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(It’s) the impunity, stupid

Lieutenant-Colonel (retired) Rory Fowler

I’ll be blunt: the problem with sexual misconduct in the Canadian Forces (CF) is not the sexual nature of the misconduct.

To paraphrase James Carville: “(It’s) the impunity, stupid.”

While sexual misconduct can represent a particularly pernicious type of impunity, it can be characterized as a symptom, not the broader disease.

I can understand why the news media have chosen to focus on sexual misconduct.  It is an evocative and provocative subject. But such focus runs the risk of narrowing public scrutiny at the expense of a principled examination of the more fundamental issues. It can skew examination of the potential solutions.

Again, I will be blunt: Senior decision-makers in the CF, and their political masters, often demonstrate a tendency to react to public scrutiny in a less than productive manner. The focus becomes the desire to signal that ‘something is being done’, rather than developing meaningful policies and, perhaps more importantly, implementing such policies in a meaningful manner. For those decision-makers, the focus is on ‘optics’ – and I don’t mean rifle scopes or thermal imaging devices. In effect, there is a rush to appear to be solving the problem, sometimes at the expense of actually solving the problem.

This can be driven by public commentary – often the commentary borne by news media. Sometimes that public commentary focuses on superficially palatable conjecture and fails to focus on rigorous examination of the underlying issues and principles.

There has been a steady stream of news reporting, from a variety of sources, regarding sexual misconduct in the CF.  This fairly broad reporting has served a public benefit of drawing the public’s attention to an important issue and providing relevant information.  Casting a spotlight on such problems is an important public function.

However, these same reports have also often omitted relevant information and, of greater concern, misrepresented critical information regarding the regimes that govern the administration of the affairs of the Canadian Forces, in particular, the Code of Service Discipline. And that is of markedly less utility for the Canadian populace. Access to critical information is a vital component of the effective functioning of a free and democratic society. Erroneous or incomplete information can have a deleterious effect.

In short – let’s get our facts straight and let’s get the law right.

Let’s look at the issue of impunity, and some of the ‘headline-grabbing’ news reports over the past two or three weeks and see if we can identify where there have been some problematic conclusions drawn that might detract from a focus on correcting the problem of impunity.  But first, let’s recap the basic principles of civilian control of the armed forces in a constitutional democracy such as ours.

Civilian Control of the Armed Forces

The Minister of National Defence (the Minister) is statutorily responsible for the direction and management of the Department of National Defence (DND) and the Canadian Forces (CF).1 Working under the instructions of the Minister, and subject to statutory and regulatory constraints (as well as constraints imposed under the Canadian Charter of Rights and Freedoms2, other statutes, and the common law), the Chief of the Defence Staff (CDS) is responsible for the control and administration of the CF3.

As I have explained before, the CDS is appointed by the Governor in Council4 (one of only three types of positions established under the NDA appointed by the Governor in Council).  This appointment is made based upon a recommendation of the Minister.  Thus, although the Minister does not have the authority to appoint or remove a CDS, the Minister clearly has a role to play.

And, as I have explained previously, the position of CDS is held at pleasure – not unlike the position of a Minister of the Crown, which is also held at pleasure.  The difference – if it can be characterized as much of a difference – is that the CDS is appointed (and removed) by the Governor in Council. A Minister of the Crown is appointed and removed by the Prime Minister.  In practical effect, there is not much difference in the exercise of such political discretion.

And that is one of the principal means by which the armed forces are subject to civilian control. Control and administration of the armed forces of Her Majesty raised by Canada5 is exercised by the senior most officer in the CF and “…all orders and instructions to the Canadian Forces that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the Minister shall be issued by or through the Chief of the Defence Staff.”6 The CDS remains subject to the direction of the Minister.7 The Minister is subject to direction of the Prime Minister and is expected to work collaboratively with his or her Cabinet colleagues. Ultimately, the Minister, his or her Cabinet Colleagues, and the Prime Minister are answerable to Parliament.  That is one of the foundational principles of responsible government in a Westminster-styled Parliamentary democracy.

If the Minister is not doing his job properly, then it falls to the Prime Minister to replace him.  As an ‘at pleasure appointment’ that can be done fairly readily.  If the Prime Minister chooses not to replace a Minister who is not performing his functions properly, then it falls to Parliament to hold them accountable.  If the opposition parties lack the capacity to do so, it remains unclear how an ‘Independent’ (and, I might add, unelected) Inspector General (whatever such characterization actually means) would be able to do so.  But I do not want to get ahead of myself – so hold that thought.

And where a political party governs as a ‘minority government’, if the opposition is incapable of holding the Prime Minister and Minister of National Defence accountable for any failings in the performance of their functions, then I suggest that says as much about the failings of the opposition parties as it does the government.

Similarly, if the CDS is not performing his (or her) duties and functions satisfactorily, it falls to the Minister to recommend to the Governor in Council to replace the CDS.  And, if the Minister fails to do so – see above.

Obsession with Slogans, Titles and Terminology

Over the past few weeks, news media, politicians, commentators, and other stakeholders have repeatedly bandied about various assertions and terms when discussing the challenges that the CF currently face.  Assertions that ‘the system is broken’ (without necessarily specifying the specific parts of the ‘system’ that are broken or how they are broken) are followed by a favourite refrain that what is needed is an ‘Independent’ actor (without really explaining the precise nature of that independence) like an Inspector General, who would report to Parliament and who would be able to correct all the (as yet unidentified) shortcomings in the current ‘broken system’.8  They even have the Acting CDS acknowledging the possible need for this as-yet-undefined statutory actor.

