Why are Conditional Discharges not available to Courts Martial in Canada?
March 24, 2020
A Word or Two on the Emergencies Act
March 31, 2020

Some Current Thoughts on the CF and the COVID-19 Pandemic

The CDS recently released a 5-page letter in which he addresses the Canadian Forces’ response to the current pandemic.  Although the CDS does mention Op LENTUS, most of the letter focuses on the governance of the Canadian Forces (CF) during this crisis, and not its response to specific missions tasked to the CF.  I also note that, while the Government of Canada website disclosing the letter includes a typed post-script of “Stay Fit to Fight!”, an online PDF version from the Canadian Military Families Magazine includes the hand-written post-script “Stay Frosty!”.

OK Iceman.

Some aspects of this letter are worthy of mention in this Blog.  Specifically, I wish to address the CDS’ comments regarding:

  1. Future CANFORGENs that will offer direction to the CF;
  2. The application of Compensation and Benefits Instructions (CBI); and
  3. The CDS’s intimation that those seeking voluntary release from the CF may face delays.

In his letter, the CDS includes several sensible and not-unexpected comments.  Activities are being scaled back, particularly those that require members of the CF to be physically present together at various defence establishments.  Remote work is being encouraged and, in some cases, enforced.  However, the CDS is still relying on ‘self-discipline’ among CF personnel to keep themselves fit to fight.  The number of postings, particularly those requiring geographic relocation, will be scaled back considerably.  (Although, I do tend to wonder about the significant number of senior officer appointments that I have seen on various social media feeds, most of which will require geographic relocation).

What is interesting is that, while the CDS identifies Op LENTUS as the general contingency operation (and operation order) for domestic emergencies, a separate Op LASER has been generated for the COVID-19 pandemic.  While Op LENTUS was relied upon for the fairly recent response to flooding in areas of Canada, it is not unheard of to generate a specific Op Order for an anticipated domestic operation, even if it is being done in a reactive, rather than anticipatory, manner.

What I find interesting is that the CDS indicates that, while operational planning for Op LASER is proceeding, additional direction for the institutional management of the CF “… will come shortly via CANFORGEN…”.  Those of you who follow this blog will know that I am not a big fan of the use of CANFORGEN as policy instruments.  I have commented on this problematic approach recently.  In short, the CANFORGEN system is a messaging system.  The intended use is to send CF-wide messages.  They can, and should, be used to announce policy instruments.  But they were not developed, and should not be used, to serve as actual policy instruments.

The current CDS tends to use mechanisms and instruments for a purpose other than the one for which they were designed and, consequently, fails to use the appropriate mechanism or instrument.

For example, in the wake of what is colloquially referred to as the Deschamps Report (the External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces) the current CDS launched OP HONOUR, using an operations order.  I have commented before on the problematic use of an operations order for what is, essentially, an ongoing policy; however, it bears repeating here.

Most CF personnel would interpret an ‘operation’ as something with a definite and achievable objective.  The CDS stated that his objective in Op HONOUR was to eliminate sexual misconduct in the CF.  Even though the CDS acknowledged the hyperbole of his objective, he also declined to resile from what is, objectively, an impossible objective to attain in a free and democratic society.  (Frankly, it’s likely not even feasible in a society that is not free and democratic).

Even before the CDS launched Op HONOUR, the CF had a clear and comprehensive policy on harassment.  Following the release of the Deschamps Report, many CF leaders commented – without providing any substantiation for the claim – that the CF harassment policy was ineffective or flawed.  However, were one to review the specific policy at Defence Administrative Order and Directive (DAOD) 5019-0 both before and after the introduction of Op HONOUR, that person would note that there is not much of a difference between the former and current policies.  The CF Harassment Prevention and Resolution Instructions (“Instructions”) – which are not available outside the CF internal intranet – and which replaced the CF Harassment Prevention and Resolution Guidelines, did not represent a marked change of policy.  True, under the ‘Instructions’ complaints may be raised, even if they are markedly dated; however, there are not many more material changes to the policy.

And that’s because there wasn’t much, if anything, deficient in the pre-OP HONOUR policy.  The failure of the policy was a leadership failure: leaders failed to perform the duties imposed on them under that policy.  And guess what: they still fail to do so.  However, since a crisis requires at least the semblance of decisive action, the CDS launched Op HONOUR as a palpable demonstration: “Look what we have done!”

