Conduct Case MPCC‑2018‑014 Summary
The complainant is member of a foreign navy’s sports team that arrived in Canada to play in a tournament. The incident that led to the complaint occurred in April 2015. At the heart of the complaint is a sexual assault allegation against the complainant and three other members of the team. As the incident took place in military barracks, the local Military Police Unit initially received the report of sexual assault. However, due to the nature of the allegations, it was investigated by the Canadian Forces National Investigation Service (CFNIS).
The complainant and his teammates were charged with sexual assault causing bodily harm and sexual assault with more than one person under the Criminal Code of Canada. A Preliminary Inquiry was held involving all four co-accused which resulted in the complainant and two co-accused committed to trial in September 2016. A Voir Dire hearing involving the complainant and the remaining two co-accused took place and a decision was released in September 2017 which included the conclusion that the complainant’s right to counsel without delay had been violated. The Crown withdrew the charges of sexual assault causing bodily harm and sexual assault with more than one person against the complainant on December 14, 2017.
The complainant filed a conduct complaint in April 2018 that raised eleven allegations and named ten Military Police (MP) members. In August 2018, the Office of Professional Standards (PS) of the Canadian Forces Provost Marshal (CFPM) initiated an investigation into eight of the ten subject MP members, having determined that two of the MP members named by the complainant were not tied to any of the allegations. PS investigated fourteen allegations about: the arrest; language used by the MP; security; securing/suppressing evidence; documentation; failure to interview witnesses and logistical issues. At the end of November 2019, the PS investigation found all allegations were unsubstantiated except one which was partially substantiated.
In December 2019, the complainant requested a review by the Military Police Complaints Commission (MPCC). In addition to the eight subject MP members that were part of the PS investigation, the MPCC identified an additional MP member who was involved in the CFNIS investigation and named him as a ninth subject. The MPCC investigated fourteen allegations and determined that eleven were unsubstantiated, two were partially substantiated against one MP, and one was substantiated.
The MPCC found that the search incident to arrest of the complainant took place within a reasonable time after the arrest, without excessive force and there is no evidence that anyone other than the arresting MP members and the co-accused witnessed the arrest. The MPCC did not find unprofessional conduct prior, during or after the interview of the complainant as there is no evidence of MP members making disparaging comments about legal counsel as alleged. As the MPCC found that one MP member did not make sufficient effort to locate a particular witness in order to serve a subpoena, it partially substantiated the related allegation. However, in this instance, the MP did successfully complete this task and the witness testified. The MPCC found that the actions of the MP members did not demonstrate bias or a lack of independence from the military chain of command as alleged. The MPCC found no evidence that the military police failed to interview key witnesses and thereby failed to conduct a thorough and complete investigation or that they suppressed evidence. The MPCC noted however, that an investigation of this size and complexity would have benefited from the use of Major Case Management techniques.
The MPCC substantiated the allegation that MP members infringed on the complainant’s constitutional right to consult legal counsel without delay and in private. As there were no exceptional circumstances that allowed for a meaningful delay, it was not reasonable to make the complainant wait for over one hour to speak with a lawyer after his arrival to the CFNIS building simply because the one designated Duty Counsel Room was being used by a co-accused. The MPCC also found the conversation with counsel was not sufficiently private. It was incumbent on the military police to facilitate the complainant’s immediate and private access to legal counsel.
The allegation that an MP member failed to retain a copy of the Information to Obtain as part of the general occurrence (GO) file, thereby shielding conduct from review was partially substantiated. Only a portion of the Information to Obtain was scanned into the GO file after it was endorsed by a justice of the peace. This omission failed to respect MP policy on the requirement to document investigative activity fully. However, there was no evidence that MP member tried to shield his conduct from review or intentionally withheld information. Further, a copy of the Information to Obtain was found in the disclosure of the conduct complaint filed by the complainant’s co-accused.
The CPPM recommended that:
- The subject MP members be reminded of best practices of professionalism and discretion when discussing information related to an investigation.
- The subject MP members review MP policies regarding the principles of Major Case Management, and the resources available to implement them.
- All subjects who had been involved in the arrest and interviewing of the complainant and the co-accused, review the principles of s. 10(b) of the Charter and the importance of providing an accused access to legal counsel without delay and in private.
- The CFPM review the facilities at issue in this case and confirm compliance with the need to provide immediate and secure access to consult legal counsel in private.
- A subject MP review the policies and best practices of documenting investigative activity in a GO file.
In response to the MPCC’s report, the CFPM accepted the findings and recommendations in this matter.
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