Fairness is its Own Virtue

 

I was struck by the similarity and the divergence of two recent articles by David Pugliese.  And the dissonance in the reporting is illustrative of the inconsistency in the approach by the Canadian Forces (CF) in terms of how it combats sexual misconduct.

On 29 November 2021, Mr. Pugliese ran an article about Lieutenant-Colonel (LCol) Mark Popov (retired), focusing on LCol Popov’s grievance following a 2015 incident at Royal Military College of Canada (RMC).[1]  Two days later, on 1 December 2021, Mr. Pugliese ran an article entitled: “Analysis: His own words sunk Admiral Art McDonald as chief of the defence staff”.[2]

And, yes – I am aware that Mr. Pugliese took issue in the latter article with some comments I have made.  But the present Blog post is less about where I disagree with his selective analysis in the latter article, and more about what the seeming dissonance between those two articles demonstrates.

Mr. Pugliese may not see how the circumstances of LCol Popov and Admiral McDonald are similar – and similar to many CF personnel who have been subjected to unfair treatment – and other Canadians may also view those circumstances in a divergent manner.  So, let’s examine the similarities, and see what we might learn from it regarding the virtue of fairness.

 

LCol Popov and RMC

Based upon Mr. Pugliese’ 29 November 2021 article, we can draw the following conclusions:

LCol Popov witnessed what he perceived as serious misconduct by ‘Gentlemen’ Cadets at RMC.  (There is no indication of whether ‘Gentlewomen’ Cadets were involved.)  Specifically, the Cadets were alleged to have made sexualized offensive remarks – threats – directed at what I assume were adolescent female Sea Cadets[3].  There may have also been male Sea Cadets there – we are not told.  Mr. Pugliese characterizes the comments as threats.  Whether these were threats that could reasonably be prosecuted as such under the Criminal Code (and, therefore, also under Code of Service Discipline[4]) would require more information than is provided in the Ottawa Citizen article.[5]  However, at the very least, the comments that are described were clearly inappropriate and could have been prosecuted under the Code of Service Discipline.[6]

A disciplinary – and, frankly, a criminal – investigation was warranted.

LCol Popov took immediate action.  That’s not surprising – as the Director of Cadets (DCdts) he was the commanding officer of those Cadets.[7] According to Mr. Pugliese, LCol Popov first apologized to the leaders of the Sea Cadets and then “… confined the RMC Cadets to their barracks”.  He proceeded to try to discern who the culprits were.  However, we are not told how he tried to do so, and the manner in which he did so is relevant to whether he conducted a proper investigation, which could be relied upon in a Code of Service Discipline proceeding.  How he did so is also very likely relevant to how Brigadier General (BGen) Friday, the Commandant of RMC and LCol Popov’s supervisor, reacted.

What Mr. Pugliese does tell us is that LCol Popov later …

…   assembled the 200 officer cadets and gave them a dressing down. He yelled at them, reading out word for word the phrases of sexual violence that had been directed toward the girls. He also used foul language of his own and informed the cadets that those who just stood by and let the individuals threaten the girls were just as guilty as the perpetrators.

 

Mr. Pugliese also reported:

After that, Popov was confronted by Friday, who was upset the lieutenant colonel had used foul language. In addition, military police told Popov to cease and desist in his actions aimed at disciplining the cadets because investigators were going to examine the matter. The lieutenant colonel was warned he could face a charge of interference if he continued.

…

But military police never laid any sexual misconduct charges and some of the perpetrators have continued on in their military careers.

 

Again … we are not told why no charges were laid.  And there are a variety of reasons why a decision was made not to lay charges.  I’m not going to speculate.

We are told that BGen Friday signed a document that indicated that LCol Popov demonstrated a ‘performance deficiency’.  We are not told what that document was, but, based upon what has been conveyed, it was very likely a remedial measure under Defence Administrative Order and Directive (DAOD) 5019-4.  We are not told what type of remedial measure it was.[8]  It could have been (in ascending order of seriousness) Initial Counselling (IC), Recorded Warning (RW), or Counselling and Probation (C&P).  If I had to guess – and, frankly, in light of the selective information provided, some speculation is unavoidable – I suspect that it was an IC or an RW.  Frankly, in my opinion, and based upon the information conveyed in Mr. Pugliese’ article, it should not have been higher than an IC.  However, I may not have all the relevant information, and, in any event, it is not uncommon, across the CF, for decision-makers to escalate remedial measures in an unreasonable manner where a matter is ‘emotionally charged’.

