Judgments

[1995] 1 F.C. 801

T-2885-92

Abby B. Gayler (Applicant)

v.

Colonel Angus R. Brown (Director Personnel Careers Administration Other Ranks, National Defence Headquarters) and Commander J. Gadd (Base Administrative Officer Canadian Forces Base Esquimalt) (Respondents)

Indexed as: Gayler v. Canada (Director Personnel Careers Administration Other Ranks, National Defence Headquarters) (T.D.)

Trial Division, MacKay J.—Ottawa, April 19 and December 13, 1994.

Judicial review — Canadian Forces member placed on counselling and probation (C&P), for alleged drug involvement — Although C&P term completed, matter not moot while C&P form on files, there being no provision for removal, as could detrimentally affect career prospects — Judicial review not precluded by failure to follow grievance procedure not statutory appeal — Improper exercise of discretion as decision based on insufficient considerations — Failure to provide military police report to applicant breach of procedural fairness as no notice of case against her, opportunity to respond before decision made.

Armed forces — Judicial review of decision to place Forces member on counselling and probation for alleged drug involvement — Military police report forming basis of decision never provided to applicant, Court — Breach of procedural fairness and QR&O, art. 20.15 — Ignoring Court’s rules, procedures requiring provision of full record of decision-maker subject to judicial review proceedings.

This was an application for judicial review of a decision to place the applicant, a member of the Canadian Forces, on counselling and probation (C&P) for alleged involvement with drugs. The applicant was interviewed by the military police in February 1992 in regard to a drug investigation. She heard nothing further until November when the Base Comptroller informed her that he had received a message from Colonel Brown on October 6, 1992 ordering that she be put on C&P for twelve months and be subject to urinalysis testing at any time during that period. That message also referred to a recommendation by Commander Gadd that the applicant be retained on C&P based upon “implication by association” for being present when someone else smoked marijuana. The applicant was interviewed several times in November, but no substantiation for the allegations was provided. On November 13, she was informed that the alleged involvement was “implication by association” which was substantiated in a statement in a MP report. On November 20, she was informed that the statement in the MP report was made by a Corporal Moreland who had alleged that he and two others had smoked marijuana at the applicant’s residence in February 1992. To date she has not received a copy of the MP report, or the signed C&P form. The applicant applied for judicial review, alleging an improper exercise of discretion and breach of procedural fairness. The respondents submitted that the application was moot since the C&P term had been completed. It was further submitted that the applicant should not be permitted to seek judicial review when she had not sought redress through the grievance process provided under QR & O. The decision to place a member on C&P is an administrative action designed to raise the member’s performance to an acceptable standard, not a punishment. The applicant argued that the grievance process was inadequate because it did not provide an appeal of the decision made on behalf of the Chief of Defence Staff and the applicant’s allegation of a breach of Charter, section 7 could not be considered.

Held, the application should be allowed.

The matter was not moot. The applicant had an interest in resolving the matter so long as the C&P directive form remained in her file. A person who is associated with marijuana consumers may be regarded as a person who is involved in criminal behaviour. As there was no provision in the QR&O for the removal of the form upon completion of C&P, it could detrimentally affect the applicant’s career prospects.

The applicant was not precluded from seeking judicial review by the fact that she had not pursued a grievance procedure which was not a statutory appeal process. The Court has jurisdiction where an applicant chooses to seek judicial review which is available as a general remedy for the supervision of the machinery of government decision making. The Court must determine whether the applicant was accorded procedural fairness.

The discretion vested in the Chief of Defence Staff to take administrative action for contravention of QR&O, Article 20.04 (prohibiting member from using drugs) must be exercised reasonably and in good faith, taking into account relevant considerations. The decision to place the applicant on C&P was an improper exercise of discretion in that it was based on insufficient considerations. The only basis was Corporal Moreland’s statement in the military police report. Even if the term “other involvement with drugs” included the offence of “possession” as defined in the Criminal Code, subsection 4(3) the allegation by Corporal Moreland was not evidence that the applicant had knowledge of and consented to people smoking marijuana in her apartment. Moreover, the basis for her “substantiated involvement with drugs” by reason of her being “implicated by association” was not clearly within the terms of the Criminal Code.

