Canadian Forces Personnel & COVID-19 Commentary

During the current COVID-19 pandemic, there have been a few reported incidents involving members of the Canadian Forces (CF) who have made public comments that are inconsistent with the commentary and position of the Government of Canada regarding the response to the COVID-19 pandemic.

Readers of this Blog will likely recall the news in May 2021 that Officer Cadet (OCdt) Ladislas Kenderesi, an officer with the Cadet Instructor Cadre of the Reserve Force, was charged with one count of persuading another person to join in a mutiny, contrary to s 81 of the National Defence Act (NDA), and one count of behaving in a scandalous manner unbecoming of an officer, contrary to s 92 of the NDA.

Two more incidents were the topic of a recent news report by Ottawa Citizen (and PostMedia) reporter David Pugliese: Special forces soldier faces scrutiny for alleged support of convoy protesters.

Mr. Pugliese discusses two apparently unrelated incidents in which members of the CF expressed overt sympathy or support for the protesters who descended upon Ottawa over the past couple of weeks.  One incident involved a sign purportedly placed in the window of the home of a member of Canadian Special Operations Command (CANSOFCOM).  The other incident involved a video posted to social media by someone wearing a CADPAT uniform and who appears to be a junior non-commissioned member (NCM). CF spokespersons confirmed that the person appearing in the video is a member of the Canadian Forces.

Mr. Pugliese also mentions that the court martial for OCdt Kenderesi is scheduled for September of this year, although, as of the date of the present Blog post (10 February 2022) that information is not posted on the Chief Military Judge Website for upcoming court martial proceedings.  (And, since the CF has been without a Chief Military Judge for almost 2 years, would it be more accurate to call it the Acting Chief Military Judge's website?)

Readers may be interested in the following comment from the CF Public Affairs spokesperson who spoke with Mr. Pugliese:

[In relation to the allegations against the member of CANSOFCOM] Le Bouthillier said Wednesday that, depending on what the Canadian Special Operations Forces Command determines, the military could decide to take either administrative or disciplinary action against the soldier.

... 

[In relation to the NCM appearing in the social media video] “The member’s chain of command has been made aware and will conduct a fulsome investigation into the matter and ensure appropriate corrective action,” Le Bouthillier said. “Members of the CAF must remain impartial when communicating publicly and are not permitted to express their personal views when in uniform.”

Le Bouthillier said any member of the Canadian Forces who brings discredit to the military “through either conduct or performance deficiencies, be it through actions or words, will be held accountable.”

Note that there is a clear suggestion that these incidents may be addressed under either the Code of Service Discipline or through administrative measures.  In light of trends demonstrated by CF decision-makers over the past several months, I suggest that it is likely that the response to the two incidents will be administrative, rather than disciplinary. 

For example, as Canadian Press reporter Lee Berthiaume reported recently, approximately 1300 CF personnel have declined to be vaccinated against COVID-19.  None of those personnel were charged under section 126 of the NDA, which creates an offence of refusing vaccination without reasonable excuse.  Instead, the vast majority of these personnel - those who did not benefit from 'accommodation' under either medical or religious/creed grounds - have received Recorded Warnings (RW) and, subsequently, Counselling & Probation (C&P), under the CF's Remedial Measures policy (Defence Administrative Order and Directive (DAOD) 5019-4).  Those who have been subject to these Remedial Measures and who still do not receive vaccination will also very likely be subject to compulsory release under item 5(f) to the table to QR&O art 15.01, following an Administrative Review under DAOD 5019-2, unless they obtain a voluntary release.  This compulsory releases have already begun.

However, within this 'administrative' process, the documentation of the Remedial Measures and subsequent Administrative Reviews under DAOD 5019-2 have expressly and repeatedly make reference to 'refusal of lawful orders', 'refusal to obey and support lawful authority', and 'conduct deficiency' or 'misconduct'.  The administrative action that has been, and is being, taken is characterized very clearly in the language of conduct and discipline.

An 'administrative' response to the alleged actions by the above-mentioned CANSOFCOM soldier or the junior NCM ought to be of interest to anyone concerned with military justice.  The alleged incidents describe circumstances in which freedom of speech, guaranteed under section 2 of the Canadian Charter of Rights and Freedoms (Charter), is at issue.  Like all rights under the Charter, these are not absolute rights.  They can be subject to "... such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." (s 1 of the Charter).

One of the principal limitations pertaining to CF personnel, and which is relevant to issues discussed here, is art 19.36 of the QR&O - 'Disclosure of Information or Opinion'.  Specifically, para 15.36(2)j. states:

(2) Subject to article 19.375 (Communications to News Agencies), no officer or non-commissioned member shall without permission obtained under article 19.37 (Permission to Communicate Information):

... 

j. publish in writing or deliver any lecture, address or broadcast in any dealing with a subject of a controversial nature affecting other departments of the public service or pertaining to public policy.

The present blog post does not venture an analysis on whether the limitation of such expression of opinion by CF personnel is justifiable, or under what circumstances such limitations would be justifiable.  However, I will suggest that the examination and analysis of the pertinent Charter issue(s) would be far more robust and reliable if conducted before an independent decision-maker, schooled in the law, such as a military judge presiding at court martial. 

I suggest that it is more likely that the two recent incidents described by Mr. Pugliese will be dealt with using administrative measures, and decision-making processes that fall to CF officers who do not benefit from the same indicia of independence or legal training as military judges.  That doesn't mean that the affected CF personnel will not have access to some, limited, procedural fairness.

They will likely be offered an opportunity to make representations to the decision-makers, after receiving some measure of disclosure of the justification for the administrative decision that they face.  I would be hesitant to comment on the quality of such disclosure; I have encountered wide ranging examples of disclosure, varying from what may be characterized as 'robust' to 'negligible' or 'non-existent'.  The affected CF personnel will likely be given an opportunity to make representations in writing.  They would even be permitted to raise arguments grounded in the Charter and public law.  While they could seek legal assistance, it would be at their own expense and counsel would not appear in person in a viva voce hearing.  The statutory decision-makers can - and likely will - seek legal advice from their legal advisors in the Office of the JAG.  Clearly, they would incur no personal expense in doing so.  Nor is there a guarantee that they will seek legal advice.

However, these decision-makers are not independent, or even arm's length.  Their decisions will not immediately be subject to scrutiny by independent judges.  If the affected CF personnel are subject to adverse decisions which they believe leave them aggrieved, they make bring a grievance under the CF's statutory grievance process.  That is often not a timely remedy.  Nor is the grievance decision-maker any more independent than the initial statutory decision-maker.  If the affected CF personnel are subject to significant adverse administrative action - up to compulsory release from the CF - it is unlikely that the grievance process will produce any remedy prior to the implementation of any administrative sanction.  They can, eventually, seek judicial review before the Federal Court.

The manner in which these matters are addressed in the coming weeks or months will be worthy of examination in the context of military justice.