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

[Bruce Monkhouse]

Clasper,
I read my post again and went, hmmm also. Where I was leaning to about the charter was more the search/ admissibility of evidence/ detainment that "might" be necessary in a certain situation/crisis.
Just a situation to help explain my position[cause I'm not doing a good job :-[]   Say, at the Oka crisis,   when a Mohawk   warrior would come out towards the military lines you can be sure that there was a "line" on the whole time.   Now if tonight during an exercise, for example, a military sniper was doing the same thing in the same place there could be a charter case brought up on discriminatory grounds.

 

[combat_medic]

I'm not suggesting that the CCRF should not apply at all to the CF, but there are parts of it that could not be applied to military life. Members of the CF are often given powers, both at home and abroad that are above and beyond what regular civilians have, and as such, are subject to more strenuous laws to keep them in check (part of the "with power comes responsibility"). Discipline with such power must be maintained, or all you have is a bunch or uniformed thugs walking around with assault rifles.

I stated that the NDA and CFAOs and other laws by which members of the CF are bound should be based upon the CCRF, and upon the ethos of the Canadian people. However, having the CF obey the CCRF verbatim would not work. The CF needs more freedoms at times (aid to civil power, war measures acts etc.), and needs to impose harsher discipline upon its members at others. Therefore, while we as soldiers should strive to uphold the CCRA among other 'Canadian' principles and ethics, we cannot always be bound to it. We need to hold ourselves to a higher standard, and that requires tightening the rules at times.

 

[Highland Laddie]

"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.

I agree with the points made here, both pro and con with the USMC 'system' or 'ethic' in regards to equality, etc.

At the end of the day, the incoming 5.56MM / 7.62MM / 81mm / 155MM round is not going to care about your race, gender, age, language, etc. The fact of the matter is we are soldiers first, individuals with our unique attributes (race, gender, fitness, trade) second.

The lack of cognisance on this underlying fact is one of the key problems when dealing with 'Charter' issues in the CF. You should be able to fail people off of their BMQ/SQ/MOC/ etc course if they are not physically fit or physically capable (unlike today), because at the end of the day this may cost them their lives or someone else's life. All the Charter rights in the world won't do us a bit of good if we can't defend ourselves and our national interests, and thus have someone else's "Charter" imposed on us.

 

[Slim]

Well having been in both the old army and the new, and watched one change into the other I must say that there are some good changes and some bad ones with respect to the troopies and how they're treated these days.

But really when it comes down to whom to employ and whom to get rid of (and I understand that someone has to be really bad before they do) the only deciding factor should be Can they do their job

If not, whats the point in keeping them? You're just wasting money (which is in short enough supply these days)

Is the army that scared of lawsuits that they cannot turn away anyone unless they're stark raving loonie, drooling on the pavement or have no pulse? Are there that many special interest groups waiting in the wings to pounce on the Forces if they don't hire so and so who is a member of the XXXXX Rights Organization?

I guess there are...

Slim

 

[Brad Sallows]

I think it important to clarify, and anyone who dissents from being included in "we" may do so: when we write or speak of soldiers operating under "different" rules, we almost always implicitly mean additional limitations, not liberties*.  The soldier safeguards democratic principles and human rights without necessarily enjoying the full benefit of the freedoms and entitlements and powers, but rather with additional burdens of duty and responsibility.

Rather than throw out the book and write our own, it is easiest to start with the Charter and seek exemptions only where demonstrably necessary - which is how it is done.  That not all the necessary exemptions have been sought or successfully proven is not a compelling reason to start from scratch.  If a limitation is ideologically imposed rather than rationally, it isn't going to matter whether we are subject to the Charter, etc, or not - the political will trump the military.

*Exceptions?

 

[loyalcana]

I'm not suggesting that the CCRF should not apply at all to the CF, but there are parts of it that could not be applied to military life.

May I ask which parts of the Charter you think should not apply in military application?

 

[Cloud Cover]

Hello all:   I looked at my first and second posts and I guess I should have said in the first paragraph :    Should the Charter of Rights and Freedoms and the Canadian Human Rights Code apply to the CF as of right?

And in the second paragraph, I should have said: â Å“the Charter of Rights and Freedoms nor the Canadian Human Rights Code ought to take jurisdiction as of right over currently practised policies, practices and procedures WRT CF employment policies.â ?