Here’s what I have been able to glean from the superficial treatment that has been offered by Parliamentarians and the news media:

Thus far, we know what the new or modified position might be called and that the position would be established in statute, would be ‘independent’ and would ‘report to Parliament’.  What has not been explained is the nature of the relationship this Inspector General would have with other key statutory actors, like the Minister, the CDS, the Judge Advocate General of the Canadian Forces (JAG), the Canadian Forces Provost Marshal (CFPM) or anyone else.  Nor do we know what the scope of the Inspector General’s powers would be.  Would the Inspector General (IG) have only investigative powers and functions, or would the IG also have determinative decision-making powers?  Would the IG replace, in whole or in part, the CF grievance process?  Would the IG replace or supervise other statutory actors?  Would the IG be an officer or a civilian?  The IG might ‘report to Parliament’, but everyone has a boss – to whom would this ‘officer of Parliament’ report?

If the discussion concerning the creation of an Inspector General strikes some of you as being a backwards approach to problem-solving – placing the institutional ‘cart’ before the functional ‘horse’ – I suggest that is because that is precisely what is going on.  Key stakeholders – including people who are responsible for creating the legislation that governs the armed forces of Her Majesty raised by Canada – have already drawn the conclusion that we require a statutory and ‘independent’ Inspector General who ‘reports to Parliament’ before they have identified the specific shortcomings in the current legislation and processes, the potential solutions to those shortcomings, and how those solutions could be embodied in an Inspector General.

In military parlance, the people who keep calling for the creation of an Inspector General are ‘situating the estimate’.   In more common parlance, it means that they are deciding beforehand upon a specific course of action, and then rationalizing that decision through the subsequent process of examining relevant factors.  In other words, the decision-maker shapes his or her analysis to fit a desired outcome or ‘end state’.

And that represents bad planning, sub-standard theorizing, and problematic policy development.

Moreover, it gives rise to the potential that, whatever legislation or policy is developed will simply shift the point of failure.

Presumably, proponents of an ‘Independent Inspector General’ are not suggesting that the Inspector General would have the authority to remove a CDS. After all, that would, in effect, grant an unelected official the authority to do what is presently granted to the Governor in Council. It would also interfere with the civilian control over the armed forces exercised by the Minister and the Governor in Council.

Creating new institutions is not necessarily the solution. Shifting responsibility to someone other than the person who has the statutory management and direction of the DND and CF or the person who has the statutory control and administration of the CF may not be the appropriate solution. Shifting responsibility often simply shifts blame. If a particular Minister and CDS cannot be trusted to do their jobs, the solution is not to create a new position. The solution is to fire the person who is not performing his or her functions properly and replace him or her with someone who can do so.

And more specifically, before we start asserting that Parliament must create an Independent Inspector General who would ‘report to Parliament’, shouldn’t we:

  1. Identify the specific shortcomings of the process or processes established by or under the National Defence Act;
  2. Identify potential solutions to those shortcomings;
  3. Then identify whether those mechanisms are best established in statute, regulation, or policy;
  4. Identify how those solutions might impact current statutory actors; and
  5. Finally, identify the various options by which these improvements could be implemented?

Wouldn’t that be the logical way to proceed?

So, let’s start with the core problem that underlies not only sexual misconduct in the CF, but a source of a great deal of demoralizing harm: impunity.

Impunity

The Oxford English Dictionary defines impunity as “exemption from punishment or freedom from the injurious consequences of an action.” I suspect that someone offering a more colloquial definition would describe it as ‘getting away with bad conduct’.

A statutory or public actor who acts with impunity can have markedly adverse impact on our society. As a general rule of thumb, the more senior the decision-maker, the more significant the adverse impact. Senior leaders in the CF who act with impunity – particularly if they act in a manner that undermines respect for personal rights, interests, and privileges or in a manner that undermines the rule of law – will undermine the very organization they are charged with leading.

Over the past few weeks, the news media has focused on a particular type of impunity arising in the CF: sexual misconduct, particularly where very senior personnel have allegedly perpetrated such misconduct.Certainly, that is both newsworthy and ought to be of concern to the public.

However, that is not the only form of conduct (or misconduct) that demonstrates impunity. It is noteworthy, however, that this specific type of impunity is what has caught the attention of the news media.

I suggest that, as we examine the issue of impunity in the CF – particularly impunity by senior personnel – and the potential solutions that could be developed, we must not lose sight of the broader issue: sexual misconduct by persons in positions of authority represents a specific type or manifestation of impunity. The solution that we are looking for is not solely a means to address sexual misconduct adequately, but a means to address impunity in general.

Confidentiality or Anonymity?

A good place to orient our discussion is the challenge that purportedly faced the former DND/CF Ombudsman, Gary Walbourne, when he first attempted, in March 2018, to bring to the attention of the Minister of National Defence an allegation against the then CDS, General Vance. We still don’t know, with any degree of certainty, what information, specifically, Mr. Walbourne was going to present to the Minister. According to Mr. Walbourne’s statements to the Standing Committee on National Defence about a month ago, the meeting ended abruptly when he attempted to broach the subject. Mr. Walbourne stated that he had a copy of an email in his pocket that he wanted to present to the Minister. However, we do not know what was on that email and, purportedly, the Minister never saw it.

There is an aspect of Mr. Walbourne’s statements to the Standing Committee that I have found perplexing. He stated that, at the time, he had to safeguard the confidentiality of the complaint and the identity of the complainant. Indeed, three years later, when appearing before the Standing Committee, Mr. Walbourne still did not disclose the identity of the complainant or any of the details of the complaint.

It struck me as odd that Mr. Walbourne asserted that he had to protect the confidence of the complainant, but he was evidently prepared to disclose her identity to the Minister. Arguably, since the position of the Ombudsman was created by Ministerial fiat, and the Ombudsman reports to the Minister, it would be logical to conclude that the Ombudsman could disclose that information to the Minister.

