RCAF ‘Call Signs’ – Early Indications of Issues with Summary Hearings

 

A couple of high-profile summary hearings have been held recently within the Command called the Royal Canadian Air Force concerning the creation and use of ‘call signs’ by pilots.

To be clear, we are not talking about actual call signs used in operations.  We’re talking about what are essentially nicknames that pilots give each other, typically based upon something that occurs during the pilots’ initial training.  Nevertheless, the use of such ‘call signs’ is ingrained in the air force culture and merits examination (although such examination is not the topic of the present Blog post).

And, while initial reporting referred to a ‘call sign review board’, that nomenclature might impart upon the process a bit more formality than is warranted.  We’re not talking about the exercise of statutory powers under the Queen’s Regulations and Orders for the Canadian Forces (QR&O) or a Defence Administrative Order and Directive (DAOD).  Heck, we’re not even talking about a process described by a CANFORGEN, which we know are not – I say again, NOT – proper policy instruments.

We’re talking about nicknames derived from an informal process in the Officers’ Mess or similar venue.

And that doesn’t make it acceptable to create nicknames that a reasonable person would find offensive.

But let’s be clear about what it is we are discussing.

The present Blog post discusses issues arising within the context of the new summary hearings that were introduced on 20 June 2022, when portions of Bill C-77 (which received Royal Assent 21 June 2019) were finally brought into force by virtue of some rather hasty regulatory amendment this past summer.

And what might appear to be banal application of a relatively newly legislated process has, in my view, given rise to a variety of questions, the answers for which may not be entirely clear or satisfactory.

As is often the case with the commentary in this Blog, we will focus principally on the relevant process.  While many people will undoubtedly focus on the specific allegations – particularly the more salacious or potentially offensive aspects of the allegations – we must remember that the merit of discipline has as much to do with the merit of the process as it does the eventual substantive outcome.  Problematic processes give rise to problematic outcomes.

This past summer, I promised a detailed review of the Canadian Forces’ (CF) new summary hearing process.  And I will provide that review in the new year.  The present Blog post does not offer that promised comprehensive review.  However, I will address some of the specific issues that appear to have arisen in the context of the recent summary hearings conducted at Canadian Forces Base (CFB) Cold Lake.  In so doing, I will provide a glimpse of the issues that we will discuss in the new year.

These issues include:

1. Transparency of summary hearings;
2. The use of summary hearings compared to ‘administrative measures’;
3. The scope of sanctions available in summary hearings; and
4. Potential fettering of an accused’s rights under the new process.

 

Initial Indications and Background

Two senior officers in the RCAF were charged with ‘service infractions’ under the new summary hearing process.  Specifically, they were charged under para 120.03(d) of the QR&O, which arises if an accused “… fails … to effectively perform their duties or carry out responsibilities …”.  Like most of the new service infractions, that presents a rather broad basis for potential punishment.

The (then) anticipated summary hearings were reported approximately 2 weeks ago, including in a series of ‘tweets’ by David Pugliese of Postmedia news.  Mr. Pugliese is a regular contributor to the Postmedia newspapers (e.g., the National Post and Ottawa Citizen) on matters pertaining to the administration of the affairs of the Canadian Forces (CF) and has a standing column called ‘Defence Watch’.

Back on 28 November, Mr. Pugliese posted a series of tweets that, for the most part, reiterated, verbatim, a news release from the CF.  The first of the tweets can be found here.

For ease and transparency of discussion, here is what was sent out to various reporters two weeks ago:

Summary Hearings will convene for two officers facing service-infraction related charges stemming from a “Call-Sign Review Board” event at 4 Wing Cold Lake, Alberta on June 22, 2022. The first will be held at 4 Wing on December 5, 2022 for Lieutenant-Colonel Corey Mask. The second will take place on December 12, 2022 for Colonel Colin Marks.

The Summary Hearing convened for Col Colin Marks will be conducted by Brigadier-General Jamie Speiser-Blanchet, Commander of the Cadets and Junior Canadian Rangers. The Summary Hearing for LCol Mask will be conducted by Colonel Robert McBride, Commander, 3rd Canadian Division Support Base Edmonton.

