Docket: T-273-15
Citation:
2016 FC 995
Ottawa, Ontario, August 31, 2016
PRESENT: The Honourable Madam
Justice Elliott
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BETWEEN:
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CAPTAIN JARET RENNIE
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Applicant
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and
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CHIEF OF DEFENCE STAFF OF THE
CANADIAN ARMED FORCES AND
DIRECTOR GENERAL CANADIAN
FORCES GRIEVANCE AUTHORITY
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Respondent
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JUDGMENT
AND REASONS
I.
Overview and Background
[1]
On the evening of July 16, 2011, Captain Jaret
Rennie [Capt. Rennie] was driving a rental car through a traffic circle in
Victoria, British Columbia, when he drove over the planter sidewalk and knocked
down several metal posts, causing approximately $7,700 in damage to the
vehicle. The RCMP was called, and they administered two roadside breath tests
through two separate Approved Screening Devices [ASD]. On each test, the ASD
indicated “Fail” which means that Capt. Rennie
had a blood alcohol concentration of one hundred milligrams of alcohol in one
hundred millilitres of blood or more: twenty milligrams over the legal limit in
subsection 253(1)(b) of the Criminal Code, RSC 1985, c. C-46. While
Capt. Rennie disputes the results of the ASD tests, he admits that he drank two
beers before driving that night.
[2]
Capt. Rennie’s collision set a number of
proceedings in motion:
1.
Because of provisions in British Columbia’s
Motor Vehicles Act, RSBC 1996, c 318, the RCMP officer on scene had to serve
Capt. Rennie with a notice of driving prohibition. This notice suspended Capt.
Rennie’s licence for ninety days. It also caused him to become liable for an
administrative monetary penalty. This provision has subsequently been struck
down by the Supreme Court of Canada: Goodwin v. British Columbia
(Superintendent of Motor Vehicles), 2015 SCC 46, aff’g Sivia v. British
Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79, aff’g 2011 BCSC
1783.
2.
From the record, it appears that Capt. Rennie
was subject to court martial for violating the Code of Service Discipline under
the National Defence Act, RSC 1985, c N-5 [National Defence Act], but
these charges were withdrawn or otherwise discontinued.
3.
Capt. Rennie was subject to an Administrative
Review under Defence Administrative Orders and Directives [DAOD] 5019-2, a
process that allows the chain of command to impose an administrative action—such
as a transfer, reprimand, or counselling—in response to findings of certain
types of misconduct. This Administrative Review concluded that Capt. Rennie had
violated the Criminal Code prohibition on driving while impaired and
that this constituted Alcohol Misconduct. A six-month term of Counselling and
Probation [C&P] was imposed as a result.
[3]
While there is no direct appeal route for an
Administrative Review, section 29 of the National Defence Act allows any
service member in the Canadian Forces to submit a grievance where there is no
other redress available. The grievance is investigated and if any error is
discovered, the error may be corrected. The grievance is first dealt with by
the grievor’s Commanding Officer or the relevant Director General at National
Defence Headquarters [Initial Authority]. If the grievor is unsatisfied with
the Initial Authority decision, he or she can appeal it to the Chief of Defence
Staff [CDS], who in turn may seek the non-binding recommendations of the
Canadian Forces Grievance Board [Grievance Board] (presently the Military
Grievance External Review Committee) before making a recommendation.
[4]
In this case, Colonel J.R.F. Malo [Col. Malo],
Director General of the Canadian Forces Grievance Authority, acted as Final
Authority for the CDS. As there were procedural deficiencies before the
Initial Authority and the Grievance Board, Col. Malo conducted a de novo
review of whether Capt. Rennie had committed Alcohol Misconduct and if so, what
the appropriate administrative action should be in response. In doing so, he
came to the same conclusions as the original Administrative Review: Capt.
Rennie had committed Alcohol Misconduct and the appropriate remedy was six
months of C&P. It is this decision that is under review.
[5]
Capt. Rennie argues that: (1) the hearing was
unfair; (2) Alcohol Misconduct can only be found if a person is actually convicted
of an offence under the Criminal Code; and (3) Col. Malo made a finding
of Alcohol Misconduct using the wrong standard of proof and based on unreliable
evidence that could not be tested. The CDS submits the evidence reasonably
satisfied the requisite standard of proof and reasonably supported a finding of
Alcohol Misconduct.
[6]
Capt. Rennie seeks: (1) an order quashing the
decision and substituting a finding that the penalty imposed was unwarranted
and should be removed from his record along with all related documents; (2) in
the alternative, an order quashing the decision and sending it back to be considered
as Conduct Deficiency Involving Alcohol for remedial measures, if any. The CDS
seeks a dismissal of the application for judicial review.
[7]
For the reasons that follow I have determined
that the Decision is reasonable and I dismiss the application.
[8]
Relevant excerpts of the various DAODs referred
to are contained in the attached Annex.
II.
