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DUI/impaired driving in CF (merged)

Remedial measures address performance deficiencies. Yes, they overlap with conduct measures in cases like this, and appropriately so. The military is not a normal job. Soldiers are expected to keep themselves ready. Having outstanding criminal court matters is a readiness issue, and so is a performance issue. It's absolutely appropriate to keep record of such things in case it persists.

C&P is not punishment. It is predictable consequences of poor choices that impact your operational readiness. C&P won't result in a fine, it won't result in you being ineligible to cross the border, it won't result in a criminal record. Yes, it hurts you professionally, but that's how it goes.
 
Brihard said:
Remedial measures address performance deficiencies. Yes, they overlap with conduct measures in cases like this, and appropriately so. The military is not a normal job. Soldiers are expected to keep themselves ready. Having outstanding criminal court matters is a readiness issue, and so is a performance issue. It's absolutely appropriate to keep record of such things in case it persists.

C&P is not punishment. It is predictable consequences of poor choices that impact your operational readiness. C&P won't result in a fine, it won't result in you being ineligible to cross the border, it won't result in a criminal record. Yes, it hurts you professionally, but that's how it goes.

I agree Brihard and I have issued them and had them issued to me.  With a caveat though:

One thing the CAF does that I don't agree with is issue remedial measures for some conduct issue involving court when a person has never been found guilty or received a criminal conviction.  Because you know, nobody has ever been wrongfully accused  :rofl:

Yep, I've heard it all before that it's about burden of proof, which most of the time is a police report that just says someone "may have" done something so they are being charged with a crime.  None of which has been proven in court at all. 



 
 
Humphrey Bogart said:
I agree Brihard and I have issued them and had them issued to me.  With a caveat though:

One thing the CAF does that I don't agree with is issue remedial measures for some conduct issue involving court when a person has never been found guilty or received a criminal conviction.  Because you know, nobody has ever been wrongfully accused  :rofl:

Yep, I've heard it all before that it's about burden of proof, which most of the time is a police report that just says someone "may have" done something so they are being charged with a crime.  None of which has been proven in court at all. 

The threshold for laying charges is 'reasonable and probable grounds' to believe a person has committed an offense... That's somewhat higher than 'may have', which falls short even of 'reasonable suspicion'.

In the specific case of impaireds, while I won't say there has never been someone wrongfully accused, what I can say with a high degree of confidence is that in pretty much every case where someone has been found guilty it has been due either to a very technical defense, or a Charter argument. Not that the person was not, in fact, driving drunk. The acquittals are almost always found in the (sometimes wide) gap between 'we know' and 'we can prove that'...

Reading through the DAOD on alcohol misconduct, the threshold for administrative action for alcohol misconduct is "clear and convincing evidence that the CAF member has engaged in alcohol misconduct". Being stopped, and providing a breath test that blows over is certainly 'clear and convincing' evidence. I note that the DAOD seems to deliberately stop short of requiring the burden of proof for criminal conviction, probably in part because of the recognition that many people who are guilty in fact will not be found so in law due to the vagaries of the criminal justice system. Charges are not laid nearly so willy-nilly as you suggested above. Officers who are charging will have their files reviewed by a supervisor, and crown can quash those they think aren't well founded too.

Remembering that the point of the DAOD and the administrative process is to correct deficiencies that are maladaptive to the individual's future success in their career, it seems fair and appropriate to lay the hammer at that lower threshold in order to get a grip on performance issues earlier.

If you get liquored up and hop behind the wheel, it's not how it goes in court that determines whether or not you're making poor life choices. If you're having to go to court for impaired, even if ultimately acquitted, you have still created an administrative burden to the CAF due to your own choices. That's what's being sorted out.
 
As per para 5.2 of DAOD 5019-7, an AR must be conducted in all cases of alcohol misconduct. This includes those instances where a CAF member charged with an alcohol related offence (i.e. DUI) is tried and found not guilty.  Why? it's simple, really.  The AR must determine of the member's actions fell within the expected norms of a CAF member's conduct.  If so, then no RM are likely.  If not, the CAF will attempt to course correct that conduct back on track within the norms through the RM process.
 
There's a few things I want to chime in on as I'm feeling a bit pedantic, but I think the nuances are important.

