Canadian Forces Drug Control Program
Encyclopedia
Queen's Regulations and Orders (QR&Os) Chapter 20 establishes the administrative law
framework for the control of drug use by members of the Canadian Forces
(CF). It prohibits CF members from involvement with most drugs, except alcohol and tobacco, purportedly to maintain discipline within the CF, ensure the safety, reliability and health of CF members, etc. It enforces administrative and disciplinary action against those who transgress its requirements.
A number of schemes have been defined to gauge and control drug use in the Canadian Forces. Testing for Cause is the primary means and is used when reliable evidence has been developed to justify an intrusion into a CF member's bodily integrity. Other schemes include the constitutionally-sound Safety-Sensitive Testing, Incident-Related Testing, Deterrent Testing, and Control Testing.
Employment action for drug use has largely been deemed discriminatory under the Canadian Charter of Rights and Freedoms
unless a bona fide occupational requirement for the employment constraint exists. Individuals employed or under terms of service in the public sectors are also afforded the full panopoly of constitutional protections and [natural justice] entitlements where the law permits them. The nature of the Canadian Forces' work would seem to require stringent controls on the use of drugs; however, the procedures used (particularly the bias present in Testing For Cause) is cause for concern and scrutiny.
The policy was announced and instituted in 1992 by the Minister of National Defence and the Governor In Council under the authority of section 12 of the National Defence Act
. Refer to the official version of the regulations for the precise wording of the subordinate regulation. Further clarification can be found in departmental policy specified in DAOD 5019-3 Canadian Forces Drug Control Program.
" or any other physiologically or psychologically impairing substance, except for alcohol, prohibited by the Chief of the Defence Staff. It defines "use" as any act of injecting, swallowing, inhaling, smoking, ingesting or otherwise absorbing into the human body.
Additionally, QR&O 1.03 should be consulted which provides that "Unless the context otherwise requires, and subject to article 1.24 (Regulations and Orders – General), QR&O and all orders and instructions issued to the Canadian Forces under authority of the National Defence Act, apply to: the Regular Force, Special Force, Reserve Force when subject to the code of service discipline..." QR&O 20 states that the order applies to all officers and NCMs - based on standard statutory interpretation, the more specific statute overrides the more general one; the administrative aspects of QR&O 20 likely apply to reservists not performing military functions. It may well be true that this is also the case for disciplinary action applied to reservists not performing military duties, given the wording of QR&O 20.
Whether these constraints imposed by QR&O 20.04 are complete and span the spectrum of drug use is difficult to discern. It is certain that the prohibition implace precludes the use of drugs whose use is not an offence under the Controlled Drugs and Substances Act
(e.g. Schedule IV drugs).
released a report attacking the validity of drug testing in the Federal sector with an analysis that includes the Canadian Forces.
.
The results from a test under testing for cause may be used in the disciplinary or administrative context.
QR&O 20.11 para 4 provides that the summary of the reasonable grounds given to the accused is subject to filtering ordinarily required by the Privacy Act
and Access to Information Act
. This requirement has been overruled in Rockman v. Canada (Attorney General) 2000, 182 F.T.R 240 at paragraphs 16 through 17. To summarize this Federal Court finding it suffices to say that because of the serious interests at stake to the accused, full unfettered access to the Military Police report was essential in order to assist him point out inconsistencies or credibility issues in his accusers. Personnel subject to either administrative (release or C&P) or disciplinary action are therefore entitled to an unedited version of any evidence used against them. Since Testing for Cause mandates that an accused be provided with a summary of the reasonable grounds, it may well be the case that they are entitled to a copy of an MP report into their alleged drug use prior to the seizure of urine.
DND and the CF have made no policy changes to reflect this new requirement; it is entirely possible that the old practice of filtering such information persists.
for failure to observe instructions. A finding of guilty could lead to financial penalties, detention or release in a less-than-honourable fashion.
Administrative action usually would consist of a 1 year period of Counselling and Probation. Release through administrative action is also possible even after a first offence. There is no limitation on the use of both administrative and disciplinary action.
- Privacy Commissioner's Report on Drug Testing
- Drug Testing and Legal Implications
- Gayler v. Canada
- Canadian Human Rights Act, Canadian Human Rights Commission, Canadian Human Rights Tribunal
- Canadian Bill of Rights
http://laws.justice.gc.ca/en/C-12.3/index.html
- Canadian Charter of Rights and Freedoms
- It's ultra vires nature with respect to s. 273.2-273.5 of the NDA (in that it authorizes investigating CO's to authorize seizures when other unbiased CO's are available to review the grounds and that it transgresses the mandatory requirement to take information under oath)
- Testing for cause's ultra vires
natural justice
(via institutional bias)
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
framework for the control of drug use by members of the Canadian Forces
Canadian Forces
The Canadian Forces , officially the Canadian Armed Forces , are the unified armed forces of Canada, as constituted by the National Defence Act, which states: "The Canadian Forces are the armed forces of Her Majesty raised by Canada and consist of one Service called the Canadian Armed Forces."...
