The CF’s New Grievance Policy – More of the Same
March 31, 2026
The CF’s New Grievance Policy – Redux
2 April 2026
Yesterday, the Canadian Forces (CF) implemented its new grievance policy. As I indicated in my Blog post on 31 March 2026, the ‘new’ grievance policy is “more of the same”. And as I indicated in that post, since I was not involved with the amendment process, I do not have any insider information, and a degree of my commentary was predicated upon speculation about the anticipated regulatory amendments. Based upon what was revealed yesterday, in terms of regulatory amendments, I can offer some observations informed by years of experience in this field.
Most people will have noticed that much of Chapter 7 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) was repealed.
[As an aside, I note that the Governor in Council has still not amended art 3.01 of the QR&O, which establishes rank designations, even though the senior leadership of the CF and the Royal Canadian Navy (RCN) promised, back in August 2020, that amendments would be forthcoming. That was over 5 ½ years ago. Since then, everyone from senior leaders to military judges have been using rank designations that have not been authorized by the Governor in Council, despite the fact that s 21 of the National Defence Act (NDA) clearly assigns that authority to the Governor in Council. And I’d suggest that the failure to amend art 3.01 of the QR&O in a timely manner, and the associated apathy regarding this requirement, arises from a collective disregard for what the law actually states.]
But back to the supposedly ‘new’ CF grievance process.
Several provisions, previously established in regulation, have been removed from regulation, and are now perpetuated in a statement of policy. And that is significant. It’s not necessarily helpful for individual grievors, but it is significant.
In order to examine what this shift in regulation and policy will accomplish – and, perhaps, more importantly, what it won’t accomplish – we need to step back and examine the nature of delegation of powers by Parliament through statute. This will support a meaningful discussion about how that delegation of powers impacts the adjudication of grievances. It will also assist us in discussing at least one odd policy provision regarding grievances arising from alleged sexual misconduct.
Before delving into Parliament’s delegation of decision-making, I will address the distinction between statutes, regulation, and policy. And I do so because of imprecision that I frequently encounter when CF decision-makers and staff refer to policy as ‘regulations’. An illustrative example is the frequent misnomer applied to the Canadian Forces Dress Instructions. I consistently encounter people, of all ranks, who refer to them as “Dress Regulations”.
Admittedly, this is a bit of a personal bugbear. However, just as certain CF personnel take umbrage when someone calls a rifle a “gun”, it is problematic when someone describes a policy as a regulation. And, in the context of the discussion that follows, the material distinction between regulations and policy is relevant. I know the difference between a rifle and a gun, so it behooves CF decision-makers and their staff to understand the differences between statute, regulation, and policy.
Statutes, Regulations, Policy
Statutes are enacted by the legislature. At the federal level, statutes are enacted by our bicameral Parliament. Statutes represent the supremacy of Parliament, which enacts laws both in the public and the private sphere. This also highlights the distinction between the branches of government: the legislature, the executive, and the judiciary. Only the legislature – Parliament – can enact statutes. The executive governs, principally courtesy of delegated authority from Parliament. The judiciary adjudicates whether private and public actors comply with the relevant law.
In statutes, Parliament can delegate both legislative authority and decision-making to the executive. For example, under the NDA, Parliament has authorized the Governor in Council, the Minister, and the Treasury Board – all representative of the executive – to enact regulations.[1] Regulations are typically referred to as “subordinate legislation”. Thus, the term “legislation” comprises both statutes (enacted by Parliament) and regulations (enacted by the executive, under authority granted by Parliament).
Policy instruments are different. They are not legislation. They are, however, typically created under statutory authority, just as regulations are enacted under statutorily delegated authority. A good example of this distinction are the regulations and instruments enacted or created by the Treasury Board.
Under subs 12(3) of the NDA, the Treasury Board may make regulations, though this power is limited to discrete categories of subjects listed under that subsection.[2] Arguably, para 12(3)(c) of the NDA grants the Treasury Board fairly broad discretion to exercise this power where it “… considers regulations are necessary or desirable to carry out the purposes or provisions of …” the NDA. Under s 35 of the NDA, the Treasury Board establishes “… rates and conditions of issue of pay of officers and non-commissioned members, other than military judges …”. In fact, the use of the term “shall” in the section obliges the Treasury Board to do so. Whether it does so through regulations or other instruments rests largely with the Treasury Board’s discretion. The Treasury Board also “determines and regulates” the “… payments that may be made to officers and non-commissioned members by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their service …”. Again, these may be “regulated” by regulations or by an instrument other than a regulation.
Rates and conditions of pay (other than for military judges), and reimbursement for expenses, are established and regulated under Compensation and Benefits Instructions (CBI). These are not regulations. They are instructions established by the Treasury Board under s 35 of the NDA. They are statutory instruments.[3]
Some bright penny might pipe up and say “Yabbut, the definition of “regulation” under s 2 of the Interpretation Act[4] is broad and “… includes an order, regulation, rule, rule of court, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established (a) in the execution of a power conferred by or under the authority of an Act, or (b) by or under the authority of the Governor in Council …”. And, yes, under that definition, a CBI would be a ‘regulation’.
