McBain v. Canada (Attorney General)

McBain v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2011-06-22
Neutral citation
2011 FC 745
File numbers
T-1634-10
Decision Content
Federal Court
Cour fédérale
Date: 20110622
Docket: T-1634-10
Citation: 2011 FC 745
Ottawa, Ontario, June 22, 2011
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
MR. JORDAN J. MCBAIN
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision, dated August 30, 2010, of the Director General of the Canadian Forces Grievance Authority (the Final Grievance Authority), denying the applicant’s grievance seeking to set aside and destroy all documentation relating to the applicant’s being placed on “counselling and probation” for drug abuse, namely, anabolic steroids.
[2] The case is brought to this Court pursuant to article 29.15 of the National Defence Act, R.S.C., 1985, c. N-5, which provides that a decision of a final authority is final and binding except for judicial review before this Court.
BACKGROUND
[3] Between September 2004 and April 2005, the applicant was completing his final year of an engineering and management program at McMaster University in Hamilton. At the same time, he was enrolled in the Regular Officer Training Plan in the regular force of the Canadian Forces, as a member of its London Area Support Unit. The applicant’s Commanding Officer (the Commanding Officer) was the major in charge of London’s Area Support Unit.
[4] During that same time, the applicant was under severe emotional stress caused in part by his mother’s suffering deteriorating health from a terminal illness. Some time in September of 2004, the applicant states that, likely as a result of his emotional distress, he had a confrontation with a close friend and former roommate, Mr. Jeff Lindner, while they were doing group work for a university course.
The investigation into steroid use
[5] On October 4, 2004, military police in London received information from Mr. Lindner’s father that the applicant was using anabolic steroids and possibly engaged in other questionable behaviour. The military police decided to launch an investigation into these allegations. On October 6, 2004, military police in Hamilton interviewed Mr. Lindner. The investigator’s report of the interview demonstrates that Mr. Lindner corroborated his father’s information regarding the applicant’s steroid use. He provided significant detail of the timing of the applicant’s use, although he stated that he had not personally witnessed any of it, as well as changes that Mr. Lindner had noticed in the applicant’s appearance and behaviour, including increased aggression. Mr. Lindner also stated, however, that he was concerned about harming the applicant’s military career and stated that he believed the military had been a positive force in the applicant’s life.
[6] On October 7, 2004, the results of this investigation were verbally communicated to the applicant’s Commanding Officer in London. That same day, the applicant was ordered to report to his Area Support Unit in London on October 8. He was not told the reason for the meeting.
[7] At that time, another friend of the applicant’s informed him that the military police had been conducting an investigation into his alleged drug use. After learning of this, the applicant suspected that Mr. Lindner was the military police’s source for this information, and confronted Mr. Lindner, who related the details of his interview with the military police to the applicant.
The meeting and order for urine sample
[8] On October 8, 2004, the applicant met with the Adjutant of the London Area Support Unit (the Adjutant), who informed the applicant of the allegations of his steroid use. There is some dispute over what information the Adjutant provided to the applicant. The applicant submits that the Adjutant informed him that he had “very convincing evidence” that the applicant had been using steroids, but not of any of the evidence that had been obtained to substantiate that allegation. The applicant further submits that the Adjutant informed him that he had only two options: (1) admit his steroid use and therefore be immediately placed on “counselling and probation,” or (2) deny the allegations and consequently be given an opportunity to confront the evidence that had been collected. The applicant states that he was left with the impression, first, that he would only become aware of the case against him if he denied the allegations, and, second, that he risked being released from the military if he provided a urine sample that tested positively for steroids.
[9] In contrast to the applicant’s statements, in an email response, dated October 8, 2006, to the grievance analyst assigned to the applicant’s file (see details regarding the applicant’s grievance below at paragraph 19), the Adjutant stated that he had informed the applicant of all of the evidence, but not of its source:
I explained to him that someone he knew very well had told the MPs [military police] that he was using steroids. I told him that this person had said he was shown a vial of steroids by him. I explained that this person had provided details of the steroid use that he stated were told to him by the member (McBain). I told him the three types of steroids that were indicated in the initial report to HMCS Star (Equipoise, Sustanon, and D-Bol). I then explained the process to him and the CF Drug Control Program (CFAO 19-21). I asked him if he wanted a copy and he said no and indicated that he was fairly familiar with it based on his training.