More significantly, LCol Popov was removed from his position as DCdts.  That was a far more significant blow to his career and to him personally.  In other words, the impact on his rights, interests, and privileges was significant.  The position of DCdts was a high-profile command position for a Lieutenant-Colonel (it has since been increased to a Colonel’s position).  It is a relatively unique position, and officers are selected on a competitive basis.  When it was occupied by a LCol, it would not infrequently lead to promotion to Colonel.  Also, the cumulative effect of the adverse administrative action taken against LCol Popov appeared to have a marked adverse psychological impact on LCol Popov.  [I state ‘appears’ as I am not a physician, and I do not have access to LCol Popov’s medical records.  And if I did, I certainly would not disclose them absent justification for doing so.]

Bear in mind, the ‘factual’ conclusions that I draw above are based upon what Mr. Pugliese reports.  I have no direct knowledge of these events.  And some details above may be inaccurate due either to the limitations of the information conveyed, or inaccurate supposition.  It is not my intention to ‘re-investigate’ this matter.  The objective of this discussion is to demonstrate the importance of fairness, reasonableness, open-mindedness, and an evidence-based approach to statutory decision-making.

Frankly, Dave Pugliese skips over some details and nuances.  That’s not surprising, since he is portraying LCol Popov as a victim of indifference and malice by senior CF decision-makers.  I am not suggesting that LCol Popov was not a victim of problematic decision-making.  However, the narrative in Mr. Pugliese’ article is presented in a ‘black-and-white’ manner, just as many narratives are presented by news media.  After all, that is what resonates with the public.

However, the administration of the affairs of the CF is rarely so distinctly simple.

Based upon the factors as I appreciate them, LCol Popov may have made some mistakes in his reaction to the incident.  To be clear: I do not offer these observations to criticize Mark Popov.  I personally believe that the incident portrays a good man, trying to do the ‘right thing’; however, I perceive that he made some mistakes.  And I am willing to bet that Mark Popov, being the experienced, intelligent, and professional officer that he is, would also admit that he made mistakes.  And that factor is relevant to the discussion below.

LCol Popov exceeded his authority when he confined the Cadets to barracks.  That is a punishment under the Code of Service Discipline and cannot be imposed unless a CF member has been found guilty of a Code of Service Discipline offence that warrants such punishment.  That has been used by other DCdts improperly, and I have also criticized those officers for that excess of authority.

Nor should LCol Popov have used foul language when addressing the 200 Cadets that he assembled.  It’s one thing to recite the improper language used by a subordinate in order to identify the specific language that you are impugning.  It’s quite another to use improper language when correcting a subordinate’s behaviour.  Based upon what Mr. Pugliese reports, it appears that LCol Popov chastised the assembled Cadets using foul language.

Finally, if a Military Police investigation was initiated – and that appears to have been the case – then the chain of command of the unit that is the focus of the investigation needs to avoid duplicating the disciplinary investigation in parallel with the Military Police investigation.  A parallel disciplinary/criminal investigation runs a considerable risk of ‘contaminating’ the Military Police investigation – of interfering with the collection of evidence and, potentially, rendering some evidence inadmissible or reducing its effectiveness.  At the very least, it requires detailed co-ordination (that, quite frankly, is difficult to accomplish with Military Police who tend to assert their ‘independence’ rather dogmatically).  Oh – and as an aside – under the direction of the new Minister of National Defence, that criminal matters of a sexualized nature will now be referred to civilian police, that is going to be far more difficult to do.

In my career, I have encountered well-intentioned officers and non-commissioned members (NCM) who have erred when attempting to investigate wrongdoing.  For example, I have encountered officers who, upon witnessing wrongdoing (or conduct that appears to constitute a Code of Service Discipline offence), rush to confront the alleged perpetrators, and forcefully demand: “Alright, tell me who said (or did) ‘X’, or I will have all of you charged!”.  I am not suggesting that this is what LCol Popov did, but it is illustrative of some of the issues arising in this context.

First, like LCol Popov, the officer in my example was a witness to the alleged wrongdoing.  If the chain of command wishes to pursue the matter under the Code of Service Discipline, it would be problematic for a witness to also be the investigator.  Moreover, threatening witnesses and alleged offenders with adverse action if they do not make self-incriminating statements would render any admissions of wrongdoing inadmissible before a service tribunal due to the blatant coercion involved.

And lest someone suggest that the Military Police should have left it to the chain of command to investigate – let’s remember how Mr. Pugliese described the incident: He described it in terms of criminal misconduct, including threats of sexual violence.  It’s not surprising that the Military Police chose to investigate.

