An Examination of Administrative Review in the Canadian Forces
Introduction and Scope of the Series
Over the course of the next two weeks, I will present a series of Blog articles describing Administrative Review in the Canadian Forces (CF) and how it is used in support of decision-making in “… the administration of the affairs of the Canadian Forces …”.
The target audience of this Blog is broad and diverse. It includes: current and past members of the CF; veterans; the extended military community (which includes families of CF personnel and veterans); lawyers and legal educators who are interested in the context of military law; and, frankly, anyone interested in military justice as I have described it in the inaugural post for the Blog. This diversity gives rise to challenges regarding the assumptions that may be made about the readership. Some readers may have considerable experience with military administration, but limited knowledge of, or formal training in, law. Conversely, some readers may be will-informed of legal principles, but have limited exposure to decision-making in the CF. And many people, myself included, may approach subjects, whether familiar or novel, with their own pre-conceived expectations or understanding.
Consequently, at least initially, I am inclined to sacrifice brevity for the sake of a comprehensive approach to ensure that we are all approaching the subject from a common baseline. I will also have to sacrifice the opportunity for profound examination of some subjects in order to offer sufficiently broad exposition on the general themes. I anticipate that this approach will evolve over time and trust that you, Dear Reader, will be patient as this Blog develops.
Before we delve into the specific parameters of Administrative Review, it will be useful if I first offer some general commentary on the characterization of military law and how it affects statutory decision-making in the CF. My intent is that this description will serve to orient the reader – who may not be trained in the law, or familiar with the legislated parameters of CF decision-making – regarding the exercise of duties, powers, and functions in the administration of the affairs of the Canadian Forces.
Therefore, I will first offer a description of the ‘pillars’ or categories of military law as it is characterized by the legal advisors to CF statutory decision-makers, including my views on some of the shortcomings and practical implications of this characterization.
I will then offer commentary on the training that is offered to CF statutory decision-makers regarding these ‘pillars’ of military law. This, too, will include my views on some of the shortcomings and practical implications of the training that is, and is not, provided to these decision-makers.
I will then conclude the present article with a brief description of the broader policy framework in which Administrative Review is situated and the general role of Administrative Review. This should serve to set the stage for the subsequent articles that will be published every other day for the next 2 weeks.
Subsequent topics will explore the nature, strengths, and weaknesses of the current framework, both in terms of its normative structure, as well as how it is used (or misused) by various statutory decision-makers in the CF. We will focus our discussion on the more frequent and significant topics of Administrative Review, including allegations of Sexual Misconduct and Medical Employment Limitations. The penultimate Blog article will present a fictionalized fact scenario drawn from my own experiences with Administrative Reviews and the administration of the affairs of the CF. The series will conclude with some general recommendations on how this framework could be improved, both in terms of the policy structure and the application of the framework by decision-makers.
Specific topics will include:
- The Nature and Limitations of Administrative Review;
- The pitfalls of relying on unit disciplinary investigations (UDI) in Administrative Reviews and the (mis-)use of Administrative Review as an ersatz Harassment Investigation;
- The Dual Nature of Administrative Review for Medical Employment Limitations;
- The application of Administrative Review within a fictional scenario; and
- Recommendations for an improved framework and application.
The Pillars of Military Law
The target audience of this Blog is broad; therefore, before we delve into the specific parameters of Administrative Review, let’s first discuss ‘military law’.
Section 9.1 of the National Defence Act (NDA)[1] states:
The Judge Advocate General acts as legal adviser to the Governor General, the Minister, the Department and the Canadian Forces in matters relating to military law.
Received wisdom in the OJAG is that ‘military law’ can be separated into three general categories or ‘pillars’:
- ‘Military Justice’;
- ‘Operational Law’; and
- ‘Administrative Law’ or ‘Military Administrative Law’.
Anyone who has read the inaugural article on this Blog will understand my objection to the use of the term ‘military justice’ to describe the Code of Service Discipline, particularly since ‘Code of Service Discipline’ offers remarkably clear nomenclature. However, ‘military justice’ is how the leadership of the OJAG describes the disciplinary ‘pillar’ of military law.
‘Operational Law’ can often be (mis-)characterized in terms of Public International Law that applies to the operations of the CF, and includes the Law of Armed Conflict (LOAC), International Humanitarian Law (IHL), and even International Human Rights Law (IHRL). ‘Geneva Law’ and ‘Hague Law’ are other terms that are also often associated with ‘Operational Law’. However, the use of these terms gives a distinctively international flavour to ‘Operational Law’, notwithstanding than many CF operations can be ‘domestic’ (i.e. within the borders of Canada) and, thus, apply little, if any, international law. Granted, the principal raison d’être of the Canadian Forces could be described as providing for the ‘defence of the realm’ through collective security and defence, which necessarily implies predominantly international operations.