Brihard said:
The threshold for laying charges is 'reasonable and probable grounds' to believe a person has committed an offense... That's somewhat higher than 'may have', which falls short even of 'reasonable suspicion'.

That's true. But that threshold ("reasonable grounds to believe") is actually lower than the administrative law threshold "on the balance of probabilities." So no, the laying of a charge by police alone is not enough. This part does irritate me, because it seems very misunderstood. There are those that think that simply because the police laid a charge, something has been proven on the balance of probabilities, but it hasn't... it is explicitly a lower threshold. Other than that, I have no issues with using administrative action before any convictions are determined.... as long as you're basing it on more than just the police laying a charge.

In most cases that I've dealt with (from a CoC perspective), I had more evidence on hand than just the fact that police had laid a charge. For example, I'd have the police report, as well many times the persons own report (when they reported it to their Chain of Command, etc). Usually from the content within that, it was usually enough to conclude that on the balance of probabilities someone did something they ought not to, and remedial measures could be issued. I dealt with a case where there wasn't, and I'm dealing with a case now where DMCA 2 waited for the trial to finish before moving forward with the AR (i.e. no remedial measures were issued).

Brihard said:
In the specific case of impaireds, while I won't say there has never been someone wrongfully accused, what I can say with a high degree of confidence is that in pretty much every case where someone has been found guilty it has been due either to a very technical defense, or a Charter argument. Not that the person was not, in fact, driving drunk. The acquittals are almost always found in the (sometimes wide) gap between 'we know' and 'we can prove that'...

Maybe not for impaired, but sexual assault as an example tends to be a lot of he-said / she-said and without the items being scrutinized you can be left right on the 50/50 split. One of the ones I dealt with, the charges were laid, they were going to court, and the only evidence I had were two or three statements that were so far apart and conflicting I was tempted to toss a coin.

Brihard said:
I note that the DAOD seems to deliberately stop short of requiring the burden of proof for criminal conviction, probably in part because of the recognition that many people who are guilty in fact will not be found so in law due to the vagaries of the criminal justice system.

I'm pretty sure its simply because the law has already determined that the burden of proof in administrative law is the balance of probabilities, and that's the type of law that administrative action falls under...  the DND has no discretion on that. But a lawyer would have chime in.
 
ballz said:
There's a few things I want to chime in on as I'm feeling a bit pedantic, but I think the nuances are important.

That's true. But that threshold ("reasonable grounds to believe") is actually lower than the administrative law threshold "on the balance of probabilities." So no, the laying of a charge by police alone is not enough. This part does irritate me, because it seems very misunderstood. There are those that think that simply because the police laid a charge, something has been proven on the balance of probabilities, but it hasn't... it is explicitly a lower threshold. Other than that, I have no issues with using administrative action before any convictions are determined.... as long as you're basing it on more than just the police laying a charge.

In most cases that I've dealt with (from a CoC perspective), I had more evidence on hand than just the fact that police had laid a charge. For example, I'd have the police report, as well many times the persons own report (when they reported it to their Chain of Command, etc). Usually from the content within that, it was usually enough to conclude that on the balance of probabilities someone did something they ought not to, and remedial measures could be issued. I dealt with a case where there wasn't, and I'm dealing with a case now where DMCA 2 waited for the trial to finish before moving forward with the AR (i.e. no remedial measures were issued).

Maybe not for impaired, but sexual assault as an example tends to be a lot of he-said / she-said and without the items being scrutinized you can be left right on the 50/50 split. One of the ones I dealt with, the charges were laid, they were going to court, and the only evidence I had were two or three statements that were so far apart and conflicting I was tempted to toss a coin.

I'm pretty sure its simply because the law has already determined that the burden of proof in administrative law is the balance of probabilities, and that's the type of law that administrative action falls under...  the DND has no discretion on that. But a lawyer would have chime in.

Thank you for this post which so eloquently described what I was trying to get at.

I would just accept that remedial measures are going to happen and like I said in an earlier post, don't tell your chain of command anything. 

The chain of command are not your friends and neither are the police, inspite of what they may tell you. 


