“Something must be done!”

13 July 2025

 

This blog is brought to you by the letters “F” (for “fear”) and “A” (for “appearances”) – or, alternatively, the letter “O” (for “optics”), although I‘m not a fan of the use of the term “optics” when what we really mean are “appearances” – and by the number “0”, representing the lessons learned.

Over the past couple of weeks, the Canadian Forces (CF) has been rocked by a couple of “scandals” reported in the news media, prompting reactions by the CF – and by the military and veteran community – that are not at all surprising.

This blog won’t delve into the nature of those scandals in much detail.  And that is largely because, like most of you, I have limited reliable information about the facts arising in the two circumstances.  And, while I have been informed of some details that are not reported by the news media, I am not the primary source of such information, so it doesn’t fall to me to share it.

I will discuss, briefly, what has been reported in the news media, if only to set the stage for what will be discussed in this blog: the reaction of CF decision-makers (as well as others).

For those of you who have been living in a cave over the past couple of weeks, the two “scandals” to which I am referring may be characterized as the “Blue Hackle Mafia Facebook scandal” and the alleged “Anti-government Militia scandal” in Quebec.  Both have links to the CF.

After I briefly set out the alleged facts that have been reported, I will then turn my attention to the reaction from the CF and comments that I have repeatedly encountered within the military and veteran community and what we can learn from those reactions.

 

Blue Hackle Mafia Facebook Scandal

The Blue Hackle Mafia Facebook story broke on or about 3 July 2025.  It concerned a private social media group, purportedly on Facebook, that contained posts alleged to have racist and sexualized content:

Stephanie Levitz, “Military police reopen investigation into allegations of racist posts” (4 July 2025) online: The Globe and Mail <https://www.theglobeandmail.com/politics/article-military-police-reopen-investigation-into-allegations-of-racist-posts/>

Catharine Tunney, “Army investigating members allegedly involved in ‘abhorrent’ Facebook group, Canada’s top soldier says” (3 July 2025) online: CBC News <https://www.cbc.ca/news/politics/army-racist-antisemitic-group-chat-blue-hackle-mafia-1.7576305>

David Baxter, “Army members’ Facebook group under investigation for ‘abhorrent’ content” (4 July 2025) online: Global News <https://globalnews.ca/news/11273443/canada-military-facebook-group-investigation-blue-hackle-mafia/>

 

One interesting factor is that, according to the Globe & Mail reporting, the Commander of the Canadian Army, Lieutenant-General (LGen) Mike Wright was reported to have indicated that a report about the Facebook group went to the “chain of command” in December 2024, but that he was personally only made aware of the existence of the Facebook group shortly before the story broke.

When such scandals break, commanders will be quick to distance themselves both from the scandal and any failure of decision-making.

It was also reported that, when the complaint was first raised (although it remains unclear who raised the complaint, when it was raised, how it was raised, and to whom it was raised), the military police at CFB Ottawa were initially tasked to investigate.  The Globe & Mail reported that the Office of the Canadian Forces Provost Marshal (CFPM) indicated that “… the investigation was moved to the unit that the soldiers allegedly in the Facebook group were believed to be in …”.

Frankly, I’m not entirely certain what that is supposed to mean. What does “… moved to the unit …” actually mean?  Because it sounds a heck of a lot like “passing the buck”.

According to a statement from the Office of the CFPM (reported by the Globe & Mail), “The transfer to the unit for a disciplinary investigation was considered the best use of options available in the military justice system, in this case …”.

Yup … that definitely sounds like buck-passing.

Then, in an equally unexplained move, on 27 June 2025, the military police reopened an investigation into the allegations.

