T-306-93
Lieutenant (N) Andrew S. Liebmann, Canadian Forces (Reserve) (Plaintiff)
v.
Minister of National Defence, Chief of the Defence Staff and Her Majesty the Queen (Defendants)
and
League for Human Rights of B'Nai Brith Canada (Intervener)
Indexed as: Liebmannv. Canada(Minister of National Defence) (T.D.)
Trial Division, Rouleau J."Vancouver, May 4, 5, 6, 7, 8, 11, 12, 13, 14, 15 and 20, 1998; Ottawa, September 18, 1998.
Constitutional law — Charter of Rights — Equality rights — Action for declaration Canadian Forces Administrative Orders (CFAO) 20-53 infringing equality rights — CFAO 20-53, s. 6(c) permitting consideration of cultural, religious or other sensitivities of parties to conflict and host country in determining whether participation of particular member in specific peacekeeping operation in keeping with policy all members eligible to perform peacekeeping duties unless exclusion justifiable under Charter, s. 1 or Canadian Human Rights Act, s. 5 — Plaintiff not selected for position of Executive Assistant to Commander of Canadian Forces in Middle East during Gulf War because Jewish — Any distinction drawn by CFAO 20-53 based upon cultural, religious or other characteristics of members relevant to underlying premise of policy i.e. successful peacekeeping missions without endangering lives of those involved — Effect or impact of distinctions not suggesting based on stereotypical applications of presumed group or personal characteristics — Policy applied on case-by-case basis to sensitivities identified in theatres of operations, not to screen classes of members based upon stereotypical views of groups to which belong — Distinctions under CFAO 20-53, s. 6(c) not discriminatory — Terms —cultural—, —religion— should be replaced with more general terms —background—, —circumstance— — Definition of peacekeeping should be provided.
Armed Forces — Plaintiff, Naval Reservist, not selected for position of Executive Assistant to Commander of Canadian Forces in Middle East during Gulf War because Jewish — CFAO 20-53, s. 6(c) permitting consideration of cultural, religious or other sensitivities of parties to conflict and host country in determining whether participation of particular member in specific peacekeeping operation in keeping with policy all members eligible to perform peacekeeping duties unless exclusion justifiable under Charter, s. 1 or Canadian Human Rights Act, s. 5 — Impugned policy poorly drafted, containing no definition of —peacekeeping— — Although policy valid, should not have been applied since posting not involved in peacekeeping mission, but part of Canadian contingent to international forces assembling in Persian Gulf to enforce blockade of Iraq — But no basis on which to allow plaintiff's claim.
This was an action for a declaration that Canadian Forces Administrative Orders (CFAO) 20-53 was unlawful and unconstitutional, and that the selection process for a posting to the Middle East during the Gulf War was unconstitutional, and other related relief. CFAO 20-53 sets out the policy for the employment of Canadian Forces personnel on peacekeeping duty. Paragraph 6(c) permits the consideration of "the cultural, religious or other sensitivities of the parties to the conflict and the host country" in determining whether the participation of a particular member in a specific peacekeeping operation is in keeping with the policy that all members will be eligible to perform peacekeeping duties unless an exclusion can be justified under Charter, section 1 or Canadian Human Rights Act , section 5. The plaintiff was a member of the Naval Reserve. He fulfilled all of the requirements for a posting as Executive Assistant to Rear Admiral Summers, Commander Canadian Forces in the Middle East when that position became vacant, which was anticipated to be March 31, 1991. He was verbally instructed to prepare to go to the Gulf. But, after it was drawn to the attention of military authorities that he was Jewish, he was told that he would not be going to the Gulf. The plaintiff submitted that the defendants violated his equality rights when they considered his religion as the reason for his non-selection for a posting in the Middle East.
Held, the action should be dismissed.
The evidence clearly supported the plaintiff's allegation that he had been denied the posting because of his religion.