‘Administrative Law’ can sometimes be viewed as the ‘orphan child’ of the OJAG. I prefer the term ‘Administrative Law’ rather than ‘Military Administrative Law’, as the latter can imply that administrative law within the context of the CF is somehow distinguishable from public and administrative law generally. It isn’t. One could define ‘Administrative Law’ in general terms: e.g. the body of public law that regulates the operation, management, and procedures of government agencies. However, in my experience, the received wisdom in the OJAG often appears to be that ‘Administrative Law’ is a catch all of public law that falls within the scope of military law that is not ‘occupied’ by ‘Military Justice’ or ‘Operational Law’. It would not be surprising if many senior legal officers view ‘Administrative Law’ under the catch-all title of ‘Miscellaneous’ (provided the specific subject matter is not an attractive ‘bright shiny object’), particularly if they are not well-informed regarding the scope and impact that administrative law has on the CF.
An overarching problem with all of these descriptions is that they tend to suggest distinct and discrete ‘stove-pipes’ in terms of the relevant law. In other words, some people might view these categories as involving significantly different knowledge and skill sets because the categories are largely independent of one another. However, in practice, there is significant over-lap. And that is before we take into consideration the potential over-lap, and conflict, between the advisory duties of the OJAG and DND/CF LA.[2]
I take the position that, while it is necessary to draw distinctions between types or subjects of law in order to establish a coherent organizational structure for the OJAG, it would be problematic to adopt the view that the provision of legal advice to the CF on matters of military law falls within distinct and discrete ‘stove-pipes’. Rather, there will tend to be a requirement for collaborative effort between different legal advisors, particularly in terms of policy development, in order to ensure that the policies are well-articulated and consistent with the law. Inevitably, individual offices, directorates, or advisors within the OJAG will be called upon to advise specific decision-makers, and there is a need for a rational and consistent division of advisory duties. However, I suggest that legal officers must understand that, even if they are functioning within one ‘pillar’ of military law, they must have an adequate appreciation of the full scope of military law and be prepared to advise on those areas.
Training in Military Law
In terms of training CF statutory decision-makers in military law, the OJAG and Canadian Forces Military Law Centre (CFMLC)[3] have focused much of their efforts on ‘military justice’ and ‘operational law’.
Following the 1998 amendments to the NDA[4], the Queen’s Regulations and Orders for the Canadian Forces (QR&O) were amended to include an obligation upon all commanding officers (CO) and superior commanders to be “… trained in the administration of the Code of Service Discipline in accordance with a curriculum established by the Judge Advocate General; and … [be] … certified by the Judge Advocate General as qualified to perform their duties in the administration of the Code of Service Discipline.”[5]
Additionally, any officer to whom a CO delegates powers of trial and punishment (under the summary trial process) must be “… trained, in accordance with a curriculum established by the Judge Advocate General, and certified by the Judge Advocate General as being qualified to perform the duties of a delegated officer …”.[6]
Since 2000, Presiding Officer Certification Training (POCT), managed by the CFMLC, and conducted by legal officers of the OJAG, has been a mainstay of both the Code of Service Discipline and officer professional development. This is augmented by the manual Military Justice at the Summary Trial Level, B-GG-005-027/AF-011, which is also available online.[7] Training intended for Assisting Officers[8] has been incorporated into the Canadian Armed Forces Junior Officer Development (CAFJOD) program[9], even though such training is not mandatory for an officer to be appointed as an assisting officer. There are also publicly available pamphlets, such as The Code of Service Discipline and Me[10] and the Guide for Accused and Assisting Officers, A-LG-050-000/AF-001.[11]
Similarly, although not expressly mandated as obligatory training (other than for legal officers), the Intermediate Law of Armed Conflict (ILOAC) course is a staple of training for most officers and senior non-commissioned members (NCM) at the rank of sergeant and above. The ILOAC course is administered by the CFMLC and taught annually across Canada, as well as internationally through the Directorate of Military Training and Cooperation (DMTC). This 4-day course is conducted on a residential basis and is designed to provide more comprehensive knowledge of international humanitarian law.[12] This training is supported by the CF manual Law of Armed Conflict at the Operational and Tactical Levels, B-GJ-005-104/FP-021.
