T-949-96
OTTAWA, ONTARIO, THE 2ND DAY OF JULY, 1997
PRESENT: THE HONOURABLE MR. JUSTICE NOËL
BETWEEN:
J. ROGER PARISÉ,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
O R D E R
The decision rendered by the Minister of National Defence on August 21, 1995 is quashed;
The decision rendered by Major Lévesque on October 29, 1994 is set aside; and
In so far as the applicant"s terms of departure were negatively affected by the fact that he held the rank of sergeant rather than that of acting warrant officer at the time of his departure from the Armed Forces, the Minister of National Defence shall adjust the applicant"s terms of departure on the presumption that at the relevant time he held the rank of acting warrant officer.
| Marc Noël |
| J. |
Certified true translation
C. Delon, LL.L.
T-949-96
BETWEEN:
J. ROGER PARISÉ,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
NOËL, J.
This is an application for judicial review of a decision rendered on August 21, 1995 by the Minister of National Defence, the Hon. D.M. Collenette, dismissing the grievance of the applicant, J. Roger Parisé.
The applicant had been a member of the Canadian Armed Forces since June 21, 1968. He took a chief"s course for senior non-commissioned officers that was held at Canadian Forces Base Borden from October 6 to November 6, 1992. At the time he held the rank of acting warrant officer and this course, once successfully completed, would have qualified him for a promotion to the rank of warrant officer.
Prior to the end of the course, on October 29, 1992, the commandant of the Academy of Leadership and Languages made a decision to return the applicant to his unit for lack of honesty and integrity. In fact, the applicant was accused and found guilty of altering his examination during the review period in order to obtain the required passing mark on the examination.
Following a brief investigation conducted that same day, the commandant concluded that the applicant was guilty of cheating and decided to return him to his unit. The applicant filed an application for redress of grievance, alleging a miscarriage of justice and that he was the victim of a correction error attributable to the staff of the Academy of Leadership and Languages.1 On August 21, 1995 the Minister of National Defence dismissed his grievance in the following words:
| [Translation] ... I am satisfied that the testimony taken in the course of this investigation, which has been disclosed to you, demonstrates beyond any doubt that you altered an examination paper after correction and additional review by several instructors, for the purpose of improperly obtaining a passing mark.2 |
This decision had significant repercussions for the applicant who, I repeat, had been a member of the Armed Forces for more than twenty-seven years. He was demoted from acting warrant officer to sergeant. He says his pension was reduced in 1996 by four percent and he lost any hope of a promotion. Confined to no more than a sergeant"s rank, he must take mandatory retirement at the age of 50, although he could have aspired to the rank of master warrant officer and an early retirement at the age of 55. Finally, his reputation has been seriously harmed both within the Canadian Armed Forces and in his immediate entourage.
Through his judicial review proceeding, the applicant is asking that the decision dismissing his grievance be quashed. He is also asking that a writ of mandamus be issued ordering the Minister to grant him by right a passing mark in the non-commissioned officers" course effective November 6, 1992 and to promote him to the rank of warrant officer effective that same date with all the monetary adjustments pertaining thereto. The applicant further seeks monetary relief under section 24 of the Canadian Charter of Rights and Freedoms .
The applicant argues in support of his proceeding that the process that led to the finding that he had indulged in an act of cheating was incomplete and precipitous, without regard for his right to a hearing and to the seriousness of the charge against him. He criticizes the commandant for proceeding administratively rather than by the disciplinary route, thus depriving him of the procedural guarantees to which he was entitled. He maintains that a miscarriage of justice was perpetrated and that the Minister erred in law and acted unreasonably in refusing to uphold his grievance.
The respondent, for her part, argues that the commandant concluded that the applicant had cheated because he was convinced that the applicant had altered his examination paper during the group correction. The internal process that led to this finding, the respondent says, allowed the applicant to defend himself and give his version of the facts. The respondent adds that the applicant had a new opportunity to be heard in the context of his grievance and that the Minister of National Defence gave no greater credence to his version than the commandant had. Finally, the respondent contends that the applicant can hardly criticize the commandant for proceeding administratively rather than through a disciplinary proceeding, since he would then have been liable to imprisonment.
A proper understanding of the circumstances surrounding the event that led to the commandant"s decision and of the investigation that was conducted is essential to the unravelling of this dispute.
The cheating is alleged to have occurred the day after the examination, in the course of the review following the correction of the papers. The applicant had been assigned a mark of 58 percent, while the required mark was 60 percent. During the review session, the papers were returned to the students and at the end, the applicant returned the copy of his paper to Master Warrant Officer Morasse, asking to know why 20 marks had been taken off him on question 1 although the reply was written in the margin. This reply, composed of the words "ADJUM WRONG" [(Translation ) "MWO WRONG"], was indeed written in pencil in capital letters in the margin.