On October 19, 2022, the Military Police laid service infraction charges against Col Colin Marks and LCol Corey Mask, as well as a third Royal Canadian Air Force officer, in regards to a “Call-Sign Review Board” event at 409 Tactical Fighter Squadron, 4 Wing Cold Lake, on June 22, 2022.

Colonel Marks and LCol Mask were charged pursuant to Queen’s Regulations and Orders (QR&O), 120.03(d), Failure to Effectively Carry Out Responsibilities for having failed to effectively enforce Defence Administrative Orders and Directives (DAOD) 9005-1, Sexual Misconduct Response, when an inappropriate call sign was proposed, discussed, and assigned during the event. The Summary Hearings have been convened to address these charges.

The third officer (who is a junior officer) was charged pursuant to QR&O 120.03(i), Undermining Discipline, Efficiency, or Morale for having participated in the assignment of an inappropriate call sign at the event contrary to DAOD 9005-1, Sexual Misconduct Response. Following a review of evidence, a Summary Hearing for this officer was determined to not be appropriate; rather, the chain-of-command has applied separate administrative measures as a disciplinary response. Furthermore, administrative measures have also been imposed on a number of other officers who were present at the event ranging in rank from Second Lieutenant to Major.

Summary Hearings are focused on ensuring members of the CAF can see judicial proceedings carried out within their units/squadrons. The proceedings will not be livestreamed, nor can any imagery be taken at the hearings.  Some or all parts of the Hearings may be embargoed for disclosure—at the discretion of the officer conducting the Summary Hearing.  Results of the Summary Hearing will be made known to members of 1 Canadian Air Division and public once concluded.

Transparency, to the extent possible, is a critical aspect of the Canadian Armed Forces’ efforts to address culture problems within our organization. The Royal Canadian Air Force believes in a just culture, centered upon supporting victims and their wellbeing.  We also believe in our members and in their ability and commitment to learn from their mistakes and to always strive to be better.  The results of the Summary Hearings will be communicated following their conclusion.

 

This fuelled speculation about the ‘call-sign’ at the centre of the controversy.  The actual ‘call sign’ was withheld from the public for a number of days.  That nickname has now been reported by some reporters, including Mr. Pugliese, after some of the witnesses involved disclosed that information to reporters.  I won’t repeat it here, because my focus is on process, not salacious titillation.  However, the CF’s reluctance to provide this information, and the manner in which it eventually came to light, is relevant to our discussion below.

And the ‘news release’ from two weeks ago raises several issues about the summary hearing process generally, and the focus arising from the RCAF controversy permits us to examine the same.

 

Disciplinary versus Administrative Processes

Before delving into issues arising in the summary hearing process, I wish to draw your attention, Dear Reader, to a comment in the fifth para of the ‘news release’, supra.  After indicating that a third officer – a junior officer – had been charged with a service infraction, the ‘news release’ states: “Following a review of evidence, a Summary Hearing for this officer was determined to not be appropriate; rather, the chain-of-command has applied separate administrative measures as a disciplinary response.”

I found that statement to be illuminating, though not reassuring.

Over the past several years, many CF personnel have been subject to a variety of administrative measures, including remedial measures and compulsory release, for alleged misconduct.  Often, these measures are imposed in lieu of a fair and transparent hearing under the Code of Service Discipline.  Indeed, we discuss that phenomenon below.  I have consistently suggested that these administrative measures are used as improper substitutes for the Code of Service Discipline and are, in effect, disciplinary punishments.

In response to that suggestion, both statutory decision-makers and legal advisors in the Office of the Judge Advocate General (OJAG) have been quick to insist that steps like remedial measures are ‘administrative’ and not ‘disciplinary’.  Ignoring the evident implication that, in the specific context of these matters, the remedial or administrative measures are intended to be punitive, the responses essentially represent ‘word games’: “Oh no, this isn’t disciplinary punishment, because we use the word ‘administrative’ to describe them.”

Well, in the ‘news release’ of two weeks ago, the relevant CF decision-makers have shown their true colours.  The chain of command used administrative measures as a disciplinary response.  Those are their words.

 

Transparency of the Summary Hearing Process

Have a look at the final two paragraphs from the ‘news release’.

