Developments in the Code of Service Discipline

1 August 2024

 

I have been on hiatus from this blog for the past three months.  There are several reasons for this, though I won’t be delving into those reasons.  Suffice it to say that I am back, and it is my intention to contribute regularly to discourse on matters of military law.  In particular, over the course of the month of August, it is my intention to discuss a variety of developments and aspects of the Code of Service Discipline, including the interaction of processes under the Code of Service Discipline with other processes under the National Defence Act (NDA)[1] – processes that many decision-makers, their legal advisors, and persons affected by those processes typically refer to as ‘administrative process’.

 

Distinction between ‘Disciplinary’ and ‘Administrative’ Decisions

One of the factors that we will explore is the distinction – to the extent that there is a distinction – between so-called ‘disciplinary processes’ and ‘administrative processes’.  And one of the issues that we will discuss is the frequency with which such nomenclature represents a distinction without a difference – at least, not a material difference.  And this issue gives rise to a subsequent issue or mischief: disingenuous assertions of distinctions in order to justify abuse of power.

Ultimately, in myriad circumstances, an officer or non-commissioned member (NCM) of the Canadian Forces (CF) will face a statutory decision by a statutory decision-maker, typically under the NDA.  These decisions will frequently be described as ‘disciplinary’ or ‘administrative’, often by people who lack a firm understanding of the extent to which such a distinction may, or may not, matter.

The moniker ‘disciplinary’ or ‘administrative’ can often be of little or no significance and will not be determinative regarding the exercise of the relevant statutory duties, powers, and functions.  What is typically relevant is that an officer or NCM (though, typically, an officer) exercises statutory duties, powers, and/or functions that affect the rights, interests, or privileges of another CF member.  Consequently, regardless of the label applied by a particular decision-maker, the matter likely falls within the broad scope of “public and administrative law”.

And it is important that we recognize distinctions that can be drawn, as well as circumstances in which such distinctions are negligible or largely immaterial.  As I have observed previously in this Blog, words have meaning; however, sometimes the meaning attributable to select terms of art is not as significant as some decision-makers might suggest.  And, as we will explore in the coming days, the changes to the Code of Service Discipline introduced when significant portions of Bill C-77[2] came into force on 20 June 2022, further blurred the line between o-called ‘administrative’ and ‘disciplinary’ action by CF statutory decision-makers.

Among the subjects that we will address in the coming days and weeks are:

• The distinctions, whether legitimate or disingenuous, that can be drawn between the Military Justice at the Unit Level (MJUL) and so-called ‘administrative action’ such as remedial measures under Defence Administrative Order and Directive (DAOD) 5019-4;
• The use of administrative action to enforce, or otherwise influence, disciplinary action under the Code of Service Discipline; and,
• Judicial review of ‘disciplinary processes’ compared to judicial review of so-called ‘administrative processes’.

 

It may be useful to commence these discussions with an illustrative example of how so-called administrative and disciplinary processes are perceived by senior leaders of the CF, and how one ‘type’ of process might be used, improperly, to influence another type of process.

 

Threats of ‘administrative action’ to influence a ‘disciplinary process’

A short while ago, I had occasion to overhear a comment made by a very senior officer in the CF.  The identity of this officer is less important than the fact that the officer held the rank of a General Officer/Flag Officer (GOFO) and, therefore, was representative of the senior leadership of the CF.  And I would hazard a guess that the views expressed by this GOFO were not unique to that specific officer.  And, in light of what I will explain, that should be a source of concern for anyone who has an interest in military justice and the exercise of statutory powers under the NDA.

I would characterize the comments of the GOFO as candid, notwithstanding that they were spoken in a public setting.  Specifically, the comments were made to a person with whom the GOFO was conversing, but in a manner that they could be heard easily and clearly by anyone in proximity – including me.

The GOFO was referring to a relatively notorious disciplinary matter that was dealt with under the MJUL.  And the GOFO referred not only to the outcome of the disciplinary process under the MJUL, but to some of the decision-making steps that led to the outcome.  The specifics of the allegations that were dealt with under the MJUL are not material to the discussion that follows.  I suspect that some readers may be able to deduce (or, at least, think that they have correctly deduced) the specific matter.