Indeed, the same would be true of an Instruction issued by the Chief of the Defence Staff under her authority at s 18 of the NDA regarding the “control and administration of the Canadian Forces”, or an instruction issued on behalf of the CDS by a senior officer (such as Chief Professional Conduct and Culture (CPCC)) by virtue of s 49 of the NDA. That would be true where the Interpretation Act is applied. But the definition of “regulation” under the Interpretation Act is limited to circumstances in which the term “regulation” is being interpreted and applied under that Act.
This definition does not mean that an instrument such as a Policy, Instruction, or Order is identical to a regulation. It is noteworthy that the CDS is not empowered under the NDA to enact regulations. She is responsible for the “control and administration of the Canadian Forces”.[5]
And the distinction between a regulation enacted by the Governor in Council under s 12(1) of the NDA “… 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 …”, including regulations made by the Governor in Council as described at para 29(2)(c), subs 29(3), s 29.1, or s 29.12 regarding the administration of grievances, and a policy instruction issued by or on behalf of the CDS, is relevant to the discussion below.
Parliament’s Delegation of Powers
In our constitutional parliamentary democracy, Parliament is supreme. It is true that there are Royal or Crown Prerogatives that are relevant to the governance and direction of the CF. However, where Parliament has exercised its supremacy, it can displace, or put into abeyance, the Crown Prerogative.[6]
From time to time, whenever there is discussion of Parliament’s purported role regarding the deployment of the CF, there will often be a flurry of opinion writing on the role of Crown Prerogative in such decisions, distinguishable from Parliament’s authority. Fortunately, that’s not what I am discussing here. Rather, I am discussing the governance of the Crown-soldier relationship generally, and the adjudication of grievances specifically. And that is an area in which Parliament has occupied much of the field through the NDA, displacing the Crown Prerogative.
Parliament has enacted a statutory grievance process to be used by CF personnel who are aggrieved by decisions, acts, or omissions in the administration of the affairs of the CF.[7] Granted, even without a statutory framework, the CF could create a policy-based framework for grievances under the CDS’ authority for the governance and control of the CF.[8] Alternatively, the Governor in Council could create a regulatory framework, absent specific statutory provisions establishing a grievance process, 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.[9]
Why is there a relatively detailed statutory framework?
Consider what existed prior to the coming into force of Bill C-25 in 1999. The CF grievance process was established in a single statutory provision (s 29 of the NDA) and amplified by two provisions under the QR&O (arts 19.26 and 19.27). That was it. The remainder of the process was established under CFAO 19-32, entitled “Redress of Grievance”.[10]
In fact, prior to 1 September 1999, the total content of the legislative expression regarding the CF grievance process was as follows:
From the National Defence Act:
Redress of Grievances
-
- Except in respect of a matter that would properly be the subject of an appeal or petition under Part IX or an application or appeal under Part IX. 1, an officer or non-commissioned member who considers that he has suffered any personal oppression, injustice or other ill-treatment or that he has any other cause for grievance may as a matter of right seek redress from such superior authorities in such manner and under such conditions as shall be prescribed in regulations made by the Governor in Council.[11]
From the QR&O[12]:
19.26—REDRESS OF GRIEVANCE
(1) If an officer or man thinks that he has suffered any personal oppression, injustice, or other ill-treatment, he may complain orally to the commanding officer.
(2) If an officer or man thinks that he has been wronged by the commanding officer, either because a complaint under (1) of this article has not been redressed or for any other reason, he may complain in writing to the commanding officer.
(3) If the commanding officer has not redressed a complaint made under (2) of this article within fourteen days of its receipt by him, the complainant may submit his complaint in writing to:
(a) the formation commander, where the complainant’s base or other unit or element is part of a formation; or
(b) the officer commanding the command, where the complainant’s base or other unit or element is not part of a formation.
(4) If the complainant who makes a complaint under (3)(a) of this article does not receive from the formation commander the redress to which he considers himself entitled, he may submit his complaint in writing to the officer commanding the command.
(5) If the complainant does not receive from the officer commanding the command the redress to which he considers himself entitled, he may submit his complaint in writing to the Chief of the Defence Staff.
(6) If the complainant does not receive from the Chief of the Defence Staff the redress to which he considers himself entitled, he may submit his complaint in writing to the Minister and, if the complainant so requires, the Minister shall submit the complaint to the Governor in Council.
(7) If the complainant is a commanding officer, a formation commander or an officer commanding a command, his complaint shall first be made in writing and addressed to his immediate superior. In other respects, the procedure for making complaints shall be the same as for other officers.
(8) Every complaint shall be submitted through the usual channels except that if a commanding officer, a formation commander, or an officer commanding a command does not forward a complaint to higher authority when requested to do so, then that complaint may be forwarded direct.
(9) Every person to whom a complaint is made under this article shall cause such complaint to be inquired into, and shall, if he is satisfied of the justice of the complaint, take such steps as are within his power to afford full redress to the complainant or, if he has no power to afford full redress, submit the complaint to higher authority.
(10) No officer or man shall be penalized for making a complaint in accordance with this article and article 19.27.
19.27—RULES FOR STATING GRIEVANCES
(1) A statement of grievance presented under article 19.26:
(a) shall
(i) be made as early as practicable while it is still possible to ascertain the facts of the case, and
(ii) be confined to a statement of the facts complained of and to the alleged consequences to the complainant; and
(b) shall not
(i) be made jointly by two or more complainants, or
(ii) be made anonymously, or
(iii) contain a statement known to the complainant to be untrue, or
(iv) include language or comments that are insubordinate or subversive of discipline, except so far as may be necessary for an adequate statement of the complaint.
