Canadian Forces Drug Control Program - Controversy - Institutional Bias

Institutional Bias

An investigation instigated under Testing for Cause will most often be conducted by Military Police (MP); it is common practice that the order requiring this investigation is given by the same CO responsible for the ultimate determination as to the reasonableness of the grounds for ordering testing for cause. QR&O 20.11 is ambiguous as to whether or not the "investigating CO" may also conduct the determination for testing for cause. This is a highly troubling ambiguity; where the facts indicate the "investigating CO" was also involved at the testing-for-cause stage, an apprehension of bias or explicit bias may exist. Natural justice in an administrative matter involving an adversarial process and serious outcomes for the accused requirse a high standard of natural justice; an accused under QR&O 20.11 faces serious (potentially terminal) administrative career consequences, disciplinary proceedings (where his/her liberty may be at stake), and more importantly, the threat of disciplinary action for failing to submit to a test. This threat may engage the security of the person under either the Charter or Bills of Rights.

It should be noted that some of these issues were analyzed in the Federal Court of Canada which were later brought to appeal in the Federal Court of Appeal. The first-instance decision was rejected, in part, by the Appeals Court on the issues relating to waiver (as unrepresented laymen cannot waive their rights; nor can waiver exist without the breach's grounds at the disposal of the affected party) however, the appellant was ultimately unsuccessful due to a factual prerequisite issue. The Appeals Court consequently chose not to address the validity of the issue of an apprehension of bias. The first-instance decision is not binding on subsequent applicant's seeking review in the Federal Court and the matter remains open for exploration at this level.