I have a theory …

 

… about what the national news media thinks is, and is not, important.

And, frankly, I think a lot of people are missing the point.

There was a recent development concerning the capacity of the Canadian Forces to address misconduct – and not just sexual misconduct – and it has nothing to do with golf.

However, the Canadian public wouldn’t know anything about it, as the news media seem obsessed about what was really an inconsequential round of golf played by the former Chief of the Defence Staff (CDS), Jon Vance, and the (now former) Vice Chief of the Defence Staff (VCDS), Lieutenant-General Mike Rouleau, among others.

 

R v Edwards, et. al., 2021 CMAC 2

On Friday, 11 June 2021, the Court Martial Appeal Court of Canada (CMACC) handed down a judgement in R v Edwards, et al., 2021 CMAC 2, involving four appeals (and one cross-appeal) concerning the independence of military judges.  The judgment was also determinative of two subsequent appeals on the same issue (R v Proulx, CMAC-612, and R v Cloutier, CMAC-614): R v Proulx, 2021 CMAC 3.

In a unanimous decision, the Court granted the appeals by the Minister of National Defence (represented by the Director of Military Prosecutions) and dismissed the cross-appeal by the accused in R v Crépeau, CMAC-607.

The Court rejected the conclusions by military judges that the Military Judges Inquiry Committee (MJIC) constituted a separate disciplinary system for military judges that displaced the Code of Service Discipline for the same.  The Court ultimately held that, in the unique context of the military justice system – a system established to promote the discipline, efficiency, and morale of the armed forces of Canada raised by Her Majesty – a reasonable and “… informed person, viewing the matter realistically and practically—and having thought the matter through could … reach no other conclusion than [that] military judges meet the minimum constitutional norms of impartiality and independence as required by section 11(d) of the Charter.”

Consequently, the CMACC held that military judges are subject to the Code of Service Discipline while they hold office and the impugned ‘Designation Order’ issued by the Chief of the Defence Staff (which placed military judges under the disciplinary authority of senior officers) does not compromise the rights of an accused, tried by court martial, to a trial before an independent and impartial tribunal, under section 11(d) of the Charter.

This judgment is relatively recent.  There is no indication whether any of the accused will seek leave to appeal before the Supreme Court of Canada (SCC).  However, as the judgment is unanimous, if one or more of the accused wished to appeal the CMACC judgment, they would have to seek leave from the SCC.  In these circumstances, there is no automatic right of appeal.

The Court also dismissed, on relatively cursory analysis, the motions by Defence Counsel Services to adduce new evidence on appeal, holding that it would have no bearing on the merits of the appeal.

While I will be offering a more detailed commentary in the near future regarding this judgment, my focus in the present Blog post is to comment on the consequences of this judgment and the utter lack of attention paid to it by the national news media.

The practical result of the judgments in Edwards and Proulx is that the six prosecutions that were stayed in the autumn and early winter of 2020 can now proceed (as can other prosecutions that may have been vulnerable to such Charter applications).  We must recall that the stays of prosecution in all six of those courts martial were ordered prior to any trials on the merits of each of those proceedings.

Ultimately, to paraphrase the immortal words of Samuel Clemens: “Rumours of the death of the Code of Service Discipline have been greatly exaggerated.”  This judgment has, in effect, reinforced the viability of the military justice system.

This was a significant judgment.  Although it was handed down on Friday, 11 June 2021, it was not published on the CMACC website until the afternoon of Monday, 14 June 2021.  I suppose the national news media could be excused for turning their attention, initially, to an inconsequential round of golf from nearly two weeks earlier.  However, I have not seen mention of this judgment in any of the principal national newspapers or television news, and a week has passed since the judgment was handed down.

And I find that odd in light of the howls of concern from the national news media when the various prosecutions, particularly that of R v Captain Iredale, 2020 CM 4011, were stayed following applications brought by the accused under para 11(d) of the Charter, which have now been overturned by virtue of R v Edwards, et. al.  One might have thought that the judgment on the appeals would have been newsworthy.

