Docket: T-2290-12
Citation: 2014 FC 398
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, April 29,
2014
PRESENT: The Honourable Mr. Justice de Montigny
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BETWEEN:
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MARC BABINEAU
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review pursuant
to section 18.1 of the Federal Courts Act, RSC 1985, c F-7, of a
decision by the Canadian Forces Provost Marshal, Colonel T.D. Grubb (Provost
Marshal), dated November 30, 2012, to revoke the applicant’s military police credentials.
[2]
For the following reasons, I am of the opinion
that this application for judicial review must be allowed.
Facts
[3]
The applicant, Marc Babineau, was deployed to
Afghanistan in August 2010 as Deputy Commander of the Canadian mission to
train Afghan police officers. He assumed his duties until July 2011.
[4]
While he was deployed, the applicant had
difficulty operating the magazines provided by the Canadian Forces. Ammunition
apparently fell out of the magazine numerous times. The applicant questioned
the quality of the magazines and consequently feared for his safety if there
were to be a surprise attack.
[5]
The applicant’s American counterparts advised
him to purchase other magazines from the American Personnel Exchange (PX) as
replacements for his Canadian magazines. The applicant purchased 14 of those magazines.
[6]
After that purchase, the applicant’s Canadian
counterparts apparently warned him about using those magazines, and told him
that he risked being reprimanded if he used equipment that had not been
provided by the Canadian Forces.
[7]
The applicant wanted to return the magazines to
the American PX, but he had lost his receipt and was therefore unable to return
them. He then chose to send them to his spouse in Canada, by mail, in a parcel that
also contained a telescope. He did note on the transmittal sheet that the
parcel contained 14 magazines, and told the post office worker that there were magazines
in the parcel before he mailed it. The parcel was then intercepted and seized
by the Canada Border Services Agency (CBSA).
[8]
After sending the parcel, the applicant learned
that mailing magazines of more than five rounds was prohibited. He then
contacted his spouse and told her to contact a friend, an officer of the Sûreté
du Québec, so the friend could destroy the magazines when they arrived in
Canada. However, the parcel had already been seized by the CBSA, which simply
confiscated the magazines and required a customs fee for the telescope. No charges
were laid by the CBSA regarding the sending of the parcel.
[9]
Further to that incident, the applicant was
informed that the Canadian Forces National Investigation Service (CFNIS) was
going to conduct an investigation. The applicant cooperated fully with the
CFNIS and provided all documents and exhibits that he had in his possession. At
the end of that investigation, in April 2011, the CFNIS charged him with
exporting a prohibited device (the 14 magazines) without authorization, in violation
of the Firearms Act, SC 1995, c 39 or any other Act of Parliament.
[10]
The applicant completed his mission in
Afghanistan and, upon his return to Canada, resumed his duties as a Deputy
Commander of the 5th Military Police Company. The applicant also asked that
Court Martial proceedings be scheduled in a timely manner so that he could
participate in an exercise scheduled for the fall.
[11]
The applicant was charged with breaching section
130 of the National Defence Act for having illegally imported magazines
prohibited in Canada in violation of paragraph 104(1)(a) of the Criminal
Code, and for having committed an act to the prejudice of good order and
discipline under section 129 of the National Defence Act. He pleaded
guilty to the second charge and was sentenced by the Court Martial to a
reprimand and a fine of $2,000. Given the applicant’s guilty plea, and because
the second charge was an alternate to the first charge, the military judge ordered
a stay of proceedings on the first charge: R v Babineau, 2011 CM 3009.
[12]
Following his guilty plea, the applicant’s case
was submitted to the Military Police Credentials Review Board (MPCRB or Board) for
an examination as to whether the applicant’s actions constitute a breach of the
Military Police Professional Code of Conduct (MPPCC or Code). The Board
may make any recommendation to the Provost Marshal that is considers
appropriate, depending on the circumstances of the case, and must provide
written reasons: Queen’s Regulations and Orders for the Canadian Forces,
section 22.04; Military Police Policies and Technical Procedures, c 3, sections
17, 39 and 41. The applicant provided written submissions for the review by a
five-member panel (review panel). All of the members found that the applicant
had breached the MPPCC. Four out of the five members recommended a 180-day suspension,
whereas the fifth member recommended that the applicant’s credentials be
revoked. Previously, the applicant’s supervisor, Major Vouligny, had recommended
a 90-day suspension and a 12‑month probation.
