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TONY BATTISTA's picture
Ethics through the Lens of Military Reform
Posted on Mar 01, 2021
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In an attempt to set the record straight on some of the misunderstandings, skewed agenda of some media commentators, and the reluctance to forthrightly address the key issues, Tony Battista answers questions related to how the military handles past, current and future indiscretions.

What is going on with the Canadian military, especially regarding the latest allegations of sexual misconduct by senior leaders, and what is being done about it?

Details are still sparse regarding the Admiral Art McDonald situation, and so it is tough for me to comment on what that investigation should look like.

With respect to the allegations against the former Chief of the Defence Staff, General Jonathan Vance, while some of the allegations in the public domain may reveal symptoms of larger issues within the CAF, the criminality associated with these allegations is that he failed to report a sexual assault which was allegedly disclosed to him by the complainant. This will be investigated, and the judicial process will take its course. The other allegations are most likely service offences.

As for the third high-profile ethics scandal of 2021 – based on what is in the public domain currently regarding the marital infidelity of LGen Christopher Coates – I would say this is pure media sensationalism. While marital infidelity is unfortunate, it is also a fact of life, and the military does not have a monopoly on such behaviour. How many business executives are held to such public scrutiny when the affair does not involve a subordinate?

It's safe to say that marital infidelity began when marriage first became a codified social institution. If history serves us a lesson, this will never change. Can government mandate consensual relations between adults out of existence? Should it try? Do we want to make marital infidelity a service offence in the Canadian Armed Forces? If so, why not the entire Public Service? If the Public Service, shouldn’t the private sector follow suit?

Those in glass houses…

Can you comment further on the Criminal Investigation process itself?

So, with respect to investigations, it is crucial to distinguish and separate criminal investigations from any other type of Human Relations (HR) / workplace investigations. Criminal investigations must be conducted separately, without external influence (as much as is possible in a world where every rumour is on social media and the court of social media appears to be more important than the carriage of justice), and must prevail over any other types of investigations.

It also goes without saying that criminal investigations need to be conducted by trained professionals, supported with the appropriate resources. If the specialized investigative arm of the Military Police, known as the Canadian Forces National Investigation Service (CFNIS), meets this criterion then it should be them. If they do not, then they will have to either request assistance from an external agency to assist them in conducting the criminal investigation or relinquish authority to an external agency altogether.

It is my understanding that the Military Police, and in particular the CFNIS, have the legal mandate and responsibility to conduct investigations into criminal allegations and most offences under any other Canadian law committed by military and civilian members of the Department of National Defence, including those offences committed by anyone on DND property.

Are the Military Police resourced and adequately trained to conduct these complex investigations?

The answer to this question rests on the shoulders of the Canadian Forces Provost Marshal, who is ultimately the professional head of the Military Police (including the CFNIS). He/she is responsible and best placed to make that call and to seek external assistance as needed. In a public case such as this, all police leaders and major case managers, whether civilian or military, are faced with enormous common challenges of insufficient resources. This includes numbers of qualified experts who are well practiced at ‘stick-handling the politics’ and the media in addition to the complexities of the law. Arguably, the Military Justice System (MJS) also may not have the requisite legal expertise to support this complex case.

I would suggest the investigation into the General Vance allegations should be handled through the Major Case model and investigated jointly with the support of a prosecutorial team.

How about the ‘Investigative Independence’ issue?

This is an area that is poorly understood. The challenge with Military Police independence is that its resources (especially funding) are largely approved and controlled by someone else, AND the potential problem that may be caused by the interpretation and application of section 18 of the National Defence Act (NDA), which places the Provost Marshal under the general supervision of the Vice Chief of the Defence Staff (Section 18.5(1)) and authorizes the VCDS to issue ‘instructions or guidelines in writing in respect of a particular investigation’ (Section 18.5(3)).

Hence, in accordance with the current version of the NDA, the Provost Marshal is accountable to the chain of command, rather than the elected official, namely the Minister of National Defence. And this may be problematic!

Police independence doesn’t mean that the police can do what they want with impunity. It means that they are only accountable to the law and the independent oversight of elected officials, not through a chain of command. It is elected officials who are responsible for creating and overseeing laws in a democracy and are considered the “people’s voice.” The chain of command is not.

Put another way, independence means Police can only be held accountable on behalf of the people through elected officials, not the chain of command. This is a fundamental principle of democratic policing and why military police are – strictly speaking – perceived as lacking independence in the conduct of their investigations.

Most objective observers would agree that this is a major flaw with the National Defence Act. The Provost Marshal should not in any way report to the chain of command on policing matters, but to the Minister, who is the elected official accountable to the people. This situation must be tackled head-on and remedied as part of the current review of the NDA and the Military Justice System.

What other types of investigations could handle the ‘systemic’ issues and to compel real cultural changes in the CAF?

With respect to other types of investigations (culture/HR), it is not clear, at least to me, which agency would be the most appropriate to engage. The reality is that most external investigations are only launched when there is a problem or perceived problem and, as such, investigations are biased through these lenses.

For instance, retired Supreme Court Justice, Marie Deschamps, was the author of an inquiry examining sexual misconduct and sexual harassment in the CAF. The report emphasizes that leaders must acknowledge the sexual misconduct problem in the Armed Forces, which is strongly rooted in the military culture and ethos.

Arguably, as much as there were extensive efforts put forward, the Deschamps Report may have been biased, and not comprehensive enough to address the root issues. As such, it led to an incomplete (and arguably a faulty) solution, Operation Honour. This initiative did not do enough to address the “culture” of the Canadian Armed Forces. It dealt with an issue, with impunity, leaving little room for discussion and without true justice being served for the victim, the subject, or the system. A zero-tolerance policy very seldom allows for justice to be served. As the saying goes, ‘justice may not be swift, but it does tend to be just’.