The Decision Under Review
[9]
On January 12, 2015, Col. Malo rendered the
decision under review [Decision]. He found there was clear and convincing
evidence that the Applicant’s conduct on the evening of July 16, 2011
constituted Alcohol Misconduct, warranting administrative action.
[10]
Before making a decision on Capt. Rennie’s
grievance, the CDS made a discretionary referral to the Grievance Board. The
Grievance Board recommended that the Administrative Review decision be
overturned because:
1.
there was no proper evidence to conclude Capt.
Rennie had committed the offence of impaired driving. The Grievance Board took
the position that a finding of Alcohol Misconduct requires a criminal conviction,
rather than an independent assessment that the Criminal Code was
violated;
2.
the Administrative Review relied on the results
of the two ASD tests, but those tests would not be admissible evidence in a
criminal trial; and
3.
the grievance file did not contain any police
report, handwritten notes, witness statements or any other direct evidence
indicating that Capt. Rennie had committed Alcohol Misconduct.
[11]
After the Grievance Board recommendation was
issued, an analyst prepared a grievance synopsis for Col. Malo. In the course
of preparing the synopsis, the analyst discovered that the Initial Authority
and the Grievance Board did not have all the evidence that was before the
Administrative Review, particularly the RCMP report and the Military Police
report. She obtained this evidence and provided it to Capt. Rennie as part of a
disclosure package along with her analysis where she disagreed with the
Grievance Board and recommended that the Administrative Review decision be
upheld. Capt. Rennie submitted written representations about the newly
disclosed evidence on June 9, 2014.
[12]
In the Decision, Col. Malo began by confirming
that he had received no comments from Capt. Rennie about the F&R and that
he was considering the case de novo. He had reviewed the entire
grievance file including the further disclosure sent to Capt. Rennie who he
noted had provided further comments in response to that disclosure.
[13]
Col. Malo first dealt with whether it was
procedurally unfair that Capt. Rennie had not previously received the
disclosure of the police reports. Col. Malo acknowledged that the lack of
previous disclosure was an error but the additional evidence was disclosed by
the grievance analyst prior to the final hearing, and Capt. Rennie was given an
opportunity to evaluate and respond to it, which he did. Col. Malo confirmed he
considered those representations. Col. Malo found the procedural errors were
cured by the de novo review he conducted.
[14]
After referring to the background facts, Col.
Malo began his analysis by stating that he had to determine whether Capt.
Rennie’s actions met the definition of alcohol misconduct and whether issuing a
C&P was appropriate.
[15]
He then considered the Grievance Board position that
a conviction for impaired driving under the Criminal Code was a
prerequisite for a finding of Alcohol Misconduct. Turning to DAOD 5019-7, which
contains the process for an Alcohol Misconduct finding, Col. Malo determined
that “alcohol misconduct” requires establishing
that an individual “exhibited conduct that constitutes
an offence under the Criminal Code or the Code of Service Discipline”
but does not require an actual conviction for that offence. In doing so, he
relied on the fact that DAOD 5019-7 has two separate procedures, one dealing
with a member who has been tried for an offence and the other where the member
was not tried for the offence. He also found that unlike a criminal trial, a
finding of Alcohol Misconduct is based on the civil standard of proof on a
balance of probabilities, though DAOD 5019-7 stipulates that the evidence must
be clear and convincing.
[16]
Col. Malo reviewed the evidence that the
Grievance Board found was insufficient. He noted the RCMP and Military Police
accident reports had not been before the Grievance Board or the Initial
Authority. While that was an error, it was corrected by the subsequent
disclosure to Capt. Rennie and receipt of his further submissions prior to
consideration by Col. Malo.
[17]
Col. Malo concluded the evidence was clear and
convincing that Capt. Rennie engaged in conduct amounting to alcohol
misconduct, specifically impaired driving under subsection 253(1)(a) of the Criminal
Code, which made it an offence to operate a motor vehicle while his ability
to operate the vehicle was impaired by alcohol.
[18]
Col. Malo in coming to his conclusion accepted
the following as facts:
a. Early in the morning on 16 July 2011,
you were involved in a single motor-vehicle accident, where you failed to
properly navigate a traffic circle, driving up and over the planter sidewalk
and mowing over several metal posts, causing severe damage to the front of the
vehicle as well as to the undercarriage;
b. After being called by the paramedics, the West Shore RCMP
arrived;
c. In their report, the RCMP recorded that they were called to the
scene as a result of a complaint of a single-vehicle accident where Emergency
Health Services could smell alcohol coming from the only occupant, the driver;
d. The RCMP also reported that you were slurring your words and
that you said you had consumed two beers;
e. The RCMP noted they had spoken to an individual who had heard
the crash. The individual said that, upon exiting the vehicle, you told him you
had consumed several drinks;
f. The RCMP administered two ASD tests approximately three
minutes apart, using two different instruments;
g. You blew a “fail” on both tests; and
h. You admit to having consumed some alcohol prior to entering
your vehicle that evening.