[10] The Adjutant also stressed that he repeatedly told the applicant that no criminal or disciplinary charges were being contemplated, and that the most likely administrative action that would be taken for first time steroid use, if proven, would be “counselling and probation” and not release. The Adjutant stated that the applicant had confronted him regarding the constitutionality of mandatory urine testing.
[11] Immediately following his meeting with the Adjutant, the applicant was taken to meet his Commanding Officer. The applicant states that his meeting with his Commanding Officer was largely the same as with the Adjutant, and that he was again not given a summary of the evidence against him.
[12] At both meetings, the applicant refused requests to provide a urine sample for analysis. He also refused to either confirm or deny the allegations made against him.
[13] Following his meeting with the applicant, the applicant’s Commanding Officer signed an order requiring the applicant to provide a urine sample for analysis. The applicant complied with the order. In response to the grievance officer’s request for information, in an email dated October 25, 2006, the applicant’s Commanding Officer stated that he believed he had “reasonable grounds” for ordering the urine analysis because of the results of the investigation and the applicant’s refusal to confirm or deny the allegations against him:
Based on the available information, and his lack of disclosure, I had reasonable grounds in ordering a test for cause.
The applicant admitted to steroid use and apologized
[14] After leaving the meetings, the applicant confronted Mr. Lindner. According to the applicant, during the course of the confrontation he threatened to commit suicide. According to the Adjutant’s report of the events, London’s military police received a call by Mr. Lindner’s father, who informed them that the applicant had kicked in Mr. Lindner’s apartment door and, failing to find Mr. Lindner inside, tracked him down at the university. They were told that the applicant had uttered threats against Mr. Lindner and his father. He also informed them that the applicant had threatened to commit suicide. The military police apparently told Mr. Lindner’s father to call Hamilton police. The applicant denies that he threatened anyone but himself, and in later proceedings Mr. Lindner’s father denied that the applicant had threatened him or his son.
[15] By letter dated October 8, 2004, addressed to the applicant’s Commanding Officer, the applicant confessed that he had been using steroids and apologized for not admitting his mistake:
I keenly regret not accepting the offer of help you put forward to me today; while I did not lie about my involvement with the use of anabolic steroids, I was not straightforward.
I knew to a certainty that the urine analysis would reveal positive use of anabolic steroids as I had been ingesting them up to this date. Frustration with my friend, Jeff Lindner, led me to be irrationally stubborn in this respect. I was not able to come forward because I felt I would be validating his violation of my confidence. A confrontation with him the night before, revealed most of the details of the investigation that led to the MP’s conclusions. I should have been able to admit my mistake openly in spite of this, as it was my mistake and not his.
Hamilton Police – Criminal charges against the applicant
[16] On October 9, 2004, the applicant again sought out Mr. Lindner at his home and again uttered suicide threats and allegedly threats against Mr. Lindner or his father. Hamilton police were called, and the applicant was detained by police and kept in a psychiatric ward until midnight, when he was released upon the police finding that he did not pose a threat to himself or to others. The applicant has consistently stated that he only ever threatened suicide and never threatened anyone else, including Mr. Lindner and his father.
[17] A report, dated October 15, 2004, in the military police report states that on October 13, 2004, the applicant was released from Hamilton Police Service custody on a recognizance containing conditions prohibiting the defendant from contacting Mr. Lindner or any member of his immediate family, staying at least 100m away from the residence or known places of employment of Mr. Lindner or his family, and from consuming any alcohol, drugs, or carrying weapons. The applicant had been charged with Forcible Entry and Mischief Under $5000. The military police report states that the details of the charge were not available to it, because the Hamilton Police Service had specific guidelines for release of their reports that prevented them from gaining access.
Meeting with the Commanding Officer at which the applicant showed remorse
[18] The applicant’s Commanding Officer stated in his response to the grievance officer that the applicant’s father came to Hamilton following the applicant’s arrest. Following his release from custody, the applicant and his father met with the applicant’s Commanding Officer in London. The Commanding Officer stated that he came away from that meeting with a very positive impression:
3. ….Later that day I had an opportunity to meet with the member and his father in my office. I explained the likely outcome of the positive test for steroid use, but stressed that since he admitted to using the substance all factors would be taken into consideration. At that meeting I had the impression that he was very remorseful and that this would be the wake up call he needed to get his life back on track. My impression following that meeting was that he was relieved that this was all out in the open and that he would start fresh. A bright young man who had a critical lapse in judgment but definitely something that could be corrected through counselling and strong parental support. His father has a police background so I had confidence that he would assist.
