A Word or Two on Summary Investigations

20 July 2025

 

So … according to a Defence Watch article by David Pugliese published in the Ottawa Citizen, the Commander of the Canadian Army, Lieutenant-General (LGen) Mike Wright, has indicated that a Summary Investigation will be (or has been) commenced to [according to Mr. Pugliese] “… examine the alleged unethical conduct of any currently serving Canadian Army members that were part of the online group …”.

Mr. Pugliese reports that, according to LGen Wright: “The investigation will also include a review of the policies and procedures related to reporting and social media usage by members of the Canadian Army”.  The story does not indicate whether it was LGen Wright or one of his subordinates who ordered (or will order) the conduct of the Summary Investigation.  However, we are told that the Summary Investigation will be led by an “investigative team” composed of a “Post Command Lieutenant-Colonel” and supplemented by the appropriate specialists.

There is a lot that is problematic about this announcement.  One thing is clear: the announcement is consistent with the typical reaction of senior CF decision-makers when a ‘scandal’ is reported in national news media, and the almost pathological desire of such decision-makers to be seen to be “doing something”.

In light of this announcement, perhaps now would be a good time to review the nature and purpose of administrative investigations in the CF generally, and Summary Investigations specifically.  We can then examine potential problematic aspects of the Summary Investigation that has been announced in terms of: (a) timing; (b) nature; (c) scope; and, (b) composition.

We are also told that LGen Wright stated that anyone involved “… will be provided procedural fairness in accordance with the applicable policies …”.

Do you ever notice how senior CF decision-makers routinely insist that they will provide procedural fairness in any matter reported by the news media, even if there are valid reasons to doubt such assertions?  It’s almost as if they are trying to contradict anticipated criticism when their efforts are exposed to be closed-minded, unfair, and conclusionary.  Assertions that a decision-maker is providing procedural fairness are frequently not as convincing as overt demonstrations of procedural fairness.  It reminds me of an adage used by movie directors who aren’t fans of excessive exposition in movies: show, don’t tell.

And, as an aside – procedural fairness is not something dictated by policy.  It is part of the “content of fairness” that is required by law when a public law decision-maker takes action or makes decisions that significantly impact the rights, interests, or privileges of one or more other people.[1]  More on that in due course.

 

Administrative Investigations

For the purposes of the discussion that follows, the term ‘administrative investigation’ can be taken to mean investigations undertaken under Chapter 21 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O): namely Boards of Inquiry (BoI) and Summary Investigations.

I am not including investigations undertaken for the purposes of Remedial Measures under Defence Administrative Order and Directive (DOAD) 5019-4 or Administrative Reviews under DAOD 5019-2.  And, in any event, those administrative actions are frequently predicated upon untested disciplinary investigations conducted by a unit chain of command or the military police.

And I certainly am not referring to disciplinary investigations, whether it is a unit disciplinary investigation (UDI) conducted by a unit chain of command, or a disciplinary investigation conducted by the military police.  The hint is in the name.  And, as I have explained several times, including recently, a disciplinary investigation triggers different rights than an administrative investigation.

If you’re curious about those distinctions, you may wish to read any of the following:

Rory Fowler, “The Right Tool for the Job:  Administrative Review is neither a Code of Service Discipline prosecution nor an Harassment Investigation” (June 19, 2020), online: The Military Justice Project <http://militaryjusticeproject.com/the-right-tool-for-the-job-administrative-review-is-neither-a-code-of-service-discipline-prosecution-nor-an-harassment-investigation/>

Rory Fowler, “Rules are for Corporals, Not for Colonels” (1 September 2020), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/rules-are-for-corporals-not-for-colonels/>

Rory Fowler, “The Military Justice System – Use it or Lose it” (17 October 2021), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/the-military-justice-system-use-it-or-lose-it/>

Rory Fowler, “This is just ridiculous …” (16 February 2023), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/this-is-just-ridiculous/>

 

Let’s face it, misusing untested disciplinary investigations (which are often not sufficiently disclosed to the affected CF member) to justify significant adverse administrative action is an ongoing problem in the CF, and one that senior decision-makers and their legal advisors are reluctant to acknowledge or correct.