In fact, not only was there little or no reporting of this judgment in the national news media, instead, Robert Fife of the Globe and Mail ran a story that was critical of the Chief Justice of the Court Martial Appeal Court, Bell CJ, but in Justice Bell’s capacity as a judge of the Federal Court.  Mr. Fife’s article, which appeared in the Globe and Mail on Monday, 14 June 2021, mentioned that Justice Bell was also Chief Justice of the CMACC.  However, there was no mention of the significant judgment that had just been handed down by that Court the prior Friday – which was surprising since Chief Justice Bell presided over those appeals.

It would appear that a judgment of the CMACC holding that military judges are sufficiently independent to satisfy the requirements of para 11(d) of the Charter, that the CDS’ ‘Designation Order’ was a valid exercise of the authority of the executive, and that courts martial may proceed unencumbered by assertions of a lack of independence and impartiality (for the time being), was not sufficiently significant to merit reporting by the national news media.

But a golf game was.

 

But think of the Optics!

I can hear the rebuttal regarding my criticism – largely because I have already heard it from some people.

“But, Rory, you’re missing the point.  Think of the optics!”

My initial inclination is to respond: “I know – heck, the last scope I bought cost more than 800 bucks – and it was on sale!”

“No, no, no … the OPTICS!”

“Ohhhhhh ….. you mean ‘appearances’.”

I find it remarkable that, when people wish to discuss ‘appearances’ – specifically how something can be perceived in a negative fashion – they choose to use the term ‘optics’, rather than ‘appearances’, even though the latter is what we are really talking about.

Perhaps they use ‘optics’ because the term ‘appearances’ can have a negative connotation associated with being overly concerned about perception rather than the substance of an issue.

And perhaps there is a good reason why that negative connotation is associated with the term ‘appearances’.

I find it surprising to hear serving and retired military leaders focus so much on appearances, particularly when most military personnel like to pride themselves on being focused on merit and substance, rather something as fickle as appearances.

Certainly, there are those who would argue that ‘perception equals truth’ when it comes to influencing the public narrative.  Those who served through the ‘dark decade’ of the 1990s likely require little or no reminder of how perception – particularly erroneous perception – will dictate the public narrative, often with adverse consequences for the morale, cohesion, and reputation of the Canadian Forces.

It is understandable that serving and retired CF personnel will become focused on appearances.

But the problem with focusing on appearances rather than substance, is that the outcomes that are generated by such focus tend to be predicated upon the shifting sands of appearances rather than the bedrock of evidence and fact, fairness and reasonableness, and the merits of the rule of law upheld by statutory actors.

Don’t believe me?

Consider this: many people have criticized the now defunct Op HONOUR as having been a failure.  I believe it was as well, and in more ways than has been discussed in the media.  In addition to failing to achieve most of the purported objectives outlined in the ‘campaign plan’, it also gave rise to statutory decision-making that was persistently procedurally unfair, unreasonable, and unjustified.  It gave rise to boiler-plate written reasons in Administrative Reviews conducted by Director Military Careers Administration (DMCA).  And those faults continue, notwithstanding that Op HONOUR has now been cancelled.

It gave rise to increased reliance by the chain of command on administrative sanctions in lieu of even attempting to rely on the Code of Service Discipline.  And it also gave rise to prosecutions by Director Military prosecutions that should never have been pursued.  And notwithstanding significant shortcomings in the one-sided mechanisms employed against junior CF personnel, the CF was still criticized by academics[1] and the news media for not doing enough.

That is what comes from focusing on appearances over substance.

I suggest that Op HONOUR’s principal objective was to demonstrate that ‘something is being done’, rather than actually fixing the problems.  This is not a novel concept.  That objective has been pursued repeatedly whenever the news media drives a narrative concerning the Canadian Forces.  Rather than taking a reasonable approach, informed by fact, policy, and law, senior decision-makers pursue objectives that are designed to respond to the news media narrative, not the actual substantive problem.