4. Throughout my involvement with SLt McBain my impression was that he was a young man who had unresolved issues and family pressures including a sick mother. The drug use, in my opinion, was definitely out of character as a review of his file indicated at the time that he was an outstanding individual, highly recommended for the Canadian Forces. Given these mitigating factors and the fact that he appeared truly remorseful, my recommendation to Ottawa at the time was that he be retained in the CF and put on C&P [counselling and probation] with medical and social work follow up….
The applicant agreed to being placed on counselling and probation
[19] The military body that had the authority to respond to the applicant’s illicit steroid use was the Director Military Careers Administration and Resource Management 5, which is now known as the Director Military Careers Administration (the Director Military Careers Administration or the Director). By letter dated December 16, 2004, the Director informed the applicant that an administrative review was being conducted in order to “determine the suitability of CF members for further service in the CF.” An administrative review is not a criminal or disciplinary review.
[20] Included with the letter was a disclosure package that informed the applicant of the reasons for the administrative review and of his rights to make written representations in response to the disclosure. The disclosure stated that the applicant “by his own admission, clearly violated the Canadian Forces Drug Policy as detailed in QR&O Chapter 20 and CFAO 19-21.” The package also included the positive result of the urine analysis. The report noted, however, a number of mitigating factors, including that it was a first-time offence, that it was only personal use, that he did not use while on duty nor pose an immediate danger to operational readiness, security or safety, that it is unlikely that he would repeat the use, and that his conduct and performance was otherwise satisfactory. The disclosure did not include the military police report that had been generated as part of the investigation, nor inform the applicant of the existence or contents of notes and a DVD that were generated pursuant to that investigation. There is no evidence that the Director had that evidence in its possession, and none of that evidence informed the Director’s decision. The disclosure stated that the Commanding Officer recommended that the applicant be put on “counselling and probation”, as opposed to release from service. The disclosure report concludes that it recommends the same, for the above reasons.
[21] By letter dated January 21, 2005, the applicant agreed with the recommendation that he be placed on counselling and probation:
I am attaching this letter as a correction to information found in my disclosure package. I agree with the recommendation of retention on counselling and probation.
The applicant’s corrections were to the revelations in the disclosure material that stated that the applicant had threatened Mr. Lindner and his father. To the contrary, the applicant stated that he had only ever threatened to harm himself by committing suicide, and that no one else had anything to fear.
[22] On March 7, 2005, the applicant was placed on counselling and probation for a period of one year. In its decision, the Director stated its conclusions, including numerous factors suggesting that the applicant ought to be retained in the Canadian Forces. The Director therefore made the following recommendation:
It is recommended that OCDT McBain be retained in the Canadian Forces, but that he is placed on Counselling and Probation for a period of one year, for illicit drug involvement.
[23] In May of 2005, the applicant was transferred from London’s Area Support Unit to the Canadian Forces Naval Engineering School in Halifax. As part of the transfer process, the applicant’s Commanding Officer in London sent a very positive and supportive letter to his new Commanding Officer. In that letter, the Commanding Officer described the investigation and outcomes relating to the applicant’s steroid use. The respondent’s affiant has sworn that “This is not unusual practice with the CF, especially when the member at issue is on C&P status.”
[24] The Commanding Officer stated in his letter that the applicant was confronted with the allegations of his steroid use and that a urine test was ordered because the applicant “initially chose to deny” the allegations, but that he quickly recanted and took full responsibility. The Commanding Officer explained that he found that applicant to be “very remorseful and wanting desperately to continue his career as an officer in the CF.” He explained that follow-up testing was required for one year, but that the mechanism of such testing would have to be determined because of the difficulties associated with testing for steroids. Finally, the Commanding Officer described some of the applicant’s personal situation:
4. OCdt McBain also had to deal with the tragic loss of his mother, which only added to the stress. He remarkably pulled through the difficult school year successfully, in spite of what has transpired. He has fully accepted responsibility for his actions and every indication is that he will come through all of this a better person and fine officer.
The applicant’s grievance
[25] On June 16, 2005, the applicant submitted a grievance to his new Commanding Officer, alleging unfair treatment during the course of the investigation into his steroid use. The applicant sought “the cancellation of C&P [his placement on counselling and probation], a full disclosure of the evidence forming the grounds for the order, and the removal of any documentation from any file held on me on this matter.”
