Canadian Forces Drug Testing Policy and Search and Seizure 
The Canadian Forces (CF) have established a drug testing policy
through Queen?s Orders and Regulations (QR&O) Chapter 20. The QR&O?s
stem from the National Defence Act which is a creature of Federal
Parliament and as such is subject to the Charter of Rights and
Freedoms. Drug testing in Canada has largely been permitted as a
result of the Supreme Court of Canada Ruling in the Canadian Civil
Liberties Association vs. TD Canada Trust and subsequent decisions
identifying the validity of drug testing within the context of
discrimination on the basis of disability.

Drug testing for the majority of Canadian employers must follow the
decision stemming from the Supreme Court Ruling as they are either
controlled by Provincial Charters or the Federal Charter of Rights.
These rulings deal solely with discrimination issues on the basis of
disability and do not deal with search and seizure issues. The right
to be protected against unreasonable search and seizure applies only
to actions by agents of the state (municipal, provincial, federal) and
as such, it is not applicable in the vast majority of drug policies in
the private sector. The issue of search and seizure, has therefore,
not arisen in the courts as far as drug testing is concerned due to
the limited applicability of this right.

I believe it has also not arisen (particularly in the case of the CF)
because most service personnel who enter, sign an agreement that
willfully places them under the yoke of this drug testing scheme. This
agreement lowers the expectation of privacy and as such, it limits any
remedies of a personal nature that a CF member could expect in a
judicial challenge. If a CF member were not to challenge a drug-use
charge on the basis of the merits of their personal case, but were
instead to challenge in a judicial review seeking a general
declaration of invalidity, I believe that the CF?s drug testing policy
would be demolished. I seek input on how to strengthen my reasoning
below and an assessment as to the likelihood of success of this
approach.

Overview of Drug Testing Policy

(QR&O) Chapter 20 provides several schemes for testing CF member?s for
the presence of drug use: random testing, safety sensitive testing,
post-incident testing, testing for cause, and control testing. Control
testing is conducted after drug use has been substantiated and
counseling and probation efforts have begun. Random testing is very
much as its name implies but cannot be used in disciplinary or
administrative action ? it is a tool used solely to anonymously gauge
?the drug problem? in the CF. Post-incident testing and safety
sensitive testing are as their names imply and are very similar to the
procedures that the Supreme Court of Canada has ruled are
constitutional (and they make sense, given the nature of the work of
the CF).

Testing for cause is the element of the CF?s Drug Policy that I
believe is questionable on the basis of a search and seizure argument.
Testing for cause occurs when a Commanding Officer (CO) believes that
drug use on the part of a CF member is occurring. He orders an
investigation to occur by the Military Police. The CO takes the
information gathered by the military police and determines if
reasonable grounds exist to order a drug test. The CO is supposed to
provide the member with the opportunity to respond to the reasonable
grounds before he makes a final determination as to whether reasonable
grounds exist to order the test. The CO then may order the test and
make determinations as to how to proceed with the member (disciplinary
or administrative action). The CO has the option of a recorded
warning, 1 year?s counseling and probation, disgraceful release,
disciplinary action up to and including confinement, and he also has
the option of referring Criminal Charges to Court Martial (when the
drug use is deemed criminal). I believe the scheme therefore, to fall
within constraints imposed on criminal or semi-criminal proceedings.

The scheme requires that their must first be some disturbance to the
member?s work to justify the investigation. It also states that
reasonable grounds must be established. These grounds ?should? be
established under oath. I interpret ?should? to mean that statements
and evidence gathered shall be taken under oath unless there is good
reason for this not to occur. Again, the CO is required to give the
member the opportunity to respond to the gathered evidence. This is
what the letter of the law requires; in reality, drug testing is
carried out on the first suspicion of drug use and CO?s often ignore
the requirements set out in military law. This of course setups a
situation where the member can (internally) grieve any decision and
have any action overturned. I believe that this remedy is insufficient
and that it is a horrendous misuse of power that needs to be
corrected. I believe this correction can only occur within legal
proceedings against the CF.

While one might expect that the weighing of the individual?s rights in
favour of the needs of a ?just and democratic society? would make
sense in this case since CF members are often in very sensitive
positions, the Oakes Test requires that divergences from the Charter
be done in the least disturbing way possible (i.e. through safety
sensitive testing ? a constitutionally sound procedure). Member?s
being slated for operational deployment or sensitive position could be
drug tested before and during the time they carry out their sensitive
roles. However, the military often abuses the control testing scheme,
bypasses safety sensitive testing, and conducts testing with disregard
to military law and charter law.

