Date: 20120123
Docket: A-264-11
Citation: 2012 FCA
23
CORAM: PELLETIER J.A.
GAUTHIER J.A.
MAINVILLE J.A.
BETWEEN:
JORDAN
J. MCBAIN
Appellant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Ottawa,
Ontario, on January 11,
2012.
Judgment delivered
at Ottawa, Ontario, on January 23, 2012.
REASONS FOR JUDGMENT BY:
PELLETIER J.A.
CONCURRED
IN BY:
GAUTHIER J.A
MAINVILLE J.A.
Date: 20120123
Docket:
A-264-11
Citation: 2012 FCA 23
CORAM: PELLETIER
J.A.
GAUTHIER
J.A.
MAINVILLE
J.A.
BETWEEN:
JORDAN J.
MCBAIN
Appellant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT
PELLETIER
J.A.
[1]
While
Mr. McBain was a member of the Canadian Forces, the Director Military Careers
Administration and Resource Management (DMCARM) placed him on Counselling and
Probation as a result of his illicit use of anabolic steroids. One of the
steps leading to that disposition was an order by Mr. McBain’s Commanding
Officer requiring him to provide a urine sample for testing. The test
confirmed his use of steroids. However, before the test results were known,
Mr. McBain wrote to his Commanding Officer and admitted to his use of
steroids. This admission was known to the DMCARM at the time he made his
decision.
[2]
The
order made by the DMCARM was an administrative disposition of a matter that
could have otherwise been the subject of disciplinary proceedings.
[3]
Mr.
McBain, who is self-represented, grieved both the decision ordering him to
produce a urine sample and the subsequent decision placing him on Counselling
and Probation. This grievance was ultimately disposed of by the Final Grievance
Authority, which dismissed Mr. McBain’s grievance. Mr. McBain then brought an
application for judicial review of the Final Grievance Authority’s decision to
the Federal Court. Mr. McBain’s application for judicial review was also
dismissed in a decision reported as McBain v. Canada (Attorney
General),
2011 FC 745, [2011] F.C.J. No. 939. A full
review of the facts of the case can be found in the Federal Court’s decision.
Mr. McBain now appeals to this Court.
[4]
Mr.
McBain’s grievance attacked both the order that he provide a urine sample, as
well as the DMCARM’s recognition of his drug use and the resulting
administrative decision to place him on Counselling and Probation. In my
view, Mr. McBain’s grievance is, in substance, an attempt to expunge from his record
the findings related to his drug use as reflected in the decision placing him
on Counselling and Probation. The basis of his grievance is that the order
requiring him to provide a urine sample for testing was made in breach of his
rights and so the results of this test cannot be used to justify any subsequent
administrative or disciplinary measures.
[5]
Mr.
McBain’s attack upon the order requiring him to provide a urine sample is
two-pronged. He alleges that there was a denial of procedural fairness in the
process leading up to the making of the order. That denial, in turn, has two
components: on the one hand, institutional bias and a reasonable apprehension
of bias on the part of his Commanding Officer who made the order, and, on other
hand, a lack of disclosure prior to the making of that order. The
institutional bias arises from his Commanding Officer allegedly both ordering
the investigation with respect to his drug use, and then ruling on the adequacy
of the evidence disclosed by that investigation as a basis for ordering Mr.
McBain to provide a urine sample. The allegation of a reasonable apprehension
of bias is based on the same facts, considered from the point of view of
whether a reasonable bystander, fully informed of the circumstances, would
conclude that the Commanding Officer had approached the issue of the adequacy
of the evidence with an open mind.
[6]
The
argument with respect to inadequate disclosure is based on the failure of those
in charge to disclose to him certain bizarre allegations apparently made by the
person who alleged that Mr. McBain was engaged in illicit drug use. Had this
information been disclosed to him, Mr. McBain says, he could have used it to
challenge the credibility of the person whose evidence the Commanding Officer
relied upon in ordering him to provide a urine sample. Mr. McBain also
complains that a DVD of the Military Police’s interview with another witness
was lost, so that he was denied the opportunity to use this DVD in challenging
the credibility of that witness.
[7]
The
difficulty with these arguments is that the DMCARM’s decision was explicitly
based upon Mr. McBain’s own admission as to his drug use: see Appeal Book page
364. Consequently, even if Mr. McBain is correct with respect to all of the
procedural fairness arguments he raises, a matter on which we express no
opinion, the DMCARM was nonetheless entitled to recognize his drug use and to
place him on Counselling and Probation.
[8]
In
his representations before the Final Grievance Authority, Mr. McBain attempted
to show that his admission was either involuntary, or the result of undue
influence. The Final Grievance Authority ruled against Mr. McBain on these
issues, as did the Applications Judge. Since these issues involve
determinations of fact or mixed fact and law, they are subject to review on a
standard of reasonableness. I am satisfied that the Final Grievance
Authority’s ruling on these points is reasonable. I can only add that, having
read the letter in which Mr. McBain admits to his drug use, it impresses me as
having been written by a person in possession of his faculties. It may be true
that Mr. McBain subsequently experienced difficulties that resulted in his
receiving a psychiatric assessment, if not a brief period of psychiatric care,
but those circumstances, in and of themselves, are not sufficient to raise a
credible doubt as to the reliability of Mr. McBain’s admission.
[9]
In
the circumstances, I would dismiss Mr. McBain’s appeal.
[10]
Mr.
McBain does not seek costs and asks that costs not be awarded against him on
the basis that he is a person of limited means, currently engaged in doctoral
studies requiring all of his resources. While I am sympathetic to Mr. McBain’s
position, I can see no reason to depart from the general rule that costs follow
the event. That said, and having regard to the fact that Mr. McBain is already
subject to an order for costs in the amount of $5,000, I would order costs on a
lump sum basis in the amount of $2,500, inclusive of disbursements.
"J.D.
Denis Pelletier"
“I
agree.
Johanne Gauthier J.A.”
“I
agree.
Robert M. Mainville J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-264-11
STYLE OF CAUSE: Jordan
J. McBain and The Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 11, 2012
REASONS FOR JUDGMENT BY: Pelletier J.A.
CONCURRED IN BY: Gauthier J.A.
CONCURRING REASONS BY: Mainville J.A.
DISSENTING REASONS BY:
DATED: January 23, 2012
APPEARANCES:
|
Jordan J. McBain
|
FOR
THE APPELLANT
(self-represented)
|
|
Craig Collins-Williams
|
FOR
THE RESPONDENT
|
SOLICITORS OF RECORD:
|
N/A
|
FOR
THE APPELLANT
(self-represented)
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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