Should the Charter of Rights and Freedoms and the Canadian Human Rights Code apply to the CF?

[Cloud Cover]

I want to pick up on something that PBI alluded to in an earlier post in http://army.ca/forums/threads/17581/post-91000.html#msg91000, [culture of blame/entitlement], and perhaps this should be a new thread as it may be good topic for future reference. This comment is directed at current and former members of the CF who served through all or part of the 1980's ... of course, all members are welcome to respond.   Should the Charter of Rights and Freedoms and the Canadian Human Rights Code apply to the CF?

My experience both in the uniformed CF and in my present occupation on civvie street in a self regulated profession leads to me to conclude that neither the Charter of Rights and Freedoms nor the Canadian Human Rights Code ought to take jurisdiction over currently practised policies, pratices and procedures WRT CF employment policies. I believe that while the CF should adopt policies, practices and procedures that reflect the values and priciples of the Charter and the CHRC, those statutes and constitutional imperatives were not designed for military application, and do not take into account the reality and necessities of military service.

Instead, here is what I think should be put in place:

The Ministers Advisory Board on Gender and Employment Equity should be immediately disbanded. All of their reports ought to be thrown into the burn bag. The MABGEE is, was, and will always be a waste of scarce resources that has never produced a credible report or reached a decent conclusion on their own. They constantly recommend changes resulting in further "feminization" - i.e. lowering of standards to achieve what they call "true equality" and related concepts.   [and I mean that in the "global sense", therefore in no way am I advocating gender discrimination in the military.]    

The CF Greivance Board, insofar as it deals with human rights issues, should be reconstituted as a board of first instance, and nothing more.   Civilians employed in the capacity of giving human rights advice or other support may be retained or re-employed as necessary, but they ought to be vetted for any hidden personal agendas.  

A new Tribunal or Board [not one of the JAG variety] should be established, staffed only with properly qualified   members [not lawyers] who are currently serving or who have served with distinction in the CF.   Selected members would sit on the board for fixed terms, around 4 years or so, and all appointments to the board should be on the approval of a majority of a 10-15 member selection committee comprising long serving NCM's only.   Tribunal appointments will be staggered to ensure a mix of experience with fresh perspectives is available and reflected in the decision making process. Let me clear here: Tribunal members are separate and distinct from selection board members. The MND/CDS and all related clowns will have no say on the composition of the Tribunal or the selection committee.


The CF should have its own Code dealing with human rights types of matters. The Code should incorporate to the maximum extent possible fundamental rights and values of the Charter and the CHRC, without imposing an undue burden on an organization whose primary function is [ought to be] war fighting.   In the decision making process, the Tribunal or Board could and should refer to decisions of other human rights tribunals, however the legal principle of stare decisis [binding precedential authority of a higher Court] will have no application in the Code.  

Every member of the CF will be subject to the Code and all of its provisions.

Every member of the CF ought to have gauranteed access to the Code in the event of a breach of the Code.   The Office of the Military Ombudsman will have the right to be notified of every hearing before the board or tribunal, and will have the right to make representations and arguments before the board. The OMB can, with the consent of the complainant, represent the complainant.

No reprisals may be taken for a complaint under the Code that has merit or even breaks new ground.   Frivolous and vexatious complaints calculated or designed to cause injury to the reputation of respondents in the system will be dealt with by appropriate sanctions including a reccommendation for dishonorable discharge.

The board or tribunal shall have remedial order making power including order to accommodate, and in certain cases monetary damage awards payable to the complainant. The board may make recommendations to have respondents face further administartive action such as demotion, dismissal.      

The Code should be subject to judicial review on a standard of correctness for the interpretation of "law" but with certain modifications in order to exclude the more oppressive systemic remedies that may be, and have been, imposed by the current civilian system. In other words, the Code will not be subject "to the political winds of the day."

Above all, common sense will prevail. The "principle of fairness", properly modified to a military requirements, ought to be the driving feature of the Code.