[19]
Col. Malo noted that Capt. Rennie challenged the
accuracy of the ASD. He noted that Capt. Rennie insisted he was not impaired
and the law under which he received his notice of prohibition was quashed as
being unconstitutional. Col. Malo also noted the charges under the Code of
Service Discipline did not proceed to a trial and acknowledged there were
apparently some discrepancies in the ASD logs.
[20]
Col. Malo went on to say his role was not “to say whether or not, with these technical issues, you
would have been convicted of an offence”. He found his role was to weigh
the evidence and determine whether, on a balance of probabilities, Capt.
Rennie’s conduct constituted alcohol misconduct warranting a C&P. In determining
that it did, Col. Malo said:
The facts in your case depict a CAF member
who exhibited extremely poor judgement by consuming alcohol and then choosing
to operate a rented vehicle, resulting in a single-vehicle accident. Whether or
not your ASD results were accurate or slightly off, it is clear to me that you
had a sufficient amount of alcohol in your system that evening to affect your
judgement, as evidenced by the fact that you are unable to navigate a traffic
circle with no other vehicles in the vicinity.
. . .
I find that this behaviour required
immediate correction to ensure that it would never be repeated and I am
satisfied that this result has been achieved through the C&P. I understand
that you successfully completed your six-month monitoring and that you have
continued to meet the conditions of your C&P since that time.
[21]
On the issue of the appropriate administrative
action, Col. Malo found Capt. Rennie’s behaviour was not in keeping with
Canadian Armed Forces values and it required immediate correction to ensure it
would never be repeated. Col. Malo noted that Canadian Forces General Message
148-10 which accompanied the release of DAOD 5019-7 stated that the minimum
remedial measure for Alcohol Misconduct will normally be C&P. Col. Malo found
there did not appear to be any compelling circumstances that would warrant
downgrading the minimum remedial measure nor, based on the evidence, was he
prepared to quash the C&P.
III.
Issues and Standard of Review
A.
Issues
[22]
The issues as set out by counsel for Capt.
Rennie are whether Col. Malo erred in:
a. The
administrative action selected;
b. Considering
unreliable and inadmissible evidence;
c. Applying the
incorrect standard of proof; and
d. Providing
inadequate reasons.
[23]
While ultimately the parties agree one of the
issues is whether the Decision was reasonable, Capt. Rennie also submits there is
an issue of natural justice and procedural fairness relating to the evidence
considered by the Col. Malo.
B.
Standard of Review
[24]
The CDS in determining which administrative
action to apply is interpreting DAOD 5019-7, which is within his home statute.
His finding involves questions of fact and questions of mixed fact and law. The
standard of review is reasonableness: Moodie v Canada (Attorney General),
2015 FCA 87 at para 51; Alberta (Information and Privacy Commissioner) v
Alberta Teachers’ Association, 2011 SCC 61 at para 34.
[25]
The issue of whether evidence that was unreliable
and inadmissible was considered has two aspects. One is the allegation by Capt.
Rennie that it was procedurally unfair to consider such evidence. Issues of
procedural fairness are reviewable on the correctness standard: Mission
Institution v Khela, 2014 SCC 24 at para. 79. The other aspect is that this
is an administrative tribunal decision and hearsay evidence is admissible
subject to the decision-maker determining the appropriate weight to be assigned
to it: Cambie Hotel (Nanaimo) Ltd. v British Columbia (General Manager,
Liquor Control and Licensing Branch), 2006 BCCA 119 at paras 28 and 35; Canadian
Recording Industry Association v. Society of Composers, Authors and Music
Publishers of Canada, 2010 FCA 322 at paras 20 – 22.
[26]
If the evidence was not relevant or reliable, receiving
it was procedurally unfair and the decision must be set aside. If it was relevant
and reliable then how it was assessed is part of the reasonableness review of
the Decision.
[27]
Whether Col. Malo’s reasons were inadequate is
reviewable on a standard of reasonableness: Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62 [Nfld.
Nurses’] paras 14 and 22.
[28]
In conducting a reasonableness review a
reviewing court should look to both the process of articulating the reasons and
to outcomes. If the decision-making process is justified, transparent and
intelligible and the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law then it is
reasonable: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.
Further, the reasons themselves need not include all the arguments, statutory
provisions or jurisprudence: Nfld. Nurses’ at para 16. If the reasons
allow the reviewing court to understand why the tribunal made its decision and
permit it to determine whether the conclusion is within the range of acceptable
outcomes, the Dunsmuir criteria are met.
IV.
Positions of the Parties and Analysis
A.
The Administrative Action Selected
(1)
Capt. Rennie’s Position
[29]
Capt. Rennie argues that C&P was not an
appropriate administrative action, in part because it was based on a finding of
Alcohol Misconduct rather than Conduct Deficiency Involving Alcohol. The
difference between the parties is a fundamental one. Capt. Rennie believes, as
stated by the Grievance Board, that unless he is convicted of the criminal
offence of impaired driving he cannot be guilty of Alcohol Misconduct. He was
neither charged with, nor convicted of, impaired driving. Instead, the RCMP
levied sanctions based on British Columbia provincial law.
