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Annual Report 2003 - Moving Forward with Commitment
ACTIVITIES
MONITORING, REVIEW AND INVESTIGATION OF COMPLAINTS
OVERVIEW
The Military Police Complaints Commission was established to provide independent, civilian oversight of the Canadian Forces Military Police. As such, Parliament has provided the Complaints Commission with certain powers to enable it to carry out this mandate, including primary jurisdiction over the investigation of complaints of interference with Military Police investigations.
While the investigation of complaints about the conduct of military police in the performance of their policing duties and functions (These are set out in the Complaints About the Conduct of Members of the Military Police Regulations; see Annex H) is the responsibility of the Canadian Forces Provost Marshal, the Complaints Commission has broad powers to monitor the handling of complaints by the Provost Marshal and her delegates.
This monitoring function is necessary to ensure the transparency of the complaints process (Annex E), and to support the Chairperson's power to cause the Complaints Commission to assume responsibility for the handling of a conduct complaint at any time in the process if she deems this to be in the public interest. This power to assume responsibility for dealing with conduct complaints applies even to cases where a complaint has been withdrawn.
The Provost Marshal is required to notify the Chairperson of the Complaints Commission when a conduct complaint is received and to provide the Chairperson with the results of any subsequent investigation into the complaint. The Provost Marshal is also required to notify the Chairperson when a complaint is resolved informally, and has agreed to provide the Chairperson with information about the complaint and its resolution sufficient to allow the Chairperson to judge whether the terms of the informal resolution are fair and appropriate.
In all cases, including those in which the Provost Marshal determines a conduct complaint does not warrant investigation or would be dealt more appropriately under another Part of the National Defence Act or another Act of Parliament, the Provost Marshal must notify the complainant of his or her right to ask the Complaints Commission to review the disposition of their complaint.
The Independent Review Authority for the National Defence Act recommends that the subject or subjects of the complaint should also have the right to request that the Provost Marshal's disposition of the complaint be reviewed by the Complaints Commission.
The Complaints Commission welcomes this recommendation, which will increase the fairness and efficiency of the complaints process. Rather than launching their own complaint, this change would allow subject-members who feel aggrieved by conduct complaints made against them, or are dissatisfied with the handling of the complaint and the investigation, to request a review by the Complaints Commission – a more expeditious and cost-effective alternative to the new complaint that would otherwise be required.
During 2003, the Complaints Commission monitored the Provost Marshal's disposition of 34 conduct complaints, and received two requests for reviews of conduct complaints investigated by Professional Standards. No complaints of interference were filed with the Complaints Commission in 2003. In addition, the Chairperson of the Complaints Commission invoked her monitoring power pursuant to Subsection 250.25 of the Act to request all information and materials related to two conduct complaints, one filed in 2001, and the other in 2002. As a result of this process, the Chairperson produced two letters of observation for the Provost Marshal's consideration.
A full summary of the number and type of complaints received and their disposition since the Complaints Commission commenced operations is provided in Annex G to the Annual Report.
CHAIRPERSON'S FINDINGS AND RECOMMENDATIONS
Whether the Complaints Commission is carrying out a review of a conduct complaint, the investigation of an interference complaint, or an investigation or hearing in the public interest, the Chairperson issues two reports.
An Interim Report that includes the findings of the review or investigation and the Chairperson's recommendations is submitted to the appropriate authorities within the Canadian Forces and the Department of National Defence, who are required to respond to the Chairperson with a Notice of Action.
For conduct complaints, the Notice of Action is usually prepared by the Provost Marshal, and for interference complaints, by the Chief of the Defence Staff. In either case, the appropriate authority uses the Notice of Action to advise the Chairperson of any action that has been taken or will be taken with respect to the complaint.
While not binding, if there is a refusal to act on any of the findings or recommendations contained in the Interim Report, the refusal to act must be explained in the Notice of Action.
After considering the response offered in the Notice of Action, the Chairperson prepares a Final Report of findings and recommendations. Copies of the Final Report are provided to both the complainant and the subject of the complaint, the Minister and Deputy Minister of National Defence, the Chief of the Defence Staff, the Judge Advocate General, the Canadian Forces Provost Marshal and all persons who have satisfied the Complaints Commission they have a substantial and direct interest in the complaint.
The Chairperson issued four Interim Reports and five Final Reports during 2003. These reports were issued in relation to a Public Interest Investigation, four requests for review and one interference complaint received during the preceding year. In total, the Chairperson issued 420 findings and 114 recommendations as a result of these nine reports. In addition, the Chairperson produced two letters of observation as a result of a request in two conduct complaints files pursuant to section 250.25 of the Act. The Chairperson produced a total of nine observations in these two letters.
CASE SUMMARIES
In summarizing the findings of the reviews and investigations conducted during 2003, it should be noted that a number of the concerns raised in these cases are issues that have come to light in reviews and investigations carried out by the Complaints Commission in previous years.
Perhaps foremost among these recurring concerns is the importance of the initial contact with the complainant. As stated in the Complaints Commission's Annual Report for 2002, “It is essential that appropriate assistance be provided to the complainant to help them state their complaint clearly and accurately. A written copy of the complaint must be given to the complainant, and it should be discussed with them to ensure its accuracy. Complainants should also be advised of the next steps in the process, and given an overview of what they can expect as the complaint process moves forward.