The respondents breached procedural fairness by failing to give the applicant notice of the case against her and an opportunity to respond to the evidence before the decision was made. A duty of fairness applies to all public bodies which derive their powers from statute, and whose decisions affect the rights, interests, property, privileges or liberties of any person. Colonel Brown derived his power to issue the administrative order to place the applicant on C&P from CFAO 19-21 (outlining the policies of the Drug Control Program). Considering that (i) the decision to place the applicant on C&P was an administrative action; (ii) there was a personnel relationship with aspects of employer-employee relations between the respondents and the applicant; and (iii) the decision affected the applicant’s livelihood and prospects in that relationship by precluding her from eligibility for training selection and promotion, incentive pay and postings, during the probation period, there was a general duty to act fairly in issuing the administrative order which was in effect a final decision of the Chief of Defence Staff. The duty of fairness requires that the person affected be given notice of the case against him and a fair opportunity to respond before decisions affecting his interests are finally made. Despite repeated requests, the police report, which provided a basis for the decision, was not made available to the applicant either before the decision was made or thereafter. It did not form part of the record of the Court when this matter was heard. Although aware that they were subject to the processes of this Court, neither counsel for the respondents, nor those responsible in NDHQ, followed the Court’s rules and procedures, which require that the full record of the decision-maker that is subject to judicial review proceedings be provided to the applicant upon request and to the Court. Both the Commanding Officer and Colonel Brown breached a duty of fairness owed to the applicant. When the final decision was conveyed to the applicant it was a fait accompli. The applicant did not have an opportunity to respond to allegations included in the MP report before the decision was made. That action also violated Article 20.15 of QR&O, requiring a reasonable opportunity to provide additional information and submissions before administrative action is taken.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.

Canadian Forces Administrative Orders, 19-21, 26-17.

Criminal Code, R.S.C., 1985, c. C-46, s. 4.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1 (as enacted by S.C. 1990, c. 8, s. 5), 18.2 (as enacted idem).

National Defence Act, R.S.C., 1985, c. N-5, ss. 12(1), 18(2).

Queen’s Regulations and Orders for the Canadian Forces, (1968 Revision), c. 20, arts. 19.26, 19.27, 20.01, 20.03, 20.04, 20.05, 20.06, 20.11, 20.15, 20.19.

CASES JUDICIALLY CONSIDERED

APPLIED:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92 N.R. 110; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; (1979), 96 D.L.R. (3d) 14; [1979] 3 W.W.R. 676; 26 N.R. 364; Edith Lake Service Ltd. and Hoyda Holdings Ltd. v. Edmonton, City of (1981), 34 A.R. 390; 132 D.L.R. (3d) 612; 20 Alta. L.R. (2d) 1 (C.A.); Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; (1990), 69 D.L.R. (4th) 489; [1990] 3 W.W.R. 289; 83 Sask. R. 81; 43 Admin. L.R. 157; 30 C.C.E.L. 237; 90 CLLC 14,010; 106 N.R. 17; Gallant v. Canada (Deputy Commissioner, Correctional Service Canada), [1989] 3 F.C. 329 (1989), 36 Admin. L.R. 261; 68 C.R. (3d) 173; 35 F.T.R. 79; 92 N.R. 292 (C.A.); Diotte v. Canada (1992), 54 F.T.R. 276 (F.C.T.D.); Diotte v. Canada (1989), 31 F.T.R. 185 (F.C.T.D.).

CONSIDERED:

Gayler v. Director Personnel Careers Administration Other Ranks, National Defence, Headquarters (1993), 61 F.T.R. 280 (F.C.T.D.); Duncan v. Canada (Minister of National Defence), [1990] 3 F.C. 560 (1990), 55 C.C.C. (3d) 28; 32 F.T.R. 189 (T.D.).

REFERRED TO:

Cantwell v. Canada (Minister of the Environment) (1991), 6 C.E.L.R. (N.S.) 16; 41 F.T.R. 18 (F.C.T.D.); Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L. 85; 89 CLLC 14,031; 93 N.R. 183; Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997 (H.L.); Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; (1978), 88 D.L.R. (3d) 671; 78 CLLC 14,181; 23 N.R. 410; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; (1979), 106 D.L.R. (3d) 385; 50 C.C.C. (2d) 353; 13 C.R. (3d) 1; 15 C.R. (3d) 315; 30 N.R. 119; Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105; (1980), 110 D.L.R. (3d) 311; [1980] 3 W.W.R. 125; 18 B.C.L.R. 124; 31 N.R. 214; Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353.

APPLICATION for judicial review of the decision to place the applicant, a member of the Canadian Forces, on counselling and probation for alleged involvement with drugs. Application allowed.

COUNSEL:

Mel R. Hunt for applicant.

Gordon P. Macdonald and Commander Jim Price for respondents.

SOLICITORS:

Hunt and Boan, Associates, Victoria, for applicant.

Macdonald & McNeely, Victoria, for respondents.

The following are the reasons for order rendered in English by

MacKay J.: This is an application for judicial review pursuant to section 18.1 [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act, R.S.C., 1985, c. F-7, as amended. The applicant seeks review and an order to quash a decision made by Colonel A. R. Brown, Director Personnel, Careers Administration, Other Ranks, for the Chief of the Defence Staff, Canadian Forces, dated October 6, 1992, which placed the applicant, Abby B. Gayler, a member of the Canadian Forces, on Counselling and Probation (C&P) for alleged involvement with drugs. The decision was made pursuant to the Queen’s Regulations and Orders for the Canadian Forces (QR&O), c. 20, and Canadian Forces Administrative Orders (CFAO) 19-21 and 26-17.

