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Canadian Armed Forces justified in releasing soldier over harassment allegations, despite fact criminal charges were withdrawn

by HR Law Canada

The Canadian Armed Forces (CAF) was justified in releasing a soldier who was found to have sexually harassed a colleague following a workplace investigation, the Federal Court has ruled.

EZ, a first-generation immigrant from Iran, joined the CAF on February 27, 2017. His release stems from an alleged sexual assault on June 26, 2017, against another CAF member.

This incident led to three different proceedings: criminal charges, an Administrative Review under the Defence Administrative Orders and Directives, and an official sexual harassment complaint that led to a Harassment Investigation.

Criminal charges withdrawn

On July 5, 2017, EZ was arrested and charged with sexual assault. However, the criminal charges were withdrawn in May 2018 as the threshold for a reasonable prospect of conviction had not been met. The criminal charges’ withdrawal did not halt the other proceedings.

An Administrative Review was initiated by EZ’s Commanding Officer (CO) in December 2017, led by the Director Military Careers Administration (DMCA), who is tasked with determining the fitness for continued service in the CAF. In June 2018, the victim filed a formal harassment complaint, resulting in two simultaneous proceedings.

In October 2018, an experienced workplace investigator, Jennifer White, was hired to continue the Harassment Investigation. After interviewing witnesses and both parties involved, she issued a final report on Jan. 15, 2019, concluding that the events constituted harassment. EZ denied the allegations and argued that the victim’s allegations were racially motivated.

On Feb. 7, 2019, the DMCA issued a second synopsis as part of the Administrative Review, maintaining its initial view that EZ should be released from the CAF. The final decision was issued on May 22, 2019, by the DMCA, who found that the victim’s version of the events was more plausible than EZ’s, directing that he be released from the CAF.

The appeal

EZ appealed that decision to the Federal Court. He argued that the decision was not justified, or transparent, and had a predetermined outcome.

He also said the final authority (FA) in this case incorrectly weighed evidence, focusing too much on the investigator’s findings rather than looking at the evidence with fresh eyes. EZ also pointed out inconsistencies in the evidence and hearsay and argued the FA failed to consider the remedial measures he had already committed to and the racist comments made against him.

Finally, EZ pointed out there was only a single allegation against him and he did not post a risk to workplace safety nor did he have any disciplinary concerns or actions on his record.

But the respondent in this case, the Attorney General of Canada, maintained that EZ was not suitable for further service in the CAF and should be released. It argued that an Administrative Review is required for all instances of misconduct and the court should not reweigh evidence.

It also noted that sexual misconduct is serious and even an isolated incident can damage trust in a harassment-free workplace. As for the lack of a criminal conviction in this case, it said that didn’t immunize EZ from administrative repercussions, including release from the CAF.

The court ruled the decision to dismiss EZ from service was reasonable. The decision to release him is one of the “possible, acceptable outcomes which are defensible in respect of the facts and law.”

It dismissed the application for judicial review and awarded costs to the respondent.

For more information, see Zabihiseasan v. Canada (Attorney General), 2023 FC 1119 (CanLII)

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