I use the term ‘administrative investigations’ much as the Office of the JAG (OJAG) uses the term when describing one of its directorates: the Directorate of Law for Grievances and Administrative Investigations (which falls within the Administrative Law Group under the Deputy Judge Advocate General – Administrative Law) or D Law G&AI.  D Law G&AI ‘does what it says on the tin’.  The Directorate is responsible for providing legal advice and assistance – often at the strategic level – on grievances and administrative investigations.  In that capacity, it advises the Canadian Forces Grievance Authority regarding grievances and the Administrative Investigation Support Centre (AISC) and the Directorate of Special Examinations and Inquiries (DSEI) regarding administrative investigations.  And, since I was the Director of that Directorate (when it was called the Directorate of Law for Administrative Law), I have some familiarity with its mission.

Thus, we are talking about investigations conducted under Chapter 21 of the QR&O: Summary Investigations and Boards of Inquiry (BoI).  The latter – BoI – are expressly established in the National Defence Act (NDA).  Subsection 45(1) states:

The Minister, and such other authorities as the Minister may prescribe or appoint for that purpose, may, where it is expedient that the Minister or any such other authority should be informed on any matter connected with the government, discipline, administration or functions of the Canadian Forces or affecting any officer or non-commissioned member, convene a board of inquiry for the purpose of investigating and reporting on that matter.

 

The balance of section 45 and section 45.1 provide additional direction from Parliament, but the above-noted provision captures the general role and purpose of BoI.

Summary Investigations are not expressly established in the NDA.  However, Chapter 21 of the QR&O amplifies the statutory provisions relation to BoI and establishes the basis for Summary Investigations.  Chapter 21 is comprised of regulations created by the Governor in Council and the Minister pursuant to s 12 of the NDA (and nearly all of the regulations are Ministerial Regulations under subsection 12(2) of the NDA) and orders from the Chief of the Defence Staff pursuant to s 18 of the NDA.

When distinguishing between Summary Investigations and BoI, an apt, if perhaps simplistic, means of distinguishing between the two types of investigations is that Summary Investigations are used when the far more robust BoI is not required or necessary.  Para 2.2 of DAOD 7002-2, Summary investigations, states:

2.2 An SI is normally ordered if:

a.  the matter to be investigated is minor and uncomplicated;

b.  specifically required by QR&O, a directive or an order; or

c.  directed by higher authority.

 

I contend that the Summary Investigation mentioned (and possibly ordered) by LGen Wright is more about theatre and posturing, than the CF chain of command informing itself about the “Blue Hackle Mafia scandal”.  No doubt some might be tempted to accuse me of offering a speculative conclusion.  While I am certainly not privy to the discussions that LGen Wright and his advisors may have had, this is not mere speculation on my part.

My conclusions are predicated upon years of experience with these types of matters, from a variety of perspectives and positions.  Moreover, I can demonstrate several problematic issues arising from ordering a Summary Investigation at this point in time.  These problematic issues demonstrate how this decision is more about demonstrating that “something is being done” than it is about actually conducting a meaningful investigation.

 

Timing of the Summary Investigation

The Summary Investigation is being conducted in parallel with a military police disciplinary investigation that clearly overlaps in subject matter.  In other words, it is being ordered when the person ordering the Summary Investigation (whether it is LGen Wright, or one of his subordinates) can reasonably anticipate that the administrative investigation will overlap, and potentially impede or compromise, an ongoing disciplinary investigation.

Under para 2.6 of DAOD 7002-2, the Terms of Reference (ToR) for a Summary Investigation must include the following passages:

“Should an investigator receive evidence that permits the investigator to reasonably believe that an offence has been committed, the investigator shall suspend the investigation and notify the officer who ordered the investigation, and the matter shall be referred to the nearest JAG representative for legal advice.

The investigator shall inquire into all matters referred to it for investigation. If during the course of an investigation, a matter arises which raises issues involving the propriety of a military police investigation or other military police-related conduct, the matter shall be forwarded for further disposition to the officer who ordered the investigation”.