Notwithstanding the so-called emphasis on ‘transparency’, what appears to have transpired in this process seems to pay mere lip-service to such ideals.  Moreover, some of the details have been reported by people like Mr. Pugliese solely because some CF members, who were offended by what purportedly transpired, chose to share that information with Mr. Pugliese.

Is anyone else reminded of the infamous ‘plain envelopes’ figuratively slid under the doors of reporters back in the 1990s?

So, let’s start with what the new regulations pertaining to summary hearings tell us about ‘transparency’ of the process and the degree to which it is open to the public.

Article 122.02 of the QR&O sets out the baseline for a public hearing and transparent process:

“(1) A summary hearing is to be held in public, except that the officer conducting the hearing may order the hearing or any part of the hearing to be held in private if the officer is of the opinion that during the course of the hearing any of the following information will likely be disclosed:

(a) information that, if disclosed, could reasonably be expected to be injurious to the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities;

(b) information that, if disclosed, could reasonably be expected to be injurious to the administration of justice, including law enforcement;

(c) information affecting a person’s privacy or security interest, if that interest outweighs the public’s interest in the information.”

 

This provision grants a measure of discretion to the ‘officer conducting the summary hearing’ or OCSH.  [And, as an aside, the CF needs to come up with a less awkward term for what was once a ‘presiding officer’.]  However, it limits that discretion to specific enumerated circumstances.  These circumstances relate to: (a) operational security or OPSEC; (b) avoiding injury to the administration of justice, such as disclosing law enforcement investigative techniques; or, (c) where privacy issues outweigh the public interest.

Similar justifications can be invoked when considering whether a court, including a court martial, will conduct part of its process in camera or when considering publication bans (which tend to limit the publication of persons identities, but do not bar the news media from the courtroom).  And the exercise of such discretion requires a compelling justification for derogating from the norm of public adjudication of such matters.

Frankly, I don’t see any of those factors applying in the two summary hearings that were convened.  Certainly, no definitive explanation has been offered by the OCSH.

So why does the senior leadership of the RCAF and the CF seem intent on telegraphing constraints on transparency?

And the news release clearly articulates that the decision regarding whether the hearings will be closed to the public falls to the OCSH.

If that is the case (and it is), then why was that decision communicated two weeks ago by someone other than the OCSH?

In fact, it was not clear if the relevant OCSH had even turned their minds to that issue.

And, since the decision was not being communicated by the OCSH, then who, precisely, made that decision?

Because it looks an awful lot like someone other than the OCSH – i.e., someone without the jurisdiction to do so – made that decision over two weeks ago.

Transparency is one of the benchmarks of any disciplinary system.  Public scrutiny is one of the factors that helps ensure that the process is fair and accountable.  That is one of the problems with using administrative measures as an ersatz disciplinary process or as an improper substitute for the Code of Service Discipline.  And there have certainly been a number of recent examples of that problematic approach to discipline.  And, as the ‘news release’ acknowledges, these administrative processes are, in fact, used as part of a disciplinary response.

Having caused this controversy to become fodder for journalists, some decision-maker(s) in the CF – who may, or may not, be the relevant OCSH and who may or may not have the jurisdiction to make the decision – then courted further controversy by closing the proceeding to journalists (and, therefore, to the public) notwithstanding that the default for such processes is that they should be public.

 

And Speaking of Improper Substitutes for Disciplinary Processes …

Why was the charge against the third officer discontinued?

Why was that third officer – and, it appears, several other officers – subject to ‘administrative measures’ instead of the Code of Service Discipline?

Presumably the administrative measures would have potentially included ‘remedial measures’ under DAOD 5019-4. It is also quite possible that other administrative punishments … errr, sanctions … err, measures … err, “disciplinary responses” … other than ‘remedial measures’ were used.  We don’t know, because remedial measures and other administrative measures constitute ‘personal information’ as it is defined under the Privacy Act, and, therefore, are not normally disclosed to the public (including the news media).

So, we are left to speculate.

And pardon the rather cynical, yet obvious, observation: ‘speculation’ regarding ‘disciplinary’ measures doesn’t generally serve the objectives of the CF particularly well.

