extent. Now he purportedly has confidence in LGen Eyre. It’s not clear what caused his change of perspective. And we don’t know what Ms Freeland thinks about this situation now.
What I wish to discuss first are the roles that Parliament has established in statute regarding the governance of the Canadian Forces. I do not claim to be a ‘defence expert’ – there’s a lot of that going around – indeed, I am skeptical about many self-declared experts. But I do have a fair bit of familiarity with the public law regimes and principles pertaining to the governance of the Canadian Forces.
The National Defence Act (NDA) assigns to the Chief of the Defence Staff – an officer appointed by the Governor in Council – the control and administration of the Canadian Forces. His exercise of these duties, powers, and functions is subject to the direction of the Minister of National Defence. He is also constrained by any regulations enacted by the Governor in Council, the Minister, or the Treasury Board (or any other statutory instruments created under the NDA).
Furthermore, Parliament has expressly directed that, subject to any specific direction by the Governor in Council (typically through regulation) “… all orders and instructions to the Canadian Forces that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the Minister shall be issued by or through the Chief of the Defence Staff.”
Ultimately, Parliament assigned the management and direction of both the Canadian Forces and the Department of National Defence to the Minister.
So, it should be relatively clear, even to non-lawyers like the Prime Minister and his deputy, that the CDS is responsible for the control and administration of the CF, albeit subject to direction from the Minister as well as direction (typically in the form of regulations) from the Governor in Council. Essentially, the chain of statutory authority – what many in uniform would characterize as the ‘chain of command’ (although civilians do not exercise military command, which is distinct from ‘civilian control’ of the military) – would extend from the Governor in Council, to the Minister, to the CDS, who then exercises control and administration over the Canadian Forces. (Note, too, that the Deputy Minister does not, technically, feature in this sequence.)
Again, my focus is typically on public and administrative law, not the ‘politics’ of a given circumstance. So, let’s look at this matter in the context of that public law regime.
The CDS is appointed by the Governor in Council. As I have explained previously, the Governor in Council has very broad discretion in the appointment of a CDS. Consequently, the Governor in Council has broad discretion in terminating the occupancy by a specific officer of that position (the appointment of a new CDS would necessarily terminate the tenure of the incumbent). I have suggested that the position of CDS is, essentially, the only military position named in the NDA that is truly held in a manner that could be characterized as ‘at pleasure’.
The current CDS is Admiral Art McDonald. We have been told that he ‘stepped aside’ temporarily while an investigation is being conducted by the Canadian Forces National Investigation Service (CFNIS). It has been over 4 months since that investigation was initiated and we have heard little about it, including whether it has been completed. Then again, timeliness is not really a strong suit for the CFNIS. We are also still waiting for the results of their investigation concerning the former CDS, Jon Vance, which was presumably initiated 5 months ago.
While Admiral McDonald has ‘stepped aside’, someone has to exercise the control and administration of the Canadian Forces. So, the Minister of National Defence selected LGen Eyre.
Since late-February 2021, LGen Eyre has been doing his utmost to shepherd the Canadian Forces through a difficult period, fueled by speculation and commentary from a variety of sources (some of which are not particularly well-informed or balanced) and a variety of stakeholders who have clearly sought to capitalize on the instability of the Canadian Forces.
He has faced a difficult task. Certainly, the author of this Blog has offered criticism of both LGen Eyre and other statutory actors and decision-makers. I contend that those criticisms have been grounded in fact (the limited facts that are available) and robust analysis of the relevant public law regime(s). And I will continue to offer critique and commentary as appropriate.
But I am still able to recognize LGen Eyre’s efforts to deliver effective control and administration of the Canadian Forces. And he has done so without the benefit of actually being the CDS appointed by the Governor in Council. He presides over an Armed Forces Council that is comprised of officers who, in many cases, bear the same rank that he does. That may seem like an inconsequential factor to some. After all, he may exercise command over those ‘peers’ by virtue of his position as Acting CDS.
But the term ‘Acting’ hamstrings LGen Eyre to an extent. It conveys the subtle message that he is not the ‘real’ CDS. He’s a stand in. It carries a measure of ambiguity that extends beyond the pure interpretation of the legislated governance regime. And it is a consequence of political indecision and calculation.