It would not have been unreasonable for LCol Popov’s supervisor – BGen Friday – to have indicated to LCol Popov that it was improper: (1) to ‘confine Cadets to barracks’ absent a finding of guilt under the Code of Service Discipline; (2) to yell at Cadets using foul language; and, (3) to try to conduct a parallel disciplinary investigation when the Military Police were investigating the incident.

Moreover, I suspect that LCol Popov would agree with my above-mentioned observations.  There was action that LCol Popov could have taken that would have stopped short of being improper.  He could have identified the Cadets that he saw and reported their conduct to the Military Police for specific investigation.  He could have assembled all the Cadets (not just those he believed were involved) and reinforced the expectation of the RMC leadership regarding their conduct, without using foul language (or limiting it to describing the foul language that he heard).

Whether the Cadets’ parents actually influenced any decision-making remains unclear.  While some Cadets may well have bragged that their parents were influential, Mr. Pugliese offers no evidence regarding whether any parents actually intervened in an improper manner.  He leaves that to speculation.

However, I would also offer that removing LCol Popov from the position of DCdts seems markedly excessive.  As I say, his instinct to take decisive action is commendable; his execution left something to be desired.  The purpose of the presumed remedial measure under DAOD 5019-4 would have been to correct the demonstrated deficiency.

Based upon what was conveyed in Mr. Pugliese’ article, I suggest that the proper course of action by BGen Friday would have been to use the remedial measure – which should not have been more than an IC – for its intended purpose, and left LCol Popov in his position as DCdts.[9]

They could then have followed up with the Military Police regarding the investigation.  If charges were laid, LCol Popov would have been precluded from being a presiding officer, as he was a witness.  Similarly, none of the Divisional Officers (who were subordinates of the DCdts) could reasonably have presided over any charges, in light of the DCdts being a witness.  But BGen Friday could have been a presiding officer.  Or the matter could have been referred to another officer.  And, depending upon the evidence discovered, administrative action could have been taken in relation to the Cadets, provided that they, too, were afforded procedural fairness.

Ultimately, LCol Popov’s chain of command appears to have over-reacted to the circumstances.  And, once they over-reacted, they appear to have adopted an entrenched mind-set.  That entrenched mind-set appears to have carried on in the adjudication of his grievance, where the final authority (at the time), and, subsequently, the new CDS, appeared to be unwilling to acknowledge the full scope of the harm caused by this over-reaction, and the limitation of the grievance process to offer remedy.

That is not uncommon.  In fact, it is problematically common.

 

Consider the Broader Implications

I have represented CF members across a broad spectrum of rank, Military Occupation Specification (MOS), and experience.  I have also dealt with matters like these when I was a legal officer advising the chain of command.  In my experience, some CF members have been subject to procedurally unfair and unreasonable decisions.  This typically arises when a decision-maker adopts an entrenched mind-set early in the decision-making process.

Some of the CF members who have been subject to unfair and unreasonable decisions have been in positions of command and have been removed from those positions in an unfair and unreasonable manner.  Such decisions are invariably accompanied by the mantra “… I have lost confidence in your ability to command …”.  However, I have far too frequently encountered circumstances in which the officers making those decisions have often failed to comply with the ‘Guidelines – Removal from Command’.  In fact, at the end of June 2021, I recently had to ‘remind’ the current CDS (at the time, Acting CDS) that such Guidelines existed.

And the virtue of fairness is a point that I have been endeavouring to emphasize over these past several months.  Regardless of the justification for a decision in the administration of the affairs of the CF – which is invariably a statutory decision that must comply with principles of administrative law – fairness is its own virtue.

Whether the officer in question is LCol Popov, or any other commanding officer, or any CF member who is subject to a decision that significantly affects his or her rights, interests, and privileges, that CF member merits a decision that respects the principles of law and content of fairness commensurate with the significance of the decision.

And, frankly, I am surprised at the dissonant manner in which Dave Pugliese regards the circumstances of LCol Popov and Admiral McDonald.  (Well, maybe I’m not entirely surprised, in light of the black-and-white, ‘villain or victim’ approach that many journalists take, but it is still surprising that the similarities have been overlooked).

Like Mark Popov’s chain of command, which appeared to take a selective approach to the factual context of the incident described by Mr. Pugliese, certain statutory actors and news reporters have also taken a selective approach to Admiral McDonald’s circumstances.