 
Somerandomfellow said:
Don’t give anyone anything, let your lawyer do it, don’t talk to anyone don’t tell anyone what happened keep your mouth shut and LET YOUR LAWYER DO ALL THE TALKING FOR YOU.

If the cop messed up or the lawyer gets you off without charge, the military may not decide to charge you also.

Just shut up and let the legal system do it’s thing, a system of which you know nothing about, so keep your mouth shut, pay lots of money for legal services civie side, get the most expensive lawyer available and get ready. Lawyers can do things you never thought possible.

Anyone in your chain gives you grief, give them your lawyers number and tell them to speak with them.

KEEP YOUR MOUTH SHUT and for the love of god don’t say a word to police or MPs. Keeping your mouth shut also means DON’T WRITE STATEMENTS. Good luck, you’ll need it.
 
FYI I removed a double post leaving the more recent one. No reason to repeat the same advice twice.

JesseWZ
Army.ca Staff
 
Haggis said:
As per para 5.2 of DAOD 5019-7, an AR must be conducted in all cases of alcohol misconduct. This includes those instances where a CAF member charged with an alcohol related offence (i.e. DUI) is tried and found not guilty.  Why? it's simple, really.  The AR must determine of the member's actions fell within the expected norms of a CAF member's conduct.  If so, then no RM are likely.  If not, the CAF will attempt to course correct that conduct back on track within the norms through the RM process.
How would that work if the charged party was a Class A reserve not on duty at the time?
Not subject to the Code of Service Discipline.
 
X Royal said:
How would that work if the charged party was a Class A reserve not on duty at the time?
Not subject to the Code of Service Discipline.

Doesn’t matter. Administrative measures are not contingent on the CSD. In the case of alcohol misconduct they still apply to someone whose poor decisions makes them an administrative burden. Military members, whether reg or reserve, are bound by certain behaviour expectations both on and off duty, including the expectation to not eat a criminal charge and jeopardize your deployability. Administrative measures exist to address that.

A person who chooses to drink and drive has chosen not to meet the performance and conduct standards imposed by the CAF as their employer. The CAF is perfectly within its rights to attempt to correct that decision making, which also serves as the necessary documented efforts that labour law expects before you fire someone for performance reasons.
 
Don't forget to only roll the window down a crack to talk to officers.
 
Brihard said:
Doesn’t matter. Administrative measures are not contingent on the CSD. In the case of alcohol misconduct they still apply to someone whose poor decisions makes them an administrative burden. Military members, whether reg or reserve, are bound by certain behaviour expectations both on and off duty, including the expectation to not eat a criminal charge and jeopardize your deployability. Administrative measures exist to address that.

A person who chooses to drink and drive has chosen not to meet the performance and conduct standards imposed by the CAF as their employer. The CAF is perfectly within its rights to attempt to correct that decision making, which also serves as the necessary documented efforts that labour law expects before you fire someone for performance reasons.

Not only it is within the CofC rights, it actually is a responsibility/required action:
From DAOD 5019-0, Conduct and Performance Deficiencies

Requirements

2.4 The chain of command or designated staff, as applicable, must take appropriate action if a CAF member demonstrates conduct or performance deficiencies. Depending on the circumstances, the appropriate action may involve disciplinary or administrative action, or both.

2.5 If a CAF member has been charged with an offence under the National Defence Act, Criminal Code or other federal statute, the chain of command or designated staff may, regardless of the outcome of the offence charged, take administrative action to address any conduct or performance deficiencies arising from the same circumstances.

2.6 The CAF must provide education, counselling and treatment, as appropriate, to assist CAF members to prevent, correct or subsequently overcome conduct or performance deficiencies.

Additionally, as the career impacts for things like DUI are more significant (someone mentioned C & P is the start point for RMs), the member is then afforded more procedural fairness.

From A-LG-007-000/AF-010, Military Administrative Law Manual, Ch 14 - Administrative Action:

6. Administrative Sanction In contrast to career management, procedural fairness plays a significant role when serious administrative sanctions are being taken against a CF member. Such sanctions can impair a member’s career progression or, ultimately, lead to the termination of the member’s military service career by way of compulsory release. Accordingly, as the administrative sanctions become progressively more severe, procedural fairness requirements are enhanced for the benefit and protection of the member.

