When should members of the Canadian Forces (CF) retain private legal counsel, and how should such counsel be employed?

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1 When should members of the Canadian Forces (CF) retain private legal counsel, and how should such counsel be employed? Lieutenant-Colonel (retired) Rory Fowler, CD, BComm, LL.B., LL.M. Cunningham, Swan, Carty, Little & Bonham LLP Direct: / The Canadian Forces (CF) are governed by extensive statutory, regulatory and policy provisions. Although the intent is to balance the requirement for effective control of an armed force with the need to ensure that all members of that force can understand those control measures, these provisions can sometimes be complex and difficult to identify or to understand. When a member of the CF is charged with a Code of Service Discipline (CSD) offence, he or she will typically have access to free legal counsel from Defence Counsel Services (DCS). Generally, the more significant the charge and jeopardy faced by the CF member, the greater the support available from DCS. 1 The same is not true of the broad and complex administrative regimes that govern so much of a CF member s career. While many CF members rarely, if ever, face CSD proceedings, all CF members are affected by administrative decision-making and many face significant consequences from such decisions. This does not mean that every single act or decision by a CF statutory decision-maker will adversely affect the subject of that decision. Moreover, when a decision has adverse consequences for a CF member, that person may not require the assistance of private legal counsel. Many administrative regimes, such as counselling and probation or the grievance process, have built-in procedural safeguards. Nor are most supervisors or other statutory decision-makers predisposed to act intentionally in bad faith. Lt.-Col. (Retd) Rory Fowler retired from the Canadian Forces after nearly 28 years of service, first as an infantry officer (PPCLI), and subsequently as a Legal Officer with the Office of the Judge Advocate General. Among other positions, Rory served as the Deputy Judge Advocate for Canadian Forces Base Kingston, Director of Law for Compensation, Benefits, Pensions and Estates and Director of Law for Administrative Law. His full bio can be found at This is the second in a series of informational papers. 1 For example: if charged with a CSD offence that will be tried by summary trial, the accused will have access to advice from counsel at DCS, but the counsel will not appear on behalf of the accused at the summary trial. At more formal court martial proceedings, the accused will typically be represented by counsel from DCS.

2 However, there are circumstances in which a CF member may face significant consequences, whether adverse or simply inconvenient, arising from a decision by the chain of command or by any other decision-maker with the authority to affect the member s career, future or military service generally. The more significant the effect of such decisions, and the more complex the circumstances, the more likely it is that the CF member should seek private legal counsel. While the chain of command can rely on legal advice from unit legal advisors and other legal officers from the Office of the Judge Advocate General (OJAG), the mandate of the OJAG does not generally extend to assisting individual CF members. Aside from the aforementioned services offered by DCS, legal officers of the OJAG provide support to individual CF members only within the narrow scope of Canadian Forces Administrative Order (CFAO) 56-5 Legal Assistance. This is generally limited to legal assistance where a CF member cannot access a civilian lawyer and where it would not place the legal officer in conflict of interest with his or her duties supporting the chain of command. The scope for such assistance is therefore normally restricted to unforeseen difficulties that may arise in the operational context (e.g. assisting with a power of attorney authorization following an unforeseen change in familial circumstances while the CF member is deployed on an operation). Often, the principal assistance from a legal officer will be to help the CF member locate potential private counsel who might be in a position to assist the CF member. Legal officers whose duties are to provide legal advice to the CF and Department of National Defence 2 are generally prohibited from assisting individual CF members with grievances or with representations to institutional decision-makers such as Director Military Career Administration (DMCA). This should not come as a surprise, as those legal officers are responsible for advising the chain of command and institutional decision-makers and the provision of legal advice to individual CF members on such matters would invariably place the legal officer in a conflict of interest. CF members will typically seek private legal counsel for grievances (particularly on matters with significant impact on them), where DMCA or another decision-maker such as Director of Medical Policy (D Med Pol) makes career-limiting determinations such as compulsory release or occupational transfer, or where a decision by a CF or Departmental authority will have significant financial implications for the CF member. Although section 10(b) of the Canadian Charter of Rights and Freedoms 3 includes a provision guaranteeing anyone in Canada (including CF members) a right to retain and instruct counsel, this is triggered by detention by authorities of the state. There is no express constitutional right to counsel in administrative matters generally. However, in a free and 2 QR&O Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