”
It is clear from the cases reviewed and investigated that this point requires additional emphasis.
In one case, a conduct complaint filed with Military Police was not acknowledged. When making a subsequent inquiry as to the disposition of the complaint, the complainant was told by military police that the complaint could not be processed because it involved a member of the same Military Police unit. This is contrary to Section 250.21(1) of the National Defence Act, which states that, “A conduct complaint or an interference complaint may be made, either orally or in writing, to the Chairperson, the Judge Advocate General or the Provost Marshal. A conduct complaint may also be made to any member of the Military Police.
”
In another case, a conduct complaint was filed against a Military Police member and an investigation into the complaint concluded without the “complainant
” ever knowing that a complaint had been filed on his behalf.
complainant” ever knowing that a complaint had been filed on his behalf.
The Complaints Commission also notes again this year a case where the Canadian Forces Provost Marshal has relied on results of an investigation conducted by the Canadian Forces National Investigation Service to determine whether a complaint about the conduct of a Military Police member was well-founded.
It is accepted practice that a Professional Standards investigation into military police conduct cannot begin until any criminal investigation that may be related to the incident has been completed. This provision does not however, intend that a criminal investigation should be used as a replacement for a Professional Standards investigation. The fact that there has been no criminal wrongdoing does not necessarily mean there has been no police misconduct. As in other professions, police ethics holds members to higher standards of conduct than the criminal law, which applies to everyone.
The Canadian Forces National Investigation Service and the Deputy Provost Marshal Professional Standards have different mandates, and their services should be deployed accordingly.
On a positive note, as mentioned above, a clear trend emerged during the past year that the investigations conducted by the Provost Marshal have more and more often substantiated allegations of police misconduct and supported corrective action without the necessity of a review by the Complaints Commission. This speaks well of the maturity of this police oversight process and the increased rigour that the Deputy Provost Marshal Professional Standards is bringing to the process.
CONDUCT COMPLAINTS – REQUESTS FOR REVIEW
Facts and Complaint
The complainant, a member of the Canadian Forces, wrote to the Complaints Commission stating that his reputation had been damaged by the actions of the Deputy Provost Marshal, Professional Standards. The complainant stated that although he had not filed a complaint against military police, the Deputy Provost Marshal, Professional Standards nevertheless investigated the supposed complaint and further, found the “complaint
” to be unfounded. The complainant also stated that he had been harassed and abused by military police.
Disposition by the Canadian Forces Provost Marshal
Following an investigation of this “complaint
”, the Deputy Provost Marshal, Professional Standards concluded that the complainant had indeed lodged a complaint about the conduct of members of the Military Police. The Deputy Provost Marshal, Professional Standards also concluded that, since there was no indication of any improper conduct by military police related to the complaint, no further investigative action would be taken.
Still concerned that a “complaint
” he had never made was being rejected as unfounded, the complainant asked the Complaints Commission to review the disposition of the case by the Deputy Provost Marshal, Professional Standards.
Issues, Findings and Recommendations
In reviewing the complaint, the Chairperson noted several areas of concern:
a) The Deputy Provost Marshal, Professional Standards dealt with a complaint against herself
The Chairperson found the Deputy Provost Marshal, Professional Standards was handling a complaint that dealt specifically with statements made in a letter she had signed, and with the report of the investigation into the complaint, which she had written. These and other circumstances indicated the Deputy Provost Marshal, Professional Standards was herself a subject of the complaint, and should not have led the investigation into the complaint, but instead referred the matter to the Canadian Forces Provost Marshal.
b) Assisting potential complainants
The Chairperson found that the complainant in this case had no intention of filing a conduct complaint against military police in the first instance, nor had he asked anyone to file a complaint on his behalf. The Chairperson found that, had personnel with Professional Standards exercised their duty to assist complainants in ensuring their complaints are filed properly and provide an accurate expression of their concerns, it was entirely possible the process would have come to a stop at that point.
c) Incorrect information contained in reports and letters from the Canadian Forces National Investigation Service and the Deputy Provost Marshal, Professional Standards
The Chairperson found that the report of the Canadian Forces National Investigation Service investigation into the conduct of military members involved in this case, as well as Canadian Forces National Investigation Service letters concerning the case, contained incorrect information that this individual had filed a conduct complaint against military police. In relying on the report of the Canadian Forces National Investigation Service investigation to conclude the “complaint
” was unfounded, the Deputy Provost Marshal, Professional Standards repeated the error.
In her report, the Chairperson noted that these are the type of problems that can occur when Professional Standards relies on the results of investigations by the Canadian Forces National Investigation Service to make decisions on the professional conduct of Military Police members.
The mandate of the Canadian Forces National Investigation Service is to investigate allegations of criminal or service offences.