Thus, there are two very specific courses developed by legal officers in the OJAG and CFMLC designed to train CF statutory decision-makers in the performance and exercise of their statutory duties, powers, and functions under the Code of Service Discipline (‘military justice’) and law of armed conflict (‘operational law’). I have not mentioned the course that senior officers in the CF receive from the OJAG and CFMLC in terms of administrative law and statutory decision-making, because there isn’t one.
Arguably, CF officers do receive some professional development training in administrative (read: statutory) decision-making during their career. Certainly, the aforementioned CAFJOD, which is typically completed early in an officer’s career, has elements of such training. And the development of the CAFJOD was supported by legal officers in the CFMLC. However, there is a distinct difference between the CAFJOD, and training developed and conducted by legal officers that focuses specifically on the legal dimensions of statutory decision-making. That remains an ongoing lacuna in professional development of the officer corps of the CF.
In fact, there isn’t even a manual for administrative law similar to Military Justice at the Summary Trial Level, the Guide for Accused and Assisting Officers, or the Law of Armed Conflict at the Operational and Tactical Levels. There was, for a number of years, a Military Administrative Law Manual, A-LG-007-000/AF-010. The last version of this manual was approved October 2008 and, although the ‘custodian’ was listed as the JAG, the preface indicated: “The responsibility for updating this publication will fall to the Canadian Forces Military Law Centre” and personnel were directed to the CFMLC for comments or questions.
While it is possible to find the Military Administrative Law Manual on non-governmental websites, the manual was withdrawn from use by the Canadian Forces. One of the over-arching problems with this manual was that, rather than presenting a macro-level perspective of broad principles of administrative law and theory applicable to the Canadian Forces and the Crown-soldier relationship, it was drafted on a micro-level itemizing relevant legislation and (in large part) policy instruments. These policy instruments included Defence Administrative Orders and Directives such as the ones that are the subject of the present Blog series. However, when policy instruments were amended, created, or cancelled, the manual would need to be amended. This can become a labour-intensive undertaking.
The preface of the manual included the following notice:
The primary purpose of this manual is to provide Commanding Officers and staff officers with a consolidated reference that outlines many of the principles of military administrative law. It will also serve as a resource for the other members of the Canadian Forces who are most affected by the application of policies and the interpretation of law.
The Department of National Defence and the Canadian Forces are writing and re-writing policies at an unprecedented rate, due largely to our efforts to replace Canadian Forces Administrative Orders (CFAO) with Defence Administrative Orders and Directives (DAOD). As these policies evolve, so too will this manual. If this manual conflicts with a current law, regulation, order or directive, then the law, regulation, order or directive will govern.
Nevertheless, there remained the risk that some CF personnel, or even inattentive legal practitioners, could erroneously assert that the Military Administrative Law Manual represented the relevant governing policy or even constituted binding law. In any event, as this manual has been withdrawn from circulation, it is not a relevant CF publication. Nor has a replacement manual been produced.
And the lack of meaningful training in administrative law for senior CF decision-makers represents a lacuna in light of the frequency and impact of such decisions. Compare the context of ‘administrative law’ to that of ‘military justice (aka the Code of Service Discipline).
Decisions under the Code of Service Discipline are made by a variety of personnel, including: superior commanders, CO, officers to whom CO delegate powers of trial and punishment, and officers and NCM authorized to lay charges[13]. The frequency of such decisions often varies by the nature of units and formations. Larger units, with younger and less experienced personnel, tend to experience a greater frequency of Code of Service Discipline proceedings. A perusal of the JAG Annual Reports, mandated by the amendments introduced in Bill C-25[14], illustrates that the Canadian Army has markedly more Code of Service Discipline proceedings than any other Command.
The data published in the JAG’s Annual Reports on ‘military justice’ over the course of the past five years identifies the following information in terms of charges tried by summary trial:
2014 – 2015: 827 Summary Trials, 1182 charges[15]
2015 – 2016: 721 Summary Trials, 1078 charges[16]
2016 – 2017: 614 Summary Trials, 817 charges[17]
2017 – 2018: 596 Summary Trials, 802 charges[18]
2018 – 2019: 533 Summary Trials, 742 charges[19]
(NB: In reviewing the past JAG Annual Reports in preparation of the present blog article, I noted an anomaly within the statistics maintained by the OJAG, or more specifically, Deputy Judge Advocate General – Military Justice. This anomaly arises where an Annual Report provides a running total of charges and summary trials from previous reporting periods. Specifically, the reported numbers differ. For example, the numbers of summary trials and charges reported above are drawn from the JAG Annual Report for each relevant reporting period. However, the JAG Annual report for 2018-2019 reports the following totals of summary trials for the four previous periods: 2014-2015 – 857; 2015-2016 – 756; 2016-2017 – 614; and, 2017-2018 – 627. Only 2016-2017 remained the same. Similarly, the numbers of charges disposed of at Summary Trial also varies: 2014-2015 – 1225; 2015-2016 – 1130; 2016-2017 – 911; and, 2017-2018 – 842. All of the reported data differed. I cannot explain this discrepancy. Perhaps DJAG-MJ can.)