This matter was previously before the Court on March 4, 1993 [(1993), 61 F.T.R. 280], when Muldoon J. issued an order dismissing a motion by the applicant for an interim order pursuant to section 18.2 of the Federal Court Act [as enacted idem] to stay the decision placing her on C&P until the hearing of the application. In so far as the decision directed the applicant to submit to extraordinary urinalysis, Muldoon J. granted a stay until any appeal of his interim order, or the decision now rendered in these proceedings is given.

When this matter came on for hearing on April 19, 1994, the respondents submitted that this application, initially filed on November 27, 1992, was moot on the basis that the Counselling and Probation term was completed in the months that had elapsed. It was said that the applicant now receives the full pay and benefits of the next rank, is eligible for the next trade qualification course and further promotions, and that she would not have been selected for a trade qualification course in the period she was directed to C&P even if she had not been so directed.

The general principle for the doctrine of mootness and the basis on which a court in certain circumstances should exercise its discretion to hear, or to dispose of, a matter that is said to be moot, was set out by Sopinka J. in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at page 353:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.

He also identified three general circumstances which a court may find warrants the exercise of discretion to consider a matter that it has otherwise determined to be moot: (1) where there is no longer a live controversy between the parties but the necessary adversarial context still prevails; (2) where special circumstances warrant the application of scarce judicial resources; and (3) where there is a need to demonstrate the court’s proper law making function.

In my opinion, the matter is not moot. The applicant has an interest in resolving this matter so long as the C&P directive form remains on her unit personal file and her file at National Defence Headquarters in Ottawa (NDHQ). As Muldoon J. recognized when the interlocutory motion was heard, a person who is associated with consumers of marijuana may be regarded as someone who is involved in criminal behaviour. At page 287 of his reasons, he said:

Associating with consumers of marijuana is detrimental to good order and discipline, because its possession, trafficking and consumption are all criminal-type offences. That drug is not to be laughed off on the basis that it is or may be innocuous, or that the mythical “everybody” is smoking or chewing it, or baking cookies with it, so long as Parliament interdicts it.

Considering that, as noted by the applicant, there is no provision in the regulations and orders for the removal of the form upon completion of the C&P course so that the C&P form remains on the applicant’s record, I would agree that it may detrimentally affect her career prospects.

Background

The applicant, an acting Corporal, was serving as a financial clerk in the base accounts section at Canadian Forces Base Esquimalt (CFB Esquimalt). On February 13, 1992, she was advised by her supervisor, Roy Bernard Sears, Branch Chief Warrant Officer for the Comptroller Branch (CWO Sears), that the military police (MP) wished to speak to her in regard to a drug investigation. She attended an interview with the military police. Then she heard nothing further of the matter until November 4, 1992, when the Base Comptroller informed her that he had received a message on October 6, 1992 from NDHQ ordering that she be placed on C&P for twelve months and be subject to urinalysis testing at any time during that period.

The message sent by Colonel A. R. Brown, Director Personnel, Careers Administration, Other Ranks, for Chief of the Defence Staff, (Col. Brown) under the authority of the Chief of the Defence Staff, read as follows:

1. (PB) THE FOL DECISION HAS BEEN RENDERED BY NDHQ WITH RESPECT TO SUBJ MEMBER S SERVICE CAREER AS A RESULT OF HER INVOLVEMENT WITH DRUGS: CPL GAYLER IS TO BE RETAINED IN THE SERVICE AND PLACED ON C AND P FOR A PERIOD OF 12 MONTHS. SHE IS TO BE ADVISED THAT SHE WILL BE SUBJECT TO URINALYSIS TESTING TO CONFIRM ABSTINENCE FROM ILLICIT DRUGS AT ANY TIME DURING THE PERIOD OF C AND P. SUCH TESTING WILL BE AT THE DIRECTION OF NDHQ. FURTHER INVOLVEMENT WITH ILLICIT DRUGS WILL RESULT IN A RECOMMENDATION FOR CPL GAYLER S IMMEDIATE REL

2. (PB) UNIT IS TO ENSURE ANNEX B TO REF D INCLUDING CHAP 3 PARA 12 OF REF E IS FORWARDED FOR INCLUSION ON PERS FILES. THE TERM QUOTE 12 MONTHS UNQUOTE IS TO BE SUBSTITUTED FOR THE TERM QUOTE 5 MONTHS UNQUOTE IN THE APPROPRIATE AREA

3. (PB) FINAL CAREER RECOMMENDATION TO BE SUBMITTED UPON COMPLETION OF C& P

4. (PB) THE MEMBER IS DEEMED TO BE ON C AND P EFFECTIVE THE DATE THE MEMBER SIGNS ANNEX B TO REF D

That message also referred to a document which had been sent to NDHQ by Commander J. Gadd, Base Administration Officer at CFB Esquimalt in June 1992, recommending that the applicant be retained on C&P with no further career action on the basis that she had been “implicated by association” for being present when someone else smoked marijuana. Subsequently, Col. Brown also sent a letter to the Base Administration Officer at CFB Esquimalt, dated October 7, 1992, to confirm his message. It read in part:

CF DRUG POLICY—MEMBERS RETAINED ON COUNSELLING & PROBATION

…

1. As a result of the policy change promulgated at reference A, members retained in the CF following substantiated involvement with drugs will be placed on C&P for 12 months and be subjected to periodic urinalysis. Details concerning drug testing will be announced separately.

