The Right Tool for the Job: Administrative Review is neither a Code of Service Discipline prosecution nor an Harassment Investigation

The Right Tool for the Job:

 Administrative Review is neither a Code of Service Discipline prosecution nor an Harassment Investigation[1]

 

In the course of my practice, I have noticed a disturbing trend regarding the use – or, more accurately, misuse – of Administrative Reviews (AR) under Defence Administrative Order and Directive (DAOD) 5019-2 as some form of ersatz ‘harassment investigation’ in lieu of a proper Harassment Investigation under DAOD 5012-0 Harassment Prevention and Resolution.  Equally, I have repeatedly encountered Administrative Reviews predicated upon disciplinary investigations – whether unit disciplinary investigations (UDI) or Military Police investigations – in which charges were either never laid or were laid, but eventually abandoned.  Not surprisingly, this misuse of an administrative mechanism established under Canadian Forces (CF) policy often tends to arise within the context of Op HONOUR-related administration.  Perhaps the better term to use in this context is maladministration.  I suspect that these errors are grounded in the misconception that, since it concerns Op HONOUR, key administrative law doctrines like procedural fairness, legitimate expectation, and abuse of process do not represent compelling concerns when CF statutory decision-makers wish to implement the Chief of the Defence Staff’s zero-tolerance policy regarding alleged sexual misconduct.

I take the position that an accusation of sexual misconduct is not sufficient justification for CF statutory decision-makers to adopt an approach that includes: a rush to judgement, abrogation of rights, a lack of procedural safeguards in the adjudication of blameworthy conduct, and closed-minded decision-making.

This Blog article focuses on the relationship between Administrative Review under DAOD 5019-2 and what could be termed ‘originating processes’ such as the Code of Service Discipline and resolution of harassment complaints under DADO 5012-0.  Disciplinary action under the Code of Service Discipline or administrative sanction under DAOD 5012-0 could, potentially, give rise to a subsequent Administrative Review to determine whether administrative action, up to and including compulsory release, is warranted.  However, the Administrative Review must not be used as a substitute process for either the disciplinary or administrative originating process.

An Administrative Review is neither a sufficiently robust investigative process, nor is it an adequate adjudicative process where competing versions of events must be weighed and determined.  An Administrative Review can be used where an ‘Approving Authority’ is required to decide upon the appropriate recourse arising from a previously-established performance or conduct deficiency, medical employment limitations (MEL), or even the end of Terms of Service.  However, the Administrative Review cannot be used to make the underlying adjudications.  It is not designed to do so.  For example, where a CF member is subject to MEL imposed by Director Medical Policy (D Med Pol), it is not Director Military Careers Administration (DMCA) who determines what the MEL should be.  DMCA determines what should be done in light of the MEL assigned by D Med Pol.  The same principle should apply to Administrative Reviews regarding allegations of misconduct.

The theory and approach that I describe in this Blog article differs from the approach adopted by DMCA, whose staff consistently assert that DMCA can make determinations in an Administrative Review based upon the civil evidentiary basis – i.e. proof on a balance of probabilities.  However, as I demonstrated in the previous article in this series, an Administrative Review is not actually equipped for even for this rudimentary task.

The CF has clearly articulated framework for investigating claims of sexual harassment under both the statutory disciplinary process and a policy-based administrative process.  Therefore, CF personnel have a legitimate expectation that these processes will be used, and that Administrative Reviews will not be used as an improper substitute.  Failure to use these processes, where CF statutory decision-makers intend to take action that affects the rights, interests, and privileges of CF members, amounts to an abuse of process.

In this relatively lengthy Blog article, I will discuss the two potential paths that may be followed by the CF chain of command upon receipt of a complaint concerning harassment.  As Op HONOUR-related matters continue to represent a significant number of Administrative Reviews, the focus of discussion will be on allegations of sexual misconduct.  To aid with discussion, I will present a fictionalized case that is predicated upon actual matters that have been brought to my attention.  This will offer a realistic scenario for the purposes of demonstrating the above-mentioned theory.  This scenario will describe the following steps in the process:

1. Receipt of a complaint;
2. Decision regarding the appropriate adjudicative ‘originating process’;
3. Conclusion of the adjudicative process (or not, as the case may be);
4. Eventual Administrative Review; and
5. The relevant legal issues governing the use of the Administrative Review in lieu of an ‘originating process’.

 

Complaint

These processes typically commence with a complaint.  If a complaint is made against an officer or non-commissioned member (NCM) of the CF alleging some form of harassment, including sexual harassment, key decision-makers in that officer or NCM’s chain of command must decide whether the matter will be addressed under the Code of Service Discipline or under the CF’s policy for the resolution of harassment complaints – DAOD 5012-0.  This decision represents an exercise of discretion.  The statutory decision-maker has a fairly broad range of discretion, but it is not absolutely unfettered.  It cannot be irrational, unreasonable, or arbitrary.

For the sake of the present discussion, we will assume the principal CF statutory decision-maker is the CO.  I am aware that many initial decisions under the Code of Service Discipline (i.e. the decision to commence an investigation, the decision to lay a charge) may be made by someone authorized by a CO to make such decisions.  Often the CO will not be directly involved in such decisions in order to preserve the CO’s jurisdiction for any subsequent summary trial.  However, for the purposes of the present discussion, we will focus on the CO as the principal statutory decision-maker.  This not only keeps the discussion relatively straight-forward, it also reflects many of the circumstances I have encountered in my practice.  Often, the CO is the key decision-maker, and many of the disciplinary and administrative regimes in the CF focus on the exercise of duties, powers, and functions of a CO.

There are several different routes by which a complaint could come to the attention of a CO.  It could be made directly to the CO.  It could be made to a person in a position of authority – e.g. a Senior NCO, a junior officer, or a senior officer – who subsequently informs the CO.  It could be brought to the attention of a person who, although not in a position of authority, subsequently communicates it to a CO either directly or indirectly.  It could be brought to the attention of the Military Police, who conclude that it does not represent criminal activity, and therefore refer the matter back to the chain of command.  For the sake of our present discussion, we will assume that a CO learns of allegations of sexual misconduct that could constitute harassment (which has a very broad definition under DAOD 5012-0) but do not appear to represent serious criminal activity.  (NB: It could represent a Code of Service Discipline offence even though it does not constitute criminal activity.)

The reason why I assume, for the sake of the present Blog article, that the complaint does not clearly describe criminal activity, is that such a complaint must necessarily be investigated by the Military Police.  If the complaint describes alleged criminal conduct of a serious, sensitive, or complicated nature – e.g. sexual assault, ‘historical’ sexual assault, or a criminal conspiracy – then the investigation would likely fall to the Canadian Forces National Investigation Service (CFNIS).  That would preclude the exercise of discretion by the CO, at least initially, regarding the appropriate investigative mechanism to use.

 

The Fact Scenario

For the purpose of the present discussion, we will assume that one or more complainants have brought to the attention of a CO complaints that describe alleged sexual harassment by one of the members of the unit.  So that no one accuses me of casting aspersions on a particular unit of the CF, let’s invent a fictional unit: The Royal Independent Flashlight Battery – the RIFB.  For the sake of discussion, let’s posit that Major Tom, the CO of the RIFB, receives complaints from two members of his unit that Master-Bombardier (MBdr) Lanyard has been making unwanted sexualized comments, and even sending sexualized texts, to the two complainants.

