Date: 20000215
Docket: T-694-97
Ottawa, Ontario, this 15th day of February 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
CORPORAL H.J. ROCKMAN
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] Corporal Rockman was a member of the Canadian Armed Forces who quite reasonably came to the conclusion that his opportunities for advancement in the Forces were rather limited. The fact that he had been arrested for possession of marijuana by the military police in circumstances where a charge of trafficking was a possibility, likely influenced his decision. He applied for release from the forces under the Force Reduction Plan 1996 (FRP 96). This conferred considerable financial advantages upon him, including a pension. In the process of applying for release, he signed a form which acknowledged that the Forces could cancel his FRP selection at any time if it was determined that another release item was more appropriate1. After his release was processed, a Career Review Board changed his release status to "5(f) - Unsuitable for further service - Suitability C."2 as a result of which Corporal Rockman lost his FRP status and the associated financial benefits. The basis of the change in his release status was set out in a letter to Corporal Rockman dated March 13, 1997 which incorporates the decision of the Director-General Military Careers:
| After consideration of all the material presented to it, the CRB determined that you clearly violated the Canadian Forces Drug Policy. |
| The Board found that, you, in offering drugs to an undercover police constable, had trafficked in illicit drugs. In addition your pattern of use indicated a significant likelihood that you would repeat your unauthorized use of illicit drugs. Therefore, you do not meet the criteria for retention detailed in CFAO 19-21 paragraph 24. |
[2] In view of the fact that no criminal charges were laid as a result of the incident leading to his arrest, Corporal Rockman feels that the Canadian Forces have done indirectly what they could not do directly, that is convict him of drug trafficking. He applies to this Court to set aside the decision of the Director-General Military Careers. He does so on the ground that he was not given an opportunity to meet the case against him because:
| 1) he was given a heavily edited version of the military police report while the Career Review Board had an unedited version of the same report; |
| 2) he was not given the transcript of a surreptitious recording of his conversation with the undercover police officer which he believes would establish that he did not offer drugs to the undercover policeman; and |
| 3) he was not given the reasons for the Career Review Board"s recommendation and as a result did not have the opportunity to be heard by the decision maker, which he characterizes as a breach of natural justice. This was originally advanced on the basis that he was not informed of the advice given to the Career Review Board by its legal adviser, Major Powers, so as to be able to present his side of the case but in the course of argument it became clear that the real complaint was the absence of an opportunity to address the Career Review Board"s recommendations which presumably incorporated the legal advisor"s opinion and recommendations. |
[3] Corporal Rockman"s home base was Halifax. His difficulties began when other members of the Canadian Forces complained to the Military Police that while on course at Canadian Forces Base Borden, the Corporal was using illicit drugs and encouraging others to use them as well. The Military Police"s investigation led them to a member who indicated that Corporal Rockman spoke freely of his drug use while the member was driving the Corporal to Toronto on weekends. Hoping to take advantage of this type of conduct, the military police arranged to have an undercover officer replace the member in giving the Corporal a ride to Toronto on March 24, 1995. As a result of the conversation during that trip, Corporal Rockman was arrested by military police before arriving in Toronto. A search of his person resulted in the seizure of a small amount of a substance which was later shown to be marijuana. A search of his living quarters in Borden did not turn up any other drugs. He was detained for four days and subsequently released. A review by the Judge Advocate General"s office of the evidence against him and the circumstances under which it was obtained led to the conclusion that as a result of the violation of Corporal Rockman"s Charter rights, the evidence against him would be excluded which would preclude a conviction. In addition, the Judge Advocate General"s office felt that the evidence, if not excluded, would only support a charge of possession of a narcotic for personal use as opposed to trafficking or possession for the purpose of trafficking. Consequently no charges were laid.