Any distinctions drawn by CFAO 20-53 based upon the cultural, religious or other characteristics of members are relevant to the underlying premise of the policy, which is successful peacekeeping missions without endangering the lives of those involved. In addition, the effect or impact of the distinctions drawn by paragraph 6(c) does not suggest that those distinctions are based on stereotypical applications of presumed group or personal characteristics. The policy has been applied on a case-by-case basis to potential sensitivities identified in theatres of operations, and not to screen classes of members based upon stereotypical views of groups to which they belong. There has not been any "blanket prohibition" imposed as a result of the policy. The distinctions made under CFAO 20-53, paragraph 6(c) are not discriminatory in the sense that they resulted in a denial of the right to equality based upon personal characteristics or the stereotypical application of presumed group or personal characteristics. In that sense they did not violate Charter, subsection 15(1).
The impugned policy was poorly drafted. Terms such as "cultural" and "religion" should be replaced with more appropriate and general terms, such as "background" and "circumstance". The policy should also state that it applies to peacekeeping missions and should provide a definition of the term "peacekeeping". Finally, policy statements should make it clear if and when they are replacing and/or revoking an already existing policy so as to avoid confusion and improper application of the policy.
Although the policy was valid, it should not have been applied to this plaintiff since the posting was not involved in a peacekeeping mission, but was part of the Canadian contingent to the international forces assembling in the Persian Gulf to enforce the blockade of Iraq. Since the Gulf War was not a peacekeeping operation, there was no basis for an application of CFAO 20-53 to the plaintiff. But, even so, there was no ground on which the plaintiff's claim could be allowed.
statutes and regulations judicially considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.
Canadian Forces Administrative Orders, 20-53.
Charter of the United Nations, [1945] Can. T.S. No. 7.
ACTION for a declaration that Canadian Forces Administrative Orders 20-53 was unlawful and unconstitutional, and that the selection process for a posting to the Middle East during the Gulf War was unconstitutional, and other related relief. Action dismissed.
appearances:
Samuel D. Hyman and Robert J. Kincaid for plaintiff.
Linda J. Wall and Brian D. Tittemore for defendants.
David Matas for intervener.
solicitors of record:
Samuel D. Hyman Law Corporation, Vancouver, for plaintiff.
Deputy Attorney General of Canada for defendants.
David Matas, Winnipeg, for intervener.
The following are the reasons for order rendered in English by
Rouleau J.: The plaintiff, a Lieutenant in the Canadian Forces Naval Reserve, seeks the following relief in his statement of claim:
A. A declaration that the CFAO 20/53 as amended is unlawful and unconstitutional and does and will deprive Lieutenant Liebmann of his Rights under the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Multiculturalism Act, and does deprive Lieutenant Liebmann of the equal benefit and protection of the law.
B. A declaration that the process of selection of the Lieutenant Liebmann for duty with CONCAMFORME was unconstitutional, being contrary to the Plaintiff's Rights and Freedoms under the Canadian Charter of Rights and Freedoms and unlawful, being contrary to the Canadian Bill of Rights and the Canadian Multiculturalism Act and the Canadian Citizenship Act.
C. An injunction enjoining the Defendants and all officers and men under the command of the Defendant Chief of the Defence Staff from precluding the selection of the individuals for active service or peace-keeping duties on the grounds that ethnic, racial or religious considerations could cause significant difficulties in any theatre of operations in which Canada is or may be involved.
D. A mandatory injunction ordering the Defendants and all officers and men serving under the command of the Defendant Chief of the Defence Staff to allow all members of the Canadian Force, to be selected for any peace-keeping postings, duty, promotion, or other administrative movement without regard to the individuals ethnic, racial or religious background.
E. For an Order pursuant to Paragraph 24 of the Canadian Charter of Rights and Freedoms, that:
(i) CFAO 20/53 as amended be expressly expunged from the Queen's Regulations and Orders governing the Canadian forces;
(ii) the Defendant Chief of the Defence Staff be required by General Message and Administrative Order to inform and instruct the Department of National Defence and the Canadian Forces that the criteria of race, religion or ethnic origin are unconstitutional and unlawful when a member of the Canadian Forces is being considered for or deprived of any peace-keeping postings, promotion or selection for any administrative action in the Canadian Forces.