Even though there has been further (though limited) reporting on this scandal, I still have quite a few questions myself about this matter:

• If the Commander of the Canadian Army purportedly only learned of the allegations in late June 2025, to whom, specifically, is LGen Wright referring when he states that the “chain of command” was informed of these allegations back in December 2024? I ask because the term “chain of command” is a broad term.  Technically, the “chain of command” extends from an individual soldier all the way up to the Commander of the Canadian Army or the Chief of the Defence Staff (CDS).  Referring to the “chain of command” doesn’t tell us much, although LGen Wright was quick to indicate that he only learned of the scandal recently.  If I am not mistaken, I think I hear a bus coming …
• Why didn‘t the military police investigate the first time? Because the excuse that a unit disciplinary investigation (UDI) “… was considered the best use of options available …” at the time just doesn’t cut it, particularly when the investigation concerns activity on social media accounts.  We are being told that the conduct was “disgusting”, “abhorrent”, and “racist”.  If that’s the case, I think we need a more compelling explanation for why the CFPM and military police passed on the matter the first time.
• And, if the matter was sufficiently “low level” that it only warranted a UDI when it was first reported, why did the military police reopen an investigation in late June 2025? [Technically, I question the use of the term “reopen” if the military police simply passed the buck the first time.  The term “reopen” suggests that they conducted an earlier investigation.]  Admittedly, I think most of us can deduce the answer to this question, and it has a lot to do with why this blog is brought to you by the letter “A”.  But I’d still like to hear what double-speak the CFPM might offer to explain this.
• Who reported this matter and how was it reported?

That last question is particularly important, though some may disagree with that statement.

The images (and whatever other content or activity was impugned in the allegations) was posted to a private social media group.  While I am not a tech expert, presumably that means that only members of the group could have obtained that information.

I understand that the evidence that was offered consisted of ‘screen captures’ taken by one or more complainants, which were then either provided to the “chain of command” or the military police.  In other words, a member of that Facebook group logged into the group, sought out the impugned content, and made screen captures to provide as evidence.

If you’ll forgive my naturally suspicious nature, this has the whiff of someone settling scores.

While we are assured of the offensive and insalubrious nature of the impugned content – and some descriptions have been offered of examples of the content – what we do not know is the extent of such content produced within that group.  Undoubtedly, the CF’s finest investigators are tracking down who was depicted in the photos.  One of the challenges in taking disciplinary action, however, is that the person or persons depicted in any given photo may not have been the person or persons responsible for posting the content.

A broader challenge is that the manner in which a complaint is raised and the motives of the complainant will colour the reliability of the evidence that the individual offers.  I suspect many people will be quick to point out that the nature of the photos and content is, our ought to be, manifestly obvious.

That may be true.  But one thing that I have learned in the many years that I have dealt with the administration of the affairs of the CF, including the application of public and administrative law in such pursuits, is that context is vital and the devil is almost always in the details.

Undoubtedly, there is much more to come regarding this story.

 

Anti-Government Militia

Coming on the heels of the “Blue Hackle Mafia Facebook” scandal was the reporting of the arrest and charges against several persons in Quebec regarding plans to create an “anti-government militia” that would then attempt to seize land, by force, in the vicinity of Quebec City.  Of those charged, two were members of the CF, one was purportedly a former civilian instructor with the Royal Canadian Air Cadets (and therefore, not a member of the CF) and one is purportedly a former CF member.  The RCMP characterized the nature of the impugned activities as “ideologically motivated violent extremism”.

Colin Freeze, “Canadian Armed Forces members among four charged in Quebec extremist plot, RCMP say” (8 July 2025) Globe and Mail <https://www.theglobeandmail.com/canada/article-canadian-armed-forces-members-among-four-charged-in-quebec-extremist/>

Catharine Tunney, “What we know (so far) about the plot to seize land in Quebec and the military men allegedly behind it” (9 July 2025) CBC News <https://www.cbc.ca/news/politics/rcmp-militia-members-plot-1.7580658>

Rachel Lau, “Canadian Armed Forces members planned to ‘forcibly take’ land in Quebec, RCMP say” (8 July 2025) CTV News <https://www.ctvnews.ca/montreal/on-patrol/article/canadian-armed-forces-members-planned-to-forcibly-take-land-in-quebec-rcmp-say/>

 

The allegations were investigated by the RCMP, and it appears that the investigation had been conducted over at least the past 19 months, notwithstanding that the charges were only laid recently.  The RCMP reported that they had executed searches in January 2024 in relation to their investigation.  According to the RCMP, those searches “… led to the seizure of 16 explosive devices, 83 firearms and accessories, approximately 11,000 rounds of ammunition of various calibres, nearly 130 magazines, four pairs of night vision goggles and military equipment.”