It tends to give rise to further questions.

Why are some officers charged with service infractions and tried by summary hearing, while others receive remedial or other administrative measures?

Why is a (potentially) transparent process used for some, and not for others?

Why do some officers have their names broadcast across the country, while other do not?

And if you think those receiving remedial or administrative measures are ‘getting off more lightly’, consider this:

If Colonel Marks or Lieutenant-Colonel Mask wish to challenge findings or sanctions under the summary hearing process, they can seek review under chapter 124 of the QR&O.  While this new review process is not as clearly delineated as the former process under (the now-repealed) art 108.45 of the QR&O, it is still, presumably, capable of being concluded in 30 to 60 days.

If they are not satisfied with that outcome, they can then seek judicial review before the Federal Court.  Thus, they could, potentially, bring their concerns before a truly independent and impartial court in the next few months.

The officers who received remedial or other administrative measures will be obliged to grieve them under s 29 of the National Defence Act (NDA), as amplified under Chapter 7 of the QR&O and DAOD 2017-0 and 2017-1.

Gee, I wonder how long that will take.

In 3 to 5 years, they can seek judicial review.

In other words, Colonel Marks and Lieutenant-Colonel Mask would not have to jump through the procedural hoops of the ‘litigation avoidance mechanism’ that is the CF grievance process. [1]

Also, under DAOD 7006-0 Conduct Sheets and DAOD 7006-1 Preparation and Maintenance of Conduct Sheets, the officers tried by summary hearing can seek to have the entry removed from their conduct sheets in 12 months, provided that they are not found guilty of a subsequent service infraction in that time. (See para 4.3 of DAOD 7006-1.)

Any remedial measure that the other officers receive will remain on their personnel file for the rest of their careers. And you’d better believe that this will be mentioned every time any of them is accused of any misconduct, conduct deficiency, or performance deficiency.

There has to be an articulable principle regarding why the chain of command used the summary hearing process for some, but not for others.  But I haven’t seen any explanation that could be characterized as a reasonable and principle-based rationale.  All we have is an assertion that the Code of Service Discipline was not ‘appropriate’ for the third officer implicated.  I wonder why.  Could it have been because the quality of the evidence was dodgy?

And if they cannot articulate a clear principle for using different regimes to achieve the same or similar “disciplinary response”, then what you really have is arbitrary exercise of extremely broad discretion. That can give rise to impunity.

 

Summary Hearings: All the flavour of Military Justice, with half the fairness …

RCAF spokesperson Major Trevor Reid described the summary hearings as “… non-penal and non-criminal process used to fairly address breaches of military discipline at a unit level.”  The ‘news prelease’ from two weeks ago describe summary hearings as “… judicial proceedings carried out within their units/squadrons …”.

The results of summary hearings do not give rise to criminal records.  Whether they are penal in nature – in light of some of the punishments (‘sanctions’) available – is debatable.  As is the fairness of the process.  And characterizing them as ‘judicial proceedings’ is a conceptual stretch.  While they are certainly statutory proceedings, OCSH have very little in common with judges.

People could be excused for viewing summary hearings as simply a re-branding of summary trials, but with less fairness.  After all, they have a lot of factors in common.

Sure, they changed the title ‘presiding officer’ to ‘officer conducting a summary hearing’. [Seriously, could someone please come up with a less awkward title?]

But it is still a superior commander, a commanding officer (CO), or a delegated officer, presiding over the trial of an accused.

It is still someone who does not remotely reflect judicial independence and impartiality.  It is still someone with rudimentary training in the law.  It is still someone with an over-arching vulnerability to public opinion that can create a motive to find the accused guilty, particularly if there has been a great deal of media scrutiny regarding a matter.

But now, no one needs to worry about the accused making a pesky election for court martial.

And no one needs to worry about disingenuous interpretations of the now-repealed art 108.17 of the QR&O in order to deprive an accused of his or her right to elect trial by court martial.

And that’s because summary hearings don’t deal with ‘offences’ (NDA, s 162.5; art 120.01 of the QR&O); they deal with ‘infractions’.

