FORCES SWITCHED GEARS ON FIRING SOLDIERS FOR FAILED DRUG
TESTS

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.

Of the 72 soldiers who flunked drug tests conducted at CFB Gagetown
in New Brunswick last September, documents show 79 per cent tested
positive for marijuana, 11 per cent had cocaine in their systems,
five per cent tested positive for codeine and five per cent had both
marijuana and cocaine in their urine.

Of about 2,276 soldiers tested by last week, a total of 88 have
tested positive for illicit drug use. Three others got in trouble for
providing diluted urine samples more than once.

Those soldiers, as well as five who admitted to taking drugs, won't
be making the trip to Afghanistan because they are undergoing an
administrative review.

Generally, those people will be put on counselling and probation for
up to a year and have to undergo more drug testing, Lt.-Cmdr. Babinsky said.

If they fail another drug test during that period, they'll be
released from the military, he said.