"Patent unreasonableness" WRT   interpretation of matters of fact, policy and procedure, and operational requirements should be the level of deference given to a Tribunal or Board charged with overseeing the enforcement of the Code.

I think one benefit of such a system will be that civilian oversight of military human rights affairs will be eliminated, however due process rights with legal representation will be preserved and enhanced. The present one sided David v. Goliath aspect of military human rights issues will be substatially evened out, and the risk of expensive and demoralizing systemic remedies will be much reduced if not outright eliminated. Above all else, political interference will hopefully be eliminated.    

The entire rights system should be funded by the DOJ, and not the DND.

At the present time, twenty year olds entering the CF today were born into the Charter era and the evolving concept of rights and   entitlements. They are products of what some in the legal profession refer to as the "culture of victimhood" that permeates Canadian society. Therefore, they have probably experienced nothing different than what the Charter has provided for them. In contrast, there are serving members who enrolled in the CF before the Charter, and have seen/experienced some of the collateral damage inflicted upon the CF as a result of the surge in human rights and Charter based decisions ... while some of those decisions have produced just and fair outcomes, many have resulted in changes which undermine the effectiveness of services by damaging morale; imposing systemic remedies and education programs which are expensive, time consuming and of little value for the effort and resources invested; and in a few cases have resulted in lowering of critical training standards.  

My apologies for carrying on at length, and perhaps this should be set up as a separate topic for discussion.

Cheers,
Fred.        


Edited by M. O'Leary to split from older thread and insert reference link in first para.

 

[pbi]

Fred: a great post: I hope it stirs others to write as well. I agree with your points, and you have thought the plan out well. BZ. If we really could do this, I believe it would be good for us.

The obstacle we face is, in my mind, a political one: I doubt any Canadian government that could actually win a majority in this country would be inclined to exempt us from the provisions, even though perhaps the "notwithstanding" clause might apply.

As well, we would have to police ourselves very, very well, in a completely transparent way. We could not send a signal to the latent dinosaurs and sickies that it's time to turn back the clock. That would skewer us, because to a certain extent that's what attracted the unfriendly fire to us in the first place. We had some pretty unpleasant people in the Army, and they played right into the hands of the do-gooders.

Cheers.

 

[Slim]

Excellent post. I agree 100%. The introduction of the human rights and all that goes with it have lowered the standards of our fighting forces to the point where they're not even allowed to call them selves fighters anymore. And as for gender normalizing...One army, one standard. enough said!

Slim

 

[Infanteer]

Other militaries (Australia, Britain, United States) have to some extent saw fit to exclude their Armed Services for the demands of a society on the basis that these demands may inhibit the ability of the Military to fight and win wars.  Clearly the national interest of security overrides the ideal desire for "equality" (a concept which is also up for interpretation).

As well, I further challenge the notion that the Canadian Forces should be a representative of the society it serves and that our recruiting and training policies should be brought in line to promote this ideal (Bold Eagle, "Women in the CF" at the forefront of the Recruiting page)

The Military is a specialized institution charged with a unique duty.  As such, it should be free to define the norms of its sub-culture as it sees fit to promote the duty of warfighting.  A military will never be able to reflect the society it represents and any attempt to do so can only result in failure. 

As a friend of mine stated "The military is not a microcosm of society.  By that logic 40% of our members should be obese, a fair number should be drug users of various sorts, a percentage should be criminals, child molestors, rapists, and murderers, we should be 51% female, all trades, a quarter of our members should be pacifists and various other forms of hippy/commie/socialist, plus the various slackers, losers, and wastes of air inherent in society.

In short, this society is the last ****ing thing I want to blend in with."

In other words, there is no standard to be a citizen of Canada and be treated as such; hence the system of rules the government has.  However, the military has a mission, and the fundamental importance of this mission determines that the CF should be free to enforce these standards as long as they promote the overall success of defending Canada.

 

[Slim]

Very well put...