(2) If a complainant requests assistance in the presentation of his grievance, the commanding officer shall detail an officer to assist him, who shall, if practicable, be an officer designated by the complainant.
In other words, there was a very thin legislative framework for grievances. The balance of the process was established by policy. The legislative framework extant before the enactment of Bill C-25 contained many provisions which remain part of the process. The recent changes to the CF grievance process represents a bit of a return to such structure. But that doesn’t really explain why this arose.
We need to remember that, outside of discreet aspects of National Defence, Parliament has broadly displaced the Crown Prerogative. Undoubtedly, the JAG would advance the argument that the authority to raise an armed forces still rests with the Crown Prerogative. After all, section 14 of the NDA can be distinguished from s 3 of the NDA.
Section 3 establishes the Department of National Defence:
-
- There is hereby established a department of the Government of Canada called the Department of National Defence over which the Minister of National Defence appointed by commission under the Great Seal shall preside.
This is consistent with legislation concerning other Federal Departments – they are created, and placed under the authority of their respective Ministers, by virtue of an originating Act.
In contrast, section 14 merely acknowledges the existence of the CF:
-
- The Canadian Forces are the armed forces of Her Majesty raised by Canada and consist of one Service called the Canadian Armed Forces.
As an aside, the 1922 version of the National Defence Act[13] was much more limited than the version introduced in 1950 and which is perpetuated in the current version. The 1922 version was limited to nine sections, over 2 ½ pages, and focused on the creation of the Department, the duties of the Minister and Deputy Minister, and empowering the Governor in Council to make orders and regulations in relation to the Department. It did not include provisions for the governance of the armed forces, including any disciplinary code (which is a significant part of the modern NDA).
However, while the capacity to raise armed forces for the defence of the realm might be an expression of the Crown Prerogative, in terms of governance of the armed forces, that’s where much of the authority stops. Even if one were to assert that s 14 of the NDA is simply a recognition of the right of the Crown to raise armed forces (rather than authorization to do so), it also applies a constraint: the armed forces raised by Canada consists of a single service, the Canadian Armed Forces.
As I have explained previously, the reason for the existence of the term of art “Canadian Armed Forces” arises from unification in the late 1960s. Prior to the enactment of the Canadian Forces Reorganization Act[14], the CF consisted of three distinct services: the Royal Canadian Navy, the Canadian Army, and the Royal Canadian Air Force. These services were named in s 15 of the NDA enacted in 1950[15] (later amended to be s 14), and inclusion of those names in the statutory composition of the Canadian Forces continued up until 1968, when they were replaced by “Canadian Armed Forces”. And if it seems redundant to call the “Canadian Forces” the “Canadian Armed Forces”, that nomenclature represented the most expeditious way to amend the Act with unification.
The adjudication of grievances, like many other aspects of the administration of the affairs of the CF, is not an exercise of the Crown Prerogative. Parliament has occupied the field, principally through the National Defence Act.
But why did Parliament expand the statutory framework for grievances in Bill C-25[16], enacted late in 1998, and which came into force in 1999?
One reason was the creation of an External Review Committee to mirror the framework that was in use at the time for the RCMP. The RCMP’s grievance procedure was a principal inspiration for the changes introduced to the CF grievance process over 25 years ago. Initially, the relevant ‘external review committee’ was called the Canadian Forces Grievance Board. The name was subsequently changed[17] to Military Grievances External Review Committee (MGERC) – similar to the External Review Committee for the RCMP – due to complaints by the MGERC that the name Canadian Forces Grievance Board (and acronym CFGB) were too similar to Canadian Forces Grievance Authority (and CFGA) causing confusion for grievors.
Statutory provisions represented the ideal means to create an arm’s-length body and to grant it powers of inquiry similar to that of a Board of Inquiry (even if those powers are rarely used).
But the statutory provisions introduced under Bill C-25, and which remain, went beyond the creation of the MGERC. And one of the reasons for this much more robust statutory framework is that it reinforced the application of the doctrine of “adequate alternate remedy”. If a CF member commences litigation against the Crown for maladministration or misfeasance by CF decision-makers, prior to exhausting the statutory grievance process, the Attorney General of Canada (AGC) can, and consistently does, point to the robust statutory framework and argue that it represents an adequate alternate remedy that must be exhausted before any litigation is commenced. In fact, even after the grievance process is exhausted, the AGC will frequently rely on this doctrine to argue that a CF member has received a remedy, even if the remedy is largely inconsequential.
“Behold”, the AGC would say (or, more accurately, one of his counsel), “the Canadian Forces benefits from a robust remedial mechanism in their statutory grievance process. They even benefit from independent review by the Military Grievances External Review Committee.” The AGC would also assert, citing Jones v Canada[18], that “… this grievance process accommodates any and every wording, phrasing, expression of injustice, unfairness, discrimination, whatnot. It covers everything. It leaves nothing out. It’s exhaustively comprehensive.” That sounds pretty impressive. I bet it’ll wash and wax your car and clean out your garage while it’s at it!
