Now, the legal beagles seem worried - shared with the usual disclaimer....
Forces switched gears on firing soldiers for failed drug tests
CHRIS LAMBIE, Halifax Chronicle-Herald, 25 Jan 07
Article Link
The military decided not to immediately can soldiers who failed drug tests, fearing the move could set them up for a legal battle the Canadian Forces stood to lose.
The head of the army was keen to rush soldiers out the door who either failed drug tests or provided diluted urine samples. Lt.-Gen. Andrew Leslie wanted to send a message to the troops that the military will not tolerate drug use, documents obtained under the Access to Information Act show.
"Releasing members without due process will place the (Canadian Forces) in a position of having to fight grievance and/or human rights challenges that we stand to lose," Cmdr. Tony Crewe, the military’s director of careers administration, said in an Oct. 20 e-mail to a Defence Department policy adviser.
"We would then face the possibility of having to reinstate these members at considerable loss of (Canadian Forces) credibility and possibly the ability for the (Canadian Forces) to conduct drug testing in the future."
Any soldiers who failed the drug testing must go through a full administrative review, Cmdr. Crewe stressed in his message, which was checked over by a military lawyer.
"While this may take time and be seen as less of a message to the remainder of the military, it avoids the negative repercussions of releasing members without due process," he said.
Not following the entire administrative review process wouldn’t be fair to individual soldiers, Cmdr. Crewe wrote.
"It will also make us extremely vulnerable to a challenge under the grievance process or before the courts."
That vulnerability stems from "a long-standing pattern of rehabilitation in the military for soft drugs and indeed some hard drugs at times," said defence lawyer David Bright, who regularly handles military cases.
"You can’t just throw somebody out," said Mr. Bright.
"You have to give them a chance to rehabilitate themselves. You have to accommodate them. And to simply turn around and say, ‘We’re throwing you out without due process,’ just isn’t appropriate."
He’s sure the military would lose a challenge if they threw someone out without first going through an administrative review.
"There’s no question about it in my mind," Mr. Bright said.
Losing such a challenge could force the military to hand over drug testing to a third party, the Dartmouth lawyer said. "Or if they screw it up so badly, the human rights tribunal might rule that it’s wrong — they can’t do it," Mr. Bright said. "There are all sorts of potential problems."
The military used to reserve "safety-sensitive drug testing" for people in certain jobs, such as pilots and military cops, said Lt.-Cmdr. Pierre Babinsky, a spokesman for the military’s justice system.
But in November 2005 it was made mandatory for all military personnel heading to dangerous spots like Afghanistan, where Canada is engaged in combat operations.
"We feel we’re well within our rights to protect our people and conduct these drug screenings," Lt.-Cmdr. Babinsky said.
The task force of about 2,500 soldiers heading to Afghanistan next month — 1,160 of which are based in Atlantic Canada — is the first rotation to undergo mandatory drug tests, according to military documents.
In most cases, soldiers who fail a drug test for the first time are allowed to stay in the service on counselling and probation, said Mel Hunt, a British Columbia defence lawyer who specializes in military cases.
"If you started tossing people simply on the basis of one drug test and no other evidence to indicate use, then of course that’s going to be challenged," said the retired colonel.
Mr. Hunt does not believe the military will ever get rid of the mandatory drug testing.
"But I think they were concerned about possibly a legal challenge on abusing it," he said ....