The impugned policy, attached hereto as Schedule A, is entitled "Policy for the Employment of Canadian Forces Personnel on Peacekeeping Duty" (Canadian Forces Administrative Orders 20-53). In particular, paragraph 7 provides as follows:
7. Normally, only the qualification and medical requirements potentially will restrict those members who would be considered for selection for a peacekeeping operation. However, for some missions, cultural, religious or other sensitivities of the parties or host country may have to be respected for the mission to be accomplished safely and effectively. Therefore, for each peacekeeping mission, the Deputy Chief of the Defence Staff (DCDS), in consultation with the Assistant Deputy Minister (Personnel), (ADM(Per)) and the Assistant Deputy Minister (Policy), (ADM(Pol)), will determine the exact nature of the sensitivities of the parties to the conflict and the host country, of whatever nature, and analyze the potential increase in danger to the mission or to the health or safety of individuals if those sensitivities are not respected.
The facts leading to this litigation are as follows. The plaintiff, at a very young age, joined the Naval Reserve at the City of Toronto and, being relocated to the West Coast, pursued with a great deal of passion and enthusiasm his Armed Forces career and more particularly the Navy. He remained in constant physical and mental preparedness. Over the years, he pursued numerous courses in seamanship and navigation and even qualified as a deep sea diver. His duties with the Naval Reserve provided him with varying expertise to the point where he had even been entrusted with command of a vessel during summer manoeuvres. He also had experience in public relations for a department of the Government of British Columbia.
On December 21, 1990, a message was sent from the Commander of Maritime Command requesting that all reserve units provide nominations to fill two positions: Executive Assistant to the Commander CFME and Sea Operations Watch Officer. The expressed qualifications for the nominees were that they be (a) qualified as Maritime seaman; (b) available as of February 25, 1991; and (c) medically fit. The reason for the pending replacement of the Executive Assistant was that it is customary and almost mandatory that service personnel, after having served a six- month term of duty, are relieved or rotated. Maritime Command Halifax had the responsibility of providing replacement personnel. It was aware that the current Executive Assistant posting was to terminate March 31, 1991 and this initiated the search and the telex of December 21, 1990. They realized that in order to locate and train a qualified individual to fulfil this assignment, it was essential that the process be initiated some weeks beforehand. The process required a series of medical check-ups and inoculations and would also require a two- or three-week training period at Kingston, Ontario to prepare any candidate for the Middle East theatre. Following their assessment and confirmation by Reserve Command in Quebec City, it then became necessary for those two arms of the Naval Forces to direct National Defence Headquarters at Ottawa to prepare and issue the necessary C-contract. Without such a contract, a candidate could not expect to be covered for any incidental expenses he or she might incur as a result of leaving his or her civilian obligations and responsibilities.
When the plaintiff became aware of the possibility of an appointment as Executive Assistant to Rear Admiral Summers, he pursued it with great enthusiasm and diligence. Within a very short period of time, he had met all the physical requirements and had subjected himself to the various inoculations that were required for someone being assigned to the Middle East. There is no doubt that he more than adequately fulfilled the requirements for the posting.
Since Lieutenant Liebmann met all the qualifications for the position of Executive Assistant, his former Commanding Officer, Commander Cook, nominated him. On January 11, 1991, a nomination message was sent to the Commanding Officer Naval Reserve Division (CONRD) and Maritime Command. Thereafter, on January 21, 1991, Maritime Command forwarded the message to National Defence Headquarters supporting the nomination and recommending the plaintiff for the posting. At the same time, it was requested that NDHQ issue a C-contract effective February 25, 1991.
On January 24, 1991, a message was sent to Maritime Command from CONRD concurring with the plaintiff's nomination for posting as Executive Assistant. The plaintiff then received joining instructions from Lieutenant Carter, the Executive Officer of Discovery, and verbally received instructions to prepare to go to the Gulf. Lieutenant Liebmann kept Lieutenant Carter advised of his availability and that information was passed on to senior command.
