Untrained BMQ Candidate Alleges Abuse by Directing Staff Sergeant

[Sig_Des]

Actually, we have gone over all of this in the past.  [I am by no means a Lawyer, nor a student of Law.]  As I understand it: the CAF have been exempted some parts of the Charter through clauses that reflect Universality of Service.

Absolutely we have, and there have been challenges based on it where DND was found to be discriminatory, but it was permitted as a bona fide occupational requirement.

http://reports.fja.gc.ca/eng/1994/1994fca0286.html

Canadian Human Rights Commission (Applicant) v. Canadian Armed Forces (Respondent)

I think you'd be hard-pressed for universality of service to be applied to age as opposed to a physical disability which prevents meeting of the standards.

 

[Humphrey Bogart]

Actually, we have gone over all of this in the past.  [I am by no means a Lawyer, nor a student of Law.]  As I understand it: the CAF have been exempted some parts of the Charter through clauses that reflect Universality of Service.

Thank you George; however, this still doesn't answer part of my question?  How are we allowed to have a CRA if we can't discriminate based on age?  How can we tell someone that you need to retire right now because your to bloody old but not set a maximum age for enrollment into the service?

Also how can we set a minimum age limit on enrollment and not a maximum?

Hypothetically if I was a 14 year old, would I be able to challenge the CF in court for not allowing me to enroll?  Would I be able to challenge them in court for not allowing me to work past my CRA.  Would I be allowed to cite Para 15 of the Charter as part of my challenge?

Here is one challenge to CRA.  http://mgerc-ceegm.gc.ca/rec/014-eng.html

Interesting, thanks.

Absolutely we have, and there have been challenges based on it where DND was found to be discriminatory, but it was permitted discrimination because of universality of service:

http://reports.fja.gc.ca/eng/1994/1994fca0286.html

Canadian Human Rights Commission (Applicant) v. Canadian Armed Forces (Respondent)

I think you'd be hard-pressed for universality of service to be applied to age as opposed to a physical disability which prevents meeting of the standards.

I don't think it would be impossible but it would require significant work.  One of the unstated reasons behind the FORCE Test is to prevent disabled people from enrolling onto the CAF, the whole idea behind it was it was a scientifically validated test designed to be applicable to Universality of Service.  Perhaps the program could be expanded further to include scientific studies based around the "effective age limit" for potential military applicants? 

I agree with certain comments above though, that a theoretically easier road would be to simply apply our policies more liberally; however, if this is the easier road, than why haven't we been doing it?

 

[George Wallace]

Absolutely we have, and there have been challenges based on it where DND was found to be discriminatory, but it was permitted as a bona fide occupational requirement.

http://reports.fja.gc.ca/eng/1994/1994fca0286.html

Canadian Human Rights Commission (Applicant) v. Canadian Armed Forces (Respondent)

I think you'd be hard-pressed for universality of service to be applied to age as opposed to a physical disability which prevents meeting of the standards.

Wait until you are sixty, in good health (in that 'the army has not broken your body') and ask again, especially if you are in a non-Combat Arms Trade flying a desk for the most part. 

At the same time, look at the position you are holding that prevents the recruiting of a younger soldier whose bones will heal faster than yours.  ;D


Of course, if the excrement makes physical contact with the powered oscillating air current distribution device, then I am sure that there CRA rule will be tossed as in past history, and a "Home Guard" may be formed.

 

[George Wallace]

Hypothetically if I was a 14 year old, would I be able to challenge the CF in court for not allowing me to enroll?  Would I be able to challenge them in court for not allowing me to work past my CRA.  Would I be allowed to cite Para 15 of the Charter as part of my challenge?

The 14 year old would place Canada in a position contrary to us being a signatory to Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OPAC).

 

[Remius]

Crantor, is this your personal opinion or do you have knowledge to back this up? I personally would like to think you are correct, but my, somewhat dated personal experience led me to think otherwise. (albeit, experience from the 1993 -1996 cut and slash, decade of darkness era)

I do. I was involved in the recruiting system.  Doctors is the first trade group that comes to mind.  There aren't many aged 19-25.  Many were 35+ (but late 40s was rare), fit and motivated (signing bonus helped) but we had a critical shortage back then.  using MOTP was hard enough because most med students have grand dreams and it isn't until they realise the time and money it takes to pursue specialist training that MOTP would have been a good choice but meh.

As George mentioned, it applied mostly to skilled applicants looking for change but also that had skill sets we could use.  Many were older types (not 60) but 35-45 was not uncommon.

 

[Sig_Des]

Before we dive too deep into the Age/discrimination/CRA rabbit hole:

The question would be, was the instructor abusive, either of the individual or the group?

