Director of Military Prosecutions Withdraws Charges Against the Chief Military Judge of the Canadian Forces
March 11, 2020
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Félicitations / Congratulations Rear-Admiral Bernatchez
March 17, 2020

A Proper Exercise of Statutory Power

Yesterday, 13 March 2020, Royal Military College of Canada (RMC) announced that it would suspend classes and would take the extraordinary step of ordering Cadets to remain on the grounds of the RMC campus as well as closing the campus grounds to visitors.

These steps go beyond what civilian universities have taken.  [I note tangentially, that, technically, RMC is an Educational Institution created under section 47 of the National Defence Act (NDA) and, notwithstanding that the Royal Military College of Canada Degrees Act, 1959 – an Ontario statute – permits RMC to have an Academic Senate and to grant degrees, it is not a university governed solely or principally under provincial legislation.]

Universities, such as Queen’s University at Kingston, have cancelled classes and have indicated that students who live on campus may either return home or stay in on-campus accommodation.

But, as I say – RMC is not a civilian university.

I suggest that these extraordinary steps may be justified within the statutory powers of the Commandant, Brigadier General Sébastien Bouchard.  It also offers an opportunity to contrast this decision – a proper and lawful exercise of statutory powers – with a prior decision of similar scope, which was a markedly improper and unlawful exercise of statutory powers.

Some of you may recall an incident, two years ago (almost to the day), in which the then Director of Cadets, Colonel Chris Ayotte, confined a majority of the ‘Gentlemen/Gentlewomen Cadets’ of RMC to Campus after a handful of students defied the prohibition on wearing jeans when off-campus in Kingston.  That restriction of the Cadets’ liberty was manifestly improper and both an unreasonable exercise of statutory powers as well as a contravention of the affected Cadets’ rights under the Canadian Charter of Rights and Freedoms (Charter).

To recap that incident, here is what apparently transpired: A small number of Cadets failed to comply with the order that prohibited them from wearing jeans as ‘walking out dress’ – i.e. the clothing they wore when not on duty and when in Kingston.  This order only applied to Regular Officer Training Plan (ROTP) and Reserve Entry Training Plan (RETP) Cadets who lived on the ‘RMC Peninsula’.  It did not apply to University Training Plan Non-Commissioned Members (UTPNCM) Cadets who study at RMC (and who are drawn from the ranks of non-commissioned members of the Canadian Forces (CF) who attend RMC in advance of commissioning as officers).  It did not apply to other CF personnel attending RMC to obtain a degree.  It did not apply to students enrolled in graduate studies or to the officers and NCM attending the Advanced Military Sciences program, which is conducted on the RMC campus.  Presumably, it did not apply to ROTP and RETP Cadets who were housed off campus.  [It is my understanding that RMC lacked sufficient accommodation for all of the ROTP/RETP Cadets attending the Educational Institution and, thus, several upper year Cadets were housed off-campus.]  It did not apply to Colonel Ayotte and his staff.  And it certainly did not apply to the civilians who study at RMC, whom I understand number in the hundreds and to whom it is debatable that the RMC mandate can extend.

Thus, there was a selective order that applied to only certain Cadets and students at RMC.

It appeared that a handful of Cadets chaffed at this restriction.

While it is debatable whether this order is a reasonable and lawful restriction to impose on Cadets in the first place, whether it is logical in light of its selective application, and whether it may also be inconsistent with the Charter, we’ll assume for the sake of this discussion that the order is valid and, therefore, enforceable under statutory regimes like the Code of Service Discipline.

Many of you will recall that the RMC leadership did not respond to this ‘insubordination’ with measures under the Code of Service Discipline.  Instead, Colonel Ayotte confined ROTP and RETP Cadets to campus – indeed, he used the expression ‘confined to college grounds’ – and subjected all of the Cadets to room and dress inspections as group punishment for the actions of a select few Cadets.

The problems with this reaction were multifaceted.  First, ‘confinement to college grounds’ is dangerously close to the punishment of ‘confinement to barracks’ under the Code of Service Discipline.  It would be improper to use Code of Service Discipline punishments outside the Code of Service Discipline processes (e.g. where no Code of Service Discipline charges have been laid or process followed).  Subtly altering the name, but imposing essentially the same punishment, does little to justify such an excess of authority.

When challenged on this point, Colonel Ayotte did a bit of a ‘Disciplinary two-step’ and explained that, it was not ‘confinement to barracks’, but a ‘restriction of privileges’.  Presumably, this ‘retconned’ justification was offered after Colonel Ayotte had the benefit of legal advice from his unit legal advisor.  He may or may not have consulted his legal advisor when he first contemplated his reaction.  Based upon the nature of the language he used initially for his justification, my guess would be that consultation with the unit legal advisor was an after-thought.

I suggest that the initial justification was the real justification.  It was not an administrative restriction of privileges, but a group punishment for the actions of a handful of Cadets.