(CF). It prohibits CF members from involvement with most drugs, except alcohol and tobacco, purportedly to maintain discipline within the CF, ensure the safety, reliability and health of CF members, etc. It enforces administrative and disciplinary action against those who transgress its requirements.
A number of schemes have been defined to gauge and control drug use in the Canadian Forces. Testing for Cause is the primary means and is used when reliable evidence has been developed to justify an intrusion into a CF member's bodily integrity. Other schemes include the constitutionally-sound Safety-Sensitive Testing, Incident-Related Testing, Deterrent Testing, and Control Testing.
Employment action for drug use has largely been deemed discriminatory under the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
unless a bona fide occupational requirement for the employment constraint exists. Individuals employed or under terms of service in the public sectors are also afforded the full panopoly of constitutional protections and [natural justice] entitlements where the law permits them. The nature of the Canadian Forces' work would seem to require stringent controls on the use of drugs; however, the procedures used (particularly the bias present in Testing For Cause) is cause for concern and scrutiny.
The policy was announced and instituted in 1992 by the Minister of National Defence and the Governor In Council under the authority of section 12 of the National Defence Act
National Defence Act
The National Defence Act is the primary enabling legislation for organizing and funding Canada's military....
. Refer to the official version of the regulations for the precise wording of the subordinate regulation. Further clarification can be found in departmental policy specified in DAOD 5019-3 Canadian Forces Drug Control Program.
Definitions
QR&O 20 defines a drug as "a controlled substance... in the Controlled Drugs and Substances ActControlled Drugs and Substances Act
The Controlled Drugs and Substances Act is Canada's federal drug control statute. Passed in 1996 by the Chrétien government, it repeals the Narcotic Control Act and Parts III and IV of the Food and Drug Act and establishes eight Schedules of controlled substances and two Classes of precursors...
" or any other physiologically or psychologically impairing substance, except for alcohol, prohibited by the Chief of the Defence Staff. It defines "use" as any act of injecting, swallowing, inhaling, smoking, ingesting or otherwise absorbing into the human body.
Application
The policy (QR&O 20.02) asserts that the regulation applies to all officers and non-commissioned members. This should be read in conjunction with section 60 of the NDA which defines the limitations of the disciplinary jurisdiction of the Code of Service Discipline.Additionally, QR&O 1.03 should be consulted which provides that "Unless the context otherwise requires, and subject to article 1.24 (Regulations and Orders – General), QR&O and all orders and instructions issued to the Canadian Forces under authority of the National Defence Act, apply to: the Regular Force, Special Force, Reserve Force when subject to the code of service discipline..." QR&O 20 states that the order applies to all officers and NCMs - based on standard statutory interpretation, the more specific statute overrides the more general one; the administrative aspects of QR&O 20 likely apply to reservists not performing military functions. It may well be true that this is also the case for disciplinary action applied to reservists not performing military duties, given the wording of QR&O 20.
Prohibition
QR&O 20 prohibits the use of any drug unless it is authorized by a medical professional, is a non-prescription medication used in accordance with accompanying instructions or is required in the course of military duties. These factors are further constrained by the limitation imposed in the notes: a drug may not be used if its use is contrary to another law of Canada.Whether these constraints imposed by QR&O 20.04 are complete and span the spectrum of drug use is difficult to discern. It is certain that the prohibition implace precludes the use of drugs whose use is not an offence under the Controlled Drugs and Substances Act
Controlled Drugs and Substances Act
The Controlled Drugs and Substances Act is Canada's federal drug control statute. Passed in 1996 by the Chrétien government, it repeals the Narcotic Control Act and Parts III and IV of the Food and Drug Act and establishes eight Schedules of controlled substances and two Classes of precursors...
(e.g. Schedule IV drugs).
Testing Schemes
There are a number of means of enforcing QR&O 20 through testing. The policy, however, provides for other means (e.g. education) of promoting the policy's goals. A number of these schemes, in practice, were suspended after the Privacy Commissioner of CanadaPrivacy Commissioner of Canada
The Privacy Commissioner of Canada is a special ombudsman and an officer of parliament who reports directly to the House of Commons and the Senate....
released a report attacking the validity of drug testing in the Federal sector with an analysis that includes the Canadian Forces.
