Docket: T-80-16
Citation:
2016 FC 1340
Ottawa, Ontario, December 07, 2016
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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LOREN MURRAY
PEARSON
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Applicant
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and
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(CANADA)
ATTORNEY GENERAL
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
In June 2011, Loren Murray Pearson was a
Lieutenant Commander in the Canadian Armed Forces [CAF]. At that time, while
deployed in the South Pacific aboard Her Majesty’s Canadian Ship [HMCS] OTTAWA,
Mr. Pearson was accused of sexually assaulting a female subordinate. He was
immediately returned to Canada to face charges before a Standing Court Marshall
[SCM]. Mr. Pearson pled guilty to an assault charge under the Criminal Code,
RSC, 1985, c C-46[Criminal Code]. He also pled guilty to a charge of
prejudicing good order or discipline within the CAF under the National
Defence Act, RSC 1985, c N-5 [NDA]. As a result of the June 2011
sexual assault incident, Mr. Pearson was discharged from the CAF on October 25,
2012.
[2]
Following the sexual assault incident, administrative
proceedings were undertaken within the CAF. Mr. Pearson availed himself of
various administrative reviews and grievances. The final level of reconsideration
within the CAF was by the Chief of Defence Staff [CDS], acting as the Final
Authority [FA]. On December 1, 2015, the FA denied Mr. Pearson’s grievances
relating to the SCM and his discharge from the CAF. This is a review of the FA
decision.
[3]
For the reasons that follow, this judicial
review is dismissed. The decision of the FA is reasonable. If there was any
breach of Mr. Pearson’s procedural fairness rights, those breaches were
remedied by the full review undertaken by the FA. Although Mr. Pearson argues that
his section 7 Charter rights were violated, there is no evidence to support
this argument. Finally, the request to convert this application into an action
is denied.
II.
Background
[4]
Mr. Pearson is self-represented in this
proceeding. He raises issues with virtually every process and all steps taken within
the CAF following his sexual misconduct in June 2011. He argues that all
actions taken against him are tainted and without legal authority because of the
late disclosure to him of a Letter of Introduction written by Commanding
Officer J.C. Allsopp on August 31, 2011 [Allsopp letter].
[5]
Likewise, Mr. Pearson says that his guilty plea before
the SCM was done in error, because the Allsopp letter had not been disclosed to
him beforehand. Mr. Pearson had the Allsopp letter before his appeal was scheduled
to be heard by the Court Martial Appeal Court [CMAC]. However, he chose to
abandon his appeal. He now argues that the decision to abandon his appeal
should also be reconsidered in this judicial review.
[6]
As this is a judicial review of the FA decision
only, Mr. Pearson’s submissions and arguments with respect to the proceedings
before the SCM and the CMAC will only be considered in so far as they were
addressed by the FA. Beyond that, his various submissions and arguments
regarding his guilty plea before the SMC are irrelevant to this proceeding.
[7]
The Allsopp letter is the core piece of evidence
which Mr. Pearson relies upon to argue that all of the actions taken against
him up to and including his discharge from the CAF are flawed. By way of
background, this letter was sent on June 29, 2011 by the Director Military
Careers Administration [DMCA] to advise the Director Maritime Ship Support [DMSS],
where Mr. Pearson was employed, on Mr. Pearson’s performance issues. This occurred
without Mr. Pearson’s knowledge.
[8]
As this letter is at the centre of Mr. Pearson’s
submissions, I have reproduced portions of it below:
2. As the CSEO in OTTAWA, Lt(N) Pearson’s
performance was strong in some areas and very weak in others. His technical
knowledge was very sound, and backed with years of experience as a Tech prior
to commissioning. His communication skills and ability to comprehend Command
intent, however were weak. His emails and briefs to Command were overly
verbose, making it difficult to identify the focal point of his discussion. His
management of the department and ability to produce deliverables on time were
adversely effected due to his lack of focus on Command’s priorities and
consistent micro-management of issues that his Chief could have easily dealt
with. He displayed a seemingly lack of trust for any senior members in his
department to do their jobs.
3. His performance issues truly began to
surface leading up to and during WUPs in April 2011. Prior to that time, he had
a very strong start and earned an immediate PER from the few short months of
observation prefacing the issues noted above. Throughout the preparations and
execution phases of WUPs, his can’t-do attitude was a hindrance to the
interdepartmental relationships that are vital to succeeding. Sea Training
Pacific had some concerns regarding his suitability as a CSEO and his lack of
support to Command, but encouraged the Command Team to continue mentoring him
through his shortcomings.