[4] As a result of the police action, the Career Review Board process was initiated. On November 17, 1995, the police report was sent to the Director of Access to Information and Privacy for vetting. Various notifications were sent, including one to the Corporal"s unit requesting career recommendations. For various reasons, the processing of the Career Review Board documentation was not completed until May 3, 1996 when the Director-Police approved the vetted police report. In the meantime, on November 12, 1995, Corporal Rockman initiated a request for release from the forces under the FRP 96 program. A memo to various interested parties from an officer in the office of the Director Personnel Careeer Administration dated January 23, 1996 advised that in view of the pending Career Review Board, Corporal Rockman"s release application should be treated on the basis of minimal entitlement until such time as the Career Review Board process was completed and his entitlement, if any, to a greater benefit was established. For reasons which do not appear from the record, this did not happen, nor was Corporal Rockman made aware that it had been suggested. On February 16, 1996, the application for release under the FRP 96 program was approved; on May 24, 1996, National Defence Headquarters was advised of Corporal Rockman"s financial elections for his release. Ultimately, Corporal Rockman was released under the FRP 96 program with a release status of "5(c) Completed Service for Which Required".
[5] In the interim, by letter dated May 7, 1996, Corporal Rockman was advised of the convening of the Career Review Board. At the same time, he was provided a copy of the edited police report and a Career Review Board synopsis which set out very briefly the circumstances of his involvement with the military police. It also referred to the Charter problems which precluded criminal charges but which were said not "to call into question the nature of the material found in Corporal Rockman"s possession". The synopsis also noted the Commanding Officer"s recommendation of "Retention with Counselling and Probation".
[6] Corporal Rockman consulted counsel and on June 24, 1996 prepared a letter which he forwarded to the Career Review Board through its secretary, Captain Morgan. In it, he denies that he is a "big time drug use or dealer" but does not deny that he was found with a quantity of marijuana on his person. The letter is generally responsive to the content of the police report and the synopsis which he had previously received. On September 13, 1996, Captain Morgan wrote to Corporal Rockman to advise that as a result of its review of the material presented to it, the Career Review Board had come to the preliminary conclusion that Corporal Rockman "had violated Canadian Forces Policy on Involvement with Illicit Drugs". Since the possibility of an adverse finding on release now existed, Corporal Rockman was served with a Notice of Intention to Recommend Release. The grounds upon which release, under release item 5(f), would be recommended are set out as follows:
| Cpl Rockman was arrested in possession of an illicit drug, specifically marijuana. In addition, Cpl Rockman offered drugs to an undercover police constable which constituted trafficking. Therefore, Cpl Rockman does not meet the criteria for retention under Counselling and Probation as detailed in CFAO 19-21 paragraph 24-25. |
[7] On March 12, 1997, the Career Review Board, having "reviewed the material relating to this case, all of which had been previously released to the member through the disclosure process" concluded that Corporal Rockman had violated the Canadian Forces Drug Policy and had engaged in trafficking by offering drugs to an undercover police constable as payment for a ride to Toronto. It recommended that he be released from service under the Queen"s Regulations and Orders (QR & O), Chapter 15 Item 5(f) Unsuitable for Further Service - Suitability C. The Career Review Board"s recommendation, and the material which it had before it (including the submissions of Corporal Rockman and his counsel) were forwarded to the decision-maker. That same day, the recommendation was approved by the decision-maker, Brigadier General M. Matte, Director-General Military Careers. Corporal Rockman launched his application for judicial review of the decision of Brigadier General Matte on April 14, 1997.
[8] The first point made on behalf of Corporal Rockman is that he did not get adequate disclosure because the police report which was provided to him and his counsel had been edited while the complete unedited report was provided to the Career Review Board (CRB). He also claims that he has not been provided with a copy of a tape recording of the conversation between him and the undercover officer. Corporal Rockman says that the absence of these documents has prevented him from making a full answer and defence to the allegations against him, which is a breach of natural justice or procedural fairness.
