Docket: T-437-16
Citation:
2016 FC 1110
Ottawa, Ontario, October 5, 2016
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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FRANCESCO
PAONESSA
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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 AND JUDGMENT
I.
Overview
[1]
This in an application for judicial review
pursuant to section 18.1 of the Federal Courts Act, RCS 1985, c F-7, of
a decision of the Chief of Defence Staff [CDS] in his capacity as Final
Authority in the grievance process under the National Defence Act, 1985
RCS, c N-5 to deny the applicant’s grievance of his release from the Canadian
Armed Forces [CAF].
II.
Facts
[2]
The applicant had been a member of the CAF since
January 2008 and was a member of the Military Police [MP] at the time of his
removal from the CAF. He has had a rocky track record while a member of the CAF
and MP.
[3]
In October 2011, he publicly questioned the
ability of a member of the CAF for which his Commanding Officer [CO] issued him
a remedial measure: Initial Counselling for a performance deficiency. A similar
incident occurred in February 2012.
[4]
In December 2011, a Professional Standards
Investigation was opened to review the applicant’s conduct. In total, six
allegations of improper conduct under the Military Police Professional Code of Conduct
were made against him (the last two were added in February 2012 after the
second incident of publicly questioning a member of the CAF):
1.
under paragraph 4(g): using a weapon in a
dangerous or negligent manner, the applicant pointed his firearm at himself, a third
party, and a dog;
2.
under paragraph 4(i): knowingly and improperly
[interfering] with the conduct of an investigation, the applicant intimidated a
witness;
3.
under paragraph 4(j): use [of] military police
information, military police resources or the status as a member of the
military police for a private or another unauthorized purpose, the applicant
showed his badge to young males passing him while driving and showed his badge
to a trooper to get himself out of a ticket while in Manitoba;
4.
under paragraph 4(l): [engaging] in conduct that
is likely to discredit the military police or that calls into question the
member’s ability to carry out their duties in a faithful and impartial manner,
the applicant provided an ex-partner with a “stalker-box”
containing problematic or inappropriate offerings such as ammunition and
various drug related statements;
5.
under paragraph 4(h): knowingly [suppressing,
misrepresenting or falsifying] information in a report or statement, the applicant
denied drafting and sending correspondence he authored; and
6.
under paragraph 4(l): [engaging] in conduct that
is likely to discredit the military police or that calls into question the
member’s ability to carry out their duties in a faithful and impartial manner,
the applicant drafted and sent correspondence that could discredit the MP.
[5]
In December 2011, the applicant was also charged
under section 252 of the Criminal Code, RSC 1985, c C-46 for leaving the
scene of an accident during which he stuck a woman at a crosswalk. As a result,
the applicant’s MP credentials were suspended pending investigation.
[6]
In February 2012, the applicant was disciplined
for installing games from a portable storage device on his work computer.
[7]
In June 2012, the Professional Standards
Investigation concluded that four allegations were substantiated. Therefore, the
investigation found that the applicant’s actions contravene paragraphs
4(g)(j)(h) and (l) of the Military Police Professional Code of Conduct,
SOR/2000-14.
[8]
In March 2013, the applicant requested permission
to attend an alcohol rehabilitation clinic. The request was denied because the
CAF did not have a standing agreement with that particular center. The Base
Surgeon instead directed the applicant to discuss alternatives with his
physician and social worker.
[9]
In October 2013, the applicant’s CO requested an
Administrative Review [AR] of the applicant’s performance and conduct
deficiencies, and recommended that the applicant be released from the CAF under
paragraph 2(a) – unsatisfactory conduct – of the table to article 15.01 of the Queen’s
Regulations and Orders for the Canadian Armed Forces, [QR&O].
[10]
The AR was initiated in November 2013.
[11]
In April 2014, the applicant was found guilty of
leaving the scene of an accident, as a result of which his driving permit was
suspended leaving him incapable of performing certain of his core duties in the
CAF. He was accordingly given a performance deficiency.
[12]
In July 2014, after the conclusion of the
criminal trial, the applicant was provided a preliminary AR report in which it
was to be recommended that he be released from the CAF pursuant to paragraph
5(f) – unsuitable for further service – of the table to article 15.01 QR&O,
so that he could make representations before a decision was rendered, which he
provided in September 2014.
[13]
In October 2014, the AR concluded “the Applicant had developed personal weaknesses within his
control and imposed an administrative burden on the CAF” and therefore
should be released from the CAF pursuant to paragraph 5(f) of 15.01 QR&O.
[14]
The applicant filed a grievance of the AR with
the Initial Authority in November 2014 which was denied in April 2015.
