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Annual Report 2006
Case summaries
Case No. 1 - Conduct complaint
The review of this conduct complaint highlights the role of the Commission in assuring the complaints process is fair to all concerned. Without the Commission's review of this complaint, crucial evidence would not have been considered, and inaccurate and unfair criticism of the complainant would have become a permanent part of his service record.
This case also shows why it is important that the Commission have access to the advice military police receive from their legal advisors. While it is not the function of the Commission to judge the quality of the legal advice given to military police, knowing whether military police acted in good faith on that advice can be critical to the fair resolution of a complaint.
The incident
Responding to concerns expressed by the mother of a young person arrested by military police who was reluctant to become involved in the complaint process, the commanding officer of a Canadian Forces Military Police Detachment filed a conduct complaint against two members of the detachment. The complaint alleged the MPs violated military police procedures by using handcuffs during the arrest of the young person.
Because the arrest was made in an area of Canadian Forces housing that is adjacent to, but not actually part of, a Canadian Forces Base, the investigation by the Canadian Forces Provost Marshal quickly expanded to include questions of military police jurisdiction.
The Deputy Provost Marshal Professional Standards concluded that the area in which the arrest took place was outside military police jurisdiction. As a result, the MPs' commanding officer - who made the original conduct complaint on behalf of the mother - became a subject of the complaint, for allegedly ordering MPs to patrol an area outside their jurisdiction.
While concluding that the use of handcuffs on the young offender was not justified, the investigation was also highly critical of the commanding officer, who was found to have ordered his MPs to police an area without making sure that it was within their jurisdiction.
The request for review
The complainant - the MP commanding officer - asked the Commission to review the handling of his complaint, on the grounds that the Professional Standards investigation should not have included the issue of jurisdiction, since it was not part of the original complaint. The complainant also stated that the investigation did not take into account that, in ordering MPs to police the off-base housing area, he was responding to an order from his Base Commander, and acting on advice from the Deputy Judge Advocate (a military lawyer).
How the commission reviews complaints
After making a preliminary review of the request for review, a Commission lawyer briefs the Chair, who determines how the case will be handled.
A lead investigator is assigned and, with a Commission lawyer, reviews the evidence and other materials gathered during the Provost Marshal's investigation of the complaint - this could be hundreds of pages of documents, emails, handwritten notes and reports, and many hours of audio and video interviews with witnesses.
The lead investigator then prepares an Investigation Plan, setting out the goals, timelines and budget for the investigation, as well as the lines of inquiry to be pursued, all of which must be approved by the Chair or assigned Member of the Commission. The lead and an assisting investigator then conduct a detailed examination of the material from the Provost Marshal; review any relevant legislation, policies and regulations; and arrange and conduct interviews with witnesses.
The investigators' comprehensive report is reviewed by a Commission lawyer and submitted to the Chair or Commission Member assigned to the case.
Subject to any necessary further enquiries, the Commission then issues an Interim Report of findings and recommendations, which goes to the appropriate officials in the Canadian Forces and/or the Department of National Defence.
The designated official reviews the Interim Report and responds with a Notice of Action, indicating agreement or disagreement with each of the Commission's findings and recommendations. After considering the Notice of Action, the Commission Member prepares a Final Report on the case, which is distributed to all parties, including the complainant and the subject(s) of the complaint.
The Commission's review
In the first instance, the Commission found no fault in the Provost Marshal's decision to add the question of MP jurisdiction to the investigation. Determining whether MPs were arresting people outside their jurisdiction was certainly relevant to the case, and something that could have an immediate and important impact on military police procedures.
On the second question, the Commission found documented evidence that the Base Commander did, in fact, order the complainant to have military police patrol the off-base housing area, and to respond to any criminal activities they might observe there.
Moreover, the Commission found the complainant should not have been criticized for accepting at face value the opinion of the Deputy Judge Advocate. The Canadian Forces Provost Marshal also agreed with this finding, stating that it would be “highly irregular
” for a member of the military police to question or conduct independent research on legal advice provided by a Canadian Forces legal officer.
Commission conducts its first-ever public hearing
The Commission convened its first-ever “public interest
” hearing in March to examine a complaint about the conduct of members of the military police involved in the investigation of young person suspected in an alleged sexual assault at a cadet camp in western Canada.
The complaint was filed by the mother of the young person, who alleged the military police members used inappropriate and unlawful techniques in interviewing and investigating her son, violating his rights under Canada's Charter of Rights and Freedoms.
With the Chair of the Commission presiding, the public hearing began in March of 2006. A number of motions were presented by counsel for the various parties, with the Chair making rulings in response, including a ban on publication of any information relating to the minors involved, and who would be granted intervenor status at the hearing.