[13]
The case was then referred to the Provost
Marshal for a decision. As the military police Commanding Officer (the highest
ranked military police officer), he is the ultimate authority when it comes to
disciplining members of military police. It was up to him to make the final
decision in the applicant’s case and he was not bound by the Review Board’s
recommendations.
[14]
After examining the Review Board’s reasons and
recommendations, the Provost Marshal told the applicant about his intention to
revoke his military police credentials in a letter dated August 28, 2012.
The Provost Marshal gave the applicant the opportunity to submit any last
written representations or other new relevant documents before making his final
decision. After considering the applicant’s additional submissions, the Provost
Marshal communicated his final decision to revoke his military police
credentials on November 30, 2012.
[15]
The applicant filed this application for
judicial review before this Court on December 28, 2012.
Impugned
decision
[16]
The Provost Marshal first noted that the panel
did not attach enough weight to a fundamental factor, that is, the leadership that
a military police commanding officer must demonstrate.
[17]
While he acknowledged that the applicant’s
performance was sometimes noteworthy, the Provost Marshal stated that the acts
committed by the applicant are not those expected of a member of the Canadian
Forces, and especially not of someone who is not only a member of the military
police, but an officer who must command other military police officers
responsible for enforcing the law in the Canadian Forces. He added the
following: [translation] “I have
lost the full confidence that I had in Captain Babineau’s ability to carry
out his duties as a military police officer, and I believe that his credibility
with his subordinates is non-existent”: Respondent’s Record, page 508.
[18]
The Provost Marshal also noted that Captain Babineau
admitted to not knowing that the importation of large capacity magazines was
contrary to the Criminal Code and to theatre standing orders and pleaded
guilty at Court Martial even though he has more than 20 years of experience in
the Canadian Forces, is a former member of combat arms, a competent
investigator with the military police and someone who regularly carries a
firearm. In the eyes of the Provost Marshal, breaches to the MPPCC cannot be
taken lightly, and it is impossible to justify letting a military police
officer keep his credentials when he acted in a manner that would lead to the
disqualification of a candidate who was in a similar situation during his or
her participation at the Military Police Assessment Centre. In that regard, the
Provost Marshal found the following: [translation]
“In my opinion, Captain Babineau was deceitful in those circumstances and that
is reflective of an aspect of his character. I cannot resolve the breach with a
suspension”: Respondent’s Record, page 509.
[19]
The last substantive paragraph of the Provost
Marshal’s notice of intent warrants being reproduced in its entirety for a proper
understanding of the substance of his decision:
[translation]
As part of my deliberations in this case, I have raised major
concerns regarding the severity of Captain Babineau’s conduct. Even though
the MPCRB is mandated to
examine MPPCC-related issues, it is my duty as Canadian Forces Provost Marshal
to consider all of the factors that reflect the abilities of those appointed
within the military police force, including a person’s leadership. Captain Babineau,
by his own admission, is guilty of actions that are directly related to his
honesty and integrity. His discredit within the military police force was
exacerbated by the publication of his actions in the national media and by his
subsequent conviction. Furthermore, I note that Captain Babineau did not
acknowledge the severity of that contravention in his guilty plea. To the
contrary, he made considerable efforts to justify his actions; he tried to
minimize the severity of the offence and challenged the investigation process
and the investigator. Rather than admitting his contravention, showing remorse
for his actions and apologizing for having been discredited and harming the
reputation of his commission and the military police, he claimed that the
matter was a minor error and accused others of submitting the case to the MPCRB. The MPCRB determined that Captain Babineau’s
actions were clearly disreputable and contrary to public interest, and that
they could only harm the reputation of the military police. That directly
contributed to my decision.