Then again, as I have observed previously,[19] the so-called “independence” of the MGERC can tend to be exaggerated. And, while the MGERC might provide findings and recommendations (F&R), these are not binding on the final authority.[20] The MGERC is not the decision-maker. And not all grievances are referred to the MGERC.[21] And, as I have explained previously,[22] the judgments of Jones and Anderson v Canada (Armed Forces)[23], which are cited by the AGC as if they are a cure for impunity in the administration of the affairs of the CF, predate the significant changes made to the CF grievance process under Bill C-25. And one of the most significant changes introduced by Bill C-25, but which the CF and other institutional actors tend to avoid acknowledging, was downgrading the final authority from the Governor in Council to the CDS. And, at the risk of sounding like a broken record, the CDS doesn’t have remotely the remedial powers of the Governor in Council. For anyone who has been paying attention, the so-called “exhaustively comprehensive” remedial capacity of the CF grievance process is a dubious proposition.
When Parliament creates a statutory framework like the CF grievance process, the statutory regime will tend to include three factors applicable to statutory decision-makers: duties, powers, and functions. Generally, a “duty” is an obligation or a constraint. “Powers” represent discretion and, in this context, can potentially add powers that would not otherwise be available to the statutory CF decision-maker. “Functions” tend to be procedural in nature, though they can amplify powers and can potentially serve as constraints (although they are generally procedural constraints as opposed to substantive limitations on the exercise of discretion).
When examining the nature of a statutory regime, including Parliament’s motivation when enacting the regime, it can be useful to examine the extent to which the regime imposes constraints or empowers the decision-makers.
Prior to the enactment of Bill C-25, Parliament had imposed few constraints on CF decision-makers in the adjudication of grievances and had not granted any additional powers. It had also imposed only one principal function. And the regulations enacted by the Governor in Council had not imposed much more. Most of the constraints were imposed on the grievor, not the decision-maker. And much of the structure was policy based.
Bill C-25 did not create many more constraints on CF decision-makers. Nor did it grant any additional remedial powers to the “redress authorities”. The only additional remedial power that was granted (to the CDS) was the power to authorize an ex gratia payment by virtue of Order in Council 2012-0861. That power was only granted in 2012, and, as a grant under the Crown Prerogative, was distinct from the NDA. And it has rarely been used. The statutory amendments under Bill C-25 focused principally on functions and process. The same is true of the regulations enacted by the Governor in Council.
Most of the legislative constraints imposed by Parliament and the Governor in Council were imposed on the individual grievors themselves, including (but not limited to):
- Limitation periods to grieve and to refer grievances to the final authority;
- A prohibition against joint or combined grievances; and,
- Exemptions regarding subjects that could be grieved (principally where there was a different statutory mechanism).
And many of these constraints existed prior to 1999 under art 19.27 of the QR&O.
The significance of a constraint or duty imposed by Parliament is that it is not easily changed. Parliament is supreme. One would need to seek a statutory amendment. That is a long and, potentially convoluted, process. Regulatory constraints are more easily changed than statutory constraints, but it is not necessarily an easy process. It certainly isn’t as easy as issuing a CANFORGEN that purports to change rank designations (notwithstanding that the CDS and Commander of the RCN have zero authority to amend a Governor in Council regulation and certainly cannot do so by CANFORGEN).
The same is true of a function or other procedural element. When a function is imposed by Parliament (or by the Governor in Council) by legislation, it can serve as a (procedural) constraint on a decision-maker.
And, where a statutory decision-maker otherwise lacks the power to do something, Parliament (or, to a lesser extent, the Governor in Council) can empower the statutory decision-maker by delegating powers. And it bears repeating that Bill C-25 didn’t really give the CDS or any other redress authority any additional powers. It did grant the MGERC powers to conduct inquiry under oath. But these powers are rarely used.
Consequently, when we see changes to a process that eliminate statutory or regulatory duties or functions, what we are seeing is Parliament or the Governor in Council removing or eliminating constraints on the statutory decision-maker. That will almost always benefit the decision-maker. However, it does not necessarily benefit the person who is subject to the decisions – i.e., the grievor. And the constraints relative to grievors that existed in Chapter 7 of the QR&O prior to 1 April 2026 remain, either as regulatory constraints, or policy constraints.
In fact, there have been some subtle increases to constraints, which do not benefit grievors. For example, art 7.21 of the QR&O identifies the types of grievances that must be referred to the MGERC. A further limitation has been added. Prior to 1 April 2026, para 7.21(c) directed that the final authority “… shall refer to the Grievances Committee any grievance relating to … (c) pay, allowances and other financial benefits …”. As of 1 April 2026, this provision states that the final authority “… shall refer to the Grievances Committee any grievance relating to … (c) pay, allowances and other financial benefits, if the value of the redress sought is $25,000 or more …”. So, if some numpty makes an unfair or unreasonable decision that improperly deprives a CF member of $24,000, and the grievance is either not adjudicated by the initial authority in a reasonable time, or the initial authority upholds the decision at first instance, the grievor is not entitled to have the grievance reviewed by the MGERC.
Presumably, this amendment was made to speed up the process. But here’s the thing, when grievances take five years or longer to adjudicate, it isn’t typically because the grievance is languishing with the MGERC. And if a grievance relating to pay and benefits reaches the final authority (i.e., it is not adjudicated by the initial authority, typically Director General Compensation and Benefits (DGCB), to the satisfaction of the grievor), it is likely that the grievor will place at least as much priority on obtaining arm’s length F&R from the MGERC as on having a grievance adjudicated 4 or 5 moths faster.