I see nothing wrong with women or anyone else, for that matter, in the CF in an trade...So long as the standards don't have to be lowered to get them in and they can do their job along side everyone else and hold up their end with no unusual problems.

Obese people...Well this has been discussed before and just because youre heavy doesn't mean your out on your keester, but there IS a line that should not be crossed.

Slim

 

[Infanteer]

I see nothing wrong with women or anyone else, for that matter, in the CF in an trade...

I agree.   I find it amusing how the CF goes to lengths to stress SHARP training and pushes the image that "it doesn't matter who you are, eveybody is green...." while at the same time asks people to "self-identify" their ethnicity on recruiting forms and deliberately promoting the accomplishments of certain groups to the public for the aim of some ideal "equality of representation".   Seems like conflicting approaches to me.

Obese people...Well this has been discussed before and just because youre heavy doesn't mean your out on your keester, but there IS a line that should not be crossed.

I think there is a clear line.   There are people with a little beer-belly or an extra chin that are still quite physically fit; just because they may not look lean and hard does not mean they are not effective soldiers, proper physical fitness standards can determine that.
Then there are people who are medically obese, so grossly overweight and likly to suffer from heart disease, circulatory problems, etc if they continue to live their lifestyle as they do; clearly, these conditions are more then likely to prohibit them from functioning properly in a militrary environment.   The sad thing is, I've seen people like this in the Forces.

 

[Slim]

One thing I've always liked about the U.S. Marines is that no matter your job everyone is a Marine first...We could go along way with that sort of attitude.

As for your observations on Obese people Infanteer, you're absolutely right. I had an acquaintance who was clinically obese working in the security industry. He has just died while still a relatively young man (42).

He died in bed and with no warning. No word on what killed him but I'll bet it was heart disease!

Slim

 

[Cloud Cover]

Well... I just want to be clear about something here. Human rights and the Charter defintely have a place in the CF, the point i was hoping to make was that the CF is a professional organization, and to a certain extent should be permitted to self govern under it's own Code, this is substantially different than the current regime in place. As I indicated, the Code would displace both the Charter and the CHRC, requiring not a section 33 clause, but a constitutional amendment within a federal sphere [provinces not required to sign on.]

In fact, quite appropriately the CF would be the only organization in the country with such a Code, subject, as I said in my first post, to judicial review.  As an aside, even organizations such as the Law Society of Upper Canada, must interpet and apply the Charter and the Onatrio Human Rights Code to our own Rules of Professional Conduct. And yes, the LSUC has its own, very pro-active discipline committee that some[ ] call nothing but a vehicle through which many special interest agenda's are advanced. As a result, the LSUC is viewed with contempt by many honest, practising lawyers in Ontario. Sound familiar? That is why I am advocating no politcal input what-so-ever, as well as a board appointed by long serving NCM's and not senior officers and b-crats. 

As far as the US, Australia and others are concerned .... most Western democracies have no similar piece of constituional documents [ and that includes the US Bill of Rights etc.]. The Charter is a uniquely Canadian legal construct that has origins in... you guessed it.. Quebec .... and who brought in the Charter? ... 2 Quebecois .. PET and JC. Both lawyers, both never served in the armed forces or for that matter anybody other than their own interests.  But then again, I guess they were put in charge by the electorate because of their superior intellect and ability to identify with the concerns of average Canadians. [sarcasm]


 

 

[Slim]

Heaven save the forces from well-meaning (or not) politically minded feminest, leftist well wishers that would do away with the service in a heartbeat. Yerch! (makes noise of disgust!) :rage:

Slim

 

[Infanteer]

I think the origins of the Charter of Rights and Freedoms is a little more complex then simply "Quebec".  Also, I don't think we should try and label such a proposition as "protecting the Forces from the left" as it tends to turn an appeal based upon the interests of the profession at heart into more of a political rant, turning the subject into a political one which is precisely what we are seeking to avoid with the proposal.

