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.
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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.
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