Over the horizon: a professional association for the Canadian military?

On Jan. 16, 2015, in a six-one ruling, the Supreme Court of Canada extended the freedom of association provision in the Charter of Rights to permit members of the RCMP to form a professional association. This association will engage into collective bargaining efforts, and address long-standing issues, mostly related to service conditions, grievances, and consultations on workplace issues. This leaves the Canadian Armed Forces as the only workplace in Canada where the constitutional right of freedom of association is not authorized. Up until 10 days ago, one reason for excluding members of the RCMP from exercising their right of association was a recognition that loyalty to superiors was of greater importance than loyalty to fellow officers. This is no longer true. RCMP management can no longer refuse associations to have a voice in collective bargaining, which will enable members in the collective sense to meet management at the table on more equal terms. Similarly, the strongest argument against permitting members of the CAF to the right to form an association is that it may compromise the core values of discipline and operational effectiveness. This suspicion is unfounded. As this article will demonstrate, there is a growing global rise in military professional associations in established democracies, which are not having any adverse effects on core military values. Quite the reverse. Professional associations spur camaraderie, esprit de corps, and military values. CAF culture, a shift is required On enrolment, a new recruit is required to accept certain professional obligations and responsibilities under the Code of Service Discipline and the Statement of Defence Ethics. This is not unusual. In fact, this is pretty common nowadays. Consider that many professions have codes of conduct that are to be followed. These codes do not suspend, displace or supplant the Charter of Rights and Freedoms. At best, they may be seen to “limit” a given right, on explicit consent of that soldier, sailor, or airperson. In this respect, military discipline is no different from the discipline of other professions such as a university, a political party or a labour union. The military Code of Service Discipline makes specific requirements of the individual; so do theirs. It has a system of punishments; so do theirs. Their main object is, equally, to preserve the interests and further the opportunities of the cooperative majority. One difference between discipline in the military and in any other ‘free’ institution is this: if a civilian disagrees with the position and direction of their company, they have the privilege to quit or to mobilize others to their way of thinking—military soldiers do not. Global trends In 2010, the Council of Europe adopted a recommendation on the ‘Human Rights of Members of Armed Forces,’ which states, inter alia, that “members of armed forces have the right to freedom of peaceful assembly and to freedom of association … have the right to join independent organisations representing their interests …” As a consequence, there is currently a well-structured social dialogue taking place in Austria, Belgium, Bulgaria, Denmark, Finland, Hungary, Ireland, Norway, Romania, Switzerland, and the Netherlands concerning military associations. The central question in these debates is how to respect the rights of military personnel to the freedom of association and assembly while at the same time meeting the needs and legitimate concerns of the military, given its unique function. Perhaps surprisingly, the experience of these European nations is that the right of association has not compromised combat efficiency or military discipline. In fact, permitting democratic military associations may have de facto improved the morale and loyalty of troops. In Europe, therefore, a culture shift has occurred, and military associations are now recognised as valuable partners for defence administrations. Working models Sweden and Germany currently have functioning independent military associations. In Germany, the Deutscher Bundeswehr Verband was created in 1956, and has approximately 200,000 members—three times the size of Canada’s entire Regular Force. The Deutscher Bundeswehr Verband is financed by members’ fees and they employ their own advisory staff. Another successful model is the European Organisation of Military Associations (EUROMIL), which was founded in 1972. EUROMIL is a conglomerate of more than 42 associations from over 24 EU countries representing approximately 500,000 military members! The mission of EUROMIL is: “Representing human rights, fundamental freedoms and professional interests of military personnel in Europe,” including the improvement of the living and working conditions of military personnel and the application of and correct implementation of EU social legislation for military personnel. In Spain, a constitutional court ruled in 2000 that members of their armed forces had a constitutional right to participate in bodies representing their social and economic interests, provided these bodies did not intend to engage in industrial action. In the U.S., there already exists a large number of military professional associations and societies. A matter of rights In Canada, there are many areas where the Canadian military fails to ensure that the rights of its members are protected or respected in accordance with traditional Charter values. Some of these include: Grievances: The average time for a grievance to be determined at the initial authority level, currently, is more than 