[9] Dealing first with the tape recording, there is no evidence that such a recording exists. There is a notation in the police report that in the course of the ride to Toronto, the undercover officer "noted and recorded the following" information. There is no reference in the course of the police report to recording devices or of steps being taken to record conversations. No transcript has been produced in response to this application. The decision not to prosecute Corporal Rockman was made due to the infringement of his rights under section 8 of the Charter, which could include unauthorized recordings but would also include unauthorized searches. The words used in the police report are consistent with the practice of making notes of significant events as soon as practicable after the event. In the absence of evidence that the recording exists and was before the decision maker, I am not prepared to order its production or to draw adverse inferences from its absence in the record.
[10] While Corporal Rockman was not provided with a copy of the unedited police report prior to being invited to make submissions, it has been disclosed to him in these proceedings. The respondent relies upon Miller v. Director General Postings and Career Officers [1994] F.C.J. No. 330, (1994) 76 F.T.R. 15, in support of the proposition that the disclosure which the respondent received was adequate. In Miller, the failure to disclose was with respect to a briefing note, whose contents had previously been disclosed to the applicant. On those facts, Denault J. held:
| I do not believe that the failure to disclose the briefing note amounted to a breach of the duty of fairness because the information contained therein had already been disclosed to the applicant and I do not believe that there was any possibility of prejudice to the applicant as a result of the failure to disclose the document. |
[11] In this case, like Miller, the substance of the police report was disclosed to the applicant. However, those portions which were not may have had some relevance to the issue of credibility by Corporal Rockman. On the other hand, Corporal Rockman has not pointed to any particular instances of prejudice now that the unedited police report has been disclosed. As has been said many times, particularly in the "prison" cases, disclosure does not mean full disclosure in all instances. Where other interests intersect with the applicant"s right to disclosure, some limited form of disclosure may be justified to the point where the applicant may be entitled to no more than the gist of the case against him/her. Cadieux v. Mountain Institution [1985] 1 F.C. 378, (1984) 9 Admin. L.R. 50.
[12] It is clear that Corporal Rockman knew the gist of the case against him. In fact he knew much more. What he may not have known was the course of events which led to him driving down the road to Toronto in the company of an undercover military policeman. Nor did he know the full particulars of statements given to the police by those who spoke against him. But it is clear that he knew that he had been apprehended with marijuana on his person, that he was said to have attempted to recruit others to smoke drugs with him, that he was said to have planned to return to his home base in Halifax with a quantity of drugs for the purpose of making a profit. Those things were known to him. In the ordinary course, that would be sufficient disclosure.
[13] Is the situation changed by the fact that the CRB and Brigadier General Matte purported to find that Corporal Rockman had engaged in trafficking in drugs by offering the undercover policeman a "joint" in return for the ride to Toronto, an accusation which Corporal Rockman denies, thereby raising an issue of credibility. Does that credibility issue change the disclosure requirements?
[14] Credibility is only an issue if the matter in question is one which is material to the conclusion arrived at by the decision maker. Is the finding of trafficking material to the decision? Canadian Forces Administrative Orders ( CFAO) 19-21 Canadian Forces Drug Control Program, Clause 24, Release Policy provides that a member will normally be released from the forces where it is established that the member contravened the Queen"s Regulations and Orders section 20.04, the Narcotic Control Act or the Food and Drug Act, unless ..."the involvement was limited to personal use or possession for personal use" or "it is unlikely that there will be a repeat of unauthorized use"3. The policy goes to deal with the fact that ordinarily, breach of federal drug legislation will be established by conviction in the courts. In those cases, where prosecution does not take place for reasons " that do not bring into question the nature of the act or the intention to commit it"4, a special Career Review Board for drug related incidents will be convened at National Defence Headquarters which will determine whether a contravention of federal drug legislation has occurred5. This finding becomes the basis of further action.