Case Law In Support of a General Declaration of Invalidity

Baker v Minister of Citizenship and Immigration [1999] 2 SCR 817

MacBain v Canadian Human Rights Commission (1985), 22 DLR (4th) 119 (FCA)

The principles of fundamental justice suggest there are a number of
entitlements necessary within procedures such as those in the CF?s
Drug Policy. The applicability of these entitlements to a particular
fact scenario is determined by reference to the non-exhaustive list of
factors enunciated in the leading case of Baker v. Canada: (1) how
close is the process to the judicial process, (2) the existence of an
internal appeal process, (3) the importance of the decision to the
individuals affected, (4) the legitimate expectations of the person
challenging the process, and (5) the choices of procedure made by the
decision maker. If these factors are all met, then greater procedural
protection is required in order to accord with the principles of
fundamental justice.

In an intrusive matter such as the testing for cause and the actual
drug test, it is certainly arguable that tremendous procedural
entitlements exist. This is particularly so because the results of a
urine test will determine the outcome in a final way, and thus the
balance must tip in favour of the interests of the individual involved
rather than the broad policy interests outlined in QR&O Ch. 20.03. A
particular concern is the fact that the individual has no opportunity
to confront the evidence that forms the ?reasonable grounds? for the
sample order. The policy does allow for submissions, and this may
suffice in certain circumstances, but where allegations are made, an
accused should be entitled to cross-examine his accuser. This of
course would require an oral hearing. The CF?s Drug Control Program
fails to provide these necessary accommodations and consequently
violates the right to be secure against unreasonable search and
seizure.

A further concern exists with the lack of transparency in the process
at the testing stage. The policy suggests that it is the CO who orders
an investigation and that it is the CO who determines whether
reasonable grounds exist to make an order for testing. It is also the
CO who is to receive any submissions from the implicated individual,
and it is the CO who will then decide whether to order the actual
test. It is a cornerstone of our system of justice that matters be
decided by an impartial and independent decision maker. The process of
only involving the CO appears to be a clear instance of institutional
bias, which operates when the same person who is responsible for the
investigation of a matter also decides whether there is enough merit
to proceed with a complaint and then adjudicates the complaint. In
MacBain v.CHRC, (a pre-Charter case) it was held that, because the
Commission both investigated the complaint and appointed the tribunal,
there was a violation of the Bill of Rights.

Hunter v. Southam Inc., [1984] 2 SCR 144

In furtherance of the above, Hunter v. Southam provides a clear case
where the government enacted legislation that allowed the
authorization of a search and seizure by a government official who
could not be considered neutral and impartial as he or she was also
responsible for the investigation of the matter at hand. Hunter v.
Southam applies directly to the CF?s Policy for the reasons supplied
above. In the course of the ruling, it was decided that ?investing the
Commission or its members with significant investigatory functions,?
as is the case with a CO, ?has the result of vitiating the ability of
a member of the Commission to act in a judicial capacity when
authorizing a search or seizure.? (Hunter v. Southam p. 146) In order
for the ?authorization procedure [of a search and seizure] to be
meaningful, it is necessary for the person authorizing the search to
be able to assess the conflicting interests of the state and the
individual in an entirely neutral and impartial manner. This means
that while the person considering the prior authorization need not be
a judge, he must nevertheless, at a minimum, be capable of acting
judicially. Inter alia, he must not be someone charged with
investigative or prosecutorial functions under the relevant statutory
scheme.? (Hunter v. Southam p. 162)

The purpose of the Charter?s s. 8 ?requires that unjustified searches
be prevented. It is not enough that a determination be made, after the
fact, that the search should not have been conducted. This can only be
accomplished by a requirement of prior authorization. Accordingly,
prior authorization, where feasible, is a precondition for a valid
search and seizure. It follows that warrantless searches are prima
facie unreasonable under s. 8. The party seeking to justify a
warrantless search bears the onus of rebutting the presumption of
unreasonableness.? (Hunter v. Southam p. 146)

R v. McKinlay Transport

As I mentioned earlier, the CF?s Drug Testing Policy is at the very
least quasi-criminal. As such, R v. McKinlay requires that the
procedures for a search and seizure as defined in Hunter v. Southam be
applied. Statements must be gathered under oath and any gathered
evidence must be evaluated by a neutral third party.


Question

What are the flaws in this argument? How can I strengthen it? What is
the likelihood of success if I were to bring it to judicial review?