- Reaction score
- 875
- Points
- 1,060
I want to pick up on something that PBI alluded to in an earlier post in http://army.ca/forums/threads/17581/post-91000.html#msg91000, [culture of blame/entitlement], and perhaps this should be a new thread as it may be good topic for future reference. This comment is directed at current and former members of the CF who served through all or part of the 1980's ... of course, all members are welcome to respond. Should the Charter of Rights and Freedoms and the Canadian Human Rights Code apply to the CF?
My experience both in the uniformed CF and in my present occupation on civvie street in a self regulated profession leads to me to conclude that neither the Charter of Rights and Freedoms nor the Canadian Human Rights Code ought to take jurisdiction over currently practised policies, pratices and procedures WRT CF employment policies. I believe that while the CF should adopt policies, practices and procedures that reflect the values and priciples of the Charter and the CHRC, those statutes and constitutional imperatives were not designed for military application, and do not take into account the reality and necessities of military service.
Instead, here is what I think should be put in place:
The Ministers Advisory Board on Gender and Employment Equity should be immediately disbanded. All of their reports ought to be thrown into the burn bag. The MABGEE is, was, and will always be a waste of scarce resources that has never produced a credible report or reached a decent conclusion on their own. They constantly recommend changes resulting in further "feminization" - i.e. lowering of standards to achieve what they call "true equality" and related concepts. [and I mean that in the "global sense", therefore in no way am I advocating gender discrimination in the military.]
The CF Greivance Board, insofar as it deals with human rights issues, should be reconstituted as a board of first instance, and nothing more. Civilians employed in the capacity of giving human rights advice or other support may be retained or re-employed as necessary, but they ought to be vetted for any hidden personal agendas.
A new Tribunal or Board [not one of the JAG variety] should be established, staffed only with properly qualified members [not lawyers] who are currently serving or who have served with distinction in the CF. Selected members would sit on the board for fixed terms, around 4 years or so, and all appointments to the board should be on the approval of a majority of a 10-15 member selection committee comprising long serving NCM's only. Tribunal appointments will be staggered to ensure a mix of experience with fresh perspectives is available and reflected in the decision making process. Let me clear here: Tribunal members are separate and distinct from selection board members. The MND/CDS and all related clowns will have no say on the composition of the Tribunal or the selection committee.
The CF should have its own Code dealing with human rights types of matters. The Code should incorporate to the maximum extent possible fundamental rights and values of the Charter and the CHRC, without imposing an undue burden on an organization whose primary function is [ought to be] war fighting. In the decision making process, the Tribunal or Board could and should refer to decisions of other human rights tribunals, however the legal principle of stare decisis [binding precedential authority of a higher Court] will have no application in the Code.
Every member of the CF will be subject to the Code and all of its provisions.
Every member of the CF ought to have gauranteed access to the Code in the event of a breach of the Code. The Office of the Military Ombudsman will have the right to be notified of every hearing before the board or tribunal, and will have the right to make representations and arguments before the board. The OMB can, with the consent of the complainant, represent the complainant.
No reprisals may be taken for a complaint under the Code that has merit or even breaks new ground. Frivolous and vexatious complaints calculated or designed to cause injury to the reputation of respondents in the system will be dealt with by appropriate sanctions including a reccommendation for dishonorable discharge.
The board or tribunal shall have remedial order making power including order to accommodate, and in certain cases monetary damage awards payable to the complainant. The board may make recommendations to have respondents face further administartive action such as demotion, dismissal.
The Code should be subject to judicial review on a standard of correctness for the interpretation of "law" but with certain modifications in order to exclude the more oppressive systemic remedies that may be, and have been, imposed by the current civilian system. In other words, the Code will not be subject "to the political winds of the day."
Above all, common sense will prevail. The "principle of fairness", properly modified to a military requirements, ought to be the driving feature of the Code.
"Patent unreasonableness" WRT interpretation of matters of fact, policy and procedure, and operational requirements should be the level of deference given to a Tribunal or Board charged with overseeing the enforcement of the Code.
I think one benefit of such a system will be that civilian oversight of military human rights affairs will be eliminated, however due process rights with legal representation will be preserved and enhanced. The present one sided David v. Goliath aspect of military human rights issues will be substatially evened out, and the risk of expensive and demoralizing systemic remedies will be much reduced if not outright eliminated. Above all else, political interference will hopefully be eliminated.
The entire rights system should be funded by the DOJ, and not the DND.
At the present time, twenty year olds entering the CF today were born into the Charter era and the evolving concept of rights and entitlements. They are products of what some in the legal profession refer to as the "culture of victimhood" that permeates Canadian society. Therefore, they have probably experienced nothing different than what the Charter has provided for them. In contrast, there are serving members who enrolled in the CF before the Charter, and have seen/experienced some of the collateral damage inflicted upon the CF as a result of the surge in human rights and Charter based decisions ... while some of those decisions have produced just and fair outcomes, many have resulted in changes which undermine the effectiveness of services by damaging morale; imposing systemic remedies and education programs which are expensive, time consuming and of little value for the effort and resources invested; and in a few cases have resulted in lowering of critical training standards.
My apologies for carrying on at length, and perhaps this should be set up as a separate topic for discussion.