In fact, the prevalence of reference to Op HONOUR in addressing sexual misconduct has resulted in some leaders forgetting to apply the existing policies such as DAOD 5019-0 and the Instructions.  Some appear to be unaware of their obligations in conducting harassment investigations.  Others might simply not care, as long as they can demonstrate to the CDS that they are staying faithful to his operation.  That’s one of the problems that arises from using an Op Order when you should be using a proper policy instrument that is part of a broader panoply of policy instruments.  Decision-makers forget that there is a broader policy regime.

In light of the current track record in the CF – and this particular CDS – I have concerns about the use of proper policy instruments.  On the one hand, the CDS has used an Op Order (Op HONOUR) where a DAOD would have been more appropriate.  Now, we are being told that the CF response to institutional management challenges in the face of COVID-19 will be not only conveyed, but apparently articulated in, CANFORGEN.  Remember, CANFORGEN are not publicly available, nor are they contained in an easily searched database or a structured policy framework.  Essentially, these will constitute what may be characterized as an internal antiquated predecessor to e-mail.

In particular, toward the close of the CDS’ letter he states:

“There’s a lot in this letter and you will no doubt have many questions.  There will be a series of CANFORGENs published in the next days that will address the APS, Compensation and Benefits (including leave) and release administration.  These CANFORGENs will be actioned by your chain of command and once released they will be able to respond to your questions.”

If I were optimistic, I would interpret this statement as meaning that the CANFORGEN will announce specific policy initiatives that will be undertaken under the various proper policy instruments, including the CBI.

However, I learned long ago that being optimistic about military administration can be folly.

One concern is that the CANFORGEN will be treated as policy instruments and will also be relied upon as authority for “…  payments that may be made to officers and non-commissioned members by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their service …”.

The problem is that such authority is not vested in the CDS and is not communicated in CANFORGEN.  By virtue of section 35(2) of the National Defence Act, that authority is vested, exclusively, in the Treasury Board.  The policy instruments that convey the parameters for such payments are the Compensation and Benefits Instructions (CBI).

While there are select provisions in the CBI that empower the CDS or the Minister to set certain standards or to exercise discretion, these provisions are relatively few in number, and have limited scope.

For example, the Treasury Board establishes the rates of pay for non-commissioned members (NCM) and officers.  This includes establishing rates of pay for ‘specialist trade groups’ for NCM.  The CDS has the authority to identify the specialist trade groups and the training standards for those trade groups.  But, having established those trade groups and the standards required for them, the CDS does not have the authority to make exceptions to achieve a specific outcome for a specific NCM contrary to the broader policy direction.

One of the likely focus points for the CBI during this period of uncertainty, is CBI Chapter 208, which deals with relocation benefits.  As the CDS states in his letter, postings will be curtailed.  But some postings will have to proceed.  It does not take a legal expert or a real estate expert to conclude that it will be very difficult for many people – within or without the CF – to market their homes at present.  Typically, CF posting messages are communicated during the current period in the calendar: the end of March and start of April.  Most CF personnel who are posted to a new geographical location will market their homes starting in late March or early April, with the expected ‘change of strength dates’ in June and July.

Clearly, the COVID-19 pandemic will affect not only CF personnel and their families who are relocating, but all residents in Canada who are selling and buying homes this summer.  CBI Chapter 208 has several provisions relating to adverse financial consequences of a move, such as the requirement to break a lease early or early repayment of a mortgage.  One provision that has been the subject of commentary and criticism is what is now CBI 208.97 Home Equity Assistance.  In a nutshell, this is a formula by which CF personnel, who are obliged to sell their principal residence as part of relocation, may recoup most of the ‘loss’ on the sale of a home if they sell their home below the price that they paid for it.  The formula under the present provision (effective 19 April 2018) is much simpler than previous provisions.  The current provision, in effect, indemnifies CF members from some of the risks of investing in the purchase of a home while they are subject to unlimited liability (which can include being required to relocate to another place of duty).

Where I do have concerns is the potential focus on CBI 208.801, entitled ‘Special Powers of the Minister’:

208.801(1) (Definition) In this instruction,

Compensation – means all expenses and all benefits, whether primarily of a financial nature or not, described in this section.

208.801(2) (Ministerial approval of relocation expenses) The Minister may approve reimbursement of all or part of the expenses reasonably incurred by an officer or non-commissioned member or their dependants that are directly related to, or that arise directly out of, the member’s relocation and that are not specifically provided for in this chapter, but only if such reimbursement would be equitable and consistent with the purpose of this chapter.