In addition, a policy with insufficient procedures and mechanisms in place to support it becomes hollow. Op Honour had little or no mechanisms for support, it merely expressed support to victims without creating a meaningful way to do it. As such it did not uphold the victims’ bill of rights and has caused unattainable expectations with respect to what can and cannot be done by the ‘chain of command’.

So, did Operation Honour and the Deschamps Report truly address the root causes for such efforts, or did they inadvertently contribute to the current mess? I know this sounds harsh, but if we are truly serious about addressing systemic cultural issues, this question must be tackled openly and honestly.

Why would the Deschamps Report and Operation Honour potentially have contributed to the current mess?

I would argue the main reason is that they address only a small portion of the problematic behaviours exhibited within the military culture and, honestly, the least apparent but the most shocking and the most sensationalized by the media.

Knowledgeable insiders and observers understand that; however, you cannot see it as an outsider looking in trying to evaluate the military through a biased mandate.

I have also observed that when an insider tries to voice this, they are generally ostracized as a victim-blamer (particularly if you happen to be of a certain gender and cultural background).

What is the real cultural problem with our military?

The problem with the military profession in general is that it is (and has been for a long time) predicated on power, ego, and tokenism.

The CAF leadership must value the right things in its people and by extension themselves as leaders. It does not do enough to value and promote people who embody things like family, physical fitness, mental health, home life, appropriate volunteerism, and work-life balance. Programs are “there to help you when you need them” vice weaving them intrinsically into the military culture.

Subordinates can see that their superiors do not necessarily value these things. They scoff at leaving work for family commitments. Comments like “must be nice...” are made when someone requests a day off to do community volunteerism, or the request gets unnecessarily complicated. Whispers and back room chats arise when someone discloses that they are taking time to get mental health support when things get tough. In fairness, this has gotten better in recent years, but the stigma persists.

And so, instead, the organization tends to promote those who sacrifice everything to get through the ranks, who put the “needs of the service” over the needs of themselves and their family. And thus, the culture does not change.

The individual who will better support and understand their subordinates and set a positive example is at odds with the current culture. Arguably, we may be “reaping what we have sown”, so to speak. And when these things are sacrificed, the moral compass is skewed.

But there is yet another aspect that is very important to understand. Most senior military leaders are more tolerant of risk than their counterparts in any other profession, as this is essential to the military. This tolerance of risk tends to bleed into their own lives and how they choose to live. So, there is a linkage between risk tolerance and personal (family) cost. Couple this with the highly narcissistic personality traits of senior officers, and it is inevitable that relationships with perceived power imbalances will occur, that affairs will happen, and that misconducts of various types (sexual, financial, ethical) will transpire.

Unfortunately, when conditions like this exist, some people will take advantage of their positions in various ways. This, after all, is part of the broader human condition.

How can this be addressed to effect real cultural change in the CAF?

Who knows what the end result will be of these high-profile ethics allegations of 2021, but if the cultural challenges of the military profession I have identified above are not seriously addressed, the problems and scandals will likely persist – which frankly, is the most likely scenario as it is the curse of the human condition of not learning the right lessons. If we really do want to start to change, I would suggest that it is now time to do two things within the Canadian Armed Forces:

  1. Change the people system – Take some aspects of the Human Resource system out of the hands of commanders and put them in the hands of HR professionals, much like the Ontario Provincial Police (OPP) have done. HR in the OPP is run by the Ontario Public Service and augmented by senior OPP non-commissioned officers and officers. The CAF could easily adopt the same approach, using the backbone of the Federal Public Service architecture. This would serve a dual purpose: it would end a great deal of nepotism that still pervades promotion in the CAF, and it would give members recourse to grieve outside the chain of command.
     
  2. As much as it pains me to say it, to avoid the problem of people taking advantage of their positions and of others, it is probably time to ‘unionize’ the CAF. Parenthetically, while many – including me – are not wholly comfortable recommending a union for the CAF, many other western professional militaries in the world are unionized and they still function just fine. In fact, they may even function better. So, instead of it being forced on the CAF, I recommend that the CAF leadership take control of this initiative in the best interest of its members.

After having intertwined most of our adult and professional lives through the lens of the CAF, it is not easy to look at the organization that, in many ways, identifies your very self, and recognize that it is doing something wrong.

It is time to have these hard discussions and think about the kind of military organization that future generations will respect and want to serve within. This is the real challenge and, if done right, will lead to much needed cultural change!

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Addendum: 13 Mar 2021

Adding to the above article, the ongoing conversation can be summarized as follows: "There is a cultural problem in the military, there is a sexual harassment/misbehaviour problem in the military, so let’s change the way it is reported, investigated and dealt with by the military justice system." Is this really enough to make things better?

While there are some problems with the Military Justice System, as I already discussed above, and the investigative independence of the Military Police/CF National Investigation Service can be strengthened by amending further the National Defence Act (Section 18), I strongly suggest we need to figure out why these things happen in the first place. These are the hard conversations that we must have. This must be followed by concrete action.

The answers to these complex questions will make people very uncomfortable and can’t be fixed only by making more incremental changes to the MJS or making the Military Police more independent. It requires, first and foremost, acknowledgement that the problems are broader than the military. After all, our military members are recruited from Canadian society. Next, the military institution, at its core, requires significant change. And this change must be accepted and persistently imbued in the profession of arms.

This is why some important changes need to be made to the military HR system and the way we truly look after our members, and this in addition to strengthening the Military Justice System and the independence of the Military Police.

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Tony Battista served 40 years in the Canadian Armed Forces, retiring at the rank of Colonel in 2014. His varied career included serving as senior Military Police Officer at NDHQ and as Air Force Provost Marshal.

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