In neither post did I advocate exempting the CF from the general intent of both pieces of legislation, in fact I suggested a Code or Rules of conduct which should reflect the rights afforded under the Charter and the HRights code, with necessary military modifications. CFAO's and the like would be subject for analysis to this Code, not the conventional Charter and CHRC. And, the Code should be part of the governing legislation of a self regulating profession, because civilian tribunals and courts are constantly analogizing military situations with civilian ones, and then importing civilian remedies and ethos into what should be a pristine military environment.

Simply creating such a Code by statute is not going to purify the CF of it's social reengineering taint, nor will it chase away rednecks who are still serving. A change of code is not a substitute for a change of culture. That takes leadership in the form of leading by example, acting professionally and competently in the face of adversity, and a willingness by all to learn from others.   It seems the prevailing standing doctrine of government is one of distrust of all things military, and only the military can change that. It won't happen if the military has to go to the civilian justice system to sort itself out.  

 

[Cloud Cover]

Re: Torlyn's post. I agree with Mr. Monkhouse, nothing wrong in format with that post, although I respectfully disagree with parts of the substantive argument put forth:

Torlyn said:
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."

Agreed. Nobody gets into the CF because of the Charter. A person with CP would almost assuredly not get admission to the CF. That was an extreme example, and so was the Granny one earlier, although lots of service members are grand parents! With respect to the Section 1 onus placed on the CF, see para. numbered 38 below to see how muddled that can actually be. The thread is not just about admissions to the CF, in fact I meant it to be more about what happens if, for example, a member acquires a brain injury while serving. I would expect the CF to do a lot better with respect to the treatment of the injured than it has recently. In fact, the Charter and HR Code requires this be done, as seen below in this 2004 CHRC decision, where the CF actually tried to argue, in part, the Charter did not apply, but even if it did, they were in compliance with the Code:

â Å“[38] The third portion of the Meiorin analysis requires that the impugned standards be reasonably necessary for the employer to accomplish its purpose; i.e. the safe and efficient performance of the job. The CAF must establish that it cannot accommodate the complainant and others adversely affected by the standard without experiencing undue hardship. The CAF must ensure that the procedure, if any, to assess the issue of accommodation, addressed the possibility that it may discriminate unnecessarily on a prohibited ground. Second, the substantive content of either a more accommodating standard which was offered by the CAF, or alternatively the CAF's reasons for not offering any such standard must be assessed. As I have already found at paragraph 139 of the 2001 decision, the September 1995 guidelines, to the extent that they allowed for individual assessment, were reasonably necessary to accomplish the CAF's goal of ensuring that members meet universality of service. Thus they evidenced a more accommodating standard in assessing members suffering from CAD than the prior 1979 standards and bridging policies. Yet the CAF failed to use a more individualized accommodating standard, such as that found in the September 1995 guidelines, in assessing Mr. XXX (further elaborated upon below).â ?

Note: â Å“undue hardshipâ ? is a loaded legal term of art. In fact, the law requires an employer such as the CF to prove on a balance of probabilities that it would be impossible to accommodate an individuals request for Human Rights or Charter consideration, on grounds of disability or otherwise. This means either changing the job, or remuster, or some other alternative before claiming â Å“well, that's impossible because we are the army and our needs are inherently different.â ? The Meorin case noted above was one of gender discrimination involving a female forest firefighter in BC who could not pass newly implemented physical fitness standards. BC had to change the standards to meet the code. Is that an appropriate standard for the CF? The main quote, obviously, was from a case involving the air force.

Torlyn said:
â Å“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.â ?

In pith and substance, and despite the wording of the oath, members of the CF do not have to defend the beliefs, rights and freedoms of Canadians.   If they did, it would create a positive obligation to defend every citizens belief, right and freedom, real or imagined. The CF defends tangible things like the territorial integrity of a land wherein citizens may hold whatever rights, freedoms and beliefs the Legislatures and Courts say they can have. It cannot defend an ideal, because ideals are intangible.

