# 2010-072 Releases, Administrative review, Compulsory release, Sexual misconduct

Case summary

F&R Date: 2010-12-15

The grievor was arrested for committing an indecent act and, upon notification of the arrest, the Director Military Careers Administration (DMCA) commenced an administrative review (AR) of the grievor's file. The grievor was subsequently convicted of the offence a few months later and received a conditional discharge.

The grievor's unit failed to take any action concerning the AR, despite repeated requests from the DMCA, and the AR essentially lay dormant for more than a year. The grievor was again arrested for committing an indecent act and the following day, the DMCA staff completed the AR recommending that the grievor be released under item 5(f) of the table to article 15.01 of the Queen's Regulations and Orders for the Canadian Forces. Notably, the most recent arrest never led to any charges against the grievor.

The AR was disclosed to the grievor and he made significant representations in which he contended that he should be placed on counselling and probation rather than be released. He included positive letters from his psychiatrists and probation officer, as well as copies of his personnel evaluation reports, which indicated that his performance was good and that he was recommended for promotion.

The DMCA approved the release of the grievor simply by concurring with the recommendations of his staff. He provided no reasons for his decision, nor was there any reference to the grievor's representations or any indication that they had even been considered by the DMCA.

The Board noted that in accordance with Defence Administrative Order and Directive 5019-2, the DMCA was obliged to provide clear reasons for his decision as well as information on the evidence considered and how that evidence was used in making findings. Given the serious interest at stake, in this case the grievor's employment, the Board concluded that the grievor was entitled to have his representations addressed and that in failing to do so, the process was flawed to the degree that the grievor had been denied procedural fairness in the decision to release him. Apart from the process, the Board also found that, based on the evidence available to him, the DMCA decision to release the grievor was unreasonable.

Relying on the Supreme Court of Canada decision in Dunsmuir, the Board concluded that since the grievor was released without procedural fairness, his release should be rendered void ab initio, such that his employment relationship with the Canadian Forces be deemed to never have ceased.

The Board recommended that the grievance be upheld.

FA decision summary

The Chief of the Defence Staff (CDS) did not agree with the Committee's findings and recommendation and denied the grievance. While the CDS acknowledged that the DMCA had not complied with Defence Administrative Orders and Directives 5019-5 and that the grievor had not been provided procedural fairness, he was satisfied that his de novo review as the Final Authority in the grievance process corrected these breaches. The CDS concluded that the grievor's above average career performance, his admission of guilt and the medical factors associated with his treatment were not enough to counterbalance the seriousness of his sexual misconduct for which his release from the Canadian Armed Forces had been recommended. Therefore, the CDS found that the grievor's release was reasonable.