MWO Morasse indicated that he would consult WO Ouellette, who had corrected the examination, and he did this immediately. A few moments later, WO Ouellette asked the applicant to follow him alone into an adjoining classroom, and accused him of having written the addition during the review period. The applicant categorically denied this, explaining that he could not have made the entry during review since he was not equipped with a lead pencil.
Soon afterword, MWO Morasse asked the applicant to report to Captain Kooistra. MWO Morasse was present at the meeting. That was when the applicant explained the circumstances in which he allegedly made the addition. He stated that a few minutes before the end of the examination, WO Ouellette invited the students to carefully check their answers, saying "[Translation ] check your WHO", referring to the need to identify the person who was being referred to in the text.3
The applicant then urged MWO Morasse to question the two students who had been sitting beside him in order to confirm what he was saying. MWO Morasse responded to this invitation, as is shown by the two statements signed on December 1, 1992 by Private Montmarquet and WO Thibault, which read respectively as follows:
| [Translation] |
| On 29 Oct 92 MWO Morasse came to get me with WO Thibault. MWO Morasse interviewed us one at a time in a room referred to as the P.P.S. room. He asked me if I had seen WO Parisé during the military correspondence examination correction write something on his exam paper. I told him no, since we had no lead pencils on us; since we had had to borrow an ink pencil to sign our reports. He asked me whether I, when I went to see him (WO Morasse) before. For an explanation concerning the test, whether WO Parisé could have written on his exam. I told him no, since I told him that WO Parisé had shown me his paper before I met with him (WO Morasse). |
| On 29 Oct 92 around 1400 hrs MWO Morasse passed to me in a reference interview WO Parisé"s military writing examination. He asked me what I had seen during the correction of the exam I told him that to the best of my knowledge WO Parisé had not written on his exam paper and that the only pencil I had seen in WO Parisé"s hands was an ink pen, I had not been monitoring WO Parisé 100% of the time but a good part of the examination.4 |
During the afternoon of October 29, the applicant was summoned to appear before the school commandant, Major J.C. Lévesque. Major Lévesque then repeated the charge of cheating and questioned the applicant. WO Ouellette was the only other person present. Major Lévesque asked WO Ouellette whether, in his opinion, the addition was present during the initial correction. According to the applicant, WO Ouellette snapped to attention and answered: "[Translation ] I think it wasn"t there, Major."5 After a short interruption, Major Lévesque concluded that the applicant had indeed cheated during the review of his examination and promptly ordered the cessation of the courses and his return to his unit. The "Course Report" issued following the return under the signature of Major Lévesque states:
| [Translation] WO Parisé was returned to his unit for failing to meet the standards on PO 406 and in particular for his lack of integrity as a senior NCO.6 |
In a report dated October 30, 1992 submitted by Major Lévesque to his superior officer, the events in question were related as follows:7
| Wed 28 Oct: A/WO Parise wrote PC 406 Military Letter at 0800 hrs. |
| At approx 1330 hrs a discussion between Major Levesque (Cmdt), CWO Rutledge (ACWO), and MWO Snell reconfirmed that A/WO Parise was to be given every opportunity to complete the course and options were discussed. |
| At approx 1400 hrs, it was noted that A/WO Parise had failed the Military Memorandum portion of PC 406 Military Writing. |
| At approx 1430 hrs, MWO Snell reviewed A/WO Parise's Military Memorandum with the Directing Staff, in particular WO Ouellette. Because of the circumstances involved, this PC was carefully screened to ensure every mark deduction was clearly justified in an attempt to attain the highest possible mark and hopefully a passing grade. This was not to be, as all deductions were correct and the initial mark of 58% was confirmed. Arrangements were then made to have A/WO Parise attempt a rewrite later in the course (contingent on his travel arrangements). |
| Thurs 29 Oct: |
| At approx 0930 hrs, PC 406 was reviewed in the White Platoon room. This review entails the student being given his examination papers back with faults marked in red. Upon completion of the review, A/WO Parise brought his Memorandum exam papers to MWO Morasse (the reviewing DS) and queried as to why 20 points had been deducted, pointing out the required information was in the margin of the memorandum. This information was in block print and made with a different size lead pencil, while the remainder of the memorandum was in writing script.8 A/WO Parise stated that this was an oversight on WO Ouellette's part and he should be given the marks. |
| NWO Morasse immediately hand carried the exam paper to WO Ouellette, who noted the print in the margin and categorically stated that this had been added after the exam had been marked.9 WO Ouellette then approached A/WO Parise and repeated his statement that the exam had been altered during the review period. A/WO Parise at first insisted that it had not been altered. He then made a statement to the effect that WO Ouellette was to ignore his request to have his exam score amended. |
| MWO Morasse and WO Ouellette then brought the A/WO Parise's exam papers to MWO Snell who verified that indeed the exam papers had been altered after the fact. |
| A/WO Parise was then interviewed by the OC Leadership Coy, Capt Kooistra in the presence of MWO Morasse. A/WO Parise stated that the exam was exactly as he had submitted it and that he had two witnesses, however the personnel identified would not support his statement. |
