# 2014-105 - Release - Conduct/Performance, Sexual Misconduct

Release - Conduct/Performance, Sexual Misconduct

Case Summary

F&R Date: 2014–10–30

The grievor was released from the Canadian Armed Forces (CAF) under item 2(a) - Unsatisfactory conduct, after being convicted under the Criminal Code of Canada for possessing and transmitting child pornography.

The grievor sought to have his compulsory release cancelled, arguing that his conduct did not bring any harm to the reputation of the CAF and that there was no evidence to suggest that his convictions undermined the basic social and military values.

The Initial Authority (IA), the Director General Military Careers denied the grievance having determined that the grievor's release under item 2(a) of the Table to article 15.01 of Queen's Regulations and Orders for the Canadian Forces was policy compliant and appropriate.

The Committee had to determine whether the decision to release the grievor under item 2(a) was policy compliant and appropriate.

The Committee found that the Director Military Careers Administration's (DMCA) decision to release the grievor under item 2(a) was not policy compliant because the explicit test set out in Defence Administrative Orders and Directives (DAOD) 5019-5, Sexual Misconduct was not applied correctly. The Committee therefore concluded that the DMCA decision should be set aside.

The Committee reviewed the grievor's situation from the beginning utilizing the DAOD 5019-5 criteria. The Committee compared the grievor's case with his personal circumstances, his military career, the nature of the offences (possession of child pornography and making available child pornography), the actions taken by the Chief of the Defence Staff (CDS) in similar cases, jurisprudence, and the grievor's civilian trial Judge's Reasons for Judgment and Reasons for Sentence.

The Committee then considered the most appropriate administrative action that best reflected the degree of incompatibility between the grievor's sexual misconduct and his continued military service. Given the seriousness and the circumstances surrounding the grievor's conduct, in particular the more serious offence of making available child pornography, the Committee concluded that the appropriate administrative measure would be either Counselling and Probation (C&P) or a compulsory release. The Committee questioned whether the grievor could be trusted not to carry over his failure to obey written orders (DAOD 5019-5) into other aspects of his military service and determined that he failed to meet the ethical expectations set out in DAOD 7023-1, Defence Ethics Program.

The Committee also determined that the grievor's insistence that he did not commit the two offences for which he was found guilty reflected a failure to accept responsibility, a key requirement for C&P to be effective. Accordingly, the Committee found that release was the most appropriate option. The Committee then determined that the most appropriate release item was item 2(a) because of the grievor's “conviction of an offence by a civil court, of a serious nature not related to the performance of his duties but reflecting discredit on the Service”.

The Committee recommended that the grievance be denied.

CDS Decision Summary

CDS Decision Date: 2016–03–15

The CDS agreed with the Committee's findings and recommendation that the grievance be denied. The CDS agreed with the Committee's finding that the DMCA decision to release the grievor did not comply with DAOD 5019-5 and her reasons were generic in nature and not specific. Further, the DMCA was incorrect in stating that mandatory minimum sentences were applicable for the charges. The CDS also agreed with the Committee's finding that 2(a) was the most appropriate release item under the circumstances. For the grievor's medals, which were not part of the initial grievance, the CDS found that there were seized in accordance with the applicable regulation. However, he added that it was up to him to consider whether the specific circumstances warrant the forfeiture of medals. Given that the crime for which the grievor was convicted occurred after his service in operations, after careful consideration and given his record of service, the CDS decided to restore his medals but one, since the offenses took place during the eligibility period for this decoration.

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