# 2017-139 Careers, Release - Conduct/Performance, Sexual Misconduct

Case summary

F&R Date: 2019-08-28

The grievor was arrested and charged under the Criminal Code of Canada for offences related to child pornography. The Director Military Careers Administration (DMCA) initiated an Administrative Review (AR) for alleged sexual misconduct but placed the review on hold pending the outcome of the trial. Four years later, the grievor was convicted for one offence related to child pornography. A few months later, the AR process resumed. In the following months, the Court quashed the conviction and stayed all proceedings. However, shortly thereafter, the grievor was released from the Canadian Armed Forces (CAF) under item 2(a) [Unsatisfactory conduct] of the Table to article 15.01 of Queen's Regulations and Orders for the Canadian Forces.

Conceding that his actions may have merited his release, the grievor sought to have his release item changed to either 4(c) - Voluntary, On Request - Other Causes, or 5(f) - Unsuitable for Further Service. He argued that his AR was not procedurally fair nor was it processed in a timely fashion.

The Initial Authority (IA), the Director General Military Careers, denied the grievance, having determined that the grievor's release under item 2(a) was policy compliant and appropriate. The IA concluded that although the conviction was ultimately quashed, there was clear evidence that inappropriate conduct of a serious nature had occurred.

The Committee found that the DMCA decision to release the grievor under item 2(a) was not policy compliant as the explicit test set out in the Defence Administrative Orders and Directives (DAOD) 5019-5, Sexual Misconduct, was not applied correctly. The Committee therefore concluded that the DMCA decision should be set aside.

The Committee then applied the criteria set out in the DAOD 5019-5 to review the evidence surrounding the grievor's situation and found that the degree of incompatibility between the grievor's sexual misconduct and his continued service in the Canadian Armed Forces – service that he had been performing proficiently for over four years since his arrest – was not sufficient to justify his compulsory release. The Committee concluded that he should have been retained and placed on Counselling and Probation.

The Committee recommended that the grievor be offered re-enrollment. In the alternative, the Committee recommended that the release item be changed to 5(f).

FA decision summary

The Chief of the Defence Staff (CDS), acting as Final Authority, agreed with the Committee's alternative recommendation to partially uphold the grievance and change the release item. However, the CDS disagreed with the Committee's recommendations and changed the grievor's release item from 2(a) to 4(c) - Voluntary - On Request – Other Causes.

The CDS first excluded the question of the grievor's release from the scope of the grievance, stating that the grievor was only disputing his release item. The CDS agreed that the AR was unfair and should be set aside. The CDS also noted that the grievor's conviction was quashed and his case was stayed. For that reason, he found that a 2(a) was not the appropriate item. He also found that the reason provided for at 5(f) would not be appropriate in this case.

The CDS reiterated that there is no room in the CAF for anyone involved with child pornography at any level and that release was reasonable and justified. He said that his decision to change the release item was based on the fact that the grievor expended efforts to improve himself.

On the question of re-enrolment, the CDS said that he would not direct the grievor's re-enrolment, but he noted that nothing prevented the grievor from taking steps in that direction.