Here's a little hypocrisy for you:

â Å“Tailoring Standards to Probability of Involvement In Military Duties

[51] The December 1999 review also acknowledged that some within the CAF had argued that minimum physical capability standards ought to be tailored to rank or according to the probability of involvement in General Military Duties or physically demanding activities. For example, in the case of an officer, it conceded that Career Review decisions did not place much emphasis on whether the officer had the ability to perform General Military Duties. This was in part because the specification of duties was indefinite and also because of the greater managerial/supervisory responsibilities of officers and their more numerous options for staff employment. Unfortunately this argument of tailoring standards to probability of involvement had been internally rejected on the basis that:

".... consistency in policy was essential if credibility with the Human Rights Commission were to be maintained. In other words, the Working Group concluded that it would be better to defend a one-dimensional policy that looked consistent, but which had little or no empirical grounding, than to attempt to defend a differentiated policy that more accurately reflected the requirements of different rank levels."

Why the CHRC feels it is unfortunate to have consistency in policy and standards in a military organization simply reflects that they are the wrong organization to be reviewing Charter and Human Rights issues at the CF. You have to admit, it takes an extraordinary amount of calculated gumption to facially implement a one dimensional policy, ostensibly for all of the CF, and then start making exceptions to it on a case by case, rank by rank, gender over gender, race over race system of promotion, retention, remuster etc.     Makes it tough for senior NCO's and Captains to look their troops in the eye and tell them that although they would prefer â Å“virtues such as honesty, persistence, team work and courageâ ?, when the chips are down, they'll have to take as a substitute the â Å“whiny "what's in it for me?" mentality that permeates our society.  [thx. pbi ;D]  This has lead to situations where, in the words of one Jurist, â Å“astonishingly disrespectfulâ ? conduct between a supposed aggrieved CF member and her superiors took place in an operational squadron.   The result was an ordeal before the CHRC that, although thankfully unsuccessful, needlessly ruined the careers of some dedicated professionals.

If anybody wants references on any of the above, i would be pleased to oblige.
Cheers ....

 

[Cloud Cover]

And finally .. lets fire things up here with a bit of humor tinged with sarcasm.      

Scenario 1

PM PM changes his mind. In exchange for a lucrative shipping contract between his son's company and Halliburton Inc. to transport bars of gold to the Cayman Islands, 1 RPR [the Royal Pearson Regiment:   part of the new â Å“money is limitless high readiness Peace Brigade.â ?] is tasked to go to Iraq.   PM PM goes to visit the troops before they leave to make sure they have everything that they don't need.   Corporal Lipshitz, a 34 year old white male who joined up in 1999 and was told he would be a â Å“peacekeeperâ ?,    [right after he graduated with a Poli Sci degree in International Relations from Queens] tells the PM outright that he will not go because it is too dangerous, all he was trained for, in his opinion, was peacekeeping and that he has a reasonable prospect of serious injury or dying over there. He says to the PM:

â Å“I'm not going over to that crap-hole, there's no air conditioning and I need that to control my skin rashes. Besides, I signed up to protect the Charter, not fight Bush's war. I know this war is wrong ... and I did a paper on this for my friends at the Hole-aris Institute. The government cannot jeopardize my right to life, liberty and security of the person in order to secure Corporate America's racist need for blood and oil.â ?

WO Armbuster, one of several thousand disgruntled ex-armour soldiers in the brigade, grabs Lipshitz and takes him out behind the ex-tank park. The next day, court martial proceedings were initiated against Sergeant Lipshitz. He faces life in front of the firing squad, except weekends because the shads need the range.

Lipshitz's JAG lawyer is a happy man because, even though he is new and started out as a Captain, he has this case all figured out.   With an eye on appealing Lipshitz's convictions to a civilian court, he advances 4 theories of defence:

A) Lipshitz has a right to life, liberty and security of the person under section 7 of the Charter. The government has the onus of proving that the deployment can be justified in a free and democratic society.
B) Lipshitz can advance an NCR [Not Criminally Responsible] defence: while drinking profusely the night before the incident, Lipshitz watched The Corporation and Fahrenheit 911. When he woke up in the morning, his state of mind was such that the only facts he knew about Iraq came from those movies. Mike Moore subliminally programmed him to snap. So, he was under a temporary state of memory loss, due to his problem with alcohol, which the military caused by stressing him out; and was thus vulnerable to subversion;
C) Lipshitz's current mental state precludes a trial because Armbuster beat him senseless;
D) Armbuster also broke his leg, depriving him of his right to mobility under section 6 (1) of the Charter, or in the alternative, section 6(2)(b) provides that he has a right to employment in a province, not a foreign country so the feds couldn't make him go anyway.        