However, Mr. Walbourne made two pertinent, and potentially contradictory assertions when he appeared before the Standing Committee. First, he stated that he expected the Minister to do something about the complaint – presumably initiate an investigation or similar action. Much has been said about the Minister’s purported failure to initiate an investigation. But Mr. Walbourne also explicitly indicated that he would need to have subsequently sought the complainant’s permission to disclose her identity.

And I found that perplexing.

It appears that Mr. Walbourne expected to be able to bind the Minister to some form of ‘confidentiality’ that could have fettered any subsequent action on the part of the Minister absent the complainant’s ‘permission’. And, frankly, the Ombudsman does not have the authority to fetter the Minister’s discretion in that manner.

And I suggest that this quandary arises from the fact that, when Mr. Walbourne spoke of maintaining the complainant’s ‘confidence’ or ‘confidentiality’, what he was really describing – whether he realized it or not – was ‘anonymity’. And therein lies the problem and one of the more significant issues that must be addressed.

I am tempted at this point to suggest that the former Ombudsman was making promises that he could not keep. I truly believe that that was the case. However, such an assertion might derail our discussion, as some readers might then conclude that I am unreasonably criticizing Mr. Walbourne, and that is not the focus of our discussion here. While I am criticizing perceptions that some people may have formed about the functioning of the DND/CF Ombudsman – including, potentially, Mr. Walbourne – my principal objective herein is not to criticize individual actors. My objective is to highlight misconceptions that could lead to problematic policy development.  In so doing, I must unavoidably address the actions and statements of individual actors. So, bear with me, Dear Reader, and please do not interpret my comments as intended, principally, as a criticism of Mr. Walbourne.

Maintaining a ‘confidence’ or ‘confidentiality’ need not impair an investigation or a decision-making process. Indeed, the CF has any number of investigative and decision-making mechanisms that maintain a degree of confidentiality:

In other words, information, particularly personal information, is safeguarded, both during the investigation and once the investigation is completed.  Any information disclosed is generally disclosed because it must be disclosed under either a specific statutory regime or common law principles14. The personal information is safeguarded because it must be safeguarded.15

Military disciplinary tribunals (summary trials and Courts Martial) are typically conducted in public16, although portions of such proceedings may be closed to the public for specific reasons, such as national security or the proper administration of justice.17. Nevertheless, a properly functioning disciplinary system must, generally, be conducted in public. Thus, potentially, some information will be conveyed in a public forum.

However, where publication of the identity of a complainant, witness, or even the accused, may adversely affect the administration of justice, a military judge presiding at Court Martial has the discretion (and sometimes the obligation) to impose publication bans.18  This is common in prosecution of offences such as sexual assault, where publication of the identity of the complainant (and, in some cases, the accused) will be prohibited in order to protect the complainant.19  Publication bans have also been granted, typically on request from the Director of Military Prosecutions (DMP), where the offence charged is ‘of a sexualized nature’ but is not expressly sexual assault.20

The accused is still permitted to know the identity of the witnesses who will, potentially, present evidence against him or her, including the identity of the complainant. After all, the accused must still be permitted to make full answer and defence, which would be infeasible if the identity of his or her accusers were concealed.

Similarly, if an harassment complaint is made about a member of the CF, and the Responsible Officer concludes that an investigation must be conducted, the Responsible Officer must disclose to the Respondent the allegations made about the Respondent, including the identity of the complainant and other witnesses. However, this information is not published in a public manner and even the eventual determination and resolution of the complaint will involve personal information that must be safeguarded.

Thus, even disciplinary and administrative investigations will safeguard confidentiality, to varying extents.

But, frankly, maintaining confidentiality was not what Mr. Walbourne was actually discussing when he appeared before the Standing Committee. Based upon what he stated to the Standing Committee, it appears that what Mr. Walbourne had promised the complainant was anonymity until and unless she ‘granted permission’ to disclose her complaint and, more particularly, her identity.

I have said this before, and I will say it again (and I will keep saying it): in Canada, a Parliamentary constitutional democracy governed by the rule of law, we do not try people for criminal offences (or similar misconduct) in the media. We do not use Courts of Star Chamber.  We do not rely on anonymous prosecutions. We use processes that ensure that the rights, interests, and privileges of all persons brought under the power of the state are respected.

The problem with which Mr. Walbourne was struggling was how to maintain anonymity while ensuring fairness of process. And, frankly, in a democracy that respects the rule of law, that is not possible. And I suggest that this problem arises when an Ombudsman makes promises that cannot reasonably be maintained if a complaint is expected to form the basis for eventual disciplinary or administrative action.

And making an Ombudsman ‘independent’ – whatever might actually be meant by the use of that term – or creating a statutory regime in which the Ombudsman ‘reports to Parliament’ – whatever that may actually entail – will not alter the fundamental principle that proceeding with anonymous complaints of misconduct would undermine the fairness of any such regime.

The problem is not the mandate of the Ombudsman; the problem arises from a failure to manage expectations of a variety of stakeholders. The principal challenge which the CF faces is the creation of an environment in which complainants will be encouraged to come forward. And, frankly, any investigative body that promises anonymity to a complainant is acting in a counter-productive manner.

In part, the issue is about separating ‘support for complainants’ from investigative functions. Counselling and other personal support can be provided to persons without having to disclose their identity to investigators or respondents.  But that is not what is being discussed when various stakeholders have posited that there must be significant reforms to the nature and role of the DND/CF Ombudsman. What we are talking about is an investigative mechanism.  And any investigative actor who promises anonymity to a complainant is fettering its own function and creating unreasonable expectations for the complainant, and the broader institution.

Fear of reprisal can be a potential barrier to complainants coming forward. Complainants have faced challenges in bringing valid complaints before the appropriate investigator or decision-maker.  And this is not limited to complaints of sexual misconduct. Fear of reprisal and intimidation can have a chilling affect across the spectrum of complaints and can consequently lead to impunity. And impunity in all its guises is consistently toxic.

