Politics

Navy's gender-neutral change to ranks not legally binding, says ex-military lawyer

The Royal Canadian Navy’s move to change the titles of its junior ranks has no legal force, says a former military lawyer.

Rory Fowler says he backs the change but accuses DND of taking a shortcut

Sailors head towards HMCS Ville de Quebec for the Royal Canadian Navy change of command ceremony in Halifax on Wednesday, June 12, 2019. (Andrew Vaughan/The Canadian Press)

The Royal Canadian Navy's move to change the titles of its junior ranks has no legal force, says a former military lawyer.

In the interests of making the service more inclusive, the RCN is replacing all references to "seaman" in the English-language ranks (ordinary, able, leading and master) with gender-neutral terms.

As of last week, the ranks are: sailor third class, sailor second class, sailor first class and master sailor.

But according to retired lieutenant-colonel Rory Fowler — a former military lawyer now in private practice who deals with many disciplinary and grievance cases — the Department of National Defence hasn't gone through the proper channels to change the regulations governing conduct in the ranks.

He said the government has failed to issue what's known as a Governor in Council order — an oversight the defence department now confirms.

The absence of formal authority is significant, given the criticism the measure is getting online — from some serving members of the military, among others.

The change to naval ranks was announced Aug. 27 through a general order — known as a CANFORGEN — issued across the entire military.

Military acting outside its authority: Fowler

"A CANFORGEN is essentially a glorified, if antiquated, email system for the Canadian Forces," said Fowler. "So, by using what is essentially a messaging system, the chain of command is purporting to amend rank designations that can only be changed by a regulation through the Governor in Council.

"They are acting ultra vires, or outside the jurisdiction and the authority that they have under the National Defence Act."

Fowler said that while he supports the changes to the ranks, it must be done legally and with the proper authority.

The navy is understaffed and the change — which brings the ranks more in line with how they're described in French — is seen by the military as a way to present the service as more diverse, inclusive and welcoming.

When word of the change started circulating online earlier this summer, some criticized it as political correctness running amuck and the demise of a navy tradition.

In response, the deputy commander of the navy, Rear Admiral Chris Sutherland, warned that there is no place in the service for sailors who subscribe to hateful, misogynistic or racist beliefs.

'Astronomical' hypocrisy

"If you cannot live by or support the values of the Canadian Charter of Rights and Freedoms, then you cannot defend them," he said.

Fowler said military leadership can't have it both ways by ignoring the rules while insisting that the troops obey them.

"If ... you are the Chief of the Defence Staff or the commander of the Royal Canadian Navy and you are purporting to change rank designations that only the Governor in Council has the authority to change, based upon an enactment of a statute by Parliament, then you are not complying with the rule of law," he said. "You are breaking the rules you are regularly punishing your subordinates for doing. And that is hypocrisy at the astronomical level."

Fowler said that, should an attempt be made to discipline someone for not obeying the new rules, military commanders would not have a legal leg to stand on.

A spokesperson for the defence department acknowledged that the formal process to "amend the requisite Queen's Regulations and Orders, through an order by the Governor in Council," is still ongoing.

In the meantime, members of the navy are expected to follow the rules set out in the general order.

"All [Royal Canadian Navy] members are expected to act in accordance with the new directions as outlined in the associated CANFORGEN," Jennifer St. Germain told CBC News.

The defence department was asked why the changes didn't go through the right channels before the policy change was announced, but did not answer the question.

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