2. Reference B has been developed to assist supervisors in conducting meaningful on-the-job counselling during the 12 months of C&P.

3. In order to meet the C&P requirements for a re-education process, … Cpl Gayler is directed to participate in the program outlined in reference B.

On several occasions throughout November, the applicant was interviewed by Master Warrant Officer McIntosh (MWO McIntosh) and Carol Anne LaBella, Branch Chief Warrant Officer for the Comptroller Branch (CWO LaBella), who by that time had succeeded CWO Sears. On November 5, MWO McIntosh asked the applicant to sign the documents to place her on C&P but granted her permission to defer signing them until she had more time to consult with her lawyer. On November 12, CWO LaBella asked the applicant to tell her side of the story, but she declined to make any comments on the basis that no substantiation for the allegations had been provided. CWO LaBella advised her that she would look into the matter further. On November 13, CWO LaBella informed the applicant that the office of the Assistant Judge Advocate General (AJAG) had stated that the alleged involvement in an illicit drug incident was determined by virtue of “implication by association” which was substantiated in a statement in a MP report. The applicant declined to make any comments.

Subsequently, the AJAG informed the applicant, through her counsel, that she would be provided with more details in regards to the substantiation report to the MP’s. On November 20, she met with both, MWO McIntosh and CWO LaBella, who then informed her that the statement in the MP report was made by a Corporal Moreland who had alleged that he and two others had smoked a marijuana cigarette at the applicant’s residence on February 9, 1992. The applicant was then read the C&P form by MWO McIntosh who also explained that signing the form was merely an acknowledgment of understanding of its contents. She asked about the consequences if she did not sign the form. CWO LaBella advised her that the AJAG would be notified of her refusal and that she would be subject to compulsory release from the forces. She signed the C&P form but maintained her objection to the decision, and on November 27 she filed an originating notice of motion to the Court for judicial review.

Issues

A preliminary issue raised in this case is whether the applicant is precluded from seeking judicial review by virtue of CFAO 26-17[1] which specifies that the decision made by NDHQ to place her on C&P is an administrative action designed to raise the member’s performance to an acceptable standard. It is not considered to be punishment. Articles 19.26 and 19.27 of the QR&O provide a process for redress of grievances and the respondents urge that the applicant ought not to be permitted to seek judicial review when she has not sought redress through that grievance process, which it is said is a more appropriate process.

If it is determined that this Court has jurisdiction to hear the matter, there are two major issues to be resolved: (1) whether the respondents’ decision to place the applicant on C&P for being “implicated by association,” is beyond the jurisdiction authorized under QR&O, c. 20, and CFAO 19-21 and CFAO 26-17, and thus was an improper exercise of discretion; and (2) whether the process followed in reaching that decision, without providing the applicant with notice of the case against her and an opportunity to respond, breached her rights to procedural fairness, natural justice, or fundamental justice.

The role of the Court in reviewing administrative action

The respondents submit that the applicant ought to have initiated a complaint to her commanding officer at CFB Esquimalt under the redress of grievance procedure specifically provided for in regard to the C&P program in articles 19.26 and 19.27 of the QR&O.[2] That process is said to be a more appropriate forum in which to resolve the matter. It is urged that this Court should not intervene to simply clear the record. As Muldoon J. noted in the interim motion at page 289, “the Court should never go into the minute, daily superintendence of the armed forces.” On the other hand, the applicant argued that the grievance process is inappropriate in the circumstances of this case. It is said the grievance process does not provide an appeal of the decision made on behalf of the Chief of the Defence Staff, and the applicant’s allegation of a breach of section 7 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] cannot be considered in that forum. Moreover, the grievance process commonly involves a substantial length of time.

Ordinarily the Court will not act to quash a decision of a federal agency unless and until the applicant has exhausted all other adequate avenues of redress and appeal. Several factors to be considered to determine whether an administrative tribunal provides an adequate alternative remedy are listed by Beetz J. in Harelkin v. University of Regina, [1979] 2 S.C.R. 561. He stated, at page 588:

In order to evaluate whether appellant’s right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors include the burden of a previous finding, expeditiousness and costs.

