# 2013-074 - Counselling and Probation (C&P), Drug, Unauthorized Drug Use

Case Summary

F&R Date: 2013–11–21

The grievor was placed on counselling and probation for a performance and a conduct deficiency in relation to an alleged drug possession offence for which the grievor was charged by civilian police and signed a Promise to Appear. Months after the alleged offence, the grievor was ordered by his Commanding Officer (CO) to provide a urine sample, which the grievor did. The grievor contended that the counselling and probation should be corrected as it was given for both a conduct and performance deficiency, and did not describe the deficiency in accurate detail. The grievor also claimed that the order to provide a urine sample was not lawful since it was not made in accordance with Queen's Regulations and Orders (QR&O) Chapter 20 and applicable policy. The grievor requested that the test be declared null and void.

The Initial Authority agreed that the counselling and probation should specify either a conduct or a performance deficiency, not both. The Initial Authority also agreed that the CO did not have the grounds to order control testing under QR&O article 20.12. However, the Initial Authority found that the CO did have reasonable grounds to test for cause under QR&O article 20.11 and that while on counselling and probation the grievor was subject to drug testing. As a result, the Initial Authority ordered that the counselling and probation be amended to reflect a conduct deficiency only and denied the grievor's request to have a drug test declared null and void.

The Committee examined QR&O article 20.07, which states that the urine testing order must provide the article under which testing is ordered. The CO did not specify the article under which the order was made, and the Committee consequently found that it should be nullified on that basis alone. However, the Committee also reviewed the relevant articles in QR&O Chapter 20 for which a CO can order a drug test; those being articles 20.09, 20.10, 20.11 and 20.12. When applied to the facts of this case, there was no evidence that any of the criteria in these articles were met. As a result, the Committee found that the drug testing order and any subsequent testing and results much be disregarded.

At the request of the Committee, the CO clarified that the Promise to Appear document was the only information he used to make the decision to place the grievor on counselling and probation. The Committee found that, absent a conviction, and not simply charges, the CO could not reasonably take administrative action against the grievor when there was no reliable evidence other than the mere fact of the charge(s). The Committee noted that the charges were eventually withdrawn.

The Committee recommended to the Chief of the Defence Staff that he uphold the grievance, that he order the counselling and probation be set aside and expunged from the grievor's files and that he direct the results of the drug testing order and any related subsequent orders be considered null and void and expunged from the grievor's files.

CDS Decision Summary

CDS Decision Date: 2014–03–20

Case withdrawn at Final Authority Level.