[30]
Because Capt. Rennie was only found to have
violated provincial law, he submits that the only available finding under DAOD
5019-7 is the lesser one of Conduct Deficiency Involving Alcohol, which contemplates
a provincial offence rather than criminal offence and generally results in a
less severe administrative action. He says the only rationale provided by Col.
Malo for accepting Alcohol Misconduct as an appropriate classification was that
Capt. Rennie’s conduct could possibly fall under section 253(1)(a) of the
Criminal Code because he admitted to having consumed alcohol earlier that
evening. Capt. Rennie maintained that he was not intoxicated and, he alleges,
there were no other reasonable indicators of alcohol impairment.
[31]
Capt. Rennie also submits that DAOD 5019-2,
which governs selection of the appropriate administrative action, requires the
consideration of various factors such as the member’s length of service, any
previous conduct deficiencies and the leadership role played by the member none
of which were considered by Col. Malo. He also says DAOD 5019-2 provides that a
remedial measure of a C&P is normally part of progressive disciplinary
action and it should be awarded only in exceptional circumstances that were not
present in his case.
(2)
Position of the CDS
[32]
The CDS says the choice of appropriate
administrative action arises under several DAODs all of which are issued under
his authority and are within his specific area of expertise. His interpretation
is therefore subject to a reasonableness review. He notes that in Rompré v
Canada (Attorney General), 2012 FC 101 at para 49 [Rompré], the
Court said it must show deference to discretionary decisions of the CDS in
determining the merits of grievances “because of his
in-depth knowledge of the military environment and its operations”.
[33]
The CDS notes DAOD 5019-0 addresses Conduct and
Performance Deficiencies. It requires the chain of command to take appropriate
action if a member demonstrates deficiencies in either area. The actions can be
either disciplinary under the Code of Service Discipline or, administrative,
being a remedial measure imposed pursuant to DAOD 5019-4. DAOD 5019-7 is an
instructional order dealing with conduct involving alcohol. Under DAOD 5019-7
C&P is an acceptable outcome whether the conduct involved was Alcohol
Misconduct or Conduct Deficiency Involving Alcohol. As a result, the CDS argues
that acting as FA Col. Malo made a reasonable finding within the range of
possible, acceptable outcomes.
(3)
Analysis
[34]
There are two streams in the CF in which conduct
may be reviewed: the discipline stream and the administrative stream. The
discipline stream is governed by Part III of the National Defence Act.
It includes the Code of Service Discipline within which is the provision for
trial by Court Martial and appeals to the Court Martial Appeal Court. The
administrative stream is governed by DAODs which are part of the Policies and
Standards issued by or under the authority of the Deputy Minister of Defence
and the Chief of Defence Staff.
[35]
In considering the definition of Alcohol
Misconduct, both the Grievance Board and Capt. Rennie place their emphasis on
the words “is an offence under the Criminal Code”.
Col. Malo as FA and the DMCA as IA however emphasize the word “conduct”.
[36]
DAOD 5019-0 addresses Conduct and Performance
Deficiencies. It contains the policy direction that “CF
members shall be held accountable for any failure to meet established standards
of conduct and performance resulting from factors within their control.”
If a CF member demonstrates conduct or performance deficiencies, DAOD 5019-0
states the appropriate action may involve disciplinary or administrative action
or both.
[37]
DAOD 5019-7 is entitled “Alcohol
Misconduct”. It sets out a Standard of Conduct that is simple: “No CF member shall engage in alcohol misconduct.” The
definition of Alcohol Misconduct states that “Alcohol
misconduct means any conduct, other than a CDIA, that is an offence under the
Criminal Code or the Code of Service Discipline that includes the consumption
or influence of alcohol as an element of the offence or as a contributing
factor”.
[38]
Alcohol Misconduct is also addressed under DAOD
5019-2 which governs an Administrative Review. It provides that an
Administrative Review is to be held to determine the most appropriate administrative
action when an incident occurs that calls into question the viability of a
member’s continued service.
[39]
When DAOD 5019-7 was released it was accompanied
by a general message underscoring the significance of the new policy addressing
Alcohol Misconduct. The second paragraph states:
ALCOHOL ABUSE AND ALCOHOL DEPENDENCE LEAD TO
BEHAVIOUR THAT REFLECTS DISCREDIT ON THE CF AND ARE THEREFORE NOT TOLERATED.