[15] In this case, the finding by the Career Review Board that Corporal Rockman had engaged in drug trafficking was a pre-condition to his being released from the forces6. The resolution of the credibility issue was therefore a significant step in the Board"s ultimate disposition of Corporal Rockman"s rights. It is not however, the only basis of the Career Board"s decision leading to Corporal Rockman"s release; the Board also found that Corporal Rockman"s pattern of use "indicated a significant likelihood that he would repeat his unauthorized use of illicit drugs". This also bring Corporal Rockman"s case within the conditions which would justify his release from the forces. Both of these conclusions could be drawn, and likely were drawn, from the content of the police reports. Was it a breach of Corporal Rockman"s right to procedural fairness to deny him the unedited version of the police report when the conclusions to be drawn from it had such significant implications for him?
[16] Disclosure was resisted on the ground that it was prohibited by the Privacy Act. Did the Privacy Act prevent the unedited police report being given to Corporal Rockman"s counsel? In Lee v. Canada (Armed Forces, Chief of Defence Staff) (1992) 51 F.T.R. 136, [1992] F.C.J. No. 145, Cullen J. held that the Privacy Act did not apply to the disclosure of information to a person who had an interest in the information and who required access to it to protect his right to liberty or other significant rights. In coming to that conclusion, he relied upon the decision of Reed J. in Gough v. National Parole Board (1990) 45 Admin. L.R. 304 (F.C.T.D.), [1990] F.C.J. No. 1152, where the learned judge expressed her views as follows:
| The reliance on provisions of the Access to Information Act, R.S.C. 1985, c.A-1 and the Privacy Act, R.S.C. 1985, c.P-21 is misplaced. As has been said before those legislative provisions prescribe circumstances under which individuals will not be given certain information which they seek from the government. Those exemptions, however, are not designed to operate in the context of a situation where the individual seeking the information is faced with serious consequences respecting his liberty as a result of decisions being made on the basis of that information. Those statutes prescribe limits to an individual's access to information when the information being sought may be required for no more serious reason than idle curiosity. Also, in that context, this Court has a reviewing function which ensures that the exemptions claimed are properly so claimed - a role which the respondent categorically denies is appropriate in the more serious circumstances in which the applicant finds himself. |
[17] In this case, the threat to Corporal Rockman"s liberty had passed but he had another serious interest at stake, his release status from the Canadian forces. This is an economic interest but not solely an economic interest. It is also a matter of status which may have long-term implications.
[18] To summarize, the process in which the CRB was engaged required it to make a determination as to whether Corporal Rockman engaged in trafficking and whether he was likely to engage in other unauthorized use of illicit drugs. The effect of those determinations was to move Corporal Rockman from a class where he would not be released from the forces to one where he would be. This exposed him to the risk of retroactively altering his release status and affected his economic and other interests. Corporal Rockman denied some of the allegations in the Police Report, in particular the allegation that he had offered the undercover police officer drugs in exchange for a ride. The finding that he was likely to continue with use of illicit drugs relied to some degree upon a credibility finding with respect to some of the informants who spoke to the military police and whose names and statements were before the CRB. Corporal Rockman, through his counsel, requested disclosure of the unedited police report with an undertaking being given by counsel to respect the confidentiality of the report. The reason for seeking release of the Police Report was for the purpose of addressing credibility. Even though the process did not involve the examination and cross-examination of witnesses, the unedited police report could still be used to undermine the Career Review Board"s reliance on that document. Internal contradictions and inconsistencies as well as improbabilities could be brought to the Career Review Board"s attention so as to illustrate the unreliability of the document as evidence of its contents. This is a legitimate use of the document and one which was restricted by the failure to provide counsel with a copy of the unedited policy report.
[19] On the face of it, this would justify a new hearing. The difficulty is that the unedited report was disclosed to Corporal Rockman as part of the judicial review disclosure process. Having the document in hand, he has not shown that it contains the types of errors, inconsistencies, improbabilities which could be used to challenge its reliability. There seems little point in sending the matter back for a new hearing without some indication that there is something to be said about the police report beyond what has already been said.