| As the exam was clearly altered while in the possession of A/WO Parise, Capt Kooistra arranged an appointment for A/WO Parise to see the Academy Commandant. The Comdt interviewed the principal witnesses and then interviewed A/WO Parise who held to his original story that the exam was exactly as written on the 27 of Oct. As all evidence indicated that the exam had been altered while in A/WO Parise's possession during the exam review on the 28 Oct, the Comdt, Major Levesque had A/WO Parise removed from SLC 9207. |
| The key evidence in supporting his removal from the SLC for reasons of conduct and honesty is irrefutable. Unknown to A/WO Parise, all exams in which a student fails are reviewed by another DS or two. In A/WO Parise's case it was not a matter of his word against WO Ouellette. MWO Snell also reviewed the memorandum very closely. These two experienced instructors and the entire SLC staff were shocked that A/WO Parise made such a feeble attempt at cheating. |
| A/WO Parise's actions were clearly a violation of the very principle of honesty and ethical conduct expected of a Senior supervisor in the CF. His reasons for altering the exam are a mystery as he was to be given a rewrite and he had the total support of school staff. While he had extreme difficulty with all subject matter, it is very likely that he would have met the minimum standard expected.10 |
On February 5, 1993, following the receipt of the application for redress of grievance, Colonel Yves St-Laurent recommended to headquarters that it conduct its own review, in the following words:
| [Translation] |
| Attached hereto, an application for redress of grievance submitted by Sgt. Parisé pursuant to his expulsion from the Canadian Forces Academy of Leadership and Languages at the end of October 1992. In view of the nature of this grievance and the documentation provided, I think I am unable to make a judgment on its merits. However, it would appear that Sgt. Parisé did not have a full opportunity to present his case to the school commandant. |
| I recommend that this redress of grievance be submitted to the appropriate arbitral authority.11 |
In the context of the grievance redress proceedings, the various parties were invited to comment in writing on the applicant"s submissions in regard to both his innocence and the process to which he had been subjected.
Major MacInnis, in a memorandum drafted on May 14, 1993, made the following comment:
| The internal investigation revealed that Sgt Parise was caught cheating on an exam at CFALL. Subject member apparently altered his examination during a post-exam review period conducted by the directing staff. When confronted with the apparent alterations, Sgt Parise denied any wrong-doing and said he had two witnesses who would back up his claim. These two witnesses were identified and were asked to confirm Sgt Parise's statement " which they were unwilling to do. Based on this and corroborated statements by directing staff the Comdt concluded that Sgt Parise was being dishonest and had him removed from the course.12 |
Major Lévesque, for his part, repeated his version of the events in a brief that is dated April 20, 1993:
| Then, on 29 October 1992, a review of this PC was conducted to entail students to see their examination papers with faults marked in red. During this review, A/WO Parise added more information in the margin of the memorandum. This information was in block print and made with a different size lead pencil, while the remainder of the memorandum was in writing script. After this unfortunate incident, a meeting between A/WO Parise's DS and the two platoon commanders was conducted to confirm if the memorandum was altered or not. A/WO Parise was interviewed on numerous occasions by his DS, his platoon commander and his company commander. During his interviews, A/WO Parise stated that he did not alter the exam and that he had two witnesses that can support his statement. These two witnesses were identified and they were asked to confirm A/WO Parise's statement. They did not support A/WO Parise's statement. Based on the facts given by all directing staff of this school and the unwillingness of A/WO Parise's witnesses to support his statement, I came to the conclusion that A/WO Parise did alter the exam. His action was clearly a violation of the very principle of honesty and ethical conduct expected of a Senior NCM as stated in reference B. His lack of honesty was the main reason of his return to unit.13 |
Lieutenant Colonel Tinsley issued the following opinion in a brief dated May 17, 1993:
| Review of the facts of this case indicates that when the Commandant CFALL was faced with an apparent cheating incident on the part of Sgt Parise, he chose to deal with the matter administratively including investigation of the matter, providing the alleged offender with the opportunity to respond to the allegations against him and finally the taking of an administrative decision to cease training. As indicated above, the Commandant could have used his authority to initiate a disciplinary process and one might argue that given the consequences of this matter to Sgt Parise that would have been a better decision given the greater number of procedural safeguards in the disciplinary process. However, in that an administrative response was chosen the relevant issues become one of whether Sgt Parise was treated fairly in the process of the matter and whether the response to his misconduct (i.e. cease training with all of the administrative consequences) was reasonable in the circumstances. In my view, both of these issues can be answered in the affirmative and, accordingly, I would suggest that the Commander's response to NDHQ be supportive of the actions of the authorities at Borden and recommend denial of redress.14 |
In a brief signed on June 30, 1993, Commodore Spalding offered the following opinion:
