Lecoupe v. Canada ( Chief of Defence Staff )
T-1650-93
Wetston J.
21/12/94
16 pp.
Judicial review of decision to release applicant from service in Canadian Armed Forces -- Queen's Regulations and Orders, art. 15.36 providing when commanding officer proposing to recommend release, shall prepare notice of intent, including reasons for recommendation -- CFAO 15-2, s. 2(13) providing "Normally, a notice of intent to recommend release . . . shall not be given until counselling has been initiated in accordance with CFAO 26-17 . . . and the counselling has not been successful" -- CFAO 26-17 providing recorded warning (RW) or counselling and probation (C&P) shall not be ordered twice for same or related shortcomings -- RW or C&P may be ordered for performance or personal deficiencies, drugs, indebtedness -- Respondents complying with requirements in CFAO 15-2 and CFAO 26-17 -- Applicant most recently provided with C&P on July 24, 1991 indicating being formally counselled and placed on probation for conduct unbecoming member of CF; lackadaisical work habits, lack of motivation and need for direct supervision, being administrative burden on system -- That report ordered following convictions under Excise Act for possession of still suitable for manufacturing spirits -- July 1991 C&P, coupled with applicant's total career RWs (3), past C&P, along with continuous personal and financial counselling until 1993 release establishing applicant having every opportunity to address, through RW and C&P, matters adversely affecting performance -- QR&O, art. 15.36(8) providing when Chief of Defence Staff receiving reply from non-commissioned member to whom notice to recommend release delivered, non-commissioned member shall be advised of reasons that recommendation for release will proceed despite objections -- Art. 15.36(8) not requiring provision of written reasons for release; not indicating particular form for reasons; no indication how reasons should be communicated -- Purpose of reasons to provide notice of decision as well as notification reasons for recommendation accepted despite applicant's objections -- Telex memorandum indicating Chief of Defence agreeing with recommendation to release, oral reasons provided by acting Station Warrant Officer, written reasons contained in notice of intent to recommend release, interview and discussion with commander Lieutenant Colonel Smith and written representations submitted in opposition to release constituting sufficient compliance with art. 15.36 -- Considering overall scheme, purpose of regulations, art. 15.36(8) characterized as both mandatory and directory -- Compliance with art. 15.36(8) mandatory in that requires reasons "shall" be given, but directory in so far as precise compliance -- Respondents substantially complied with art. 15.36(8) -- Applicant provided with reasons for release -- Failure to provide specific written reasons by Chief of Defence Staff not breach of duty of fairness -- Once advised Chief of Defence Staff approved release, despite objections, reasons for release already substantially known to him -- No prejudice to applicant as result of failure to disclose specific written reasons -- That provided further written objections as part of grievance of Chief of Defence Staff's decision demonstrating applicant aware of reasons for recommendation for release -- Queen's Regulations and Orders for the Canadian Forces (1968 Revision), arts. 15.01, 15.36(1),(2),(6),(8) -- National Defence Act, R.S.C., 1985, c. N-5, s. 23(1) -- Excise Act, R.S.C., 1985, c. E-14, ss. 158(1)(e), 163(1)(a).