4. Throughout WESTPLOY, and OTTAWA’S Train
the Sailor trial for Commander MARPAC, Lt(N) Pearson continued to be an
obstacle to progress and continually hesitated to ‘buy in’ to the mission and
training deliverables set by COMCANFLTPAC. This overall lack of performance,
however, is only one variable to this letter, with the second being the
incident while in Pago Pago on 21 June 2011, where he was accused of sexual
misconduct against his own […] in the ship’s Wardroom. The allegations were
dealt with swiftly, as he was landed within hours of the incident and
consequently flown back to Esquimalt. NIS took over the investigation and it is
expected that charges will be laid in the near future.
5. In conclusion, Lt(N) Pearson was a weak
CSEO for the reasons stated above, and has some very serious career
implications, pending the outcome of the NIS investigation. In general, I assess
his potential for advancement and promotion to be marginal. DMCA has been
notified of the incident, and his case manager is Captain Remi Munger for the
Administrative Review that will be conducted in association with the incident,
as alcohol was a factor. Therefore, to summarize, charges have not yet been
laid but are expected to happen, and DMCA has opened a file on Lt(N) Pearson,
but no direction or disclosure packages have been provided to OTTAWA or the
member. I anticipate this will all unfold while he is at DMSS[…].
[9]
As noted above, the Allsopp letter was not
disclosed to Mr. Pearson prior to the SCM. He received it on June 4, 2012 as
part of the Administrative Review [AR] disclosure process. Mr. Pearson did however,
have the Allsopp letter prior to the CMAC proceedings.
[10]
On April 26, 2012, before a SCM, Mr. Pearson plead
guilty to assault under s. 266 of the Criminal Code, and to prejudicing
good order or discipline, under s. 129 of the NDA, which contravenes the
Defence Administrative Orders and Directives [DAOD] 5012-0 (Harassment
Prevention and Resolution). Mr. Pearson was sentenced to a severe reprimand and
a fine of $8,000.00.
[11]
In addition to the SCM, an AR process was initiated,
which is mandatory for all reported incidents of sexual misconduct by a member
of the CAF.
[12]
On September 21, 2013, the AR decision-maker concluded
that Mr. Pearson’s actions “more likely than not”
met the definition of sexual misconduct in the DAOD 5019-5(Sexual
Misconduct). The factors considered to arrive to this decision included: the
fact that Mr. Pearson had no Medical Employment Limitations [MELs]; the impact
on the victim who had sought medical assistance; as well as three letters from Mr.
Pearson’s commanding team which indicated that he could no longer be trusted in
a position of leadership. The DMCA decided that Mr. Pearson would be released
from the CAF no later than October 21, 2012, pursuant to item 5(f), Chapter
15.01 of the Queen’s Regulations and Orders for the Canadian Forces [Queen’s
Regulations].
[13]
In response to this DMCA decision, Mr. Pearson submitted
a grievance of his release.
[14]
He also filed two grievances and a harassment
complaint against the DMCA analyst for the way in which the AR was directed.
The Initial Authority [IA] denied both of these grievances. In response to the harassment
complaint, even though a final investigation report on October 30, 2012,
concluded that the analyst had not harassed Mr. Pearson, the DMCA analyst in
question was removed from the AR.
[15]
Throughout the grievance process, there was an
extensive exchange of documents between Mr. Pearson and the IA.
III.
Final Authority Decision
[16]
Mr. Pearson grieved the IA decisions to the FA. The
CDS, General J. H. Vance, was the FA for the grievance. Prior to the FA’s
consideration, there is a mandatory referral of the grievance to the Military
Grievances External Review Committee [Committee]. The Committee is an external,
independent, and arms-length legal body mandated under the NDA to
investigate grievances and report its findings and recommendations to the CDS and
Mr. Pearson. Mr. Pearson’s grievance was also sent to the Director General of
the Canadian Forces Grievance Authority [DGCFGA], who assists the CDS by
providing an analysis of the grievance and non-binding recommendations from the
Committee. Here, both the Committee and the DGCFGA recommended that the
grievance be denied.
[17]
On December 1, 2015, the FA released his decision
which denied Mr. Pearson’s request for redress. The FA concluded that the
release decision was justified and that Mr. Pearson was treated fairly and in
accordance with the applicable rules, regulations, and policies. The FA found
that the release respected the CAF policy and was reasonable based on the loss
of confidence in Mr. Pearson’s leadership abilities, his guilty plea to assault,
the evidence of sexual misconduct, and the absence of evidence of any mental
health issues prior to June 2011.