Professional Standards has an equally specific role, and that is to determine whether the conduct of a Military Police member in the performance of a policing duty or function was appropriate and professional, for example, did they perform their policing duties properly; thus, a Professional Standards investigation is much broader in scope and more likely to examine conduct that might not be considered by a Canadian Forces National Investigation Service investigation.
d) The application of subsection 250.28(2)(c) of the National Defence Act – (This section of the Act gives the Canadian Forces Provost Marshal the discretion to refuse to investigate a conduct complaint or to end an investigation if, in the opinion of the Provost Marshal, investigation is not necessary or reasonably practicable.)
In her review, the Chairperson stated her belief that the Canadian Forces Provost Marshal should exercise the authority not to investigate a conduct complaint in only the most clear-cut circumstances. In this case – where the Deputy Provost Marshal, Professional Standards investigated a complaint of which she was a subject, based her decision not to investigate on incorrect information supplied by the Canadian Forces National Investigation Service, and where the Chairperson found evidence that Military Police members may have acted unprofessionally – the Chairperson found those clear-cut circumstances did not exist.
The Chairperson recommended the handling of the case by the Deputy Provost Marshal, Professional Standards be referred to her senior officer, the Canadian Forces Provost Marshal, for a thorough review
Facts and Complaint
In this case, a member of the Canadian Forces complained that military police had not conducted a proper investigation into her allegations that another member of the Canadian Forces had assaulted her, and directed threats and racist remarks toward her in an incident some 11 years earlier.
Disposition by the Canadian Forces Provost Marshal
After reviewing the documentation, the Deputy Provost Marshal, Professional Standards advised the complainant that her complaint would not be investigated. The complainant asked the Complaints Commission to review the case.
Issues, Findings and Recommendations
The issues related to this complaint identified by the Chairperson included:
a) The handling of the conduct complaint by military police
In subsection 250.21(1), the National Defence Act allows that a conduct complaint against military police can be filed with a number of authorities, including “any member of the military police.
”
The Chairperson considers that, as a locus for receiving complaints under the Act, military police have a duty to ensure complainants' rights are respected, including informing them of those rights, as well as assisting them in enunciating their complaint if necessary.
In this case, though the complainant filed a conduct complaint with Military Police, the complaint was not acknowledged, nor was notice of the complaint given to the Canadian Forces Provost Marshal or the Complaints Commission, as required under subsection 250.21(2)(c)(i) of the National Defence Act.
b) The military police decision not to investigate the allegations of assault and threatening and racist behaviour
In this case, the complainant had submitted the assault complaint in writing to a senior officer who, in turn, forwarded the complaint to the Canadian Forces National Investigation Service. After reviewing the complaint, and speaking to the complainant by telephone, the Military Police member assigned to the case met with counsel for the Crown and, based on that discussion, decided not to investigate the complaint.
The Chairperson noted that the proper administration of justice in this case required that, as a minimum, the Military Police member should have met with the complainant and taken a formal statement. The Chairperson found that the Military Police member did not keep proper notes of his telephone conversations with the complainant, nor did the member's notes provide sufficient information about his discussions with the counsel for the Crown.
The latter is an important point in this case, as the incident to which the complaint referred is alleged to have happened in the province of Quebec. In Quebec, unlike other provinces, police investigate a complaint and take the results of the investigation to counsel for the Crown, who decides whether charges will be laid. In this case, it appeared the Military Police member went to the Crown for advice on whether to investigate.
The Chairperson found that, while the initial assault complaint was sufficiently detailed to allow the Military Police member assigned to the case to exercise discretion in whether to proceed with an investigation, the member's method of proceeding in this case should not be allowed to become standard police practice.
c) The manner in which the Deputy Provost Marshal, Professional Standards advised the complainant that her conduct complaint would not be investigated
While concluding that the Deputy Provost Marshal, Professional Standards was correct in deciding not to pursue an investigation into the conduct complaint, the Chairperson found the manner in which the Deputy Provost Marshal, Professional Standards advised the complainant that her conduct complaint would not be investigated was not in keeping with the spirit of the National Defence Act.
Given the often lengthy and complex nature of such documents, making only general references to statutes, policies and technical directions to explain a decision to a complainant detracts from the transparency of the complaints process. The Chairperson thus recommended that the Deputy Provost Marshal, Professional Standards indicate specifically in all reports the provisions on which decisions affecting complaints are based.
Facts and Complaint
A Military Defence Counsel for the accused in a Court Martial proceeding complained that a Military Police member who signed the Record of Disciplinary Proceedings to be served on the accused had postdated the document by some three-and-a-half weeks.
In the military justice system, a charge is considered to have been laid when it is set down in writing in a Record of Disciplinary Proceedings. In making his conduct complaint against the Military Police member, the complainant noted that the date on which the charge was laid was especially significant in this case, in that he was arguing for a stay of proceedings against the accused based on section 11(b) of the Canadian Charter of Rights and Freedoms. This is the section that guarantees an accused the right to be tried within a reasonable time.
The complainant stated that, in postdating the Record of Disciplinary Proceedings, the Military Police member undermined the Charter rights of the accused, willfully or negligently made a false statement in an official document, and thus breached the National Defence Act and the Military Police Professional Code of Conduct.
Disposition by the Canadian Forces Provost Marshal
The Deputy Provost Marshal, Professional Standards forwarded the complaint to the Canadian Forces National Investigation Service for assessment and/or investigation of possible service offences.