10. There are three types of remedial measures: Initial Counselling (IC), Recorded Warning (RW) and Counselling and Probation (C&P). Remedial measures are intended to make the CF member aware of any conduct or performance deficiency, assist the CF member in overcoming the deficiency, and allow the CF member to correct their conduct or improve their performance.3 Although the members on whom they are imposed may perceive them as punitive, IC, RW and C&P are not punishments as defined in QR&O 104.02 (Scale of Punishments).

15. Neither an IC nor RW impacts on any eligibility for promotion, training, posting, re-engagement or pay. As long as the member improves the performance or conduct, there should be no further career implications. When a CF member is placed on C&P, the eligibility for career opportunities is restricted. The CF member is not eligible for promotion, attendance on career courses, receiving incentive pay, or being posted or attached posted. Exceptions may be made to the general prohibition against postings and attached postings for operational reasons and in exceptional circumstances by DGRMC.

17. Because of its career implications, there is a requirement for more procedural fairness before initiating C&P. The Initiating Authority shall complete DAOD Form 5019-CPDA B, Notice of Intent to Place on Counselling and Probation and deliver it to the CF member, informing the CF member of the Initiating Authority’s intention to place the member on C&P, of the deficiency for which the measure is being taken, and the reasons that support the measure. The Initiating Authority shall disclose to the CF member copies of all documents that substantiate the proposed C&P and are to be considered before making a final decision. The Initiating Authority shall not release information that is exempt under DAOD 1001-0, Access to Information and DAOD 1002-0, Personal Information. The Initiating Authority shall provide the CF member with a reasonable opportunity, not less than 24 hours, to make written representations to the Initiating Authority. A CF member may request assistance or additional time to make representations. The Initiating Authority may grant such a request, if appropriate in the circumstances. If the CF member provides representations and the decision is to proceed with C&P, the Initiating Authority shall complete the appropriate form. The CF member’s representations may also cause an Initiating Authority to initiate IC or RW instead of C&P, to initiate other administrative action, or to take no further action.


 
Jarnhamar said:
Don't forget to only roll the window down a crack to talk to officers.

Hell yes. There’s basically no better way to guarantee that a police officer will invoke the new mandatory alcohol screening authority for compulsory roadside tests. Better have your paperwork all in order too.
 
Brihard said:
Hell yes. There’s basically no better way to guarantee that a police officer will invoke the new mandatory alcohol screening authority for compulsory roadside tests. Better have your paperwork all in order too.

I guess its a better reason than returning "too many empties" at a beer store. Glad there wasn't any OPP when I dropped off my Christmas empties today, would have loved to waste his/her time and tell them how much of a joke that new law is.
 
PuckChaser said:
I guess its a better reason than returning "too many empties" at a beer store. Glad there wasn't any OPP when I dropped off my Christmas empties today, would have loved to waste his/her time and tell them how much of a joke that new law is.

I know the last guy I caught and charged with impaired driving using it found it hilarious.
 
Brihard said:
Hell yes. There’s basically no better way to guarantee that a police officer will invoke the new mandatory alcohol screening authority for compulsory roadside tests. Better have your paperwork all in order too.

I'm also no afraid to break out a "I want to talk to your supervisor" followed by "I pay your salary". I'll save the "taxation is theft!" for when I'm handcuffed in the back of the car though :)
 
Brihard said:
I know the last guy I caught and charged with impaired driving using it found it hilarious.

If he was hammered then I don't doubt he found weird things funny. So are you 1 for 1 with being able to suspend that pesky "probable cause" part, or is it now just a giant fishing expedition?
 
X Royal said:
How would that work if the charged party was a Class A reserve not on duty at the time?
Not subject to the Code of Service Discipline.

To be subject to administrative review or remedial measures a Reservist does not have to be subject to the CSD at the time to alleged conduct deficiency occurred. In Ontario, for example, you are subject to a automatic 90 day licence suspension if you blow over .08, refuse a test or a Drug Recognition Evaluator (DRE) determines you are impaired, regardless of the outcome of criminal charges which could take many months to be disposed of.  This could render a Class A Reservist who is, say, an MSE Op or Non-trade Driver unemployable in their primary role.  That would be grounds for an AR.
 
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