[20] When a matter is sent back on the basis of a failure of disclosure of a document, it is the possibility of the applicant making some use of the document which justifies the rehearing of the matter. Where the document has been disclosed as part of the judicial review process, it is no longer a question of possibilities. The document is available and its deficiencies are available to be exposed. There is no reason for this Court to order a new hearing if the applicant does not show that there is reason to question the evidentiary value of the document. To hold otherwise is to put the parties to the expense of a new hearing for the sake of form only. Since no weaknesses in the document such as would cause a reasonable trier of fact to at least review his/her conclusions have been shown, no substantive injustice has occurred notwithstanding the procedural defect. I would therefore decline to send the matter back for a new hearing.
[21] In his notice of application, Corporal Rockman raises the issue of his inability to address the decision-maker. The record shows that counsel requested that the submissions made by him and Corporal Rockman be put before the Career Review Board for its consideration. The Affidavit of Captain Morgan says that these submissions were before the Career Review Board while the Certificate of Captain Morgan says that both submissions were put before the Release Authority. To that extent, Corporal Rockmans"s submissions were before the decision makers. Counsel also asked for the opportunity to address the Career Review Board"s recommendations before the Release Authority made the final decision. This did not occur. Counsel says that this is a breach of the rule of natural justice that a party must be heard.
[22] Counsel for Corporal Rockman relies upon Duncan v. Minister of National Defence (1990) 55 C.C.C. (3d) 28 (F.C.T.D.), [1990] F.C.J. No. 258, a case of a sentence appeal in a Court Martial proceeding. The procedure in that case was that the accused, or counsel on his behalf, made submissions to the Director of Personnel Legal Services who, in turn, prepared and submitted his own representations on sentence. The Director"s representations were forwarded to the decision-maker, the Assistant Deputy Minister (Personnel) who made the decision. The accused"s submissions were not forwarded to the Assistant Deputy Minister. On those facts, Muldoon J. found that the requirements of natural justice had been breached and, in my respectful view, he was right. In this case however, the representations of Corporal Rockman and counsel were before both the Career Review Board and the Release Authority.
[23] Gayler v. Director Personnel Careers Administration Other Ranks (1995) 1 F.C. 801 is another drug case in which no police report was provided at any time, neither before the Career Review Board, nor during the judicial review application. Gayler never knew the case she had to meet and did not have the opportunity to address the merits of the case before the Career Review Board or the Release Authority. In this case, the police report was made available, though in edited form, and submissions which went to the merits of the case were made to the Career Review Board and were before the Release Authority.
[24] Gallant v. Correctional Service of Canada (1989) 92 N.R. 292 (F.C.A.), [1989] F.C.J. No. 71, is also relied upon by the applicant. Gallant was a prisoner who was to be transferred involuntarily to another facility because he was alleged to be involved in extortion in the institution. He was given very few particulars of the allegations against him so as to protect his victims. The issue was the adequacy of disclosure and its effect upon meaningful participation. In and of itself, Gallant does not stand for the proposition that one whose rights are affected has an unfettered right of access to the decision-maker.
[25] The last case relied upon by counsel is Diotte v. Canada (1992) 54 F.T.R. 241 (F.C.T.D.) which is another military discharge case. Diotte was involuntarily released due to a history of difficulties with his superiors. Finally, a decision to release him was made by his commanding officer. Diotte and his "assisting officer" were orally advised of the recommendation and the reasons for it. They were told that it was being forwarded to the Release Authority for his approval. Diotte thought that he would be contacted for his submissions prior to the decision being made but he was not. The next he heard was the confirmation of his release. The report of the decision is not clear on the process followed but it does not appear that Diotte was put on notice and invited to make formal submissions as to the grounds of his release. In this case, Corporal Rockman was given formal notice of the risk of release and of the risk of adverse findings. He did make submissions and those submissions were before the Release Authority. This case is therefore also distinguishable.
