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 involvment 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.

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 official version of the regulations for the precise verbage of the subordinate regulation. Further clarification can be found in departmental policy specified in 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 asserts that the regulation applies to all officers and non-commissioned members. This should be read in conjunction with section 60 of the NDA which defines the limitations of the disciplinary jurisdiction of the Code of Service Discipline.

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 a report attacking the validity of drug testing in the Federal sector with an analysis that includes the Canadian Forces.

Deterent 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.

Incident-Related Testing

If drug use is believed to have occured 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 occured. 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.

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. Administrative action usually would consist of a 1 year period of Counselling and Probation. Release through administrative action is also possible even after a first offence. 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:
- Privacy Commissioner's Report on Drug Testing
- Drug Testing and Legal Implications
- Gayler v. Canada
- Canadian Human Rights Act, Canadian Human Rights Commission, Canadian Human Rights Tribunal
- Canadian Bill of Rights [1]
- Canadian Charter of Rights and Freedoms