After being advised by the Canadian Forces National Investigation Service that the allegations against the Military Police member would not be investigated for possible service offences, the Deputy Provost Marshal, Professional Standards proceeded to have the complaint evaluated by Professional Standards. This evaluation concluded that the subject member had not violated the Military Police Professional Code of Conduct, and no further investigation was warranted.
Dissatisfied with the disposition of the complaint by Professional Standards, the complainant requested a review of his complaint by the Complaints Commission.
Issues, Findings and Recommendations
In reviewing this complaint, the Commission Member delegated by the Chairperson addressed a number of questions, which can be summarized as follows:
a) In postdating the Record of Disciplinary Proceedings, was the conduct of the Military Police member unprofessional, a breach of the National Defence Act and/or a breach of the Military Police Professional Code of Conduct?
The Commission Member found that, by postdating the Record of Disciplinary Proceedings, the subject member had acted in a manner that was unprofessional, and that did not constitute best police practices.
The Commission Member also found that the subject member should have been aware of the possible implications of postdating the Record of Disciplinary Proceedings, and while he erred in doing so, he did not have the benefit of clear and detailed procedures to follow. Further, the Commission Member noted there was no indication of the intent necessary to support a finding that the Military Police member willfully or negligently made a false statement on an official document. In his statement, the military member explained that he believed the charge was not considered to have been laid against the accused until the date shown on the Record of Disciplinary Proceedings. He further explained that he postdated the Record of Disciplinary Proceedings to make sure that the charges were, in his words, “fully prepared to be served.
”
While the Commission Member declined, on jurisdictional grounds, to make a determination regarding a possible breach of the National Defence Act, he did conclude that the subject member's actions reflected a misunderstanding of the law governing the laying of charges, rather than any intent to deceive. Similarly, as the subject member did not “knowingly misrepresent
” or “knowingly falsify
” information, the Commission Member found the subject of the complaint was not in violation of the Military Police Professional Code of Conduct.
Since this incident, the Canadian Forces Provost Marshal has revised the Military Police Standard Operating Procedures to clarify best practices regarding the dating of Record of Disciplinary Proceedings forms. As a result, it is unlikely this particular situation will recur.
b) Did the Military Police member's conduct undermine the Charter rights of the accused?
While the Commission Member observed that the subject member should have been aware of the implications of postdating the Record of Disciplinary Proceedings on the Charter rights of the accused, he found that there was no real prejudice to the accused in this case, given that no attempt had been made to conceal the actual date the Record of Disciplinary Proceedings was signed, and that at the hearing on the application for a stay of proceedings under section 11(b) of the Charter, the Military Judge ruled that for purposes of calculating the delay, the date the Record of Disciplinary Proceedings was signed would be used.
c) The application of section 250.28(2)(c) of the National Defence Act by the Deputy Provost Marshal, Professional Standards
This is the section of the Act that gives the Canadian Forces Provost Marshal the discretion to decline to investigate or to end the investigation of a conduct complaint when, “having regard for all the circumstances, investigation or further investigation is not necessary or reasonably practicable.
”
In the past, the Chairperson has urged the Canadian Forces Provost Marshal to use a high threshold in determining whether to apply this provision, and even then, only in exceptional cases. Given the assessment of the complaint provided by the Canadian Forces National Investigation Service, the evaluation of the complaint by Professional Standards, and the actions of the Provost Marshal to clarify the procedures for dating the Record of Disciplinary Proceedings, the Commission Member determined that, in this case, the higher threshold was met, and the application of section 250.28(2)(c) was appropriate.
Facts and Complaint
A civilian complained that military police had shown preferential treatment to others involved in an incident by interviewing them first, and making him wait several hours to be interviewed. He also complained that police did not prepare a proper report of the incident, and wanted to know why military police would suggest to both he and his daughter that they could be arrested when he had gone to police to report a crime, and she as the victim of a crime.
The complaint related to a dispute on a Canadian Forces Base involving the complainant, his daughter, and her estranged husband. The incident was witnessed by the complainant's wife, as well as the estranged husband's girlfriend.
All involved arrived at the Military Police detachment shortly afterward to report the incident where, over the course of the next several hours, they were interviewed by military police. The complainant waited some three hours for his turn to be interviewed.
Disposition by the Canadian Forces Provost Marshal
The investigation of the complaint by Professional Standards found that, in essence, the Military Police member involved had made the best of a difficult situation, and concluded that the delay in interviewing the complainant, although regrettable, was unavoidable in the circumstances.
As for advising the complainant and his daughter that they could be arrested, the Professional Standards investigation found that it is proper for a police officer to advise individuals of the potential consequences of their conduct. This investigation also concluded that military police had completed all the appropriate reports on the incident.
Not satisfied with the finding of no misconduct on the part of military police, the complainant asked that his complaint be reviewed by the Complaints Commission.
