The military is dealing with most cases of Canadian Forces members accused of extremism and hateful conduct behind closed doors, without any disciplinary action.

The military doesn't have a specific service offence for hateful conduct, according to a briefing note prepared for Defence Minister Harjit Sajjan and obtained by CBC News through access to information. But the Forces can lay charges through the military justice system or under the Criminal Code which could lead to harsh penalties and publicity.

But that rarely happens. After CBC News obtained the September briefing note, the Canadian Armed Forces (CAF) provided an updated list of more than 50 cases of alleged hateful and extremist conduct recorded between 2013-2018. The cases include accusations of white supremacist views, neo-Nazi comments and racist or anti-LGBTQ comments.

Lawyer Rory Fowler, a former military legal officer, analyzed the list and found only four cases involving disciplinary action. In many cases, the military didn't even take remedial action. When it did, members often faced official warnings or counselling and probation. Unlike the procedure for a public court case or summary trial, military administrative measures are kept confidential.

"If the chain of command is trying to denounce this conduct, if they're trying to extend the punishments to achieve a general deterrence, that cannot be accomplished under administrative measures," said Fowler. "Administrative measures are not punishment."

The CAF said disciplinary actions are initiated only when there are sufficient grounds and enough evidence to justify laying a charge under military or criminal law. The CAF added that administrative measures aren't a slap on the wrist and can have serious career implications. including release from the military.

The military said it has a zero tolerance policy when it comes to hateful conduct and is taking stock of how it has handled extremism in the ranks. The move comes after a number of recent high-profile cases — including that of former Manitoba army reservist Patrik Mathews, who is currently missing and accused of being a neo-Nazi. A CAF spokesperson confirmed that Mathews' request for voluntary release was approved and he is no longer a member of the Armed Forces.

In an unprecedented request in August, Sajjan asked Canada's military ombudsman to investigate racism in the Armed Forces.

Former Army reservist Master Cpl. Patrik Mathews, shown here in a photo from 2015, has been accused of links to a neo-Nazi group. (Courtney Rutherford/CBC)

'Free as a bird, all of them'

As of early December, CAF had identified three cases of military members who had been released from service because of hateful conduct. Investigations into seven of the cases found no evidence of wrongdoing. Eight other cases are still ongoing. At least a dozen members were given warnings or counselling and probation.

In 18 cases of alleged hateful conduct, the accused military members received voluntary or medical release from the Armed Forces. The allegations against them involved white supremacist views, anti-Indigenous and anti-immigration comments, and homophobic statements.

Ottawa lawyer and retired colonel Michel Drapeau specializes in military justice cases. He said that in some instances, simply releasing a CAF member accused of hateful conduct from service could be a way for the brass to quickly get rid of a problem employee without a lengthy court case.

"Free as a bird, all of them," said Drapeau. "This way, you're out and there's no records of anything. They just let you go."

The CAF said it has the ability to restrict a member's release while it decides if any administrative or disciplinary measures will be taken. The CAF can also arrest and charge former members if information is later uncovered about their activities while in uniform.

Details of cases won't be released due to privacy rules

The document contains very few details about the cases the military has been dealing with, but some examples include:

A corporal at Gagetown, N.B. having a tattoo of a racist flag removed and therefore not being disciplined in any way.

Criminal charges pending after an incident involving a member in Saint-Jean, Que. accused of making racist comments.

Three corporal reservists in Calgary who were accused of being connected to Fireforce Ventures, an online site selling white-supremacy merchandise including "Rhodesian Army Shirts," Republic of Rhodesia flags and patches. Rhodesia is the colonial name for the modern-day Zimbabwe, which was ruled by a white minority until 1980. One person received counselling and probation, the other two were removed from their unit while an investigation was underway but were not disciplined further.

When CBC News asked for more information about CAF's cases of extremist and hateful conduct, the military said it wouldn't release additional details "in accordance with the Privacy Act."

Fowler said that's the problem. When cases are dealt with through the chain of command rather than publicly through the military justice system, it becomes personal information and can't be released publicly.

"We don't know why the soldier was released," said Fowler. "We don't have an opportunity for public discourse about the reasons. Equally, the individual who is affected doesn't have the opportunity to have a constitutionally independent judge review that action initially."

Fowler said that, as with sexual assault cases, hateful and extremist behaviour in the military should be dealt with publicly through the military's Code of Service Discipline. According to the updated case list supplied by CAF, there were only two summary trials between 2013-2018. In one of those cases, a corporal made anti-LGBTQ comments, was found guilty and given a recorded warning.

Fowler said the move appears to linked to the chain of command's dissatisfaction with the Code of Service Discipline. He said he believes military brass dislike using the code because when a member elects a trial by court martial, it takes longer and requires a higher burden of proof.

Recently-passed legislation, Bill C-77, updates the National Defence Act to reduce the burden of proof needed during a summary trial.

Accused on average have 8 years of service

Drapeau accused the military of "pacifying" the issue of extremism in the ranks, pointing to a passage in the briefing note that says the caseload is statistically "very low — less than 0.1 per cent of the CAF population were identified and are not considered a security threat." He said Sajjan should have been given more details about the nature of the allegations.

Ottawa lawyer and retired colonel Michel Drapeau said the military should be using courts and tribunals to decide if military members accused of hateful conduct should be punished. (Ashley Burke/CBC News)

"It was a clean bill of health to the defence minister," said Drapeau. "When it comes to these kinds of issues, we don't have a problem ... I don't think you want to pooh-pooh it and reduce its significance."

He said it's "significant" that three captains, four sergeants and two master corporals were listed in the briefing note as having been accused of racist or offensive conduct.

The average length of service for members associated with a hateful or extremist conduct is eight years, but ranges individually from four months to 18 years, according to the briefing note. There were eight incidents linked to members with more than 15 years of service.

"That's shocking," said Drapeau. "You'd expect this from newly recruited individuals in their late teens or early 20s [who] haven't learned the discipline yet and haven't learned what you can get away with or not."

CAF says it's training members

The military's legal department, the Office of the Judge Advocate General, declined CBC's request for an interview.

In a statement, the department pointed to a Supreme Court of Canada case from July 2019 that "reaffirmed that the military's justice system is designed to meet the unique needs of the CAF with respect to discipline, efficiency and morale."

"To maintain the CAF in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently."

CAF said it has taken measures to properly screen new recruits, and members are educated throughout their careers about the rules on discrimination, hateful conduct and the consequences.

"The chief of the defence staff has made it quite clear that hateful conduct will not be tolerated within the CAF," says the statement.

While the ombudsman's office reviews Sajjan's request for an investigation, the military says it is working internally "to stamp out hateful conduct across the organization."