But the brutal truth is that complaints can only be investigated if they are made in a manner that will permit investigative and decision-making processes to function fairly and reasonably.  Anonymous complaints are not sufficient. And anyone who is not prepared to be frank and honest with complainants on that issue is setting conditions for failure.

The mechanisms that the CF has are relatively robust. Could they be improved? Sure. Are they as bad as certain rent seekers have suggested? No, they are not. They actually function reasonably well when employed by competent investigators and decision-makers who have adequate training. Where the CF has failed is: (1) the adequacy of training; (2) holding people accountable for failing to do their jobs; and, perhaps most importantly, (3) setting conditions for complainants to feel safe to bring complaints forward.

I suggest that the principal solution to these challenges is not necessarily the creation of more systems or mechanisms. Creating an Ombudsman or an Inspector General who reports to Parliament is not the panacea that some may believe, particularly when we have not first: (1) identified the specific short-comings to the current regimes; (2) identified potential solutions to those specific short-comings; and, (3) identified how those solutions may be integrated into existing legislated (and policy-based) regimes.

I suggest that the principal solution, in a word, is: leadership.

Allegations against Admiral McDonald

On 28 March 2021, Global News broadcast an interview by Mercedes Stephenson with the complainant who has reported alleged wrong-doing by Admiral McDonald, the current Chief of the Defence Staff. Admiral McDonald has ‘stepped aside’ from his role pending the completion of the current ongoing investigation by the Canadian Forces National Investigation Service (CFNIS).  This interview was concurrently posted online.21

In advance of the broadcast of that interview, Mercedes Stephenson tweeted that ‘The West Block’ would be sitting down “…with the woman who came forward.” However, I suspect that If people tuned in expecting to hear details about the alleged misconduct, they were disappointed. Not surprisingly, Lt(N) MacDonald did not speak about the allegations. After all, there is an ongoing Military Police investigation, and it could undermine that investigation if the complainant discussed specific details publicly.

As is typically the case with news media, Global News reached out to Admiral McDonald for comment. Not surprisingly, he opted not to comment. After all, the complainant did not discuss the specific allegations; it would be surprising if Admiral McDonald were to do so, particularly if the ongoing investigation concerns allegations of criminal misconduct. And, while I am speculating, I suspect that Ms Stephenson would not approach Admiral McDonald’s statements in the same manner that she approached the interview with Lt(N) MacDonald.

Instead of commenting on the allegations, Lt(N) MacDonald expressed concern about the fact that select information about the investigation had been leaked to news media – the CBC specifically.22  The interview appeared to criticize the CBC for having reported on the matter. I found that odd for a couple of reasons. First, while some information had been leaked, the name of the complainant did not appear to have been leaked or, at least, publicized. I do not believe that the identity of the complainant was not known publicly until Global News broadcast the interview.  And the term ‘sexual assault’ was not used in the initial reports by the CBC or Ottawa Citizen (although it was used in the subsequent report by Global News). Second, the CBC was not the source of the leak, merely the recipient of the information.

Lt((N) MacDonald expressed concern about who had leaked the information.

Frankly, I, too, am particularly curious about who may have leaked limited information to the CBC and other news media. It appears that more than one reporter was provided information from more than one source. That could indicate a degree of co-ordinated effort.  And, that, I suggest, should be a concern to all of us.

I think all Canadians ought to be concerned when elements of an ongoing police investigation are leaked, particularly where there is a risk that this could compromise such investigations. I would not wish to appear alarmist. The information that has been leaked thus far would not appear to have significantly compromised the investigation. However, in light of the limited scope of personnel who may have had access to the information that was leaked – such as the file number of the CFNIS investigation and the fact that the allegation may have involved sexual assault – I think we should all be more than a little curious about who leaked the information, and why.

Similarly, every now and then, Parliamentary Committees, such as the Standing Committee on National Defence, can stray into areas of inquiry that are still the subject of MP/CFNIS investigation or other CF mechanism. That, I suggest, can be problematic.

But that wasn’t the only comment from Lt(N) MacDonald that I found noteworthy. The online Global News report stated:

In an exclusive interview with The West Block‘s Mercedes Stephenson, navy Lt. Heather Macdonald said she was frustrated to see details about her allegation leaked to the CBC in what she described as an attempt to “steal the due process” she and McDonald both deserve.

Some of you may not like what I am about to explain; however, that does not alter its veracity.  Procedural fairness (the term ‘due process’ is favoured by our American cousins more than by those of us in Canada) exists principally for the benefit of the accused, and not the complainant.  (And I note, tangentially, that I am using terminology common to prosecutions under the Criminal Code and the Code of Service Discipline, even though no one has yet been charged in any of these matters.  In administrative matters – which might well eventually be relevant in these circumstances – the terms that are typically used are ‘respondent’ and ‘complainant’.)

The reason that procedural fairness is viewed principally from the perspective of the accused or respondent is because the accused or respondent is the direct object of a disciplinary/criminal prosecution or administrative process.  That does not mean that the complainant does not have something significant at stake.  Nor does it mean that a complainant does not benefit from certain protections in a criminal or disciplinary process. However, the weight of the power of the state is brought to bear on the accused (or respondent).

Similarly, when Members of Parliament like Randall Garrison state (as he did during the meeting of the Standing Committee on National Defence on 26 March 2021) that it seems that the privacy of the accused is more important than responding effectively to complaints23, I suggest that he misconstrues the issue or issues.

If we are dealing with an accused – and, at this point, we are dealing with accusations that have only been levelled in the news media and where no charges have yet been laid – the focus is on the fairness of the process that the state brings to bear. And the reason why fairness for the accused or respondent is so important is because anyone – including you, me, or Mr. Garrison – could potentially be accused of wrong-doing. I want an accused to have procedural fairness, because I would want procedural fairness if I were an accused.