Issues, Findings and Recommendations
The Commission Member delegated by the Chairperson to review the complaint examined several issues:
a) The complainant felt that, by interviewing others involved in the incident before him, the Military Police member discriminated against him
The Commission Member found that, at the time the complainant and others involved in the incident arrived at the detachment office, the Military Police member who was the subject of the complaint was alone. Sensing the volatility of the situation, he placed the various players in different areas of the detachment offices, and began interviewing those involved one at a time. After he had completed two interviews, two other Military Police members returned to the detachment office from a call, and carried out one of the two interviews that had not yet been completed.
The Commission Member agreed with the conclusion of the Professional Standards investigation: though regrettable, the delay was unavoidable in the circumstances, and there was no evidence the Military Police member had discriminated against the complainant in determining the order in which the interviews were conducted.
b) Completion of appropriate reports by Military Police members
The Commission Member's findings also agreed with the results of the Professional Standards investigation on this issue. Military police completed all the appropriate reports on the incident. As no charges were laid or pending in connection with the incident, there was no requirement to prepare a Military Police Investigation Report.
c) Propriety of military police advising someone that they could be arrested or charged with an offence
In examining this aspect of the complaint, the Commission Member found the jurisprudence on the question reveals police, in that they are responsible for crime prevention, have the right to inform individuals and a duty to ensure they understand the possible consequences of their actions. The Commission Member found that, in relation to the incident in question, it was appropriate for military police to provide this information to the complainant and his daughter, and that doing so did not constitute a threat or intimidation.
d) Refusal to provide the subject of a recorded interview with a copy of the interview
The Commission Member made an additional finding based on an issue that arose during the review, namely, the Military Police member's refusal to provide the complainant with a copy of his videotaped interview with police.
Although a Military Police member is neither required nor expected to provide an immediate copy of a videotaped interview to the subject of the interview, it is the duty of military police to advise persons of their right to obtain a copy, and to refer them to the appropriate authority.
INTERFERENCE COMPLAINT
Facts and Complaint
A Military Police member with the Canadian Forces National Investigation Service complained that the Officer Commanding of a Military Police detachment interfered with a criminal investigation against one of the members of the detachment by revealing undisclosed information.
The investigation into this complaint by the Complaints Commission involved interviews with five witnesses, as well as a review of background documents provided by the Deputy Provost Marshal, Professional Standards.
The investigation showed that, while investigating a complaint of sexual assault against a member of the Military Police, the Canadian Forces National Investigation Service investigator learned an anonymous letter containing other allegations against the Military Police member under investigation had been received at the local Royal Canadian Mounted Police detachment. The anonymous letter was forwarded to the Canadian Forces National Investigation Service investigator.
After determining the allegations in the letter were false, the Canadian Forces National Investigation Service investigator expanded his investigation with a view to identifying the author of the letter, whom the Canadian Forces National Investigation Service investigator believed could be charged with public mischief. The Canadian Forces National Investigation Service investigator was able to identify the person he believed to be responsible for writing the letter, another member of the Military Police and a colleague of the member being investigated for sexual assault.
Subsequently, the Canadian Forces National Investigation Service investigator met with the Officer Commanding the Military Police detachment to brief him on several ongoing investigations. During this briefing, the Canadian Forces National Investigation Service investigator advised the Officer Commanding of the existence of the anonymous letter, but did not provide any additional information on the grounds the letter had been passed to him personally after an official request to the Royal Canadian Mounted Police.
Although he had by now identified the author of the letter, the Canadian Forces National Investigation Service investigator did not share this information with the Officer Commanding. Indeed, he did not inform the Officer Commanding that he was looking for the author of the letter, or that this investigation involved other Military Police members under the supervision of the Officer Commanding.
After the briefing, upset that an anonymous letter alleging misconduct against a Military Police member under his supervision had been sent to the Royal Canadian Mounted Police, and deducing that the letter had been written by someone in his detachment, the Officer Commanding sent an e-mail to all Military Police members under his command demanding that the author of the letter come forward.
The Canadian Forces National Investigation Service investigator complained that the e-mail from the Officer Commanding “interfered with a criminal investigation against one of [the Officer Commanding's] members by revealing privileged information.
”
Issues, Findings and Recommendations
The Chairperson was concerned with one issue in this complaint:
Did the Officer Commanding's decision to send the e-mail constitute an improper intervention on his part comparable to interference, intimidation or abuse of authority as set out in section 250.19 of the National Defence Act?
The Chairperson found that although the Officer Commanding was aware that the Canadian Forces National Investigation Service investigator was following up on the allegations made in the anonymous letter, he was not informed that the allegations in the letter had already been proven false. The Officer Commanding was also not aware that the Canadian Forces National Investigation Service investigator had now turned his attention to identifying the author of the anonymous letter, and in fact had done so and was close to laying a charge of public mischief.
In an interview with the Complaints Commission investigator, the Officer Commanding stated that, had he known the Canadian Forces National Investigation Service investigator was investigating the origin of the anonymous letter, he would not have sent the e-mail demanding the author of the letter come forward.
After reviewing all of the information, the Chairperson found that, in sending the e-mail, the Officer Commanding did not abuse his authority, intimidate, or improperly intervene in an investigation.
