MPCC-2000-029, MPCC-2000-030, MPCC-2000-031, MPCC-2000-032, MPCC-2000-052, MPCC-2000-062

Facts and Complaint

The complainant alleged that several members of the Military Police:

  1. Made a false statement on a criminal matter; specifically, failing to perform lawful duty, obstruction of justice and abuse of authority;
  2. Conducted an investigation without proper authorization; namely, abuse of authority, obstruction of justice and disobedience to a lawful command;
  3. Conducted a closed investigation into allegations of unlawful disposal of sensitive documents and failed to interview all the relevant witnesses; specifically, obstruction of justice, cover up and unprofessional behavior;
  4. Became aware of an incident and failed to report it, lied to a representative of the Office of the Privacy Commissioner of Canada, unprofessionally delayed an investigation; specifically, abuse of authority, obstruction of justice and accomplice to aiding a crime;
  5. Dismissed two of his complaints and put two in abeyance; specifically, abuse of authority, obstruction of justice and misrepresentation;
  6. Delayed the investigation into allegations that Military Police misused equipment during official inspections and were involved in a cover up to minimize the Office of the Privacy Commissioner of Canada investigation; specifically, conspiracy to cover up, abuse of authority and neglecting duty, and
  7. Improperly conducted the investigation into allegations of improper use of equipment during official inspections.

Decision of the Canadian Forces Provost Marshal

In this case, the seven complaints were submitted to the Canadian Forces Provost Marshal. With respect to complaints 1 and 2, the Deputy Provost Marshal Professional Standards decided not to investigate and informed the complainant that he could appeal this decision to the Canadian Forces Provost Marshal if he was not satisfied. A Professional Standards investigation ordered into complaints 3, 4 and 6 held that the Military Police members involved acted professionally and reasonably, as well as in accordance with established Military Police policies. Regarding complaint 5, the complainant was informed of the decision to await completion of the investigation by the National Investigation Service. No investigation was ordered into complaint 7 because it was determined that the Military Police member in question was performing an administrative function, not a policing one.

The complainant asked the Complaints Commission to review his case.

Findings and Recommendations of the Chairperson of the Military Police Complaints Commission

A- Complaints 1 and 2

The Complaints Commission had no jurisdiction to examine the first two complaints because the events occurred before the creation of the Commission (December 1, 1999). The jurisdiction was with the Canadian Forces Provost Marshal who has responsibility for applying the procedures in existence prior to December 1, 1999.

B- Complaint 3

A review of the documentation found that the facts did not support the complainant's third allegation that the Military Police decided to investigate the allegations of improperly disposed sensitive documents containing personal information only after the matter was reported to the Office of the Privacy Commissioner of Canada.

The Military Police member who investigated the improper disposal allegation found it unsubstantiated. However, his supervisor should have reviewed the investigation and should have ordered a more detailed investigation if he found anything had been overlooked. He should also have informed the complainant of the investigation's conclusions. Further, the supervisor did not notice that the investigator had not interviewed some significant witnesses. Such practice is inconsistent with policy and good police practices and techniques.

Conversely, the Office of the Privacy Commissioner of Canada concluded that the complainant's allegation of improper disposal of documents containing personal information was well founded. However, it is not the practice of the Office of the Privacy Commissioner of Canada to decide whether or not an offence has been committed, and its enabling legislation does not permit the disclosure of the investigation information. The Chairperson found it troubling that two different conclusions were reached in the investigation of this allegation.

The complainant advised that some of the evidence, consisting of sensitive documents, had been buried in a city landfill. The Chairperson found that, since those documents were irretrievable, it was understandable that they were not taken into evidence during the investigation.

The complainant also alleged that his affidavit was not taken into consideration during the investigation. However, a review of the documentation indicated that his affidavit had been considered and parts of it were even included in the investigation reports.

The complainant's allegations of obstruction of justice and conspiracy to cover up the improper disposal were not supported. To prove an obstruction of justice offence, it must be established that the purpose of the action was to intentionally obstruct, pervert or defeat the course of justice. Furthermore, to prove a conspiracy, there must be both the intention and the agreement of two or more persons to do a lawful act by unlawful means or to do an unlawful act. Once the parties have agreed to do things, a conspiracy is committed, even if they do not perform the acts agreed upon.

The complainant's lack of cooperation with the Professional Standards investigation was unfortunate. However, it did not discharge the Military Police member from completing the investigation, including interviewing all the relevant witnesses, as per Military Police Policies, A-SJ-100-004/AG-000, Chapter 9 Military Police Investigations - General.

The supervisor was responsible for reviewing the investigation and for responding to the complaint. He was performing a policing duty or function pursuant to subsection 2(b), 2(h) and 2(g) of the Complaints about the Conduct of Members of the Military Police Regulations, and not an administrative one, as stipulated by the Deputy Provost Marshal Professional Standards. The complainant's allegations about the supervisor should be investigated. Moreover, in classifying the supervisor's action as administrative, the Deputy Provost Marshal Professional Standards inappropriately quoted the entire National Defence Act without specifying the relevant sections.

Recommendations

In view of the differing conclusions reached by the Office of the Privacy Commissioner of Canada and the Canadian Forces National Investigation Service and the fact that all relevant witnesses were not interviewed, the Canadian Forces Provost Marshal should reopen the investigation into the disposition of documents containing personal information.

The Deputy Provost Marshal Professional Standards misinterpreted subsections 2(b), 2(h) and 2(g) of the Regulations, and he should, therefore, re-examine the complainant's allegations against the member's supervisor.