While there has been a fair bit of speculation regarding this matter, there may be some utility in explicitly describing the charges that were laid.  Again, according to the RCMP, the following three people were charged under s 83.19 of the Criminal Code based upon the allegations that they “… took concrete actions to facilitate terrorist activity …”:

• Marc-Aurèle Chabot, 24, of Québec City;
• Simon Angers-Audet, 24, of Neuville; and,
• Raphaël Lagacé, 25, of Québec City.

The RCMP allege that they were planning to create anti-government militia and that, as part of this plan, “… they took part in military-style training, as well as shooting, ambush, survival and navigation exercises.”  The RCMP also alleged that they conducted a “scouting operation”. Finally, the RCMP allege that a variety of firearms, some prohibited, as well as high-capacity magazines and “tactical equipment” were allegedly used in these activities.

[As an aside, I question why the RCMP felt the need to state that they took part in “… military style training, as well as shooting, ambush, survival and navigation exercises.”  Shooting, ambushes, survival and navigation exercises all represent military training.  Grammatically, it would make more sense to state that they “… took part in military style training, including shooting, ambush, survival and navigation exercises.”  And, while it might seem that I am picking fly speck out of pepper in drawing that distinction, I suggest that we need to be alive to the tendency for both law enforcement agencies, and even news reporting, to employ imprecise language in pursuit of narrative objectives.]

Based upon the RCMP press release, the three persons named above do not appear to have been charged with firearm-related or explosives-related offences.  However, that appears to be the consequence of imprecision in the language of the press release.

The RCMP indicated that a “… fourth individual, Matthew Forbes, 33, of Pont-Rouge, faces charges including possession of firearms, prohibited devices and explosives, and possession of controlled items, under the Criminal Code, the Explosives Act, and the Defence Production Act.”  The RCMP press release then states that “… [o]ther charges for offences related to possession of prohibited devices, transfer of firearms and ammunition, careless storage of firearms, possession of explosives and possession of controlled items have also been laid in this file.”

The RCMP press release does not specify whether these charges were laid solely against Mr. Forbes, or against the others.  However, subsequent reporting by CTV News (and other news platforms) clarified that Chabot faces multiple weapons-related offences including possessing five prohibited firearms, nine military smoke grenades, and a laser sighting system “with an erased serial number”.  And Lagacé faces charges including careless storage of 50 firearms, possessing 47 magazines with prohibited capacity, as well as laser sighting systems and night vision goggles without registering them, in contravention of the Defence Production Act.

The initial RCMP press release was not clear if the four accused were held following arrest.  However, subsequent reporting indicates that they were held in custody and their next court date was 14 July 2025.  Whether a bail hearing will be held at that time remains unclear.

Once it was reported that some of those charged were either members of the CF or had some past connection with the CF, the expected hand-wringing, pearl-clutching, and gnashing of teeth commenced.

“Why hadn’t the CF done something about these miscreants earlier?”

“How could two of these people [i.e., Forbes and Chabot] still be members of the CF?  Why weren’t they kicked out?!?”

And we will delve into those issues below.

But, before we do, consider the following questions (for which we do not presently have any answers):

• When, if at all, did the RCMP inform anyone in a position of authority in the CF about the investigation?
• If someone in the CF was informed, who was it? What was shared? Were any constraints placed on the sharing of such information?

And the mere fact that searches were executed in January 2024 doesn’t mean that any CF decision-makers were informed.

Thus, we don’t know who, if anyone, was informed of the nature, scope, or progress of the investigation.

 

Relevance to CF Decision-making

But let’s discuss what these ‘scandals’ reflect about CF decision-making.  Because these two matters are potentially illuminating.

I mentioned at the outset of this Blog that it is brought to you by the letters “F” and “A”.  And that is because fear is a key factor in CF decision-making.  And, for an institution that values courage and bravery, I am repeatedly disappointed at how fear drives decision-making in the administration of the affairs of the CF.  And, specifically, it is fear of what gets reported in the news media.  And it rarely leads to reasonable and procedurally fair decision-making.  And that is because so many decision-makers are more concerned about appearances than they are about their duty, as public law decision-makers, to make fair and reasonable decisions.  [If they were concerned about making truly fair and reasonable decisions, I wouldn’t be successful with applications for judicial review as frequently as I am.]