This finding notwithstanding, the Chairperson found also that the Officer Commanding should have erred on the side of caution before disclosing information that could have an impact on an ongoing investigation. The Chairperson thus recommended that, barring an urgent situation that dictates otherwise, administrative concerns related to a criminal investigation should be held in abeyance until the police investigation has been completed.
In summation, this interference complaint clearly had its origins in a breakdown in communications between the Canadian Forces National Investigation Service investigator and the Officer Commanding of the Military Police detachment. In her report, the Chairperson noted that the Deputy Provost Marshal, Professional Standards, in a final letter addressing conduct complaints arising from this same incident, raised concern over the reluctance of the Canadian Forces National Investigation Service investigator and the Military Police Officer Commanding to fully cooperate with each other in this matter. The Deputy Provost Marshal, Professional Standards directed that both be counselled in this regard. The Chairperson strongly supported this direction, and recommended the Complaints Commission be notified of the outcome of the counselling.
PUBLIC INTEREST INVESTIGATION
On October 31, 2002, the Chairperson caused the Complaints Commission to initiate a Public Interest Investigation, delegating part-time Commission Members Mr. Peter Seheult and Mr. Odilon Emond, to conduct the investigation.
The Complaints Commission conducted a thorough review of voluminous relevant documentation related to investigations conducted by the Canadian Forces National Investigation Service and the Deputy Provost Marshal Professional Standards. Following the initial request for all information and materials relevant to the complaint, the Complaints Commission found it necessary to submit several more requests for additional disclosure; these materials were received from the offices of the Deputy Provost Marshal Professional Standards or the Canadian Forces Provost Marshal over a period of many months, from May 27, 2002 to March 10, 2003.
The first phase of the Public Interest Investigation, conducted by an investigator from the Complaints Commission, was carried out between September 16, 2002 and February 5, 2003. The second phase of the investigation was conducted by Commission Members between February 12, 2003 and April 8, 2003.
Reason for Public Interest Investigation
The Chairperson's decision to cause a public interest investigation to be held in this case concerning two complaints files was based on a number of factors, including allegations that, if substantiated, could reflect a denial of the complainants' rights, undermining the credibility of the Military Police oversight mechanism:
a) The conduct complaints filed against Military Police members involved numerous allegations of a serious nature.
b) Certain elements of the complaints dealt with core issues in military policing, such as the proper role and conduct of military police when carrying out arrests.
c) Superiors were alleged to have abused their authority or attempted to influence or punish complainants for exercising their right to submit a complaint about military police conduct.
Conduct of the Investigation
Commission Members Peter Seheult and Odilon Emond examined extensive documentation compiled through investigations carried out by the Canadian Forces National Investigation Service and the Deputy Provost Marshal, Professional Standards. These investigations dealt with incidents that led two members of the Canadian Forces to file a number of conduct complaints.
In addition to reviewing this documentation, the Commission Members interviewed 13 witnesses, and investigators of the Complaints Commission interviewed a total of 19 witnesses. Four individuals, all members of the Military Police, exercised their right to refuse to be interviewed by the Commission Members, although one of the four had been interviewed previously by the Complaints Commission investigator.
Upon completing the second phase of their investigation, the Commission Members prepared an Interim Report some 200 pages in length, detailing the results of the investigation and addressing a total of six key issues identified at the outset.
These issues included questions surrounding the propriety and legality of an order to arrest one of the complainants, the propriety and legality of the arrest itself, and whether the subsequent release from arrest of the complainant was proper and lawful. The Commission Members also examined whether Military Police members, through intimidation or other means, attempted to discourage a member of the Canadian Forces from filing a complaint, and whether a complaint from another member of the Canadian Forces was handled properly by the Deputy Provost Marshal, Professional Standards. A final issue considered by the Commission Members in this investigation concerned whether the “internal classification of complaints
” by the Canadian Forces Provost Marshal is having the effect of negating the rights of complainants by preventing their complaints from coming under the jurisdiction of Part IV of the National Defence Act.
The Commission Members listed 52 findings, and offered 10 recommendations in the Interim Report, completed on October 20, 2003.
Copies of the Interim Report were provided to the Minister, the Chief of Defence Staff, the Judge Advocate General and the Canadian Forces Provost Marshal as required by the National Defence Act. The Commission Members now await the Notice of Action which is to be provided by the Provost Marshal. When it is received, the Final Report of this public interest investigation will be prepared and posted on the Complaints Commission Web site at www.mpcc-cppm.gc.ca.
CONDUCT COMPLAINT INVESTIGATIONS MONITORED BY THE COMPLAINTS COMMISSION
As noted in the “overview
” at the beginning of Part II of the Annual Report, the Complaints Commission has broad powers to monitor the handling of complaints by the Provost Marshal and her delegates. During 2003, the Chairperson exercised, for the first time since the inception of the Complaints Commission, the full extent of this monitoring power. Unfortunately, notwithstanding a prior agreement to provide materials, it was not until the Complaints Commission made application to the Federal Court of Canada that the Canadian Forces Provost Marshal agreed to provide the Complaints Commission with information on the investigation of two conduct complaints sufficient to allow the Chairperson to make a meaningful determination regarding the appropriateness of the Provost Marshal's handling of the complaints.