250 days. The statutory time limit is four months. Hence, time and, again, the military are letting down CAF members, when they are exercising the only right available to them to challenge a decision or omission by the chain of command. The time to have a grievance heard at the final authority level is typically measured in years, rather than months, or days, as should be expected. These grievances are mostly left to collect dust on the desk of the CDS. Career Administrative Review: Any soldier can face a career administrative review or be removed from command on very short notice. A negative result may be career-ending, which has lifelong reputational, professional, and financial consequences. This process may be engaged while the member is serving abroad where he or she has no access to support mechanisms. Worse, under current regulations, the member cannot act through counsel or a representative to ensure that their rights are protected. On the other side of the equation, the CAF has readily available access to JAG lawyers. Harassment: A soldier who wishes to file a complaint of harassment is compelled to report such a complaint through their chain of command even though the alleged offenders may actually be fellow soldiers serving within the chain of command. Again, he or she cannot, as any other ordinary Canadians would under the circumstances, instruct counsel—or their association—to represent them during these procedures. Code of Service Discipline: Approximately 2,000 soldiers—or one in every 34 Regular Force members—faces a summary trial each year. These disciplinary proceedings, which are heard by that soldier’s commanding officer, could lead to a sentence with ‘true penal consequences’ such as incarceration, demotion, a large fine, or a reprimand. A summary trial conviction may also result in a criminal record. Amazingly, however, there is no right to legal counsel at a summary trial even if an accused is being tried on Canadian soil, during peacetime. This disciplinary procedure is also devoid of the following: There are no records of proceeding; There are no rules of evidence, including non-compellability of the accused to be a witness against himself, self-incrimination, adverse inference from the accused’s silence, or, spousal privilege; There may be full reliance of hearsay evidence; There is no right of appeal; and There is no right to grieve the outcome of a summary trial. No other Canadian faces such a one-sided penal justice process. A time for change Arguably, members of the CAF should fully enjoy the right to set up a professional association geared to protecting their professional interests in the framework of democratic institutions. Without a professional association to represent their collective social interests, soldiers rely on bodies such as the Military Police Complaints Commission, the DND/CAF ombudsman or the House of Commons (in particular the Standing Committee on National Defence) to present a counterweight or to correct a wrong. But this is clearly not enough to address issues of significance to the rank and file such as sexual assaults, suicide prevention and PTSD. In all of the above noted procedures, though the CAF has the right to legal counsel, a member of the Canadian Forces does not. Currently, the JAG employs 167 lawyers. The result: an imbalance of power that successfully maintains the status quo. Conclusion The resonance from the recent Supreme Court decision permitting the RCMP to form a professional association has yet to be seen. That said, given that members of the RCMP already readily serve shoulder-to-shoulder with members of the CAF in conflict zones, it is likely that the Supreme Court, if faced with the question, would arrive at the same conclusion for CAF members. Permitting members of the CAF the right to form a professional association would be in step with the global trend towards the formation of Armed Forces professional associations for serving military members. These include the militaries of our NATO allies; inter alia, Netherlands, Belgium, Germany, Denmark, and Luxemburg. The idea behind this trend has been described as to help, “mitigate the discipline and loyalty of the armed forces” in these countries. The time has come for Canada to also allow soldiers to form and join a professional association, if for no other reason, to permit the CAF to compete effectively in the labour market—to attract and retain high-quality personnel. Any condition of service that makes the CAF less attractive as a career may be scrutinized by potential entrants who, overall, are educated, are willing to deploy anywhere, and who have an acute awareness of the alternate opportunities in Canada’s labour market. An independent military professional association should be created to represent the interest of members of the CAF and in addressing parliamentary committees reviewing proposed amendments to the National Defence Act. This association should be consulted in discussions concerning conditions of service including discipline, career administrative reviews, remedial measures, premastering, transfers and releases, grievances and workplace dispute resolution mechanisms, support to military families, and the management of Non-Public Fund (NPF) sizeable assets. Furthermore, the establishment of such a professional association would neatly fall under the provision of section 48 of the National Defence Act, which allows for the creation of associations, which “further the defence of Canada.” Michel W. Drapeau and Joshua M. Juneau are litigators practising in military law in Ottawa. news@hilltimes.com The Hill Times