The principal effect of the amendment of para 7.21(c) of the QR&O is to further limit external scrutiny of CF decision-making regarding pay and financial benefits.
Is that a ‘good thing’?
Was the Process the Problem?
I suspect that some policy makers believed that the problem with the CF grievance process arose from the process itself. If that is the case, I suggest that they were markedly mistaken. The two principal defects in the CF grievance process have been, for some time: (a) unreasonable delay; and, (b) unfair and unreasonable decisions. Both of these arise from intransigence by CF decision-makers and a desire to review-proof a decision if the grievor seeks judicial review. The lack of sufficient resources also directly contributes to delay.
It is conceivable why some people may have erroneously concluded that the problem is the process. After all, if a process is slow and inefficient, it is possible that the process is flawed. But the legislated process for grievances was not particularly cumbersome. Any rational observer would have identified that the legislated process was the minimum necessary to provide for a fair and reasonable process (and to permit the AGC to raise the doctrine of “adequate alternate remedy” whenever a CF member initiated litigation before (and sometimes after) exhausting the CF grievance process).
For many years, delay has been the product of factors outside of the legislated process and which were largely in the control of CF leadership. While an extensive discussion would likely tax the patience of most readers, the following represent three key factors:
- Unreasonable and unfair decisions at first instance. To be blunt, there is a disturbing degree of bad decision-making in the CF. And it appears to be getting worse. Commanding officers (CO) and commanders who make knee-jerk decisions, who fail to observe rudimentary fairness, or who make closed-minded decisions will generate grievances. I will be among the first to recognize that some grievors bring grievances that lack merit. Some CF personnel will grieve decisions that are both reasonable and procedurally fair. However, where a decision is reasonable and procedurally fair, it ought to be relatively easy to defend such a decision. After all, if the subject of the grievance were subsequently challenged by judicial review, it would be reviewed on a standard of “reasonableness”. This is a deferential standard of review, which makes it relatively easy for the AGC to defend such decisions. The point I am making here is that there is a high probability that unfair and unreasonable decisions will be grieved. Unfortunately, when the Office of the JAG adopts a laissez-faire approach to advising the chain of command – after all, they are not the CF’s compliance officers – we can expect increased impunity in decision-making. If you want to reduce grievances, make better decisions at first instance. It won’t reduce the number of grievances to zero; but it will make it easier to defend those decisions.
- Intransigence. I consistently encounter grievance adjudication that is focused more on upholding the decision at first instance than on recognizing the harm that arises from unfair and unreasonable decision-making. This isn’t surprising when the primary function of the grievance process is to serve as a litigation avoidance mechanism. The mantra of de novo review as curative of procedural errors, described in McBride v Canada[24], is a common refrain. But consider the frequency with which the CF relies on that judgment. Reliance on this doctrine represents an inherent recognition that the decision-maker at first instance, and possibly even the initial authority, erred. Yet corrective action is rarely, if ever, taken regarding decision-makers who fail to make fair and reasonable decisions. And that is because the focus of the grievance process is on barring further litigation by the grievor, and not on holding bad decision-makers accountable.
- Insufficient resources. Very little is said about this factor, even though it is one of the principal contributors to delay. By way of example, I have a client whose grievance was referred to the Director General Military Careers (DGMC) as initial authority. Along with DGCB, DGMC has one of the highest rates of grievance submissions as IA. In light of the matters that fall within the purview of those officers (e.g., compensation and benefits, compulsory release), this should not be surprising. My client was informed that there were more than three dozen grievances ahead of theirs and that the grievance analyst was the only analyst presently working in the grievance cell. Consequently, the analyst could not provide a reasonable estimate of when the grievance would be adjudicated. Does that sound like the CDS’ Directive for CAF Grievance System Enhancement is being followed?
The Shift to Policy Provisions
Some of you may have experienced a sense of déjà vu in the recent shift demonstrated by the repeal of several regulatory provisions for CF grievances, and the replication of the same, or similar, provisions in a statement of policy or policy manual. This is reminiscent of the change to summary justice within the Code of Service Discipline that came into force on 20 June 2022 by virtue of Bill C-77[25].
Prior to 20 June 2022[26], the “Military Justice at the Summary Trial Level” was established principally in legislation. Then, as now, the Code of Service Discipline existed to maintain the discipline, efficiency, and morale of the CF[27] and functioned in parallel to civilian criminal justice.[28] The systems overlapped; “service offences” include all criminal offences and any offences created under any Act of Parliament.[29]
Prior to 20 June 2022, service offences were tried by “summary trials”[30] before “presiding officers” or by “courts martial”[31] presided over by “military judges”. Presiding officers were laypersons who did not enjoy judicial independence. Military judges benefitted from independence comparable to that of civilian judges.[32] Summary trials lacked most of the safeguards of a court martial, including: (a) the presiding officer was not an independent and impartial tribunal;[33] (b) the presiding officer did not need to be a legal professional;[34] (c) Military Rules of Evidence did not apply;[35] and (d) there was no comprehensive record or transcript of the proceeding.