The GOFO’s comments expressed the following sentiment:

The individuals who were accused of disciplinary wrongdoing were charged with service infractions.  The suggestion was then offered to the ‘accused’ that they had a choice: They could admit to the particulars of those service infractions, after which they would be punished under the Code of Service Discipline with an appropriate sanction, and then they would be permitted to carry on with their careers.  Alternatively, they could ‘fight’ the charges, in which case, they would almost certainly be found guilty, and punished under the Code of Service Discipline.  But their careers would, for all intents, be over.  The GOFO expressed the sentiment that, wisely, the accused did the right thing, and admitted to the particulars.  Consequently, they were permitted to continue in their careers, including the prospect of further promotion or advancement.

 

It was clear that, in the GOFO’s opinion, this was a just and appropriate outcome and a proper function of summary justice.

Now, some of you might be thinking: Sure, what’s wrong with that?  The accused acknowledged their wrongdoing – which some people might express this as ‘taking ownership of their errors’ – and, consequently, they were able to continue in their careers.  After all, that’s what we expect of responsible CF members, isn’t it?

And, certainly, ‘taking ownership of errors’ is commendable.  I find it more than a bit ironic that some senior leaders in the CF frequently encourage others to take ownership of their errors, while failing to do the same, themselves.  It’s not just ironic – it’s hypocritical.  [And, if you are wondering what I mean, consider this: when was the last time a senior CF statutory decision-maker was ever held responsible when one of their unfair or unreasonable statutory decisions was overturned by virtue of a grievance or an application for judicial review? … Yeah … I cannot think of an example either …]

But was the example to which the GOFO referred representative of one or more persons ‘taking ownership of their errors’, or is there more to it?

 

Mitigating Factors

When someone acknowledges their wrongdoing or their error, such an admission can be – and often is – considered a mitigating factor in the context of a disciplinary process.  Frankly, it can be considered a mitigating factor in an ‘administrative’ process as well.  We certainly wish to encourage people to acknowledge their wrongdoing.  And, if they express contrition, that, too, is a relevant mitigating factor.

When an accused pleads guilty before a court martial or a civil court of criminal jurisdiction, this is typically viewed as an expression of contrition and is considered a mitigating factor, particularly if the guilty plea arises early in the process.

Other expressions of contrition or remorse, such as written apologies, voluntary restitution, voluntary participation in remedial courses or processes, or similar steps that are undertaken before an admission or a guilty plea, also represent potential mitigating factors.

As we know, “other sentencing principles”[3] and “other principles of sanctions”[4] under the Code of Service Discipline include the principle that a punishment or a sanction “… should be … reduced to account for any relevant … mitigating circumstances relating to the commission of the …” service offence[5] or service infraction[6] or the person who committed it.

And this is consistent with objectives of sentencing[7] and objectives of sanctions[8] under the Code of Service Discipline, which include assisting with rehabilitating persons who have committed service offences or infractions and to promote a sense of responsibility in persons who have committed service offences or infractions.

So, yes, ideally, it is beneficial for CF personnel who are charged with a service infraction to acknowledge their wrong-doing – to ‘own their mistake’.  And if they demonstrate such remorse, contrition, or sense of responsibility in order to safeguard or salvage their career, it would be churlish to deny them such an opportunity.

 

Threatening Administrative Action is an Abuse or Power and Process

But that isn’t what arose in the material example that I have provided.  There was a subtle, and improper, nuance to that circumstance.  And, assuming that the GOFO who raised this observation is an experienced and intelligent person – and I have no reason to believe otherwise – I am confident that the GOFO was well aware of that subtle nuance.

We aren’t talking about one or more accused who admitted to the particulars of one or more service infractions in order to demonstrate remorse, contrition, and responsibility.  We are talking about one or more accused who were threatened with further adverse consequences if they dared exercise their right to make full answer and defence and to control the conduct of their defence before a disciplinary tribunal.[9]  And, lest someone assert that the right to make full answer and defence and to control the conduct of a defence is limited to criminal/penal regimes, and that the MJUL is a non-penal regime, we must remember that this right extends to professional regulation in which decisions can impact reputation, career, and livelihood: Lauzon v Ontario (Justices of the Peace Review Council), 2023 ONCA 425, para 135.

We’re talking about CF members who were essentially told that, if they exercised their right to make full answer and defence, it would be viewed as an aggravating factor.  We’re talking about CF members who were subtly threatened to ‘plead guilty or else’.

And therein lies the difference, and my concern over the perspective expressed by said GOFO.

And this is indicative of a cancer in the exercise of statutory powers under the NDA.  It is indicative of the bullying that can be perpetrated by statutory actors.  It is indicative of the continuing risk of impunity.

