Vincent J. Curtis
13 July 21
Part 1: Keeping Command Clueless
The Report of the Third Independent Review
Authority, also known as the Fish Report, was written by The Honourable Morris
J. Fish, C.C., Q.C, a retired Justice of the Supreme Court of Canada. The report is 400 pages long and contains
wide ranging reviews of the military justice system. It became newsworthy upon its release because
Chapter 2, eighteen pages long, covers Sexual Misconduct, and makes several
recommendations to reform the military justice system to deal with that one problem.
Justice Fish is not a warrior; nor are any
of the people he consulted in preparing that chapter. Fish was not alive to the teachings of Ardant
du Picq, who wrote about the need for iron discipline in the unit and the army. Du Picq’s insights are plainly implicit in
the works of Sun Tzu, Jomini, and Clausewitz.
Iron discipline creates morale, and eventually esprit de corps. A strongly
disciplined army is a superior fighting instrument that, with decent weapons
and a modicum of generalship, will prevail over a less disciplined force in
battle. Military justice is ultimately a
means of keeping the army fit to fight.
Unawares, Fish writes instead that military
justice is for “the welfare, security, and health of CAF members.” This civilian’s understanding of justice is
perfectly respectable, but it leads him to recommend changes to military
justice that will undermine morale, discipline, and trust in military command.
Fish’s principal mistake is special
pleading concerning sexual misconduct.
Special pleading is the logical error of saying, “he’s special, so he is
exempted from following the rules.”
Special pleading is common and, if small, tolerable; but Fish’s pleading
gets so convoluted that even he realizes it and punts the ball.
Consider a Pay Officer whose duty it is to
pay the troops. But he’s special. He
decides one day that he “just isn’t ready, and doesn’t want to.” He pleads that, being special, he doesn’t
have to. The troops have a duty to
report service offences to the chain of command, including the offence of
sexual misconduct. Fish argues that the
duty to report should be lifted in cases of sexual misconduct because it forces
victims to report when “they’re not ready, or may not want to.”
What about confidantes of the victim and
witnesses to the offense, who are also service members? Here things get complicated. Maybe the duty to report should be lifted
from them too, lest the fulfillment of their duty outs the victim? Perhaps, Fish muses, a report to the Sexual
Misconduct Response Centre (SMRC) can be made to fulfill the duty?
The problem with that is the SMRC is
outside the chain of command, and cannot initiate a disciplinary investigation;
while the Commander, who is responsible for his unit, is kept in the dark and
may suspect nothing until CFNIS guys start lurking around his lines. The Commander can’t maintain discipline in
the ranks if he is kept unawares. Then,
the incident goes down as another one of those failures of the CAF to deal with
an instance of sexual misconduct, and was unaware that there was a problem!
Another approach, Fish suggests, is to lift
the duty to report altogether on this particular service offence from everyone
involved, victim, confidantes, and witnesses, leaving the SMRC as a reporting
option. In this case, “the victims would
retain full control over their fate and their narrative, an outcome consistent
with the policy of the [Declaration of Victim’s Rights.]” Again, special pleading keeps the local
Commander in the dark.
Nevertheless, Fish believes that removing
the duty to report “from victims, their confidantes, and health and support
professionals offers the best path to renewed confidence in the system.” (Fish left out witnesses.) How keeping Commanders uninformed inspires
confidence in the system to outsiders like the media and the government – by
design the system doesn’t know, can’t react, and is made to look clueless - is
left unexplained.
In gets no better in Part 2.
************
Part 2: Punting the Ball
We resume the analysis of the Fish Report,
Chapter 2, Sexual Misconduct.
Last time, we observed how convoluted the
reasoning gets when Justice Fish recommended eliminating the duty to report
service offences to the chain of command in respect of sexual misconduct. The rationale of solicitousness towards ‘the
victim’ kept the chain of command in the dark and unable to respond to the
underlying disciplinary problem in the ranks.
He continued. After saying without proof that victims
simply didn’t trust the chain of command, Fish goes on to suggest the SMRC is
also untrusted because it’s not fully independent of the chain of command, the
VCDS being responsible for its budget.
Strengthening the independence of the SMRC, Fish asserts on the basis of
SMRC submissions, “would increase victim confidence in the organization.” Sounds like empire-building is afoot at SMRC!
How a private soldier in Shilo develops
confidence through Ottawa-level bureaucratic machinations Fish doesn’t explain,
but the underlying assumption here is that the victim is some fragile little
flower fearful of command. Her
professional job might involve sticking a bayonet into the guts of some enemy
bastard. How Private Flowers can
reasonably be expected to have what it takes to blow somebody’s brains out when
she’s also expected to fall to pieces reporting a sexual assault goes
unexplored. But never mind; Fish’s
reporting option is supported by Justice Deschamps (passim), the Deputy Minister, the JAG, the SMRC, and “experts in
the field” – none of whom are warriors.