Summary trials were used far more frequently than courts martial.[36] Not all service offences could be tried by summary trial. Charges were referred to court martial when: (a) an offence could only be tried by court martial[37]; (b) an accused could only be tried by court martial[38]; (c) a referral authority believed that a matter should be tried by court martial[39]; or, (d) an accused elected to be tried by court martial.
Section 162.1 of the NDA (Pre-Bill C-77) created the right to elect court martial:
Except in the circumstances prescribed in regulations made by the Governor in Council, an accused person who is triable by summary trial has the right to elect to be tried by court martial.[40]
Almost all service offences that could be tried by summary trial permitted the accused a right to elect trial by court martial, rather than summary trial. The election for court martial was a safety valve of fairness. The exception at s 162.1 of the NDA (Pre-Bill C-77) was described at art 108.17 of the QR&O.[41] Election for court martial could be withheld for select “minor service offences”. This exception was misinterpreted and abused institutionally.[42] This exception was repealed when elements of Bill C-77 came into force on 20 June 2022.
Even if a CF member were accused of a minor service offence, the right of election would be triggered if the presiding officer contemplated using the following punishments: “detention”; “reduction in rank”; or a fine in excess of 25% of basic monthly pay.[43]
The Code of Service Discipline is more severe than civilian professional regulatory regimes. It is a penal regime that functions in parallel to, and incorporates the offences of, the Criminal Code.[44] Conviction for service offences gives rise to autrefois convict in the civilian criminal justice system[45], distinguishable from administrative action under the NDA[46]. These offences, which have not changed under Bill C-77, remain triable by court martial.[47]
When the relevant provisions under Bill C-77 came into force (albeit, 3 years after that legislation was enacted), it bifurcated the Code of Service Discipline. The “Military Justice at the Summary Trial Level” was replaced by “Military Justice at the Unit Level” or “MJUL”.[48]
Bill C-77 created “service infractions”[49], triable only by summary hearing[50]. There is no right to elect trial by court martial.[51] Guilt is determined on a balance of probabilities.[52] Summary hearings replaced summary trials and Bill C-77 introduced two significant changes to summary justice under the Code of Service Discipline: (a) the loss of an election for court martial; and, (b) a reduced burden of proof for the determination of guilt.
Courts martial retain exclusive jurisdiction over service offences.[53]
Like the now-defunct summary trials, summary hearings are ad hoc, inquisitorial processes conducted before non-judicial, non-independent actors with limited training in the law.
CF apologists assert that service infractions do not give rise to a criminal record.[54] However, prior to June 2022, service offences for which election for court martial could be withheld, and tried exclusively by summary trial, also did not give rise to a criminal record.[55]
Key principles remain unchanged in the new system. The fundamental principle of sanctions is proportionality[56], identical to sentencing for service offences[57]. Objectives of sanctions[58] are identical in nature to objectives for sentencing for service offences[59] and the “other principles” for sanctions[60] reflect the “other sentencing principles” for service offences[61].
Another significant change under the MJUL was the shift away from legislated constraints and process. While offences are (and must be) defined in statute, “service infractions” are established in regulation. Some are ambiguous or open-ended. And the trial or hearing process that was once established in detailed Governor in Council regulations is now largely reflected in the MJUL Policy 2.0.
That increases the ‘flexibility’ for the chain of command. However, that flexibility is accompanied by a commensurate degree of uncertainty. Call it ‘wiggle room’ for the chain of command to define its own process. Again, this flexibility has been amplified for the benefit of the chain of command, not the accused. It makes the process more malleable, not fairer.
The same has now been done with the CF grievance process. Provisions that were previously defined in legislation (specifically, regulations) are now defined in a more malleable policy. While that may provide the chain of command with greater flexibility to change its policy, it does not necessarily set conditions for improved fairness, reasonableness, or timeliness in the adjudication of grievances.
Grievances of a Sexual Nature
The ‘new’ CF grievance process is very much like the ‘old’ CF grievance process. Granted, several regulatory provisions have been repealed and are now preproduced as policy, which will make it easier for the CF to amend those provisions. But the process hasn’t changed significantly. Nor do I expect these changes to generate grievance determinations that are more fair, reasonable, or timely.
One legislative change that I mentioned two days ago was the anticipated amendment of art 7.13, which describes grievances for which “Section 2” of Chapter 7 (relating to the Initial Authority) does not apply. In other words, art 7.13 identifies the grievances that will be submitted directly to the final authority (the CDS or her delegate) and will not be considered by an initial authority.
Prior to 1 April 2026, these included: (a) a grievance submitted by a military judge; (b) a grievance concerning a decision, act or omission of an officer who is directly responsible to the Chief of the Defence Staff; and (c) a grievance concerning a decision, act or omission of the Chief of the Defence Staff in respect of a particular officer or non-commissioned member.
The advance publication of the ‘new’ CF grievance process appeared to suggest that art 7.13 would be amended. Para 2.6.3 of the new policy stated: “If the grievance concerns a grievor who is a complainant or victim of a sexual misconduct as defined in DAOD 9005-1, the grievance must be directed to the CFGA.” However, this is a policy constraint. Article 7.13 was not amended to include a fourth category. [And, as I was not privy to information regarding proposed changes to the QR&O, I was obliged to make educated guesses regarding anticipated amendments.]