| Subject redress has been re-examined by CFTSHQ and CFALL. All material has been reviewed with the aim of answering two specific questions. The first was whether the exam paper had been altered before or after it had been marked. The second was whether the action taken by the Comdt of CFALL was appropriate to the circumstances. |
| The subject memo shows an entry in the margin that appears to have been made with a different writing implement, and in upper case while the rest of the memo was in lower case.15 This suggests it was added much later, but not necessarily so. An individual is quite likely to have used several pens or pencils during an exam, and if an entry is made at the last moment, just before handing in the paper, it might even have been made in a different script. What is believed to be more significant is the fact that two of the DS had scrutinized the memo in a conscious effort to find the additional marks that would have given A/WO Parise a passing grade and enabled him to return to his unit early, as the unit had requested. One must conclude that under these circumstances the entry in the margin of the memo must have been made after it was marked. |
| As the findings of CFALL concerning the memo are supported, the question then becomes whether the response by CFALL was appropriate and justified. As no two cases are exactly the same, and decisions must be made with due regard for the best interests of both the CF and the individual, school commandants have a reasonable latitude in how they deal with each case. In this instance CFALL was faced with an individual that had attempted to gain a passing mark dishonestly. However, the option of disciplinary action, followed by a rewrite was not practical, given the time constraint. The alternative appeared logical and appropriate. He was to be returned to his unit as soon as possible, as requested by his unit, without any disciplinary action on his record. Instead, he would have to return at a later date to take the course again. The actions of the Comdt of CFALL are supported.16 |
After receiving and considering these comments, Lieutenant Colonel Brownlee, still within the framework of the grievance review, requested on August 4, 1993 that follow-up action be taken:
| [Translation] |
| Pursuant to your reply on reference and to a more detailed review of this file, some points need to be clarified. |
| In particular, in a memorandum dated April 20, 1993 (flag E), the commandant of the Canadian Forces Academy of Leadership and Languages indicates that his decision to expel Sgt Parisé from his course was based in part on the fact that the witnesses named by Sgt Parisé had refused to corroborate Sgt Parisé"s statements. However, the written statements of these witnesses seem to indicate the contrary (see flags A, B and C). |
| To clarify this situation, you are requested to verify and comment on these items, which seem to contradict each other. Also, in order to properly document this case, it would be appreciated if some written statements could be obtained from the instructors involved in this matter: WO Ouellette and MWO Snell of the CFALL. Your reply would be appreciated at the earliest possible opportunity. |
| The grievance file is attached hereto.17 |
Pursuant to this memorandum, an officer of the Legal Services Directorate attempted to clarify the situation with Major Lévesque:
| [Translation] On August 10, 1993, in a telephone conversation between an officer of the Directorate of Personnel Legal Services and Major J.C. Lévesque (Commandant of CFALL) seeking to clarify an apparent contradiction between the latter"s report and the written statements of the witnesses, Major Lévesque said that during his meeting with A/WO Parisé the latter was unable to identify his supposed witnesses; he had not interviewed them, therefore. He said he was somewhat surprised to learn that MWO Morase had interviewed WO Thibault and P2 Monmarquet at the time of the incident.18 |
WO Snell also attempted to clarify the situation with regard to the witnesses" statements. In a brief signed on August 20, 1993, he says:
| 5. Student claims that they were not allowed pencils during exam corrections or that they monitored other student movements are totally inaccurate. Students in the majority worked in pencil and when handed their exams thoroughly reviewed their marks for errors by teaching staff. Highly competitive, students fought for every point and it is highly unlikely if they even looked at others until they were satisfied with their own marks.19 |
At the same time, WO Snell repeated this explanation of why he was convinced that the applicant had cheated:
| Ref: Synopis of Events dated 30 Oct 92 (enclosed) |
| 1. With the exception of the last paragraph, Ref was drafted by myself and details the incident in which A/WO Parise was caught with an altered document. It was my practice to detail any incident involving students and retain the details with their documents. Although brief, the enclosed is accurate and factual, A/WO Parise's exam paper was altered on the morning of the 29 Oct 92. My insistence on a review of his exam paper on the 28 Oct 92 was dedicated to getting this individual a pass on the exam and there was nothing written in the right margin of his text at that time. His exam paper was reviewed and every point deduction explained, if I could have identified any arguable points, I would have awarded A/WO Parise a pass. As I am not bi-lingual, every point was discussed with the french instructers in the office at that time, and the result was a Fail. While every other point deduction may require a french speaking ability, the "WHO" does not, and was not in the text at the time of my review. Had the text of the exam been written in the manner as A/WO Parise claims, the script in the margin would have been circled in red by the staff and points deducted for format, and no points deducted for the "WHO".20 |
