Canadian Forces Drug Control Program

Queen's Regulations and Orders (QR&Os) Chapter 20 establishes the administrative law framework for the control of drug use in the Canadian Forces (CF). It prohibits CF members from involvement with most drugs, except alcohol, in order 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 [http://www.admfincs.forces.gc.ca/qr_o/vol1/ch020_e.asp#20.01 official version of the regulations] for the precise verbiage of the subordinate regulation. Further clarification can be found in departmental policy specified in [http://www.admfincs.forces.gc.ca/admfincs/subjects/daod/5019/3_e.asp 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 Act" 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 [http://laws.justice.gc.ca/en/showdoc/cs/n-5/bo-ga:l_III//en#anchorbo-ga:l_III 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 turethat 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 (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 Canada released [http://www.privcom.gc.ca/information/02_05_12_e.pdf 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. ["Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3rd) 18 (C.A.)"] [ Consider this interpretation of Human-Rights Law, having applicability at all levels of Government and potentially in the privacte sector: http://www.ohrc.on.ca/english/publications/drug-alcohol-policy.shtml]

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 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 justice.

The results from a test under testing for cause may be used in the disciplinary or administrative context.

It should be noted that 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 [http://www.canlii.org/en/ca/fct/doc/2000/2000canlii14976/2000canlii14976.html 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. This requirement is found in law and as such a failure to comply with it may not be remedied by a later disclosure as would be the case if the breach simply occurred as a result of a failure to comply with policy or the natural-justice common law.

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 Act for failure to observe instructions. A finding of guilty could lead to financial penalties, detention or release in a less-than-honourable fashion. [QR&O 15 http://www.admfincs.forces.gc.ca/qr_o/vol1/ch015_e.asp#15.01] Administrative action usually would consist of a 1 year period of Counselling and Probation [ [http://www.admfincs.forces.gc.ca/admfincs/subjects/cfao/026-17_e.asp CFAO 26-17 RECORDED WARNING AND COUNSELLING AND PROBATION -OTHER RANKS ] ] . Release through administrative action is also possible even after a first offence. [ [http://www.admfincs.forces.gc.ca/admfincs/subjects/daod/5019/3_e.asp DAOD 5019-3, Canadian Forces Drug Control Program ] ] There is no limitation on the use of both administive and disciplinary action.

Legality of Testing

Both administrative and diciplinary 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:
- [http://www.privcom.gc.ca/information/02_05_12_e.pdf Privacy Commissioner's Report on Drug Testing]
- [http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/CIR/901-e.htm Drug Testing and Legal Implications]
- [http://recueil.cmf.gc.ca/en/1994/1995fca0243.html/1995fca0243.html.html Gayler v. Canada]
- [http://laws.justice.gc.ca/en/H-6/ Canadian Human Rights Act] , [http://www.chrc-ccdp.ca/default-en.asp Canadian Human Rights Commission] , [http://www.chrt-tcdp.gc.ca/index_e.asp Canadian Human Rights Tribunal]
- Canadian Bill of Rights [http://laws.justice.gc.ca/en/C-12.3/index.html]
- [http://laws.justice.gc.ca/en/Charter/index.html Canadian Charter of Rights and Freedoms]
- It's ultra vires nature with respect to [http://laws.justice.gc.ca/en/showdoc/cs/N-5/bo-ga:l_V-gb:s_273_2//en#anchorbo-ga:l_V-gb:s_273_2 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)

Footnotes