What appears to have arisen is that one or more members of the CF were accused of committing one or more service infractions.  They were charged under the Code of Service Discipline.  Specifically, they were charged with one or more service infractions under what is colloquially referred to as the MJUL.

There are shortcomings to the MJUL – and we will explore many of those shortcomings in the days and weeks to come – but it is one of the two processes arising under the Code of Service Discipline.  The MJUL – specifically, the adjudication of service infractions by summary hearing – is expected to be used for minor breaches of discipline.[10]

A cynic might suggest that, rather than the seriousness of the allegation, the true determining factor for many decision-makers contemplating whether to lay charges for service infractions instead of service offences, is the desire to avoid permitting the accused to make full answer and defence before a truly independent and impartial adjudicator with the benefit of representation by legal counsel from Defence Counsel Services, free of charge.

And I offer this observation because a CF member charged with a service infraction does not have a right to elect trial by court martial.[11]  Consequently, the accused will not have their matter adjudicated by a military judge (an independent and impartial trier of fact and law).  Nor will they have a right to be represented by Defence Counsel Services free of charge.[12]  In fact, unlike any other comparable professional disciplinary regime, in which there is an expectation that the person brought before the disciplinary tribunal will be represented by legal counsel[13], the MJUL Policy, issued by the Chief of the Defence Staff and the Judge Advocate General, expressly asserts that there is no right to representation by counsel – even counsel retained at the personal expense of the accused.[14]  An accused must seek permission of the “officer conducting the summary hearing” (OCSH) if the accused wishes to have privately retained counsel appear before the summary hearing.

So, the circumstance to which the GOFO appeared to have been referring was one in which the relevant statutory decision-maker chose to proceed under the MJUL by laying charges in relation to service infractions.  And, while this decision may have been driven by the conclusion that the allegations were of minor breaches of discipline – at least, that is likely what the public explanation was – it is just as likely that the principal driving factor was a desire to limit the means and methods by which the accused could offer full answer and defence.  Another driving factor could also have been the desire by statutory decision-makers for a speedy outcome.  After all, according to the JAG: “Discipline must be administered fairly and swiftly.”  Unfortunately, all too frequently, the emphasis seems to be placed on the latter of those two factors.

And, under the Code of Service Discipline, these statutory decision-makers have broad discretion.  Provided that they do not overtly acknowledge an improper purpose in their decision-making, it would be markedly difficult to challenge a decision to proceed by service infraction instead of service offence.  Arguably, the corollary would (or should) be that the decision-makers cannot then assert that the matter constitutes a serious breach of discipline.  After all, serious breaches of discipline should lead to charges for service offences, which are tried by court martial.  However, how often have we seen a statutory decision-maker exaggerate the seriousness of misconduct, even though they expressly chose to follow the summary disciplinary path, rather than court martial?

Or, worse still, how many times have we encountered circumstances in which a CF member is accused of wrongdoing, and is then investigated by the military police, but, ultimately, no charges are laid, even for service infractions?  Instead, statutory decision-makers proceed with an Administrative Review under DAOD 5019-2, which is markedly ill-suited to test disputed evidence, alleging that the CF member in question is guilty of serious misconduct.  But if the misconduct was so serious, why were no charges laid?

And in the material example that I provide above, it appears that the decision-makers went even further.  It appears that the relevant decision-makers indicated to the accused that if they ‘fought’ the charges – i.e., if they attempted to challenge the charges within the process that is purportedly designed to permit them to do just that – then there would be further adverse consequences for the accused outside of the Code of Service Discipline.  And I suggest that the term ‘further’ is apt, as there appears to have been an insinuation that the outcome of the summary hearings was a foregone conclusion.

And that is where the relevant statutory decision-makers overstepped their authority.  That is where the impunity arises.

By suggesting to the accused that, if they assert their right to offer full answer and defence, they would then face more serious consequences, then the right – guaranteed under Canadian law – is no longer a right that can be exercised freely.

Certainly, if an accused admits to the particulars of a charge and expresses remorse or contrition, they should benefit from the consideration of such mitigating factors.  Should they choose not to admit to the particulars, and, instead, choose to contest the charges, that is their right.  And, if they are found guilty (or, to use the awkward phrasing that prevails under the MJUL, because ‘guilt’ is a dirty word in the MJUL process – should they be found to have committed the service infraction), then they may not benefit from that mitigating factor.