And what Mr. Garrison appeared to be discussing was the handling of personal information collected and held (and, potentially, disseminated) by the state. There are some fairly stringent legislative constraints placed on the use and dissemination of such information.24 And, again, no one should complain about such constraints seeming to ‘assist’ an accused, respondent, or someone whose character has been impugned, unless the same person would consider it to be acceptable if their personal information were used or disseminated in a similar fashion.

Allegations against Vice-Admiral Edmundson

Admiral McDonald is not the only Flag Officer who has been mentioned in the news media recently.  A week ago, the CBC also ran a report concerning allegations against Vice-Admiral Edmundson, made by a now-retired member of the CF.25  And these allegations date from 30 years ago.

I read, with interest, the online article published by the CBC.  However, I was disappointed by what I view as inaccuracies and mischaracterizations relating to the application of the Code of Service Discipline.

Portions of the article stated the following:

Viau said she wants Edmundson charged with sexual assault.

There is no time limitation on sexual assault reports, … a victim can come forward and report the crime decades after it happened.

It would be the military’s responsibility to investigate, … since the incident is alleged to have happened aboard a military ship.

But Viau said she wants an independent investigation because she doesn’t trust the military to properly investigate and prosecute her case. The military has its own police and usually handles sexual assault charges through its separate justice system.

CBC News’ The Fifth Estate reported this month that a former military police investigator said the military’s judicial system is “ill-equipped” to handle such crimes. The former investigator said he dealt with commanding officers interfering with sexual assault cases, and prosecutors who were reluctant to move forward with charges.

Statistics from 2014-2017 show that sexual assault conviction rates in the military were well below those in the civilian justice system.

Viau said she has no faith in the military’s ability to conduct an investigation in part because she alleges a military police officer sexually assaulted her in the past.

….

Decades ago, the civilian justice system handled sexual assault cases involving military members. But in 1998, the Department of National Defence asked for a change to the National Defence Act to remove sexual assault from the list of serious crimes that fall outside of the military’s jurisdiction, said [Michel] Drapeau.

Overnight, he said, military police and tribunals were put in charge of those cases without any prior experience.

“I have long argued that jurisdiction for sexual assaults should be returned to civilian police and the civilian criminal court,” said Drapeau.

Mackenzie agreed the military is not equipped to deal with sexual assault allegations “well,” especially when it comes to high-ranking officers. The system is built on the assumption that high-ranking members won’t commit misconduct, she said — and the current crisis in the military shows that isn’t the case.

There are a few statements that fail to describe the relevant law, and the evolution of the Code of Service Discipline, clearly and accurately.  Permit me to explain:

The Department of National Defence did not ask to amend the National Defence Act in the late 1990s. The Department of National Defence has no role to play in the Code of Service Discipline.  The amendments to the National Defence Act introduced by Bill C-2526 in 1998 would have been initiated by a Memo to Cabinet by the Minister of National Defence, who had (and has) management and direction of both the Canadian Forces and the Department of National Defence27. The Code of Service Discipline concerns the former, not the latter.

The Memo to Cabinet would then have initiated the legislative process that eventually led to Parliament enacting Bill C-25. And note: it was Parliament that enacted the amendments to the National Defence Act. That is one of the ways that the armed forces in Canada are subject to civilian control.

The significant legislative amendments represented by Bill C-25 were prompted by a variety of factors, not the least of which was significant media scrutiny throughout the 1990s. I recall it well; I was serving as an infantry officer at the time.  There was a great deal of commentary in the news media about the ‘lack of jurisdiction’ under the Code of Service Discipline for the offence of sexual assault (and other variants of that offence). This led to recommendations to remove the prohibition on the prosecution of sexual assault under the Code of Service Discipline where the offence is alleged to have arisen within Canada.

It is inaccurate to suggest that sexual assault lay outside the military’s jurisdiction in 1991. It would be more accurate to state that, prior to the enactment of Bill C-25, sexual assault (as well as other offences, including murder, manslaughter, sexual assault with a weapon, and aggravated sexual assault) lay outside the jurisdiction of the Code of Service Discipline if committed in Canada.  That exception was established at s 70 of the NDA.28 That is particularly relevant to the discussion in the article. The Code of Service Discipline provided jurisdiction over all Criminal Code offences that arose outside Canada.

It is inaccurate to suggest that “…  jurisdiction for sexual assaults should be returned to civilian police and the civilian criminal court …”.  That is because civil authorities never lost that jurisdiction.  What Bill C-25 changed, in terms of jurisdiction relating to the offence of sexual assault (and sexual assault with a weapon and aggravated sexual assault), is that the exception found at s 70 of the NDA, for those three offences, was removed.  That then permitted the exercise of jurisdiction of the Code of Service Discipline over those offences if they occurred inside Canada.  The jurisdiction of civil authorities remained unchanged.

Ms Viau alleges that the sexual assault occurred in November 1991 onboard HMCS Provider when it was docked in American waters in Hawaii. Even though this pre-dated the enactment of Bill C-25, the Code of Service Discipline would have provided jurisdiction to prosecute the offence, had it been reported at the time.  In fact, under the Status of Forces Agreement (SOFA) for NATO countries, where the complainant and accused are both members of the Canadian Forces, even if an offence occurred within the territory of the United States, Canada would have had primacy of jurisdiction in relation to the ‘Host nation’.

Even now, if a CF member is alleged to have committed sexual assault in Canada, the first decision-maker who could influence whether the matter is investigated and prosecuted by civil or military authorities is the complainant.  If a complainant reports an allegation of sexual assault to civil police, and if the matter appears to fall within their jurisdiction, they will likely investigate.  If a complainant is a member of the CF and alleges criminal misconduct by another CF member, and the complainant reports that misconduct to the civil police, the civil police may well investigate that matter.  They may liaise with Military Police, but a person’s standing as a CF member does not exempt him or her from the jurisdiction of civil authorities.