ANY CF MEMBER WHO ENGAGES IN ALCOHOL MISCONDUCT IS LIABLE TO DISCIPLINARY AND
ADMINISTRATIVE ACTION (AA), INCLUDING RELEASE FROM THE CF
(uppercase letters in original)
[40]
To underscore the importance of the new policy
on Alcohol Misconduct , the message also stated in paragraph 4 that:
IF DMCA DETERMINES THAT AN AM OCCURRED, THE
MINIMUM REMEDIAL MEASURE IMPOSED WILL NORMALLY BE COUNSELLING AND PROBATION (C AND
P). AM OR CDIA SUBSEQUENT TO C AND P WILL NORMALLY RESULT IN COMPULSORY RELEASE
FROM THE CF
(uppercase letters in original)
[41]
Under “Process for
Alcohol Misconduct”, DAOD 5019-7 stipulates in sub-heading “CF Member Not Tried for an Alcohol Misconduct Offence”
that where no trial is held (either under the Code of Service Discipline or the
Criminal Code) the Commanding Officer is required to forward to the Director
of Military Careers Administration all information concerning the incident
together with any conduct sheet concerning the member and a recommendation,
with explanation, as to the administrative action, if any, that should be
imposed. In my view this very clearly contemplates that an administrative
action can be imposed in the absence of a criminal trial. Consequently, it was
reasonable for the CDS to find that he could make an Alcohol Misconduct finding
without Capt. Rennie being convicted of impaired driving.
[42]
In my view, on review of the DAODs and the
reasons given by the Col. Malo, he reasonably concluded that the appropriate
administrative action was C&P given that it is stipulated in the general
message as the minimum remedial measure for Alcohol Misconduct and he
reasonably concluded in light of DAOD 5019-7 that a criminal conviction is not
required in order to sustain a determination that alcohol misconduct occurred.
B.
Consideration of Unreliable and Inadmissible
Evidence
(1)
Capt. Rennie’s Position
[43]
Capt. Rennie says the ASD tests are unreliable
because the regime under which they were administered was deemed to be unconstitutional.
The result, he says, is the evidence of the ASD test results should have been
given no weight. However, Capt. Rennie argues that only the ASD results
were given any weight and no reference was made to consideration or weight
placed on any other evidence than the ASD results and the Reports.
[44]
Capt. Rennie also criticizes the grievance analyst
for not conducting a criminal records background check of him and for not
contacting the police officers or other witnesses for interviews or to obtain
sworn statements. He objects that her analysis relied on evidence that was not
tested for its veracity. This, he submits, was procedurally unfair to him.
(2)
Position of the CDS
[45]
Counsel for the CDS says the evidence upon which
he relied as outlined in his decision meets the clear and convincing test in an
administrative context where the standard is a balance of probabilities and the
standard for admissibility is lower than in a criminal context. Given that DAOD
5019-4 is intended to assist a member in overcoming a conduct issue and is not
designed to punish behaviour, he says the criminal standard of proof beyond a
reasonable doubt is not applicable. Evidence that is inadmissible in the
criminal context may be admissible in an administrative proceeding where the
standard of admissible evidence is lower.
[46]
The CDS states the situation in a conduct matter
such as this is that of an employer reviewing the conduct of an employee and
determining how best to manage the conduct. As there is a serious possible
consequence of release from the CF, the quality of evidence is to be clear and
convincing but the standard of proof is not altered from a balance of
probabilities. Counsel points to the amount of evidence that was before Col.
Malo who says he was not required to determine whether Capt. Rennie would have
been convicted of an offence under the Criminal Code. He was to weigh the
evidence and determine on a balance of probabilities whether Capt. Rennie’s “conduct constituted alcohol misconduct warranting a C&P”.
(3)
Analysis
[47]
Capt. Rennie relies on the Grievance Board reasons
to urge a standard of proof and quality of evidence that is found in a criminal
trial. The Grievance Board disparages the “folly of
trying to ascribe criminal conduct to a member in an administrative forum”.
The Grievance Board equates a fair process using reliable evidence with the
need to be able to test the evidence and says that hearsay and unsworn
statements are not acceptable even though the grievance review is an
administrative process.
[48]
The two ASD tests are the primary target of the
unreliability allegation. Capt. Rennie’s representations to the IA outlined his
concerns about the test results:
The “breath samples” described do not
constitute clear and convincing evidence. There is no evidence that the devices
were correctly calibrated, no evidence that a procedure was followed that would
inhibit factors that would cause error (liquid alcohol in the mouth) and there
was no opportunity for me to challenge these results.”
[49]
While Capt. Rennie points to the
unconstitutionality of British Columbia’s automatic roadside prohibition
scheme, he uses this only indirectly to argue that the ASD is too unreliable to
serve as the foundation for an Alcohol Misconduct finding. At no point did
Capt. Rennie apply to either this Court or the CDS to have the ASD results
excluded pursuant to section 24(2) of the Canadian Charter of Rights and
Freedoms.
[50]
However, even if the ASD results had been
excluded, it would not matter: the ASD results are not necessary to come to a
finding of impaired driving, and in fact Col. Malo did not rely on the ASD
results in coming to that finding.
[51]
It is important to note that the Alcohol
Misconduct finding was not based on subsection 253(1)(b) of the Criminal
Code, which makes it an offence to operate a motor vehicle with a blood
alcohol concentration of more than eighty milligrams of alcohol per one hundred
millilitres of blood. Rather, the finding was based on subsection 253(1)(a),
which makes it an offence to operate a motor vehicle with any
concentration of alcohol, so long as that alcohol impairs a person’s ability to
operate a motor vehicle.