Haddad J.A. further considered the importance of expediency in Edith Lake Service Ltd. and Hoyda Holdings Ltd. Edmonton, City of (1981), 34 A.R. 390 (C.A.), at page 396 . He held that expediency was not the key factor to the availability of remedy from the Court; rather, it was to be considered along with the other factors listed.

In my opinion, the applicant is not precluded from seeking judicial review in this Court. Even if the decision made at NDHQ is an administrative action, and she chose not to pursue the matter through the grievance procedure, those factors are not a bar to relief in this Court in an appropriate case. As the applicant noted, the grievance process is not a statutory appeal process. If the commanding officer does not redress the complaint, the applicant is required to pursue the complaint through several levels of authority: (1) the Formation Commander; (2) the officer commanding the command; (3) the Chief of the Defence Staff; (4) the Minister; and (5) the Governor in Council. However, both counsel have confirmed that only the Chief of Defence Staff has the authority to overturn the decision made on his behalf. The lower levels of administration only have the power to make a recommendation to the Chief of Defence Staff. Furthermore, even if it were preferable for the matter to be dealt with through the military grievance process, Cullen J. confirmed in Diotte v. Canada (1989), 31 F.T.R. 185 (F.C.T.D.), that the Court has jurisdiction where an applicant chooses to seek judicial review which is available as a general remedy for the supervision of the machinery of government decision making.

The role of the court in judicial review of administrative action is to determine whether the administrator has acted in accordance with the law, in terms of properly exercising the discretion conferred by statute and according procedural fairness in the circumstances. (See: Cantwell v. Canada (Minister of the Environment) (1991), 6 C.E.L.R. (N.S.) 16 (F.C.T.D.), at pages 25-26.)

In Diotte, supra, Cullen J., stated at pages 186 and 190:

It is of course not this court’s role to agree or disagree with the ultimate decision taken but rather to decide whether or not the applicant was accorded in all the circumstances appropriate procedural fairness respecting his dismissal.

…

We have an affidavit from Col. Raymond Gerard Hurley who was Director, Personal Career Administration, Other Ranks, who was a senior member of the permanent headquarters staff of the Chief of Defence Staff (CDS). He advised us that s. 18 of the National Defence Act has the ultimate authority as to whether a Canadian Forces (CF) member should be released and whether a former CF member who has been released by a CF authority, supported by the CDS, should be reengaged by the Canadian Forces. Although we are assured this is a very comprehensive procedure, and I have no doubt that Col. Hurley and his people were very thorough, this s. 18 review cannot and does not overcome the procedural unfairness of the Base Commander who did not permit the applicant and his Assisting Officer to make representations before the Base Commander’s final decision was made.

In this case, the applicant sought judicial review of the decision by Colonel Brown to place her on C&P for being “implicated by association,” a decision said to be an improper exercise of discretion and made in circumstances constituting a breach of procedural fairness, natural justice or fundamental justice under section 7 of the Charter.

Exercise of Discretion

The applicant submits that the term “other involvement with drugs” as used in CFAO 19-21 and QR&O, c. 20 does not include circumstances of “implication by association.” The drug program established under CFAO 19-21, based upon articles 20.11 and 20.19 of QR&O, was designed to be administered for the treatment of members who have used or have otherwise been involved with drugs in a manner contrary to the regulations. It is said that Commander J. Gadd, Base Administration Officer, CFB Esquimalt had no authority to send the message to NDHQ in June 1992, recommending that the applicant be retained on C&P on the ground of that she had been “implicated by association” for being present when someone smoked marijuana. Consequently, the Chief of Defence Staff had no authority to act on that recommendation and issue the administrative order. It is further urged that irrelevant considerations must have been taken into account as there was no evidence that the applicant was in possession of or used drugs at any time, or that she was present when someone smoked marijuana, or that she had knowingly consented to having people smoke marijuana in her apartment.

The respondents submit that the phrase “other involvement with drugs” includes “implication by association” on the basis that article 20.04, Note A, explains that the offence of “possession” is included in that phrase,[3] and the term “possession” is defined in the Criminal Code, R.S.C., 1985, c. C-46 as follows:

4. …

(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [Emphasis added.]

The respondents clarified at the hearing of this application that the allegation that the applicant had been implicated by association was used in the sense that she had knowingly consented to having people smoke marijuana in her apartment. It was not meant to imply that she was associating with drug users, or that she was in actual possession of marijuana or that she herself had smoked marijuana. It is said that Col. Brown properly exercised his discretion to adopt the recommendation made by the Base Commander since the applicant, having “knowledge” and “consent,” would have been deemed to have “possession” if she had been charged under the Criminal Code.