Let’s also assume that the allegations assert that MBdr Lanyard made at least some of these comments within the unit lines while he, and the complainants, were on duty.  I posit this specific factor as I am aware that some decision-makers – and perhaps even some legal officers in the Office of the Judge Advocate General (OJAG) – may be of the view that the CF Harassment Prevention and Resolution policy, and Op HONOUR, applies to the conduct of all CF personnel, Regular or Reserve, at all times, even when they are not on or at a Defence establishment, on duty, or doing anything that is connected to their military service.  I disagree with that assertion and, as much as I would enjoy addressing that issue here, it will have to wait for another Blog article.  The focus of the present article is on the improper use of AR as investigative and resolution mechanisms, so our scenario will include allegations that would clearly fall within the scope of DAOD 5012-0.

 

Duty to Act and Discretion to Choose Mechanism

When Major Tom receives the complaints, he has a positive duty to act.  That positive duty may be traced to a variety of sources, including article 4.02 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O):

(1) An officer shall:

a.  become acquainted with, observe and enforce:

i.  the National Defence Act,

ii.  the Security of Information Act,

iii.  QR&O, and

iv.  all other regulations, rules, orders and instructions that pertain to the performance of the officer’s duties;

b.  …;

c.  promote the welfare, efficiency and good discipline of all subordinates;

d.  …; and

e.  report to the proper authority any infringement of the pertinent statutes, regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service Discipline when the officer cannot deal adequately with the matter. [Emphasis added]

 

Additionally, since Major Tom has received what may be characterized as harassment complaints, the obligations of a ‘Responsible Officer’ (RO) under DAOD 5012-0 and the CF Harassment Prevention and Resolution Instructions, promulgated under DAOD 5012-0, will also trigger an obligation to act.

(Regrettably, although DAOD 5012-0 is publicly available to all readers of this Blog, the CF Harassment Prevention and Resolution Instructions are not publicly available.  It appears that they are available only on the Defence Wide Area Network or DWAN.  The DWAN is an intranet site accessible only by members of the CF with access to a DWAN account.  Consequently, the “Instructions” are not as notoriously publicised as the DAOD or the CDS’ Op HONOUR directives.  Therefore, you will have to take my word for it that article 3.5.2 of the Instructions places a positive obligation on RO to deal with harassment complaints appropriately and expeditiously in accordance with DAOD 5012-0 and the Instructions.)

I have not identified an obligation created under the Op HONOUR Operational Order (Op Order) or any of the subsequent Fragmentary Orders (Frag O) that have been issued by, or on behalf of, the CDS.  This is not because these orders are invalid or irrelevant (notwithstanding that the use of an Operations Order to convey an institutional policy is a special kind of ridiculousness).  It is because the obligation to act in such circumstances pre-dated Op HONOUR.  Indeed, over the past few years I have noticed the evolution of a myth that Op HONOUR was somehow necessary to create an obligation on the part of leaders and subordinates to act when they become aware of allegations of sexual misconduct.  Frankly, that obligation already existed under articles 4.02 and 5.01 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) and DAOD 5012-0.

Nor have I suggested that the Op HONOUR Op Order could be the basis of a charge under the Code of Service Discipline.  Consider what military judge Commander S. Sukstorf held in R v Lieutenant Banting, 2019 CM 2009:

[28]    CDS Op Order – Op HONOUR dated 14 August 2015. Op HONOUR is a cornerstone document that will become a legacy of its time. It has made more of an impression on leadership instituting overall change in behaviour than other documents of its kind. Although it is clear that Op HONOUR is written as an Operation Order, it is in substance a policy directive issued to the chain of command describing how it must handle reported incidents of misconduct and sets out tasks, including the chain of command’s responsibility to institute proactive and preventative policies. …

[29]    Notwithstanding this, the CDS Op Order – Op HONOUR is not the type of order envisaged under subsection 129(2) [of the NDA]. As designed, it is not intended to be relied upon as the basis of a charge. Most noticeably, Op Honour does not provide parameters nor does it create offences. In short, Op HONOUR and its FRAGOs set out clear direction to the chain of command on how to deal with issues of inappropriate conduct in accordance with extant policy and the law. It does not establish new law or policies.

Major Tom has discretion regarding how he deals with the harassment complaints.  If a CO believes that these complaints constitute significant disciplinary misconduct, the CO could direct that a unit disciplinary investigation (UDI) be conducted in accordance with Chapter 106 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), specifically, articles 106.02 and 106.03, in order to obtain evidence upon which a decision could be made regarding the laying of a charge or charges under the Code of Service Discipline.

Alternatively, Major Tom could choose to direct an harassment investigation under DAOD 5012-0 and the Harassment Prevention and Resolution Instructions.

There is no ‘magic formula’ for making such a decision – and the use of rote mantras, like the description DMCA repeatedly uses in boiler-plate Administrative Reviews concerning determinations on a balance of probabilities – would be of no assistance.  It is an exercise of discretion.  It must therefore be exercised in a manner consistent with the empowering legislation.  It must be rational, reasonable, and driven by relevant factors, policy and law.  It requires the statutory decision-maker – because that is what Major Tom is – to exercise judgment based upon his experience and training.  Unfortunately, the OJAG and Canadian Forces Military Law Centre still has not produced a ‘statutory decision-makers course’ or similar training, so it is unlikely that Major Tom will have received much formal training in key principles of statutory decision-making.  However, the RIFB unit legal advisor could be of assistance.

The likelihood of receiving such assistance diminishes precipitously if Major Tom does not seek such advice.  Unfortunately, some CO either choose not to consult their legal advisor or that option does not occur to them.  If the CO chooses to consult his unit legal advisor, one would hope that the CO is forthcoming with all of the relevant facts.  While rare, some statutory decision-makers may be inclined to withhold key information from their legal advisors in the OJAG with a view to ‘shaping’ the resulting legal advice.  Experienced legal officers can tend to spot such disingenuous requests.  Inexperienced legal advisors might not.  And, having sought legal advice in an open and frank manner, one would also hope that the CO actually heeds the advice.  And, hopefully, the advice would be what the decision-makers needs to hear, and not simply what he wishes to hear.

Bear in mind as well that, even if Major Tom elects to direct that a UDI will be conducted, he is not precluded from subsequently choosing to resolve the complaints under DAOD 5012-0 and the CF Harassment Prevention and Resolution Instructions.  After all, most UDI tend to be conducted relatively expeditiously – much more expeditiously than the majority of Military Police investigations.  Upon completion of the UDI, Major Tom could conclude that the matter is not serious enough to warrant prosecution under the Code of Service Discipline.  He might receive legal advice that the misconduct does not constitute a Code of Service Discipline infraction.  I hasten to add that, if the unit legal advisor were to conclude that the evidence gathered in the UDI was insufficient to support a Code of Service Discipline charge, the complaints might also be insufficient to constitute a valid complaint under DAOD 5012-0, since contravention of DAOD 5012-0 would, ostensibly, typically constitute an offence under section 129 of the National Defence Act (NDA).