It is disingenuous to suggest that ‘overnight’ Courts Martial were given responsibility for matters for which they had no experience.  Prior to the enactment of Bill C-25, Courts Martial had jurisdiction over all Criminal Code offences arising outside Canada, and had occasion to try offences up to, and including, murder.29 Until the mid-1990s, Canada had significant numbers of personnel (accompanied by their families) posted outside Canada in support of NATO obligations. The CF continues to have dozens of personnel (accompanied by their families) posted outside Canada in support of NATO and NORAD functions, and personnel are consistently deployed outside Canada on operations. To suggest that courts martial lack (and lacked) the experience and sophistication to deal with serious criminal offences is overly simplistic.

Moreover, whether or not Judge Advocates in the early 1990s had requisite experience to deal with such matters is moot. The complaint was not raised in 1991. Military Judges certainly have experience with such matters now.

And that leads me to my final observation regarding the relevance of the allegations against Vice-Admiral Edmundson to the circumstances the CF faces today.

The allegations are described as arising in 1991. The complainant, Ms Viau, states that she didn’t report the assault at the time because she was afraid to speak up against the third-highest ranking officer on the ship. She described a pervasive culture of silence surrounding sexual misconduct, a lack of support from the chain of command and fear of career reprisals. I take her concerns at face value.

But I would also suggest that it would be disingenuous to judge practices and processes in the CF today based upon the environment of 30 years ago. If a pervasive culture of silence persists today, if there remains a lack of support from the chain of command and a fear of career reprisals, then those shortcomings must be addressed.

But the effectiveness of CF regimes and policies of today must not be judged by circumstances from three decades ago. When people suggest that the CF must not be permitted to exercise jurisdiction over certain offences or misconduct because of something that happened 30 years ago, it would be akin to suggesting that the civilian criminal justice system is failing complainants of sexual assault or intimate partner violence today because of shortcomings in how the civilian criminal justice system approached those subjects 30 years ago.

It is about impunity

Ultimately, I suggest that the broader issue with which the CF is presently struggling is not solely or simply about sex or sexual misconduct. It is about impunity.

Many forms of sexual misconduct (and the responses thereto) are manifestations of impunity. Certainly, these incidents (and alleged incidents) can represent some of the more toxic manifestations of impunity. But what we are ultimately talking about is unchecked impunity.

Impunity can be particularly difficult in the CF due to:

  1. The explicit hierarchical structure of the institution (as well as significant informal hierarchies that can develop);
  2. The disciplinary and coercive administrative regimes that are used by, and enforce, these hierarchies; and
  3. The limitations arising from the unique Crown-soldier relationship, which is entirely Constitutional/statutory and offers no benefits that would arise in a contractual relationship.

For example, a CF member who is dealt with ‘administratively’ (as was often the case under the now terminated Op HONOUR) is often subject to sanction by decision-makers who are not independent.  Sometimes, it is debatable if the decision-maker is approaching the matter with an open mind or making reasonable decisions.  And there is often no oversight by constitutionally independent courts until the CF member exhausts the ‘adequate alternative remedies’.  This has been a recurring theme in this Blog.

The CF member has no recourse to any remedies based in contract. While there are torts, such as ‘misfeasance in public office’, that may be relevant, the thresholds that must be met in order to prove such misfeasance tend to be rather high. Typically, the relevant torts are ‘intentional torts’. There is no recognized tort of ‘negligent administration of public duties’ nor is there a freestanding tort of ‘harassment’30.

So, all that a CF member has to protect his or her rights, interests, and privileges, whether as an accused in a disciplinary/criminal process, or a respondent in an administrative process, are the narrow benefits of procedural fairness.

Impunity can manifest in a variety of ways. It can manifest in senior personnel acting with malice or disregard for the rights or interests of more junior personnel. It can manifest where decision-makers downplay or obfuscate complaints. It can manifest when senior personnel use disciplinary or administrative measures to intimidate complainants. It can manifest when senior leaders or ‘regimental mafias’ protect personnel who have been ‘earmarked’ for advancement, notwithstanding complaints or concerns that have been raised about such persons. It can manifest in ‘peer groups’ that are dominated by a particular characteristic (including gender, sexual orientation, ethnicity, or language) and which disregard the rights, interests, or privileges of a minority within that peer group.  And it can manifest when a chain of command disregards the limited protections that CF personnel have in administrative processes in order that the chain of command can demonstrate that ‘something is being done’.

We should all be concerned about unchecked impunity, in all its forms.

Independence and the Military Police

As I indicate above, over the past several weeks, there have been consistent cries for the creation of an ‘Independent Ombudsman’ or an Inspector General who reports directly to Parliament.  I have also commented previously on the various myths that have arisen concerning ‘independence’ and the lack of a well-reasoned approach to the insistence that a military Ombudsman or Inspector General must report to Parliament.

Some commentators have suggested that a problem also arises from a lack of independence of the Military Police generally, and the CFNIS in particular.  A retired Military Police sergeant interviewed by the CBC’s Fifth Estate seemed to suggest that there was merit to that assertion.31 He alleged that the independence of CFNIS investigations was undermined by commanding officers who sought information about the complaints.

However, I found those allegations less than compelling.

First, it appeared that his analysis of the matter was summed up as follows: “”The military justice system seems ill-equipped to deal with these types of intimate crimes, sexual assaults, sexual exploitation, that type of thing … It doesn’t feel like that system was designed to deal with those types of offences.”

That falls short of providing much concrete information regarding why the military justice system is deficient.