 

[Cloud Cover]

Infanteer: you are correct that origins of the Charter are not simply based on the Quebec Charter of Rights and Freedoms [RSQ 1976], however it served as a useful precedent. Of course, the Quebec Charter cannot be inconsistent with the Canadian Charter. As far as left bashing, I agree. WRT PET and JC ... not meant to be a political bash either ... but they are from the same cloth in so many ways, but so was Brian M, and the same with the present occupier of 24 Sussex Dr. People like that continue to form governments in Canada which subsitiute shifting political policy for sound military policy. In the past 30 years, only two political leaders have consistently favoured the latter over the former   .. Steve Harper and P. Manning. Neither has/had a snowballs chance of forming a government, partly because of their views on things of a military nature.   Oddly enough, and despite media reports to the contrary, they are strong supporters of the Charter, but not the twisting of legal concepts to arrive at a construct of equality substantially different than one that should apply to a military organization.

Best regards,
Fred.

 

[clasper]

Sorry for not quoting your entire sentence, but the following phrase just leaped out at me:

...they are strong supporters of the Charter, but not the twisting of legal concepts to arrive at a construct of equality...

So are you against the Charter of Rights and Freedoms being applied to soldiers, or against lawyers trying to make a buck by proving that blind epileptic grandmothers deserve an equal opportunity to pursue their dream of joining the infantry?   (No offense to any blind epileptic grandmothers out there with military aspirations...)

The various boards out there (MAGBEE, etc.) could definitely benefit from some level of reform, and I think many of your ideas have merit, but I think it is hypocritical for Canadian soldiers to not be subject to the Charter of Rights that they are fighting to protect.

Two phrases that have been used to describe a current cultural problem are "culture of victimhood" and "culture of blame/entitlement".   Since this problem exists in most western countries, I don't think this problem can be attributed to the Charter of Rights and Freedoms or the Canadian Human Rights Code.   Based on my personal experience (living in my 3rd western country now), I would refute that the problem is worse in Canada because of the Charter.

I believe this cultural problem is the root cause of your dissatisfaction, and throwing out the Charter for soldiers (and going through the bother of writing another Code for them) isn't going to solve the root cause- it's just going to cover up some of the nasty symptoms.

 

[combat_medic]

I think the biggest point being debated here is making the CF "equal" versus "egalitarian".

The former allows anyone to serve, regardless of gender, ethnic origin, religion, political views, sexual orientation etc., provided they meet the requirements to serve.

The latter would allow everyone to serve. To allow in a quadrapalegic with cerebral palsy simply because it would be against the Charter to do otherwise.

While I don't think it's possible to apply either the Charter of Rights and Freedoms or the Human Rights Code directly to the CF, I think our own regulations and codes should be based off them, for the most part. Allow soldiers to serve in an enviroment free from harrassment, abuse, assault etc. (within reason), while still maintaining the standards that the CF dictates. Give a soldier who's arrested the right to instruct and retain counsel, to a free and impartial trial, as applicable, and a right to appeal. Let women serve without the fear of abuse of authority, harassment, and let minorities serve without fear of prejudice.

Everyone seems to have a problem with SHARP training and, while I found the lectures and videos about as interesting as dental surgery, I could certainly see their use. For a person who does not have any preconceived prejudices, and who will likely never discriminate against someone else, they will probably see the training as rather useless. But for the one guy out of a hundred who is a racist/sexist/whatever-ist, it gives him fair warning that is he acts upon his prejudices, there will be consequences, and maybe he'll make the smart decision and keep his opinions to himself.

The Charter and Code were written based on the ethos of the Canadian people. While the CF is, and should be held to a higher standard, we are still Canadian citizens, and should have the same ethics as the remainder of the country. We're around to defend the ethics and principles that make us Canadian.

Just as the US "don't ask, don't tell" military policy is reflective of current US social views on sexual orientation (unfortunate as it may be), our policies in the CF are just as reflective. The Canadian government removed the death penalty in 1976, but the Nation Defense Act kept capital punishment on the books until 1998. While it hadn't been carried out for 50 years, the military saw it necessary to keep their laws tighter and more severe than the remainder of the country, and they still do. Offenses that are considered a misdemeanor in regular court could land you in detention barracks in the CF. With power comes responsibility, right?

