# 2012-106 Releases, CF Drug Control Program, Drug, Misuse of Alcohol, Release - Conduct/Performance

Case Summary

F&R Date: 2012–11–30

The grievor was released as a result of his involvement with illicit drugs, as well as alcohol misconduct. The grievor argued the decision to release him was premature and unfair and that because the applicable procedures were not followed concerning testing for cause, the results of that test should be ignored. In addition, the grievor was of the view that since Defence Administrative Order and Directive (DAOD) 5019-7 - Alcohol Misconduct, came into effect after the incident in question occurred, the policy should not have applied to his case. The grievor requested that his release be cancelled and that he be allowed to remain in the Canadian Forces (CF) and placed on counseling and probation.

On the issue of procedures concerning the request that the grievor provide a urine sample without first meeting with the Commanding Officer (CO), the initial authority (IA) noted that Queen's Regulations and Orders for the Canadian Forces (QR&O) 20.11 - Testing for Cause, requires that the CO shall cause the member to be provided with a written or oral summary, which did in fact occur although not provided personally by the CO. Concerning the coming into effect of DAOD 5019-7 subsequent to the incident, the IA pointed out that a CANFORGEN provided transitional instructions for the new policy stating that if the CO had not issued remedial measures, the case was to be referred to the Director Military Careers Administration, which is what occurred in the grievor's case.

The IA also addressed the grievor's contention that a smoking cessation medication he had been on was a contributing factor to the incident. The IA stated he saw nothing in the materials provided by the grievor that indicated the medication in question would result in a loss of awareness of consequences or the ability to reason. Further, the IA was of the opinion that the use of the medication would not prevent someone from understanding that possession of illicit drugs was in contravention of the CF Drug Control program or that drinking alcohol and driving was in violation of the Criminal Code of Canada. Finally, the IA indicated that two of the factors to be considered before deciding which administrative action is the most appropriate deal with leadership and the member's entire period of service; despite the grievor having a strong record of performance, the IA was of the view that his leadership capacity was greatly diminished and his conduct was not what is expected of an officer in the CF. The IA denied the grievance.

The Board concurred with the IA's determination. In the Board's opinion, the central question was whether the grievor's release was reasonable and justified in the circumstances. On the issue of alcohol misconduct, the Board noted the grievor was charged with the impaired operation of a motor vehicle, a charge to which he admitted. In the matter of drug involvement, notwithstanding that the grievor repeatedly denied that he used or was involved with illicit drugs, the evidence contained two laboratory reports which confirmed that the grievor's urine sample tested positive for metabolites of cocaine and marijuana; furthermore, the positive results were re-confirmed by a laboratory of the grievor's choice. Consequently, the Board was satisfied that the grievor had breached the CF policies regarding misuse of alcohol and use of illicit drugs.

The Board noted the grievor's opinion that there was a violation of procedural fairness during the drug testing on the basis that QR&O 20.11 "gives no mention of allowing Commanders to subject a member to multiple urine tests stemming from the same incident when testing for cause"; according to the grievor, the re-ordering of a drug test was an unreasonable search because it was not in line with regulations. The Board indicated that the first test and results were omitted because the test had not been authorized by the CO; another test was ordered the following day. The Board recognized that QR&O 20.11 is silent on the issue of re-ordering a drug test; however, the Board pointed out that it authorizes a CO to order that a member provide a urine sample if reasonable grounds are present. In this case, the Board was of the view the alleged possession of both cocaine and marijuana by the grievor during his arrest constituted a valid reason for the provision of a urine sample for the purpose of determining if the grievor was using illicit drugs. The Board found the CO was justified in testing the grievor for cause, that he did so in accordance with the conditions set out in QR&O 20.11 and as such, it did not constitute an unreasonable search of the grievor.

Finally, on the issue of whether release, rather than other less severe remedial actions, was the appropriate measure in this case, the Board agreed with the CF that the seriousness of the grievor's misconduct irreparably compromised his standing as a leader; the Board found that the decision to release the grievor was justified in the circumstances and was in accordance with policy.

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

CDS Decision Summary

CDS Decision Date: 2013–06–14

The CDS agreed with the Board's findings and recommendation that the grievance be denied.