Sergeant Zillman (retired) did suggest that commanding officers either interfered or attempted to interfere with his investigations:

We would have units that would reach out and ask for the victim’s contact information, which is a huge no, no you cannot have that, but it seemed to continue happening …

There’s absolutely no reason that you as this person’s employer need to know the information about the victim. That’s none of your business.

…

You certainly run the risk of obstructing an investigation depending on how far into it you start getting and poking around.32

There is a lot to unpack from those statements.  Sgt Zillman (ret’d) appeared to suggest that the commanding officers seeking the information were the commanding officers of the complainants.  If that were the case, they likely would not need the Military Police to provide that information, as a commanding officer would already have contact information for personnel under their command.  It is possible that what the commanding officers were seeking was confirmation of the identity of the complainants.  That could be problematic.  However, it might not be as nefarious as the CBC report appears to insinuate.

In light of repeated criticism – often from the news media – that the CF was not doing enough to support victims of sexual misconduct, it is not surprising that commanding officers may have sought more information regarding the complaints. After all, it is difficult for a chain of command to support a complainant if the chain of command has no information. And, waiting 8 or 9 months (or longer) for the Military Police to complete their investigation before being informed of the information may not be tenable for those commanding officers.

Thus, the insinuation that the commanding officers may have sought such information for nefarious purposes was not supported by the information provided. But it certainly made for a sensational report.

What is absent from The Fifth Estate report is any mention by Sgt Zillman (ret’d) of an ‘Interference Complaint’ relating to what he characterized as interference by commanding officers.

The amendments to the NDA introduced by Bill C-25 expressly created a process and an arm’s-length Commission to address circumstances in which a person in a position of authority interferes with a Military Police investigation.

Bill C-25, which markedly altered the Code of Service Discipline and the CF grievance process, also created the Military Police Complaints Commission33 and a statutory process for two types of complaints: (a) complaints about misconduct by the Military Police34; and, (b) complaints about interference in Military Police functions by other CF and Departmental authorities35.

Based upon what the CBC reported, it does not appear that Sgt Zillman (ret’d) submitted any ‘interference complaints’ in relation to any of the circumstances about which he objected in the interview.

Could it be that his concern was exaggerated?

Ultimately, I would suggest that concerns regarding CFNIS investigations are not manifestations of a lack of independence.  Nor do I think there is a significant fault line regarding the independence of the CFNIS as an investigative agency. I draw that conclusion in light of the absence of compelling evidence regarding examples of defects in that investigative independence, and the legislative provisions that provide for investigative independence.36

I do believe that there are some serious issues regarding timeliness of Military Police investigations. I have commented on that issue, previously, here, here, and here. And the lack of timeliness adversely affects both the accused and the complainant.  One might also suggest that there are a few too many investigative errors by Military Police. But I suggest that those shortcomings can be characterized as: (1) lacunae in the training of Military Police investigators emphasizing timeliness and greater awareness of Charter rights; and, (2) past failures by both courts martial and Military Police supervisors to hold investigators to a higher investigative standard. However, these are not manifestations of a lack of sufficient independence.

Some commentators have suggested that the Military Police must be entirely independent of the chain of command. If that were the case, permit me to ask a follow-on question: What do we do about PW/Detainees on operations?

In a theatre of operations, who is responsible – accountable – for the treatment of PW and Detainees? While the Military Police are, doctrinally, responsible for securing PW and Detainees, at least initially, the commander of the detaining force is responsible.37 If the Military Police are completely independent of commanders, that alters this principle of International Humanitarian Law and the Law of Armed Conflict.

One option could be to use Military Police for non-investigative duties and some form of ‘Defence Police’ for investigative functions. However, that ‘solution’ is not free of shortcomings. Many CF personnel bemoan the loss of influence of commanders in the application of the Code of Service Discipline. Considering the justification for the Code of Service Discipline is a parallel complementary system to the civilian criminal justice system “… to maintain the discipline, efficiency, and morale of the armed forces …”38 that is a legitimate concern.

I am not suggesting that potential solutions or changes must be rejected out of hand. What I am suggesting is that much of the so-called analysis is being inverted. Part of the problem with the current discussion regarding impunity and misconduct in the CF – and the potential solutions therefor – is that many people appear to default to the ‘solution’ that Parliament must create external or independent agencies to hold the chain of command accountable. They are ‘situating the estimate’, rather than conducting meaningful analysis.

There already exist mechanisms to hold personnel accountable for their actions. If those mechanisms are failing, then before we start identifying solutions, we might wish to identify precisely why those mechanisms are failing.  And we might wish to examine whether all of those mechanisms are actually being used, and in the manner intended. The analysis concerning the specific shortcomings in processes has been relatively scant and has been over-shadowed by slogans and talking points.

Conclusion

The principal challenge that faces the CF right now is developing a feasible means to address impunity by CF personnel.  Much of the focus over the past several weeks has been on two particular manifestations of impunity: (1) sexual misconduct, a particularly pernicious form of impunity; and, (2) impunity by senior leaders and decision-makers.  And, while it is reasonable to focus on the impunity by senior statutory actors, I would suggest that senior leaders are not the sole source of impunity within the CF, nor must that be the only focus in terms of identifying solutions.

A subsidiary challenge arises from the tendency by several stakeholders and rent seekers to posit solutions, often couched in repeated use of important-sounding terminology such as ‘independence’ and ‘reporting to Parliament’ absent actual concrete analysis. I suggest that before we start positing what the solutions might be, we ought to focus on particularization of the specific fault-lines in current legislation, policy and processes. We can then identify potential solutions to such shortcomings and evaluate how those solutions can be integrated into existing frameworks, or whether entirely new frameworks are required.

In short, we need to stop situating the estimate, and conduct a meaningful analysis. And that starts with identifying the principal problem: impunity.

1.) National Defence Act, RSC 1985, c N-5, s 4 [NDA].

2.) Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

3.) NDA, n 1, s 18.