Cheers,
Fred.
Edited by M. O'Leary to split from older thread and insert reference link in first para.
My experience both in the uniformed CF and in my present occupation on civvie street in a self regulated profession leads to me to conclude that neither the Charter of Rights and Freedoms nor the Canadian Human Rights Code ought to take jurisdiction over currently practised policies, pratices and procedures WRT CF employment policies. I believe that while the CF should adopt policies, practices and procedures that reflect the values and priciples of the Charter and the CHRC, those statutes and constitutional imperatives were not designed for military application, and do not take into account the reality and necessities of military service.
Instead, here is what I think should be put in place:
The Ministers Advisory Board on Gender and Employment Equity should be immediately disbanded. All of their reports ought to be thrown into the burn bag. The MABGEE is, was, and will always be a waste of scarce resources that has never produced a credible report or reached a decent conclusion on their own. They constantly recommend changes resulting in further "feminization" - i.e. lowering of standards to achieve what they call "true equality" and related concepts. [and I mean that in the "global sense", therefore in no way am I advocating gender discrimination in the military.]
The CF Greivance Board, insofar as it deals with human rights issues, should be reconstituted as a board of first instance, and nothing more. Civilians employed in the capacity of giving human rights advice or other support may be retained or re-employed as necessary, but they ought to be vetted for any hidden personal agendas.
A new Tribunal or Board [not one of the JAG variety] should be established, staffed only with properly qualified members [not lawyers] who are currently serving or who have served with distinction in the CF. Selected members would sit on the board for fixed terms, around 4 years or so, and all appointments to the board should be on the approval of a majority of a 10-15 member selection committee comprising long serving NCM's only. Tribunal appointments will be staggered to ensure a mix of experience with fresh perspectives is available and reflected in the decision making process. Let me clear here: Tribunal members are separate and distinct from selection board members. The MND/CDS and all related clowns will have no say on the composition of the Tribunal or the selection committee.
The CF should have its own Code dealing with human rights types of matters. The Code should incorporate to the maximum extent possible fundamental rights and values of the Charter and the CHRC, without imposing an undue burden on an organization whose primary function is [ought to be] war fighting. In the decision making process, the Tribunal or Board could and should refer to decisions of other human rights tribunals, however the legal principle of stare decisis [binding precedential authority of a higher Court] will have no application in the Code.
Every member of the CF will be subject to the Code and all of its provisions.
Every member of the CF ought to have gauranteed access to the Code in the event of a breach of the Code. The Office of the Military Ombudsman will have the right to be notified of every hearing before the board or tribunal, and will have the right to make representations and arguments before the board. The OMB can, with the consent of the complainant, represent the complainant.
No reprisals may be taken for a complaint under the Code that has merit or even breaks new ground. Frivolous and vexatious complaints calculated or designed to cause injury to the reputation of respondents in the system will be dealt with by appropriate sanctions including a reccommendation for dishonorable discharge.
The board or tribunal shall have remedial order making power including order to accommodate, and in certain cases monetary damage awards payable to the complainant. The board may make recommendations to have respondents face further administartive action such as demotion, dismissal.
The Code should be subject to judicial review on a standard of correctness for the interpretation of "law" but with certain modifications in order to exclude the more oppressive systemic remedies that may be, and have been, imposed by the current civilian system. In other words, the Code will not be subject "to the political winds of the day."
Above all, common sense will prevail. The "principle of fairness", properly modified to a military requirements, ought to be the driving feature of the Code.
"Patent unreasonableness" WRT interpretation of matters of fact, policy and procedure, and operational requirements should be the level of deference given to a Tribunal or Board charged with overseeing the enforcement of the Code.
I think one benefit of such a system will be that civilian oversight of military human rights affairs will be eliminated, however due process rights with legal representation will be preserved and enhanced. The present one sided David v. Goliath aspect of military human rights issues will be substatially evened out, and the risk of expensive and demoralizing systemic remedies will be much reduced if not outright eliminated. Above all else, political interference will hopefully be eliminated.
The entire rights system should be funded by the DOJ, and not the DND.
At the present time, twenty year olds entering the CF today were born into the Charter era and the evolving concept of rights and entitlements. They are products of what some in the legal profession refer to as the "culture of victimhood" that permeates Canadian society. Therefore, they have probably experienced nothing different than what the Charter has provided for them. In contrast, there are serving members who enrolled in the CF before the Charter, and have seen/experienced some of the collateral damage inflicted upon the CF as a result of the surge in human rights and Charter based decisions ... while some of those decisions have produced just and fair outcomes, many have resulted in changes which undermine the effectiveness of services by damaging morale; imposing systemic remedies and education programs which are expensive, time consuming and of little value for the effort and resources invested; and in a few cases have resulted in lowering of critical training standards.
My apologies for carrying on at length, and perhaps this should be set up as a separate topic for discussion.
Cheers,
Fred.
Edited by M. O'Leary to split from older thread and insert reference link in first para.
] call nothing but a vehicle through which many special interest agenda's are advanced. As a result, the LSUC is viewed with contempt by many honest, practising lawyers in Ontario. Sound familiar? That is why I am advocating no politcal input what-so-ever, as well as a board appointed by long serving NCM's and not senior officers and b-crats. 