The discretion vested in the Chief of the Defence Staff, under article 20.15 of the QR&O, to take administrative action for contravention of article 20.04 must be exercised reasonably and in good faith, taking into account relevant considerations.[4] Aside from questions of procedural fairness, the Court should grant certiorari only if the decision can be said to be based on irrelevant factors.[5] Under QR&O, c. 20, regulations governing the Canadian Forces Drug Control Program were enacted pursuant to subsection 12(1)[6] of the National Defence Act, R.S.C., 1985, c. N-5 (the Act), which prohibits members of the Canadian Forces from engaging in the “use”[7] or “other involvement with drugs.” Generally, the purpose of the program is to maintain the operational integrity of the Canadian Forces; ensure the safety, health and reliability of members; and provide for the security of information and defence property.[8] The Drug Control Program provides for the establishment of a drug education program,[9] mandatory urine testing,[10] and for disciplinary and administrative action.[11] To implement the program, CFAO 19-21 and CFAO 26-17 were enacted under subsection 18(2)[12] of the Act. The former outlines the policies of the program in greater detail, and the latter deals with the policies to be followed when administrative or disciplinary action has been taken.

In my opinion, the respondents improperly exercised discretion in that the decision on behalf of the Chief of the Defence Staff to place the applicant on C&P was based on insufficient considerations. The only basis was said to be Corporal Moreland’s statement as contained in the military police report, that he and two others had smoked a marijuana cigarette at her residence on February 9, 1992. Even if the term “other involvement with drugs” includes the offence of “possession” as defined in the Criminal Code, as submitted by the respondents, the allegation made by Corporal Moreland was not evidence that the applicant had knowledge of and consented to having people smoke marijuana in her apartment. Moreover, the basis for her “substantiated involvement with drugs” by reason of her being “implicated by association” is not clearly within the terms of the Criminal Code, as the respondents argue here.

Procedural Fairness

More important, in my opinion, the respondents breached the applicant’s right to procedural fairness by failing to give her notice of the case against her and an opportunity to respond to the evidence before the decision was made. It is noted that the process prescribed under CFAO 19-21 does not provide the applicant with any opportunity to be heard before the final decision to place her on C&P is made. That does not mean that such an opportunity is not implied, and imposed, by the law. Moreover, as noted below, article 20.15(4) of QR&O specifically provides that an opportunity be provided for information and submissions to be made by one to be affected before administrative action is taken.

I find it extraordinary that neither before the decision was made nor thereafter despite repeated requests by counsel for the applicant, was the police report, which provided the basis for the decision, made available to the applicant. Indeed it did not form part of the record before the Court when this matter was heard. The respondents submit the procedures set forth in articles 20.04, 19.26 and 19.27 of the QR&O and CFAOs 19-21 and 26-17 were followed, and that the applicant was informed of the reasons for placing her on C&P but did not avail herself of the opportunity to give an explanation to CWO Sears before the decision, or to MWO McIntosh and CWO LaBella after the decision.

It is clear law that a duty of fairness is not confined to decisions made on a judicial or quasi-judicial basis. It applies to all public bodies which derive their powers from statute and whose decisions affect the rights, interests, property, privileges or liberties of any person.[13] Madam Justice L’Heureux-Dubé in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at pages 669-670; clarified that the duty of procedural fairness applies if the decision is significant and has an important effect upon the individual. She listed several factors to be considered in determining whether a duty to act fairly exists.

The existence of a general duty to act fairly will depend on the consideration of three factors: (i) the nature of the decision to be made by the administrative body; (ii) the relationship existing between that body and the individual; and (iii) the effect of that decision on the individual’s rights. This Court has stated in Cardinal v. Director of Kent Institution, supra, that whenever those three elements are to be found, there is a general duty to act fairly on a public decision-making body ….

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The finality of the decision will also be a factor to consider. A decision of a preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may have such an effect ….

In this case, Colonel Brown derived his power to issue the administrative order to place the applicant on C&P from CFAO 19-21. Considering that (i) the decision to place the applicant on C&P was an administrative action; (ii) there was a personnel relationship with aspects of employer-employee relations between the respondents and the applicant; and (iii) the decision affected the applicant’s livelihood and prospects in that relationship by precluding her from eligibility for training selection and promotion, incentive pay and postings, during the probation period,[14] it is clear that there was a general duty to act fairly in issuing the administrative order on October 6, 1992, which was in effect a final decision on behalf of the Chief of the Defence Staff.

Although the content of the duty of procedural fairness varies with the circumstances, at a minimum the person affected must be given notice of the case against her or him and a fair opportunity to respond[15] before decisions affecting her or his interests are finally made. Marceau J.A. stated the rationale behind the audi alteram partem principle in Gallant v. Canada (Deputy Commissioner, Correctional Service Canada), [1989] 3 F.C. 329(C.A.), at pages 341-342:

The rationale behind the audi alteram partem principle, which simply requires the participation, in the making of a decision, of the individual whose rights or interests may be affected, is, of course, that the individual may always be in a position to bring forth information, in the form of facts or arguments, that could help the decision-maker reach a fair and prudent conclusion. It has long been recognized to be only rational as well as practical that the extent and character of such a participation should depend on the circumstances of the case and the nature of the decision to be made. This view of the manner in which the principle must be given effect in practice ought to be the same whether it comes into play through the jurisprudential duty to act fairly, or the common law requirements of natural justice, or as one of the prime constituents of the concept of fundamental justice referred to in section 7 of the Charter. The principle is obviously the same everywhere it applies.