However, it might be that, even though the actions attributed to MBdr Lanyard could constitute a contravention of DAOD 5012-0, they might not rise to the level, in Major Tom’s judgment, that requires punishment under the Code of Service Discipline.  Again, under the current politicized environment of the CF and the CDS’ zero-tolerance policy toward sexual misconduct, it is difficult to conceive of an example of sexual harassment that would not also warrant Code of Service Discipline sanction.  However, ultimately, the CO has the discretion to proceed under the Code of Service Discipline or to act in accordance with his obligations as RO under DAOD 5012-0 and the CF Harassment Prevention and Resolution Instructions.  It is also possible for Major Tom to act under both regimes, and I expand upon that possibility below.

Ultimately, the key factors at this stage are as follows:

1. If a CO receives a complaint of sexual harassment or misconduct, the CO must act to address the complaint;
2. The CO has discretion to act under the Code of Service Discipline or under DAOD 5012-0 – but the CO must act;
3. The CO must act reasonably, rationally, in good faith, and in accordance with the legislation and/or policy that empowers the CO; and
4. Regardless of which route the CO chooses to follow, he or she is not absolutely precluded from changing the course of action, provided it is reasonable, rational, done in good faith, and consistent with the relevant legislated and policy regime.

 

Tension Between Disciplinary and Administrative Regimes

The CO would, generally, be precluded from using both the disciplinary and administrative regimes simultaneously.  This does not mean that Major Tom is absolutely precluded from taking some precautionary administrative action if he chooses to pursue a disciplinary investigation.  Major Tom could, reasonably, take appropriate action to separate MBdr Lanyard from the complainants within the workplace.  In extreme circumstances, MBdr Lanyard could be relieved from performance of military duty.[2]  However, that measure should only be used where no lesser precaution would be sufficient.  Before resorting to such a measure, Major Tom should seek advice from his legal advisor.

Prior to any determination of guilt or culpability under the appropriate adjudicative regime, Major Tom’s actions should not reflect a presumption of MBdr Lanyard’s guilt.  For example, it would be problematic for the CO to issue MBdr Lanyard with a Notice of Intent (NoI) to Recommend his Release (article 19.36 of the QR&O) and an NoI to place MBdr Lanyard on Counselling and Probation under DAOD 5019-4 prior to any investigation and adjudication of the complaints.  That would be unreasonable and, since a statutory decision-maker is required to act reasonably, such action would be contrary to fundamental principles of procedural fairness.

A key conceptual basis of judicial review of statutory decision-making is grounded upon the principle that unfair and unreasonable actions by a statutory decision-maker amount to unlawful actions by that decision-maker.[3]

Moreover, if the CO opted to pursue a disciplinary investigation first, significant administrative action or a remedial measure such as C&P would interfere with the disciplinary process initiated by the same chain of command.

The principal reason why disciplinary and administrative investigations are problematic if conducted simultaneously is that various rights, interests, and privileges will come into conflict and this tension would jeopardize the effectiveness and utility of one or both of the investigations.

When a disciplinary or criminal investigation is conducted – whether by civilian police, the CFNIS, other Military Police, or a unit investigator – the subject of the investigation (i.e. the ‘suspect’) has a right to remain silent when the investigator seeks to interview the subject.[4]  The subject cannot be penalized for exercising this right.[5]  Both of these principles are recognized under section 7 of the Charter, which states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The ‘subject’ of a disciplinary or criminal investigation need not offer any explanation to an investigator and, understandably, any defence counsel contacted by that same ‘subject’ will likely advise him or her to exercise his or her right to silence.  In a criminal or disciplinary process, the opportunity for ‘full answer and defence’ does not arise during a criminal or disciplinary investigation.  The expectation with any such investigation is that, if a charge or charges are laid, the accused will have an opportunity to make full answer and defence in the eventual criminal or disciplinary proceeding (e.g. a summary trial or court martial).  There is a marked separation between investigation and adjudication, and the investigator is not the adjudicator.

Harassment investigations, like other inquisitorial administrative investigations, do not typically give rise to a right to silence.[6]  That is because, ostensibly and generally, they purportedly do not have the potential to impact the life, liberty, or security of the person (which is protected under section 7 of the Charter).  Arguably, some administrative processes may give rise to such protections; however, as a general rule, the administrative processes under the DAOD 5019 series do not.  Instead, the principal right that is typically the focus of administrative proceedings is the procedural right to make informed representations to an unbiased decision-maker.

Consequently, the rights in administrative processes can come into tension with rights in disciplinary processes.  MBdr Lanyard’s right to silence in a disciplinary investigation can be adversely affected by his right to make informed representations in an administrative process.  This is why it can be problematic to try to combine the two processes.  As the right to make informed representations under an administrative process conflicts directly with the right to silence in a disciplinary or criminal investigation, the general guiding principle regarding the selection of the appropriate process recommends that, if the chain of command wishes to pursue a disciplinary investigation, it should precede any administrative investigation. (See Phillips v Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 SCR 97.)

Presumably, if Major Tom wishes to explore the possibility of addressing the alleged misconduct under the Code of Service Discipline, he will choose to direct that a disciplinary investigation should be conducted first.  This would not preclude the possibility of a subsequent harassment investigation and resolution under DAOD 5012-0 once the disciplinary process is concluded.

If Major Tom proceeded first with an harassment investigation, a possible Code of Service Discipline investigation would not be absolutely foreclosed; however, if MBdr Lanyard made incriminating statements (or, indeed, any statements that he was compelled to make) this could prove problematic to any subsequent disciplinary investigation conducted by someone who is not a skilled and experienced investigator.  The potential for the UDI to include inadmissible evidence (e.g. involuntary statements by the accused) increases significantly in such a circumstance.  That is why most CF statutory decision-makers are well-advised to proceed first with a disciplinary investigation if they anticipate taking disciplinary action.  Where they wish to proceed with administrative action while a disciplinary investigation is being conducted it would be prudent to seek the advice of their unit legal advisor (and, I suggest that it would be imprudent not to do so).

 

Disciplinary Investigation

Unlike the delegation of powers of trial and punishment[7], or the authorization to lay charges[8], there is no express delegation or authorization necessary for someone to conduct a UDI.  Often, persons who are authorized to lay charges will also conduct UDI.  A CO might issue general written direction to unit personnel concerning who will conduct UDI.  In most units, UDI will be conducted by senior NCOs or warrant officers, and, where the subject of the investigation is an officer, the UDI might be conducted by an officer of equal or higher rank.

The purpose of the UDI is to collect evidence that will assist with a series of decisions, including:

• Was there a contravention of the Code of Service Discipline?
• Which, if any, charges could be laid under the Code of Service Discipline?
• Is there admissible evidence for each element of the proposed charge or charges?
• Is it in the public interest to proceed with a charge under the Code of Service Discipline?

The first decision-maker in this process is the investigator, who will consider a variety of questions, including:

• Where can relevant evidence be found?
• Who should be interviewed?
• In what sequence should evidence (including interviews) be sought?
• Based upon the evidence obtained, what, if any, charges can be supported?

Where the investigator is not the charge layer, the investigator will generally make recommendations regarding potential charges that could be laid.  Where the investigator is the potential charge layer, the investigator must ask him/herself not only whether there is sufficient evidence to establish the elements of the charge or charges he or she is considering, but whether he or she actually believes that the Code of Service Discipline offence(s) occurred.  This is the basis for an ‘actual and reasonable belief’ that a Code of Service Discipline offence occurred.

The investigator must consider whether he or she will seek to interview the subject of the investigation (the ‘suspect’ or potential accused).  Typically, any such attempt will arise after the investigator has gathered all other relevant evidence so that the investigator can put meaningful questions to the subject.  As I mention above, the subject of the investigation has a right to remain silent and decline such an interview.  (In most UDI and MP investigations, this will invariably be described as ‘refusal’.  The subtle connotative distinction is nevertheless distinctive.)