Contrary to the conclusions that I have encountered with some disciplinary decision-makers under the NDA, the decision by an accused not to ‘plead guilty’ (or not to admit to the particulars of a charge, or to decline to ‘take ownership of their actions’), is not an aggravating factor.  And, in light of repeated errors by statutory decision-makers, I will reiterate that point: the absence of an admission of guilt or similar acknowledgement, is NOT an aggravating factor for sentencing or sanctions.[15]

Nor does it mean that the accused can never be considered to have expressed remorse or contrition.  Certainly, an admission of the particulars of a charge or a guilty plea is typically viewed as an expression of remorse.  (To be frank, not all persons who plead guilty to an offence are truly remorseful.  That can sometimes be a convenient fiction to reflect the beneficial impact of a guilty plea or equivalent admission: it permits a finding of guilt without obliging the prosecutor to prove guilt beyond a reasonable doubt; it can pre-empt the requirement for a victim to relive a matter through testimony; and it can minimize the need to assign scarce judicial resources to lengthy trials.)[16]  But remorse, contrition, and ‘ownership of a fault’ can be expressed in a variety of ways.

In the example described by the GOFO, we are not examining the issue of whether the accused would, or would not, benefit from consideration of a potential mitigating factor.  We are examining a circumstance in which accused – who were entitled to a fair process, including an opportunity to challenge charges laid against them, to make answer and defence, and to control the conduct of their defence, should they wish to do so – were threatened with additional consequences – punishments, if we are being honest and pragmatic about what was being discussed – if they demonstrated the temerity to avail themselves of their right to make answer and defence to the charges.  (I am hesitant to describe it as ‘full’ answer and defence, in light of the shortcomings of summary hearings.)

And that is highly problematic.

It is one thing for CF members to admit, freely, to the particulars of a service infraction – and thereby choose not to avail themselves of the limited protections available in the MJUL – in order to ‘own their mistakes’, and maybe even benefit from the mitigating factors that arise from such an admission.  That represents the proper functioning of a disciplinary system.

It is another matter entirely – and one that is improper – for statutory decision-makers to coerce a similar result with a threat of additional punitive action outside of the Code of Service Discipline. And that holds true even if the threat is delivered with a subtle ‘wink and a nudge’ (rather than clumsy, overt menace), as is often the case.

And a GOFO – or indeed, any CF statutory decision-maker – who fails to understand that distinction has no business exercising any statutory duties, powers, or functions under the Code of Service Discipline.

And I would go further – any legal officer in the CF who does not understand that distinction, and is unwilling to explain, or incapable of explaining, that distinction to a relevant statutory decision-maker, has no business giving legal advice pertaining to the Code of Service Discipline.  And any legal officer who is willing to tolerate such an approach to the Code of Service Discipline fails – utterly – to embody the so-called Department of National Defence and Canadian Forces Code of Values and Ethics that are so frequently used to justify punishments and adverse decisions imposed on CF personnel.

 

[1] National Defence Act, RSC 1985, c N-5 [NDA].

[2] 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].

[3] NDA, n 1, s 203.3.

[4] NDA, n 1, s 162.92.

[5] NDA, n 1, para 203.3(a).

[6] NDA, n 1, para 162.92(a).

[7] NDA, n 1, subs 203.1(2).

[8] NDA, n 1, s 162.9.

[9] R v Trépanier, 2008 CMAC 3, paras 60 to 62, paras 93 to 95.

[10] The first version of the “Military Justice at the Unit Level Policy”, issued 20 June 2022, including the following statement as part of its preamble stating the “Context and purpose” of the policy: “The [summary hearing] process is a non-penal and non-criminal process designed to address minor breaches of military discipline at the unit level.”.  Interestingly, the more recent version of the “Military Justice at the Unit Level Policy 2.0”, issued 12 April 2024, does not include this statement in the “Message from The Judge Advocate General”. However, that message does state that “Rights and entitlements must be respected and people must be supported”.

[11] NDA, n 1, s 162.4.

[12] Queen’s Regulations and Orders for the Canadian Forces [QR&O), art 101.11.

[13] For example, under the Police Services Act, RSO 1990, c P-15, if a Disciplinary Hearing is convened, any party appearing before the hearing “… may be represented by a person authorized under the Law Society Act to represent the party.” (subs 83(4)).

[14] Military Justice at the Unit Level Policy 2.0, issued 12 April 2024, para 2.3.1.

[15] R v Reeve, 2020 ONCA 381, para 12.

[16] R v Anthony‑Cook, 2016 SCC 43, para 39.