In some circumstances, the applicant must also have “direct access to the mind or conscious understanding of the decider, the adjudicator.” In Duncan v. Canada (Minister of National Defence), [1990] 3 F.C. 560(T.D.), at pages 577-578, dealing with a court martial on a criminal charge, Muldoon J. held that the applicant is confronted with an officially invented unfair process where he or she is given an opportunity to make submissions to the decision-maker only through a subordinate. He said:

The appellant/applicant’s right to fair procedure, to fundamental justice to the benefit of audi alteram partem are simply denied in this procedure, in which he is obliged to make his submissions to the decision-maker through the offices and judgment of the decision-maker’s subordinate assistant official. Honourable as the [subordinate] … may be, as one would surely expect, at least most of the time, he or she is distinctly not the appellant’s advocate. In acting as the [subordinate] does in such matters, he or she effectively obstructs the appellant from direct access to the [decision-maker] who is, in turn, blocked from “hearing” from the appellant, although designated to make the ultimate decision on severity.

In a case substantially similar to the one at hand, Diotte v. Canada (1992), 54 F.T.R. 276 (F.C.T.D.), Walsh J., following an earlier decision by Cullen J., granted an order for certiorari to set aside a decision, made by a base commander, to release Diotte from the Canadian Armed Forces. In that case, Diotte’s Commanding Officer received a memorandum from the Section Officer recommending that Diotte be released as unsuitable for further service. After conducting a thorough investigation, including meetings with Diotte and his Assisting Officer, the Commanding Officer completed a memorandum, gave Diotte and his Assisting Officer an opportunity to make representations, advised them that they were free to present a grievance against any decision to release him, and forwarded his recommendation to the Base Commander. The Base Commander decided to act on that recommendation, and about three weeks later, Diotte was advised that his behaviour had led to “career action.” Diotte was then advised of the grounds upon which it was decided to accept the release recommendation, and of his right to grieve the decision. In the period between the time that the recommendation was submitted to the Base Commander and the time that he decided to act on it, there were no further communications with Diotte.

Walsh J. confirmed that although the Commanding Officer had dealt fairly with him, the Base Commander had breached the duty of procedural fairness by failing to give him an opportunity to make representations before making the final decision to discharge him from the forces. When Diotte was advised of the decision to release him on November 25, the decision was already a “fait accompli.”

Under the drug program, when an investigation reveals sufficient reliable information to establish that a member has used or had “other illegal involvement with drugs,” a commanding officer is required to consider whether administrative, disciplinary, and/or medical action should be taken.[16] If the Commanding Officer decides to take administrative action, he/she makes a full report to NDHQ, using a standard form message and recommends whether the member should be retained under C&P, or with a report of shortcomings, or released.[17] If the recommendation is adopted, an order is then issued at NDHQ through the Chief of the Defence Staff.

In this case, the Commanding Officer sent the recommendation to NDHQ in Ottawa to retain the applicant on C&P in June, 1992; on October 6, 1992, Col. Brown, adopting that recommendation, made the final decision to place the applicant on C&P, sent a message to the Base Comptroller and confirmed it in a letter dated October 7, 1992. On November 4, 1992, the Base Comptroller conveyed that decision to the applicant. The applicant then made several requests for documentation: on November 4, she requested copies of the documents referenced in the message from NDHQ to the Base Comptroller; after her interviews with MWO McIntosh and CWO LaBella, her counsel requested copies of documents which were being relied upon to substantiate the allegations against the applicant, i.e., the MP report, from the Base Administration Officer; and in the application to the Court for judicial review, she again requested copies of the MP report. These materials were apparently considered in reaching the decision. She has received a copy of the documents referred to in the message from NDHQ except for the recommendation of the Base Commander of which she has received a copy of its draft, but to this date, she has not received any copies of the MP report, nor of the signed C&P form.

It is extraordinary that those concerned as counsel for the respondents, and those responsible in NDHQ, apparently paid no attention to the rules and procedures of this Court which require that the full record of the decision-maker that is subject to judicial review proceedings is to be provided for the applicant upon request and for the Court. Despite the applicant’s request no copy of the MP report was provided to her and there was not a complete record before me in these proceedings. The Department of National Defence and those responsible know better and that they are subject to the processes of this Court.