3 democratic society, any person may retain and instruct counsel, provided such actions are within their means. A CF member is free to retain and instruct private counsel in relation to any administrative action or decision affecting that CF member. Serving CF members should also be aware that there is no compelling legal basis to assert that such private counsel can interpose him- or herself between the CF member and that member s chain of command. For example, there is no legal basis for a CF member to assert that his or her commanding officer (CO) must only communicate through the CF member s private counsel and cannot communicate directly with the CF member (see Honda Canada Inc v Keays 4 ). Although Honda Canada Inc v Keays concerned a contractual employee, and CF members are not in a contractual employment relationship with the Crown (Gallant v The Queen in Right of Canada 5 ), there is nothing in Honda Canada Inc v Keays to suggest that it does not relate to the superior-subordinate regime arising in the CF. The case of R v Forster 6 provides some factual insight into the advantages and disadvantages of engaging private legal counsel for CF administrative matters. R v Forster was a companion case to R v Généreux 7 and, like that case, focused primarily on the right to a fair and public hearing by an independent and impartial tribunal by virtue of sub-section 11(d) of the Canadian Charter of Rights and Freedoms. Although a majority of the Supreme Court of Canada eventually found that the court martial process (at that time) did not allow for a hearing by a sufficiently independent and impartial tribunal, the background of the case is illustrative of the limits of intervention by privately retained counsel. The accused, Major Forster, had engaged private counsel regarding a dispute she had with her superior officer. She attempted to resign via letter from her counsel. Five days later, she attended a meeting with her superior officer at which they discussed this letter. Major Forster's request that her lawyer be present at this meeting was denied. 8 There is no indication that she challenged this refusal. Major Forster was told that she could not simply resign from the armed forces outside of the process established under the National Defence Act 9 (NDA) and that, if she did not report for duty at her new (disputed) place of duty, she could face charges under the NDA. She was encouraged to bring certain relevant sections of the NDA to the attention of her lawyer 10. Major Forster continued to assert that she had resigned or had been constructively dismissed and was eventually charged and convicted of being Absent Without Leave (AWOL). 11 At the eventual court martial, her superior testified concerning the meeting he convened: 4 [2008] 2 S.C.R. 362, 2008 SCC 39 at para (1978), 91 DLR (3d) 695 (FC TD), 1978 CanLII 2084 (FC). 6 [1992] 1 SCR 339 [R v Forster]. 7 [1992] 1 SCR 259 [R v Généreux]. 8 Ibid, RSC 1985, c N-5 [NDA]. 10 R v Forster, supra n 6, Ibid, 344.

4 In order to prevent what appeared to be a collision course with the Code of Service Discipline, I convened the meeting on the 23rd of February [1988] to lay out very clearly and explicitly, with a witness present so that there was no misunderstanding, just how serious a situation she was putting herself in. Indeed, with Major Gouin's assistance, we even brought to her attention the particular sections of the National Defence Act that applied to her and that would apply Nevertheless, Major Forster continued to rely on communication through counsel. Over two weeks later (10 March 1988) her lawyer sent a second letter, this time to the Commander of Air Command (as it then was), indicating that Major Forster " hereby resigns her position from the Armed Forces effective Monday, March 14, 1988". 13 Major Forster s conviction for AWOL was upheld on appeal to the Court Martial Appeal Court 14. Although the eventual appeal to the Supreme Court of Canada was successful, it turned on the constitutional status of the judge advocates assigned to preside over courts martial 15. It did not turn on Major Forster s assertion that she had resigned and was no longer subject to the Code of Service Discipline. Arguably, Major Forster faced lengthy legal proceedings, in part, because she sought to have her private counsel intercede between her and her chain of command, rather than follow the prescribed process for release from the CF. Notwithstanding the lesson from R v Forster and the principle from Honda Canada Inc. v Keays, the latter judgment also highlights that an employer (for the purposes here, read: chain of command ) would be ill-advised to suggest to an employee (read: subordinate) that retaining private counsel would be a mistake, or for the chain of command to otherwise undermine the merits of seeking advice from external counsel. Thus, while the chain of command is not prohibited from communicating directly with a CF member on administrative matters, neither should the chain of command seek to prevent or disparage the retention of private legal counsel. CF members should note, however, that there does not appear to be any precedent that the retention of private counsel would empower that counsel to interpose him- or herself between the CF member and the chain of command in a manner that would preclude the chain of command from communicating directly with a subordinate. Laymen perceptions of the role of lawyers are sometimes derived from what they see on TV or in the movies: lawyers act as advocates in the courtroom or negotiating deals for their clients. But where does a privately retained lawyer factor into internal CF processes such as harassment complaints, grievances, and other institutional decision-making? How can, or should, a CF member employ private counsel advantageously in what is essentially internal CF decision-making? 12 Ibid, Ibid. 14 Ibid, Ibid, 348.