When an investigator interviews a subject (i.e. suspect) the investigator is under no obligation to disclose any evidence obtained in the investigation.  The investigator might choose to inform the subject of some of the evidence in order to invite the subject to offer an explanation.  A common investigative tactic is to offer partial information to the subject with the intent of encouraging the subject to offer a broader explanation and thereby obtain a statement from the subject.  This statement can then be compared to any subsequent statements or testimony the subject might make.  If the prior statement differs from a subsequent statement or testimony it would then take on the dimension of a ‘prior inconsistent statement’.

The key factor to remember, however, is that any interview with an investigator does not represent the subject’s (accused’s) opportunity to provide a full answer and defence.  That arises later, during the adjudicative process (whether at summary trial or court martial) if one is, in fact, held.

A charge layer must seek legal advice prior to laying a charge where: (1) the offence cannot be tried by summary trial by virtue of article 108.07; (2) the offence is alleged to have been committed by an officer or a non-commissioned member above the rank of sergeant; (3) the offence is one that would give rise to a right to elect to be tried by court martial; or, (4) the offence is alleged to have been committed more than six months before the day on which the charge would be laid.[9]  In my experience, most charge layers will seek legal advice from the unit legal advisor even if one of these conditions precedent does not arise.

 

Major Tom Chooses to Pursue a Disciplinary Investigation

So, let’s assume that Major Tom assigns Captain Keen to conduct a UDI.  Let’s also assume that Captain Keen recently successfully completed her Presiding Officer Certification Training and is aware of how to conduct an efficient and effective UDI.  Let’s assume that Captain Keen completes the UDI in a couple of weeks.  She interviews the two complainants and three additional witnesses.  She obtains written statements from these witnesses.  She obtains copies of text messages allegedly sent by MBdr Lanyard.  She obtains additional documents that, on their face, establish that MBdr Lanyard had participated in briefing regarding the purpose and objectives of Op HONOUR.

Captain Keen even requests (NB: requests) that MBdr Lanyard participate in an interview.  (As an aside, based upon my experience, Captain Keen will likely characterize it, both to MBdr Lanyard and in her report, as a ‘voluntary interview’ – as if the express use of such nomenclature demonstrably establishes that the interview is ‘voluntary’, as opposed to basing such a determination on all the relevant contextual factors.)  Presumably, Captain Keen will also caution MBdr Lanyard about his ‘right to silence’ (under section 7 of the Charter) and his ‘right to counsel’ (under section 10 of the Charter).  MBdr contacts the Defence Counsel Services’ 24-hour contact number for legal advice, and the intrepid defence counsel who answers the phone informs him of the same thing I would likely state:

“People don’t generally talk investigators out of charges during a UDI, but plenty of people have talked themselves into charges.  Here’s my advice: respectfully decline the interview.”

Captain Keen completes her investigation, types up her analysis, conclusions, and recommendations, and submits the UDI to the unit Adjutant.  The Adjutant then sends it off to the unit legal advisor, Major Requin.  Being the sort of legal officer that I was ‘back in the day’, Major Requin prides himself on providing timely and effective legal advice, so let’s assume that he provides his comprehensive written legal advice on the UDI and potential charges within 3 days.  (NB: For the statutory CF decision-makers who are unaccustomed to this level of service, I suggest that it might be time for a frank discussion with your unit legal advisor.)

Now here’s an interesting aspect of the dynamic in this process: The legal advice that Major Requin provides constitutes a solicitor-client confidence.  Unlike the evidence collected in the UDI (and the UDI report itself), if a charge or charges are laid against MBr Lanyard, the legal advice should not be disclosed to MBdr Lanyard.  If a charge is not laid against MBdr Lanyard, he may never see the contents of the UDI prepared by Captain Keen.  It need only be disclosed if a charge or charges are actually laid.  And, regardless of whether charges are laid, MBdr Lanyard will never know what Major Requin advised.  He won’t know what Major Requin advised regarding which charges could be laid, or if the legal advice recommended against laying charges.  He won’t know the extent to which the Adjutant or Major Tom followed (or didn’t follow) Major Requin’s advice.  MBdr Lanyard will only know whether or not charges are laid.

Depending upon the subsequent actions by his chain of command, MBdr Lanyard may spend several days, or even weeks, not knowing what the chain of command will do.  He will only be aware that a complaint was made against him, and that a disciplinary investigation was conducted, because Captain Keen asked to interview him and ‘read him his rights’, signalling that a disciplinary investigation was being conducted.  Thus, MBdr Lanyard could spend several weeks with the ‘Sword of Damocles’ above his head, wondering what will be done to him.

And remember: at this stage in the proceedings, he has yet to have a fair opportunity to offer ‘full answer and defence’.

 

Laying and Disposition of Charges

If a charge is laid, it will be referred to an officer having powers of trial and punishment.  It may not necessarily be a CO.  However, if a matter is referred to court martial, it will typically be referred to a CO.  We must also remember that a CO does have discretion at this point whether and how the CO will proceed with the charge.[10]  The CO may choose not to proceed with either a summary trail or a court martial.  Even where the charge is laid by investigators with the CFNIS, the CO has the discretion not to proceed.  The CO must reduce his reasons to writing and provide them both to the CFNIS charge layer and the officer to whom the CO is responsible for matters of discipline.[11]

When disposing of charges, the CO (or other presiding officer is obliged to seek legal advice from the unit legal advisor where: (1) the alleged offence is not authorized to be tried by summary trial under article 108.07; (2) the offence is alleged to have been committed by an officer or a non-commissioned member above the rank of sergeant; (3) the alleged offence would give rise to a right to elect to be tried by court martial; or, (4) the offence is alleged to have been committed either  more than six months before the day on which the charge was laid, or more than one year before the day on which a summary trial would commence.[12]  Again, in my experience, most CO and other presiding officers will seek legal advice from their unit legal advisor even if these conditions precedent do not arise.

If a CO or other presiding officer decides not to act on this advice, the CO or other presiding officer is obliged, within 30 days, to state his or her decision and the reasons for the decision, in writing and provide a copy of the decision and the reasons to the officer to whom he or she is responsible in matters of discipline and to the legal officer.[13]  The expectation for this requirement typically arises where the unit legal advisor advises against laying one or more charges.

At this stage in the process, we must remember certain key factors:

• The subject (or accused) has not yet been given an opportunity to offer full answer and defence;
• The opportunity to consent to an interview is not the same as an opportunity to offer full answer and defence;
• If a charge layer chooses not to lay a charge, the subject will likely not be informed of that directly. He or she will be left to infer that outcome based upon the absence of a charge or charges;
• The subject certainly does not benefit from reviewing the advice from a unit legal advisor. And, if a CO chooses not to proceed with a charge laid by the CFNIS or chooses not to follow the advice of a unit legal advisor, the subject is not provided a copy of the CO’s reasons for such decisions.

A CO has reasonably broad discretion.  Even if a CO chooses to proceed with a disciplinary course of action, and orders the conduct of a UDI, a CO may still abandon the disciplinary process.  Where the disciplinary process was initiated due to a complaint of harassment, the CO would then be obliged to proceed with Harassment Resolution under DAOD 5012-0.