 

And any objectively reasonable observer considering the nature of this ‘scandal’ would conclude that there is a distinct possibility that service offences may have occurred.  Similarly, in light of what is presently publicly know, an objective and reasonable person could conclude that the propriety of military police decision-making in relation to an earlier disciplinary investigation into this matter can be called into question.

Any act or omission by a person subject to the Code of Service Discipline that contravenes: (a) any of the provisions of the NDA; (b) any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof; or, (c) any general, garrison, unit, station, standing, local or other orders, could constitute an offence under s 129 of the NDA.

Indeed, LGen Wright indicates that a central purpose of the Summary Investigation is to determine if there was unethical conduct by any currently serving personnel in the Canadian Army.  I comment below on the problematic nature of using a Summary Investigation for what is clearly disciplinary purposes.  However, even putting that aside, the timing of the Summary Investigation, while there is still at least one on-going disciplinary investigation regarding the same or over-lapping subject matter, is problematic.  The administrative investigation can jeopardize the disciplinary investigation.  It can jeopardize the rights of potential ‘accused’ in any disciplinary proceeding, including the right to silence protected under s 7 of the Canadian Charter of Rights and Freedoms.

That is the reason for the above noted mandatory text for the ToR.  That is also why para 2.7 of DAOD 7002-0, Boards of Inquiry and Summary Investigations, states:

2.7 A BOI or an SI must not be conducted if any purpose of the BOI or SI is to:

a.  obtain evidence relating to a potential breach of the Code of Service Discipline; or

b.  assign criminal responsibility.

 

Consequently, the nature of the proposed Summary Investigation is also suspect.

 

Nature of the Summary Investigation

Administrative investigations are not intended to investigate blameworthy conduct.  At one time, Chapter 21 (specifically art 21.47) included a provision that obliged a Board of Inquiry or Summary Investigation to offer findings if any person was to blame for the death or injury of a CF member.  Sub-art 21.47(3) stated:

21.47 – FINDINGS ON INJURY OR DEATH

The report of a summary investigation or the minutes of a board of inquiry submitted in accordance with article 21.46 (Investigation of Injury or Death) shall contain findings as to:

…

1. 3. whether the deceased or injured officer or non-commissioned member or any other person was to blame for the injury or death; and

…

 

Chapter 21 of the QR&O was subject to significant amendment in March 2009, including expressly removing this provision.

Why was that done?

Well, the CF already has a process for examining blameworthy conduct: they are called disciplinary investigations.  And disciplinary investigations encompass investigations into both criminally blameworthy misconduct and misconduct that, while not ‘criminal’ in nature – i.e., conduct that is not prohibited under the Criminal Code – still constitutes an offence under the Code of Service Discipline.  And, by virtue of provisions such as s 129 of the NDA, misconduct that represents one or more potential Code of Service Discipline offences is quite broad.  And, with the introduction of service infractions by virtue of the amendments from Bill C-77 that came into force on 20 June 2022, the potential scope of disciplinary investigations remains quite broad.

One thing is clear: administrative investigations are not intended to investigate misconduct.  Yet that appears to be precisely what LGen Wright (or one of his subordinates) has ordered.  Or will order.  Frankly, details remain vague.

Such problematic actions are nothing new.  For years, the CF has been using Administrative Reviews to ‘prosecute’ allegations of misconduct.  Administrative Reviews are not designed for that purpose and fail miserably at providing the requisite procedural fairness for testing such allegations.  But that has not stopped CF decision-makers from using Administrative Reviews, instead of the Code of Service Discipline, to prosecute allegations of disciplinary misconduct.  Such processes tend to unfold as follows:

• A disciplinary investigation is conducted, either by the military police or by the unit chain of command (and sometimes by both)
• When the investigation is concluded, recommendations are made for charges;
• However, charges are not laid. Often, this will be because the evidence is of markedly poor quality or (as has often arisen since the introduction of the so-called Military Justice at the Unit Level, or MJUL, on 20 June 2022) the chain of command is time-barred from proceeding with charges in relation to service infractions;
• So, the chain of command issues remedial measures or commences an Administrative Review, relying upon the untested evidence in the disciplinary investigation (or, worse still, a summary of the untested evidence from the disciplinary investigation). Sometimes, little or no disclosure is given to the CF member accused of wrong-doing.