Let’s first look at the “Blue Hackle Mafia” scandal.

We don’t know who first raised the complaint or why they raised the complaint – and, as I point out above, the motive of the complainant is an important factor.  It appears that a complaint was first raised at least 7 months ago.  And, as we discuss below, that timeframe is potentially significant.

And we know that the military police passed on the investigation.  But we don’t know why that is.  And, no, the non-committal response from the CFPM reported by the Globe and Mail isn’t good enough.  Perhaps they didn’t think it was important enough to warrant their well-honed and specialized investigative skills.  Perhaps they thought it was beneath them.  However, since they are purportedly no longer investigating sexual offences of a criminal nature, one wonders how they are spending their time.

But they are investigating it now.  Purportedly.  And you would have to be particularly naïve not to draw the logical conclusion that the renewed interest from the military police is driven by the interest shown by the national news media.  [And, again, can we call it ‘renewed’ interest if the military police did not really show much interest the first time?]

“Heads must roll!” decried members of the military and veteran community.  “The CO and formation commander should be fired!”

Heck, why stop there?  Somebody start building a gibbet!  Maybe construct some stocks out in front of 101 Colonel By Drive.  I am reliably informed that, once in a while, executing an Admiral or a General can be good for morale, or, at the very least, might encourage others.  And if you want to be particularly cruel, don’t give him a cushion to kneel on.

Hey, I have a great idea … let’s appoint specialized officers at the unit or formation level to scrutinize people’s activities on social media and in public discourse, and when it leads to cries of “scandal!” or “outrage!” appropriate action can be taken.  We could come up with a clever title for them … I’m just spit-balling here, but how does “commissar” sound?

OK … maybe we’re over-reacting.

But I recall not too long ago that CF members were placed on remedial measures for having the temerity to ‘like’ relatively banal comments on social media.  They were castigated for not demonstrating appropriate sensitivity about the subject of the comment.  And we’re not talking about controversial posts such as criticisms of the CF policy on vaccination against COVID-19.  Nor were the CF members depicted in uniform on their social media accounts.

And lest someone decry my lack of understanding about the gravity of this scandal, I will be clear: I’m not condoning degrading CF uniforms.  I am not condoning racist, or abhorrent conduct by CF personnel.  But what I am calling for is a degree of restraint, reasonableness, and fairness in whatever processes unfold.  Because experience has taught me that, when such matters spark outrage following reporting in national news media, fairness and reasonableness tend to take a vacation from CF statutory decision-making.

While we have been offered some descriptions of some of the images that were screen-captured and provided to the investigators or to the news media, we don’t have much more than that, including a great deal of context.  And before someone screeches “What more context do you need?!?”, permit me to point out that the context that I would expect – for anyone, including the people screeching at me – is transparent disclosure of the basis/bases for the allegations (and I do mean disclosure of the entirety of the bases for the allegations) to those who are accused of wrong-doing, followed by an opportunity for any person whose reputation, standing, or liberty is at stake, to make full answer and defence before an independent and impartial decision-maker.

And I will tell you right now, that is unlikely to happen in this instance.

And that independent and impartial decision-maker is not the national news media or the ravening hordes who leverage outrage.

And there are still a lot of unanswered questions.

And my concern is that, despite the cries for disciplinary action to be taken, these allegations won’t be addressed under the Code of Service Discipline.

First, if the persons whose conduct is impugned are members of the reserve force, then the jurisdiction of the Code of Service Discipline will be limited as described under para 60(1)(c) of the National Defence Act (NDA).

Some bright pennies may be quick to point out that if a member of the reserve force is depicted in an unsavoury manner while wearing a CF uniform, then that jurisdictional threshold is met.

And that is true, as far as that factor goes.  However, that raises the question of whether it would be an offence or infraction to be photographed in a compromising position by someone else, where that photograph is then posted to a social media group by someone else.

