eBULLETIN - July 2013

Contents

Highlights

Case Summaries

Statistics

Mailing List

See our Case Summaries List or Systemic Recommendations for further information about recent and past MGERC cases.

Highlights

Procedural Fairness (in Administrative Proceedings that Could Lead to Release)

The grievor was convicted of sexual assault. He was advised that any further incidents of sexual misconduct would most likely result in a recommendation for release. Four years later, following a domestic dispute, the grievor was charged with assault, sexual assault, unlawful confinement and uttering a threat. As a result, the Director Military Careers Administration conducted an administrative review (AR) which recommended the grievor be released. The grievor requested that the AR be delayed until the conclusion of his criminal proceedings as he was unable to make effective representations to the AR on the advice of his lawyer, who told him that doing so might jeopardize his civil case.

Intended Place of Residence

The Relocation Adjudication Section (RAS) of the Director Compensation and Benefits Administration denied the grievor’s request to relocate on release at a distance greater than  250 km  from a Base with release capability, stating that the grievor’s situation did not meet the intent of the Canadian Forces Integrated Relocation Program 2009. The RAS pointed out that the grievor’s choice of location was well outside the geographical boundaries of the releasing Base and therefore not in “proximity” to the Base as required under the applicable policy. The grievor relocated back to Canada by electing an intended place of residence (IPR) and subsequently submitted a grievance objecting to the RAS decision and seeking to have her IPR election cancelled and benefits reinstated.

Involvement in Bar Brawl During off-duty Hours

The grievor was involved in an after-hours bar brawl on the evening prior to course graduation. He challenged the decision to remove him from training and return him to his unit for course failure. The grievor argued that he had successfully completed the performance objectives for the course and should be awarded the requisite qualifications.

Case Summaries

Procedural Fairness (in Administrative Proceedings that Could Lead to Release)

Committee Findings and Recommendations

The grievor was convicted of sexual assault and conduct to the prejudice of good order and discipline and was given a severe reprimand and a $2,000 fine. He was also the subject of an administrative review (AR) which resulted in him being placed on counselling and probation (C&P) for sexual misconduct. He successfully completed his period of probation, but was advised that any further incidents of sexual misconduct would most likely result in a recommendation for release from the Canadian Forces (CF).

Four years later, following a domestic dispute, the grievor was charged with assault, sexual assault, unlawful confinement and uttering a threat. As a result of these charges, the Director Military Careers Administration (DMCA) conducted an AR which recommended the grievor be released. The grievor requested that the AR be delayed until the conclusion of his criminal proceedings as he was unable to make effective representations to the AR on the advice of his lawyer, who had told him that doing so might jeopardize his civil case. The grievor's Commanding Officer, who had attended the preliminary hearings in the case, also strongly recommended that the AR be delayed until the criminal case could be heard. The DMCA, relying primarily on the summary prepared by the military police (MP), which alleged that the grievor had made admissions, determined that he had enough evidence to conclude that the grievor had breached the CF policy on sexual misconduct, and therefore directed that the grievor be released.

In regard to procedural fairness, the Committee examined in detail the jurisprudence and concluded that CF members are owed a high degree of procedural fairness, especially in administrative proceedings that could lead to their release.

The Committee accepted that the grievor had been provided full disclosure of the information being considered by the DMCA, however, it was also clear that the grievor was unable to make representations, notwithstanding that he had been invited to do so, due to the pending criminal proceedings.

The Committee noted that unlike other CF proceedings such as a Committee of Inquiry where protection against self-incrimination is afforded to CF members and they can be compelled to testify, the AR process offers no protection to CF members, who would be placed in the impossible situation of having to choose between potentially jeopardizing their defence in criminal proceedings or being released from the CF without having an opportunity to respond to the allegations against them.

In these circumstances, the Committee found that the grievor was not provided procedural fairness in the AR process which led to his release. The Committee could find no compelling reason to expedite the grievor's release prior to the conclusion of the criminal proceedings and found that the DMCA decision to proceed with the AR and release was unreasonable in this case.

Relying on the Supreme Court of Canada decision in Dunsmuir, the Committee concluded that the grievor’s release had to be invalidated because his right to procedural fairness had been clearly violated during the AR. Accordingly, the Committee found that the grievor’s release had to be annulled and his military service deemed to have never ceased. The Committee  explained that this did not mean that the grievor could not be released again, provided that a subsequent decision to release is made in accordance with the rules of procedural fairness and the principles of natural justice. The Committee added that, if such a decision is retaken, by the Chief of the Defence Staff (CDS) or following a new AR, it will have to be effective the date the new decision is taken.

Finally, the Committee found that even if the CDS were to disagree with its conclusions on the issue of procedural fairness, he would still have to be satisfied that the evidence on file supports a conclusion that the DMCA’s decision to release the grievor was reasonable. On this issue, the Committee noted that MP reports are not sufficient evidence, in and of themselves, and cannot simply be taken at face value with no further investigation. The Committee explained that this type of evidence, without being tested, further examined, or corroborated by any other direct evidence, should not be given any weight as it clearly constitutes “hearsay.” The Committee found that it was unreasonable to conclude that the grievor’s statements were made entirely as purported in the unchallenged police report, and that they constituted clear and convincing evidence, even on a balance of probability.

The Committee recommended that the grievance be upheld.

The Committee recommended that the grievor’s release be considered void ab initio and that he be treated as if he had never been released.