 

The CF has not yet sunk to the depths of using administrative processes to prosecute allegations arising in this matter.  I have no doubt that will eventually occur.  And, as in the past, it will represent a disingenuous, unethical, and problematic use of administrative processes in a manner and for a purpose for which they were never designed.

My point at this stage in the CF’s fear-driven response to demonstrate that “something is being done” is that a Summary Investigation appears to have been ordered (or will be ordered) at a problematic point in time and for a problematic and disingenuous purpose.

 

Scope of the Summary Investigation

I have already addressed an element of the problematic scope of the proposed Summary Investigation: the focus appears to be on allegations of unethical behaviour.  In other words, it is intended to investigate blameworthy conduct, notwithstanding that such is not the purpose of Summary Investigations.

But that is not the only deduction that can be drawn.  We are told that the Summary Investigation will be conducted by a “Post Command Lieutenant-Colonel”.  That also signals a significant limitation of the scope of the Summary Investigation.

To put it bluntly: the investigation will not examine any shortcomings at the level of Brigade command or higher.  In other words, the target of the investigation is the unit and unit command.

This is what we call ‘situating the estimate’.  It forecloses the possibility that there may have been failures above the unit level.

Again, to be blunt: it signals who the intended scapegoat will be.

 

Composition of the Summary Investigation

The composition of the intended Summary Hearing is telling in more than one way.  Here is the description that was offered:

• It would be comprised of an “investigative team”;
• It would be led by a “Post Command Lieutenant-Colonel”; and
• It would be supplemented by appropriate specialists.

 

Despite having no reservations about announcing that the current CO of the Cameron Highlanders of Ottawa was “temporarily” removed from command, LGen Wright declined to name anyone who would be involved in this investigation.  [As an aside, while LGen Wright did not expressly name the officer removed from command, it would hardly take an investigative journalist to identify the officer in question.]

The composition of this “team” prompts a few questions.

First, why is a Summary Investigation being used?

The regulatory guidance for Summary Investigations is provided at art 21.01 of the QR&O.  This is amplified by DAOD 7002-0 and 7002-2.

The investigator will almost always be a single CF member, typically an officer.  As I indicate above, a Summary Investigation is far less robust than a BoI.  Unlike a BoI, a ‘summary investigator’ cannot receive evidence under oath.  A summary investigator has no power, other than the person’s rank and position, to compel the appearance of a witness.  And, when a witness is not under the investigator’s command, even that degree of authority will have limitations.  A summary investigator may be assisted by advisors, but such advice is typically limited in scope.  The direction at para 2.15 of DAOD 7002-2 expressly focuses on legal advice where a so-called ‘Notice of Adverse Evidence’.  And the recording of evidence is not as comprehensive or robust as in a BoI.

So, I found it odd that LGen Wright emphasized that there would be an “investigative team”.  And that’s because when one thinks of an “investigative team” conducting an administrative investigation, one tends to think of a Board of Inquiry, not a Summary Investigation.

A Board of Inquiry is typically comprised of a “team” of three investigators on the Board, headed by the President of the BoI, and supported by specialists.  If this administrative investigation requires a team and specialists, and concerns a high-profile topic that has drawn the ongoing attention of national news media, I feel compelled to ask: Why isn’t this the subject of a Board of Inquiry?

Putting aside the problems arising from the timing of the investigation (concurrent with at least one disciplinary investigation concerning many of the same material factors) and the problematic nature of the investigation (which expressly focuses on allegations of wrongdoing) if an administrative investigation of this nature must be conducted now, why is it a Summary Investigation and not a Board of Inquiry (BoI)?

That question does not appear to have been asked.  Yet.  And while we do not have any clear and unambiguous explanation from LGen Wright, I believe that I can shed some light on the rationale.