While the CF may not apply either the Charter or the Code directly to soldiers, I have no doubt that the Generals who are writing CFAOs, the NDA and other governing documents of the CF certainly are keeping them in mind.

 

[Cloud Cover]

Combat Medic- it goes much deeper than that ... Canadian Forces members have a far tougher time obtaining justice than other members of society for a myriad of reasons. I think internalizing Charter and HR problems to an arbitration board comprosed of military personnel would manifestly produce far more expeditious results which better suit the military way of life. We don't ask civvies to settle their Charter and HR problems under the rubric of a military culture, yet it is expected that the reverse apply to serving members. Ralph Irvine fought for 10 years before he received proper recognition by the justice system, despite 29 years of outstanding service and the fact he had the support of his superiors the whole way through. They were more than willing to accommodate him, it was the b-crats who made a fight of it. Mr. Matt Stopford's case is another glaring example of atrocious behaviour that transcends bounds of common decency, let alone respect for his current medical status. Will he ever see the day? .... Would he have to fight so hard for compensation if his cause was one of a different more politically sensitive nature? He has not suffered from percieved inequality, so somehow this has raised the threshold with respect to his claim. He is disabled, he can no longer serve, and he has been discriminated against in a multitiude of ways ... and for what purpose? 

I am in favour of Charter/HRights principles for serving members of the CF, I just think that the opportunity to invoke procedural delay in the current system is too tempting for the higher ups to pass by. Conversely, a different standard is provided for them, and there is rarely a time for them to go cap in hand and request fair treatment. They just take it, and more.

And yes, the concept of gauranteed success with respect to certain egalitarian outcomes is troubling given the nature of the institution and it's assigned role, which is not analogous to any other in society.   

 

[bgreen]

Great discussion....,

This year I am teaching History 30 to a group of grade 12 students and I will cover the charter as part of the curriculum material.  In covering their rights as citizens I am also going to challenge these students as to their responsibilities.  As part of the responsibility training, I am covering leadership styles and follower duties, service to country and others, as well as being informed decision makers.

I just completed the Law of Armed Conflict course at PSTC in Kingston.  I am very proud that we as CF members have agreed to such a chivalrous code of conduct.  Likewise I think the Charter is a cultural practice that would be the envy of a lot of developing nations.  But I feel quite strongly that we need a warrior ethic that is valued by CF members, our government and of course Canadian citizens.

While not advocating a class structure, I think a valued class of warriors/soldiers (Gurkha) governed by the NDA and QR and Os is the way of the future.  Our veterans did heroic deeds.  Our serving members are likewise engaged in honourable missions.  How do we encourage/demonstrate to those yet to come and our nonserving citizens our worth if not by our own service freely given?

 

[Infanteer]

Ahh, the timeless debate of the essence of the "warrior culture"; I've seen arguments get wrapped around the axles over this theoretical concept; often in misapplied rants.

BGreen, good on you for giving our young students such a lesson.  I am glad to see that now every teacher is a card carrying unionist that insists that Louis Riel was a hero and all Canada did in the Second World War was to intern Japanese people.

 

[pbi]

"I believe this cultural problem is the root cause of your dissatisfaction, and throwing out the Charter for soldiers (and going through the bother of writing another Code for them) isn't going to solve the root cause- it's just going to cover up some of the nasty symptoms.

Hmmm. Good point here. I'll reverse engines a bit to accept that this may indeed be true. Maybe wwe don't need to change the protection of rights: maybe we need to change the attitudes of our people. My example is the USMC, with whom I have some famiilarity: while I do not know to what (if any...) extent the US military is exempted from the Constitutional Amendments or other bills of rights, I know that the US is a nation that holds these things up very proudly. The Marines, however, do not have to deal very often with Marines who are fat slobs, or who won't cut their hair, or who want to dress and act like ragbags. This is, in my opinion, because Marines have learned to develop a warrior spirit and a fierce pride in being Marines. As a rule they do not act in any whiny, unprofessional manner, and they look down severely on the US Army which they regard as an employment agency for the indigent of America.