Issue
[20]
The only issue on this application for judicial
review is whether the Provost Marshal’s decision to revoke the applicant’s
military police credentials was reasonable.
Analysis
[21]
Even though this Court has never ruled on the
standard of review applicable to decisions by the Provost Marshal when the MPPCC is applied, there seems to me to be no doubt that
the appropriate standard is reasonableness. First, the applicant does not
challenge the fact that he breached subsection 4(l) of the MPPCC; his issue is with the severity of the sanction
that was imposed on him by the Provost Marshal. It was a discretionary decision
that was based essentially on an assessment of the facts. Furthermore, the
Provost Marshal clearly knows the military context and has more expertise than
this Court in that area.
[22]
Second, the Court has already determined that
the standard of review applicable to decisions by the Chief of the Defence
Staff in grievance matters is reasonableness. For example, Justice Near (while
a member of this Court) stated the following in Moodie v Canada, 2009 FC
1217, at paragraph 18:
The decision
of the CDS will be reviewed under a standard of reasonableness (see Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190). I come to this
conclusion after considering the following: the fact that decisions of the CDS
are final and binding, except for judicial review under the Federal Courts
Act, R.S.C. 1985, c. F-7; that the CDS is charged with control and
administration of the Canadian Forces and is interpreting its own statute; that
the statutory scheme provided the CDS with discretionary power in his
determination of such grievances, and that the issues to be addressed are
predominantly those of fact or mixed fact and law.
See also: Rompré
v Canada (Attorney General), 2012 FC 101, at paragraph 22-25; Birks v
Canada (Attorney General), 2010 FC 1018, at paras 4-5 and 25-27; Armstrong
v Canada (Attorney General), 2006 FC 505, at paragraph 35.
In my view, the
same factors apply when the Provost Marshal makes a decision stemming from the
MPPCC. As a result, deference should apply to the Provost Marshal’s decision. To
the extent that his decision falls within the range of “possible, acceptable
outcomes which are defensible in respect of the facts and law”, and is the result
of an intelligible and transparent process and has justification, this Court
will not intervene. Such attitude does not involve, however, an abdication of
the responsibilities assigned to the judiciary in its examination of
administrative decisions. As the Supreme Court took pains to point out in Dunsmuir
(at paragraph 48), “[i]t does not mean that courts are subservient to the
determinations of decision makers, or that courts must show blind reverence to
their interpretations”, or that they may be content to pay lip service to the
concept of reasonableness review while in fact imposing their own view. It is
therefore in that perspective that the Provost Marshal’s decision must be
examined.
[23]
The respondent is correct in maintaining that
the Provost Marshal was in no way bound by the Review Board’s findings or
recommendations, but was simply required to consider them: Queen’s
Regulations and Orders for the Canadian Forces, c 22, paragraph 22.04(11); Military
Police Policies and Technical Procedures, c 3, sections 17 and 41. However,
the Provost Marshal’s decision to depart from an almost unanimous
recommendation (4 out of 5 members) by the Review Board must be based on solid
justification and rely on the evidence in the record. It is in this respect
that the Provost Marshal’s decision is deficient.
[24]
The Provost Marshal first criticizes the
applicant for not expressing remorse or recognizing the severity of the offence
that he committed. Two comments are required in that respect. First, the
severity of the act committed by Captain Babineau must be qualified. First, the
fact that he mailed a parcel to Canada that contained magazines, which are
devices prohibited by law, was a military offence under section 129 of the National
Defence Act and not a criminal offence, like the Provost Marshal stated. It
is true that a military police officer is expected to have better knowledge of
the law than a regular member of the Canadian Forces military and demonstrate,
at the very least, more prudence. That being said, the offence committed seems,
by in large, quite technical, given the fact that sending magazines of less
than five rounds does not constitute an offence. Moreover, the fact that the
applicant acted in good faith is not challenged because he never concealed the
nature of the shipped merchandise; to the contrary, he explicitly described
what was inside the parcel and seems to have packed it in full view of the postmaster,
who the respondent did not deem necessary to call as a witness. Captain
Babineau’s statement that he asked a friend who is a member of the Sûreté du
Québec to destroy the magazines once he learned of their illegal nature was
also not challenged. Given all of the facts, there is no doubt that the
applicant was negligent, but nothing indicates that he acted in bad faith.