The hearing adjourned, resuming in late September for the evidentiary portion of the proceedings. This involved a total of seven parties, six of whom were represented by counsel. Subpoenas were issued to seven witnesses, who were examined by counsel for the Commission, and cross-examined by counsel for the other parties during the five days of hearings. Several hundred pages of documents were entered as evidence.
Numerous issues surrounding the conduct of the sexual assault investigation were explored during the public hearing. The overall thoroughness, objectivity, and diligence of the investigation were examined, as well as the management and supervision of the investigation by the investigators' superiors. The hearing looked closely at the brief to the Crown Attorney prepared by the military police as the basis for their recommendation that charges be laid against the young person, and examined whether all of the evidence was fully and accurately represented in that brief.
After hearing all of the evidence, written submissions from the parties were accepted by the Commission until November 20, 2006. The Commission will release the Interim Report of the Chair's findings and recommendations early in 2007.
Case No. 2 - Conduct complaint
Maintaining public safety, and identifying situations that could compromise public safety, are important responsibilities for police. For military police, who serve a population surrounded by risk, carrying out this responsibility can be a challenge.
In this case, the Commission helped to establish that military police must have the discretion to determine when the inherent dangers of military service exceed what would be considered normal.
The incident
During a training exercise at a Canadian Forces Base, a member of the Canadian Forces Reserves was involved in a minor collision while driving a military vehicle. After interviewing the Reservist a couple of days later, a member of the military police (MP) blamed the collision, in part, on the Reservist's lack of sleep.
The complaint
The Reservist complained that the MP who interviewed him after the incident should not have done so, given the Reservist's sleep-deprived state nor, for the same reason, should the MP have allowed the Reservist to return to his training after the interview. The complainant also stated that the MP had a duty to investigate why the Reservist was suffering from a lack of sleep.
An investigation by the Deputy Provost Marshal Professional Standards found the MP in question had acted properly.
The Commission's Review
Police are obliged to take into account the health and well-being of the subject before they proceed with an interview. In this case, while the MP noted that the Reservist appeared tired, he also observed that the man seemed capable of giving an accurate description of the incident. As well, the Commission found nothing to indicate the Reservist asked the MP to postpone the interview, or said anything to suggest he was not able to answer questions.
While aware that lack of sleep was a factor in the vehicle collision, the MP was also aware that the Reservist was among a large number of people participating in an intensive training exercise. From his personal experience, the MP knew that all of the trainees would be functioning on very little sleep. Since the Reservist did not ask for help or to be kept out of the training, the Commission found the MP had no reason or authority to intervene.
As for third issue - that the MP should have investigated why the Reservist was not getting enough sleep - the complainant himself acknowledged that he did not make any allegations of negligence or misconduct related to the training during his interview with the MP. Thus, the Commission found no fault in the MP's decision to confine his investigation to the vehicle collision.
It is interesting to note that this incident was one of three minor collisions that happened during the same training exercise, all of which military police attributed at least in part to trainees' lack of sleep. A military police supervisor reviewing the accident reports noted the similarities, and drew these to the attention of the chain of command. As a result, changes were made to standing orders at the base to ensure a proper balance between the demands of training and the need to maintain safety.
“Where policing is concerned, confidence and trust in the police is critical to effective policing, which in turn is vital to preserving public safety.
”
The Hon. Patrick J. Lesage, Q.C.
Former Chief Justice, Ontario Superior Court
Review of the Police Complaints System in Ontario, April 2005
Case No. 3 - Conduct complaint
Members of Canadian Forces Military Police have jurisdiction as peace officers over all persons when enforcing the laws of Canada in any area under the control of the Department of National Defence (DND).
In reviewing this complaint, the Commission was able to make clear that in dealing with an occurrence on DND property, military police have the authority, when necessary, to extend their investigations to include civilians and civilian areas.
“A primary objective of review is to maintain public confidence in the agency subject to review.
”
The Hon. Dennis O'Connor
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar
The incident
A civilian police service in eastern Canada received a tip that a person living in their jurisdiction was trafficking in a controlled substance on a nearby Canadian Forces Base. The suspect was working on the Base, where he was an employee of a civilian company under contract to DND. The civilian police contacted the military police, who agreed to assist in the investigation. Along with gathering information on the suspect, several members of the military police also took part in the execution of a search warrant at the suspect's home in the civilian community near the Base. The search revealed a marijuana “grow-op
”.
The civilian police charged the man with production of a controlled substance and possession of a controlled substance for the purpose of trafficking. The military police involved informed their superiors of the outcome of the investigation. This information was, in turn, passed on to the chain of command, which, on grounds of security, denied the man access to his worksite. Without such access, the man could not do his job on the Base, and his employer laid him off.