[26] In the end result, the cases relied upon by Corporal Rockman do not go so far as to confer a right to make submissions directly to the Release Authority once the Career Review Board recommendations are known. They do support the proposition that a person whose rights are to be affected must be given a chance to be heard, though not necessarily in person. In this case, Corporal Rockman"s representations and those of his counsel were before the Career Review Board and before the Release Authority. While one can understand why Corporal Rockman would wish to deal with the Release Authority directly, it is not a failure of natural justice that he was not able to do so as long as his representations reached the Release Authority in their original form without having been modified or filtered by some intermediary. For that reason, this ground of review fails.
[27] The final ground of review is that the respondent did not comply with the Rules of Court as to the providing a certified copy of the material requested by a party. To the extent that this goes to the question of a tape recording, I have already found that there is no basis for believing that one exists. It is true that the return made by the "tribunal", which in this case is the Release Authority does not comply with the Rules but I find the non-compliance to be an irregularity which does not render these proceedings a nullity.
[28] In the end result, there will be an order dismissing the application.
ORDER
For the reasons set out above, the application is dismissed with costs to be assessed.
"J.D. Denis Pelletier"
Judge
APPENDIX 1
CFAO 19-21
Canadian Forces Drug Control Program
RELEASE POLICY
24. It is CF policy that, subject to paragraph 25 below, a member will normally be released where it is established with reasonable certainty that the member, while serving, contravened the Narcotic Control Act or the Food and Drugs Act.
25. A member will normally be retained on counselling and probation or report of shortcomings where it is established that all of the following conditions are applicable to that member"s involvement with drugs.
| a. the involvement was limited to use or possession for personal use; |
| b. the involvement constitutes the first recorded and documented involvement; |
| c. the involvement did not take place on duty or did not create an immediate danger to operational readiness, security or safety; |
| d. it is unlikely that there will be a repeat of unauthorized use or other illegal involvement; and |
| e. the member"s conduct and performance are otherwise satisfactory, and the member"s capacity for leadership is not compromised. |
26. If any one of the conditions mentioned in paragraph 25 above is not met, the member will normally be released.
RELEASE IN ABSENCE OF CONVICTION
32. A contravention of QR & O 20.04, the Narcotic Control Act or the Food and Drugs Act is normally substantiated by a conviction of a civilian court or service tribunal. A CO may, however, recommend release under this order in the absence of a conviction. This normally would occur where a member was not convicted of the charge due to matters that do not bring into question the nature of the act or the intention to commit it. For example, the charge may have been dismissed because of a delay in bringing the matter to trial. Such a recommendation may also be made where a decision
has been made not to lay a charge despite the existence of reliable and relevant evidence that a contravention has occurred. An example would be where the only evidence of unauthorized use of a drug was the result of a urine test that could not be used as evidence in disciplinary proceedings due to the restrictions in QR & O Chapter 20.
33. In those cases where there is no conviction to support a recommended release under this order, a Special Career Review Board for drug related incidents will be convened at NDHQ or the applicable command headquarters where paragraph 21 applies. This Board is in addition to the normal procedures that will take place where a contravention has been substantiated by a conviction. The Board will review all relevant material provided by the CO and the member and determine whether a contravention of QR & O 20.04, the Narcotic Control Act or the Food and Drugs Act has been established. When the Board has determined that a contravention has been established, normal staff action will take place on the basis of the Board"s finding and the material provided by the CO and the member.
__________________
1 I understand that my selection for FRP 96 may be cancelled before or after the effective date of my release if the releasing authority determines that I should be released from the CF under a more suitable release item than Item 5(c) as provided in CFAO 15-2.
2 Unsuitable for Further Service - Applies to the release of an officer or non-commissioned member who, either wholly or chiefly because of factors within his control, develops personal weaknesses or behaviour or has domestic or other problems that seriously impair his usefulness to or impose an administrative burden on the Canadian Forces. Queen"s Regulations and Orders, Article 15.01
3 CFAO 19-21 Article 24. See Appendix 1
4 CFAO 19-21 Section 32. See Appendix 1
5 CFA0 19-21 Section 33. See Appendix 1
6 Corporal Rockman had already been released from the Canadian Forces. The issue for him is release status but this is tied to the question whether he would have been released involuntarily.
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