At the completion of the monitoring process of a complaint, the Chairperson does not prepare an Interim or Final Report, or make findings and recommendations; rather, the Chairperson provides her observations on the conduct of the Provost Marshal's investigation in a letter to the Provost Marshal, with copies to the Minister of National Defence, the Judge Advocate General, the complainant and the subject of the complaint. Copies of the letter may also be provided to other persons with a substantial and direct interest in the case.
As noted in the following two case summaries, by exercising its monitoring power in this way, the Complaints Commission provides the Canadian Forces Provost Marshal with an independent and impartial assessment of her handling of complaints. The Chairperson's observations can contribute to the Provost Marshal's own efforts to enhance the professionalism of complaint investigations, as well as draw attention to systemic issues that may be allowing particular types of conduct problems to arise.
Facts and Complaint
The Deputy Base Provost Marshal of a Canadian Forces Base complained about the conduct of a member of the Military Police platoon within a regiment on the base, alleging that the member had, in the guise of conducting a demonstration of the Ontario Provincial Police Canine drug unit, carried out an unlawful search of a Canadian Forces barracks and other buildings. The complaint stated that this activity had been carried out even though the Military Police member had discussed it with the Military Police detachment on the base some two weeks earlier, and was advised that the canine demonstration could not take place without prior approval from the Base Provost Marshal.
Disposition by the Canadian Forces Provost Marshal
On the grounds that a possible criminal or service offence had been committed, the initial investigation of this complaint was conducted by the Canadian Forces National Investigation Service. Upon the finding by the Canadian Forces National Investigation Service that no such offence had been committed, nor had the Military Police member breached any section of the National Defence Act, a Professional Standards investigation was initiated to determine whether the Military Police member had breached the Military Police Professional Code of Conduct.
This investigation concluded that the canine demonstration – in that it was confined to public areas of the buildings in question – did not constitute an unlawful search, and that the Military Police member had not breached any section of either the Military Police Policies and Technical Procedures or the Military Police Professional Code of Conduct.
Nonetheless, given the seriousness of the allegations in the complaint, and the unusual nature of the circumstances that gave rise to the complaint, the Chairperson chose to have the Complaints Commission monitor the Provost Marshal's handling of the complaint.
Chairperson's Observations
While agreeing with the findings of the Canadian Forces National Investigation Service and the Professional Standards investigations, the Chairperson observed that the member of the Military Police platoon within the regiment proceeded with the canine demonstration on the order of his Commanding Officer, despite advice to the contrary from the base Military Police detachment. The section of the Military Police Policies and Technical Directives used to determine whether the Military Police platoon member should have followed the order of his Commanding Officer or the advice of the base Military Police detachment is rather ambiguous, and open to interpretation on this point.
The Chairperson noted that the sections of the Military Police Policies and Technical Directives that describe the reporting and command structure between Military Police detachments and Military Police platoons should be revised to ensure such confusion does not recur in the future.
In her letter to the Provost Marshal, the Chairperson also observed the Final Letter of Disposition sent to the complainant and the subject of the complaint by the Deputy Provost Marshal, Professional Standards should have provided more details of the investigative process, as it was difficult to determine from it why the Deputy Provost Marshal, Professional Standards came to certain conclusions. In this regard, the Chairperson also noted that during the time this complaint was monitored, there had been noticeable improvements in the Final Letters provided by the Deputy Provost Marshal, Professional Standards.
Facts and Complaint
A member of the Canadian Forces Defence Counsel Services complained about the conduct of two members of the Military Police, investigators with the Canadian Forces National Investigation Service. The complaint alleged that, while conducting the pre-trial investigation of a charge of sexual assault against a member of the Canadian Forces, the two investigators assembled some 12 to 15 Canadian Forces members in the hangar of a ship, named the accused, and stated that the alleged sexual assault had homosexual connotations. The investigators asked those assembled that if any of them knew of any other incidents of homosexual conduct involving the accused, they should contact the investigators.
The complainant stated that, at the very least, the two investigators had demonstrated very poor judgement. The complaint also alleged that the investigators had humiliated the accused and further, that the disclosure of this information could have led to physical reprisals against the accused.
Disposition by the Canadian Forces Provost Marshal
Following an investigation into the complaint by Professional Standards, the Deputy Provost Marshal, Professional Standards concluded that the conduct of the two investigators from the Canadian Forces National Investigation Service was improper, inappropriate, and displayed very poor judgement. The Deputy Provost Marshal, Professional Standards recommended that both investigators be provided with remedial training in order for them to conduct their investigations in the least intrusive manner. The allegations that in disclosing the homosexual nature of the alleged sexual assault in this way the investigators humiliated the accused and could have left him open to physical reprisal were not supported.
After considering the issues involved in this complaint, including the extraordinary manner in which personal information about the accused was disclosed, and the potential for physical harm to the accused as a result, the Chairperson decided to exercise the monitoring power of the Complaints Commission in this case.
Chairperson's Observations
After reviewing the handling of this complaint, the Chairperson observed that the investigation conducted by Professional Standards should not have concluded that the conduct of the two investigators did not humiliate the accused. As the accused would not be interviewed for the Professional Standards investigation, the Chairperson noted there was no way to make an accurate determination in this regard.