I note that there was some dispute on the facts in regards to a discussion with CWO Sears in April 1992, after the applicant had attended an interview with the military police in February 1992. CWO Sears averred in paragraph 6 of his affidavit, dated January 8, 1993, and filed herein by the respondents, that he had informed the applicant of the contents and details of the military police report at that time. His affidavit states:

6. THAT after receiving the Military Police report in April 1992, I had another interview with Corporal Gayler. I informed her of the contents of the Military Police report and gave her the details contained in the report about an individual reporting to the Military Police that Corporal Gayler’s boyfriend smoked Cannabis (marihuana) in her apartment on February 9th, 1992. Corporal Gayler told me that the circumstances as set out in the Police report were correct and she was aware that her boyfriend was one of the ones who had been apprehended by the Military Police. Corporal Gayler informed me that she realized that under military rules she was now implicated and that she had made a mistake by allowing her boyfriend to smoke Cannabis marihuana in her apartment and assured me that she had learned her lesson and it would never happen again. At the conclusion of the interview I informed Corporal Gayler that as far as I was concerned that was the end of the matter unless I received further direction from higher authority.

Despite that statement I choose to accept the applicant’s evidence in paragraphs 2 and 5 of her affidavit, dated February 10, 1993, filed in apparent response to that of CWO Sears, which denies the circumstances described by Sears, in the following terms:

2. THAT I have had the opportunity to read a copy of the Affidavit sworn by Roy Bernard Sears, sworn on January 8, 1993, and, with respect to paragraph six (6) of that Affidavit, I emphatically deny that I had any such conversation with Chief Warrant Officer Sears. And, that I most certainly would have never told Chief Warrant Officer Sears that my former boyfriend “was one of the ones who had been apprehended by the military police”, because to the best of my knowledge he was never apprehended by the military police.

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5. THAT, at some point in April of 1992 I approached Chief Warrant Officer Sears and asked him if he had heard anything further in relation to the investigation in regard to which I had been interviewed by the military police and he responded that the base was considering placing me on Counselling & Probation. And, that after I was promoted to acting Corporal in May of 1992 I asked Chief Warrant Officer Sears if he had heard anything further about the matter and he told me that I would know when he knew.

In my opinion, both the Commanding Officer and Col. Brown breached a duty of fairness owed to the applicant. As in Diotte, supra, at the time that the final decision was conveyed to the applicant, it was a “fait accompli.” It was only after Col. Brown made his decision that she was informed that a recommendation had been made to place her on C&P. She was given no opportunity to respond to allegations included in the MP report, after being advised of those, and before the decision was made. That action not only breached the respondents’ duty of fairness owed to her, but it also violated paragraph (4) of article 20.15 of the QR&O which provides:

20.15 …

(4) Prior to administrative action being taken under paragraph (2), the member shall be given a reasonable opportunity to provide additional information and submissions concerning why that action should not be taken. [Emphasis by underlining added.]

When she learned of the message from NDHQ, the applicant inquired of the Base Comptroller as to the substantiation for the allegation, and she persisted in that inquiry when subsequently interviewed by CWO LaBella and MWO McIntosh. She did not learn that substantiation for the allegation was a statement made by Corporal Moreland in a military police report until the interview with MWO McIntosh and CWO LaBella on November 20, 1992, more than a month after the decision was made and nearly three weeks after she was informed and requested the information.

The respondents failed to provide the applicant with notice of the case against her. Even if the applicant was not entitled to an oral hearing since the decision was one of an administrative nature, she should have had a fair opportunity to respond to the case against her, including correcting or explaining any relevant information, before the decision was made on October 6, 1992. The applicant was not afforded any opportunity to make representations to either her Commanding Officer in advance of his recommendation, or to Col. Brown, the decision-maker in advance of his decision. Until she knew the source of and the nature of accusations against her, the applicant was entitled to refrain, as advised by her counsel, from giving any explanation. Since there does not appear to be any valid reason for denying disclosure in this case, the applicant should have been given the identity of the person who had made the allegation and the details of the allegation in the military police report so that she would be able to challenge the reliability of that evidence.

Thus, I conclude that the respondents have denied the applicant an opportunity to make representations in regard to the allegations against her, an opportunity which on principles of fairness and of natural justice was owed to her in the circumstances of this case.

I note for the record that counsel for the applicant also argued the ground of procedural fairness in relation to section 7 of the Charter. Since there is no necessity to consider that argument to resolve the issue of fairness here raised, I decline to do so.

Conclusion

To summarize, I conclude that the applicant is not precluded from seeking judicial review in this Court by the fact that she did not pursue the matter through the grievance procedure provided under QR&O. Further, in my opinion the Court should exercise its discretion to consider her application.

For the reasons set out herein, an order goes to set aside the decision made by Colonel A. R. Brown, dated October 6, 1992, to place the applicant on C&P for alleged involvement with drugs. Furthermore, in that order this Court declares that the respondents are to ensure that the C&P form, and any reference to it, concerning the incident for which the applicant was subjected to administrative action, is to be removed from her personnel files.

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