[15]
He then filed a grievance for review of the
Initial Authority’s decision in June 2015 to the CDS as the Final Authority.
Before the applicant’s grievance was addressed by the CDS, his file was
submitted to the Military Grievances External Review Committee [MGERC] for an
independent review pursuant to 7.20 and 7.21 QR&O.
[16]
In September 2015, the MGERC provided its
findings and recommendation to CDS and recommended that the applicant’s
grievance be denied.
[17]
In November 2015, the applicant provided further
submissions to the CDS.
[18]
On February 8, 2016, the CDS denied the applicant’s
grievance.
III.
Decision under Review
[19]
After reviewing both the findings and
recommendations of the MGERC as well as the applicant’s response, the CDS
adopted the findings as if they were his own and attached them to his decision.
[20]
The CDS addressed and dismissed the applicant’s
representations in which he compared his situation to other law enforcement
agents around the world who had been granted more lenient sanctions.
[21]
The CDS then set out the amount and severity of
the evidence against the applicant:
[a] charge under the
[Criminal Code], the suspension of your military police credentials,
three remedial measures, amongst other things. You clearly have demonstrated
performance and conduct deficiencies across a broad spectrum. At the same time,
your chain of command gave you opportunities to correct these deficiencies
through the remedial measures, to no avail. It is true though, to your credit,
that since February 2012 you have not been involved in misconduct.
Unfortunately, this does not erase previous events.
[22]
Accordingly the CDS found that the applicant’s
release was reasonable and appropriately done under paragraph 5(f) of 15.01
QR&O.
IV.
Issue
[23]
The sole issue in this case is whether the CDS’s
decision to deny the applicant’s grievance was reasonable.
V.
Standard of Review
[24]
The standard of review of the CDS’s decision to
deny the applicant’s grievance is reasonableness (Zimmerman v Canada
(Attorney General), 2011 FCA 43 at para 21; Moodie v Canada (Attorney
General), 2015 FCA 87 at para 51).
[25]
As such, this Court will not intervene unless
the CDS’s decision falls outside the range of possible outcomes that are
defensible in light of the facts and the law (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47).
VI.
Analysis
[26]
Firstly, the applicant submits that the CDS
erred in finding that the applicant was “unsuitable for
further service”, i.e. that paragraph 5(f) of 15.01 QR&O was
the appropriate section of the table to sanction under.
[27]
The CDS found the evidence quite compelling and
given the multiplicity of misconducts across a broad spectrum, paragraph 5(f)
was more appropriate.
[28]
The applicant argues that the use of the present
tense means the deficiencies must still be alive at the time of the decision.
[29]
The CDS disagreed. The passage of time does not
erase the applicant’s conduct and that at the time the deficiencies were indeed
alive, the applicant was given to opportunity (remedial measures) to remedy
them and was unable to. It is clear that he considered the applicant’s
arguments but, due to the circumstances the applicant was “unsuitable for further service”. This was entirely
within his discretion.
[30]
The applicant further submits that the MGERC’s,
and therefore the CDS’s conclusions were based on a wrongful weighing of the
evidence. It is not this Court’s role upon judicial review to reweigh the
evidence.
[31]
The MGERC adopted the AR’s definition of administrative
burden as it is understood under paragraph 5(f) of 15.01 QR&O, i.e.
as someone who causes the [chain of command]
CoC to spend an excessive and disproportionate amount of time, to the detriment
of the unit and its missions, through counselling, administering to,
disciplining, or supervising to ensure he reflects the standard of conduct and
ethos required from a CAF member.
The MGERC saw no
reason to part with the AR’s proposed definition of administrative burden, nor
did the CDS.
[32]
In the MGERC’s view of the entire file and the
evidence before it, notably the applicant’s disciplinary record, the applicant
had developed personal deficiencies, wholly or partly under his control, which
impaired his usefulness to the CAF causing an administrative burden, as
understood in the AR definition, on the CAF. Therefore, release under paragraph
5(f) was deemed appropriate by the MGERC. The CDS agreed in its conclusion.
[33]
Given the policy considerations and
discretionary nature of this decision, this Court must show deference and sees
no reason to part with the conclusion of the CDS on this point.
[34]
The applicant further submits that the CDS erred
by determining a release was the appropriate remedial measure when alternative
administrative actions were available and more reasonable under the
circumstances.
[35]
Again this argument must fail as it would
require interfering with the choice of sanctions by the administrative decision-maker
which is a question of discretion within the policy expertise of the CDS (Walsh
v Canada (Attorney General), 2016 FCA 157 at para 14).
[36]
On a reasonableness standard, this Court cannot
quash a decision simply because the result could have been different.
[37]
For these reasons, this application for judicial
review is dismissed with costs.
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