Moreover, relying on the description of ‘privileges’ in the Queen’s Regulations and Orders for the Canadian Military Colleges (Appendix 6.1 of the Queen’s Regulations and Orders for the Canadian Forces; this Appendix is also referred to as the QR Canmilcols) does little to justify such actions.  First, the QR Canmilcols are desperately out of date – e.g. they still refer to Royal Roads Military College, which has not been a Military College for 25 years.  They are predominantly Ministerial regulations and orders of the Chief of the Defence Staff.  Notwithstanding the presumption of constitutionality of such regulations and orders, they have rarely ever been the subject of scrutiny from applicable courts.  And, while RMC leaders are quick to invoke the concept of ‘privileges’ in a disingenuous fashion, the restriction of ‘privileges’ arise under the RMC Code of Conduct.

The RMC Code of College Conduct is a dubious disciplinary regime veiled in the guise of administrative sanctions and which was created before most of the Cadets to whom it purportedly applies were even born.

Perhaps more significantly, Colonel Ayotte’s group punishment did not even rely on the Code of College Conduct under article 3.10 of the QR Canmilcols.  It was a group punishment – it was not directed at the Cadets who purportedly contravened the ‘no jeans’ order.

Even if one accepts the ‘retconned’ justification, it is an invalid exercise of statutory powers.  First, liberty is not a privilege – it’s a right guaranteed by section 7 of the Charter:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Clearly, this is not an absolute right.  Liberty can be limited “… in accordance with the principles of fundamental justice.”  A person can have their liberty significantly restricted when he or she is convicted of a serious criminal or Code of Service Discipline offence.  The ‘principles of fundamental justice’ come into play when a procedurally fair process, before an independent and impartial tribunal (see also, section 11(d) of the Charter) results in a finding of guilt and subsequent sentencing.  Moreover, the judgement of guilt and subsequent sentencing can be subject to a rigorous appeal process before, you guessed it, an independent and impartial appeal court or tribunal.  That’s part and parcel of the rule of law.

And the rule of law also applies to the exercise of statutory powers by senior CF decision-makers – although some of them appear to forget this from time to time.

The rule of law also permits statutory decision-makers and actors to impose limitations on persons who are subject to those statutory powers.  However, the exercise of these powers must be done within the constraints imposed by the empowering statute.  The powers must be exercised in a procedurally fair manner.  The powers must not be exercised arbitrarily.  And the exercise of the powers must be consistent with the constitution – the supreme law of Canada – which includes the Charter.

So, over a thousand Cadets had their liberty significantly restricted in an arbitrary manner that was markedly inconsistent with “principles of fundamental justice”.  Nor was the restriction imposed following anything remotely resembling procedural fairness.  Nor was it demonstrably justified in the context of a free and democratic society.

Deprivation of a Charter right can still be justified, under section 1 of the Charter:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

This results in a three-part test well-known to Canadian lawyers.  If a person demonstrates that his or her Charter right has been infringed, it falls to the state actor to demonstrate that:

  1. The measures are rationally connected to the objective. The measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations.
  2. The measures must minimally impair the right. Even if rationally connected to the objective, the restriction should impair “as little as possible” the right or freedom in question.
  3. The measures must be proportional. There must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”.

I suggest – with good reason – that Colonel Ayotte’s response was not rationally connected to his objective of remedying disobedience of select Cadets.  It certainly did not represent a minimal impairment of the liberty of all the Cadets affected.  And the over-reaction was not proportional.  And those conclusions are based upon the presumption that the ‘no jeans’ restriction is even a valid exercise of statutory authority, which is questionable.

Moreover, Colonel Ayotte and his leadership team had a means to deal with the alleged insubordination.  It’s called the Code of Service Discipline.  If a Cadet contravenes an order, the Cadet can be charged.  There is even a Code of Service Discipline offence that is specifically titled “Disobedience of a Lawful Command”.  Of course, if that offence were charged, the accused would have a right to elect trial by court martial, which the RMC chain of command might wish to avoid.  But even if they wanted to disingenuously deprive the Cadet(s) of the right to elect trial by court martial, they could lay a charge under section 129 of the NDA for ‘conduct or an act prejudicial to good order and discipline’ and claim that “… the offence relates to military training, maintenance of personal equipment, quarters or work space, or dress and deportment” and, therefore, pursuant to QR&O para 108.17(1)(a), the accused is not entitled to elect trial by court martial.  Granted, the lack of a right to elect trial by court martial might be made the subject of an application for judicial review – but that particular issue is best left for another Blog article.

My point is this: Colonel Ayotte and his command team had a means to deal with the specific Cadets who failed to comply with the ‘no jeans’ order.

Instead, they opted for group punishment by relying on the exercise of administrative statutory powers in a manner that was arbitrary, excessive, and improper.  And make no mistake: it was intended as group punishment.  This was not ‘retraining’.  It did not apply solely to the Cadets who contravened the ‘no jeans’ order – it applied to everyone.  Colonel Ayotte was showing the Cadets who was in charge, even if it required a contravention of their Charter rights and disregard for the rule of law.  And make no mistake: the actions of the RMC leadership constituted a derogation from the rule of law.