Ultimately, this data demonstrates two significant factors: summary trials are relatively infrequent exercises of statutory power; and, the number of summary trials has dropped by 35% over the past 5 reported fiscal years.
First, over the past 5 years, there were no more than 857 summary trials conducted by superior commanders, CO, and delegated officers and, most recently, as few as 533. This data incorporates Summary Trials for both the Regular Force and Reserve Force. While the composition of the CF has varied over that period of time, a reasonable figure to use in terms of calculating the frequency of Summary Trials is approximately 100 000 personnel. If we apply that figure, that means that the frequency of Summary Trials over the past 5 reported fiscal periods ranged from one Summary Trial for every 116 members (in 2014-2015) to one for every 187 personnel – calculated over an entire year.
Second, even though the number of personnel has remained fairly constant, the number of charges laid, and summary trials conducted, has dropped 35%. The number of courts martial has fluctuated between 47 and 70, but have not been subject to a steady decline.[20] Indeed, the alarmist impact signalled by Director of Military Prosecutions (DMP) following the Court Martial Appeal Court of Canada Decision in Beaudry v R, 2018 CMAC 4, did not seem to materialize. That judgment was handed down 19 September 2018 and was eventually overturned by the Supreme Court of Canada in R v Stillman, 2019 SCC 40 on 26 June 2019. Yet, there were 51 courts martial from April 2018 to March 2019, down from 62 in 2017-2018. The data from April 2019 to March 2020 may signal a reduction in the numbers of courts martial; however, that report may be delayed due to COVID-19.
The implications presented by this marked drop in the numbers of Summary Trials will be the subject of future commentary in this Blog. However, I suggest that it is one of several factors that supports my contention that the chain of command is increasingly resorting to the use of administrative measures to ‘punish’ personnel accused of sexual misconduct. If that is, indeed, the case, then concerns arising from the conduct of Administrative Review take on increased importance.
Just as decision-making under the Code of Service Discipline is not an overly frequent circumstance, decisions requiring a robust understanding of the LOAC tend not to be commonplace. Certainly, one expects that CF decision-makers would have a working knowledge of the LOAC and similar legal regimes. Article 43 of Additional Protocol I[21], to which Canada is a signatory, obliges Canada to ensure that its armed forces are under ‘responsible command’ which is subject to an ‘internal disciplinary system’ which will enable it to “… enforce compliance with the rules of international law applicable in armed conflict.” Commanders cannot do so unless they have an understanding of the international law applicable in armed conflict (and, presumably, are advised by legal advisors with a more profound understanding of that law).
Even though such decision-making not very frequent, the controlled application of lethal (and non-lethal) force in the battlespace is the ‘bread and butter’ of an armed force and its commanders. Therefore, a reasonable person would expect that CF commanders (i.e. decision-makers) would receive such training. And the ILOAC, conducted by the CFMLC, is augmented by related training such as the CF’s Joint Tactical Targeting Course, Collateral Damage Estimation Course, and similar training.
This training is necessary notwithstanding that decisions under ‘Operational Law’ (specifically, under LOAC) are much less likely to come under scrutiny by constitutionally independent courts than the decisions made under ‘Military Justice’.
Compare the robust training and legal support given to ‘Military Justice’ and ‘Operational Law’ with that of ‘Administrative Law’. The framework in which CF decision-makers will most frequently exercise statutory duties, powers, and functions, and which will invite frequent review both internally (within the CF grievance process) and externally (judicial review before the Federal Court) – i.e. ‘Administrative Law’ – has no formal and robust training developed or conducted by the OJAG and CFMLC. And decisions, acts, and even omissions, by CF statutory decision-makers within what the OJAG characterizes as ‘Administrative Law’ can have as profound an impact on CF personnel as any decision under the Code of Service Discipline, for which there is robust training and for which the JAG recognizes a duty of superintendence.