That same day, Lieutenant Carter received a telephone inquiry from Lieutenant-Commander Evans of Maritime Command Pacific concerning the plaintiff's religion. Lieutenant Carter made inquiries and then informed Lieutenant-Commander Evans that Lieutenant Liebmann's records indicated he was Jewish.
Thereafter, Lieutenant Carter was allegedly advised by Lieutenant-Commander Gardham, Staff Officer, personnel, Maritime Command, that the plaintiff was not going to the Gulf because of concerns for his personal safety and ability to perform his duties in an Islamic country. Lieutenant Carter and the plaintiff both allege that the plaintiff was told the reason he was not going to the Gulf was because he was Jewish.
After the plaintiff's religion was determined and he was told that he was not going to the Gulf, Maritime Command continued processing a Lieutenant John Nisbet, of Halifax, also an officer in the Naval Reserve, for the position of Executive Assistant. That processing had commenced in January of 1991 and continued until February 4, 1991, at which time Lieutenant Nisbet was told that he was going to the Gulf. The defendants however, allege that at some time in January of 1991, Rear Admiral Summers advised Commander Johnston that he had no intention of changing his Executive Assistant in any event. In fact, the Executive Assistant who was serving at that time, Lieutenant Gillis, remained in the position until Commander Summers was relieved of duty in June of 1991.
The plaintiff maintains that the defendants violated his equality rights when they considered his declared religion as the factor in his non-selection for posting in the Middle East. He argues that the formulation, implementation and application of policy to the selection of personnel for peacekeeping duties which makes personal characteristics of race, gender, colour, religion and ethnic origin a criteria for selection or non-selection for duty, is a contravention of section 15 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].
The defendants do not contest that the plaintiff was selected by MARCOM as its replacement for Lieutenant Gillis. They maintain however, that the position never in fact came open and that there was therefore no position to which anyone could have been appointed for the duration of Commander Summers' stay in the Gulf. It is clear, they argue, that the plaintiff's religion, while a concern at the MARCOM staff level, was not a causative factor in the posting.
Based on the evidence, I am satisfied that Lieutenant Liebmann qualified and was recommended for the position of Executive Assistant by both Maritime Command and Naval Reserve Headquarters and that, on January 21, 1991, both had instructed NDHQ to issue a C-contract effective February 25, 1991.
I am also satisfied that the evidence does not support the defendants' contention that the plaintiff did not get the position because there was no position to fill and that MARCOM was so advised some time on or about January 21, 1991. On the contrary, what the evidence demonstrates is that the extension of the current Executive Assistant's term of duty only arose after it became apparent that the defendants did not want to send Lieutenant Liebmann because of his religion but were concerned over the implications of letting that truth be known. This concern arose, at least in part, because of the aspirations and inquiries of one Lieutenant Hanlin, a female Naval Reserve officer, who also sought the position of Executive Assistant to Commander Summers. When advised that it would be inappropriate to send a woman to the Middle East in that position, she then questioned Lieutenant-Commander Gardham why it was appropriate to send Lieutenant Liebmann who was Jewish. When the evidence is viewed in its entirety, it becomes quite clear that this was really the event that triggered the inquiries into and subsequent concerns over the plaintiff's religion.
Furthermore, the fact that the defendants continued processing Lieutenant Nisbet for the position and advised him as late as February 4, 1991 that he would be going to the Middle East, negates their contention that the decision not to replace the current Executive Assistant was made during the third week of January 1991. Indeed, Lieutenant Nisbet, a lawyer by profession, was the only witness who appeared before me who had notes recording pertinent events and the dates on which they occurred. Even the three people directly involved in the selection process for the position of Executive Assistant had no records or files of any kind, in spite of the plaintiff's stated intention of filing a grievance. For obvious reasons, I find Lieutenant Nisbet's testimony to be the most persuasive and trustworthy of any of the witnesses who were involved in the selection process. I would add that I totally disregard the testimony of Commander Burke who stated that he was told that Lieutenant Liebmann was "demonstrably Jewish". That information could only have come from Lieutenant Hanlin whose testimony did not support this unwarranted inference on Commander Burke's part.
In summary therefore, the evidence clearly supports the plaintiff's allegation that he was not selected for the position of Executive Assistant because of his religion.