Moreover, the placement of this direction in the Policy, under the heading of “Exceptions to Initial Authority Jurisdiction” can be misleading or ambiguous. It appears to suggest that a grievance raised by a complainant or victim of sexual misconduct, as defined in DAOD 9005-1, would be sent directly to the FA. I am uncertain if this is the policy intent. If it is not, the placement and wording of the provision is problematic and unclear. If that is the intent, it would be inconsistent with the legislated intent of Parliament and the Governor in Council.
Art 7.13 of the QR&O describes a discrete list of grievances that will not be considered by an initial authority. Section 29.1 of the NDA creates a general presumption that grievances will be considered and determined by an initial authority. At s 29.101, Parliament created an exception for grievances submitted by a military judge. At art 7.13 of the QR&O, the Governor in Council created two further exceptions, exercising regulation-making authority granted by Parliament. And those exceptions are consistent with principles of public and administrative law: a decision of the CDS or of one of her immediate subordinates would necessarily have to be referred to the CDS and no other officer is placed to act as initial authority.
The same is not true for the ambiguous exception described at para 2.6.3 of the new Policy. Either that provision is poorly placed and ambiguously presented, or CPCC purports to deprive grievors (who are complainants or victims of sexual misconduct) of consideration of their grievance by an initial authority.
It is possible that the intent behind para 2.6.3 is simply to permit complainants and victims of sexual misconduct to avoid having to submit such a grievance to their immediate chain of command, and, instead, submit it directly to CFGA. That would be consistent with past commentary regarding the reluctance of such complainants/victims to involve their immediate chain of command in these matters. However, if that is the intent, para 2.6.3 is unnecessarily ambiguous, duplicative, and poorly placed.
First, by virtue of the amendment of art 7.08 of the QR&O, the expectation (or default) is that grievances will be submitted, digitally, directly to CFGA. Not only complainants/victims of sexual misconduct, but all CF grievors, will be expected to submit their grievances to CFGA. Moreover, if the intent was to emphasize that complainants and victims of sexual misconduct must submit their grievance directly to CFGA, then the appropriate place for that provision would have been under part 2.1 of the Policy.
I do note that an amendment was made to art 7.21 of the QR&O (mandatory referral to the MGERC) in relation to “… any decision, act or omission relating to an incident of a sexual nature”. You’ll note that this is not limited to grievances by complainants or victims of sexual misconduct. It relates to all grievances arising from an “incident of a sexual nature”. This would include (but not be limited to) circumstances in which a CF member was a respondent to a complaint of sexual misconduct, and the CF member grieves a decision, act or omission in the administration of the affairs of the CF relating to that complaint. That grievance must be referred to the MGERC when it is referred to the final authority. However, such a grievance does not fall within the parameters of para 2.6.3 of the new Policy. And I remain curious about the distinction that is drawn.
Conclusion
The reduction of the regulatory provisions governing CF grievances does not represent a material improvement to the process. It is doubtful that the shift to increasing reliance on policy provisions (which, for the time being, reflect the previous regulatory provisions) will improve the reasonableness, fairness, or timeliness of the determination of grievances. And that’s because the problems that gave rise to delay and problematic grievance determinations did not arise from the process itself. The problems arose from intransigence by CF decision-makers. The problems arose from CF decision-makers who were focused more on upholding problematic decisions at first instance than on remedying the harm arising from unfair and unreasonable decision-making. The problems arose from a lack of adequate resources being assigned to the determination of grievances. The problems arose from impunity.
There remains a lack of accountability when CF decision-makers make unfair or unreasonable decisions. Senior officers are removed from command when senior CF decision-makers are embarrassed by news media reporting, but senior officers do not experience any consequences when their decision-making proves to be unfair and/or unreasonable. Part of the reason is the time it takes to adjudicate grievances. And part of the reason is because senior CF decision-makers are focused more on upholding decisions at first instance than they are on acknowledging when other senior decision-makers have erred.
The problem isn’t the process. The problem is a lack of will and humility.
The principal impact of the shift from regulatory to policy provisions is to give the chain of command greater flexibility. But they already had sufficient flexibility to acknowledge the errors that give rise to grievances.
In addition to a lack of will and humility, senior CF decision-makers have limited authority to grant meaningful remedies. And, as I have explained before, the lack of comprehensive remedial powers tends to encourage the final authority to try to reverse-engineer a justification for the problematic decision that is the subject of a grievance. If the final authority can justify a decision, notwithstanding that the decision at first instance was unfair and unreasonable, then the final authority doesn’t have to acknowledge that she lacks sufficiently comprehensive remedial powers to make the CF grievance process a truly adequate alternate remedy. And she can then maintain the myth upon which the AGC routinely relies.
[1] National Defence Act, RSC 1985, c N-5, s 12.
[2] For example, the rates of pay established for military judges, under Chapter 204 of the Queen’s Regulations and Orders for the Canadian Forces [QR&O] are Treasury Board regulations, enacted under the authority of para 12(3)(a) of the NDA, n1. That same provision permits (but does not oblige) the Treasury Board to make regulations for the rates and conditions of pay for the Director of Military Prosecutions [DMP] and the Director of Defence Counsel Services [DDCS]. The Treasury Board has not yet done so, and DMP and DDCS are paid in accordance with the same Compensation and Benefits Instructions [CBI} as any other legal officer of the same rank.
[3] Statutory Instruments Act, RSC 1983, c S-22, s 2 “statutory instruments”.
[4] Interpretation Act, RSC 1985, c I-21.