[25]
Regarding his supposed lack of remorse, the
evidence in the record tends to demonstrate to the contrary. First, the Court
Martial judge considered the fact that Captain Babineau pleaded guilty to the
offence that he was accused of as a mitigating factor, and added that he
“showed very clearly that [he is] remorseful and sincerely intend[s] to remain
a solid asset within the Canadian Forces” (Respondent’s Record, page 260). Second,
the Review Board also disclosed as a mitigating factor that Captain Babineau acknowledged
his errors and pleaded guilty at Court Martial. He even took the initiative to
take a specialized course on prohibited weapons after the incident with which
he was charged, which is some evidence that he recognized his deficiencies and
wanted to address them.
[26]
It is true that in the observations that he
submitted to the Review Board, the applicant argued that the equipment put at
the disposal of the Canadian military was not always adequate and he tried to
explain why he had sent the magazines by mail. Those statements do not seem to
me to reflect a lack of remorse or a willingness to avoid responsibility; to
the contrary, they are clearly part of an approach to explain the context in
which the offence was committed in a manner to convince the Review Board that
he does not deserve an unduly harsh punishment.
[27]
The Provost Marshal also seems to challenge the
applicant’s credibility with his subordinates. However, the evidence
demonstrates that he received Personnel Evaluation Reports (PERs) according to
which his performance was considered [translation]
“satisfactory”, [translation]
“above average” or [translation]
“mastered”, even after the offence with which he was charged. Those reports
clearly establish that his superiors still had confidence in him. Furthermore,
he was kept in his position as Deputy Commander of the Canadian mission to
train Afghan police officers despite the charges against him, and resumed his
duties as Deputy Commander of the 5th Military Police Company upon his return
to Canada.
[28]
In its decision, the Court Martial stated the
principle that “any sentence imposed by a court, be it civilian or military,
must be adapted to the individual offender and constitute the minimum necessary
intervention, since moderation is the bedrock principle of the modern theory of
sentencing in Canada”. In this case, I am of the opinion that the sanction
imposed by the Provost Marshal is not proportional to the severity of the
offence with which the applicant was charged. Four out of five members of the
Review Board found that a 180-day suspension, the longest possible suspension under
subsection 22.04(11) of the Queen’s Regulations and Orders for the Canadian
Forces, would be appropriate. His immediate superior, Major Stéphane
Vouligny, recommended a 90-day suspension and 12-month probation period. The
Provost Marshal, by raising considerations that are not supported by the
evidence in the record, chose to not accept those recommendations and to impose
the most severe sentence, that is, the revocation of his military police credentials.
Not only is that sanction not proportional to the severity of the offence, but
it is undeniably unreasonable in the circumstances.
[29]
It also appears from section 39 regarding the
MPPCC that the Review Board can only proceed with a revocation “only after all other possible
recommendations have been considered, and when no other alternative approach
may be envisaged”. That same provision also states that
the Review Board must make its recommendations based on all relevant factors such
as the severity of the violation of the Code, the member’s offence history and
the existence of mitigating circumstances. Even though that provision applies formally
only to the Review Board, it is difficult to understand how the Provost Marshal
could ignore it, unless there were perhaps very exceptional circumstances,
which is not the case here. At risk of acting arbitrarily, the Provost Marshal’s
discretion cannot be absolute. If he wanted to depart from the Review Board’s recommendations,
he was required to provide a convincing explanation for doing so, which he unfortunately
failed to do. To the contrary, he relied on grounds that are not supported by the
evidence, he did not consider the applicant’s clear record and performance evaluations
and he overlooked the mitigating circumstances that the Court Martial and the
Review Board nonetheless accepted. Under these circumstances, his decision
must be set aside to allow him to redetermine the matter on the basis of these
reasons.
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