To put things in perspective: in order to impose a minor punishment at summary trial (such as a caution or extra work and drill)[22] or a minor fine[23], a CF statutory decision-maker must complete a threshold knowledge test in order to participate in POCT and then must successfully complete the 2-day POCT. A person who lays a charge under the Code of Service Discipline must often seek legal advice from a unit legal advisor before laying a charge (and even if such advice is not obligatory, they will typically seek such advice).[24] Before a presiding officer disposes of charges at a summary trial, the presiding officer must often seek legal advice from the unit legal advisor (and, again, even if such advice is not obligatory, most presiding officers will routinely seek such advice).[25] If the presiding officer chooses not to act on that legal advice, that officer must inform both his/her superior in matters of discipline, and the legal advisor, in writing, of the reasons for that decision.[26] And, regardless of whether legal advice must be sought by the charge layer and presiding officer, or if such advice is sought (even on a voluntary basis), each unit must maintain a registry of disciplinary proceedings[27] and, monthly, forward all documents placed on this registry to the unit legal advisor for review[28].
Yet, if a CF statutory decision-maker wishes to take significant administrative action against a CF member such as imposing Counselling and Probation (C&P) under Defence Administrative Order and Directive (DAOD) 5019-4, recommending compulsory release[29], or even making the decision to impose a compulsory release[30], there is no obligation under legislation, or even policy, to seek any legal advice. Nor is there (unsurprisingly) an obligation to inform a superior or the unit legal advisor of any decision contrary to the legal advice (that doesn’t have to be sought in the first place).
Until this lacuna is addressed, I contend that there is a pressing need for clear and robust policy instruments to support such decision-making. There is also a need for the legal advisors in the OJAG to pay particular attention to these decision-making processes – to use a specific term of art, there is a pressing need to superintend the exercise of these duties, powers and functions. However, as I have indicated previously, based upon the JAG’s view of section 9.2 of the NDA, and the definition of ‘military justice’ in Bill C-77, this is unlikely to arise. In the absence of superintendence by the JAG, the importance of public scrutiny by the courts and by legal commentators and scholars takes on greater importance.
What is Administrative Review in the CF?
Nature of the Policy Framework
The structure of Administrative Review is described in the Defence Administrative Orders and Directives (DAOD) for the Canadian Forces and the Department of National Defence (DND). As the name suggests, DAOD comprise both Orders (for members of the CF) and Directives (for employees in the DND). DAOD replaced earlier Canadian Forces Administrative Orders (CFAO), which applied solely to the CF. However, despite being first implemented as early as 1997, with the intent of replacing all CFAO over the course of a few years, there remain several extant CFAO (although they are no longer easily accessible other than on the CF’s internal Defence Wide Area Network or DWAN) and, based upon the significant slackening of the tempo pertaining to the replacement of CFAO, it would be reasonable to conclude that they will persist for many more years.
The DAOD are issued by, or under the authority of, the Chief of the Defence Staff (CDS) and the Deputy Minister (DM) of DND. The former has control and administration of the CF, subject to the direction of the Minister of National Defence (MND).[31] The latter is responsible for the management of the DND on behalf of the MND.[32] Their respective subordinates may exercise delegated or devolved power to approve specific DAOD.[33]
There are 9 volumes of DAOD – 1000 to 9000 – and each is relevant to different broad policy topics, generally grouped by the relevant Approving Authority or Authorities.[34] For example, Volume 7000 concerns matters that directly involve the military or civilian legal advisors, and the Approving Authorities are typically the Judge Advocate General (JAG) of the Canadian Forces, the DND/CF Legal Advisor (DND/CFLA), or both. Volume 3000 concerns materiel and related items, and the Approving Authority for those DAOD is often Assistant Deputy Minister (Materiel) (ADM(Mat)).
There are, generally, two types of DAOD: ‘policy’ DAOD, and ‘Instructional’ DAOD.[35] A policy DAOD explains the overarching Departmental and/or CF policy on a specific topic, establishes the bounds within which one or more organizations will operate, articulates the goals to be attained, and provides guidance for related management decisions and actions. Information on how a policy will be implemented is found in associated instructional DAODs.[36]
The purpose of an instructional DAOD is to set out the directives and orders necessary to attain the policy direction in a policy DAOD. Where policy direction requires that specific procedures be implemented in order to ensure that its objectives are attained, an instructional DAOD sets out how a policy is implemented. These ‘instructional’ DAODs are normally not stand-alone documents and are generally made within the policy boundaries set by a ‘parent’ policy DAOD.[37]
The volume of DAOD that is relevant to the present discussion is Volume 5000, which pertains to personnel related issues. These DAOD may pertain to military personnel, to civilian employees, or to both. The specific series relevant to the present Blog (and the several forthcoming Blog articles pertaining to Administrative Review) is the ‘5019 Series’, which applies solely to CF personnel. Consequently, the Approving Authority is the Chief Military Personnel (CMP). CMP is an “L1 advisor” or staff principal at National Defence Headquarters (NDHQ) with the responsibility for both the development and implementation of policies relating to CF personnel.[38] While these policies can be, and typically are, used by all CF decision-makers, the responsibility for the development and implementation of these policies rests with CMP, assisted by CMP’s subordinate divisions at NDHQ.