[18]
The FA also found that the principles of
procedural fairness were followed throughout the AR process. The FA further
noted that any alleged breach of procedural fairness was cured by the FA’s de
novo review, where both the Committee and the DGCFGA disclosed all of the
documents in their possession to Mr. Pearson and ensured that he had an
opportunity to respond.
IV.
Issues
[19]
The following issues arise:
(a) Was the review of Mr. Pearson’s release from the CAF by the FA reasonable
considering the following:
i.
The late disclosure of the Allsopp letter
ii.
Was there any evidence of mental health issues
prior to June 2011?
iii.
Was his release from the CAF done with the
necessary authority?
(b) Were Mr. Pearson’s procedural fairness rights respected throughout
the FA process?
(c) Should this application be converted to an action?
(d) Were Mr. Pearson’s section 7 Charter rights violated?
V.
Standard of Review
[20]
According to the Federal Court of Appeal in
Walsh v Canada (Attorney General), 2016 FCA 157 at para 21, the role of the
Federal Court in reviewing a FA decision is “limited to
reviewing the legality of the decision in accordance with the applicable
principles set out in the jurisprudence.”
[21]
Broad deference is accorded to the CDS, given
his autonomy and expertise within a highly specialized process and unique
organization (Higgins v Canada (Attorney General), 2016 FC 32, at para 77).
[22]
Allegations of procedural fairness will be
reviewed on the standard of correctness (Moodie v Canada (Attorney General),
2015 FCA 87 at para 50; Mission Institution v Khela, 2014 SCC 24 at
para 79 and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at
para 43).
VI.
Analysis
(a)
Was the review of Mr. Pearson’s release from the
CAF by the FA reasonable considering the following
i.
The late disclosure of the Allsopp letter
[23]
Mr. Pearson’s main argument is that his release
from the CAF under item 5(f), Chapter 15.01, of the Queen’s Regulations,
was premature and not properly approved. He claims that the Approving Authority
wrongfully relied on the SCM findings, as well as the three letters from his
chain of command, as proof of his guilt. He also contends that his chain of
command acted unfairly and unjustly with respect to the use of information and
procedures regarding the sexual misconduct allegations. Much of this argument
relates to his contention that the late disclosure of the Allsopp letter caused
prejudice to the whole process.
[24]
With respect to the Allsopp letter, the FA found
that it did not provide any new information that could not have been found in
other documentation, such as divisional notes, that had been disclosed to Mr.
Pearson.
[25]
Mr. Pearson alleges that this letter would have
impacted the defence he could have mounted to the charges he faced before the SCM.
The charges before the SCM related to his conduct with a female subordinate on
the HMCS OTTAWA in June 2011. Mr. Pearson appears to be attempting to argue,
after the fact, that his conduct on the ship was the result of his unhealthy
state of mind. He says the Allsopp letter proves that he was suffering from a
mental illness at the time of the sexual misconduct. However this conclusion
cannot be reached based upon a reading of the words and phrases used in that
letter. To accept Mr. Pearson’s argument, one would have to read meaning and
suggestions into the Allsopp letter which are simply not there. This argument
is without merit.
[26]
Furthermore, if the Allsopp letter was so critical
to Mr. Pearson’s criminal charges, it is reasonable to assume he would have raised
the letter as a defence on his appeal to the CMAC. However, on the day of the
CMAC hearing, April 5, 2013, he withdrew his appeal. If the Allsopp letter was
so telling of Mr. Pearson’s state of mind at the time, he had the opportunity
to raise those issues at the CMAC, but he chose not to do so. He cannot now revisit
that decision.
[27]
Mr. Pearson did have the right to the timely
disclosure of relevant information. The Allsopp letter should have been disclosed
to him at the first disclosure opportunity during the AR process. However, Mr.
Pearson has failed to establish how the late disclosure of this letter to him
on June 4, 2012 has impacted his ability to respond to the AR process.
[28]
He was given additional time to provide
representations following the DMCA’s disclosure. In fact, he was given almost
three months to provide his representations to DMCA’s first and second
disclosure. According to the DAOD 5019-2 AR policy, written representations must
be sent no later than 15 working days after receipt of the disclosure package.
Although his further request for additional time was refused, he still had
ample time to make his representations.
[29]
He has not shown how the late disclosure faulted
his ability to prepare his representations. Therefore, it cannot be said that Mr.
Pearson was not properly informed of the case against him. Furthermore, with
respect to the FA decision under review, Mr. Pearson had the Allsopp letter
well in advance of the FA grievance process.
ii.
Was there any evidence of mental health issues
prior to June 2011?