Fish finally comes to realize the rationale
of special pleading leads to complications after he turns to the duty to report
of witnesses. Removing the duty from
witnesses, “might foster a climate in which members remain passive in the face
of misconduct.” Well, yeah! The principle of special pleading is hanging
out there, and if applicable to sexual misconduct, why not to other
offenses? It’s hard to contain a
principle like passivity.
While maintaining the duty to report on
witnesses “would help find and punish the perpetrators…on the other hand,
preserving the duty to report on witnesses might deprive victims of their
autonomy, as they would be drawn into the investigative process against their
will.” Fish reached a vicious
circle. Prepare to punt!
The SMRC has recommended that the removal
of the duty to report should not apply (the removal being removed!) where there
exists “a risk of imminent harm, harm to children, national security.”
At this point, Fish, having realized his
position is untenable, punts the ball thusly:
Recommendation
#70: An
exception to the duty to report incidents of sexual misconduct should be
established for victims, their confidantes, and the health and support
professionals consulted by them. Their
duty to report should be retained, however, where a failure to report would
pose a clear and serious risk to an overriding interest, which may include
ongoing or imminent harm, harm to children, and national security
concerns. A working group should be established to include an independent authority and representatives of the
[SMRC], military victims’ organizations and the military justice system. The working group should also consider (a)
the removal of the duty of witnesses to report incidents of sexual misconduct;
and (b) requiring witnesses to report incidents of sexual misconduct to the
[SMRC] only.
Try explaining that to Herbie on a basic
military training course!
But what happens if a witness reports
anyway? Would he or she be committing an
offence by reporting an instance of sexual misconduct without the permission of
‘the victim’? The whole edifice created
to protect ‘the victim who may not be ‘ready’ collapses if a witness reports
the offense to the chain of command.
Other problems for Fish: the breadth of
“sexual misconduct.” DAOD 9005-1
misconduct ranges from off-colour jokes to penetrative rape, and Fish treats
the entire range with the moral gravity of penetrative rape. Second, ‘victim’ presumes guilt. A ‘victim’ is a complainant until the accused
is proven guilty.
This leads to Part 3.
************
Part 3: The rising empire
In Part 2, we saw Justice Fish punting the
ball on the duty to report sexual misconduct.
He recommended for study an edifice of conditions of who should report
what, when and to whom that is incomprehensible to OCdt Herbie, and it all
falls apart if a witness reports the offence to the chain of command
anyway. Sexual misconduct of any kind is
treated with the moral gravity of penetrative rape. Complainants are called ‘victims.’
By a flaw in gathering statistical data
known as survivor bias, the SMRC convinced itself that ‘victims’ don’t trust
‘the system.’ (You can claim no soldier
died in WWII relying on survivor bias.)
We saw empire building by an SMRC that is
struggling to get independent of DND on the plea – asserted without evidence -
of gaining the confidence of ‘victims,’ - who, in their professional lives, are
trained to shoot people dead.
Fish’s special pleading on sexual
misconduct embraces the SMRC. “Victims
of sexual misconduct must be provided the support they need to report the
misconduct when they are ready and inclined to do so, without fear that their
well-being, careers, or personal lives will be compromised. Strengthening
the independence of the SMRC would attenuate these concerns (he says
without evidence!). Providing free, independent legal advice (via the SMRC!) would as well.” This solicitousness keeps the chain of
command unable to respond to indiscipline in the ranks.
Suppose Col Anonymous Accuser underhandedly
withheld reporting an allegation of sexual misconduct for thirty three years,
and meanwhile then-OCdt Buttrum had risen to become a high profile Major
General? How does waiting restore
discipline? This example is
indistinguishable from a political hit-job that creates chaos.
The
SMRC used the Fish investigation to advance its drive for independence. SMRC complained to Fish that their dependence
on the VCDS to report their budget to the Deputy Minister compromised their
independence. Fish had his doubts until
the SMRC further complained that, as an entity within DND, it had to follow all
departmental policies and processes prior to any public communication. Note the pleading, “We’re special; we should
be exempted from the rules!” Fish relents, and says, “the credibility of the
SMRC requires that it be able to speak publicly about its findings without
undergoing the policies and processes of the DND or CAF.”
Fish then recommends that SMRC become an
untethered entity within government. Recommendation #71: “The relationship
between the [SMRC] on the one hand and the [CAF] and [DND] on the other should
be reviewed to insure that the SMRC is afforded an appropriate level of
independence from both. The review
should be conducted by an independent authority.”