I'm curious as to what others who were on the course would say. Was the complainant the course magnet? Was the instructor a dick, and was he one to everyone, or just the individual.

Did the instructor actually contribute to the injury, or is the complainant targeting.

Like everyone's said, there's only one-side to the story here.

 

[George Wallace]

Did the instructor actually contribute to the injury, or is the complainant targeting.

Slipped on ice.  Tore Achilles tendon.  Sounds like an accident to me.  Now, also remember, in that time frame, there was the problem with the soles CWW Boots in cold weather ( Which could be a Red Herring, as we do not know what the member was wearing at the time ).  All of this would be covered in his CF 98 and the Witness Statements that would accompany it.

 

[Humphrey Bogart]

The 14 year old would place Canada in a position contrary to us being a signatory to Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OPAC).

Which we are bound by, except if it was found to violate our Constitution.  If someone successfully argued that setting a minimum age restriction violated the Charter of Rights and Freedoms we would have to find someway around it or the laws would need to change and we would be in non-compliance with the treaty.  I know, it's a completely ridiculous notion to even think about but the law can be ridiculous sometimes.

Perhaps this would act as a catalyst for exempting the military from being bound by the Charter of Rights and Freedoms? 

OK I'll stop with the What if's now  ;D

 

[DAA]

Look at the basics before judging.  The guy went through the established recruiting process of the day and was fortunate enough to have been offered a job with the CF.  He went to basic, was injured and medically released.  It's not the first time something like this has ever happened.    :facepalm: 

Now think about your own subordinates, who have gone away on some sort of course, only to be RTU'd early due to a training failure.  I don't think any of them would up and say "I wasn't prepared for the training, etc, etc" but more along the lines of "The course staff had it in for me and that's why I failed!"  Heard the later of the two far too many times.......

Did the particular course staff in question go to far?  We don't know, we weren't there.  Did the Health Care Providers fail?  Again, we don't know.

Is this news?  Hell yes, today it is!  Is DND and the CF really concerned about it?  Probably not, because within a few days, it will be a thing of the past.  For something like this to be of a big concern to the machine, would require several other people to come out of the wood work and make the same type of allegations.

My impression of the whole thing, "Buds, you're over 40, did you really fully truly understand just what you were getting yourself into?"  Obviously not......

 

[Harris]

A few years ago (in response to a Human Rights complaint?) it appeared, to me, that the CF developed a fetish of sorts for recruiting 40 and even 50 year olds. While I can understand the bureaucratic response to political pressure I would have thought hoped that military leaders might have seen things differently.

Last year I had a 53 year old on my Infantry Unit run BMQ.  She passed, barely, but has already released.  A huge waste of my staffs time.

 

[Halifax Tar]

This highlighted part scares me:

When he ripped his Achilles tendon in a fall on black ice, he alleges the drill sergeant made him run the course despite a doctor’s order to stay off his feet

This part scares me because I have seen this happen in the past both inside the training system and operationally.  I understand we as leaders may have a feeling a troop is malingering but we cannot decide that if the medical system has endorsed the validity of the injury/sickness and prescribed a resolution for it.

Many leaders don't get that when a sick chit is prescribed it is hard stone gospel and to be obeyed to a T.  Those of us non-medical professionals have neither the training nor the knowledge necessary to countermand a diagnosis.

I hope this allegation is not true, but it would not surprise me if it was and that right there is the trump card in the whole article.



Footnote:  I feel for the Med people.  I know they can probably tell when a member is just a malingerer but they have to err on the side of caution and take the members word for it.  I am in no way implicating them for the existence of malingerers in the CAF.

 

[DAA]

I hope this allegation is not true, but it would not surprise me if it was and that right there is the trump card in the whole article.

Footnote:  I feel for the Med people.  I know they can probably tell when a member is just a malingerer but they have to err on the side of caution and take the members word for it.  I am in no way implicating them for the existence of malingerers in the CAF.

On the med side, I've been privi to a few things/discussions in my career and also personally subjected to examination as we all have been from time to time.  But I would be inclined to say, based soley on my experience, that Health Services, can't tell the difference.

And they definitely don't err on the side of caution.

 

[Tibbson]

Many leaders don't get that when a sick chit is prescribed it is hard stone gospel and to be obeyed to a T.

I'm not questioning the validity of what you are saying and I ask this only for clarification but just where does it say that a sick chit is to be "obeyed to a T"?  It has always been my understanding that a sick chit or even advice from a Doctor is just that, advice.  If the Dr tells someone to stop smoking or to take a certain medication that certainly isn't an order.  It is the Doctors advice that the member take the meds, quit smoking, lose weight, stay off an injured limb......is it not? 

