Eye In The Sky
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Brihard said:Regarding releasing these individuals from CAF, procedural fairness, due process, etc... There's a different standard applied to terminating employment than there is to being charged with an offense. It's very much in CAF's (and arguably Canada's) interest to be able to efficiently release people from military service who don't serve the unique needs thereof, or who are otherwise an undue liability or administrative burden. The courts have tested the administrative release process, and it holds up. Given the real security concerns attendant to people who have extremist political views of any bent, I think it's necessary and appropriate that the upper chain of command support and champion efforts to clear the ranks of those with an ethos contradictory to what the military requires. Bear in mind that any further obstacle to releasing these members who apply equally to those we might categorize as '****birds', the guys who all have known and worked with who just shouldn't be in but have somehow not quite yet managed to get kicked out. These are still individuals that take up positions, that create administrative burdens, and that harm the efficiency and effectiveness of the total force. Some greater degree of protection of extremists from the consequences of their choices would also extend protections to all of these other individuals. Just bear that in mind. Any employer, generally speaking, can with sufficient documentation properly articulate and defend the termination of employment of someone who is known to espouse and/or act on views contrary to the employers principles and ethics.
Regarding my earlier posts, mainly I just wanted to point out those excerpts are all from the CF Administrative Law Manual; it holds many more details, case law, etc on the subj and does also talk about the "standard of proof" topic as well.
Chap 2, Sect 4, Para's 52-53
Standard of Proof for Decision-Makers
52. Those CF personnel who have completed the Presiding Officer Certification Training (POCT) course have been exposed to the concept of applying a ‘standard of proof’ when making a decision with significant consequences to the subject of the decision. As emphasized in that course, an individual cannot be convicted of a criminal or service offence unless the presiding officer is convinced “beyond a reasonable doubt” that the accused committed the offence.59 In civil cases, the standard is somewhat lower (i.e., the decision-maker(s) must be satisfied on a ‘balance of probabilities’ that an incident occurred). An equivalent phrase that is used is ‘based on the preponderance of evidence.’ Generally, this is the standard that is to be applied in most administrative decisions.
53. There is an intermediate standard of proof, falling between the criminal standard and the civil standard, that applies to decisions that are administrative in nature but, nevertheless, have serious implications for the individual:
The standard of proof required in cases such as this is high. It is not the criminal standard of proof beyond a reasonable doubt. But it is something more than a bare balance of probabilities. The authorities establish that the case against a professional person on a disciplinary hearing must be proved by a fair and reasonable preponderance of credible evidence. The evidence must be sufficiently cogent to make it safe to uphold the findings, with all of the consequences for the professional person’s career and status in the community [having been taken into account].60
Certain types of CF administrative decisions with serious adverse consequences to a CF member, such as release for involvement with drugs, must be based on clear and convincing evidence.
CAF is really no different, although a CAF member gets considerably more bureaucratic protection than employees for many other organizations would see.
Yes, and if the direction in the CF Admin Law Manual are observed and followed, the correct procedural fairness levels will be afforded. If the end result is still 'release', then the member will have little recourse with success (judicial review, etc) after the fact.
Specifically on this point...
Some greater degree of protection of extremists from the consequences of their choices would also extend protections to all of these other individuals. Just bear that in mind.
The...enhanced?...levels of procedural fairness, should be based on the career jeopardy (unless I complete misunderstand the Admin Law Man) that could result. Intention to release for "drug use" or "hateful behaviour" would, in theory, mean the same level of careful attention to the procedural fairness considerations. Am I on the right line of thought?
If I am right, then I believe that, even if it is slower, the centralized approach to ARs the CAF uses now is the best COA; consistency, quality control and avoids the 'reasonable apprehension of bias' issue (or, it is at least better than ARs at the unit or 'next HHQ' level WRT to that aspect).
Personally, I think we need to show these people the door, and as quickly as possible. However, they must be given the same treatment anyone would expect when they are on the wrong side of policy and expected conduct. I still think an 'army only' order that isn't matched by RCAF, RCN, CANSOF, etc isn't the best COA.