[30]
During the AR process, Mr. Pearson claims that
his actions on June 22, 2011 and June 23, 2011 were due to an undisclosed
mental illness. No medical documentation was submitted to support these claims and
the internal CAF documents stated that he did not have MELs.
[31]
Mr. Pearson raised this argument throughout the
grievance process. The FA in its decision considered this argument and found at
the time of the sexual misconduct incident in June 2011, Mr. Pearson’s status was
clear of any MELs and an assessment performed by a medical officer concluded
that Mr. Pearson did not suffer from any medical or psychological condition
prior to the incident.
[32]
While Mr. Pearson alleges that he was suffering
from mental health issues since 2009, the medical evidence does not indicate
any reported mental health issues prior to the misconduct. Although he says he suffered
spousal, alcohol and financial stress prior to the June 2011 incident,
professional medical opinion confirmed that Mr. Pearson did not have any
documented conditions, nor were there any MELs noted on his file. Therefore, he
was deemed fit for service, before this incident.
[33]
This submission is without merit.
iii.
Was his release from the CAF done with the
necessary authority?
[34]
Mr. Pearson argues that his release from the CAF
was invalid because he was released before the release was officially approved
by the Governor General [GG] as required by item 3(a), Chapter 15.01 of the Queen’s
Regulations which did not occur until May 23, 2013.
[35]
Central to these submissions is Mr. Pearson’s
position that he is entitled to salary and benefits for the period between his
release date of October 25, 2012, and the date of approval by the GG on May 23,
2013. This issue was addressed in a separate judicial review application brought
by Mr. Pearson and reported at Pearson v Canada (Attorney General), 2016
FC 679 [Pearson]. It therefore will not be addressed on this judicial
review.
(b)
Were Mr. Pearson’s procedural fairness rights
respected throughout the FA process?
[36]
Mr. Pearson argues that the late disclosure of
the Allsopp letter breached his procedural fairness rights. He also argues that
the refusal to grant him the various extensions of time he requested also breached
his rights.
[37]
However, even if there was a breach of Mr.
Pearson’s procedural fairness rights at some point during the AR or IA proceedings,
it was cured by the FA’s de novo hearing, where a new decision was
rendered. The FA decision was based upon a fresh consideration of Mr. Pearson’s
entire file, including his submissions, along with the non-binding
recommendations from the Committee that his grievances should be dismissed. The
jurisprudence establishes that a de novo hearing can cure a breach of procedural
fairness (McBride v Canada (National Defence), 2012 FCA 181 at paras 26,
43 and 45).
[38]
Here I am satisfied that even if there was a
breach in this case, it was cured by the fulsome consideration of the issues by
the FA.
(c)
Should this application be converted to an
action?
[39]
At the hearing, Mr. Pearson suggested that his
application should proceed as an action so that he can obtain monetary relief
for his wrongful release from the military. The Federal Court Rules
allow such a conversion where appropriate to avoid a multiplicity of
proceedings. However, this is a judicial review of the FA decision. A claim for
monetary damages for wrongful release was not made to the FA. Mr. Pearson had
made a claim for reimbursement of the $8,000.00 fine imposed by the SCM, but
this claim was withdrawn by Mr. Pearson and not considered by the FA. Furthermore,
in a separate judicial review proceeding, Mr. Pearson made an application where
he claimed additional salary, pension, and benefits (see Pearson at
paras 1, 10 and 29).
[40]
Therefore, there is no justification to convert
this application into an action and the request to do so is denied.
(d)
Were Mr. Pearson’s section 7 Charter rights violated?
[41]
Mr. Pearson argues that his section 7 Charter
rights were not respected by the FA. However, Mr. Pearson did not provide any detail
in his written or in his oral submissions as to how his rights to life, liberty
and security of the person were violated. As detailed above, the central focus
of his submissions related to the late disclosure of the Allsopp letter. At
best, Mr. Pearson had a breach of procedural fairness argument with respect to
the timing of the disclosure of this letter. However, that issue was addressed
at various stages in the AR process by allowing Mr. Pearson additional time to
respond. Further, any such breach was ultimately corrected in the FA review.
[42]
Mr. Pearson has not plead sufficient or any material
facts necessary to support a Charter argument (Shebib v Canada, 2016 FC
539 at para 21 and Mancuso v Canada (National Health and Welfare), 2015
FCA 227, at para 21).
[43]
Thus, the claim of a section 7 Charter violation
is without merit.
VII.
Conclusion
[44]
The application for judicial review is
dismissed. The Attorney General is entitled to costs which I fix at $2,000.00
inclusive of disbursements.
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