The empire building continues. Having become as independent as a horse fly
is from the horse, the SMRC wants to be staffed to supply free, independent, civilian legal advice to ‘victims.’ “This would improve the safety of CAF members
everywhere,” exclaims Fish! And makes
Recommendation #72 to that effect.
After crying that the SMRC is unable to
monitor CAF accountability for sexual misconduct incidents and how they are
managed (as if Fish and the SMRC weren’t hand-in-glove to keep the chain of
command from working!) Fish makes Recommendation #73 to the effect that the
SMRC be tasked and funded to monitor CAF adherence to sexual misconduct
policy. The SMRC should have broad
access to all the information it needs, he recommends, and if the SMRC doesn’t get
what it wants, Parliament should empower the ladies of the SMRC to compel
production of evidence!
To recap: special pleading on sexual
misconduct leads to MGen Buttrum paying for allegations against OCdt
Buttrum. The SMRC is special, and needs
more money and power. The SMRC receives all the complaints, bypassing chain of
command, whom they then monitor for compliance with policy. The SMRC will provide free, civilian legal
advice to soldier-victims on a budget that is not reviewable by the CAF or DND. And SMRC gains bureaucratic bite from
Parliament.
************
Part 4: Conclusion
We conclude the Fish follies, finally!
Part 1 explained that the ultimate aim of
military justice is to build discipline that, in turn, creates a fighting edge
in the unit and army. Fish and cohort
are not warriors, and Fish seeks to import principles of the civilian justice
system into the military justice system, which have difference purposes.
We saw how special pleading leads to
keeping the chain of command unaware of sexual misconduct and unable to react
to instances of indiscipline. We saw
that while sexual misconduct covers a lot of sins, from off-colour jokes and
pin-ups to penetrative rape, Fish treats it all as penetrative rape. We saw that the SMRC is using the Fish
investigation to broaden its empire and gain not just independence from the DND
and CAF, but powers of bureaucratic punishment over them.
Fish concludes his review of sexual
misconduct with a recommendation to import the principles of restorative justice into the military
justice system. Pursuing a feminist
vision of justice, the SMRC wants
restorative justice in the case of sexual misconduct because it coerces the
perp to “acknowledge the harm caused and promote a sense of responsibility in
the offender…it provides the opportunity for the victim and perpetrator to work
in tandem toward accountability and restitution.” Presumably, this humiliation occurs after the
court martial and the perp is released from Edmonton.
Things get really feminine when SMRC is
concerned that fear of disproportionate punishment of the perp may cause some
victims not to come forward because they do not necessarily want the perp to
lose his job! (An admission of the
politicization of the charge.) Nevertheless, restorative justice can provide
victims with “answers to some of their questions, which may reduce their fear
and anxiety and promote healing”
The Empire joined with the JAG to cause
Fish to make Recommendation #74:
“The [JAG] and the [SMRC] should cooperate to make a joint proposal to the
[MND] in respect of amendments to the [NDA] which would allow for restorative
justice approaches in the military justice system. They should also collaborate to develop a
formalized restorative justice model that is adapted to the needs of victims
and perpetrators and suited to the reality of the CAF and its justice
system.” The CDS is cut out of this and
reduced to a bystander as his tool of discipline is recast along feminist
lines!
All the elaboration the Fish report would
create is to deal with the “persistent, pre-occupying, and widespread problem”
of sexual misconduct, and the “corrosive effect” it has on discipline. But what about corrosive effect that
politicizing sexual misconduct has on unit cohesion when the unit includes
women?
Women already face a barrier of mistrust
and suspicion from men concerning their motivation and capability, and
politicizing sexual misconduct into a cosmic crime will only make that barrier
higher and thicker. The mere accusation of sexual misconduct is a
career-ender. Failing to deal with it in
a timely manner, when memories are fresh, witnesses available, and damage
containable creates opportunities for blackmail and vindictiveness, and is
harmful to the efficiency of the CAF.
Adm Art MacDonald, VAdm Haydn Edmundson, and MGen Deny Fortin were
brought low by mere accusation up to three decades after the alleged
offense. Not good for the CAF.
Already, it’s good practice among men never
to be alone with a woman. Mentoring of
women by men is rare. On courses,
females socialize in the male lines, never the reverse because men understand
the power of the accusation. The
military is a highly social institution, and females may be segregated at after
work drinking and chatting. Distrust could
lead to the stifling of opportunities because a female represents deeply
personal risk.
The ultimate purpose of military justice is
the efficiency of the CAF. The political
extremism concerning “sexual misconduct” is great for bureaucrats and “experts”
– it make them important. That same
extremism will chill career development of ordinary women.
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