Further, when making reference to legislation, the specific sections should be quoted in view of the Canadian Forces Provost Marshal's duty to educate and assist complainants with their complaints.

C- Complaint 4

The complainant's allegation that he was lied to with regards to the incident being brought to the attention of the Military Police was unfounded, since the Military Police member did in fact inform members of his detachment.

Additionally, the complainant's allegation that the Military Police member lied to the representative of the Office of the Privacy Commissioner of Canada was also unfounded because the two people had never spoken. However, there is some merit to the complainant's allegation that he was misled about the completion dates of the investigation. This conduct was not malicious, but was the result of a personal situation involving the member. The allegation of abuse of authority was unsupported because it did not meet the definition of “an unlawful or unnecessary exercise of authority”. Further, even if the Military Police member had lacked diligence in his work due to his personal situation, his actions did not obstruct justice as alleged by the complainant and they did not constitute a criminal offence or imply participation in a crime, since he did not act deliberately with a specific intent. Nevertheless, the delay should have been brought to the attention of the member's superiors earlier. This oversight also contributed to the unreasonable delay in the investigation. The Chairperson was pleased that a weekly briefing session with all investigators has been initiated in order to prevent similar delays in future.

Finally, the complainant's allegation that the delay caused by the Military Police member constituted a crime because it allowed the limitation period to run, thereby granting immunity to some of the members involved, was not supported. Even if the delaying of an investigation outside of the statutes of limitation period had occurred, it would not have, in itself, constituted a criminal offence or implied participation in a crime. In this case, for there to have been criminal liability, the subject member would have had to act deliberately with an intent to either obstruct or participate in the obstruction of justice, or would have had to act under an improper motive.

The Deputy Provost Marshal Professional Standards investigation concluded that the Military Police member had acted professionally and that his actions had been addressed by his superior. However, as per section 250.29(c) of the National Defence Act and following the Ontario Court's decision in Southam v. The Attorney General of Canada [1997] 36 O.R. (3d) 721, the complainant should have been informed of the summary of action taken regarding the subject of his complaint. If the allegations of professional misconduct were founded, the complainant should have been made aware of the steps that had been taken to address the misconduct or the steps that would be taken to prevent future similar cases. Without having received a detailed investigation report's summary of action, the complainant would have found it difficult to be satisfied that justice had been done. Stating that the Military Police member's actions would be addressed by his Chain of Command did not fulfill the complainant's need. The summary of action is important in order to bring transparency and openness to the process, as well as confidence in the military justice system in general.

Recommendation

A programme tracking the progress of Military Police investigations should be implemented by the Canadian Forces Provost Marshal to prevent unnecessary delays in future investigations.

Complainants should be notified as soon as possible of any and all actions that have been or will be taken with respect to the disposition of complaints, including any action taken concerning the subject member.

D- Complaint 5

The complainant was made aware that the Complaints Commission had no jurisdiction to review two of his complaints. He was advised of his right to proceed with the Canadian Forces Provost Marshal regarding those cases. There was no abuse of authority, obstruction of justice or misrepresentation by the Military Police member who followed the appropriate procedures.

Further, it was appropriate for the Deputy Provost Marshal Professional Standards to put the case in abeyance while it was being assessed by the Canadian Forces National Investigation Service. This action did not amount to an abuse of authority, obstruction of justice or misrepresentation by the Military Police.

E- Complaints 6 and 7

The complainant's allegation of a cover up of activities by the Military Police was unfounded. The Office of the Privacy Commissioner of Canada did not disclose the investigation documents or final report because the legislation prohibits it from doing so, not because of any influence by the Military Police.

Furthermore, the allegation of abuse of authority while investigating the misuse of equipment was unsubstantiated. The Military Police member's handling of the complainant's allegation was appropriate.

However, the Chairperson disagreed with the Deputy Provost Marshal Professional Standards's decision that the member who responded to the complaint in writing, but did not conduct the investigation, was performing an administrative duty. A supervisor who reviews the work performed by one of his investigators and responds to the complainant is performing a policing duty or function. The supervisor should be held accountable for quality assurance of the investigatio.

Recommendation

The Military Police member who responded to the complainant was performing a policing duty or function, not an administrative one. Therefore, the complaint against him should be addressed by the Canadian Forces Provost Marshal.

Chairperson's Reply Following the Canadian Forces Provost Marshal Notice of Action

The Canadian Forces Provost Marshal accepted all the findings and recommendations made by the Chairperson.

The Chairperson was pleased to note that the Canadian Forces Provost Marshal was in the process of implementing the Security and Military Police Information System in order to assist case managers in keeping track of investigations.

Further, the Canadian Forces Provost Marshal advised the Chairperson that complainants would be informed of the investigation findings, as well as the actions taken with respect to the disposition of the complaints. This is consistent with section 250.29 of the National Defence Act, which imposes disclosure obligations on the Canadian Forces Provost Marshal.

With regards to the Canadian Forces Provost Marshal's duty to assist, the Chairperson noted that section 250.21(2)(b) of the National Defence Act goes beyond requiring that the complainant be given an acknowledgement of receipt. It requires providing assistance to the complainant and explaining the next steps in the process. The Military Police should also direct the complainants to the proper agencies when the complaint is not within their jurisdiction. This duty to assist is also found in subsection 2(1)(b) of the Complaints about the Conduct of Members of the Military Police Regulations, which define the policing duties and functions under Part IV of the National Defence Act.

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