An important tangential point should be made regarding the position of CMP compared to that of Commander Military Personnel Command (Comd MILPERSCOM). These two positions are typically occupied by the same officer, much as the officer appointed as Chief of the Naval Staff (CNS) is also appointed the Commander of the Royal Canadian Navy (RCN), the officer appointed as Chief of the Army Staff (CLS) is also appointed Commander of the Canadian Army, and the officer appointed the Chief of the Air Force Staff (CAS) is also appointed the Commander of the Royal Canadian Air Force (RCAF). All of these officers occupy two distinct positions: L1 advisor (Staff Principal) at NDHQ and a Commander of a Command. Although the positions are occupied by the same officer, they represent two distinct offices with two distinct sets of duties, powers and functions. They also have two separate command structures: the “L1 Advisors” are at the head of their respective staff at NDHQ; as Commanders, they command the various formations under their Commands. NDHQ is not a component part of any Command.
Sometimes that distinction can be lost on many people, including the officers who hold those positions. It is likely uncontroversial to suggest that the ambition of most (if not all) senior officers is to ‘command’. They prefer to think of themselves as commanders. They prefer to ‘sign off’ as commanders. The problem is that not all duties, powers and functions fall to those officers as commanders. Some – and in the case of CMP, many – fall to them as L1 Advisors/Staff Principals at NDHQ. As Comd MILPERSCOM, the officer who is both CMP and Comd MILPERSCOM, commands a Command that is smaller than the three ‘environmental’ commands (the RCN, the Army, the RCAF). As CMP, that officer has markedly broader policy powers than the CNS, CAS or CAFS. Those officers can promulgate policies for their respective environments; CMP can promulgate policies, on behalf of the CDS, for the entire CF.
For anyone with an interest in the administration of the affairs of the CF, these are important distinctions to draw. CF decision-makers are statutory decision-makers, who must trace their duties, powers, and functions back to the legislation and policy (created under that legislation) that empowers then to act or imposed upon them those duties. If the officer who is both CMP and Comd MILPERSCOM exercises the duties, powers, and functions of CMP, but insists on ‘signing off’ the relevant order as Comd MILPERSOCOM, then Comd MILPERSCOM is acting ultra vires.
Administrative Review
Administrative Review is established in DAOD 5019-2, which is, unsurprisingly, entitled ‘Administrative Review’. It is part of the broader ‘5019 Series’ of DAOD, which pertain to Conduct and Performance Deficiencies. DAOD 5019-0 Conduct and Performance Deficiencies, as the ‘policy’ DAOD, establishes the broader policy direction for the ‘5019 Series’. The context and policy statement of this policy framework is described in article 2.1 to 2.3 of DAOD 5019-0:
Context
2.1 Collectively, CAF members have a core responsibility to the government and people of Canada to defend Canada and its interests. Individually, CAF members are responsible for their conduct and performance.
2.2 A conduct or performance deficiency occurs if a CAF member fails to meet the standards of conduct and performance established for CAF members.
Policy Statement
2.3 CAF members must be held accountable for any failure to meet established standards of conduct and performance resulting from factors within their control.
The ‘5019 Series’ encompasses a broad range of performance- and conduct-related matters, including: personal relationships[39], the CF Drug Control Program[40], Sexual Misconduct and Sexual Disorders[41], Academic Misconduct[42], Alcohol Misconduct[43], and Personal Debts and impecuniosity[44]. There is a clear emphasis on ‘misconduct’, rather than performance, in these topics, although performance remains a relevant issue. However, the ‘conduct-laden’ nature of this series may explain why there is a tendency to use this series as a more malleable alternative to the Code of Service Discipline, particularly under Op HONOUR, when the chain of command wishes to punish misconduct. That tendency will be explored in subsequent articles in this Blog series.