Sure, these infractions look a lot like various versions of the offence under s 129 of the NDA for conduct, acts, or neglect to the prejudice of good order and discipline.  And prior to the changes to the Code of Service Discipline this past summer, there were a number of noteworthy ‘failures’ of prosecutions of charges under s 129 before courts martial (particularly in 2019), including:

R v Master Corporal Tuckett, 2019 CM 3007

R v Captain Anderson, 2019 CM 2034

R v Captain Stacey, 2019 CM 3017

R v Petty Officer 1^st Class Alix, 2019 CM 2025

R v Corporal Oladehinde, 2019 CM 2016

R v Lieutenant Banting, 2019 CM 2009

R v Lieutenant Banting, 2019 CM 2008

R v Master Corporal Pinto, 2021 CM 5011

 

I refer to them as ‘failures’ even though a more accurate characterization is ‘acquittals’.  I suspect they were viewed as ‘failures’ by the chain of command, the Director of Military Prosecutions (DMP), and the OJAG, because the accused were found not guilty.

And shortly following many of these acquittals, I began to hear repeatedly of problematic interpretation (perhaps ‘re-interpretation’ would be more accurate) of the now-repealed art 108.17 of the QR&O, which described an accused’s right to elect trial by court martial when charged under s 129 of the NDA.  If I were a cynic, I might conclude that the OJAG adjusted its interpretation of that provision in order to avoid awkward acquittals in prosecutions under s 129 of the NDA before courts martial.

And I suggest that a perspective in which ‘acquittal’ is equated to a ‘failure’ of the disciplinary system can be problematic.  Because it presumes that people should be found guilty.  As I have mentioned previously in the context of the CF’s response to allegations of sexual misconduct: an acquittal is not necessarily demonstrative of a ‘broken’ system or a failure of justice.  What it is demonstrative of is a failure to prove guilt beyond a reasonable doubt.

And that highlights a second significant difference between summary hearings and summary trials: a finding of guilt can be predicated upon the civil burden of proof – a balance of probabilities – rather than the criminal threshold, beyond a reasonable doubt.

From my perspective, this is not problematic solely because it represents a lower evidentiary threshold.  The bigger problem is that the CF chain of command has repeatedly demonstrated that they do not know how to apply this threshold.  The civil burden of proof is regularly applied within administrative processes such as Administrative Review under DAOD 5019-2.  However, I have encountered CF decision-makers who have applied this threshold incorrectly:

• It has been applied to determinations of law – e.g., the interpretation of legislation;
• It has been applied to determinations of mixed law and fact, including determining whether a particular course of action is ‘reasonable’;
• It has been used as a justification for the selection of a specific administrative or remedial measure (e.g., “I have determined that, in light of your misconduct, compulsory release is, on a balance of probability, the appropriate outcome.”; and
• It has been used to justify a failure of adequate disclosure.

 

The civil burden of proof – just like the criminal burden of proof – is applied to determinations of fact.  That’s it.  It is not a test for reasonableness.  It is not the mechanism used to interpret legislation.  It is not the threshold for determining the appropriate exercise of discretion.

Plus, when a CF member is the subject of an adjudicative process, and he or she presents contradictory evidence, the CF decision-maker must still weigh the actual evidence in a transparent process.  The decision-maker must articulate reasonable justification for rejecting some evidence while accepting other evidence, when conducting a factual determination.  It requires more than a simple assertion by the decision-maker that she or he accepts the evidence of ‘X’ while rejecting the evidence of ‘Y’.

Plus, that presumes that there has been adequate disclosure, that the accused is permitted to examine and cross examine all relevant witnesses, and that the decision-maker maintains an open mind.  Past examples of CF decision-makers relying on this evidentiary threshold do not instil in me great confidence that this threshold will be applied fairly and with an open mind at summary hearings.

 

Scope of Sanctions

The punishments available to summary hearings are much the same as those that were available to summary trials.  Mind you, these are ‘sanctions’ for ‘infractions’, and not ‘punishments’ for ‘offences’, but that is largely a distinction without a difference designed to avoid acknowledging that nothing has really changed save for a change of terminology and a reduction of fairness.