There are any number of reasons why a CO might choose to abandon a disciplinary process.  The UDI may disclose evidence that the ‘sexualized behaviour’ that formed the basis of a complaint was part of a consensual exchange between the complainant and the subject of the investigation.  As such, the conduct, though possibly inappropriate in the workplace, would not constitute harassment.  (I note tangentially, in our scenario, if Major Tom concludes that such consensual action was inappropriate, he should reasonably conclude that it was inappropriate for all parties involved, not just MBdr Lanyard.)

It could be that the evidence disclosed in the UDI causes the CO to conclude that it was sufficiently minor that Code of Service Discipline action would not be warranted, although some form of resolution would be appropriate.

It could be that the unit legal advisor advised that the evidence gathered within the UDI was insufficient to support a charge under the Code of Service Discipline.

And this gives rise to a recurring issue, which should be of concern to anyone who expects that the exercise of statutory powers ought to be governed by the rule of law.  When a unit legal advisor provides advice regarding whether charges would not be supported by the evidence in the UDI, the legal advisor does not weigh the evidence in the manner that a presiding officer must.  The threshold for laying a charge under the Code of Service Discipline is not the criminal standard of ‘beyond a reasonable doubt’.  The threshold for proceeding with a prosecution is ‘reasonable prospect of conviction’.  There must be some admissible and reliable evidence to establish each element of the alleged offence.  While the legal advisor won’t weigh the evidence in the same way that the presiding officer must, the legal advisor will turn his or her attention to the quality of the evidence.  What is vital to understand at this point is that the threshold for a reasonable prospect of conviction is lower than the ‘balance of probabilities’ that defines the civil burden of proof.

Consequently, if the evidence would not sustain a ‘reasonable prospect of conviction’ it is highly unlikely that it would sustain a determination of blameworthy conduct based upon the civil burden of proof based upon clear, cogent, and convincing evidence.

I contend that it would be improper for a CO to opt to rely on administrative processes either instead of the Code of Service Discipline, or as a substitute for the Code of Service Discipline.  Moreover, I contend that, particularly under Op HONOUR, that is precisely what has been transpiring in several circumstances.

 

Opting for an Administrative Process

A CO may choose to opt for an administrative process.  As I outline above, the CO may decide to do so when he or she first receives a complaint, or may choose to do so even if a disciplinary investigation is initially pursued.  The CDS’ policy direction under Op HONOUR clearly asserts that prior disciplinary action is not a condition precedent for administrative sanction.  This is reflected in the Sexual Misconduct Incident Management Decision Tree (“Decision Tree”).  The Decision Tree is designed as a flow-chart to guide statutory decision-makers in administrative decision-making where sexual misconduct is alleged.  As I have highlighted in a previous blog, the Decision Tree represents closed-minded decision-making.  Based upon its construction, it presumes that all allegations of sexual misconduct are founded and administrative sanction will always be required.  Despite my earlier criticism of this closed-minded decision-making framework, the flawed Decision Tree has not been amended.

While prior disciplinary action is not required for a CO to proceed with administrative action to address sexual misconduct, it does not excuse the CO from using a proper administrative investigative and adjudicative mechanism.  Where that administrative action is severe (e.g. compulsory release), it also begs the question: if the misconduct was so improper that it warrants severe administrative action, why did it not warrant disciplinary action?

I have encountered several circumstances arising in the context of Op HONOUR in which the chain of command has either opted not to use the Code of Service Discipline (i.e. no charges are laid under the Code of Service Discipline), or has abandoned the Code of Service Discipline prior to the adjudication of the allegations before the appropriate military tribunal.  In my experience, when a CO opts to proceed with an administrative process, it often leads to an Administrative Review under DAOD 5019-2.  However, where it proceeds to Administrative Review without first exhausting the Code of Service Discipline and/or the Harassment Prevention and Resolution processes, reliance upon Administrative Reviews without a prior ‘originating process’ is inherently problematic and, worse, represents an abuse of process.

Where a UDI is completed, but no charges are laid, both the complainant and the subject/respondent are left to speculate about what a CO plans to do.  Speculation and doubt do not engender a positive effect on morale.  Unfortunately, in my experience, all too often, decisions ‘not to proceed’ are communicated by an absence of action rather than by an express statement that a decision-maker will not proceed under the Code of Service Discipline.  In other circumstances, the chain of command will discuss the decision with the complainant but provide no information to the subject/respondent.

Where a CO receives a complaint of sexual harassment but chooses not to proceed under the Code of Service Discipline, the CO is left with the obligation to act under an administrative regime, specifically DAOD 5012-0.

One need only review the various periodic Op HONOUR Progress Reports that are published by the CF to observe that the frequency of administrative actions to address Op HONOUR ‘violations’ markedly exceeds the frequency of prosecution of such ‘violations’ under the Code of Service Discipline.

One might suggest that the reason for the greater number of administrative consequences, compared to disciplinary prosecution, is because the burden of proof in Code of Service Discipline proceedings is the criminal standard (“beyond a reasonable doubt”) whereas the burden of proof in administrative proceedings is the civil standard (“balance of probabilities”).  After all, the oft-repeated boiler-plate mantra in Op HONOUR-related Administrative Reviews asserts this distinction (while ignoring the additional qualitative requirement that evidence of misconduct, even in administrative proceedings, must be clear, cogent, and compelling: DAOD 5019-2, para 5.6 and F.H. v McDougall, [2008] 3 SCR 41).  Thus, administrative action may be more common due to the difference between the respective evidentiary thresholds: a finding of blameworthy conduct under the lower civil burden of proof is more likely than under the higher disciplinary burden of proof.

Perhaps.

However, based upon both the CDS’ Progress Reports, and my own experience, what is noteworthy is that, in many cases, prosecution under the Code of Service Discipline is not even attempted.  It is not a question of a CF member being found ‘not guilty’ in the disciplinary process based upon the existence of a ‘reasonable doubt’ and being found ‘culpable’ (or ‘responsible’) in an administrative process based upon a balance of probabilities.  It appears that what is often happening is that CF statutory decision-makers are choosing not to proceed under the Code of Service Discipline and opting instead to ‘punish’ alleged wrong-doing – because that is what the true intent appears to be – under the administrative framework.  Often this punishment takes the form of a compulsory release following the conduct of an Administrative Review.

If that is what is actually happening – and I suggest that there is evidence to support such a conclusion – that represents a problematic policy choice.  I have repeatedly encountered circumstances in which CF statutory decision-makers have elected to pursue significant administrative action against a CF member after either abandoning disciplinary action or, worse still, after failing even to attempt to take any disciplinary action.  Evidently, the alleged misconduct was so significant that it warranted compulsory release, but not sufficiently serious to warrant disciplinary action.

 

Major Tom Abandons the Disciplinary Process

For the purposes of our present discussion, let’s assume that, upon receipt of Captain Keen’s UDI report, Major Tom chooses not to lay charges under the Code of Service Discipline.  I offer this as our scenario for a variety of reasons: (a) the CDS’ policy direction under Op HONOUR clearly asserts that prior disciplinary action is not a condition precedent for administrative sanction; (b) I have encountered several circumstances in which the chain of command has either opted not to use the Code of Service Discipline, or has abandoned the Code of Service Discipline, regarding complaints under Op HONOUR; and (c) it offers us the opportunity to examine the impact and utility of Administrative Review when neither the Code of Service Discipline nor the Harassment Prevention and Resolution processes are used prior to the Administrative Review.

