# 2010-080 Releases, Release - Compulsory, Sexual misconduct

Case summary

F&R Date: 2011-01-20

The grievor was charged and convicted of sexual assault. He was then released from the Canadian Forces (CF) under item 2(a) of the table to Queen’s Regulations and Orders article 15.01 – Unsatisfactory Conduct.

The grievor appealed his conviction twice, with both appeals being denied.

The grievor contested his release and suggested that no career action should have been taken against him until all avenues of appeal had been finalized. Further, he argued that the discussions he had with a superior, and the subsequent mishandling of his case, led to his conviction. He requested that he be reinstated pending the appeal process, or in the alternative, that he be released pursuant to a different release item.

The Initial Authority denied redress, stating that the grievor’s release item was the most appropriate given his serious misconduct and conviction.

The Board found that the matter of the alleged “mishandling” of the situation by the supervisor and the details of his interaction with the grievor was a matter for the courts and not for the CF.

The Board also found that the grievor’s release item of 2(a) was reasonable in the circumstances.

The Board recommended that the Chief of the Defence Staff (CDS) deny the grievance.

FA decision summary

The CDS agreed with the Board's findings and its recommendation to deny the grievance. The standard of proof for criminal proceedings is different from the standard of proof for administrative action; a successful appeal does not necessarily entail a decision that the evidence upon which the CF authorities base their administrative decision is insufficient or unreliable. Therefore, there is no requirement for the CF to wait until every appeal avenue is exhausted to take administrative action.