[26] The applicant’s Commanding Officer referred his grievance to the Director Military Careers and Administrative Resources (the Initial Grievance Officer) on June 23, 2005. Although the usual time limit for submitting such a grievance was six months, the applicant requested and was granted an extension to this time period due to the applicant’s plea of emotional incapacitation as a barrier to earlier submission.
[27] By letter dated July 14, 2005, the Initial Grievance Officer sent the applicant’s Commanding Officer an acknowledgement of receipt of the applicant’s grievance submission, and a request for extension of time in which to reach a decision. The letter states that although the Queen’s Regulations and Orders 7.07(1) requires that an initial grievance officer communicate a decision within 60 days, the Initial Grievance Officer is overwhelmed with grievances, and so requests the applicant’s permission to provide a decision at a later time. The applicant granted this permission.
[28] The applicant states that following a request under the Privacy Act, R.S.C. 1985, c. P-21 (the Privacy Act) he was sent, in August of 2005, a redacted version of the military police report that had been written regarding the investigation into his use of steroids. He states that this was the first time that he learned of the grounds that had supported the October 8, 2004, order for his urine analysis.
[29] Following his receipt of the redacted military police report in August, the applicant sent, on August 23, 2005, a revised grievance to the Initial Grievance Officer. He agreed to again extend the time in which the Initial Grievance Officer could consider his submission beyond the 60 day limit.
[30] On June 9, 2006, the applicant again revised his grievance. In this revision, he exercised his right, as provided by section 7.07(2) of the Queens Regulations and Orders, to request the Initial Grievance Officer to refer his grievance to the Chief of the Defence Staff for final determination. On June 19, 2006, the Initial Grievance Officer forwarded the applicant’s grievance, as per the applicant’s request. Pursuant to section 29.14 of the National Defence Act, the Chief of Defence Staff delegated his authority as final authority to the Canadian Forces Grievance Adjudicator (the Final Grievance Authority). Pursuant to section 29.15 of the National Defence Act, a decision by a Final Grievance Authority in the grievance process is final and binding, except for judicial review before this Court.
[31] As mentioned above, the Final Grievance Authority contacted the Adjutant and Commanding Officer for synopses and then further explanations of the events, in emails dated September and October of 2006.
[32] The applicant further revised his grievance on August 14, 2006, September 11, 2006, February 1, 2007, and September 7, 2007. The applicant also provided written responses to the comments of the Adjutant and Commanding Officer. He first provided these comments on February 3, 2007, and revised his representations on September 7, 2007.
[33] On April 9, 2007, the applicant requested that he be granted an oral hearing before the Final Grievance Authority. This request was denied by email dated May 25, 2007.
[34] On October 3, 2007, the Final Grievance Authority exercised its discretion, pursuant to section 29.12(1) of the National Defence Act, to refer the applicant’s grievance to the Canadian Forces Grievance Board (the Board). The Board is an arms-length body established by section 29.16 of the National Defence Act with a mandate to investigate and review grievances referred to it by the Chief of Defence Staff. The Board can only make non-binding recommendations to the Chief of Defence Staff, and has no enforcement authority of its own.
Review of the applicant’s grievance by the Board and applicant’s voluntary release from the Canadian Forces
[35] By letter dated December 11, 2007, the applicant was informed that the Board had begun a preliminary review of his grievance. It enclosed the grievance file that the Board possessed, as part of the Board’s disclosure process. Included in that file was a minimally redacted version of the military police’s investigation into the applicant’s steroid use, that included information that had not been disclosed as part of the redacted military police report sent to the applicant following his Privacy Act request.
[36] As a result of this new disclosure, the applicant learned, for the first time, of the existence of a DVD recording of the military police’s interviews into his drug use. The applicant therefore submitted a Privacy Act request for the DVD. He was told that the DVD had been lost, and submitted a complaint alleging misconduct by the military police in losing the DVD. Following another long series of applications, on May 21, 2009, the applicant received a final report of an investigation conducted by the Military Police Complaints Commission, which found that there had been wrongdoing but no specific fault:
…there was an overall failing on the part of members of the military police at ASU London to properly lodge and safeguard the DVDs as well as produce proper documentation. However, the Commission finds no evidence to indicate the military police knowingly or improperly interfered with the DVDs or acted in a manner which would discredit the military police.
The Commission recommended better training and review procedures.
[37] On April 9, 2007, the applicant submitted a request for an oral hearing before the Board.