[52]
The test for impaired driving is set out in R.
v. Stellato (1993), 12 OR (3d) 90 (CA), aff’d [1994] 2 S.C.R. 478 [Stellato].
The provision does not require a minimum blood alcohol concentration, or a
marked departure from sober behaviour. Rather, a trial judge must only find
that an accused person’s ability to operate a motor vehicle is impaired by
alcohol, no matter how slight that impairment is. In R. v. Andrews, 1996
ABCA 23, the Alberta Court of Appeal pointed out that while a marked departure
from sobriety is not a part of the offence, in determining what sort of
evidence can convince a court beyond a reasonable doubt of impairment,
observation of behaviour that deviates markedly from normal can be helpful.
[53]
To conclude that Capt. Rennie committed Alcohol
Misconduct, Col. Malo only needed to find on the balance of probabilities that
Capt. Rennie’s ability to operate a motor vehicle was impaired to any extent,
and that this impairment was caused by alcohol.
[54]
Col. Malo did not need to come to this
conclusion based on the ASD test results. The ASD test results were not the
only evidence. The occurrence of the accident was a fact. The extensive damage
to the vehicle was a fact. That the vehicle ran over the traffic circle
sidewalk and knocked down several metal posts was a fact. That Capt. Rennie
consumed at least two beers before driving was an admitted fact. Given the
severity of this one-driver accident, it was open to Col. Malo to find a
departure from sober behaviour that could indicate impairment. It was also open
to Col. Malo to reject Capt. Rennie’s explanation that the collision occurred
because of unfamiliarity with the rental car and area and instead find, on the
balance of probabilities, that it was evident that Capt. Rennie’s alcohol
consumption had impaired his ability to operate a motor vehicle.
[55]
This is, in fact, what happened. Col. Malo did
not make his finding based on the ASD results, but based on Capt. Rennie’s
demonstrated driving behaviour:
Whether or not your ASD results were
accurate or slightly off, it is clear to me that you had a sufficient amount of
alcohol in your system that evening to affect your judgement, as evidenced
by the fact that you are unable to navigate a traffic circle with no other
vehicles in the vicinity.
(my emphasis)
C.
Improper Standard of Proof
(1)
Capt. Rennie’s Position
[56]
Capt. Rennie submits that the requirement in
DAOD 5019-7 of clear and convincing evidence for a finding of Alcohol Misconduct
means the standard of proof is higher than a “simple”
balance of probabilities. He criticizes the Initial Order for misstating the
test as a balance of probabilities. He also submits Col. Malo failed to
appreciate the higher standard mandated by the words clear and convincing: Applicant’s
Memorandum of Fact and Law at para 66.
[57]
Capt. Rennie also argues that he was subjected
to a reverse onus and was required to show he was not impaired by alcohol
rather than the CF being required to show he was so impaired.
(2)
Position of the CDS
[58]
The CDS submits that when Capt. Rennie says a
criminal conviction is required to find Alcohol Misconduct, he is not
recognizing the distinction between the standard of proof in a criminal matter
and proof in an administrative matter. DAOD 5019-7 states the evidence must be
clear and convincing but the standard of proof is a balance of probabilities.
In that regard, whether Capt. Rennie was convicted or even tried in a criminal
court is irrelevant.
(3)
Analysis
[59]
Capt. Rennie’s arguments regarding the quality
of evidence and the standard of proof are intertwined. I am addressing them
nonetheless as separate arguments since he has presented the issues separately.
[60]
The only standard of proof in civil matters is
proof on a balance of probabilities. In F.H. v. McDougall, 2008 SCC 53 [McDougall],
Mr. Justice Rothstein considered the nature of evidence and the relationship of
evidence to the standard of proof in a civil case in which, as here, there was
also conduct that was criminal or morally blameworthy. He said at paragraph 40,
“it is time to say, once and for all in Canada, that
there is only one civil standard of proof at common law and that is proof on a
balance of probabilities”. To satisfy proof on the balance of probabilities,
the evidence must be scrutinized and found to be clear, convincing and cogent.
Context is important as the inherent probabilities or improbabilities of the
allegations or the seriousness of the consequences may impact how the standard
of proof is met. The evidence must be scrutinized with care to determine
whether it is more likely than not that an alleged event occurred: paras 40, 46
and 49.
[61]
Col. Malo expressly rejected the Grievance Board
position that proof beyond a reasonable doubt was required. He found DAOD
5019-7 requires proof on a balance of probabilities and, when more serious
allegations are involved, requires the evidence to be “clear
and convincing”.
[62]
I am satisfied Col. Malo identified and applied
the correct standard of proof. Col. Malo specifically recognized that he had to
apply the balance of probabilities and that the evidence had to be clear and
convincing. The evidence upon which Col. Malo relied to arrive at his decision
was all undisputed. He found it to clearly and convincingly show Capt. Rennie’s
ability to operate a motor vehicle was impaired.