 

But what does this have to do with golf?

As I say – I have a theory.

Some people have been quick to point out that a serving VCDS and other General Officers or Flag Officers (GOFO) should not have gone golfing with the ‘disgraced’ former CDS.

“Think of the optics!” they say.  “In light of the allegations raised against Jon Vance, it was demonstrably bad judgment for those officers to have gone golfing with him.”

I prefer to think of the substance.

Two or three middle-aged serving GOFO played a round of golf with a retired middle-aged GOFO.  I have some startling news for all of you: a fair number of middle-aged men, both retired and working, play golf.  Heck, even I play golf – all be it, very poorly – and I never attained General Officer rank.

To be more precise, two or three serving GOFO played a round of golf with a retired GOFO who has neither been convicted of any wrongdoing nor even been charged with any wrongdoing.

Let me ask this: If a friend and colleague of yours were accused of wrongdoing, but had not been convicted, or even charged, with said wrongdoing, would you shun him or her?

“But that’s not the point!”, I hear some of you bellow, “They are senior members of the Canadian Forces.  They have a public standing and role.  They have an obligation to uphold certain standards, and to reinforce the positive principles upon which the CF functions, and that obligation extends beyond their personal wishes.”

I agree with much of that sentiment.  I’m not so sure that I would go so far as to suggest that a public actor is barred from participating in entirely lawful and permissible private activities simply because someone might wish to be outraged about those activities.  However, I do agree that senior CF personnel need to set an example for subordinates.  They need to demonstrate respect for the principles upon which our country is (purportedly) built and under which the Canadian Forces operate.  Those include principles like the rule of law, the presumption of innocence, and the distinction between personal activities and public functions.

So, when people tell me: “Think of the victims of sexual misconduct!”, my response tends to be: How did that round of golf affect any victim of sexual misconduct?  I would think that any victim of any form of misconduct would be more focused on the mechanisms that are employed to hold people accountable for actual misconduct.

 

My Theory Regarding the Current News Media Narrative

And that’s what brings me to my theory.  And, while I tend to prefer to discuss theories of law or, at the very least, theories of policy that are informed by the law, this is not a legal theory.  And that is largely because the people driving this narrative left law and reason in the dust a few klicks back.

This is a theory of collective and individual reaction.

What people consistently seem to forget is that Jon Vance has not been convicted of any wrongdoing, let alone charged with anything.

And I’m not here to be Jon Vance’s apologist.  Anyone with even a superficial knowledge of my public commentary will be well aware that I have not hesitated to criticize the former CDS.  By my criticism was based upon the same factors that I discuss in the present Blog post: respect for the rule of law and an understanding of how the law governs and informs the functions and actions of CF leaders and decision-makers.

Often, at this point in the discussion, someone will object to my purported focus on the law, stating words to the effect of “It’s not about ‘legal’ issues.”  (When the comments are in writing, the word legal is often enclosed in inverted commas.)  The implication appears to be that I am overly focused on law-related factors.  That skepticism is understandable; the adage ‘to a hammer, everything looks like a nail’ has merit.  Presumably, because I am a lawyer, people will assume that I frame all issues in terms of the law, even if they aren’t truly legal issues.

However, these issues are a bit more nuanced, and I tend not to group issues in discrete ‘stovepipes’.  When examining the decisions, actions, and functions of senior CF personnel – i.e., statutory actors – those decisions, actions, and functions will be governed and informed by the law, but they will also be governed and informed by policy, principles of leadership, facts, and even – dare I say – perceptions from various stakeholders.  It would be naïve of me to assume that these issues are only governed by the law.  But it would also be fundamentally incorrect for people to conclude that the law is not relevant when examining statutory (and constitutional) actors.