I turn now to the impugned policy CFAO 20-53 and the unwritten policy upon which it was based, and which was in effect at the material time. The order in question sets out the policy for the employment of Canadian Forces personnel on peacekeeping duty. At the outset, it states that [paragraph 5] "all members qualified to perform peacekeeping duties will be eligible to do so unless an exclusion or limitation can be justified." Paragraph 6 then sets out the factors which are to be taken into account "[i]n determining whether the participation of a particular member in a specific peacekeeping operation is in keeping with the stated policy." One of these factors is the cultural, religious or other sensitivities of the parties to the conflict and the host country.
The reason for these considerations are discussed in the report of Dr. Mats Berdal, Research Fellow and Research Co-ordinator, Centre for International Studies, Oxford University, which was submitted into evidence at trial. Dr. Berdal makes the following observation at pages 17 and 18 of his report:
It [paragraph 6(c) of CFAO 20-53] seeks to ensure that the integrity, security and effectiveness of any peacekeeping force that is deployed is protected to the greatest extent possible. By allowing for the "sensitivities of the parties" to be taken into account in determining participation in peacekeeping, CFAO 20-53 6(1) seeks to guard against an inadvertent erosion of impartiality and the perception of impartiality, and a consequent weakening of force security. That this is the motivation behind the order seems to me to be reinforced by the fact that the sensitivities of the parties are expressly only to be considered when the failure to respect them "creates a real risk that the mission will not be carried out successfully or that the danger to the health and safety of the individuals will be increased to a level greater than that already inherent in the nature of the mission". The factors to be considered in determining whether the "sensitivities of the parties" are likely to "affect a member's participation in a peacekeeping operation" are elaborated upon in the amended version of CFAO 20-53, approved in March 1998. These factors make it quite clear that the motivation behind the policy is to minimise the risk to the lives of peacekeepers and to ensure that the mission is effectively carried out.
. . . the need to preserve the impartiality and the perception of impartiality in a peacekeeping operation"properly understood as a consent-based activity, involving a wide range of tasks and activities but not designed to impose a solution by coercive means"is a legitimate one. Indeed, from an operational point of view, measures aimed at preventing the erosion of impartiality are to be positively welcomed. This is because the key to operational effectiveness lies in the quality of the troops deployed, specifically their ability to carry out tasks in a professional and impartial manner. This, in turn, requires awareness of and sensitivity to the interests, perceptions and attitudes of the parties on the ground. [Emphasis added.]
There was other evidence before this Court which also demonstrated that the purpose of the impugned policy includes ensuring the operational effectiveness and security of peacekeeping operations. The underlying premise of the order, supported by evidence presented at trial, is that the failure to respect the cultural, religious or other sensitivities of parties to conflicts and host countries may threaten the effectiveness of peacekeeping operations, as well as increase the dangers for members of those operations. For example, Colonel (Ret'd) Farris testified that he would not have been able to deploy members of Vietnamese descent in Khmer Rouge controlled areas of Cambodia during the peacekeeping operation in that country for fear of the safety of those members. Accordingly, any distinctions drawn by paragraph 6(c) of CFAO 20-53 based upon the cultural, religious or other characteristics of members are relevant to the underlying premise of the policy, which is successful peacekeeping missions without endangering the lives of those involved.
In addition, the effect or impact of the distinctions drawn by paragraph 6(c) does not suggest that those distinctions are based on stereotypical applications of presumed group or personal characteristics. For example, the evidence demonstrates that since its promulgation, CFAO 20-53 has not been applied so as to prevent any members of the Canadian Forces from being posted to peacekeeping operations. Rather the policy has been applied on a case-by-case basis to potential sensitivities identified in theatres of operations, and not to screen classes of members based upon stereotypical views of groups to which they belong. There has not, in other words, been any "blanket prohibition" imposed as a result of the policy in question.
In my view, the distinctions made under paragraph 6(c) of CFAO 20-53 are not discriminatory in the sense that they result in a denial of the right to equality based upon personal characteristics or the stereotypical application of presumed group or personal characteristics. In that sense, they cannot be seen to constitute a violation of subsection 15(1) of the Canadian Charter of Rights and Freedoms.