So, if it was so clearly an improper and unlawful reaction, why would the RMC leadership pursue such a questionable course of action?

I suggest that there are two principal factors that they may have considered: (a) Cadets would have been obliged to pursue redress under the less-than-efficient CF grievance process; and, (b) Cadets would be reluctant to ‘rock the boat’ early in their military careers.

Had the RMC chain of command laid Code of Service Discipline charges – and those, presumably, would have only been laid against those Cadets who actually contravened the ‘no jeans’ order – the onus for justification would have been placed on the chain of command.  They would have had to conduct a sufficiently thorough investigation to collect reliable evidence.  The Cadets may have elected trial by court martial (depending upon the charge laid).  And, eventually, the evidence would have been subjected to thorough scrutiny.  Plus, the chain of command would have been prevented from acting immediately.  In other words, the chain of command would have had to perform the functions imposed on them under the NDA.

By relying on non-disciplinary statutory powers, the thinly disguised punitive action placed the Cadets, rather than the chain of command, in a reactive position.  The decision to impose group punishment by restricting the Cadets’ liberty had immediate effect and, if any Cadets wished to challenge this excessive action, they would have had to have brought a grievance.

Any grievance would not have been considered and determined until well after the restriction was lifted.  In fact, in light of how long it takes even to assign a grievance to an initial authority (IA), the restrictions likely would have been lifted by the time the IA had been identified.

Thus, any Cadet who grieved the action would be subjected to the long laborious process of pursuing a grievance in addition to the myriad other obligations imposed on the Cadet’s limited personal time.

Additionally, that Cadet would be identified by the chain of command as challenging their authority.  While subsection 29(4) of the NDA prohibits reprisals against a CF member who brings a grievance, it can more accurately be characterized as prohibiting ‘obvious’ reprisals.  After all, the RMC leadership ‘disguised’ group punishment as ‘training’ when they imposed the confinement to the RMC campus, so we can safely assume that playing word games with statutory decision-making is not beyond their contemplation.

Thus, I contend that, when imposing the group punishment for the contravention of the ‘no jeans’ order (by a select handful of RMC Cadets), the senior leadership of RMC may have relied on these two factors (and perhaps others) in their ‘risk analysis’ regarding contravention of the Charter and their obligations to the rule of law as statutory decision-makers.  I suggest that they may have banked on the fact that the victims of their excesses would not have the resolve to pursue a grievance to its conclusion.

After all, these same leaders would have an intimate understanding of the dynamics at play on the RMC campus.

Those actions, two years ago, can be contrasted with the preventative measures undertaken in the face of the threat posed by COVID-19.

Again, regarding the recent decision to restrict Cadets to the ‘RMC Peninsula’, presumably this pertains only to those Cadets who live on the campus.  The UTPNCM Cadets and the select upper year Cadets who live off-campus (if there are upper year Cadets who still live off campus) will presumably not be restricted to the RMC Peninsula.  They may even be directed not to come onto the campus.

Equally, as classes have been cancelled/postponed for the time being, the ‘distance learning’ students who are pursuing bachelor or graduate degrees, and the civilian students who attend RMC will likely also be instructed to refrain from coming onto the campus.

Restricting the Cadets who live on the RMC Peninsula to stay on the campus does infringe their liberty.  It was clearly not done under the Code of Service Discipline or the Code of College Conduct.  It is debatable whether it was done “… in accordance with principles of fundamental justice …”.  However, unlike the response to the ‘no jeans’ order, this response is clearly intended as a precautionary measure to safeguard the Cadets’ health and the collective health on the campus.

Even if we assume, for the sake of discussion, that the affected Cadets could establish that the order contravenes section 7 of the Charter, it would be upheld under section 1.  The measure implemented is rationally connected to the stated objective.  The measure, while representing a significant impairment of the right to liberty, can still be said to represent a minimal impairment, in light of the context, which is markedly different than Colonel Ayotte’s ‘group punishment’ two years ago.  And it can also be justified as a proportional response.

Frankly, the merit of this measure will likely be manifested in how the RMC leadership addresses exceptions to the general measure.  Undoubtedly, there will be individual cases in which a Cadet needs or wishes to leave the RMC Peninsula or when a ‘visitor’ wishes or needs to attend the campus.

How the RMC chain of command addresses these discrete circumstances will illuminate the reasonableness of the exercise of their statutory powers.  However, even based upon the general context of the recent direction, it stands in marked contrast from the actions and decisions of the Director of Cadets two years ago.  The current decision-making represents, on its face, respect for the Charter and the rule of law.  The decision-making two years ago was an object example of impunity, a disregard of Charter rights, and a lack of respect for the rule of law.  In effect, two years ago, senior officers ignored the rules established by Parliament because they asserted that a handful of Cadets broke the rules they had imposed on those Cadets.

Perhaps the senior leadership at RMC learned something from that prior episode.  Time will tell.

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