[38] In December of 2007 the applicant received a promotion, back-dated to a time prior to the counselling and probation order.
[39] Meanwhile, the applicant had initiated another complaint. Just prior to the Board beginning its preliminary review, on November 27, 2007, the applicant submitted a complaint to the Deputy Provost Marshall for Professional Standards, alleging that the military police of London’s Area Services Unit had violated Canadian Forces Administrative Order 19-44 by failing to instigate suicide intervention once they learned of the applicant’s suicide threats in October of 2004. On March 20, 2008, the Deputy Provost Marshall (Professional Standards) informed the applicant of its finding that the applicant’s complaint could not be substantiated.
[40] On May 5, 2008, the applicant completed a voluntary release from the Canadian Forces. He states that he decided to request that he be released from the service because of his “dismay and disgust” at the way in which his mental health condition had been handled by the Commanding Officer. He also felt that he had limited prospects for professional development within the Canadian Forces. He states that his advancement in the military was harmed by his being placed on counselling and probation because although he received a promotion that promotion was late and his pay suffered as a result of his temporary counselling and probation status.
[41] Since leaving the military, the applicant had earned a Masters degree and entered a Ph.D program in the Department of Engineering at Laurentian University.
[42] On September 25, 2008, the Board released its decision. The Board carefully reviewed the history of the applicant’s grievance, the applicant’s submissions, and the remedies that the applicant requested. The Board found that the only error committed in the process faced by the applicant was that he had not been provided with the military police report of its investigation immediately after that report became available. The Board found, however, that this error was immaterial because the Commanding Officer had not relied on the report in making the order for urine analysis, because it had not been available at the time of that order. Moreover, because the applicant ultimately received the report at a later stage, the Board found that the breach of procedural fairness was cured. The Board found that the fact that the DVD mentioned in the military police report was lost did not affect the process. The Board found that QR&O article 20.11 is an administrative provision and does not engage the applicant’s rights under sections 7 or 8 of the Charter. The Board found that no oral hearing was required.
[43] The Board therefore recommended that the Chief of Defence Staff deny the applicant’s grievance. As stated above, in this case the Chief of Defence Staff delegated his authority to the Final Grievance Authority.
[44] By letter dated October 16, 2008, the applicant provided the Final Grievance Authority with his response to the findings of the Board. In addition to his submissions, the applicant requested that the Final Grievance Authority hold his grievance in abeyance until the Military Police Complaints Commission had finalized its investigations into the lost DVD and the military police’s failure to initiate suicide intervention.
[45] Once he had received the reports of the two Military Police Complaints Commissions, the applicant resumed the processing of his grievance. He submitted his final submissions to the Final Grievance Authority on August 19, 2009.
[46] The Final Grievance Authority considered the applicant’s submissions and issued its decision on August 30, 2010. It is this decision that is under review on this application.
The decision under review
[47] The Final Grievance Authority dismissed the applicant’s grievance. In a letter dated August 30, 2010, the Final Grievance Authority first summarized the steps that had led to its consideration of his grievance, including the independent review by the Board and the various revisions submitted by the applicant. The Final Grievance Authority stated that it was considering the applicant’s October 16, 2008, letter and all of the applicant’s subsequent submissions as the applicant’s representations before it.
[48] The Final Grievance Authority reviewed the applicant’s submissions and the relief that he sought. The Final Grievance Authority’s exposition of these submissions is thorough and demonstrates a consideration of the lengthy record of this grievance. The Final Grievance Authority’s decision comprises 37 single-spaced pages (the respondent advised the Court that “this was the longest grievance decision in the Canadian Forces’ history that anyone could remember”).
[49] The Final Grievance Authority agreed with the Board regarding the admission of the applicant’s grievance beyond the six-month time limit imposed by QR&O article 7.02.
[50] The Final Grievance Authority then considered the applicant’s submissions regarding the validity and constitutionality of the Canadian Forces’ drug control program contained in Chapter 20 of the QR&O and amplified in CFAO 19-21. I will summarize the Final Grievance Authority’s findings on each of the issues raised by the applicant:
1. Vires of QR&O Chapter 20: First, it considered whether Chapter 20 of the QR&O was ultra vires the Governor in Council. The Final Grievance Authority found that section 12(1) of the National Defence Act provides the Governor in Council with “broad authority” to “create regulations for the control and administration of the CF.” Section 12(1) states as follows:
The Governor in Council may make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of this Act into effect.
