This should be read in conjunction with section 60 of the NDA Archived 2011-06-05 at the Wayback Machine which defines the limitations of the disciplinary jurisdiction of the Code of Service Discipline.
It may well be true that this is also the case for disciplinary action applied to reservists not performing military duties, given the wording of QR&O 20.
A number of these schemes, in practice, were suspended after the Privacy Commissioner of Canada released a report attacking the validity of drug testing in the Federal sector with an analysis that includes the Canadian Forces.
The focus of the policy is on discerning all factors that caused an incident and promoting safety; the results from a urine test cannot be used at disciplinary proceedings.
Since Testing for Cause mandates that an accused be provided with a summary of the reasonable grounds, it may well be the case that they are entitled to a copy of an MP report into their alleged drug use prior to the seizure of urine.
DND and the CF have made no policy changes to reflect this new requirement; it is entirely possible that the old practice of filtering such information persists.
Control testing is an administrative regime, used as a follow up to ensure that members who have been caught using drugs contrary to QR&O 20 abstain from doing so.
Natural justice in an administrative matter involving an adversarial process and serious outcomes for the accused require a high standard of natural justice; an accused under QR&O 20.11 faces serious (potentially terminal) administrative career consequences, disciplinary proceedings (where his/her liberty may be at stake), and more importantly, the threat of disciplinary action for failing to submit to a test.
The first-instance decision was rejected, in part, by the Appeals Court on the issues relating to waiver (as unrepresented laymen cannot waive their rights;[7] nor can waiver exist without the breach's grounds at the disposal of the affected party[8]) however, the appellant was ultimately unsuccessful due to a factual prerequisite issue.
The first-instance decision is not binding on subsequent applicant's seeking review in the Federal Court and the matter remains open for exploration at this level.
He may also have held the accused in the highest regard and, yet, his involvement at multiple stages of the investigation will still bring rise to an apprehension of bas.
ed., (Carswell, Toronto: 1994), the authors state at p. 365:…common sense says that the delegate (or another party) can lead evidence to contradict that introduced by the applicant for the judicial review.
32 he wrote:It is trite that every allegation that judicial conduct gives rise to a reasonable apprehension of bias falls to be decided upon its own facts.
It follows that a parade of authorities, parsing precedent in vain search of factual equivalents or reasonable facsimiles, is not to the purpose.
Briefly, the fact that the actual wording of the Act does not guarantee the administrative tribunal's impartiality and independence is not fatal to its constitutionality.
It will suffice if the wording is [page617] neutral and does not prevent the institution from organizing itself so that a fully informed person having thought the matter through in a realistic and practical way would not have a reasonable apprehension of bias or of the existence of a lack of independence in practice (2747-3174 Québec Inc., at paragraphs 47-48).147 However, as Gonthier J. noted in 2747-3174 Québec Inc., at paragraph 48, "although an overlapping of functions is not always a ground for concern, it must nevertheless not result in excessively close relations among employees involved in different stages of the process" (emphasis added).
Thus, he noted at paragraph 45 that "this necessary flexibility, and the difficulty involved in isolating the essential elements of institutional impartiality, must not be used to justify ignoring serious deficiencies in a quasi-judicial process.
If urine is not included in the class of things which constitute personal property, a teleological analysis of the interaction of section 273.4 and QR&O 20.11 is necessary.
The test of conformity with the Act is not satisfied merely by showing that the delegate stayed within the literal (and often broad) terminology of the enabling provision when making subordinate legislation.
(emphasis added) The power-conferring language must be taken to be qualified by the overriding requirement that the subordinate legislation accord with the purposes and objects of the parent enactment read as a whole.32.
… the delegate may not frustrate or evade the Act of Parliament or exercise his discretionary powers arbitrarily or otherwise than in accordance with the purposes or objects of the enactment.
It might be argued that sections s. 273.2-273.5 of the NDA Archived 2011-06-05 at the Wayback Machine do not apply to a CO when analyzing the standard for a urine seizure as he/she may not be investigating an offence or adjudicating a complaint but rather considering an administrative measure.
In the event that it is found that there does exist a contradiction between s. 273 of the NDA and QR&O 20.11, it is submitted that [16] provides grounds for the regulation to be struck.
In Joplin, a regulation precluding an accused's use of solicitor to represent him at a police hearing was struck down merely on such a presumption by the judge.
The CO's involvement at multiple stages of the process gives rise to an apprehension of bias contrary to section 2(e) of the Bill; these procedures appear to abrogate section 2(e) of the Bill as best described in:[13] "[25] The applicable standard in determining the result of a breach of the rules of procedural fairness and natural justice is clear: the decision made by the administrative authorities is invalid, as Mr. Justice Le Dain held in: .
Such a failing could potentially spell doom for any administrative action taken against an accused as the process might be tainted beyond hope of recovery and a subsequent urine order would be of no benefit given the half life of metabolites in the body.
At page 14, he writes:A civil proceeding before a court or administrative tribunal is not subject to the requirement of a "fair hearing" or of the application of "fundamental justice".
This is a gap in the Charter, and is therefore an area where the continued existence of the Bill is important: an adjudication authorized by federal law of a person's rights and obligations will continue to be subject to the requirement of "a fair hearing in accordance with the principles of fundamental justice".As counselling and probation is defined as "the last attempt at salvaging a member's career," it is viewed as a very serious obligation as it results in the member's career being placed in limbo during its one-year period (i.e. precluding eligibility for training selection and promotion, incentive and pay increases).
This is evidenced in the military career setting in,[22] where C&P was quashed due to an irreparable failing of the audi alteram partem principle.
In citing,[23] Coultas J. stated the following: "McKay J. held that s. 7 of the Charter was also applicable due to the "direct link between disciplinary proceedings for failure to obey an order to provide a specimen".