| 2. WO Ouellette was and is highly respected for his character and received high praise from his students for his actions on their behalf. It is likely that he did brief them to ensure that their exam papers were complete and included all five "W"s, however, it is standard practice to do this prior to exam start not afterward. |
| 3. After A/WO Parise had been told by the Comdt that he was being "RTU"d, I had the member in my office and advised him of the situation that he was in. At this time he completely altered his story and told me that WO Ouellette had instructed him to alter the exam after the fact. At this point I advised him that he had the right of redress and that his constantly changing stories were only defeating his cause.21 |
| 4. Although not really relevant to the issue, I found it somewhat unusual that not one student came forward on this student's behalf. Students are notorious for their very vocal complaints on an perceived injustice on the course, (during the critique session and the Mess Dinner (when it was run)). The only comments I received where to the effect "good riddance".22 |
| 6. While I feel sorry for this individual somewhat, I can not change the facts. HE ALTERED THE PAPER AFTER THE FACT. There is no possibility that I could have missed the "WHO".23 |
A grievance synopsis was prepared in light of this evidence and communicated to the applicant on March 9, 1994 with a copy of all the relevant documentation. The applicant was then invited to present his position, which he did on or about June 15, 1994. A final follow-up was performed by Major Dubois who, in a telephone conversation report dated June 22, 1994, wrote the following:
| [Translation] |
| After receiving Sgt Parisé"s comments on the documents that were disclosed to him on 9 March 94, I again contacted WO Snell at NDHQ on 16 June 94. He repeated to me that in Oct 92, in the hope that a passing mark could be awarded to Sgt Parisé, he had reviewed the disputed exam paper. He had then turned this work over to WO Ouellette (Sgt Parisé"s instructor) and to another instructor, WO Simard, for them to review the work once more. Unfortunately, there was no way that further marks could be awarded, and it was a failure. However, following the classroom review led by WO Ouellette, in which the students individually reviewed their work, Sgt Parisé asked his instructor why 20 points had been taken off him in para 1 of his exercise. CWO Snell says that "ADJUM MR WRONG" was now added in the right margin of para 1, although it had not been there when the instructor corrected it or at the time he himself had seen this work. The disputed addition was therefore underlined and marked with an arrow to draw it to the Commandant"s attention. CWO Snell also says that if this addition had been present during the correction, it would have been circled and checked with a red pencil " which was not done.24 Furthermore, the correction that is circled above para 1 would not have been inserted in that location by the instructor if the necessary information had already been present in the margin, as Sgt Parisé maintains.25 |
| Concerning Sgt Parisé"s allegation that this situation was not investigated professionally by the School authorities, although no formal investigation in the sense of a summary investigation was instituted, some staff members and students were queried and, in particular, some precise and detailed notes of the events were written down on 30 oct 92. These have already been disclosed to Sgt Parisé. |
| On 16 June 94, I contacted WO Ouellette, now at CFB Valcartier. He recalls this incident very clearly and categorically states, himself, that the addition of this work was not present in the right margin at the time he did either the initial correction or the additional review, but that it was there after Sgt Parisé had access to it during the classroom review of the papers. He also confirms that before awarding the final mark he had consulted other instructors, to whom he showed the work, including WO Simard and P1 Emond, in addition to WO Snell. All agreed that it lacked some of the information required in para 1 (the "who"), which represented a loss of 20 points, and that the final mark was a Fail. |
| On 22 June 94, I contacted WO Simard at the CF Academy of Leadership and Languages at CFB Borden. WO Simard said he was positive that the notation "Adjum MR Wrong" was not in the margin at the time of the review he had conducted of this paper accompanied by WO Ouellette. He also says he saw this paper again after the classroom review and that at that point the notation in question had been added. |
| CONCLUSION |
| The three members and former members of the CFALL teaching staff cited above all affirm without reservation that Sgt Parisé"s work was altered between the time of correction (and some additional reviews) by the instructors and the time when Sgt Parisé returned to see his instructor after the classroom correction. In that interval, apart from the teaching staff, only Sgt Parisé had access to his work. The only logical explanation is that he must have added the disputed notation during the classroom review.26 |
The file was then forwarded for a decision, with a recommendation that the grievance be dismissed. On August 21, 1995 the Minister adopted this recommendation, while stating that the evidence demonstrated beyond any doubt that the applicant had cheated.27
ANALYSIS AND DECISION
Counsel for the Minister submitted to me that the applicant had been given a "paper trial" and that the numerous underlying written documents unequivocally demonstrate that the applicant was accorded all the procedural guarantees to which he was entitled. I disagree completely with this contention and I have reproduced in the first part of this judgment the essence of these documents to show clearly that such is not the case.