And that political indecision and calculation is manifest in the comments by the Prime Minister and his deputy on one hand, and the Minister of National Defence on the other. That political brinksmanship further undermines LGen Eyre far more than the perception of his decision by the rank and file ever could.
Admittedly, I do not fault the A/CDS for the decision he made (although I did question his comment regarding the absence of any guidance on the issue). I have clearly indicated that I contend that more is being made out of a mundane round of golf than is warranted. I am aware that there are those who would disagree. And one of the significant merits of a free and democratic society is that we can disagree about such issues, and preferably in a respectful manner.
I have noted comments by retired and serving CF personnel expressing that the comments from the Prime Minister and his Deputy created an untenable situation for the Acting CDS (at least, up to the point that the Prime Minister appeared to resile from those comments today). Some people suggested that it created circumstances in which the Acting CDS had no choice but to offer to resign from that role. I do not know LGen Eyre well, but what I do know of him suggests to me that he is not the sort of officer to back down from a leadership challenge simply because the circumstances are untenable.
I do not subscribe to a feminist theory of law. Like the Prime Minister, I am not a feminist. My views regarding the rule of law are heavily influenced by Lon Fuller and Jeremy Waldron (not that I would presume to possess their level of comprehension).
Today, the Prime Minister has confidence in LGen Eyre’s ability to command the Canadian Forces. Two days ago, it appeared that he did not. There is an air of uncertainty about what the Prime Minister may conclude next week. Perhaps the determinative factor will be the date when the freshly-shaven Prime Minister calls for an election.
If the Prime Minister does not have confidence in LGen Eyre’s capacity and ability to lead the Canadian Forces (or if that ‘lack of confidence’ returns), the Prime Minister has various options.
He could consult with his Minister of National Defence and indicate that he believes that a different officer should be selected to be Acting CDS. And lest someone suggest that such action would amount to ‘political interference’, we must remember that in a free and democratic society, the armed forces are subject to civilian control. And that civilian control is exercised at the political level, not in direct command of military personnel.
Moreover, such compunctions did not appear to inhibit the Prime Minister when he sought to influence Jody Wilson-Raybould when she was Attorney General. And the position of Attorney General, and the independence exercised by that position when acting as the nation’s ‘chief legal officer’ is distinct in nature from the position of Minister of National Defence. When the Attorney General makes decisions pertaining to prosecutions or as the chief legal advisor to government, those ought to be free from political interference.
I suppose that my mind turned instinctively to the challenges that Ms Wilson-Raybould faced as Attorney General, in part, due to the Deputy Prime Minister’s comments about how toxic work environments can affect women.
Alternatively, if the Prime Minister believes that someone else should lead the Canadian Forces, then he could convene his Cabinet colleagues and the Governor in Council could appoint a new CDS (which would, in effect, oust both the current CDS, Admiral McDonald, and the Acting CDS). They have that discretion.
But this government is not particularly effective at making significant Governor in Council appointments.
We are still waiting for the appointment of a new Governor General. Meanwhile, the Chief Justice of Canada is performing the function of the Administrator of Canada by virtue of the Letters Patent, 1947. However, some scholars have suggested that the longer this circumstance is permitted to continue, the more problematic it becomes, particularly if the Prime Minister calls upon the Chief Justice of Canada to prorogue Parliament.
We have also been waiting in excess of 15 months for the Governor in Council to designate of a new Chief Military Judge. As I have suggested previously, continued delay in that designation can harm the integrity of the Code of Service Discipline. And there is not a massive pool of candidates from which the Governor in Council would choose. If the Governor in Council can select a successor on the Supreme Court of Canada for Justice Rosie Abela from, presumably, dozens of meritorious candidates, then how difficult could it be to designate one of four military judges as the Chief Military Judge?
True, the Governor in Council did manage to reappoint the Judge Advocate General of the Canadian Forces (JAG) to a further 2-year term. That appears to have been accomplished at the 11th hour, as Rear-Admiral Bernatchez’ 4-year tenure would have expired at midnight on 26 June 2021.
It appears that the Governor in Council will frequently only act if they have no other choice than to act.
Here’s the thing: LGen Eyre had to act. He had to make a decision. It was essentially a binary decision: VAdm Baines would either be retained as Commander RCN or he would be replaced. LGen Eyre opted for the former. He communicated his reasons publicly.