Returning to Jon Vance, it is incontrovertible that he has been neither charged nor convicted of any offence in relation to the allegations initially made public in early February 2021.  Arguably, he has been ‘convicted in the court of public opinion’ – perhaps I should say, convicted in absentia.  However, as I have said repeatedly, we do not try people in the media in Canada.  Nor do we use trial by combat.  Nor to we burn, hang, press, or drown witches – at least, not to my knowledge.  We prefer to use reliable, fair, and transparent mechanisms of justice.

Certainly, some news media would have us believe that Jon Vance is guilty of sexual misconduct of some sort.  But here’s the thing: they are not courts of competent jurisdiction and the reporters are not judges.

Moreover, even if all that Kellie Brennan has alleged in her interviews is true, her alleged long-standing consensual relationship with Jon Vance would not constitute sexual misconduct, for either of them.  Arguably, both Brennan and Vance may have contravened the Canadian Forces’ policy on personal relationships (DAOD 5019-1) depending upon the CF positions they occupied at the material times.  On a tangential note, for those of you who keep referring to improper personal relationships as ‘fraternization’, please read the definitions in DAOD 5019-1.  In the immortal (if fictional) words of Inigo Montoya: “You keep using that word, I do not think it means what you think it means.”

There is also some vague allegation about an email that Vance allegedly sent a junior non-commissioned member, but we have not heard much about that allegation.

What does seem to be clear is that it is highly unlikely that Jon Vance will be charged or tried for either allegation.  As I have explained previously, based upon the limited and sporadic details that have been made public, it does not appear that Jon Vance committed any criminal offence.  It is possible that he failed to comply with one or more directives issued for the governance of the CF or otherwise comported himself in a manner that was prejudicial to good order and to discipline.  However, it would likely be impossible to try the former CDS by General Court Martial for any offence alleged pursuant to section 129 of the National Defence Act (NDA).  It appears that even Justice Fish agrees with me on that point.[2]

Nor can anyone impose an administrative sanction under the NDA on the former CDS.  As a retired General Officer, he is beyond such consequences.  As I mention above and have mentioned previously, over the past few years, the CF chain of command has demonstrated an increasing preference for punishing subordinates using administrative measures and sanctions, rather than employing the Code of Service Discipline for its intended purpose.  These administrative sanctions have often included compulsory release under what may be termed an ‘adverse’ release ‘item’.

My imagination leaps to images of Charles II exhuming the remains of Oliver Cromwell in order to subject him to a posthumous execution, which included hanging him in chains at Tyburn, beheading the remains, and throwing them into a pit (less, it appears, the Cromwellian cranium).  Unless the Minister of National Defence intends to pursue some perverse means of conscripting Jon Vance back into the CF just so he can release him under an adverse release item, it appears that the former CDS is beyond the power of any statutory actor acting under the NDA.

And I believe that frustration – likely felt by many beyond just the Prime Minister and Minister of National Defence, who, themselves, may not be without some blame – is what drives a not-insignificant portion of the current narrative.

Various people, including those who report news of national import, realize that it is highly unlikely that Jon Vance will be called upon to offer full answer to these allegations.  And, I might add, the inverse is equally true: Jon Vance may not have his ‘day in court’ to offer his defence to the allegations.  (Then again, he may choose to bring an action or application against one or more people or institutional actors once the dust settles.)

And that frustration may have led various commentators or actors to seek their pound of flesh elsewhere.  If the former CDS is beyond your reach to punish, what about those who have the temerity to associate with him?  Can they be drawn and quartered in a modern version of the Bloody Assizes?  Surely the inductive fallacy of ‘guilt by association’ is sufficient to the task.

Since the opportunity has passed to crucify Jon Vance on the steps of 101 Colonel By Drive (or, at the very least, place him in stocks), perhaps the next best thing would be to over-react to any allegation made against any other senior officer.  Then, political and senior CF decision-makers can point to such examples as demonstrative of how seriously they take this issue.

