Administrative Process Leading to Compulsory Releases

Topic

Administrative Process Leading to Compulsory Releases

Case number

• 2011-117 (F&R Date: 2012–03–09)

Description

Defence Administrative Order and Directive (DAOD) 5019-2 - Administrative Review, describes the process the Canadian Forces (CF) applies to determine if and what administrative action may be appropriate when, as a result of an incident, a special circumstance or a professional deficiency, the viability of a CF member's continued service is called into question.  DAOD 5019-2 indicates that, as a general principle, the appropriate administrative action is the one that best reflects the degree of incompatibility between the CF member's conduct or performance deficiency and the CF member's continued service in the CF.  To name a few, such administrative action can range between remedial measures under DAOD 5019-4 - Remedial Measures, reversion in rank, or even release.   The administrative review (AR) process requires that the reasons provided for imposing an administrative action in respect of a CF member shall specifically: 1) identify the applicable evidence, 2) explain how the evidence was treated, and 3) state any findings based upon the evidence, and given those findings, explain why the specific administrative action was imposed.

The Board has, in the past, raised some concerns with the current (AR) process in cases where the "evidence" consists of charges or allegations and when a decision-maker makes findings of fact or credibility based on untested statements or military police reports.  In the Board's view, the fundamental problem with the use of such statements or police reports is that there is no fact-finding process.  Police reports or statements simply provide untested and unproven allegations and need to be further examined or corroborated by other direct evidence before deciding what weight to attribute to the information.

As the AR process can lead to serious consequences such as compulsory release from the CF, it is of utmost importance to ensure procedural protections are in place for CF members.  A fairer solution - in cases where prosecutions do not proceed (or in the absence of a guilty finding) and there are remaining outstanding concerns as to the member's actions or behaviour - would be to hold a formal hearing where evidence could properly be assessed and weighed; the discharge process used by the Royal Canadian Mounted Police could be a useful model.

Recommendation

The Board recommended that, where appropriate, a formal hearing be ordered in cases where prosecutions do not proceed or in the absence of a guilty verdict.

Final Authority Decision

The CDS did not agree with the Board's systemic recommendation. The CDS found that  remedial measures and administrative reviews are independent administrative actions subject to their own procedures. The CDS took the opportunity to emphasize the importance for the administrative action approving authorities to await receipt of all relevant evidence before forming any opinion on the merits of the case before them. These authorities must make sure that the relevant evidentiary threshold as per DAOD 5019-2 is met before any action is taken.