It always brings a wry smile to my face when a reporter points out that the CDS serves at the pleasure of the Governor in Council.  Thanks – I was aware of that.  You may recall that I pointed that out back in early March 2021.[10]

And, sure, the Governor in Council made a great show of emphasizing that it was Admiral McDonald’s letter that caused them to lose confidence in him.

But, honestly, are any of us so naïve that we believe that the Prime Minister had not, much earlier, decided not to permit Admiral McDonald to return to his duties?  Are any of us so naïve that we do not see the comments in the Order in Council for the political fiction that it is?

And I wonder if General Eyre truly felt that Admiral McDonald’s letter was as ‘shocking’ as he had claimed.  I wonder if, in private, General Eyre might acknowledge that his reaction represented a bit of hyperbole for the sake of his political masters and to distance himself from the toxic coverage of Admiral McDonald’s circumstances.

After all, nothing in Admiral McDonald’s letter suggested that he did not recognize that the military is subject to civilian control.  We must remember that, unlike Major-General Fortin, who has stated that he was removed from his position by General Eyre at the direction of his political masters[11], Admiral McDonald voluntarily stepped aside from the position of CDS in order to let the Canadian Forces National Investigation Service (CFNIS) investigation proceed.  When it was concluded, and no charges were laid, he indicated that he was prepared to return to those functions.  None of those actions suggest a lack of understanding of, or respect for, the civilian control of the military.

As I have mentioned – repeatedly – another fundamental principle of our democracy – and paramount to the profession of arms – is respect for the rule of law.  Respect for the rule of law – which includes respect for principles of administrative law in statutory decision-making – is also an integral part of the Department of National Defence and Canadian Forces Code of Values and Ethics.  Indeed, it is these same ‘Values and Ethics’ that are repeatedly cited in administrative proceedings that are used against CF members like LCol Popov.

Ironically, such administrative measures are sometimes used as improper substitutes for Code of Service Discipline proceedings.  In his article of 29 November 2021, Mr. Pugliese refers to the presumed remedial measure that BGen Friday imposed on LCol Popov as “disciplinary action”.  These mechanisms can be used in a procedurally unfair or unreasonable manner.  In other words, while purportedly using administrative measures to ‘correct’ (in reality: punish) a CF member for failing to uphold CF Values and Ethics, the decision-makers who fail to provide adequate procedural fairness, or who act unreasonably, also fail to uphold CF Values and Ethics.

There’s a word for that: hypocrisy.

That’s what I find ‘shocking’.

Then, when the affected CF member seeks a remedy for unfair or unreasonable treatment, he or she may face an entrenched mind-set, much like it appears LCol Popov did.

Moreover, this entrenched mind-set tends to encourage a ‘black-and-white approach’ by the adjudicative authorities.  If a grievor shows the sort of accountability that we expect from CF personnel, then adjudicative authorities tend to seize upon such acknowledgement, to the exclusion of other relevant information.  That encourages a counter-intuitive approach to correction of deficiencies and personal development.

For example, if, in his grievance, LCol Popov acknowledged his errors, while also arguing that the Commandant’s reaction was excessive, he would run the risk that the initial authority and final authority in the grievance process would focus principally on his self-acknowledged errors, while ignoring the issue of reasonableness in the initial decision (which, frankly, ought to be the focus of the grievance).  I don’t know if that is what transpired with LCol Popov’s grievance, but it would not have surprised me.  And the reason for this is that I have seen circumstances unfold in just that manner in multiple Administrative Reviews under DAOD 5019-2 and multiple grievances.

I have also seen Commanders of Formations and Commands repeated fall back on the mantra “… I have lost confidence in your ability …” as some sort of ‘magical formula’ for justifying an unreasonable and procedurally unfair decision that adversely affects the rights, interests, and privileges of the affected officer.

Does that mantra sound familiar?

Procedural fairness and reasonableness in decision-making is not reserved for the people we like.  It is not reserved for those whom we perceive as acting virtuously.  It is not reserved for people we have ‘labelled’ as ‘good’ or ‘righteous’.  If we are drawing conclusions about whether someone is ‘good’ or ‘virtuous’ before we apply procedural fairness and reasonableness in decision-making, then we are improperly, unfairly, and unreasonably pre-judging matters.

What CF and governmental decision-makers ought to be doing is applying the ‘Golden Rule’ to decision-making: “If I were the object of this decision, how would I want to be treated?”  You’d be surprised how effective that one little rule can be in making fair and reasonable decisions.  And it requires more than mere ‘lip service’ to fairness.  It requires more than simply uttering mantras or boiler-plate language.  It requires evidence-based, truly open-minded adjudication of matters, using the proper processes that are designed for such adjudication.