After all – think of the optics!  What better way to demonstrate that ‘something is being done’.

At this point in the discussion, I would not be surprised if some junior CF personnel were to point out: “Hey, Fowler, why are you shedding tears for senior officers who are full of hubris and entitlement?  Lots of junior CF members have been subject to similarly arbitrary decisions and actions.  In fact, they have been subject to worse, like early termination of their careers and compulsory release.  At least these GOFO have their pensions, calculated based upon the high salaries that they receive.”

And such concerns have merit.

But I am not lamenting the fate of a select number of senior officers.  My consternation arises from a broader concern: the continued failure to pursue fair, reasonable, and justified decision-making in the administration of the affairs of the Canadian Forces.  I wrote about that concern in detail in my Blog post “Rules are for Corporals, not for Colonels”.  The crux of that post was that, if senior officers are going to punish (or otherwise ‘correct’) a subordinate for the subordinate’s failure to ‘follow the rules’, it undermines the rule of law and principles of fairness, reasonableness, and justification, if the senior officers, themselves, fail to follow the rules (and the law) in meting out such punishment or correction.  It is massively hypocritical to punish someone for ‘breaking the rules’, but in so doing, break the rules yourself.

In other words, the senior officers should follow the ‘Golden Rule’: they should treat their subordinates the same way they would wish to be treated if they found themselves in similar circumstances.  I suspect that many junior CF personnel feel little sympathy when they see GOFO treated in a manner not dissimilar from how those junior CF personnel were treated when they stood accused of misconduct.

I doubt that the Prime Minister and Minister of National Defence read my Blog, or had read, specifically, “Rules are for Corporals, not for Colonels”.  However, if they did, I think they may have misconstrued my meaning.  I was not suggesting that senior officers should be subject to the same procedurally unfair, unreasonable, or unjustified decision-making to which junior CF personnel have been subject.

Rather, I was suggesting the opposite: decision-making in the administration of the affairs of the Canadian Forces should be improved.  Impunity and arbitrariness should be replaced by meaningful procedural fairness.  Objectively reasonable and open-minded decision-making should be the norm.  And that decision-making should be based upon justification that goes well-beyond the boiler-plate ‘reasons’ that have come to dominate the landscape in the governance of the Canadian Forces.

In other words, there should be more than mere lip service paid to principles of public and administrative law, and respect for the rule of law should be demonstrated in the actions of senior decision-makers.  If there are allegations of wrongdoing, then those allegations should be investigated in a timely fashion and brought before the appropriate tribunal for disposition.  The accused or respondent must be offered a fair and meaningful opportunity to make full answer and defence in a process that also respects the interests of the complainant.  Evidence should be presented to a tribunal with the capacity to test that evidence, particularly where there are conflicting versions of events.  Where there is a legitimate expectation that a particular process or policy will be employed, then it should be employed, and fairly.  Decision-making must be transparent and justified.

It’s actually not that difficult.  However, when we become overly focused on appearances for appearances’ sake, when senior decision-makers worry more about the media spin than the proper exercise of statutory duties, powers, and functions, and when meaningless minutiae displace consequences of true importance, we tend to derogate from conduct and decision-making that uphold the principles upon which the Canadian Forces are purportedly built.

So … when people tell me that I am missing the point, let me say this: When an inconsequential round of golf dominates the national news media narrative to the extent that a contemporaneous and significant judgment from the CMACC doesn’t even get mentioned, I can confidently state that I am not the one who is missing the point.

 

[1] Elaine Craig, “An Examination of How the Canadian Military’s Legal System Responds to Sexual Assault” (2020) 43:1 Dal LJ 63.

[2] The Honourable Morris J. Fish, CC, QC, “Report of the Third Independent Review Authority to the Minister of National Defence”, 30 April 2021, paras 461 to 463.