# 2010-056 Releases, Administrative review, Release - Compulsory, Sexual misconduct

Case summary

F&R Date: 2010-12-17

The grievor was convicted of sexual assault and conduct to the prejudice of good order and discipline, and was given a severe reprimand and a $2,000 fine. He was then also the subject of an administrative review (AR), which resulted in him being placed on counselling and probation (C&P) for sexual misconduct. He successfully completed his period of probation and was removed from C&P but was advised that any further incidents of sexual misconduct would most likely result in a recommendation for release.

Four years later, following a domestic dispute, the grievor was charged with assault, sexual assault, unlawful confinement and uttering a threat. As a result of these charges, the Director Military Careers Administration (DMCA) conducted an AR,. which recommended the grievor be released from the Canadian Forces (CF). The grievor requested that the AR be delayed until the conclusion of his criminal proceedings as he was unable to make effective representations to the AR on the advice of his lawyer, who had told him that doing so might jeopardize his civil case. The grievor's Commanding Officer, who had attended the preliminary hearings in the case, also strongly recommended that the AR be delayed until the criminal case could be heard. The DMCA, relying primarily on the summary prepared by the military police (MP), which alleged that the grievor had made admissions, determined that he had enough evidence to conclude that the grievor had breached the CF policy on sexual misconduct, and therefore directed that the grievor be released.

In regard to procedural fairness, the Board examined in detail the jurisprudence and concluded that CF members are owed a high degree of procedural fairness, especially in administrative proceedings that could lead to their release.

The Board accepted that the grievor had been provided full disclosure of the information being considered by the DMCA. However, it was also clear that the grievor was unable to make representations, notwithstanding that he had been invited to do so, due to the pending criminal proceedings.

The Board noted that unlike other CF proceedings, such as a Board of Inquiry where protection against self-incrimination is afforded to CF members and they can be compelled to testify, the AR process offers no protection to members who would be placed in the impossible situation of having to choose between potentially jeopardizing their defence in criminal proceedings or being released from the CF without having an opportunity to respond to the allegations against them.

In these circumstances, the Board found that the grievor was not provided procedural fairness in the AR process that led to his release. The Board could find no compelling reason to expedite the grievor's release prior to the conclusion of the criminal proceedings and found that the DMCA decision to proceed with the AR and release was unreasonable in this case.

Relying on the Supreme Court of Canada decision in Dunsmuir, the Board concluded that the grievor’s release had to be invalidated because his right to procedural fairness had clearly been violated during the AR. Accordingly, the Board found that the grievor’s release had to be annulled and his military service deemed to have never ceased. The Board explained that this did not mean that the grievor could not be released again, provided that a subsequent decision to release is made in accordance with the rules of procedural fairness and the principles of natural justice. The Board added that, if such a decision is retaken by the Chief of the Defence Staff (CDS) or following a new AR, it will have to be effective the date the new decision is taken.

Finally, the Board found that even if the CDS were to disagree with its conclusions on the issue of procedural fairness, he would still have to be satisfied that the evidence on file supports a conclusion that the DMCA’s decision to release the grievor was reasonable. On this issue, the Board noted that MP reports are not sufficient evidence, in and of themselves, and cannot simply be taken at face value with no further investigation. The Board explained that this type of evidence, without being tested, further examined, or corroborated by any other direct evidence, should not be given any weight as it clearly constitutes "hearsay". The Board found that it was unreasonable to conclude that the grievor’s statements were made entirely as purported in the unchallenged police report, and that they constituted clear and convincing evidence, even on a balance of probability.

The Board recommended that the grievance be upheld.

The Board recommended that the grievor’s release be considered void ab initio and that he be treated as if he had never been released.

FA decision summary

The CDS did not agree with the Board's recommendation to uphold the grievance. The CDS found that there was no breach of procedural fairness: had there been any failure to provide procedural fairness to the grievor, the CDS was of the view that it had been rectified by the subsequent de novo hearings. Therefore, the CDS was satisfied that the grievor was properly released from the CF but instructed Director General Military Careers to change the item release 5(f) to 1(b).