The Final Grievance Authority found that the Canadian Forces’ drug control program was within the broad authority of section 12(1) and that it is therefore authorized at law.
2. Section 2 of the Canadian Bill of Rights: Second, it considered whether Chapter 20 of the QR&O was unlawful because it violated section 2 of the Canadian Bill of Rights, S.C. 1960, c. 44, which provides, among other things, that unless it states otherwise, no law in Canada is to be read so as to “abrogate, abridge or infringe” any of the rights or freedoms contained in the Bill of Rights. The Final Grievance Authority found that there were no rights or freedoms that Chapter 20 operated to abrogate, abridge or infringe, and so the Bill of Rights was not contravened.
3. The Privacy Act: Third, the Final Grievance Authority considered whether Chapter 20 contravened the requirements of the Privacy Act. In a 1990 report, Drug Testing and Privacy (Ottawa: Privacy Commission, 1990), the Privacy Commissioner of Canada had stated that “Public safety remains the only valid reason for implementing drug testing programs. Operational effectiveness and the (perhaps unattainable) goal of a substance-abuse free CF are not, in the absence of significant public safety concerns, sufficient justifications under the Privacy Act for drug testing.”
The Final Grievance Authority found that Chapter 20’s purpose, as expressed in article 20.03 (Purpose), included, among other purposes, the safety of members of the Canadian Forces and public and the health of the same, as well as the security of defence establishments and classified information. The Final Grievance Authority further stated that the health and safety purpose was bolstered by the Note to Article 20.11 of the QR&O, which states that the aim of the testing provided for in Article 20.11 is “to promote the purposes specified in article 20.03(Purpose)…so that, if the testing detects the presence of ad rug in the urine sample, appropriate administrative and disciplinary action can be taken to prevent further use and reduce any dangers associated with the previous use.” The Board concluded that the health and safety concerns addressed by Chapter 20 were legitimate justifications and did not violate the Privacy Act.
4. Whether the release provisions of the QR&O are Quasi-Criminal: Fourth, the Final Grievance Authority considered whether the fact that the applicant could have been released from the Canadian Forces pursuant to QR&O Chapter 15 as a result of his violating Chapter 20 meant that a violation of section 20 is a “quasi-criminal” act. If a violation were quasi-criminal, then the applicant submitted that he should be granted the protections given in a criminal proceeding.
The Final Grievance Authority concluded that despite any stigma that may be attracted by a release from the Canadian Forces, the release provisions of the QR&O are “clearly administrative” and do not attract criminal safeguards: they are contained in Chapter 15 (Release) of Volume 1 of the QR&O, a Volume entitled “Administration.” They do not create offences under the Canadian Forces Code of Service Discipline and do not set out disciplinary punishments associated with release. The Final Grievance Authority found that the cases submitted by the applicant in support of his position did not assist it in determining the question. It found, moreover, that members who are released for involvement with illicit drugs are usually released under the “honourable release” provisions of Chapter 15.
5. Conscriptive Evidence: Fifth, the Final Grievance Authority considered whether urine constitutes “conscriptive evidence” – that is, “evidence that incriminates an individual accused of a crime and which the accused is compelled to provide as part of a criminal process in violation of his or her rights”. The Final Grievance Authority stated that “Conscriptive evidence must be excluded to ensure a fair trial.” The Final Grievance Authority found, however, that because the applicant’s urine had been collected as part of an administrative process and without any intention of initiating any criminal charges, the concept of conscriptive evidence had no application to the applicant’s grievance.
6. Necessity of a Warrant: The Final Grievance Authority found that section 273.2 of the National Defence Act did not apply to the provision of urine granted by the applicant. As a result, the Final Grievance Authority found that it did not matter whether the definition of property in that section included urine. Instead, article 20.11 of the QR&O, allows for urine testing when there are reasonable grounds, without requiring a warrant. Moreover, it found that regardless of the classification of the applicant’s urine as property or otherwise, the applicant’s grievance impugned only the urine test and his confession and, therefore, raised issues only of the constitutionality of those laws.
7. Security of the Person: Seventh, the applicant argued that the threat of disciplinary action for failing to submit to a drug test or for testing positive for drugs involved his right to security of the person as guaranteed under both the Bill of Rights and the Canadian Charter of Rights and Freedoms. The Final Grievance Authority dismissed the case law that the applicant had submitted in support of his submissions as distinguishable on its facts. Both cases submitted by the applicant dealt with the interests of inmates when they were faced with discipline for the results of randomly-made requests for drug tests. The Final Grievance Authority found that key distinguishing features were that (1) article 20.11 requires reasonable grounds for the drug testing request, and (2) the applicant’s liberty was never at stake, nor were disciplinary or criminal charges contemplated.
