# 2022-332 Careers, Counselling and probation, Judge Arbour Rec. 10 – sexual-related files, Recorded warning, Remedial measures, Sexual misconduct

Counselling and probation (C&P), Judge Arbour Rec. 10 – sexual-related files, Recorded warning (RW), Remedial measures, Sexual misconduct

Case summary

F&R Date: 2024-03-06

The grievor was issued a remedial measure (RM) in the form of counselling and probation (C&P) for a conduct deficiency, described as making continued sexual advances towards a course mate. The grievor was removed from course and from the training establishment. The grievor argued that the RM process lacked disclosure and procedural fairness, that the usual progression of RM did not occur, and that they remained unaware of the nature of the allegations that could be considered as sexual advances.

The Initial Authority (IA) acknowledged that the grievor was not given timely disclosure but noted that the grievor was given access to view the written witness statements in order provide representation to a notice of intent to issue the C&P. The IA also noted that the grievor was now in receipt of properly redacted documents through a Privacy Act request. The IA found that the grievor had been treated fairly in accordance with applicable regulations and policies.

The Committee found that any lapse of procedural fairness had been corrected by the grievance process through a de novo review. The Committee found that there was clear and convincing evidence that established, on a balance of probabilities, that the grievor made sexual remarks that they knew, or ought to have known, would cause harm, breaching the standard of conduct stated in Defence Administrative Orders and Directives 9005-1, Sexual Misconduct Response. The Committee found that this breach warranted a RM but recommended that the statement of deficiency be reworded to reflect that the grievor engaged in sexual misconduct through making sexual remarks as opposed to sexual advances. The Committee found that given the circumstances, a recorded warning (RW) was the most appropriate RM. The Committee found that the grievor's course removal was not unreasonable, but that the grievor should be given priority to be re-registered into the course.

The Committee recommended that the Final Authority replace the C&P with a RW, that the description of the deficiency be modified, and that the grievor be registered as soon as possible, if not already done.

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