# 2012-149 Careers, Counselling and Probation (C&P), Remedial Measures

Case Summary

F&R Date: 2013–02–20

The grievor argued that he should not have been placed on Counseling and Probation (C&P) for alcohol misconduct as a result of an Automatic Roadside Prohibition regime that was found to be unconstitutional in certain respects.

In denying the grievance, the Initial Authority (IA) agreed with the Director Military Careers Administration (DMCA) that the grievor's failure of two roadside Alcohol Screening Device tests and his admission that he consumed alcohol was clear and sufficient evidence that he more than likely did commit the offence of impaired driving.

The Board examined whether the grievor's actions could be considered alcohol misconduct pursuant to Defence Administrative Orders and Directives (DAOD) 5019-7 – Alcohol Misconduct. The grievor argued that the facts of his case did not meet the required standard of clear and convincing evidence because certain parts of the British Columbia (BC) Automatic Roadside Prohibition regime had been found to be unconstitutional. The Board was of the view that one can only “commit” a criminal offence when there is a conviction after a fair trial using the criminal burden of proof. Further, there were no witnesses to the actual accident, no witness statements as to the consumption of alcohol, no police report or even a police officer's notes. Therefore, the grievor was unable to challenge any evidence, including the validity of the two Alcohol Screening Device tests.

With respect to the burden of proof, the Board noted that the basic tenet in any tribunal, criminal or administrative, is that it is up to the prosecution or plaintiff to prove their case against the defendant or respondent. It appeared to the Board that the DMCA reversed the burden of proof by requiring the grievor to provide evidence that he was not guilty. The Board found this to be unacceptable. Further, in the Board's opinion, the direct link between alcohol misconduct and an offence under the Criminal Code of Canada (CCC) or the Code of Service Discipline is meaningless without a conviction.

The Board observed that if the CF wishes to sanction members who engage in misconduct while drinking to excess, then the CF should only do so after a procedurally fair process which requires that allegations be proven based on the appropriate standard of proof. The notion that “anything goes” when the standard is said to be the balance of probabilities is misguided; a fair process is still required and there must be reliable evidence which can be tested. The Board opined that it is critical that there should be a very high standard of procedural fairness and actual clear and convincing evidence when a member's career progression and very future in the CF is at stake.

The Board found it unreasonable and incorrect for the DMCA to determine on a balance of probabilities that the grievor had committed an offence under the CCC and, therefore, alcohol misconduct. Accordingly, the DMCA finding ought to be set aside and the C&P quashed.

The Board recommended that the DMCA decision be set aside, the C&P quashed, and the C&P and related documents be removed from the grievor's files.

CDS Decision Summary

CDS Decision Date: 2015–01–12

The FA did not agree with the Committee's recommendation that the C&P be quashed and removed from the grievor's files, as well as all related documents. The FA did not agree with the Committee's finding that the definition of alcohol misconduct under DAOD 5019-7 implies that a member be convicted of the offence for the purposes of administrative actions. The FA also disagreed with the Committee's finding that the applicable standard of proof is the criminal threshold of "beyond a reasonable doubt", since for the purposes of administration, the accepted standard is "on a balance of probabilities", but recognized that since C&P is a serious administrative measure, the appropriate authorities must ensure that the evidence exceeds a bare-bones threshold and that "clear and convincing" evidence must exist. The FA agreed it was an error not to allow the grievor to review and respond to the police reports, but this breach was corrected through the grievance process. The FA concluded that there was clear and convincing evidence that the grievor engaged in conduct amounting to alcohol misconduct, specifically impaired driving as per subsection 253(1) of the Criminal Code, despite the fact that the grievor was not charge under this disposition and neither under the Code of Service Discipline, because of technical issues and little recollection from the police officers of the night in question.