[63]
In McDougall, one of the questions was,
if a judge failed to apply the correct standard of proof how would such failure
be apparent in the reasons? The answer by Mr. Justice Rothstein at paragraph 54
was, “[w]here the trial judge expressly states the
correct standard of proof, it will be presumed that the correct standard was
applied because judges are presumed to know the law with which they work day in
and day out.” Although Col. Malo was not acting as a trial judge, he is
a recognized expert with in-depth knowledge of the military environment and its
operations as established in Rompré. As such, he knows the law with
which he works day in and day out.
[64]
Capt. Rennie also submits he was subject to a
reverse onus. The Grievance Board agreed in relation to the Administrative
Review. However, it is Col. Malo’s de novo hearing, not the
Administrative Review, that I am reviewing. Capt. Rennie’s counsel in oral
argument said that the smell of alcohol and an admission of drinking is not
evidence of impairment. But Col. Malo did not need to rely on that evidence to
establish impairment. Capt. Rennie’s admission that he drank two beers before
driving was sufficient for Col. Malo to conclude that Capt. Rennie’s impairment
was caused by alcohol. Col. Malo drew an inference from Capt. Rennie’s driving
that he was impaired, because he believed that Capt. Rennie’s alcohol
consumption was the most likely explanation for his driving. It is not a
reverse onus to rely on that inference in the absence of any evidence—other
than a bald claim that Capt. Rennie was unfamiliar with the vehicle and
area—that could establish an alternate explanation for the collision.
D.
Failure to Provide Adequate Reasons
(1)
Capt. Rennie’s Position
[65]
Capt. Rennie objects to the reasons as they fail
to specifically address the weight given to the evidence, his exemplary record
and the choice of administrative action. Capt. Rennie submits his record was
not taken into account and the reasons fail to take into account the factors
outlined in DAOD 5019-7 or to weigh the evidence. This is particularly
important as Capt. Rennie had an unblemished service record and the negative
consequences of the C&P have been serious. He cites the Grievance Board’s
findings that “there should be a very high standard of
procedural fairness and actual clear and convincing evidence when a member’s
career progression and very future in the CF is at stake, as it is for the
grievor in this case.”
[66]
Capt. Rennie refers to DAODs 2017-1 and 5019-2
that together address the need to provide written reasons addressing all
relevant issues and enable the member to understand why the administrative
action was imposed. He says as his record was not taken into account but he was
cited for exercising lack of judgment the Decision does not comply with the
DAODs, including DAOD 5019-4 on remedial measures.
(2)
Position of the CDS
[67]
Counsel for the CDS submits Col Malo reviewed
Capt. Rennie’s record, leadership service and previous service when he
explained why C&P was justified. He says the decision is intelligible as it
is neither confusing nor unclear and it should be clear to Capt. Rennie that
his poor judgment was a reason for rejecting his grievance.
[68]
The CDS also relies on comments by Mr. Justice
Binnie in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 59, to the effect that reviewing courts cannot substitute their own
appreciation of the appropriate solution. There may be more than one such
solution as long as the process and outcome fit comfortably with the Dunsmuir
criteria.
(3)
Analysis
[69]
DAOD 2017-1 stipulates that before determining a
grievance that has been referred to the Grievance Board, the Final Authority
must disclose the synopsis and any new evidence, consider relevant documents
and information, consider any representations by the grievor post-disclosure,
determine the grievance and advise in writing of his decision, with reasons.
Where a finding or recommendation of the Grievance Board is not acted upon,
reasons must be provided.
[70]
My review of the record satisfies me that all
these requirements were met by Col. Malo. A synopsis was prepared and disclosed
to Capt. Rennie together with the late evidence; all documents, including his
personnel record and many letters and evaluations referencing Capt. Rennie’s
exemplary prior performance were in the grievance file as were all
representations. Where Col. Malo disagreed with the Grievance Board, he
explained why he disagreed. The decision, with reasons, was provided to Capt.
Rennie. That Capt. Rennie disagrees with the outcome does not mean the DAOD was
breached.
[71]
DAOD 5019-2 addresses the procedural aspects of
the Administrative Review. It does not apply to the grievance. The
Administrative Review was done by the Director Military Careers Administration.
In finding Alcohol Misconduct and imposing Counselling & Probation as the
appropriate administrative action, the reasons set out the evidence relied
upon, the standard of proof, the determination that a court finding of criminal
charges was not required and, in compliance with DAOD 5019-2, the reason for
imposing the administrative action.
[72]
As Col. Malo conducted a de novo review,
I will nonetheless consider whether he provided sufficient reasons per DAOD
5019-2 for upholding the Counselling & Probation administrative action.