This is not a broad power granted to the Minister to create his own relocation benefits instructions – either globally, or for an individual case.  That would constitute an improper sub-delegation of a power granted exclusively to the Treasury Board.  In other words, even if the Treasury Board wished to grant the Minister broad powers to establish “…payments that may be made to officers and non-commissioned members by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their service…”, the Treasury Board could not do so.  Under section 35 of the NDA, parliament has granted exclusive authority to the Treasury Board to do so, and has not, expressly or impliedly, indicated that this may be sub-delegated.  Consequently, the Treasury Board cannot empower the Minister to create his own rules.  That would be a sub-delegation of the authority conferred on the Treasury Board by Parliament.

I would suggest that what this provision actually creates is an interpretive rule.  The Minister may rely on this provision to ensure that the CBI are harmoniously interpreted in a manner that permits equitable and consistent reimbursement for CF members.  And those terms of art are important.  But he cannot, in effect, create a benefit for a specific circumstance or twist the meaning of a benefit to suit a desired outcome.  Nor can someone purporting to act for the Minister, under devolved powers, do that.

There can be a tendency among senior CF decision-makers to “do the right thing”.  Now, don’t get me wrong – I am a big fan of “doing the right thing” – and I am not even a controversial movie director from Atlanta who later moved to Brooklyn.  In this very blog, I have repeatedly called upon CF decision-makers to “do the right thing”.  However, my concept of doing the right thing tends to be informed by a consistent and principled interpretation of the law and a consistent and reasonable application of the law to specific factual circumstances.  It appears that, all too often, for some CF decision-makers, doing the right thing tends to focus on their desired outcome, rather than what is consistent, reasonable, or lawful.

This is where my concern arises.  I have learned, throughout my experiences as both an officer in the CF and as a lawyer, that ‘inequity aversion’ is a common manifestation pertaining to compensation and benefits.  It’s understandable: if one CF member receives reimbursement or an allowance for circumstances that are similar to other CF members, those other CF members will also wish to receive the same reimbursement or allowance.  That is why the Treasury Board creates CBI of general application.  These are generally applied prospectively – everyone knows what the rules are in advance of making decisions that can affect them, and everyone knows that they apply to the same people in the same circumstances.

However, if provisions such as CBI 208.801 are given overly broad or liberal interpretation by those purporting to exercise such powers, this can lead to a significant derogation from the ‘rules’ set down by the Treasury Board.  And this derogation can lead to inequity and inconsistency.  Remember: where a decision-maker is less concerned about the consistent and reasonable interpretation of the rules and process that govern a decision than about the end result, that result can be inconsistent.  More pointedly, it can be arbitrary.

What’s more, a decision that is inconsistent with the CBI (or even constitutes an improper usurpation of the Treasury Board’s power), which grants a benefit to one or a few CF members, but not to all CF members in a similar circumstance, is unlikely to be challenged, because only the people receiving the benefit will generally be aware of the inconsistency.

This should not be read as opposition to the need to reimburse or compensate CF members for expenses or hardship that arise from their service, but, rather, opposition to inconsistent, unreasonable, and arbitrary decision-making by statutory decision-makers in the CF.

That leads me to my third point: potential delay for voluntary releases.  CF personnel are released for a variety of reasons.  They may face medical employment limitations that preclude further service in the CF.  They may develop personal weaknesses or behaviour, or other personal problems that impair their ability to continue to serve in the CF.  They may have demonstrated unsatisfactory conduct or performance that necessitates their release from the CF.  All of these examples may lead to a compulsory release.  While I would like to think that all CF personnel who face such a prospect would benefit from a procedurally fair process for determining a compulsory release, experience has taught me to temper my expectations.

But what about voluntary release?  A member of the CF may request a voluntary release when entitled to an immediate annuity (item 4.a.), upon completion of a fixed period of service (item 4.b.), or for another reason (item 4.c.).  Under section 30 of the NDA, and reiterated at QR&O article 15.02, in the absence of an emergency, an officer or NCM has a statutory right of release if entitled to an immediate annuity (i.e. item 4.a.) and is not on active service by reason of an emergency.

While all members of the Regular Force are on “active service” by virtue of Order in Council PC 1989-583, dated 6 April 1989, placing all members of the Regular Force on active service for the purposes of supporting Canada’s obligations to NATO, that active service does not arise from an emergency.

The CDS has suggested that requests for voluntary release may be delayed.  Arguably, a request for a voluntary release could be declined where an officer or NCM does not have a statutory right of release.  Such a decision would be bolstered if an emergency were declared at the federal level.  However, at present, where an officer or NCM has a statutory right of release, that cannot be refused by the chain of command.  While it is understandable that, due to administrative limitations during the COVID-19 pandemic, administration may be delayed.  I would like to think that this is not a subtle indication that administrators would intentionally ‘drag their heels’ in processing release administration in a manner that denies an officer’s or NCM’s timely exercise of a statutory right of release.


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