First, BoI have become a bit of a ‘cottage industry’.  They tend to take a long time.  Frankly, they tend to take longer than they should.  Often, those assigned to the BoI as assigned for 6 to 12 months, or longer.  For that reason, it is not uncommon for personnel from the reserve force to be ‘employed’ on Class B periods of service to participate.  Commanding officers do not wish to ‘lose’ personnel to what essentially become full time tasks of long duration.  In some cases, legal officers assigned to BoI spend a significant portion of their available time supporting the efforts of the Board.  And the approval process can be long and time consuming.

Consequently, many commanders don’t want to use a BoI unless the law or policy give them no other option.  BoI are often seen as unavoidable obligations in such circumstances, rather than the effective tools that commanders could, and should, be using.  So, commanders turn to Summary Investigations, which are seen as quicker (even though some turn into to what could be characterized as ‘mini-BoI’).

Second, BoI are seen as something other than a tool to be employed by a commander.  BoI are viewed as the product of the AISC, DSEI. and the Assistant Deputy Minister – Review Services (ADM-RS), and not a tool for commanders.  Commanders have come to believe that a BoI doesn’t give them the flexibility that they wish to have.

And perhaps part of that desired flexibility is about outcome.  After all, in circumstances such as this, where the focus is on demonstrating to the news media and the Canadian public that “something is being done”, the priority is on the message or the narrative, and on timeliness of the response.  And a comprehensive, fair, and reasonable investigation can sometimes be viewed as interfering with timely influence on the narrative.  Despite LGen Wright’s assurances about procedural fairness, sometimes fairness and accuracy can be viewed as “getting in the way” of a timely response that shows that “something is being done”.[2]

That leads to another question: Why is the Summary Investigation being conducted by a Lieutenant-Colonel?

Sure, LGen Wright was quick to assert that it is a “Post Command” Lieutenant-Colonel.  But that doesn’t change the officer’s rank.  There’s no asterisk beside the Lieutenant-Colonel ‘pip and crown’.  The reassurance that it is a “Post Command” Lieutenant-Colonel is a largely hollow and meaningless gesture.

I suggest that the rank of the officer selected to conduct the Summary Investigation is indicative of the fact that senior Army and CF decision-makers have already ‘situated their estimate’.  The choice of a Lieutenant-Colonel tells me that in the search for blame those senior decision-makers have already decided that the blame will lie on someone below the rank of Colonel.  They have already decided that no blame will fall to any Brigade Commander, or any Divisional Commander, or any Senior Officer in a headquarters above the rank of Lieutenant-Colonel.  Otherwise, it would be problematic to assign the Summary Investigation to a Lieutenant-Colonel.

And make no mistake: that is what this Summary investigation is intended to do.  It is intended to demonstrate that “something is being done” by laying the blame at the feet of oner or more people below the rank of Colonel.  And I’d suggest that the senior leadership in the Army and 4^th Canadian Division have already signalled where they are laying the blame.  And that ‘blame game’ is being signalled well before any procedural fairness has been provided.

 

Conclusion

I contend that the proposed Summary Investigation is not intended to generate objective, reasonable, and meaningful conclusions.  It is intended to demonstrate that “something is being done”.  Like much decision-making revolving around this ‘scandal’, it is driven by fear of negative media coverage and a desire by senior CF decision-makers to demonstrate that they are firmly in charge and are being decisive.  Hollow assurances of the importance of procedural fairness are not the acid test of fairness or reasonableness.  The proof will be in the material actions by statutory decision-makers.  And the proposed Summary Investigation is demonstrative of problematic decision-making.

 

[1] Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.

[2] After all, it is unlikely that the recently announced removal of a commanding officer was done in a procedurally fair manner.  Instead, it was characterized as being “temporary” in order to justify little or no procedural fairness.  Forgive my pessimism, but I am hard-pressed to think of a single instance in which a “temporary” removal from command did not evolve into a “permanent” removal from command.  And, in some case, the so-called “temporary” removal from command lasted several months before becoming “permanent”.