Deterrent Testing
This testing scheme would allow Commanding Officers to order tests on a random basis. Its focus is to deter use of drugs by allowing random seizure of urine samples. The test results from these samples could be used in administrative proceedings.Safety-Sensitive Testing
The stated aim of this testing is to randomly detect drug use on the part of those who are in positions that may have an impact on safety. This type has been constitutionally tested and is sound under certain conditions.Incident-Related Testing
If drug use is believed to have occurred in relation to an accident or incident and there is not sufficient time to conduct an investigation before the drug in use could be metabolised within the body such that its use could not be detected, Commanding Officer's are authorized to order a test. The focus of the policy is on discerning all factors that caused an incident and promoting safety; the results from a urine test cannot be used at disciplinary proceedings.Blind Testing
May be conducted under the authority of the Chief of Defence Staff or his delegate against a unit or member. The testing is random and anonymous and is used solely to gauge drug use in the CF for improvement of policy.Testing For Cause
May be conducted by a CO so long as he or she has reasonable grounds to believe that drug use prohibited by QR&O 20 has occurred. The second mandatory component of this test requires a reasonable belief that the presence of a drug may be detected within the time the urine test is administered. It requires Commanding Officers to first give the accused an opportunity to review the reasonable grounds collected and then to provide submissions, should they choose to do so, as to the reasonableness of the grounds developed. These procedural entitlements are prescribed in order to meet the requirements of natural justiceNatural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
.
The results from a test under testing for cause may be used in the disciplinary or administrative context.
QR&O 20.11 para 4 provides that the summary of the reasonable grounds given to the accused is subject to filtering ordinarily required by the Privacy Act
Privacy Act
Privacy Act may refer to:*Privacy Act of 1974 of the United States*Privacy Act *Privacy Act 1988 Australia*Privacy Act 1993 Amended: 1993/94/96/97/98/2000/02/03/05/06/07, An Act of the New Zealand Parliament...
and Access to Information Act
Access to Information Act
Access to Information Act or Information Act is a Canadian act providing the right of access to information under the control of a government institution...
. This requirement has been overruled in Rockman v. Canada (Attorney General) 2000, 182 F.T.R 240 at paragraphs 16 through 17. To summarize this Federal Court finding it suffices to say that because of the serious interests at stake to the accused, full unfettered access to the Military Police report was essential in order to assist him point out inconsistencies or credibility issues in his accusers. Personnel subject to either administrative (release or C&P) or disciplinary action are therefore entitled to an unedited version of any evidence used against them. Since Testing for Cause mandates that an accused be provided with a summary of the reasonable grounds, it may well be the case that they are entitled to a copy of an MP report into their alleged drug use prior to the seizure of urine.
DND and the CF have made no policy changes to reflect this new requirement; it is entirely possible that the old practice of filtering such information persists.
Control Testing
Control testing is an administrative regime, used as a follow up to ensure that members who have been caught using drugs contrary to QR&O 20 abstain from doing so. It is the authority from which follow-up testing is permitted during administrative handling of drug use. Test results may be used in the administrative and disciplinary contexts.Consequences
The consequences of a positive test may include administrative or disciplinary action. Disciplinary action could consist of a charge under s. 129 of the National Defence ActNational Defence Act
The National Defence Act is the primary enabling legislation for organizing and funding Canada's military....
for failure to observe instructions. A finding of guilty could lead to financial penalties, detention or release in a less-than-honourable fashion.
Administrative action usually would consist of a 1 year period of Counselling and Probation. Release through administrative action is also possible even after a first offence. There is no limitation on the use of both administrative and disciplinary action.
Legality of Testing
Both administrative and disciplinary action for drug use contrary to QR&O 20 are very serious. They raise a number of concerns that have either been resolved or are addressed in the following:- Privacy Commissioner's Report on Drug Testing
- Drug Testing and Legal Implications
- Gayler v. Canada
- Canadian Human Rights Act, Canadian Human Rights Commission, Canadian Human Rights Tribunal
- Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
http://laws.justice.gc.ca/en/C-12.3/index.html
- Canadian Charter of Rights and Freedoms
- It's ultra vires nature with respect to s. 273.2-273.5 of the NDA (in that it authorizes investigating CO's to authorize seizures when other unbiased CO's are available to review the grounds and that it transgresses the mandatory requirement to take information under oath)
- Testing for cause's ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
(via institutional bias)