What these written materials show is that the procedure that led to Major Lévesque"s decision was initiated and concluded on the very day of the incident, that the applicant was in attendance for only a very brief portion of the investigation, that he was not given an opportunity to present his witnesses and that all the instructors who were queried, with the exception of one, were queried outside his presence. In short, the conclusion that he cheated is the outcome of a procedure whose one and only virtue was that it was extremely expeditious.
I would particularly draw attention to that aspect of the investigation that dealt with the two witnesses identified by the applicant once he had an opportunity to corroborate his innocence. WO Snell, in his report written up the day after the event, states that the witnesses in question refused to confirm the applicant"s statements28 although the statements they both signed clearly suggest the opposite.29 Moreover, MWO Morasse, who questioned these two individuals on the day of the event, was unable to recall their names when later queried on the matter.30 Even more surprisingly, Major Lévesque, who actually rendered the decision, stated on August 10, 1993 that the applicant had been unable to identify "his supposed witnesses" and that "he had not interviewed them, therefore."31 No problem: two days after saying this, Major Lévesque, after consulting MWO Morasse, changed his mind and acknowledged that these interrogations had occurred, while dismissing them as "completely unofficial", as he put it.32 WO Snell was likewise forced to retract his words, but he dismisses the testimony of both witnesses by claiming that in any event no credibility can be given to statements by students.33 Notwithstanding this floundering, Major Dubois, in his final report on June 22, 1994, notes the professionalism of the investigation by emphasizing that some students had been queried and that some precise and detailed notes had been written on the actual day of the event.34 Clearly, the exercise that resulted in a finding of cheating was not a serious one, nor was the grievance review process.
In the context of this proceeding it is unnecessary for me to determine whether the applicant did or did not cheat on the morning of October 29, 1992. Moreover, I must acknowledge that I would be unable to decide this question one way or the other.35 I must, however, focus on the process that led to the finding of cheating and in particular the issue of whether the Minister could, in light of this process, dismiss the applicant"s grievance as he did.
It is common ground that what was at stake in the context of this proceeding was the personal integrity of the applicant himself, with all the attendant consequences. It is also trite law that a decision, albeit apparently administrative in nature, entails a duty to act fairly if it is likely to have significant repercussions on the person affected, and that this duty is proportionate to the seriousness of those repercussions.36
Bearing in mind the seriousness of the allegation weighing against the applicant, there was no justification for Major Lévesque"s decision to try him forthwith, thereby depriving him of a full answer and defence.37 There is absolutely no merit in the contention of respondent"s counsel when she says that the applicant cannot complain that he was not subject to the formal procedure since he would in that case have been liable to imprisonment. The repercussions of the decision that was rendered against the applicant were just as devastating; a person who protests his innocence is asking only one thing, namely, an opportunity to be heard and to make representations. The applicant did not have that opportunity.