However, it is also clear that policies of this nature must be intelligently drafted and judiciously interpreted in order to protect the rights of individuals and to assist the Canadian Forces to accomplish their mission. They must be formulated and applied with caution and objectivity. Here, the impugned policy as been poorly drafted. Terms such as "cultural" and "religion" should perhaps be replaced with more appropriate and general terms, such as "background" and "circumstance". The policy should also state that it applies to peacekeeping missions and should provide a definition of the term "peacekeeping". Finally, policy statements should make it clear if and when they are replacing and/or revoking an already existing policy so as to avoid confusion and improper application of the policy.
Although the policy in question may be valid, the fact remains that it should not have been applied to this plaintiff since Commander Summers, and accordingly his Executive Assistant, were not involved in a peacekeeping mission. When Iraq invaded Kuwait on August 2, 1990, the United Nations condemned the invasion and called for Iraq's withdrawal. In a series of resolutions of the United Nations Security Council, the U.N. put in place an international embargo as a means of forcing Iraq to withdraw its forces. The Security Council authorized the use of enforcement action pursuant to Chapter VII of the Charter of the United Nations [[1945] Can. T.S. No. 7].
The Government of Canada decided to commit a Canadian contingent to the international forces assembling in the Persian Gulf to enforce the blockade of Iraq. Canada's contribution comprised an air element, being a squadron of F-18 fighter aircraft to be based in Qatar, and a naval element, consisting of three Canadian vessels, the Athabascan, the Terra Nova and the Protecteur. Then Commodore K. J. Summers, the Chief of Staff, Operations at Maritime Command in Halifax, Nova Scotia, and Commander of the Canadian Fleet, was tasked to command the Canadian Fleet sent to the Persian Gulf. He was subsequently appointed Commander, Canadian Forces Middle East.
The Gulf War, as it became known, was not a peacekeeping operation and there was no basis therefore for the defendants to apply CFAO 20-53, or any other similar unwritten policy concerning peacekeeping, to Lieutenant Liebmann in his quest for the position of Executive Assistant to Commander Summers.
There is nevertheless, no basis on which I can allow the plaintiff's claim and it must be dismissed. However, I am satisfied that Lieutenant Liebmann did have legitimate grievances with respect to the manner in which the defendants conducted themselves in the selection process. There will therefore be no order as to costs.
SCHEDULE A
POLICY FOR THE EMPLOYMENT OF
CANADIAN FORCES PERSONNEL ON
PEACEKEEPING DUTY
PURPOSE
1. This order prescribes the policy applicable to the employment of members of the Regular Force and Reserve Forces on peacekeeping duties.
GENERAL
2. Peacekeeping is one way in which Canada contributes to international peace and security, and to attenuating the human suffering engendered by such conflicts. In basic terms, peacekeeping is a tangible reflection of Canada's commitment to making the world a more secure and better place to live. It is also a serious, dangerous and potentially life-threatening undertaking.
3. Given the nature of peacekeeping, it is quite possible that the Canadian Forces (CF) will be tasked by the Government of Canada to serve as peacekeepers in areas where human rights are not guaranteed or where cultural traditions differ significantly from those of the Western World. The CF is called upon to perform peacekeeping duties because of its ability to respect, while not necessarily sharing, the cultural, religious and other sensitivities of the countries in which it serves. This respect is a fundamental requirement for the success of a peacekeeping effort and a necessity for the safety of the members of peacekeeping units.
4. Where Canadian law on equality conflicts with the customs or culture of a host country, the CF is committed to respect the equality rights of its members while remaining sensitive to the host culture.
POLICY
5. It is the policy of the CF that all members qualified to perform peacekeeping duties will be eligible to do so unless an exclusion or limitation can be justified as a reasonable limit under section 1 of the Canadian Charter of Rights and Freedoms or established under section 5 of the Canadian Human Rights Act.
