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.
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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.
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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.
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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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