Given that Major Tom has chosen to abandon the disciplinary process, one would hope that, since MBdr Lanyard and the complainants were aware that a UDI was conducted, Major Tom would inform them of his decision not to proceed under the Code of Service Discipline.  Otherwise, both the complainants and MBdr Lanyard would be left to speculate about what the CO planned to do.

Having concluded that he will not proceed under the Code of Service Discipline, Major Tom is still left with a positive obligation to act to resolve the complaints.  If he chooses not to proceed under the Code of Service Discipline, even though his initial instinct or exercise of discretion was to order the conduct of a UDI, then he is left with the obligation to act under an administrative regime, specifically DAOD 5012-0.

 

Major Tom Opts for Administrative ‘Punishment’

Let’s assume that Major Tom does what many CO appear to do – he does not expressly tell MBdr that he has abandoned the Code of Service Discipline process in favour of administrative measures.  The first that MBdr Lanyard learns that he might not face a Code of Service Discipline charge is when the Major Tom issues him with a Notice of Intent (NoI) to Recommend Release under QR&O article 15.36.  Although some CO forget to use this step, I will give Major Tom the benefit of the doubt.  This NoI will inevitably lead to an Administrative Review by DMCA.

MBdr Lanyard will thus find himself in a circumstance familiar to many CF personnel: He won’t know what his CO has in store for him.  Although it appears that his CO has decided that he will not proceed under the Code of Service Discipline, MBdr Lanyard won’t know, definitively, that Major Tom has made this decision, at least, not initially.  Instead, MBdr Lanyard will be left to infer that Major Tom won’t pursue the process under the Code of Service Discipline when Major Tom begins to take administrative action against MBdr Lanyard.  Even then, MBdr Lanyard may believe that disciplinary action might still follow.  And MBdr Lanyard won’t know why Major Tom has made this decision.

If Major Tom follows the example of other CO I have encountered, he will choose to take administrative action based upon Captain Keen’s UDI report, even though, presumably, that report was compiled for the purpose of taking disciplinary action.  Major Tom might then direct one or more of the following in addition to serving MBdr Lanyard with the NoI to Recommend Release:

1. He could order MBdr Lanyard not to attend unit lines for an indefinite period of time;
2. He could remove MBdr Lanyard from career-progression training for which he was previously scheduled; and
3. He could prohibit MBdr Lanyard from attending any training within the unit.

If Major Tom’s approach is similar to many CO whose decisions I have encountered in the past months, it is possible – even likely – that he would have taken the action described in points 1, 2, and 3 above before Captain Keen even began her investigation.  In other words, Major Tom has already concluded that MBdr Lanyard is at fault.  He has accepted the allegations as ‘proven’.  And, since ‘guilt’ in a disciplinary proceeding and ‘fault’ in an administrative proceeding is often viewed as synonymous to many CF decision-makers, that can be problematic.

And remember, even once Captain Keen completes her investigation, all there is upon which to base such action is an untested and unproven UDI report during which MBdr Lanyard opted, quite reasonably, to exercise his right to remain silent.  When Captain Keen requested an interview for the purposes of the UDI, MBdr Lanyard would have been under the impression that: (a) any statement he made could be used against him; and, (b) if charges were laid, he would eventually have a right of full answer and defence in the Code of Service Discipline proceeding.

The astute among you will likely have noticed something missing from the list of actions taken by Major Tom.

There’s no indication that he ordered an harassment investigation under DAOD 5012-0 and the Harassment Prevention and Resolution Instructions.  Under the circumstances I have described, Major Tom would likely be the appropriate Responsible Officer (RO) under DAOD 5012-0 and the Harassment Prevention and Resolution Instructions.  As RO, if he opts not to proceed under the Code of Service Discipline, he has a positive obligation to resolve the harassment complaints under the regime established under DAOD 5012-0.

Instead, Major Tom has opted to do what many actual CO and RO in the CF appear to be doing with increasing frequency: Major Tom is using the UDI report as a substitute for an harassment investigation, even though it was: (a) manifestly not conducted under the CF Harassment Prevention and Resolution Instructions; (b) conducted under a distinctly different investigative regime, giving rise to different expectations by the respondent; and, (c) did not offer the ‘respondent’ (to use the terminology from DAOD 5012-0 and the CF Harassment Presentation and Resolution Instructions) an opportunity to make full answer and defence.

Instead, even though Major Tom chose not to pursue the matter under the Code of Service Discipline – which is within his discretion – he is, in effect, treating the content of the UDI as ‘proven’.  The problem is that there was no actual adjudication of the evidence gathered by the UDI.  The purpose of the UDI was to collect evidence upon which a charge layer (and the legal advisor) could evaluate whether there were grounds to lay a charge under the Code of Service Discipline.  It does not constitute a proper or fair adjudication of that evidence.

Now, you may be thinking: “Come on Fowler, MBdr Lanyard would be able to offer ‘full answer and defence’ in the Administrative Review.”

But would he?

The problem that I highlighted in the previous blog in this series is that, absent an adjudication under the Code of Service Discipline or a proper harassment investigation, an Administrative Review is a deficient investigative mechanism and lacks sufficient safeguards and capacity to permit a decision-maker to evaluate and weigh evidence of blameworthy conduct where there is contested evidence.

Let’s examine this in the context of MBdr Lanyard’s circumstances.  Even though Major Tom is acting on a UDI report, no charges were laid as a result of the UDI.  The threshold for laying a charge under the Code of Service Discipline is an ‘actual and reasonable belief’.  This is a lower threshold than a ‘balance of probabilities’. A charge layer need only have some evidence of each element of a Code of Service Discipline offence and an actual and reasonable belief that the offence occurred in order to lay a charge.  The charge layer does not weigh the evidence or make determinations of credibility.  Although the threshold for pursuing a prosecution – a ‘reasonable prospect of conviction’ – is qualitatively more robust than an ‘actual and reasonable belief’, it is still lower than the civil burden of proof.

Yet no charges were laid against MBdr Lanyard.  Clearly, in the politically charged atmosphere of the CF relating to sexual misconduct, a decision not to proceed under the Code of Service Discipline would not have been based upon the conclusion that it would not be in the public interest to proceed with the charge.  Therefore, it must have been based upon evidentiary deficiencies, even if Major Tom pointedly refuses to justify why he will not pursue a disciplinary course of action.  After all, there are no provisions under the Code of Service Discipline that obliges him to justify this decision to MBdr Lanyard.

Potentially, DMCA might take the position that the Administrative Review represents MBdr Lanyard’s opportunity to offer ‘full answer and defence’ to these allegations.  However, I contend that an Administrative Review is not the proper vehicle for such an inquiry and determination:

1. It is manifestly an inadequate investigative mechanism;
2. The Administrative Review mechanism is clearly ill-suited to making determinations of credibility; and
3. An Administrative Review is not a substitute for an harassment investigation and the resulting determination under that regime. The CF has expressly prescribed a process under DAOD 5012-0 and the Instructions.  If CF decision-makers decline to proceed with a Code of Service Discipline proceeding, then MBdr Lanyard has a legitimate expectation that the prescribed administrative process would be used in the adjudication and resolution of the complaints against him.