But putting aside the nuances of jurisdiction over a member of the reserve force, or the nuances of what would constitute an offence or an infraction, a key factor that will likely drive disciplinary decision-making is the relevant timeframe.  We are told that the complaint was first raised not later than December 2024.  That was over six months ago.  This would bar the exercise of jurisdiction under the so-called Military Justice at the Unit Level (MJUL) – more particularly, the limitation period at s 163.4 of the NDA would bar the exercise of jurisdiction to prosecute a service infraction by summary hearing.

If these allegations are dealt with under the Code of Service Discipline, they will likely have to be dealt with as service offences tried by court martial.

And my guess is that they won’t be.  The chain of command does not like to prosecute service offences unless they have no other choice.  They would much rather prosecute service infractions before summary hearings (which are, unfortunately, becoming the sort of kangaroo courts that I worried they would become).

When faced with circumstances in which the relevant evidence is not particularly reliable, or where they would have to proceed with service offences tried by court martial, the chain of command has consistently demonstrated a preference for using administrative measures for a disciplinary purpose.  These are what some people have problematically characterized as “administrative disciplinary action”.

In other words, the disciplinary investigations that will be conducted will lead not to disciplinary action, but to administrative action such as the employment of Remedial Measures under Defence Administrative Order and Directive (DAOD) 5019-4 or Administrative Reviews under DAOD 5019-2.

And, as I have explained previously, and repeatedly, Administrative Reviews (and remedial measures) are not designed to adjudicate contested allegations.  But why let reasonableness and procedural fairness get in the way of senior CF leadership being able to demonstrate to the national news media: “Look – we have done something!  Gaze upon our handiwork and see that we remain firmly in control!”?

And what of our Quebec-based anti-government militia wannabes?

And in saying that, I do not seek to discount the significance of the charges that have been laid or the allegations made.  I do question the effectiveness of any planning conducted by the named suspects.  It does not appear that we are dealing with criminal masterminds here.

But even poorly conceived plans executed incompetently can cause harm to the public.  People can be, and have been, harmed or killed by people with extremist views, regardless of the skill demonstrated in planning their endeavours or executing the same.

I take the allegations at face value, including what has been, and what has not been, disclosed.  For example, the initial RCMP news release indicated that they had seized, among other items, “16 explosive devices”.  I suspect that this description conjures up a multitude of images for many people.  However, it is my understanding that many of these “devices” were smoke grenades or similar pyrotechnics.  (And even the term “smoke grenade” might be overly evocative for people unfamiliar with them.)  While the alleged actions of the accused are cause for concern, there is a material difference between a smoke grenade and a brick of C4 or dynamite.  We know that firearms were seized; but we do not know whether these were initially obtained lawfully or unlawfully.  We are told that some equipment was of a “military nature”, but we do not know how each item was procured or obtained.  We don’t know whether specific equipment that was seized may have been misappropriated from the CF.

There remain many questions.

One of the questions that I have seen asked repeatedly is: “Why weren’t Forbes and Chabot kicked out of the CF before this?”, or “Why haven’t steps been taken to kick them out?”

While I cannot provide a definitive answer to these questions, I believe that I can elaborate on the relevant decision-making as a means of illuminating how such decisions are made, and circumstances in which such decisions might be unreasonable or unfair.

First, we don’t know what, if any, information was shared by the RCMP, with the CF, prior to the recent arrests.  It is not beyond the realm of possibility that no information was shared.  The CF, including the military police, may have been in the dark about this investigation.  Alternatively, the RCMP may have shared some information with the military police, but on the condition that it not be shared with the chain of command until some later point in time (e.g., after charges were laid).  And we may never know the extent to which information was, or was not, shared with the military police.

Personally, if I had been the lead RCMP investigator, I may have been reluctant to share the information with the military police.  Look at all the leaks involving investigations of GOFO over the past few years.  And we still don’t know how those leaks came about.  That does not instill one with great confidence regarding the security of information held by the military police.  Then again, I don’t have a lot of confidence about many aspects of the military police.

It is relatively difficult to take administrative action against a CF member when the chain of command is unaware of the allegations and the evidence underlying the allegations.