Now, as a supervisor, if one of my subordinates comes to me with a sick chit saying "PT at own pace"..."No running"..."5 days light duties"...."requires an orthopedic office chair"....whatever, you can bet I'll ensure I do all within my power to make sure the conditions are met and that the member abide by those conditions as much as possible but that is because I have no suitable medical training to countermand that recommendation.  At the end of the day though, it's just that, their professional recommendation and a supervisor would be a fool not to listen to it. 

Or am I missing something?

 

[Eye In The Sky]

You dont have the authority to go against any medically imposed restrictions or limitations.  It is not advice. 

If the MIR gives one of your people "no running x 7 days" and you order them to run, and they go back to the MIR in worse shape, I think your CO will get a phone call. 

If I get a no running x 7 days chit and run anyways and make it worse, thats disobeying a lawful command.

The actual written in ink rules will come from a CF Health Svcs type for this I hope. 

 

[Tibbson]

I'm with you 100% but because I agree with you it's common sense.  I just don't see where it can be considered a "lawful command".    I see it more as medical advice, advice any supervisor would be a fool to disregard or act counter to, but that doesn't make it a lawful command.  Hopefully, as you say, someone from the medical field will provide a reference making it so.  We're both on the same side on this one but more because it's the right stance, not perhaps because it's in legislation or regulations.

 

[ModlrMike]

Medical limitations have historically been advice provided to the CO, to be tempered by operational needs. It would, however be a brave CO who chose to ignore this advice.

The Medical Branch lays out the members' restrictions, the unit/branch etc figures out how to employ the member IAW those restrictions.

 

[Eye In The Sky]

Hmmm.  Not exactly what the BSurg briefed to us early 90s.  Where I am now, if I go grounded only a Flt Surg can unground me. 

 

[Baz]

Hmmm.  Not exactly what the BSurg briefed to us early 90s.  Where I am now, if I go grounded only a Flt Surg can unground me.

Functionally, ie day to day, correct, but not entirely complete.

The basis of Command and Control is the NDA, as amplified by QR&Os.  However, the reference document is Canadian Forces Concept Of Operations, Chapter 1.

In there it lists the types of Command and Control:
Full Command
Operational Command
Operational Control
Tactical Command
Tactical Control
Administrative Control
Technical Control

Without having reference to the document, from memory I believe you'll find the medical aystem exercises Administrative Control of members.  However, the basic tenet is only Commanders can accept risk, and the type of Command or Control you have lays out what type of risk you can accept.

Therefore, an appropriate Commander could accept risk and order you to go flying, but they would be accepting the risk.  Therefore they would never do it except in extremis.

A "Drill Sgt" wouldn't be an appropriate Commander, and to complete BMQ wouldn't be an appropriate reason to accept medical risk.

By the way, the Technical Authority exerts Technical Control, and (I have this one almost memorized, sic) "this type of control can be overidden any time its application is seen to jeapordize the completion of the mission."  So an appropriate Commander can accept the risk and order you to take an unservicable or otherwise unsuitable aircraft flying, but by doing so he accepts the risk.

This is very important to is in MH who are Crew Commanders, as we serve two chains, the Navy and the Air Force.  We need to understand what risk the CO of the ship is allowed to order us to assume.

And there's one other one: NDA chargable offences: "failure of a Commander to engage the enemy when at all capable of doing so..."  Which means in the face of the enemy Commanders can and must assume all risk as appropriate.


Editted to add: if people within a Commanders responsibility assume risk that they are not authorized to do, such as ordering people to run when they are injured, the Commander at the appriate level, in this case the Unit CO, would still be responsible, as he is responsible for Command and Control within his Command (ie unit), which includes knowing what is going on and correcting problems, which he exercises through the Chain of Command, and is why he has powers of investigation and punishment.

 

[Halifax Tar]

Exactly. If the allegation(s) are true and this Drill Sgt (DS) did so have a member go against the medical limitations laid out by the MIR then he may be in a whole heap of trouble. 

On a side note I did my PLQ at St Jean not long after this occurrence if the reporting dates are correct.  I will tell you we, as a course, had weekly closed door "chats" with the school commandant and CWO for the expressed purpose that they wanted to be sure their staff were functioning accordingly. 

From what I gathered the PLQ staff before my course had some issues with the treatment of PLQ students.  Admittedly this was secondhand scuttlebutt but it is interesting.

 

[Tibbson]

Exactly. If the allegation(s) are true and this Drill Sgt (DS) did so have a member go against the medical limitations laid out by the MIR then he may be in a whole heap of trouble. 

yes, but only because he did not have the authority to make the decision, not because the decision of the MO was cast in stone and beyond question and the Sgt "disobeyed a lawful command".

(Assuming of course it happened as alleged in the article which I think we can all agree is suspect on the face of it at this time).