 

Legitimate Expectation

Legitimate expectation is a doctrine of fairness.  One of the more recent articulations of this doctrine was provided by Justice LeBel, writing for a unanimous Supreme Court of Canada in Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 [Agraira]:

The particular face of procedural fairness at issue in this appeal is the doctrine of legitimate expectations. This doctrine was given a strong foundation in Canadian administrative law in Baker, in which it was held to be a factor to be applied in determining what is required by the common law duty of fairness. If a public authority has made representations about the procedure it will follow in making a particular decision, or if it has consistently adhered to certain procedural practices in the past in making such a decision, the scope of the duty of procedural fairness owed to the affected person will be broader than it otherwise would have been. Likewise, if representations with respect to a substantive result have been made to an individual, the duty owed to him by the public authority in terms of the procedures it must follow before making a contrary decision will be more onerous. (Agraira, para 94)

Justice LeBel explained that the distinguishing characteristic of a legitimate expectation is that it arises from some conduct of the decision-maker, or some other relevant actor, and could be expressed by official practice or other assurance that certain procedures will be followed as part of the decision-making process. In particular, the existence of administrative rules of procedure may give rise to a legitimate expectation that such procedures will be followed. This practice or conduct must be clear, unambiguous and unqualified.

Justice LeBel was building upon the seminal case of Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker], per Justice L’Heureux-Dubé, in which the Supreme Court of Canada affirmed that the doctrine of legitimate expectation is part of the doctrine of fairness.  While it does not create substantive rights – i.e. the right to a specific outcome – it does oblige statutory decision-makers to follow a certain procedure if there is a legitimate expectation that the procedure will be followed.  Failure to do so is a breach of fairness. (Baker, 839 to 840).

 

Abuse of Process

Abuse of process is also related to the doctrine of fairness.  It is a flexible doctrine that is intended to ensure the interests of justice are met and, where proceedings are unfair to the point that they are contrary to the interests of justice, those proceedings can be barred by the courts: Toronto (City) v C.U.P.E., Local 79, 2003 SCC 63 [C.U.P.E.], para 35.  The doctrine of abuse of process engages the inherent power of the courts to prevent the misuse of procedure, in a way that would bring the administration of justice into disrepute: C.U.P.E., para 37.

Sometimes, the translation of such doctrine for use by administrative tribunals, rather than the courts, can lead to some confusion.  And make no mistake, even if legal officers at Director of Law – Military Personnel, characterize an Administrative Review as an “internal” process (whatever that actually means), when DMCA makes a determination in an Administrative Review, DMCA is functioning as an administrative tribunal as defined under the Federal Courts Act.  The point of the doctrine is that the proper process must be used, and must be used properly, otherwise, whatever authority has a supervisory function – whether an administrative tribunal or a court – can step in to correct the abuse of process.

Sometimes, this doctrine will arise in the context of res judicata – that an issue or matter has already been adjudicated by a court (or tribunal) of competent jurisdiction and, therefore, the matter may not be pursued further by the parties before a different tribunal.

Where CF decision-makers expressly decline or fail to follow prescribed investigative and adjudicative processes, I contend that the inverse arises. However, this can still give rise to an abuse of process.

I contend that, where CF statutory decision makers fail to use a process – whether created by legislation or policy – which CF members have a legitimate expectation will be used, the failure to do so will tend to give rise to an abuse of process. The integrity of the administration of the affairs of the CF (which I would characterize as administration of justice) is undermined when CF decision-makers fail to satisfy CF members’ legitimate expectation that one of the proper, prescribed, investigative and adjudicative mechanisms will be used, and opt instead to use a process that is clearly ill-suited for the required adjudication.

Parliament has established the Code of Service Discipline under the NDA.  This legislated regime is intended to address breaches of discipline by officers and NCM of the CF.  The constitutionality of a separate system of ‘military justice’ has repeatedly been upheld by the Supreme Court of Canada, including recently (R v Stillman, 2019 SCC 40).  Assuming that a UDI presents sufficient evidence to establish a ‘reasonable prospect of conviction’ (a lower evidentiary standard than ‘balance of probabilities’) and the investigator has an actual and reasonable belief that a Code of Service Discipline offence occurred, there would presumably be sufficient evidence to lay one or more charges under the Code of Service Discipline.

A UDI is conducted with the intent of gathering evidence to support a disciplinary prosecution. Where CF decision-makers assert that a UDI contains sufficient evidence to warrant significant administrative action, then surely it would warrant disciplinary prosecution.

Why then, in the context of Op HONOUR, are disciplinary investigations being used increasingly to justify administrative sanctions and not disciplinary prosecutions?  Specifically, what appears to be happening is that allegations of wrong-doing – characterized as ‘Op HONOUR violations’ – are investigated by a disciplinary investigation producing either a Military Police Investigation Report (MPIR) or a UDI Report.  However, charges are either not being laid or are not pursued.  Instead, once the disciplinary investigation is completed, it is then used in the context of an Administrative Review to justify significant administrative sanctions, up to, and including, compulsory release under an ‘adverse’ release item.  And these decisions are made based upon an assertion that a ‘thorough’ disciplinary investigation (which may very well not include any meaningful statements by the subject of the investigation) represents facts established “… on a balance of probabilities …” notwithstanding a marked absence of meaningful analysis.

As I indicated in the previous Blog in this series, what is truly confounding in this process is that the alleged wrong-doing is purportedly so heinous that it warrants compulsory release, even if the respondent has not previously faced any graduated remedial measures under DAOD 5019-4 for such deficiencies.  Yet the alleged wrong-doing was not so serious that it warranted prosecution under the Code of Service Discipline.

Proceeding with an Administrative Review that constitutes a breach of fairness – particularly where the intended decision will terminate a CF member’s service in the CF – gives rise to abuse of process.  The failure by a CO to use either of the prescribed processes – whether by negligence or by design – does not justify the use of an Administrative Review for an improper purpose.  To do so undermines the integrity of the CF’s administrative processes and brings the administration of justice into disrepute.

 

Application to MBdr Lanyard’s Circumstances

MBdr Lanyard was not prosecuted under the Code of Service Discipline.  Nor was he the respondent in an harassment investigation under the Harassment Presentation and Resolution Instructions and DAOD 5012-0.  Based upon the scenario that I have presented – one that is all too familiar for some members of the CF – MBdr Lanyard’s Administrative Review is the first opportunity that he has to address the allegations against him.  And the Administrative Review process is manifestly ill-suited to such a role.

Major Tom is not obliged to proceed under the Code of Service Discipline.  From a practical perspective, since MBdr Lanyard would never know what legal advice Major Tom received, and might never know why Major Tom chose not to proceed under the Code of Service Discipline, it is possible for Major Tom to make that decision based upon a disingenuous reason such as a desire to avoid having to meet the evidentiary threshold for disciplinary processes or a desire to avoid triggering a process in which MBdr Lanyard is entitled to elect trial before a constitutionally independent decision-maker.  Major Tom is in a position to exercise his discretion in a disingenuous fashion because he does not have to justify that decision to MBdr Lanyard or even, frankly, inform him directly of that decision.  Perhaps Major Tom is the type of statutory decision-maker who would assert that his exercise of discretion is presumed to be in good faith absent evidence of bad faith or improper motive: R v Anderson, 2014 SCC 41, para 55.