“Fine”, you might exclaim, “but they know about the allegations now!”

True.  But there’s that word again … “allegations”.

An allegation is an unproven accusation.

The allegations may be true.  It certainly doesn’t look good for our four anti-government militia wannabes.

But, as a general rule of thumb, if the CF is going to kick someone out for conduct-related deficiencies, the deficiency should be a proven fact, not an allegation.

Not satisfied?

Well, let me put it this way: raise your hand if, prior to December 2022, you thought Major-General Dany Fortin was guilty of sexual assault.

“Oh well that’s different!”, you may be inclined to proclaim.

Certainly, the allegations are different.  The potential defences that might be raised by the accused will be different.  And, undoubtedly, people’s personal biases will be different.

But they are materially similar in at least one key way: in Canada, a person is not presumed to be guilty of a criminal offence until and unless the Crown proves that guilt beyond a reasonable doubt.

And, yes, the evidentiary burden is different when determining whether a CF member should be compulsorily released (often as a result of an Administrative Review under DAOD 5019-2).  God knows that DMCA staff take great pains to emphasize that the evidentiary burden in an Administrative Review is the “civil burden” of “balance of probabilities”. [Well, to be frank, their efforts are hardly a source of pain for them; they simply cut-and-paste the boiler-plate language from their oft-used templates.  The pain is more at my end when I am obliged to review their superficial and facile boiler-plate language that adds little or no analysis to the matter at hand.]

The problem though is that an unadjudicated – and potentially contested – allegation or allegations lie at the heart of the matter.  And when the evidence is in the hands of the RCMP and not the CF, it is difficult to proceed with an Administrative Review.  At least, it would be difficult to proceed with an Administrative Review that the CF could claim is procedurally fair and reasonable.  Because the CF doesn’t have the relevant evidence; the RCMP does.  And it is not sufficient simply to present unproven allegations raised by a third party as justification for adverse administrative action.

Moreover, offering a reply in the context of the Administrative Review may jeopardize the accused’s rights in the criminal proceeding (at least, those accused who would be subject to an Administrative Review).[1]  There would need to be steps and safeguards that any representations made in the administrative proceeding would be kept separate from the criminal proceeding.  And that would still not solve the problem if the CF does not actually possess the evidence of wrong-doing.

 

‘Serious Offence Paradox’ of Administrative Reviews

This gives rise to what I characterize as the “serious offence paradox” of Administrative Reviews.  And this paradox can arise, even if the criminal investigation is conducted by military police and the evidence of alleged wrong-doing is in the hands of CF authorities.

The basis of this paradox is that the more serious the allegation (or, alternatively, the more senior the subject of the allegations) the more likely that CF decision-makers will adhere to principles of fairness and reasonableness in the conduct of the Administrative Review, and the longer it will take to conduct an Administrative Review.

In part, this paradox arises from two distinct, yet related, factors.  First, serious allegations of wrong-doing will more likely be addressed through criminal prosecution (or prosecution before court martial).  Second, circumstances in which the evidence against the CF member is compelling will more likely lead to charges that are subsequently prosecuted under the criminal justice system or before a court martial.

Where allegations are not as serious, or where the evidence is of questionable merit, the likelihood of a criminal prosecution (or prosecution by court martial) diminishes.  Instead, the allegations will be adjudicated by Administrative Review – a mechanism that is clearly not designed to adjudicate contested allegations.

What this also means is that the more serious the allegation, and the more likely that a prosecution will be conducted before an independent court (including a court martial), the greater the delay in conducting the Administrative Review.  And that is because the Administrative Review will, necessarily, have to wait for the conclusion of the criminal prosecution.

The prosecution of MGen Dany Fortin is an object example of why the Administrative Review must wait.  In that prosecution, MGen Fortin was not only acquitted; he was acquitted because the presiding judge concluded that the complainant’s identification of her assailant was pointedly unreliable.  And even if the burden of proof were lower than the criminal burden of “beyond a reasonable doubt”, the unreliable identification would still not be sufficient.

That is why I forecasted at the time that any Administrative Review would necessarily have to conclude that there were insufficient grounds to justify any adverse action against MGen Fortin.