The Final Grievance Authority concluded that section 7 of the Charter was not invoked because the applicant’s life, liberty and security were never threatened. The Final Grievance Authority found that economic insecurity that may result from release from the Canadian Forces was not enough to threaten “security” as contemplated by section 7. The Final Grievance Authority further found that the section of the Bill of Rights that protects “life, liberty, security of the person and the enjoyment of property” was not invoked for the same reasons.
8. Exclusion of the Urine Test: Despite having found that the applicant’s Charter rights were not engaged, and, therefore, that the question of the exclusion of the applicant’s evidence for having been seized without “due process of law” was not raised, the Final Grievance Authority next considered whether procedural fairness required that the evidence of the applicant’s urine test results and confession not be considered.
Exclusion for Bias: First, the Final Grievance Authority considered whether rticle 20.11 created an actual or apprehended institutional bias by involving a commanding officer at multiple stages in the investigatory and outcome determinations of a drug use investigation. The Final Grievance Authority found that the applicant had “misapprehended the scope” of the article. It found that under article 20.11, commanding officers neither order investigations nor supervise them. In the applicant’s case, the Final Grievance Authority found that the person who had ordered the investigation to begin was the non-commissioned member in charge of London’s Area Services Unit military police detachment. That non-commissioned member had ordered a detachment of London’s military police to investigate the applicant. While the Commanding Officer decided on the reasonable grounds regarding the applicant’s drug use and providing the basis for his order for the provision of a urine sample, that decision was made in consideration of the administrative measure being contemplated, and not in the process of an investigation of an offence or the adjudication of any complaint. Moreover, the Final Grievance Authority found that it was the Director Military Careers Administration who held the authority for all administrative action for illicit drug use and, as an independent decision maker, determined whether counselling and probation or some other administrative action was appropriate.
The Final Grievance Authority found that article 20.11 is clear regarding the required actions of a commanding officer, and of the tests that the commanding officer must consider when determining whether a drug test can be ordered.
Exclusion for Violation of Procedural Fairness – no reasonable grounds: Second, the Final Grievance Authority considered whether the Commanding Officer violated procedural fairness by failing to consider whether (1) he had “reasonable grounds” for ordering the test, or (2) the timing of the test was one in which drugs could “reasonably be detected by urine testing,” as required by article 20.11(1). The Final Grievance Authority considered the various materials available to the Commanding Officer in deciding whether it was reasonable to expect the urine test to detect drugs. It found it reasonable to conclude that the Commanding Officer had received, as part of the oral report given to him by the military police who had interviewed Mr. Lindner the night before the Commanding Officer’s meeting with the applicant, Mr. Lindner’s account of the type of drugs used by the applicant and the frequency of that use. The Final Grievance Authority concluded that this information constituted sufficient reasonable grounds.
The Final Grievance Authority found further that the Commanding Officer was not told of the fact that it is difficult to detect steroids by urine testing, even though this information had been conveyed to the Adjutant. Moreover, the Final Grievance Authority found that even if the Commanding Officer had known of this difficulty, he would likely still have made the order, because he suspected that the applicant had used them very recently. The Final Grievance Authority found that such a conclusion was reasonable:
Since I have already concluded that your CO was made aware of Jeffery Lindner’s information by the MP on 7 October 2004, your CO would have figured that you had injected steroids as recently as Friday 8 October 2004 or the prior Thursday. Based on your CO’s figured recency of your steroid use, together with his knowledge from CFAO 19-21 Annex B, paragraph 18, that it is impossible to be precise concerning the length of time following drug use during which a substance could be detected by urinalysis, I find that your CO had grounds to believe that your steroid use could reasonably be detected through urinalysis.
Exclusion for Procedural Fairness – fettered discretion: Third, the Final Grievance Authority considered whether the Commanding Officer had fettered his own discretion when he considered the applicant’s refusal to respond to his questions at the interview on October 8, 2004, as part of his grounds for ordering the urine test. The Final Grievance Authority found that the Commanding Officer erred by considering the applicant’s refusal to confirm or deny his alleged steroid use as a component of whet