The Chairperson observed that the disclosure of the homosexual nature of the alleged sexual assault could have led to physical reprisals against the accused and that this aspect of the complaint was not properly addressed by the Professional Standards investigation. The Chairperson noted that, in response to this allegation, the Professional Standards investigator interviewed two ship's officers. Each was asked whether there would be any concerns for the physical safety of a sailor who does not identify himself as a homosexual but is subsequently discovered to be homosexual.
At no time did the Professional Standards investigator ask the ship's officers how other sailors would react to a male accused of sexually assaulting another male, which the Chairperson considered a more pertinent question in the circumstances, and necessary to determining whether such a disclosure could have endangered the individual in question.
As a final observation, the Chairperson noted that, while she found the Professional Standards investigation to be inadequate in some areas, since this particular complaint was filed in the summer of 2001, she had observed distinct improvements in the handling of conduct complaints by the Deputy Provost Marshal, Professional Standards.
OUTREACH
COMMUNICATING WITH OUR CLIENTS
Outreach and communications play an important part in assuring the effectiveness of civilian oversight of law enforcement. This is especially true for the Complaints Commission, which is still a relatively young organization, charged with providing oversight to a large police service, the members of which are deployed across Canada and with Canadian Forces around the world. If members of the Canadian Forces and the public in Canada and elsewhere are not aware of their right to complain about the conduct of military police, or if members of the Military Police are not aware of their right to complain about interference with their investigations, the mandate of the Complaints Commission and the intent of Parliament cannot be fulfilled.
It is important also that this communication flow both ways. Feedback from members of the Canadian Forces, and especially – since the activities of the Complaints Commission can have such a significant impact on them – members of the Canadian Forces Military Police, is very important to the efforts of the Complaints Commission to be as effective as possible.
Since the Complaints Commission was established in December, 1999, the Chairperson or Members of the Complaints Commission and staff have visited with Military Police members at Canadian Forces Bases from Nova Scotia to British Columbia on 25 separate occasions, including a visit to military police deployed to Bosnia as part of Canada's contribution to the NATO Stabilization Force.
During 2003, the Complaints Commission Chairperson, Members and staff met with Military Police members in Suffield and Wainwright, Alberta; Comox and Esquimalt in British Columbia; Gagetown, New Brunswick; Greenwood in Nova Scotia, and Kingston, Ontario.
In addition to base visits, the Chairperson addressed and met with military police at the Canadian Forces Military Police Branch Annual Symposium in Cornwall, Ontario, and joined the Special Assistant to the Vice Chief of the Defence Staff, the Canadian Forces Provost Marshal, the Deputy Provost Marshal Professional Standards, and representatives of the Judge Advocate General at a symposium in Wakefield, Quebec.
As well, Military Police members at the Military Police Academy in Borden, Ontario, received two visits from the Complaints Commission.
COMMUNICATING WITH OUR PEERS
While common in Canada and many other countries, civilian oversight of law enforcement is practiced in different ways in different jurisdictions, and like many other forms of public accountability, civilian oversight of law enforcement continues to evolve and grow in its effectiveness.
Maintaining relationships with national and international associations devoted to civilian oversight of law enforcement helps the Complaints Commission keep abreast of research and development in the field, identify best practices for police services, benefit from the experience of others, and for others to benefit from the experience of the Complaints Commission.
The Complaints Commission actively participates in the Canadian Association for the Civilian Oversight of Law Enforcement (CACOLE) and the International Association for the Civilian Oversight of Law Enforcement (IACOLE). The Complaints Commission's General Counsel and Director of Legal Services sits on the Board of Directors of CACOLE, and is also a member of the organization's Research Committee as well as special representative for extra-jurisdictional policing.
The General Counsel and Director of Legal Services is also a member of the Advisory Committee on Access to Justice in both Official Languages before Federal Tribunals. This Committee was created by the Heads of Federal Tribunals, which includes the Chairperson of the Complaints Commission, to examine issues such as the bilingual capability of tribunals and language of decisions.
This year, the Chairperson was again invited to speak to the annual conference of CACOLE in Banff, Alberta, and also delivered an address to the National Military Law Section of the Canadian Bar Association. One of the Complaints Commission's legal counsel is a member of the executive of this section of the Canadian Bar Association. Both speeches are available on the Web site.
SPECIAL REPORT
The Complaints Commission is preparing a Special Report on Informal Resolution. It is hoped the report will be ready for publication and distribution early in the new fiscal year beginning April 1, 2004.
As with the first Special Report from the Complaints Commission, (Interference with Military Police Investigations: What is it about?) released in 2002, the upcoming report is intended as an educational tool that will examine various issues surrounding informal resolution of disputes in the context of complaints against police.
The report will outline the relevant definitions, the goals of the police complaint process, and discuss a variety of issues such as the integrity of the informal resolution process, entitlement to assistance, formality of settlements, the use of statements and agreements in informal resolution, and enforcement. The Special Report will serve as a means to outline a summary of best practices in the informal resolution of complaints against the police, as well as provide a platform for the introduction of the Complaints Commission's own framework for informal resolution of complaints.