In Howe v. Institute of Chartered Accountants, Laskin J.A. of the Ontario Court of Appeal expressed the following opinion in regard to disciplinary proceedings that are likely to affect the reputation of the person involved:
| Discipline proceedings are near the judicial end of the spectrum of administrative decision-making. Therefore they call for disclosure that exceeds the minimum requirements of s.8 of the Statutory Powers Procedure Act and that approaches the kind of disclosure applicable in court proceedings. To use Dickson J."s phrase in Kane v. Board of Governors of the University of British Columbia, discipline proceedings require "a high standard of justice". The reason is obvious. Discipline proceedings may have serious consequences on a person's livelihood, reputation and professional career. For some professionals, a finding of professional misconduct is more serious than a criminal conviction.38 |
Whatever one"s opinion on the merits of Major Lévesque"s decision, it is the outcome of a process that did not enable the applicant to be fully heard, and the Minister, confronted with this situation, had an obligation to give effect to the grievance filed by the applicant. As LeDain J. explained, in Cardinal v. Director of Kent Institution :39
| ... I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right...on the basis of speculation as to what the result might have been had there been a hearing. |
Beyond this, the grievance procedure did not in any way remedy the fundamental errors that had characterized the hearing. The position expressed by Major Lévesque and WO Snell in the grievance context, given the fact that neither had heard the witnesses who were favourable to the applicant or was even aware of their existence, could not of course justify their omission. The fact that the documentary evidence indicates that only witnesses hostile to the applicant were contacted by those who had to assess the merits of the grievance is likewise indicative of the spirit in which the process unfolded.
I conclude, therefore, that the Minister, in his outright dismissal of the applicant"s grievance, acted in violation of the law. An order shall issue allowing judicial review and setting aside the decision of Major Lévesque on the ground that the process that resulted in a finding of cheating, dated October 29, 1992, denied a hearing to the applicant.
Normally, I would enjoin the Minister to subject the applicant to a new disciplinary proceeding, and to provide the necessary redress in the event that his innocence was upheld. However, I was informed in the course of the hearing that the applicant has now left the Armed Forces voluntarily and thus can no longer be subject to a disciplinary hearing.
In these circumstances, my order will be limited to quashing the Minister"s decision, setting aside the finding of cheating, and ordering that the applicant"s terms of departure from the Armed Forces be adjusted to concord with the rank he held before he was characterized as a cheat, to the extent that such rank would have entailed different terms of departure.
| Marc Noël |
| Judge |
Ottawa, Ontario
July 2, 1997
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO.: T-949-96 |
| STYLE: J. ROGER PARISÉ |
| v. |
| HER MAJESTY THE QUEEN |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: JUNE 17, 1997 |
REASONS FOR JUDGMENT OF NOËL J.
| DATED: JULY 2, 1997 |
APPEARANCES:
| BERNARD BLANCHARD FOR THE APPLICANT |
| NADINE PERRON FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| B.E. BLANCHARD ET ASSOCIÉS FOR THE APPLICANT |
MONTRÉAL, QUEBEC
| GEORGE THOMSON FOR THE RESPONDENT |
DEPUTY ATTORNEY GENERAL
OF CANADA
__________________1 The relevant section in the National Defence Act , R.S.C. 1985, c. N-5 states that an officer or non-commissioned member who considers that he has been adversely affected by a military decision may seek redress from the designated authorities. The appropriate procedure is prescribed in sections 19.26 and 19.27 of the Queen"s Regulations and Orders for the Canadian Forces.
2 Applicant"s Record, Exhibit R-1. Quotations in this judgment are reproduced textually and without correction.
3 These words were subsequently corroborated by Sgt. Grenier, who was present at the examination, and who stated on December 1, 1992: [Translation] On October 28, 1992, between 0800 hrs and 1040 hrs, on several occasions during the Military Correspondence examination, while he was walking between the aisles of desks in the classroom, WO Ouellette reminded us to check our WHOs, [which] is our signature blocs. [Applicant"s Record, Exhibit R-12, 6th page]
Moreover, on December 1, 1992, WO Line Mailloux, a dental hygienist, signed a statement explaining that: [Translation] WO Parisé, about 5 minutes toward the end of the examination period, re-entered the classroom following a suggestion by WO Ouellette, who said approximately the following: You have some time in which to review your paper, go ahead and arrange your affairs if you need to. I was the only other person present and I can confirm that WO Parisé sat down again in the classroom with his exam paper. But I don"t know whether he made any changes or what they were, and I don"t know exactly what WO Ouellette said to WO Parisé. Except use the time left to you if you want to change something. [Applicant"s Record, Exhibit R-4]
4 Applicant"s Record, Exhibits R-5 and R-6 respectively.
5 Applicant"s Record, Exhibit R-3. Application for Redress, Schedule A, paragraph 7.
6 Applicant"s Record, Exhibit R-8.
7 The record indicated that this report, with the exception of the final paragraph, was written by WO Snell [see the first sentence in the brief drafted by WO Snell, dated August 20, 1993, Applicant"s Record, Exhibit R-14].