4.) Id.

6.) Id, s 18(2).

7.) Id, s 18(1).

8.) Murray Brewster, “Public service had ‘no path’ to investigate misconduct claim against Vance, says former top Bureaucrat” (6 April 2021), online: CBC News

9.) Contents of Military Police investigations are not shared with a wide number of people while the investigation is ongoing.  To do so could undermine the investigation, and much of the information that is collected is personal information.  Even if charges are laid following such investigation, that information is not publicly broadcasted.  The product of the investigation is shared with the accused because it is principally about the accused and the accused must have access to such disclosure in order to make full answer and defence.  And it is only shared to the extend necessary to allow full answer and defence in the proceeding.

10.) R v Stinchcombe, [1991] 3 SCR 326 [Stinchcombe].

11.) Sheriff v Canada (Attorney General), 2006 FCA 139, [2007] 1 FCR 3 [Sheriff].

12.) It would require a separate, and lengthy, blog post to discuss all of the problems I have encountered with both the redactions to Military Police reports, and their uses in administrative proceedings.  In fact, it would likely take multiple blog posts to do justice to the subject.  That is not the objective of the present Blog post.

13.) Privacy Act, RSC 1985, c P-21, s 2, “personal information”.

14.) Stinchcombe, n 10, Sheriff, n 11.

15.) Privacy Act, n 13, s 8.

16.) For Courts Martial: NDA, n 1, s 180, see also Queen’s Regulations and Orders for the Canadian Forces (QR&O) arts 112.10 and 112.11; for Summary Trials: QR&O art 108.28.

17.) NDA, n 1, subs 180(2); QR&O, id, art 108.28(2).

18.) NDA, n 1, s 179.

19.) QR&O, n 16, art 101.04; Criminal Code, RSC 1985, c C-46, s 486.4; R v Corporal Gobin, 2018 CM 2006.

20.) R v Master-Corporal Barrieault, 2019 CM 2013.

21.) Mercedes Stephenson, et. al., “IN HER WORDS: The woman behind McDonald Allegation tells her story” (28 March 2021), online: Global News <https://globalnews.ca/news/7722021/canadian-forces-sexual-misconduct-art-mcdonald-investigation/>.

22.) Murray Brewster, et. al., “Canada’s top military commander steps aside following sexual misconduct claim” (25 February 2021), online: CBC News <https://www.cbc.ca/news/politics/mcdonald-misconduct-allegation-1.5927517>; David Pugliese, “Hours before stepping down from top military job, defence chief vowed to get tough on sexual misconduct” (25 February 2021), online: Ottawa Citizen <https://ottawacitizen.com/news/national/defence-watch/hours-before-stepping-down-from-top-military-job-defence-chief-vowed-to-get-tough-on-sexual-misconduct>.

23.) Marieke Walsh, “Defence Minister was involved in Vance pay raise, top civil servant say” The Globe and Mail (27 March 2021) A15.

24.) Privacy Act, n 13, s 8.

25.) Ashley Burke and Kristen Everson, “Senior military commander under investigation after being accused of sexually assaulting subordinate” (31 March 2021), online: CBC News <https://www.cbc.ca/news/politics/sexual-assault-allegations-vice-admiral-haydn-edmundson-1.5963430>.

26.) An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, c 35 [Bill C-25].

27.) NDA, n 1, s 4.

28.) The prohibition continues to apply to the offences of murder, manslaughter, and abduction of minors and children under ss 280 to 283 of the Criminal Code, n 19.

29.) For example: R v Deneault, [1994] CMAC-340, per Letourneau JA, in which the finding of guilt for Second Degree Murder was over-turned.  This judgment, authored by Letourneau JA, who has often criticized the military justice system, expressly identifies Courts Martial as sui generis and posits that empanelled Courts Martial are distinct from jury trials.  Letourneau JA also concluded that the security of tenure and financial security of the presiding Judge Advocate were not at issue in that matter.  However, relying on R v Généreux, [1992] 1 SCR 259, [Généreux] he held: “… the appointment of the President and the other members of the Court fails to meet the constitutional standard established by paragraph 11(d) of the Charter. Both the President and the members of the Court were appointed by the convening authority, that very same convening authority who appointed the prosecutor. It is this process that the Supreme Court found to be running afoul the Charter. … The appointment of the members of the Court was made at the time the appeal in Généreux was pending before the Supreme Court. The respondent was aware of the difficulty created by the appointment process. Had the members of the Court been selected by the Chief Military Trial Judge, the constitutional hurdle would, in my view, have been overcome as the designation would have been made by a judicial officer.”  The conviction was overturned for this reason.  However, the jurisdiction of Courts Martial to try all Criminal Code offences alleged to have occurred outside Canada remained.  See also: R v Brown, [1995] CMAC-372.

30.) Merrifield v Canada (Attorney General), 2019 ONCA 205.

31.)Rachel Ward, “Commanding officers interfered in sexual assault investigations, retired military police officer says” (11 March 2021), online: CBC News <https://www.cbc.ca/news/canada/fifth-estate-military-justice-1.5943931>.

32.) Id.

33.) NDA, n 1, s 250.1.

34.) Id, s 250.18.

36.) NDA, n 1, ss 18.3 to 18.5, QR&O, n 16, chapter 22.

37.) See: B-GJ-005-104/FP-021, Law of Armed Conflict at the Operational and Tactical Levels, (13 August 2001), c 16 “War Crimes, Individual Criminal Liability and Command Responsibility”; QR&O, n 16, arts 4.02 and 5.01; Additional Protocol I to the Geneva Conventions, arts 85 to 91; In re Yamashita, 327 US 1 (1946); Rule 153 of the ICRC Customary International Humanitarian Law Study; Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, art 28.

38.) Généreux, n 29, 293 to 296, per Lamer CJ.

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