Prime Minister, you should take note of that: LGen Eyre acted. He made a decision. He exercised leadership, in the face of limited support, heightened media scrutiny (which is not always balanced) and at a time when certain stakeholders had been taking steps to undermine him. Time will tell whether he made the right decision. But he chose to lead.
You might want to try that one of these days.
 Ashley Burke and Murray Brewster, “Trudeau, Freeland criticize decision to keep embattled navy chief on the job”, (30 June 2021), online: CBC News <https://www.cbc.ca/news/politics/deputy-prime-minister-chrystia-freeland-distrubed-decision-head-of-navy-1.6086335>.
 Ashley Burke, “Defence minister positions himself opposite Trudeau, Freeland over decision to keep navy commander”, (1 July 2021), online: CBC News <https://www.cbc.ca/news/politics/defence-minister-harjit-sajjan-utmost-confidence-acting-cds-1.6087806>.
 Ashley Burke, “Trudeau says he still has ‘confidence’ in defence chief after questioning decision to retain top commander”, (2 July 0221), online: CBC News <https://www.cbc.ca/news/politics/prime-minister-confidence-in-acting-chief-of-defence-staff-wayne-eyre-1.6088304?fbclid=IwAR2iLQq6tIMyREOKz4kSpi1Tw2wF8-D3iO06eYM3WabYRjKbU8BqR61s-9c>.
 RSC 1985, c N-5 [NDA].
 Id, s 18.
 Id, subs 18(1).
 Id, subs 18(2).
 Id, s 4.
 Rory Fowler, “Some Observations on Recent Developments in the Canadian Forces”, (3 March 2021), online: Law Office of Rory G Fowler <http://roryfowlerlaw.com/some-observations-on-recent-developments-in-the-canadian-forces/>.
 David Pugliese, “Admiral Art McDonald steps aside as Defence Chief as military police launch investigation”, (25 February 2021), online: Ottawa Citizen <https://ottawacitizen.com/news/national/defence-watch/admiral-art-mcdonald-steps-down-as-defence-chief-as-military-police-launch-investigation>.
 Rory Fowler, “Possible Consequences of R v Beaudry, 2018 CMAC 4 – Observation #1”, (18 April 2019), online: Law Office of Rory G Fowler <http://roryfowlerlaw.com/possible-consequences-of-r-v-beaudry-2018-cmac-4-observation-1/>.
 David Pugliese, n 15.
 Queen’s Regulations and Orders for the Canadian Forces (QR&O), arts 3.09, 3.10 3.20
 Department of Justice Act, RSC 1985, c J-2, s 5. While there has been much written about the inherent conflicts arising from the dual role of Minister of Justice and Attorney General, a useful starting point is: Adam Dodek, “Lawyering at the Intersection of Public Law and Legal Ethics: Government Lawyers as Custodians of the Rule of Law”, (2010) 331 Dal LJ 1. While the focus of that paper is on government lawyers generally, Professor Dodek also offers an examination of the responsibilities that flow from an Attorney General, as well as a useful summary of other scholarly examinations of that role.
 Letters Patent Constituting the Office of the Governor General of Canada (UK), 1947, reprinted in RSC 1985, App II, No. 31.
 John Ibbitson, “Canada’s governor-general post has been vacant for months, that’s a problem”, (28 June 2021), online: Globe and Mail <https://www.theglobeandmail.com/politics/article-canadas-governor-general-post-has-been-vacant-for-months-thats-a/>.
 Rory Fowler, “One Year Without a Chief Military Judge”, (21 March 2021), online: Law Office of Rory G Fowler <http://roryfowlerlaw.com/one-year-without-a-chief-military-judge/>.
 Peter Zimonjic, “Justice Mahmud Jamal is first person of colour nominated to the Supreme Court of Canada”, (17 June 2021), online: CBC News <https://www.cbc.ca/news/politics/mahmud-jamal-supreme-court-1.6069406>.
 Canada, “Minister of National Defence announces reappointment of Rear-Admiral Geneviève Bernatchez’s mandate as Judge Advocate General”, (28 June 2021), online: Government of Canada <https://www.canada.ca/en/department-national-defence/news/2021/06/minister-of-national-defence-announces-reappointment-of-rear-admiral-genevieve-bernatchezs-mandate-as-judge-advocate-general.html>.
 NDA, n 9, subs 9(2) and (3).