Friday, October 10, 2014

A Professional Military Association for Canada: an idea whose time has come

Freedom of Association for
Canadian Military Personnel
The military provides the only workplace in Canada where a sailor, soldier, or air person (hereinafter ‘soldier’) must not only be prepared to fight, but, if necessary, must be prepared to die to protect the security of our country and the welfare of Canadians. In the process, every aspect of a soldier’s life, enrolment, uniform and deportment, performance evaluation, promotions, postings, medical and dental regime, pay and allowances, grievances, leave, release, retirement benefits, estates, pension, discipline etc. is regulated by a labyrinth of administrative rules. While these are often scrutinized and discussed in several fora of senior Commanders those which impinge wrongly on a soldier can only be challenged through the military grievance system. Today, that system is hopelessly mired and broken with no time-limit imposed on the final arbiter.

            The rapidly advancing technical development of armed forces and increasing sophistication of modern weapons systems set growing educational and training demands. Modern day soldiers are highly skilled and more educated and specialised than many of our fellow citizens believe. They are committed to lifelong education and they must acquire language skills, cultural awareness as well as capacity for independent situational judgment and constructive interaction with civilian actors, in the domestic setting or abroad.

Besides traditional fighting skills, soldiers are also now expected to function as trainers and even social and development aid workers with the highest moral integrity and sensibility. It should be no surprise that educated, highly specialised experts tend to demand a say in their employment conditions and thus they should have the same legitimacy to promote their social and professional interests as others. However, this is not currently the case.

THE MILITARY AND THE CHARTER

            Article 6.04 of the Queens Regulations and Orders (QR&O) sets out the wording for the Oath of Allegiance, which is taken by all on enrollment by all soldiers. This oath requires that each soldier declare his or her agreement to abide by Canada’s laws and customs, implicitly including the Canadian Charter of Rights and Freedoms. That is as it should be.

On enrolment, a new recruit is required to accept certain professional obligations and responsibilities under the Code of Service Discipline and the Statement of Defence Ethics. Again this is not unusual and is totally expected. In fact, this is pretty common nowadays as most professions have Codes of Conduct that are to be followed. However, these Codes do not suspend, displace or supplant the Charter of Rights and Freedoms. At best, they may be seen to "limit" a given right, on the explicit consent of a newcomer to a given profession. For soldiers, this acceptance of a “while serving” diminution of the rights of a Canadian citizen had led, in the past, to abuse.

Freedom of Assembly

            At present, nearly every working Canadian outside the military and perhaps the Royal Canadian Mounted Police (RCMP), particularly members of a profession or trade have the right to freedom of assembly to ensure that their rights and interests are protected. Take for example, the Canadian Bar Association (CBA), which represents over 37,000 lawyers, judges and law students across Canada. Interestingly, in 2012 DND paid $97,925 for a corporate membership in the CBA for its Regular Force military lawyers. 

Deux poids deux mesures?

If government can permit the 167 JAG officers to each become members of a professional association (ironically at public expense) why not allow others members of the Canadian Forces to join a similar professional association to give them voice on a range of non-operational issues, including pay, allowances, disability insurance and retirement benefits, annuities or to negotiate collective conditions of service in the armed force?

There is nothing novel here as this is increasingly the trend in Europe.

GLOBAL RISE OF MILITARY ASSOCIATIONS

            In 2009, a Constitutional Court in Spain ruled that soldiers had a constitutional right to participate in bodies representing their social and economic interests, provided that these bodies did not intend to engage in ‘industrial’ action. In 2010, a Committee of Ministers of the Council of Europe adopted  a recommendation on the ‘Human Rights of Members of Armed Forces’. It states that “members of armed forces have the right to freedom of peaceful assembly and to freedom of association . . . [they] have the right to join independent organisations representing their interests . . .” As a result, there is now a well-structured social dialogue taking place in Austria, Belgium, Bulgaria, Denmark, Finland, Hungary, Ireland, Norway, Romania, Switzerland  and The Netherlands, concerning military associations.


              More specifically, in Sweden and Germany there are independent military associations in existence where membership is voluntary. In Germany, for example, the Deutscher Bundeswehr Verband (DBV) military association was created in 1956. It has approximately 200,000 members. The DBV is financed by members’ fees. The DBV employs their own advisory staff. Most of these national military associations are members of the European Organisation of Military Associations (EUROMIL), which was founded in 1972, and which is a conglomerate of more than 42 associations from over 24 EU countries representing approximately 500,000 military members. The stated mission of EUROMIL is that of: “Representing human rights, fundamental freedoms and professional interests of military personnel in Europe”, including the improvement of the living and working conditions of military personnel and the application of and correct implementation of EU social legislation for military personnel. More recently, the European Court of Human Rights ruled in Matelly v. France (Application No 10609-1) that the absolute prohibition on trade unions within France was in violation of Article 11 (Freedom of Assembly and Association) of the European Convention on Human Rights.