[6] Attorney-General v De Keyser’s Royal Hotel Limited, [1920] AC 508; [1920] UKHL 1; Ross River Dena Council Band v Canada, 2002 SCC 54, [2002] 2 SCR 816; Black v Canada (Prime Minister), 2001 CanLII 8537 (ON CA).
[7] NDA, n 1, ss 29 to 29.28.
[10] As an aside, another bugbear of mine is the common malapropism involving the term “redress”. Many CF personnel, including senior personnel, refer to their grievance as a “redress”: e.g., “I submitted a redress last week.” No. You didn’t. Redress means “remedy”. You submitted a grievance. You are seeking redress from the relevant adjudicative authority, also referred to as a “redress authority” in the new policy.
[11] National Defence Act, RSC 1985, c N-4, as at 1993.
[12] See: Gayler v Canada (Director Personnel Careers Administration Other Ranks, National Defence Headquarters), 1994 CanLII 3544 (FC TD), [1995] 1 FC 801.
[13] National Defence Act (1922), 12-13 George V, c 34 [NDA 1922].
[14] Canadian Forces Reorganization Act, SC 1966-67, c 96, s 2.
[15] National Defence Act, SC 1950, c 43, s 15: “The Canadian Forces are the naval, army and air forces of His majesty raised by Canada and consist of three Services, namely, the Royal Canadian Navy, the Canadian Army, and the Royal Canadian Air Force.”
[16] Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, c 35 [Bill C-25].
[17] Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24.
[18] Jones v Canada, (1994) 87 FTR 190, 51 ACWS (3d) 1271 (FC TD) [Jones].
[19] Rory Fowler, “MGERC Findings & Recommendations: Myths & Misconceptions” (9 August 2023), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/mgerc-findings-recommendations-myths-misconceptions/>.
[21] Queen’s Regulations and Orders for the Canadian Forces [QR&O], art 7.21.
[22] Rory Fowler, “Happy Birthday, Grievance – Delay in the Adjudication of CF Grievances” (15 March 2025), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/happy-birthday-grievance-delay-in-the-adjudication-of-cf-grievances/>.
[23] Anderson v Canada (Armed Forces), 1996 CanLII 3848, [1997] 1 FC 273 (CA) [Anderson].
[24] McBride v Canada (National Defence), 2012 FCA 181.
[25] An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, SC 2019, c 15 [Bill C-77].
[26] National Defence Act, RSC 1985, c N-5, as at 19 June 2022 [NDA (pre-Bill C-77)], Part III “Code of Service Discipline. See also: Queen’s Regulations and Orders for the Canadian Forces, as at 19 June 2022 [QR&O (pre-Bill C-77)], Volume II.
[28] R v Généreux, [1992] 1 SCR 259 [Généreux]; R v Stillman, 2019 SCC 40 [Stillman].
[29] NDA, n 1, s 2, definition “service offence”.
[30] NDA (pre-Bill C-77), n 26, Part III, Division 5.
[31] NDA (pre-Bill C-77), n 26, Part III, Division 6.
[32] R v Edwards; R v Crépeau; R v Fontaine; R v Iredale, 2021 CMAC 2 [R v Edwards, et al], aff’d R v Edwards, 2024 SCC 15.
[33] Généreux, n 28, 309 to 311, per Lamer CJ; R v Edwards, et al, n 32; Stillman, n 28, paras 63 and 64.
[35] QR&O (pre-Bill C-77), n 26, art 108.21.
[36] NDA (pre-Bill C-77), n 26, ss 162.3 to 164; Stillman, n 28, para 62.
[37] QR&O (pre-Bill C-77), n 26, art 108.07.
[38] NDA (pre-Bill C-77), n 26, para 164(1)(a).
[39] NDA (pre-Bill C-77), n 26, ss 163.1 and 164.1.
[40] NDA (pre-Bill C-77), n 26, s 162.1.
[41] QR&O (pre-Bill C-77), n 26, art 108.17.
[42] Noonan v. Canada (Attorney General), 2023 FC 618, paras 11 to 28.
[43] QR&O (pre-Bill C-77), n 26, para 108.17(1)(b).
[44] Stillman, n 28, paras 55 to 60.
[45] R v Moriarity, 2015 SCC 55, para 7.
[46] R v Warrant Officer Thibault, 2010 CM 3022, para 13.
[48] NDA, n 1, Part III, Division 5, ss 162.3 to 163.91; Queen’s Regulations and Orders for the Canadian Forces [QR&O], Chapter 120 to Chapter 124; Military Justice at the Unit Level Policy 2.0 [MJUL Policy 2.0], pp 153 to 249.
[49] NDA, n 1, Part III, Division 5, ss 162.4 to 162.93, QR&O, n 73, Chapter 120.
[50] NDA, n 1, s 162.4; QR&O, n 73, Chapter 122.
[51] NDA, n 1, ss 162.4 and 162.5.
[53] NDA, n 1, ss 166 and 173.
[54] NDA, n 1, s 162.5; QR&O, n 73, art 120.01.
[55] NDA, n 1, s 249.27; see also: QR&O (pre-Bill C-77), n 26, art 108.17. Under the previous regime, a punishment that could give rise to a criminal record, would trigger a right to elect trial by court martial.
[59] NDA, n 1, subs 203.1(2).
