# 2011-117 - Administrative Process Leading to Compulsory Releases, Release - Compulsory, Sexual Misconduct,...

Case Summary

F&R Date: 2012–03–09

The grievor objected to an administrative review (AR) decision that he be compulsorily released. The grievor maintained that, contrary to the Canadian Forces National Investigative Services account of events, he had consistently denied the allegations against him and that all charges that had led to the AR process had been dropped. On the issue of illegal drugs found during a search of his residence, the grievor submitted he had developed a relationship with illegal drugs as a result of being wrongfully accused of the other offences. The grievor maintained that, in his view, possession of illegal narcotics was not a releasable offence; he stated that to be released with the message that he had brought discredit upon the Canadian Forces (CF) was unacceptable and at the very least warranted a change of release item.

In order to determine the appropriateness of the grievor's release, the Board reviewed the circumstances leading up to its occurrence. The Board acknowledged that the grievor had been charged with offences of a nature serious enough to warrant the initiating of the AR process; the Board also noted that, since the initial charges were eventually dropped by the Crown prosecutor, the AR process continued and the decision was rendered using a standard of proof based on a "balance of probabilities". In the Board's opinion, this case illustrated once again the dangers in using police reports for other than their intended purpose, that is, to gather information for a possible prosecution. In this case the prosecutor, after reviewing the evidence, decided the case could not proceed; on the other hand, staff from the Director Military Careers Administration (DMCA) accepted the information in the police reports without question.

In the Board's view, police reports simply relate untested and unproven allegations that need to be further examined or corroborated by other direct evidence before deciding what weight to attribute to the information; the fundamental problem with the use of police reports is that there is no fact-finding process and, if a subject objects and denies, as was the case here, a paper exercise cannot do justice to an assessment of credibility nor weigh evidence.

The Board had previously noted the difficulties inherent in the use of police reports for administrative purposes and, again, emphasized that the DMCA should be directed to review its current AR policies and processes as they pertain to military members awaiting trial on criminal charges.

Notwithstanding, the Board found that the decision to release the grievor was reasonable in the circumstances and in accordance with policy, given the grievor's admitted use of dangerous and illicit drugs, as well as the conviction for possession of illicit drugs that followed.

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

Based on its concerns with the current AR process when it is initiated on the basis of charges or allegations and when a decision-maker makes findings of fact or credibility based on untested statements or military police reports, the Board recommended that, where appropriate, a formal hearing be ordered in cases where prosecutions do not proceed or in the absence of a guilty verdict. The Board added that the discharge procedures used by the Royal Canadian Mounted Police could be a useful model.

CDS Decision Summary

CDS Decision Date: 2013–06–18

The CDS agreed with the Board's findings and recommendation that the grievance be denied. The CDS did not agree with the Board's recommendation that, where appropriate, a formal hearing be ordered in cases where prosecutions do not proceed or in the absence of a guilty verdict.