            The central question in these debates is how to respect the rights of soldiers to freedom of association and assembly while at the same time meeting the needs and legitimate concerns of the military, given its unique function. Experience in these European nations has shown that the right of association has not compromised combat efficiency or military discipline. On the contrary, involving democratic military associations in a permanent social dialogue may have de facto improved the morale and loyalty of troops. Hence, in these European countries, military associations are recognised as valuable partners for defence administrations.

THE CASE FOR A MILITARY PROFESSIONAL ASSOCIATION IN CANADA

            To ensure both the enforcement and the status quo of the unique military administrative and disciplinary systems, the Canadian military chain of command is empowered with an arsenal of statutes and regulations, policies, directives, orders, commands, and instructions plus a growing number of military lawyers.

Without a professional association to represent their collective interests, soldiers rely on bodies such as the Military Police Complaints Commission, the Military Grievances External Review Committee and the Office of the Ombudsman to ensure a restricted measure of civilian oversight.  

            Not surprisingly plus ça change plus c’est pareil. Currently, there are many areas where, it appears that the Canadian military fails to ensure that the rights of its members are protected or respected in accordance with traditional Charter values, and many other examples where the basic employment rights of soldiers are being ignored or even taken advantage of. These include, inter alia, Career Administrative Review, Medical Employment Limitations, Grievances, Harassment, Personal health care information, Summary Trials and Courts Martial, Compulsory Release from the Service and, as mentioned earlier, disability insurance and retirement benefits, annuities as well as collective conditions of service. Let us address some of these.

Career Administrative Review

A soldier can face a fast-paced career administrative review or be removed from command, all on very short notice and without any legal representation. Such a career-ending process, which has lifelong reputational and financial consequences, may also be conducted while the member is serving abroad where he or she has no access to support mechanisms. Worse, under current regulations, CF members cannot act through counsel or a representative to ensure that their rights are protected.

Grievances  process or how not ‘to take care of our own’

Currently, the average time for a grievance to be determined at the Initial Authority level is more than 250 days. The statutory time limit is 60 days. Hence, time and again, with impunity and nonchalance, the military leadership is breaking the law to the serious detriment of its members, ironically, when they are exercising the one and only right available to them to challenge a decision or omission by the chain of command.

Furthermore, the time to have a grievance heard at the Final Authority level as there is no prescribed time-limit is measured in years rather than months as would be expected. These grievances are mostly left to collect dust on the desk of the CDS with at least one grievance, at the time that this article was written, awaiting determination by the CDS for over four years. A disconcerting example of poor generalship!

Harassment

Soldiers who wish to file a complaint of harassment are compelled to report such a complaint through their chain of command even though the alleged offenders may actually be a member of the chain of command. Again, they cannot, such as any other ordinary Canadian would under the circumstances, instruct counsel – or their professional association – to represent them during these painful and embarrassing procedures.

Summary Trials

Approximately 2,000 soldiers – or one in every 34 members – face a summary trial each year. This is a most significant number for a professional and disciplined force. Despite the fact that these proceedings could lead to a sentence with ‘true penal consequences’, amazingly, there is no right to legal counsel at summary trial even if an accused is being tried on Canadian soil, during peace time, for an offence that carry carry imprisonment as a penalty.

A summary trial conviction may also result in a criminal record, despite that there are no records of proceeding, there are no rules of evidence, there is no right of appeal. No other Canadian faces such a one-sided penal justice process.

Compulsory Release

Section 15.01 of the QR&Os lists five general categories under which a soldier can be released: Item 1- Misconduct; Item 2 - Unsatisfactory Service; Item 3- Medical release; Item 4- Voluntary release; and, Item 5- Service Completed.

If release items are being improperly assigned, this could cause a stigma on soldiers particularly affecting their chance for meaningful employment. In such an instance, the only form of remonstration available soldiers is to grieve prior to their release. This is significant as the previous regulations allowed for a grievance to be submitted post-release.

CONCLUSION

            A growing number of militaries have permitted the formation of professional associations geared to protecting soldiers’ interests in the framework of democratic institutions, while at the same time discharging their normal duties. The establishment of such an association in Canada would neatly fall under the provision of section 48 of the National Defence Act which allows for the creation of associations which further the defence of Canada. It would also recognize, more than 30 years after the enactment of the Canadian Charter of Rights and Freedoms, the right of its valiant citizens-soldiers to be consulted in discussions concerning their conditions of service and other career matters.

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