5 It is open to a CF member to send representations to their superiors or other CF decisionmakers solely through his or her counsel (much as Major Forster attempted to do). However, that may not be the most efficient or economical option for the member. Take the example of a serving CF member who retains private counsel for a grievance and then indicates to his chain of command that all communication must be through his counsel. The legislative framework for the CF grievance process (sections 29 to of the National Defence Act and Chapter 7 of the Queen s Regulations and Orders for the Canadian Forces, or QR&O) is silent on the role of counsel. Indeed, the expectation is that the grievance process is sufficiently user friendly that privately retained counsel is not generally necessary. The prevailing CF policy on grievances Defence Administrative Order and Directive (DAOD) refers specifically to the issue of communication with a grievor who has retained private counsel. Section 12 of this policy instrument addresses Legal Advice and Representation, and Article 12.2 states: A grievor may engage a civilian lawyer or other representative at their own expense to assist with their grievance, but redress authorities and their staffs must continue to communicate directly with the grievor throughout the grievance process. Notwithstanding that redress authorities and their staff (at both the initial authority level and at the final authority) will communicate directly with a grievor, the grievor may still choose to make representations through his or her counsel. However, this option may not be the most effective or economical for the grievor. If the counsel is licenced by the Law Society of Upper Canada (LSUC) i.e. the counsel is an Ontario lawyer then Rule of the LSUC Rules of Professional Conduct would apply. This rule states: A lawyer retained to act on a matter involving a corporation or organization that is represented by a legal practitioner shall not, without the legal practitioner's consent or unless otherwise authorized or required by law, communicate, facilitate communication or deal with a person (a) who is a director or officer, or another person who is authorized to act on behalf of the corporation or organization; (b) who is likely involved in decision-making for the corporation or organization or who provides advice in relation to the particular matter; (c) whose act or omission may be binding on or imputed to the corporation or organization for the purposes of its ability; or (d) who supervises, directs or regularly consults with the legal practitioner and who makes decisions based on the legal practitioner's advice. Other provincial law societies have similar provisions.

6 The redress authorities are advised by the Office of the Judge Advocate General (OJAG), and the OJAG is generally considered to always be retained by the CF generally, and by the redress authorities in these circumstances. 16 It would be inappropriate for privately retained counsel to communicate directly with the redress authorities or their staff, and the counsel should communicate with the appropriate representative of the OJAG 17. Where a CF member has retained private counsel under an hourly rate retainer, this tactic can potentially, and unnecessarily, raise the cost of advice and representation, particularly where there is significant communication back-and-forth between grievance staff and the grievor. The principal merit of retaining private counsel in a grievance or similar internal CF administrative process is that the affected CF member will have the benefit of well-reasoned, independent and expert advice on both the process and the substantive merits of the CF member s particular case. These mechanisms differ distinctively from processes before courts such as the Federal Court or a provincial superior court of justice. Among their skill sets, lawyers are trained in navigating court processes and the negotiation that precedes such processes. The adage to a hammer, everything looks like a nail is an appropriate caution. Not many lawyers, outside of the OJAG, are well-versed in the internal processes of the CF. Moreover, these internal processes are designed to be followed, both by individual CF members and the chain of command, without recourse to legal advice at every step of the process. This does not mean that legal advice will never be beneficial for both the individual CF member and the chain of command for some matters (particularly the complex matters). However, a CF member/grievor does not necessarily require a lawyer to make every single representation on behalf of the grievor. Often, the greatest benefit derived from private legal counsel is legal analysis and development of representations for the grievor, provided that the counsel is well-versed with CF policies and practices. There may be occasions in which a CF grievor or complainant would benefit from representations sent from private counsel to the appropriate legal advisor in the OJAG. For example, the nature of the complaint may involve several or complex legal principles. These may best be communicated by a lawyer to another lawyer. It may be that the CF member s immediate chain of command (i.e. immediate supervisors or superior officers) has demonstrated, through actions or comments, that the decision-makers are approaching a matter with a closed mind. Those decision-makers might not have sought legal advice from 16 See para 17 of the comment to Rule 7.2-8, which forms part of the discussion concerning communication with government: In addition, the legal branch at the particular ministry is usually considered to always be "retained". There may be circumstances where the only appropriate action is to contact the legal branch. In all cases, appropriate judgment must be exercised. 17 In particular, para 8 of the comment to Rule states: The prohibition on communications with a represented corporation or organization applies only where the lawyer knows that the entity is represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation, but actual knowledge may be inferred from the circumstances. This inference may arise where it is reasonable to believe that the entity with whom communication is sought is represented in the matter to be discussed. Thus, a lawyer cannot evade the requirement of obtaining the consent of counsel by closing their eyes to the obvious.

7 the unit legal advisor or, having sought such advice, may have decided not to follow it. It is also possible that the legal advisor may not have been presented with all relevant factors or that the legal advisor may have erred. 18 A CF member who is affected by a decision, act or omission in the administration of the affairs of the CF will not always know if his or her supervisors sought legal advice, or, having done so, followed it. However, a legal advisor who is knowledgeable in terms of public and administrative law generally, and who is well-versed in the current legislative and policy regimes applied within the CF, can assist a CF member in deciding whether a particular matter merits greater direct involvement from the privately retained counsel. In those circumstances, a CF member would benefit from experienced counsel who can take a productive approach to communicating with the CF member s chain of command, likely through the appropriate OJAG representative. The foregoing represents some generalized commentary on the merits of retaining private legal counsel and how such counsel could potentially assist a CF member with a grievance, complaint, or other administrative process. The next entry in this series on military administrative law will present two particular pitfalls that CF members should avoid when pursuing complaints or grievances in the administration of the affairs of the CF. 18 This last observation should not be interpreted as an indictment of the support offered from the OJAG based upon the author s own experiences, the volume of requests for advice placed upon many unit legal advisors is such that perfection and timeliness in all advisory matters is not always feasible. The same can be said for courts of first instance if such courts were always correct, there would be no need of appellate courts.