Rory Fowler, “MGen Fortin was acquitted.  Now what?” (6 December 2022), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/mgen-fortin-was-acquitted-now-what/>

 

Ironically, those CF personnel who are not put through the crucible of a criminal prosecution (or court martial) do not benefit from the same procedural safeguards that permit full answer and defence to allegations of wrong-doing.  The Administrative Review against MGen Fortin had to wait until his criminal trial concluded.  Those CF members who are not charged and who are not prosecuted, are dealt with more expeditiously, and, often, less fairly and reasonably.

Thus, CF personnel facing allegations in which the evidence is not sufficiently robust to warrant charges will face an Administrative Review much sooner than those who face charges, and they will not benefit from a robust opportunity to challenge the evidence that is raised against them.  Yet many of these CF personnel are then the subject of an order – typically from Director Military Careers Administration (DMCA) – for compulsory release linked to the alleged wrong-doing that was not prosecuted under the Criminal Code or the Code of Service Discipline.

And to suggest that this is ironic is an understatement.  Allegations – or, more to the point, evidence – that was not sufficiently robust to warrant charges, is somehow sufficiently reliable to justify someone’s compulsory release.  Since an Administrative Review does not offer any meaningful opportunities to test the reliability of evidence brought against the ‘accused’, we should not find such questionably one-sided outcomes surprising.

Indeed, this helps explain why the chain of command is increasingly disinterested in dealing with alleged disciplinary misconduct under the Code of Service Discipline if they cannot do so by summary hearing.

Summary hearings are ‘faster’ than courts martial.  They must commence within six months of the alleged infraction(s) tried by the summary hearing.  Granted, this speed comes at a cost.  The adjudication is conducted by someone who is manifestly not independent.  They are not well-versed in the relevant law.  In fact, the online training for so-called “Officers Conducting Summary Hearings” (OCSH) isn’t even as robust as the training that was previously conducted for presiding officers who presided over summary trials.  OCSH routinely refuse to permit an accused to be represented by counsel, even though there is no express prohibition against counsel appearing and there is compelling precedent that suggests that, where an accused asks for counsel to be permitted to attend and participate in the summary hearing, an OCSH may refuse only in exceptional circumstances.

Bluntly put: summary hearings are not as fair as courts martial.

But, in circumstances where the chain of command is precluded from dealing with alleged misconduct by summary hearing, CF decision-makers have consistently demonstrated that they favour using administrative processes over the Code of Service Discipline.  In other words, they pointedly avoid relying on courts martial.  And I consider that to be cowardly.

So, if allegations cannot be dealt with by summary hearing, they will be ‘prosecuted’ by Administrative Review.  And, in case you haven’t been paying attention, Administrative Reviews are not designed to test evidence where a CF member contests the accuracy, reliability, or truth of the allegations.

So, when it comes to the allegations against Forbes and Chabot, the CF chain of command may have to wait until the prosecution before civil courts or criminal jurisdiction are completed.

But, if recent experience is any indication, it is likely that the relevant formation commander (whether it is the Brigade or Division Commander) may feel compelled to order relief from performance of military duty under art 101.09 of the QR&O.

They will undoubtedly ground the decision in concerns for ‘safety’.  But that won’t be the real reason for the decision.  The decision will be made because the various decision-makers in the chain of command would otherwise feel impotent.  The decision will be made to be as punitive as possible, even though the purpose of relief from performance of military duty is not intended to be punitive.  Nor is it particularly necessary for the protection of the public.  These four individuals have been charged under the criminal justice system.  Whether they are a threat to the public is a consideration when, and if, any of them seek judicial interim release (i.e., “bail”).

But I am confident that a senior CF decision-maker (or two) will order that Chabot and Forbes be relieved from performance of military duty, presumably following the process outlined under art 101.09 of the QR&O.

Hey – it’s more than any GOFO received back in the 2020-2022 timeframe.

But let’s be clear, such a decision would be made for one principal reason:  senior CF decision-makers will feel an overwhelming desire to demonstrate that “Something is being done!”

And they will do so out of fear and a preoccupation with appearances.

 

[1] Phillips v Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 SCR 97