The complaint
The man complained that military police did not have authority or jurisdiction to be part of a civilian police investigation of a civilian who lived in a private residence not on DND property. He also complained that military police did not have the authority to inform the chain of command of the charges against him, a move that, as he saw it, cost him his job.
The Commission's review
The Commission found that the military police, having been informed by a civilian police service that a person employed on the Canadian Forces Base might be engaged in illegal activity on the Base, were acting within their authority and jurisdiction when they assisted in the investigation. In fact, the Commission found military police had a duty to assist, given their responsibility to enforce the laws of Canada on DND property.
The Commission also found that the military police involved in the investigation, as would be the case in any police service, had a duty to inform their military police supervisors of the outcome of the investigation. The military police supervisors had a similar duty to inform the chain of command; military police policy states that, “Commanders have the operational need to know who in their command is under investigation.
” Considering the chain of command's ongoing responsibility to safeguard security at the Base, this is a rational policy. Moreover, the information was in the public domain with the laying of the criminal charges.
Case No. 4 - Interference complaint
The idea of interference in a military police investigation is generally thought of in terms of a senior officer in the chain of command attempting to influence an investigation. In this case however, the allegation of interference was directed at a military police supervisor. In absolving the supervisor of any misconduct, the Commission's investigation of this complaint helped to clarify what does and does not constitute “interference
” under the National Defence Act. It also led the Canadian Forces Provost Marshal to amend the Military Police Policies and Technical Procedures so that actions taken by military police supervisors with regard to investigations are recorded in a consistent and timely fashion.
The incident
After responding to a disturbance on a Canadian Forces base, a military police member decided to lay a criminal charge of uttering threats against a man. The MP did the necessary paperwork near the end of his shift, planning to complete the process the following day. In the meantime, the MP's supervisor asked a second MP to find out whether this was a case where the Crown might agree to withdraw the charge if the accused signed an undertaking such as a peace bond - if so, military police could avoid the time and effort involved in prosecuting the case. This MP learned that, in the circumstances, and provided the victim consented, a peace bond was indeed a likely outcome.
With the supervisor's agreement, this MP contacted the victim, who asked for a few days to think about the peace bond idea. This second MP then sent an email to the investigating MP to fill him in on the steps that had been taken while he was off duty.
Unfortunately, this email was worded rather ambiguously, and left the investigating MP with the impression that his supervisor had unilaterally overruled his decision to charge the man, and was pursuing a peace bond to resolve the case without consulting him. The MP filed a complaint of interference against his MP supervisor.
An ongoing interference file
The Commission conducted another major interference investigation during 2006, involving a complaint against a senior officer in the Canadian Forces. The military police complainant alleged that the officer had interfered with evidence related to the military police investigation into the death of a member of the Forces.
Details of the case will not be released until sometime early in 2007. This case is also expected to have a significant impact on the definition and concept of interference by someone in the chain of command.
The Commission's investigation
After reviewing the documentary evidence and the relevant sections of the Military Police Policies and Technical Procedures, as well as interviewing a number of witnesses, the Commission found that the actions of the supervising MP did not constitute interference with the MP's investigation.
The Commission found no evidence to indicate that the supervisor was seeking to overrule the MP's decision to lay a charge. Even if he did, this would not necessarily amount to interference, given his role and authority as a military police supervisor. While military police policies provide some guidance in this area, the Commission found the policy could be more definitive in describing a supervisor's responsibility and authority to override the decision of a uniformed police officer to lay a charge.
In concluding the investigation, the Commission also found that the complaint of interference might not have arisen had the supervisor's actions and the reasons behind them been communicated more clearly to the complainant. The Commission recommended that military policies in this area be clarified.
The Chief of the Defence Staff accepted all of the Commission's findings and recommendations in this case, and agreed that the findings regarding interference in particular provide a useful reference for MPs and their supervisors in the future.
Case No. 5 - Interference complaint
The Incident
A second interference complaint investigated by the Commission in 2006 came from an MP who alleged a military commander at another Canadian Forces Base interfered with his investigation by insisting the MP go through the chain of command to arrange interviews with witnesses who were members of his unit.
The MP was equally insistent that, to maintain the integrity of the investigation, he had to contact the witnesses directly.
The Commission's Investigation
The Commission's investigation noted that commanders have an operational need to know when personnel in their command are part of an MP investigation, but there may also be instances where informing the chain of command could compromise an investigation.
In order to resolve what has been a long-standing area of conflict between MPs and the chain of command - and generate fewer complaints of this type in the future - the Commission recommended the Canadian Forces develop a policy setting out the process to be followed when MPs need to contact members of the Canadian Forces in other units for investigative purposes.
As a result of this investigation, the Chief of the Defence Staff directed the Provost Marshal to review existing policy to ensure a process that offers a proper balance between the chain of command's operational needs and the needs of MPs to protect the integrity of their investigations.