8 In this regard, the record disclosed that the applicant consistently identified military personalities in capital letters in his examinations. As to the thickness of the pencil lead, a visual observation of copies does not reveal any perceptible difference; the originals were not put in evidence. [See Applicant"s Record, Exhibits R-7 and R-24, respectively.]
9 According to the report by MWO Morasse, written on the actual day of the event, WO Ouellette had told him instead that the words in question were "probably added during the correction". [Handwritten notes of MWO Morasse, Applicant"s Record, Exhibit R-23.]
10 Applicant"s Record, Exhibit R-9.
11 Applicant"s Record, Exhibit R-10.
12 Applicant"s Record, Exhibit R-11, 6th page.
13 Applicant"s Record, Exhibit R-12.
14 Applicant"s Record, Exhibit R-11, 7th page.
15 See in this regard the comment that appears at note 8.
16 Applicant"s Record, Exhibit R-13.
17 Applicant"s Record, Exhibit R-13, 2nd page.
18 Applicant"s Record, Exhibit R-15, summary of grievance, page 6.
19 Applicant"s Record, Exhibit R-14.
20 The evidence contradicts the latter statement. In a military letter drafted during the same session, the applicant identified another military personality ["Major Goodlam"] identically without the words in question being circled or any points being deducted for format. [Applicant"s Record, Exhibit R-24].
21 In regard to what is stated in this paragraph, the applicant noted in the context of his grievance that WO Snell does not speak French and that he himself speaks English only with difficulty. He explained that he had just been found guilty and was trying to relate to WO Snell how WO Ouellette had suggested to him to review the examination to ensure that he had not failed to indicate the "who"s". It is in this context, he says, that WO Snell mistakenly understood that "At this time he completely altered his story and told me that WO Ouellette had instructed him to alter the exam after the fact."
22 In regard to what is stated in this paragraph, the applicant produced a statement by seven officers who were present during the regimental dinner in question, all of whom confirm that they did not hear any derogatory comments in regard to him but that on the contrary his presence was demanded by the group. [Applicant"s Record, Exhibit R-16]
23 Applicant"s Record, Exhibit R-14.
24 See in this regard the comment that appears in note 20.
25 I note, however, that the correction would also have been made had the instructor simply neglected to note the addition in the margin.
26 Respondent"s Record, Exhibit C-1.
27 The text of the decision is reproduced under note 2.
28 Applicant"s Record, Exhibit R-12. It should be noted that Major MacInnis also repeated this statement in the context of the grievance review: Applicant"s Record, Exhibit R-11, 6th page.
29 Applicant"s Record, Exhibits R-5 and R-6. Lieut.-Col. Brownlee cited this contradiction as early as August 4, 1993, Applicant's Record, Exhibit R-13.
30 Applicant"s Record, Exhibit R-15, page 7, paragraph 13 in fine .
31 Applicant"s Record, Exhibit R-15, grievance synopsis, page 6, paragraph 11.
32 Applicant"s Record, Exhibit R-15, grievance synopsis, page 7, paragraph 13.
33 "Student claims that they were not allowed pencils during exam corrections or that they monitored other student movements are totally inacurate. ... Highly competitive, student fought for every point and it is highly unlikely if they even looked at others...." [Applicant"s Record, Exhibit R-14]
34 Respondent"s Record, Exhibit C-1, 2nd paragraph.
35 In this regard, the only overwhelming evidence is circumstantial. WO Snell in particular swears that he did not see the added material at the time of the correction and infers from this that it must have been added during the review. He adds that since he was looking for points that would give the applicant a passing mark, he necessarily would have identified the added material if it had been there. However, WO Ouellette, who performed the initial correction, is more circumspect, at least judging by his initial position. Indeed, that position, as it was described on the actual day of the incident, was that the added material was not there during the correction and had "probably" been added during the review. [Applicant"s Record, Exhibit R-23.] As to the other two instructors to whom WO Ouellette is said to have shown the examination before confirming the failure, they were ultimately identified in the final report of June 22, 1994 as being WO Simard and P1 Emond, but only WO Simard was contacted to confirm his version of the facts. [Respondent"s Record, Affidavit of Jean Caron, paragraph 33.]
36 Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at 677.
37 I have in mind in particular the fact that Major Lévesque, in his haste, rendered his decision in complete ignorance of the testimony on which the applicant was relying in order to demonstrate his innocence.
38 Howe v. Institute of Chartered Accountants, 19 O.R. (3d) 483, at 495. Laskin, J.A."s opinion was expressed in the context of a minority decision, but there is nothing in the majority decision that would impugn the aptness of the words cited above.