Under the former system of summary trials, I would have directed your attention to chapter 104 of the QR&O, which listed all of the punishments available under the Code of Service Discipline, from imprisonment for life at the top end of the scale of punishments, to ‘minor punishments’ at the lower end.  And I would have mentioned arts 108.24, 108.25, or 108.26 of the QR&O (now all repealed) which set out the powers of punishment for a CO, a delegated officer, or a superior commander presiding over a summary trial.

And that is because the former version of Volume II of the QR&O incorporated into the regulatory provisions many of the relevant statutory provisions under the NDA.  Although this was repetitive and, perhaps, inconsistent with the general principle that regulations should amplify, and not simply repeat, statutory provisions, we must also remember that the QR&O are more than just regulations.  They include amplifying orders.  And they are exempt from some processes applied to most other federal regulations (such as publication in the Canada Gazette).  Part of the reason for this is to permit the CF to establish clear and unambiguous guidance for the statutory actors who are responsible for implementing measures like the Code of Service Discipline.

The new provisions for the Code of Service Discipline must be read in conjunction with, and require consultation of, the relevant provisions under the NDA.  The relevant chapters of the QR&O (Chapters 120 to 124) do not provide a comprehensive procedural and substantive description of the entire process.  Relevant statutory actors must consult different pieces of legislation to understand their duties, powers, and functions.  Considering that many of these decision-makers exhibit difficulty following even the straight-forward language in a DAOD, that may be a recipe for miscarriages of justice.  This is particularly true since legal advice is not obligatory in all cases (art 121.07 of the QR&O).

Now, I am certain that many legal officers in the OJAG would respond by saying that they recommend that an OCSH seek legal advice even if she or he is not obliged to do so.  That’s nice.  But that tends to prompt the question: if it is OJAG policy to give legal advice in all cases, why isn’t that a requirement under the QR&O, instead of merely a policy suggestion?

But I digress.  The focus at present is on sanctions.  And Chapter 123 of the QR&O describes two types of sanctions:

• Reduction in Rank (art 123.01); and
• Minor Sanctions (art 123.02), including Confinement to Ship or Barracks (art 123.03).

 

Notwithstanding the separate provision for ‘Confinement to Ship or Barracks’, it remains a minor sanction.  Article 123.03 merely elaborates on that specific type of ‘minor sanction’.

What Chapter 123 of the QR&O does not list are:

• Severe reprimand (NDA, para 162.7(b));
• Reprimand (NDA, para 162.7(c)); and
• Deprivation of pay (NDA, para 162.7(d)).

 

So, the full scale of punishments … sorry, sanctions … in descending order is:

• Reduction in rank;
• Severe reprimand;
• Reprimand;
• Deprivation of pay and allowances; and
• Minor sanctions.

 

And, no, the revised version of the NDA and QR&O do not provide any further elaboration on what a severe reprimand and reprimand actually are.

Many of these sanctions are also punishments for offences under the Code of Service Discipline.  Reduction in rank is also a punishment for offences (NDA, para 139(1)(g) and s 140.2), just below ‘detention’ and above ‘forfeiture of seniority’ on the scale of punishments.  Severe reprimand and reprimand also remain punishments (NDA, paras 139(1)(i) and (j)), falling after ‘forfeiture of seniority’.

‘Deprivation of pay and allowances’ may seem like a clever way of avoiding the term ‘fine’, which is typically associated with offences, but it is still a fine for all intents and purposes.  The maximum ‘deprivation’ that may be ordered is the equivalent of 18 days.

Under the now-repealed process for summary trials, a delegated officer was limited to a fine of no more than 25% of the offender’s monthly pay (QR&O, art 108.25).  If imposing a fine, a CO could impose a fine of up to 60% of monthly pay (QR&O, art 108.24), as could a superior commander (QR&O, art 108.26).  However, if either a CO or a superior commander contemplated imposing more than 25% of monthly pay, the accused would be entitled to elect trial by court martial, regardless of the offence charged (QR&O, art 108.17).

Under summary hearings, the capacity to impose a fine – ‘deprivation of pay and allowances’ – has increased.

First, what is 18 days worth of pay?  It’s 60% of monthly pay based upon a thirty (30) day month.