Fairness – which arises with both procedural fairness and substantive reasonableness – is its own virtue.

 

[1] David Pugliese, “Soldier dumped for trying to crack down on sex misconduct was unfairly treated, Forces now admits”, (29 November 2021), online: Ottawa Citizen <https://ottawacitizen.com/news/national/defence-watch/soldier-dumped-for-trying-to-crack-down-on-sex-misconduct-was-unfairly-treated-forces-now-admits>.

[2] David Pugliese, “Analysis: His own words sunk Admiral Art McDonald as chief of the defence staff”, (1 December 2021), online: Ottawa Citizen <https://ottawacitizen.com/news/national/defence-watch/analysis-his-own-words-sunk-admiral-art-mcdonald-as-chief-of-the-defence-staff>.

[3] Sea Cadets are not members of the Canadian Forces.  The Sea Cadet (and Army Cadet, and Air Cadet) program is supported by the Canadian Forces and these organizations are led, in part, by officers of the Reserve Force – Cadet Instructors Cadre or CIC – who tend to be part of the Cadet Organizations Administration and Training Service (COATS), a sub-component of the Reserve Force.  See: article 2.034 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O).

[4] National Defence Act, RSC 1985, c N-5 [NDA], para 130(1)(a).

[5] Criminal Code, RSC 1985, c C-46.  Uttering threats is a criminal offence under s 264.1 of the Criminal Code where a person “…  in any manner, knowingly utters, conveys or causes any person to receive a threat (a) to cause death or bodily harm to any person …”.  A “threat” has been interpreted to include any “… menace or denunciation that ill will befall the recipient …”: R v Leblanc (1988), 90 NBR (2d) 63 (NB CA), per Angers JA at 71 to 73, aff’d [1989] 1 SCR 1583, per Dickson CJ.  “Bodily harm” includes psychological hurt or injury in addition to physical: R v McCraw, [1991] 3 SCR 72, per Cory J.  The test for whether an utterance constituted a criminal threat is a question of law not fact. The words that comprise the threat must be looked at in the context in which they were spoken (or written), in light of the person to whom they were addressed, and the circumstances in which they were uttered. They should be examined in an objective manner and the meaning attributed to the words should be that which a reasonable person would give to them: R v Clemente, [1994] 2 SCR 758, per Cory J; R v Ross (1986), 26 CCC (3d) 413 (ON CA); and R v Batista, 2008 ONCA 804, per Lang JA, at para 19.

[6] NDA, n 4: They could potentially have been prosecuted as conduct (or acts) to the prejudice of good order and discipline (NDA, s 129) or scandalous conduct by officers (NDA, s 92).

[7] There is a bit of an anomaly at RMC – both the Commandant (a Brigadier General or Commodore) and the DCdts (at the time, a LCol, now a Colonel) hold the position of commanding officer regarding the Cadets.  The Commandant is the commanding officer of all military personnel posted to RMC.  The DCdts is commanding officer only of the ‘Military Wing’, which comprises all Officer Cadets, and select staff.

[8] I note that, in his narrative, David Pugliese describes it as ‘disciplinary action’.  I suspect that he is not referring to a charge under the Code of Service Discipline.  He is likely referring to the remedial measure.  Senior CF personnel would likely be quick to assert that a remedial measure is not disciplinary action.  Technically, they are correct that it is not action under the Code of Service Discipline.  However, whether such measures are used as substitutes for true disciplinary action (and, sometimes improperly so) is a separate issue.

[9] Frankly, had I been BGen Friday, I may have been inclined not to use a remedial measure, and instead have had a discussion with LCol Popov along the lines of: “Mark, that is not how I expect you to behave.  If we are going to investigate wrongdoing by Cadets, we have to do so properly.  If we are going to speak to assembled Cadets regarding misbehaviour, we need to set an example through our conduct when doing so.”  That was a mentoring opportunity for BGen Friday.  I suspect that such an approach would have had the desired effect and would have maintained a positive relationship between the officers occupying those two positions.  Again – I base these observations on the limited information available in the news report.

[10] Ironically, as a result of that factor, the CDS arguably is entitled to less procedural fairness – none really – than any other CF member.

[11] Lee Berthiaume, “Maj.-Gen. Dany Fortin was removed from vaccine campaign for political reasons: Lawyer” (29 September 2021), online: CTV News / The Canadian Press <https://www.ctvnews.ca/politics/maj-gen-dany-fortin-was-removed-from-vaccine-campaign-for-political-reasons-lawyer-1.5605259>.