The Marine of today is trained under a revised Recruit Depot system known as "The Crucible". While this has had mixed reviews by Marines and others, a key idea behind it was to work on challenging the minds of young recruits as well as their bodies. Emphasis was placed on identifying and developing natural leaders, and on instilling the importance of virtues such as honesty, persistence, team work and courage. These virtues were specifically noted as lacking in Marine recruits and it was felt to be affecting the Corps.

The Marines are not perfect, and the Corps has its problems. But, I think they have taken a path that we should follow. Train and educate our people to think of themselves as soldiers first, with mission ahead of self. Much as bgreen has suggested, we need to instill the warrior culture and outlook, to offset that whiny "what's in it for me?" mentality that permeates our society.   (Good post bgreen-how was the tour?) There are pitfalls, and we risk the mortal sin of being un-PC, but perhaps there are greater risks we should think of. Cheers.

 

[Torlyn]

I think the biggest point being debated here is making the CF "equal" versus "egalitarian".

The former allows anyone to serve, regardless of gender, ethnic origin, religion, political views, sexual orientation etc., provided they meet the requirements to serve.

The latter would allow everyone to serve. To allow in a quadrapalegic with cerebral palsy simply because it would be against the Charter to do otherwise.

I think you may be mistaken here...  THe charter does not, and would not grant said quadrapalegic with CP in to the armed forces..  The caveat being "...[CCRF] guarantees the rights and freedoms set out in it subject only to (this is the important part) such reasonable limits prescribed by law as can be demostrably justified in a free and democratic society."

This is how certain exemptions such as the one you erroniously mentioned would not occur.  What I find extremely alarming is the propensity in this thread for people to ignore the CCRF for military application...  I thought that as part of the military, you (not sure on the honourific...  I'm in the application process right now, so in order to not ruffle feathers, I'll stick with honourific "you")  are supposed to defend the beliefs, rights, and freedoms of Canadians.  Given that the CCRF was created in order to codify said rights & freedoms, it seems somewhat hypocritacal to swear an oath to protect these rights, and then request/desire a different set of rules/regulations for those protecting these rights.  combat_medic, I'm not suggesting that you personally believe this (as you stated further on in your post, regarding protection of the Canadian ethos), nor that you alluded to it in the quoted reply, I'm commenting on the thread in general.

As such, please keep in mind that this is a civillian perspective, which, while I'm sure some members will ignore it completely, or slag it due to its evocative nature, will hopefully be granted the same respect that messages from acting/retired members deserves.  Thanks,

B.N.S.

 

[Bruce Monkhouse]

Torlyn,
I know who you got the info. from about "slagging" something just because it came from a civilian and thats NOT the way we work around here. Your last post was a good solid post and I could care less who gave it, that is all we ask of people so that this will continue to be the place to go for good solid info and discussion.
The one thing that I can see wrong with your post[just my opinion] is yes the serving members took an oath to uphold,etc. but sometimes, I believe, it is required for the keepers of the piece to be able to fight against those who would try to destroy the peace, on the same terms, some of which would make the charter cry. This probably has come about because of my present trade and the things I get to see and hear.
And just to restate, all we ask on the site is that when something is just your opinion, state it as such.  Thank you,
Bruce

 

[clasper]

...sometimes, I believe, it is required for the keepers of the piece to be able to fight against those who would try to destroy the peace, on the same terms, some of which would make the charter cry.

Could you expand on this Bruce?  I'm having a hard time envisioning a situation where soldiers fighting for peace would have to go against the Charter (perhaps a lack of imagination on my part).

Torlyn: a much better post than I have come to expect from those in the ninja sniper clan.  Please keep heading in that direction...