# 2014-003 - Recorded Warning, Remedial Measures, Sexual Misconduct

Case Summary

F&R Date: 2014–02–28

While on an exercise, the grievor showed a video containing sexually explicit images to other members of the platoon. One of the platoon members reported the incident. As a result, the grievor was given a recorded warning by his chain of command for voyeurism, a conduct deficiency contrary to Defence Administrative Order and Directive (DAOD) 5019-5 – Sexual Misconduct and Sexual Disorders. The grievor disputed the recorded warning as having no basis in fact or evidence to conclude to voyeurism. He requested a review of the authority for issuing the remedial measure and the characterization of his conduct.

There was no Initial Authority decision in this file, as the grievor did not grant an extension to the time limits.

The Committee's examination of DAOD 5019-5 found that the grievor's chain of command lacked jurisdiction to issue a recorded warning for sexual misconduct. The Committee therefore found that the remedial measure should be set aside and the circumstances reviewed anew.

The Committee reviewed the circumstances of this case, namely in light of the criteria applied to voyeurism as defined under the Criminal Code of Canada, and found that the grievor's actions did not constitute sexual misconduct. Consequently, the Committee's found that DAOD 5019-5 did not apply.

However, the Committee found that DAOD 5012-0 – Harassment Prevention and Resolution and the Statement of Defence Ethics were applicable and explained that the display of offensive pictures and videos has been recognized as a form of sexual harassment. However, given that no harassment complaint had been submitted, the Committee did not further explore this avenue.

The Committee nonetheless found that the grievor failed to meet his obligations under the Statement of Defence Ethics by showing a sexually explicit video in the workplace and concluded that a remedial measure was appropriate. When reviewing DAOD 5019-4 – Remedial Measures, it was the Committee's view that an initial counselling was appropriate in the circumstances.

The Committee recommended to the Chief of the Defence Staff that the grievance be upheld, that the recorded warning be quashed and replaced with an initial counselling which did not refer to voyeurism, but rather to the grievor's failure to meet his obligation under the Statement of Defence Ethics.

CDS Decision Summary

CDS Decision Date: 2015–01–29

The FA agreed with the Committee's findings and recommendations.