FACTORS TO BE CONSIDERED
6. In determining whether the participation of a particular member in a specific peacekeeping operation is in keeping with the stated policy, the following factors are to be taken into account:
a. the qualifications of the member;
b. the medical condition of the member in relation to the conditions under which the member may have to serve during the peacekeeping operation;
c. the cultural, religious or other sensitivities of the parties to the conflict and the host country, but only to the extent that failure to respect those sensitivities creates a real risk that the mission will not be carried out successfully or that the danger to the health and safety of the individuals will be increased to a level greater than that already inherent in the nature of the mission. In determining whether these sensitivities exist, and whether they should affect a member's participation in a peacekeeping operation, the following factors must be considered:
(i) the laws, customs or mores of the parties to the conflict and the host country which may indicate a particular sensitivity,
(ii) the nature of the conflict where the peacekeeping force will be deployed (for example, is the conflict between ethnic or religious factions and is ethnicity or religion a factor in the conflict),
(iii) the nature of the mission the peacekeeping force will be conducting (for example, is the mission one where there will be direct interface between the peacekeeping force and the warring factions or host nation),
(iv) the nature of the duties individual members will be called upon to perform (for example, will the individual member have direct interface with the parties to the conflict), and
(v) whether reasonable alternatives to exclusion from participation in the peacekeeping force can be round (for example, can the risk be sufficiently reduced by realignment of members' duties without impairing members' or units' effectiveness);
d. previous employment in sensitive or classified areas with organizations of the Government of Canada or allied forces.
7. Normally, only the qualification and medical requirements potentially will restrict those members who would be considered for selection for a peacekeeping operation. However, for some missions, cultural, religious or other sensitivities of the parties or host country may have to be respected for the mission to be accomplished safely and effectively. Therefore, for each peacekeeping mission, the Deputy Chief of the Defence staff (DCDS), in consultation with the Assistant Deputy Minister (Personnel), (ADM) (Per)) and the Assistant Deputy Minister (Policy) (ADM (Pol)), will determine the exact nature of the sensitivities of the parties to the conflict and the host country, of whatever nature, and analyse the potential increase in danger to the mission or to the health or safety of individuals if those sensitivities are not respected.
8. The requirement for restrictions to be imposed for a particular mission is in no way a reflection on the member or members who are restricted. If any member of the CF is restricted from participating in a particular peacekeeping operation due to a requirement to respect the sensitivities of the parties or the host country, the restrictions shall not create a disadvantage for career purposes when the member is compared with those who did proceed on the peacekeeping mission. It must be emphasized clearly that the fact that a member is restricted from participating in one particular peacekeeping operation does not mean that the member is precluded from participation in other peacekeeping operations. A member who is denied participation in a specific peacekeeping operation as a result of this policy may request to be considered for a future peacekeeping operation for which the member is qualified. When the next peacekeeping operation for which the member is suitably qualified is to be undertaken, the member making such a request shall be considered for participation, even if the member normally would not have been considered.
RESPONSIBILITIES
9. The DCDS, as Group Principal responsible for peacekeeping operations, shall be responsible for determining, by all practicable means (including the position put forward by the peacekeeping force commander) if specific personnel restrictions are essential for newly mounted missions. The determination shall be made in consultation with ADM (Pol) and ADM (Per). The DCDS shall also be responsible for providing pertinent information to ADM (Per). ADM (Per) will retain information concerning personnel restrictions on a central file for monitoring purposes, as outlined in paragraph 11.
10. The DCDS will monitor peacekeeping missions to determine if the requirements for restrictions have changed over the life of the mission. If there is a change in the requirements for restrictions, they shall be modified to ensure that only the minimum restrictions necessary are maintained.
11. ADM (Per) shall establish and maintain a review mechanism to ensure that restrictions on individual members outlined in paragraph 8 are minimized and monitored and that any members who are restricted are treated fairly and equitably.
12. ADM (Pol) is to be advised of particular instances in which it is deemed necessary to impose restrictions to respect the sensitivities of the parties or the host country.
(C) 1605-20-53 (D PK Pol)
Issued 1998-03-31
INDEX
Peacekeeping