While most of the ‘instructional’ DAODs in the 5019 series focus on substantive types of misconduct, two DAOD focus on broader procedural policies: DAOD 5019-2 Administrative Review and DAOD 5019-4 Remedial Measures. These two instructional DAOD often work in unison – a decision-maker will rely on the process under DAOD 5019-2 in order to determine which, if any, remedial measure should be implemented under DAOD 5019-4, or if other administrative action should be taken. DAOD 5019-2 and 5019-4 may also be used in conjunction with other DAOD, particularly from the 5000 Volume. For example, an Administrative Review may be conducted, and remedial measures imposed, where there are allegations of harassment (DAOD 5012-0), Medical Employment Limitations (MEL) that impact on whether a CF member meets universality of service (DAOD 5023), or involving Human Rights complaints (DAOD 5516).
Administrative Review under DAOD 5019-2 is designed to provide a modicum of procedural fairness in administrative decision-making. It creates a procedural structure to assist CF decision-makers who may lack an acute understanding of administrative law and its attendant principles of procedural fairness. This policy direction is vital, particularly where the OJAG and the CFMLC has failed to develop adequate training for statutory decision-makers in the CF within the broader rubrique of administrative decision making.
Presumably, with the assistance of DAOD 5019-2, they can still make fair and reasonable decisions in the administration of the affairs of the CF where those decisions significantly impair or affect the rights, interests, or privileges of the CF personnel who are the subject of those decisions. To describe it in terms that many CF operators would understand: DAOD 5019-2 creates ‘control measures’ for administrative decision-making. And this framework applies in addition to any specific framework that might be imposed within specific policy direction.
The procedure at DAOD 5019-2 does not obviate the need (or advisability) to seek legal advice from the appropriate legal advisor in the Office of the JAG (OJAG) or DND/CF LA; however, it does create a general framework that, ostensibly, should function to ensure a modicum of procedural fairness in most administrative decision-making.
Conclusion
The purpose of the present Blog article was principally to set the stage for the discussion over the next two weeks. It is my intent to introduce a (presumably) diverse readership to issues of military justice (based upon the large and liberal definition that I attach to that term). Over the next two weeks, we will discuss a specific decision-making mechanism, which is often used to generate decisions that significantly impact the rights, interests, and privileges of CF personnel. But, before we can do that, it behoves me to offer a characterization of military law under the NDA and key factors of statutory decision-making in the CF that play a role in use of Administrative Review.
Much of the focus of the preceding discussion was on the training that CF statutory decision-makers do, and do not, receive in support of the exercise of their duties, powers, and functions. This is pertinent to the discussion that will follow over the course of the next two weeks, as Administrative Review constitutes one of the more significant exercises of statutory decision-making within the context of the ‘administrative law’ pillar of military law. The foregoing should, therefore, assist the reader in a critical evaluation of the discussion that will follow.
The next article, which will be published in 2 days, will explore the elements of Administrative Review in detail and will describe some of the limitations arising within this policy mechanism. These limitations arise from both frailties within the policy structure, as well as shortcomings in how decision-makers employ the policy mechanism.
(Suggested Citation: Rory Fowler, “An Examination of Judicial Review” (June 8, 2020), online: The Military Justice Project, http://militaryjusticeproject.com/an-examination-of-administrative-review-in-the-canadian-forces-introduction).
[1] RSC 1985, c N-5.
[2] Ibid, s 10.1: “For greater certainty, section 9.1 is not in derogation of the authority of the Minister of Justice and Attorney General of Canada under the Department of Justice
Act.” The Department of Justice has a statutory role to advise government departments and many agencies on the law. This is true of the Department of National Defence and the CF. Consequently, the Department and the CF have two distinct offices that advise on matters of law relevant to the functioning of both the Department and the CF. The resulting ‘division of labour’ (or assertion of territorial competence) can be clear (e.g. the Code of Service Discipline and civilian employment law pertaining to Departmental employees). But, there can be ‘territorial tension’ – notably in terms of the interpretation and application of public international law.
[3] The CFMLC is not part of the OJAG. It is a directorate (and training establishment) within the Military Personnel Generation Training Group (MPGTP) https://www.canada.ca/en/department-national-defence/services/benefits-military/education-training/establishments/military-personnel-generation-training-group.html and was formerly part of the Canadian Defence Academy (CDA). Although it is principally staffed with legal officers, it is not part of the OJAG. Nevertheless, in light of the subject matter of the training developed by the CFMLC, there is close liaison between the CFMLC and the OJAG. The careers of the legal officers posted to the CFMLC are still managed by the OJAG, and the JAG and her senior leadership team decide which legal officers are posted to the CFMLC. There are nine legal officer positions established in the CFMLC, including one exchange position with the US Army. The exchange position has only been occupied once. The US Army manages its exchange positions on a reciprocal basis; therefore, if a country such as Canada does not send an exchange officer, the US Army will not send one to Canada. Of the remaining eight positions, it is rare for all of them to be occupied by a legal officer who is in a position to contribute and, at the time of the writing of this Blog article (June 2020) only half of the positions are filled.