So, a fine – ‘deprivation of pay and allowances’ – of up to 60% of monthly pay and allowances can be imposed, potentially in conjunction with other penalties identical to what were available for Code of Service Discipline offences.  And this may be done without offering an election for court martial.  And the quantum for fines – let’s call them what they really are – has increased in a couple of ways.  First, even a delegated officer can impose a fine of up to 60% of monthly pay.  Second, the fine now incorporates not only pay, but allowances.  For some people, that can be significant.  It can venture into penal consequence.

In a future blog post, I will elaborate on why ‘Confinement to Ship or Barracks’ is actually a deprivation of liberty and not a so-called ‘minor sanction’.  Even under the former summary trial process, it was not really a ‘minor punishment’, notwithstanding the term of art used.  However, what I would ask you to do is consider the specific provisions at art 123.03 of the QR&O and compare them to typical provisions for a ‘conditional sentence’ under s 742.1 of the Criminal Code, which most people refer to, colloquially, as ‘house arrest.

A person undergoing punishment under a conditional sentence will typically be compelled under threat of further punishment (including incarceration in a correctional facility for the balance of the sentence) to: “keep the peace and be of good behaviour”, appear before the court when required to do so by the court, and satisfy other conditions.  These other conditions can include: (a) abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance; (b) provide bodily samples for the purposes of confirming compliance with prohibitions relating to drugs and alcohol; (c) perform up to 240 hours of community service over a period not exceeding eighteen months; and, (d) attend a treatment program approved by the province.

The conditional sentence will also typically require the offender to remain at their primary place of residence, except for:

• Attendance at employment (including travel to and from the place of employment);
• Attendance at an educational institution;
• Attendance at religious services (typically once per week);
• Obtaining the necessaries of life (typically once or twice a week);
• Attending an appointment with a physician or at hospital;
• Attendance at any counselling or similar function; and
• Exceptions of a similar nature.

 

A conditional sentence is a form of imprisonment and, therefore, a deprivation of liberty (albeit justified as it is a punishment imposed by an independent and impartial tribunal following a determination of guilt in a truly fair process).  While confinement to ship or barracks may be for a shorter duration, it is a similar deprivation of liberty.

 

This is a professional regulation regime …

One of the justifications advanced by the OJAG for the reduced safeguards for fairness (i.e., no election for trial before an independent and impartial tribunal and a reduced evidentiary threshold) is that the new summary hearings are akin to a professional regulatory regime.

To paraphrase Obi-wan Kenobi: “These are not the offences you are looking for…”

Sorry, but your Jedi mind tricks don’t work on me.

First, in most professional regulation regimes, it is the professional body, not the employer, who is responsible for the application of the disciplinary process.

A doctor alleged to have contravened the professional rules created by her College of Surgeons is not brought before the Chief Administrator of the hospital at which she practices for that adjudication.  Nor would she be brought before the head of department[2].  She will be brought before a disciplinary tribunal created by the College of Surgeons for that purpose.

The same is true for other professions like nurses, lawyers, etc.

Second, that disciplinary tribunal will have a degree of institutional independence.  It is created expressly to deal with disciplinary (read: professional) issues.  It is not typically an ad hoc arrangement.

Third, the person accused of professional misconduct will be permitted to be represented by legal counsel.  While the QR&O do not expressly bar an accused in a summary hearing from relying on counsel, CF decision-makers routinely (i.e., always) refuse requests by accused to have counsel represent them.  In fact, they routinely refuse even to permit counsel to attend the process.

Even the disciplinary process under Part IV of the RCMP Act will permit an RCMP officer to be represented by legal counsel in that process.  In fact, anyone who gives evidence before the ‘Conduct Board’ is permitted to be represented by legal counsel (RCMP Act, subs 45.1(3)).

Fourth, the sanctions available to an ‘OCSH’ are far broader than the sanctions available in most professional regulation regimes.  Most professional disciplinary tribunals are limited to sanctions including:

• Fines;
• Compulsory Supervision by a more senior Licensee for a period of time; or
• Revocation of license.[3]

 

Disciplinary tribunals might also have the power to oblige the licensee to pay the costs of the process.

But professional disciplinary tribunals do not have the power to sentence a licensee to a punishment akin to ‘house arrest’ (see above).  And that deprivation of liberty can be imposed absent a right to elect trial before a truly independent and impartial tribunal and on a lowered burden of proof.