Scenario 2

On Saturday, while visiting the troops in Iraq to make sure they aren't breaking the rules, Jake Leighton witnesses the Every 3rd day Adventist platoon, RPR, take a beating in an ambush where they were enjoying their protected day off. It seems the Mahdi have disrespected the Charter and the   Law of Armed Conflict by using the piggy platoon as human shields. PMPM gets pissed off, because Leighton calls up his friends at the Toronto Star, and accuses the PM of coddling up to the Americans while deliberately starving the military of proper equipment. â Å“This was totally preventableâ ?, says Jake â Å“We should have sent over some Merkva tanks and flamethrowers, just like me and the CBC told him before.â ?

PM gets pissed off, and orders the armour to re-equip ASAP. â Å“Act like an ad agency and do this quietly through the back door. This is no time to be cheap, the legacy I so rightly deserve is on the line here. Buy all the transport planes and tanks you need and make it snappy. You have 2 weeks to get over there and finish thisâ ?, he tells a bewildered B-Gen. Ippersquat.

While warily eyeing Pte. Armbuster [just out of the brig], who was lurking behind the PM, the B-Gen. politely refuses to go, saying â Å“my wife left me for another woman .... I'm a single parent now,   so I have to stay and look after the kids. I can manage the war from here by satellite feed. But I'm still entitled to the tax break, field pay and a couple of medals because we have a one dimensional policy on that.â ?

Every other soldier-parent about to be deployed has a spouse at home to look after their kids, so they have to go. Armbuster snaps again, and the next week,   after getting out of the hospital the good B-Gen consults his lawyer, who takes government purchase order numbers for payment. When apprised fully of the facts, the lawyer says â Å“Oh, don't worry, go ahead and continue to refuse ... they are discriminating against you on the basis of family status. You have a good Human Rights claim if they fire you, because they have to accommodate you under the same rules that they have for disabled people. Are there any more of you? Because maybe we could get a systemic remedy going and hit them with a cla$$ action. They should just be sending single straight guys over there. Anyway, even if I'm wrong, under the HRights code, they can't take any reprisals against you for filing the complaint. Let me know if they even mention it, because that's hara$$ment, and we can get them for that too. Now please leave, I have some Admirals in the waiting room   ... something about no stirrups in the sick bay of a submarine.â ?


       

 

[Bruce Monkhouse]

I think the worst part about reading that is that the HR people/lawyers read this and lick their lips in anticipation.

..and thier wondering where the sarcasm is.

 

[combat_medic]

Will, read whiskey's post above and you'll have your answer.

Whiskey, excellent post! Now who's willing to bet that some JAG or civvie lawyer is reading it and saying to themself, "Yeah, I COULD make that claim... what a great way to get a name for myself!"

 

[MissMolsonIndy]

I'm not suggesting that the CCRF should not apply at all to the CF, but there are parts of it that could not be applied to military life.

I disagree. I think that the exlusion of groups within Canada from one or more of the rights and freedoms in the Canadian Charter and the Canadian Human Rights code completely defeats the purpose of the Charter altogether: one people, one nation, standing on equal grounds (We live in a highly stratified society, where we all come from different political, economic, religious and social backgrounds. Inequality to a certain degree is inevitable, even in communist states. I believe the aims of the Canadian Charter/Human Rights Code is to compensate for the inequality within our society, and assemble everyone on as level a playing field as can be created.) I believe that the exclusion of one group, or many groups for that matter, would destroy the equilibrium already attained. Take for example Aboriginal communities. The Canadian government has granted Aboriginal peoples compensation, for the events that occurred throughout the colonial period, in the form of government-paid education, independent rule (in certain cases) and grants/bursaries, and the discrimination many Aboriginal communities face is on the rise because of it. Sure, they received compensation, and many communities were granted independent rule from the Canadian state, but at what cost?

Members of the CF are often given powers, both at home and abroad that are above and beyond what regular civilians have, and as such, are subject to more strenuous laws to keep them in check (part of the "with power comes responsibility"). Discipline with such power must be maintained, or all you have is a bunch or uniformed thugs walking around with assault rifles.

I won't deny that what you've said is true, but at the same time...the entire pie is missing from your slice. Members of the CF are often given powers, both at home and abroad that are above and beyond what regular civilians have, as are lawyers, physicians, politicians and any other memebers working within a specialized field. After excluding one group...where do you draw the line, and how? More importantly, what's to stop the exclusion of other groups which do not see the rights and freedoms applicable to their particular circumstances?