[4] An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, c 35 [Bill C-25].
[5] QR&O art 101.07.
[6] QR&O art 108.10(2).
[7] https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law/military-justice-summary-trial-level-2-2.html.
[8] QR&O art 108.14.
[9] https://www.canada.ca/en/department-national-defence/services/benefits-military/education-training/basic-training/recruit-school/officers.html. Module 3 of the 7-module program is entitled “Law and Military Justice”. While CAFJOD was developed, and is maintained, by the Canadian Forces Leadership and Recruit School, Module 3 was developed in conjunction with the CFMLC.
[10] https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law/code-of-service-discipline.html.
[11] https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law/guide-for-accused-and-assisting-officers.html.
[12] https://www.canada.ca/en/department-national-defence/services/benefits-military/education-training/establishments/canadian-forces-military-law-centre.html.
[13] QR&O art 107.02.
[14] NDA, n 1, subs 9.3(2).
[15] JAG Annual Report 2014-2015, https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law/judge-advocate-general-annual-report-2014-15.html.
[16] JAG Annual Report 2015-2016, https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law/judge-advocate-general-annual-report-2015-16.html.
[17] JAG Annual Report 2016-2017, https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law/judge-advocate-general-annual-report-2016-17.html.
[18] JAG Annual Report 2017-2018, https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law/judge-advocate-general-annual-report-2017-18.html.
[19] JAG Annual Report 2018-2019, https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law/judge-advocate-general-annual-report-2018-2019.html.
[20] Ibid.
[21] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, Can TS 1991 No 1.
[22] QR&O art 104.13.
[23] QR&O art 104.12.
[24] QR&O art 107.03.
[25] QR&O art 107.11.
[26] QR&O art 107.12.
[27] QR&O art 107.14.
[28] QR&O art 107.15.
[29] QR&O arts 15.21, 15.22 and 15.36.
[30] QR&O art 15.01.
[31] NDA, n 1, s 18.
[32] NDA, n 1, ss 3 and 7; Interpretation Act, RSC 1985, c I-21, para 24(2)(c).
[33] NDA, n 1, s 49; Interpretation Act, n 28, subs 24(2); Carltona, Ltd. v Commissioners of Works, [1943] 2 All ER 560 (CA); R v Harrison, [1977] 1 SCR 238, 245-46 per Dickson J; Comeau’s Sea Foods Ltd. v Canada (Minister of Fisheries and Oceans), [1997] 1 SCR 12, 22 per Major J. See also: Ann Chaplin, “Carltona Revisited: Accountability and the Devolution of Statutory Powers” (2007) 39:3 Ottawa L Rev 495. DAOD 1000-1; DAOD 1000-2.
[34] https://www.canada.ca/en/department-national-defence/corporate/policies-standards/defence-administrative-orders-directives.html.
[35] DAOD 1000-1 Defence Administrative Orders and Directives, article 2.3.
[36] Ibid, art 2.4.
[37] Ibid, art 2.5.
[38] DAOD 1000-7.
[39] DAOD 5019-1.
[40] DAOD 5019-3. Inexplicably, the CF policy on the use of cannabis by CF personnel, introduced in light of the ‘decriminalization’ of that drug, was communicated in DAOD 9004-1. No ‘policy’ DAOD (e.g. 9004-0) was created. More peculiarly, this policy is not in the ‘5019 Series’. It’s not even in Volume 5000. The CF Drug Control Program is not limited to drugs that are prohibited under the Controlled Drugs and Substances Act, SC 1996, c 19. DAOD 5019-3 amplifies QR&O Chapter 20, the CF Drug Control Program, which defines “drug” as “… a controlled substance as defined in the Controlled Drugs and Substances Act … or … any other substance, except for alcohol, the use of which can impair normal psychological or physical functioning and the use of which has been prohibited by the Chief of the Defence Staff …”. Presumably, the policy for cannabis could, and perhaps should, have been introduced in DAOD 5019-3.
[41] DAOD 5019-5.
[42] DAOD 5019-6.
[43] DAOD 5019-7.
[44] DAOD 5019-8.