In effect, the CF now has at least two separate processes that can be used to punish CF members based upon factual determinations ‘on a balance of probabilities’ for the same alleged misconduct.  A CF member can be charged and prosecuted by summary hearing for a service infraction.  The same CF member can also be subject to administrative measures, including remedial measures, for the exact same ‘transaction’.

In the example arising from the above-mentioned ‘call sign scandal’, it appears that the RCAF chain of command has decided to use summary hearings to prosecute the two most senior officers involved, while relying upon the less transparent ‘administrative measures’ to ‘prosecute’ the others.  However, no one has articulated any cogent principle for this different treatment.  And nothing bars the RCAF leadership from applying additional administrative measures or punishments to the two senior officers who were tried by summary hearing.

 

Conclusion

There are more issues that could be discussed about the nature of summary hearings arising from the ‘call sign scandal’.  For example, this matter was investigated by the Military Police.  Normally, Military Police investigate allegations of serious or criminal misconduct.  One might assert that, since this matter involved two senior officers, it was appropriate for an ‘independent’ investigator, such as Military Police, to investigate these allegations.  [And remember what I have said previously about the Military Police and their investigative independence: independence is most accurately viewed on a sliding scale rather than absolutes, and is defined by the questions: “From whom?” and “To what extent?”.]

However, if the matter was so significant that it warranted an ‘independent’ investigation by professional investigators (if one wishes to apply that term to Military Police), then why is no one particularly fussed about the lack of independence of the tribunal that tried the allegations?  After all, it is the tribunal that makes the determination of guilt.  Typically, investigators do not need to benefit from the same degree of independence as the tribunal that tries charges.  Police do not enjoy, or require, the same level of independence as judges.  So why is it that this matter warranted an investigation by the Military Police, who are, to an extent, separate from the chain of command, but that that an independent tribunal, such as a court martial, was not required?

Returning to the comment by RCAF Spokesperson Major Reid, if this was a “… breach of discipline at unit level …”, why was it not investigated at unit level?  Alternatively, if this matter was so serious that it required investigation by the Military Police, then why was it not sufficiently serious to warrant charges under the offences created under the Code of Service Discipline?  If this matter was so serious that it attracted national news coverage, why were the accused (at least those who were prosecuted under the Code of Service Discipline, as distinguishable for from those who received a ‘disciplinary response’ under administrative measures) not afforded the procedural and substantive safeguards of a court martial?

Considering the degree of national news media attention focused on the allegations, would a reasonable person conclude that the OCSH would approach the allegations with an ‘open mind’?  It would be naïve of a reasonable observer to conclude that the media scrutiny would not have affected the OCSH.  The OCSH would have been well aware of the hue and cry that would have ensued if either of the accused were found ‘not guilty’.  Part of the importance of independence in such processes is to ensure that the trier of fact is not influenced by irrelevant considerations.  While the public impact of wrong-doing may be relevant to the determination of the relevant punishment or sanction, it is not relevant for the determination of guilt.

The summary hearings conducted recently at CFB Cold Lake are demonstrative of several problems arising in the context of the new summary hearing process.  They demonstrated problematic decision-making regarding the transparency of the process.  They highlighted the problems that can arise when the decision-makers lack sufficient independence.  And they expose some of the disingenuous aspects of how CF decision-makers describe and apply the process.

Summary hearings and service infractions merit further scrutiny, and we will address those issues in the new year.

 

[1] By virtue of art 7.03 of the QR&O, decisions under the Code of Service Discipline – which includes summary hearings – cannot be grieved under s 29 of the NDA.

[2] It is possible that the Hospital would have it’s own regime regarding review of whether the physician complied with the Hospital’s practices.  However, such a process would be separate from the College of Surgeon’s process, the physician would be permitted to be represented by counsel, and the Hospital would be subject to relevant employment guidelines.

[3] Revocation of licence is akin to compulsory release from the CF under Chapter 15 of the QR&O.  And, while compulsory release is not a sanction under the summary hearing process, a finding of guilt for an ‘infraction’ could precipitate further administrative action.