It would be wiser not to put yourself in a situation where you would have to draw a line at all.

 

[Spr.Earl]

A)  Lipshitz has a right to life, liberty and security of the person under section 7 of the Charter. The government has the onus of proving that the deployment can be justified in a free and democratic society


Scenario.

You are over seas,there is a protest.
You are part of the R.R.F. and are armed with live ammo facing the protesters.
You see a man with a lit moltov coktail what would you do?

 

[MissMolsonIndy]

To whom is your question directed?

And (assuming that Lipshitz is the supposed character in your scenario), is he/she the one holding the "lit moltov coktail", or the R.R.F. member?

 

[Infanteer]

MissMolsonIndy;

What you do not understand is that the military possess unique position within society as an institution that serves as the ultimate protector of the sovereignty of the state through the use of armed force.   Although other self-professed groups may have some sort of claim to exemptions or special revisions to the Charter (such as your example of Native groups, who base their claims on account of ancestry and relative time spent in Canada), most of these claims are very subjective in nature.   The military's claim however, is very real and necessary, due to the ultimate demands, up to the sacrifice of ones life, that soldiers are burdened with.

This unique status makes two requirements:

1) As Brad Sallows mentioned, extra responsibilities and burdens that are inapplicable to most Canadians under their Charter Rights.   In the civilian world, if you do not like your job, you can just leave (although it would be rude to do so abruptly).   In the military, the national interest demands that all soldiers are present when the state so requires; don't show up for work and you go to jail.   As well in your position, if you are unhappy with your boss or the government, you can apply for union certification, criticise them, or sign a petition to bring on pressure.   In the interest of discipline and loyalty, this is forbidden in the military as well.   Do either of these in a wartime setting, and you can be shot for desertion or mutiny.   These extra responsibilities and burdens are necessary for the maintenance of good order within a standing military force.

2) As Whiskey is alluding to with his proposal, their are certain legal requirements and obligations that the institution of the military must be exempted from in order to act unhindered in maintaining a functional fighting force.   Although not the case in Canada, other states (the US, Britain, Australia) have saw fit to ban women from combat positions in the name of cohesion and maintenance of high standards.   The issue is debatable (we've done it plenty of times here) but the principal is the same.   The unique and vitally important position held by a military force means it must be able to (in this case) recruit and train its members through application of only one standard, the performance of its soldiers and units in combat.   Trying to do so under any other principle (equality, Charter Rights) only invites disaster.

Good post, but ensure you understand the nature of the issue before you issue a blanket statement.

 

[MissMolsonIndy]

Fair enough. I like someone who can give it to me straight, I respect that. I'm all for new insight.

It'll prove to be interesting, because we're coming from two very different standpoints: legal and military.

I'm going to venture out and do some research on the subject...

Showdown begins tomorrow at sunrise. How good are you at rock-paper-scissors?

 

[axeman]

The charter already applies to us here in the military . just not much heard about it  it because the QR&O's out weigh them for many things .There are time that if you look you can see where they are a good idea but at times they are also a hinderance  like many things here you take the good with the bad . As to being in the RRF   the guy would be down under the right of self peservation of self and others. The charter was forced upon/introduced  into the CF in the early/ mid 80's .  ???  :fifty: its here live it, love it 

 

[Spr.Earl]

To whom is your question directed?

And (assuming that Lipshitz is the supposed character in your scenario), is he/she the one holding the "lit moltov coktail", or the R.R.F. member?

My question is too all in Uniform.
What would you do?

 

[Spr.Earl]

A)    Lipshitz has a right to life, liberty and security of the person under section 7 of the Charter. The government has the onus of proving that the deployment can be justified in a free and democratic society


Scenario.

You are over seas,there is a protest.
You are part of the R.R.F. and are armed with live ammo facing the protesters.
You see a man with a lit moltov coktail what would you do?

This is for all in Uniform and as I asked what would you do?

 

[Infanteer]

The man has a lit molotov cocktail; that is akin to pulling the safety pin on a hand grenade.  

I'd shoot him if I had to and would be within the legal bounds of any reasonable ROE's.  A better choice would be a high pressure fire hose; perhaps there is something to be said about bringing the proper (non-lethal) equipment.