[73]
Col. Malo’s reasons leave no doubt as to why he
upheld the finding and administrative action. Col. Malo clearly set out that
the circumstances of the incident, the directive in the general message stipulating
Counselling & Probation as the minimum remedial measure for Alcohol
Misconduct and that Capt. Rennie’s “extremely poor
judgment” on the night in question were the reasons for considering Counselling
& Probation. Col. Malo also said Capt. Rennie’s behaviour showed a “serious shortcoming” and the repercussions could have
been grave. His behaviour was found not to be in keeping with Canadian Armed
Forces values and it required immediate correction.
[74]
Reasons need not make an explicit finding on
each constituent element leading to their final conclusion. The validity of
either the reasons or the result is not impugned by such a failure: Nfld.
Nurses’ at para 16. Col. Malo found there were no compelling circumstances
to warrant downgrading the Counselling & Probation to a lesser remedial
measure. He noted he was confident that Capt. Rennie’s conduct deficiency had
been overcome. He commended Capt. Rennie for his “dedication
to continuing a productive and upstanding career with the CAF.” This
latter reference indicates Col. Malo considered the positive letters of
reference and Capt. Rennie’s excellent prior personnel record. No further
comment was necessary.
[75]
In my view, the de novo hearing coupled
with the lack of new information in the Reports was more than sufficient to
cure any procedural defect that otherwise might have been caused by the late
disclosure. Col. Malo directly addressed the late disclosure in his reasons. He
noted that Capt. Rennie was given the Reports and provided with the opportunity
to make representations, which he did make. He confirmed that he was
considering the matter de novo and had received and considered Capt.
Rennie’s additional submissions together with the entire grievance file.
[76]
In Walsh v Canada (Attorney General),
2015 FC 775, Mr. Justice de Montigny, as he then was, held at para 51 that “the thrust of the Federal Court of Appeal in McBride is that
a de novo review will be sufficient to cure a breach of
procedural fairness when the procedure, considered as a whole, was fair.”
Considered as a whole, Capt. Rennie was provided with ample opportunity to
plead his case. He made submissions not only to the Final Authority but
throughout the entire process starting with the Administrative Review. Once the
Reports were disclosed, Capt. Rennie was given ample time to perfect the
grievance file before it was sent to Col. Malo for a decision. I note that Capt.
Rennie has not pointed to any information in the Reports that was not
previously known to him either from actual events, prior disclosures or through
the discontinued discipline process.
[77]
I am satisfied that the reasons provided by Col.
Malo meet the Dunsmuir criteria. In that respect I am also mindful of
the Supreme Court’s endorsement in Nfld. Nurses’ of the following
extract from Professor Dyzenhaus:
“Reasonable” means here that the reasons do in fact or in principle
support the conclusion reached. That is, even if the reasons in fact given do
not seem wholly adequate to support the decision, the court must first seek
to supplement them before it seeks to subvert them. For if it is right that
among the reasons for deference are the appointment of the tribunal and not the
court as the front line adjudicator, the tribunal’s proximity to the dispute,
its expertise, etc, then it is also the case that its decision should be
presumed to be correct even if its reasons are in some respects defective.
[Emphasis added.]
V.
Summary and Conclusion
[78]
Whether the circumstances of the incident could
fall within the definition of an alcohol-related offence, and thereby be
considered Alcohol Misconduct is within the expertise of Col. Malo. He found,
on the administrative standard of a balance of probabilities and not on the
higher standard suggested by the Capt. Rennie and the Grievance Board, that the
conduct of Capt. Rennie constituted impaired driving under subsection 253(1)(a)
of the Criminal Code. The facts upon which he relied reasonably lead to
that conclusion.
[79]
Col. Malo considered the conduct of Capt. Rennie
in driving after consuming alcohol and considered the extent of the accident.
He then determined there was clear and convincing evidence that Capt. Rennie operated
a motor vehicle while his ability to do so was impaired by alcohol. In arriving
at that conclusion Col. Malo did not rely on the results of the two ASD tests
nor on any hearsay evidence. He relied only on undisputed or admitted facts.
[80]
When Col. Malo determined that Alcohol
Misconduct had been established and confirmed Counselling & Probation as
the appropriate Remedial Measure, he was interpreting several DAOD’s ranging
from Conduct and Performance to Administrative Review and Alcohol Misconduct.
The DAOD is an administrative order applying to all members of the Canadian
Forces. It is without doubt one of the ‘home statutes’ for which Col. Malo is
responsible as the delegate of the CDS. As such, I am mindful that Madam
Justice Abella has instructed reviewing courts when giving deference to a
decision-maker to give “a respectful appreciation that
a wide range of specialized decision-makers routinely render decisions in their
respective spheres of expertise, using concepts and language often unique to
their areas and rendering decisions that are often counter-intuitive to a
generalist”: Nfld. Nurses’ at para 13.
[81]
I am satisfied from my review of the record and
the reasons of Col. Malo that the Decision is reasonable. It meets the Dunsmuir
criteria of being justified, intelligible and transparent as well as being
defensible on the facts and law with a result that falls within the range of
possible, acceptable outcomes.
[82]
The application is dismissed.
[83]
Neither party having sought costs, none are
awarded.
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