Conduct Case MPCC‑2018‑018 Summary
The complainant is a retired Corporal from the Canadian Armed Forces (CAF). She is a transgender woman and female pronouns (she/her) will be used when referring to her. At the time of the events related to this complaint including the alleged incident in 2003 and when it was reported to the Military Police (MP) in 2011 and 2016, the complainant presented as male.
In early 2003, the complainant underwent a medical examination as part of the CAF process to transfer from the Supplementary Reserves to the Primary Reserves (P RES). The medical exam was performed by a male medical technician whose qualification level did not allow for examination of a patient's genitalia. The medical technician and the Area Surgeon's office requested information from the complainant's physicians about possible working limitations. In August 2003, the Area Surgeon conducted an administrative review of the complainant's medical file and denied her transfer request.
In 2005, the complainant applied a second time to transfer to the P RES. The medical technician and the Area Surgeon's office asked her and her physicians to provide an update on her health and medical situation. The Area Surgeon reviewed the complainant's medical file and denied her request noting no change to the employment limitations. The complainant did not reach the medical examination stage of this application process.
In May 2011, the complainant contacted the MP to report she had been inappropriately touched during her medical examination in 2003, alleging the medical technician had conducted a hernia exam, touching her groin. The complainant said that she reported this incident after she became aware of investigations into allegations of sexual assault against the medical technician.
The Canadian Forces National Investigation Service (CFNIS) assumed responsibility as the complaint was believed to be related to another sexual assault investigation initiated in 2009 involving the same medical technician.
The lead investigator assigned interviewed the complainant who said she had a history of suffering from hernias and that during the exam in 2003, the medical technician performed a purported hernia exam which entailed touching the groin area. The complainant stated that in her mind it was not a sexual assault, but she just thought it was weird. She also said the medical technician “had it out” for her and that he had falsified some of her medical records. The investigator reviewed the related police file regarding the medical technician, the CAF Health Services Policy, the complainant's medical file, and consulted the Regional Military Prosecutor (RMP) twice. In 2012, the investigator concluded there was insufficient evidence to support charges under the Criminal Code or the National Defence Act (NDA).
In March 2016, four years after the conclusion of this investigation, the complainant contacted the same unit to report she was a victim of the medical technician. A different CFNIS investigator was assigned to investigate and discussed the complaint by telephone with the complainant. During the call, the complainant said that the medical technician conducted a hernia exam whereby he palpated her groin but that she did not believe there was a sexual element and that he falsified her military medical records preventing her from being able to re-enroll into the CAF. The complainant requested a media advisory be made to solicit outstanding victims of the medical technician.
Having found and reviewed the 2011 CFNIS file; the investigator noted that the current complaint was regarding the same incident and no new information was provided. He conducted a review of the complainant's medical documents, obtained news releases from the Security and Military Police Information System (SAMPIS) and Department of National Defence (DND), consulted the Canadian Forces Health Services Training Centre (CFHSTC) and the Director of Medical Policy on Component Transfer (CT) regarding enrollment medical processes, and consulted the RMP. The CFNIS investigator found that the medical process recorded was open and transparent in nature and there was insufficient evidence that the medical file had been falsified or to support charges of sexual assault. The investigator called the complainant and advised her of the outcome of the investigation into her initial complaint made in 2011 and, that CFNIS would not be re-investigating or laying charges as there was no new information.
In May 2018, the complainant called the Military Police Complaints Commission (MPCC or Commission) to file a complaint. Since it was after the statutory one-year time limit, an application for an extension of time (EOT) was requested and granted by the MPCC Chairperson. The Chairperson made particular note of concerns with the possibility of substantial prejudice to potential subject MPs given the significant delay since the events, and the lack of particulars provided by the complainant. The matter was forwarded to Professional Standards (PS) for investigation in the first instance.
PS reviewed the complaint and initiated an investigation in January 2019. Of five allegations summarized as follows: (1) the complainant was assaulted by the medical technician in 2003 she reported it at the time to the Chain of Command (CoC) and to MP but nothing came of it; (2) the complainant was told that a charge of assault regarding her complaint would be included in a second set of charges proffered against the medical technician but it was not; (3) the complainant was told that it was only a sexual assault if it was a male assaulting a female, not between two males; (4) other victims were also “blown off” and had she been taken seriously by the MP, other victims could have been spared”; and (5) there was a cover-up.
The investigation was concluded in November 2019 and based on the information, facts and evidence obtained, the five allegations were not substantiated.
In January 2020, the complainant filed a request for review with the Commission asking why charges were not laid and why her complaint was being dismissed. The two subject MPs identified by PS remained as subjects in the MPCC investigation with respect to five allegations summarized as follows:
- The complainant reported sexual assault by a medical technician to her Chain of Command and MP but nothing came of it.
- the CFNIS told her that her assault would be included in a second set of charges proffered against the medical technician, but this did not happen;
- MP said the crime of sexual assault only included a male assaulting a female;
- Other victims of the medical technician may have been “blown off” and could have been spared had her complaint been taken seriously; and
- there was a cover up and MP knew about the medical technician long before he was finally arrested but did nothing.
Upon review of the totality of the information available to the Commission, the Member determined the five allegations were not substantiated.
Allegation 1 was not substantiated as the Commission did not find information to support that the complainant made a complaint to the CoC or MP prior to 2011. The complaints filed in 2011 and 2016 were both investigated, and no charges were filed because it was reasonably determined that there was insufficient evidence to proceed.
Allegations 2 and 3 were not substantiated because the Commission found it unlikely that the MP told the complainant that sexual assault charges would be filed as part of a second set of charges or that charges were not filed because both individuals were male. CFNIS investigators explained to the complainant the reason no charges were contemplated was because she repeatedly stated the alleged hernia exam was not sexual in nature. And while the complainant filed a second complaint in 2016, it was in relation to the same incident investigated in 2011 not a second incident; therefore, there was no basis for a second set of charges.
Allegations 4 and 5 were not substantiated. The Commission found that the complainant was not “blown off” and that her complaints were taken seriously by MP. In 2011 the investigator was diligent in the various investigative steps he took to pursue the case. The investigator assigned to the 2016 complaint conducted an independent review of the matter. Further, as noted above, the first recorded complaint regarding the medical technician was in 2009 which predated that which the complainant filed later in 2011. Therefore, the claim that other victims were “blown off” and could have been spared had her complaint been taken seriously, is moot. The Commission did not substantiate the claim of alleged cover-up in allegation 5 because during her interview with MPCC investigators, the complainant stated that there was no cover-up. Further, the MPCC investigation did not find any evidence of a cover-up.
A review of the medical evaluation and documentation policies for component transfer applications revealed that the medical technician followed the standard CAF procedures in evaluating and documenting the complainant's medical history. While the decision to deny her 2003 request for re-enrollment relied on the medical file prepared by the medical technician, the Area Surgeon decided the matter based on other documentation as set out in his decision.
The Commission did not make any recommendations to the Canadian Forces Provost Marshal (CFPM) on this matter. There are no observations regarding the PS investigation.
In response to the Commission's Report, the CFPM accepted the MPCC's findings in this matter.
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