Final Authority Decision

The CDS did not agree with the Committee's recommendation to uphold the grievance. The CDS found that there was no breach of procedural fairness: had there been any failure to provide procedural fairness to the grievor, the CDS was of the view that it has been rectified by the subsequent de novo hearings. Therefore, the CDS was satisfied that the grievor was properly released from the CF, but instructed Director General Military Careers (DGMC) to change the item release 5(f) (Unsuitable for Further Service) to 1(b) (Service Misconduct).

Intended Place of Residence

Committee Findings and Recommendations

While serving overseas, the grievor requested a posting back to Canada for release purposes. In accordance with article 12.9.01 of the Canadian Forces Integrated Relocation Program (CF IRP) 2009, the grievor was entitled to a relocation back to Canada without having to elect her intended place of residence (IPR) as long as the location chosen was within “proximity” of a Base with release capability. CANFORGEN 219/08 defined “proximity” as not further than 250 km from a Base with release capability. The grievor acknowledged that she would be relocating outside the 250 km distance. However, the grievor  was willing to sign a waiver stating that she would only claim  the benefits  that would be paybale if she had respected the 250 km distance.

The Relocation Adjudication Section (RAS) of the Director Compensation and Benefits Administration denied the grievor’s request stating that her situation did not meet the intent of the CF IRP 2009. The RAS pointed out that the grievor’s choice of location was well outside the geographical boundaries of the releasing Base and therefore not in “proximity” to the Base as required under the applicable policy.

The grievor relocated back to Canada, elected her IPR, and subsequently submitted a grievance objecting to the RAS decision and seeking to have her IPR election cancelled and benefits reinstated.

The Director General Compensation and Benefits (DGCB), the Initial Authority in this matter, denied the grievance, concluding that the grievor had received the benefits to which she was entitled under the CF IRP 2009, given that she had relocated to a distance greater than 250 km from the nearest Base with a release capability.

The Committee found that article 12.9.01 of the CF IRP 2009 (Relocation back to Canada for release purposes), the applicable policy in this case, was ambiguous since it used the term “proximity” without defining its exact meaning within the policy. The Committee noted that the Canadian Forces (CF) had initially defined the term “proximity” to mean within 500 km of a Base with release capability and shortly thereafter reduced it to the current 250 km distance. The Committee also noted that the RAS had, in its reply to the grievor, effectively introduced a third possible distance to define the term “proximity” – that being “within the geographical boundaries of a Base with releasing capability.”

During its investigation of the file, the Committee confirmed that the grievor’s new residence was located 520 km from the nearest Base with a release capability. As a result, the Committee found that the grievor would not be entitled to the benefit under any of the three interpretations of the term “proximity.”

The Committee suggested that the CF consider employing the geographical boundaries of a Base to define the term “proximity” in the CF IRP, given that the intent of the benefit is to offer CF members an opportunity to relocate back to Canada and take their release from a CF Base as do other CF members serving in Canada at the time of their release, while allowing them the benefit to keep their entitlement to an IPR move.

The Committee recommended that the Chief of the Defence Staff (CDS) deny the grievance.

Final Authority Decision

The CDS agreed with the Committee's recommendation that the grievance be denied since the grievor did not meet the criteria for “release capability at proximity.” The CDS found that the grievor chose to relocate to a location well in excess of the 250 km allowed under the Canadian Forces Temporary Duty Travel Instructions as indicated in CANFORGEN 218/08.

The CDS has endorsed the Committee's observation to have the CF IRP amended to define “proximity” as meaning within the geographical boundaries of a unit with release capability, and referred it to DGCB for its consideration in the next CP IRP version.

Involvement in Bar Brawl During off-duty Hours

Committee Findings and Recommendations

The grievor was involved in an after-hours bar brawl on the evening prior to course graduation. He challenged the decision to remove him from training and return him to his unit for course failure. The grievor sought to reverse the decision that was made on the recommendation of a Progress Review Board (PRB), submitting that he had successfully completed the performance objectives for the course and should be awarded the requisite qualifications.

The Initial Authority (IA) found that the Commanding Officer (CO) of the training establishment had the option to immediately remove a student from training in the event of “a gross error” … “during off duty hours”. The IA took into consideration the fact that the grievor's training was considered a leadership course and candidates were expected to not only meet the technical requirements of the course but also meet the expectations of a leader both on and off duty. The IA denied the grievance, concluding that the grievor had demonstrated a lack of personal leadership qualities and/or conduct that could reflect poorly on the Canadian Forces (CF) and it was the grievor's actions and lack of judgment that were key to the decision.

The issue before the Committee was whether or not the decision to remove the grievor from training and deny him his qualifications was justified. The Committee found that the IA, in denying the grievance, did not address the specific information provided by the grievor as to the nature and degree of his involvement in the off duty hours incident. How the IA was able to assess actions and judgment without knowing the facts was not explained.

The Committee found a lack of procedural fairness in this instance where the CF had taken action without first determining the facts. There had been no police investigation into the incident in question, no summary investigation and no other form of enquiry. The PRB report was found to be so bereft of detail it was impossible to say what information was in front of the members or how it was obtained. The Committee found it unfair to rush to judgment without knowing the facts and concluded that the PRB report should be set aside. Likewise, the CO's decision was found to be unreasonable given that it was based on the PRB. The Committee noted that the CO's decision needed to include the major points in issue and describe the reasoning process followed.

The evidence on file showed that the grievor had completed all of the course performance objectives. Thus, the Committee was of the opinion that the grievor's qualifications should be granted and his course report amended accordingly.

The Committee recommended that the Chief of the Defence Staff uphold the grievance.

Final Authority Decision

Pending.