However, reviewing courts might be perplexed by the conundrum presented by allegations of misconduct that are so egregious that compulsory release is warranted, but, in the view of the chain of command, they do not warrant any disciplinary action, or even an attempt to follow a disciplinary process.  Consider what the plurality of the Supreme Court of Canada stated in R v Bain, [1992] 1 SCR 91:

Unfortunately it would seem that whenever the Crown is granted statutory power that can be used abusively then, on occasion, it will indeed be used abusively.  The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control.  Rather the offending statutory provision should be removed. (Per Cory J, at 103-104)

Sometimes the ‘offending’ circumstance is not the existence of a legislated provision, but the absence of clear direction to statutory decision-makers.  Equally, the offending conduct might arise when statutory decision-makers fail to use the process or processes that are expressly prescribed to address the alleged wrong-doing.

The assertion that, absent evidence to the contrary, we must always presume that statutory decision-makers act lawfully and consistently with the constitution, can tend to be over-stated.  The statement by Cory J in R v Bain was relied upon more recently by a 2/3 majority of the Supreme Court of Canada in R v Nur, 2015 SCC 15:

Two further objections may be raised against the argument that prosecutorial discretion can cure a sentencing provision that violates s. 12 of the Charter.  The first is that one cannot be certain that the discretion will always be exercised in a way that would avoid an unconstitutional result. Nor can the constitutionality of a statutory provision rest on an expectation that the Crown will act properly: Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 45.  As Cory J., for the majority, stated in R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91, at pp. 103-4 … (per McLachlin CJ, para 95)

I contend that Major Tom must still act under one of the regimes established by the CF under law and policy and which MBdr Lanyard has a legitimate expectation will be used.  Having rejected the disciplinary route (for whatever reason), Major Tom is obliged to act under DAOD 5012-0 and the Harassment Prevention and Resolution Instructions.  However, in our scenario, just as I have encountered in actual maladministration of the affairs of the CF, Major Tom also chose to bypass that prescribed process.

Instead, having rejected both the disciplinary process and the prescribed administrative process available to the chain of command, Major Tom (like other CF decision-maker) has chosen to impose sanctions and other punitive restrictions upon MBdr Lanyard through a series of ad hoc administrative processes entirely at the discretion of the chain of command, often with rudimentary procedural fairness.  And the basis for these administrative decisions was the UDI conducted by Captain Keen.  The problem is that Captain Keen’s UDI report consists of unproven allegations that were obtained for the purposes of a disciplinary process that was never used.  And, even though MBdr Lanyard was never provided an opportunity to contest these allegations in a proper forum, they are accepted as ‘proven’ by statutory decision-makers.

These administrative actions, taken in the absence of using either the prescribed disciplinary or administrative processes for allegations of harassment, constitute a breach of procedural fairness on each occasion.  The Administrative Review, brought in the absence of using either of the prescribed mechanisms for addressing harassment, also constitutes a breach of fairness.  MBdr Lanyard has a legitimate expectation that the CF will use its prescribed mechanisms for their prescribed purposes. If CF decision-makers fail to use these processes and fail to apply them reasonably and fairly, their actions constitute a breach of fairness.  An Administrative Review is not designed to replace a Code of Service Discipline proceeding or an harassment investigation.  As a ‘paper hearing’, it is not sufficient to test the allegations against MBdr Lanyard where credibility is at issue.  Absent either a determination from a military disciplinary tribunal or a determination by a RO under DAOD 5012-0, the Administrative Review is essentially being used as a substitute ‘harassment investigation’, a role for which it is manifestly ill-suited.

Proceeding with an Administrative Review that constitutes a breach of fairness – particularly where the intended decision will terminate MBdr Lanyard’s service in the CF – gives rise to abuse of process.  The failure by Major Tom to use either of the prescribed processes – whether by negligence or by design – does not justify the use of an Administrative Review for an improper purpose.  To do so undermines the integrity of the CF’s administrative processes and brings the administration of justice into disrepute.

 

Conclusion

Remember that, in the narrative of Op HONOUR-related Administrative Reviews, DMCA analysts routinely cite DAOD 5012-0, 5019-0, 5019-4, and 7023-0 as sources of obligations imposed upon the respondents to the Administrative Reviews.  The consistent theme of that boiler-plate explanation is that all CF personnel shall be held accountable for any failure to meet established standards of conduct and performance resulting from factors within their control.  When a CF member fails to meet the expected standard of conduct, the chain of command can take appropriate and reasonable administrative action to address such deficiencies.  All CF personnel have a core responsibility to Canada to defend it and its interests and this responsibility requires CF personnel to maintain a higher standard of conduct than any other Canadian citizen.

The relevant standard of conduct is based on established military standards, ethics and values identified in regulations, orders, instructions and policies. It is contextually based upon the member’s rank, military occupation, experience and position.  All CF personnel are expected to reflect and practice the values of Canadian society: Respect the dignity of all persons, Serve Canada before self, and Obey and Support lawful authority, including respect for the rule of law.  They are also expected to demonstrate integrity, loyalty, courage, stewardship and excellence.

Now ask yourself: if a CO fails to use either the Code of Service Discipline or the policy established and promulgated under DAOD 5012-0 to address harassment complaints in a fair, transparent, and timely fashion, has the CO met that standard of conduct?  If DMCA uses an Administrative Review as an improper substitute for one of those expressly prescribed adjudicative mechanisms, has DMCA met that standard of conduct?  IF a CO and DMCA insist on holding their subordinates and CF personnel to the above-mentioned standards of conduct and ethical behaviour, shouldn’t the CO and DMCA also be held to those same standards, in light of their rank, position, and authority?

And if these breaches of fairness are, in fact, occurring, what are the legal advisors in the OJAG doing to ensure that the rule of law is being respected in the administration of the affairs of the Canadian Forces?

While these may be uncomfortable questions for statutory decision-makers and their legal advisors to answer, the harsh reality of Op HONOUR administration (or maladministration) is that it appears that CF statutory decision-makers are not following the standards of conduct, performance, and ethics that they purport to impose on the respondents of their decisions.  It is time for that paradigm to change and for decision-makers to start respecting the rule of law in the same manner that they expect from their subordinates.

(Suggested Citation: Rory Fowler, “The Right Tool for the Job:  Administrative Review is neither a Code of Service Discipline prosecution nor an Harassment Investigation” (June 19, 2020), online: The Military Justice Project, http://militaryjusticeproject.com/the-right-tool-for-the-job-administrative-review-is-neither-a-code-of-service-discipline-prosecution-nor-an-harassment-investigation/).

[1] Initially, the intent was to provide two separate Blog articles: one that explained the legal dimensions of the issue, and a second to present a fictional scenario in which the legal dimensions could be applied.  I have opted, instead, to combine the two articles in one longer article.

[2] QR&O arts 19.75, 101.09.

[3] Mission Institution v Khela, 2014 SCC 24, [2014] 1 SCR 502; Kosoian v Société de transport de Montréal, 2019 SCC 59.

[4] R v Broyles, [1991] 3 SCR 595; R v Whittle, [1994] 2 SCR 914.

[5] R v Crawford, [1995] 1 SCR 858.

[6] Samson v Canada, [1994] 3 FC 113.

[7] QR&O art 108.10.

[8] QR&O art 107.02.

[9] QR&O art 107.03(1).

[10] QR&O arts 107.09, 107.11, 108.16, 108.19.

[11] QR&O art 107.12.

[12] QR&O art 107.11(1).

[13] QR&O art 107.11(2).