Conduct Case MPCC‑2018‑035 Summary
This Military Police (MP) conduct complaint arose from the Canadian Forces National Investigation Service (CFNIS) investigation of a complaint of sexual assault and forcible confinement which occurred on a military base. The complainant/victim and the assailant were both members of the same unit attending a training course at the time of the incident. The criminal allegation was that the suspect pulled the complainant (also the complainant for the purpose of this report) into a broom closet and sexually assaulted her. The complainant provided a recorded statement to the CFNIS investigators – the subjects of this complaint. The complainant was taken to hospital where a sexual assault evidence kit (SAEK) protocol was performed, and samples of bodily fluids taken.
The following day, the suspect was arrested and provided a statement to CFNIS investigators. In this statement, the suspect admitted to having sex with the complainant, and seemed to concede, at the least, that he may have been reckless as to whether or not there was consent. On June 13, 2018, the investigators took a deoxyribonucleic acid (DNA) sample from the suspect. However, given that the suspect had conceded that he had sexual relations with the complainant, the suspect’s DNA sample was not submitted for comparison testing against the samples retrieved from the complainant at the hospital.
Routine tests performed on the complainant at the time of her SAEK examination came back from the lab indicating that she had a sexually transmitted infection (STI). The complainant believes that she got the STI from the suspect. CFNIS investigators advised the suspect to get tested for an STI. The suspect advised that he did not have the condition but agreed to see a doctor. He also signed a release of medical information which would have allowed the investigators to confirm the information on his file directly with his examining physician. However, they did not pursue this any further.
After seeing a nurse-practitioner at the base medical clinic, the suspect told investigators that she advised that they could not diagnose the STI solely through a blood test, that there would also need to be the presence of sores. The suspect claimed he did not have such sores but there was no examination to confirm this. Rather, the nurse-practitioner invited him to come back and have the examination done. However, the suspect did not do so.
Feeling they had a strong case, in light of the respective interviews of the complainant and the suspect, the CFNIS investigators referred the case to the Regional Military Prosecutor (RMP) for pre-charge review. Two months later, the RMP recommended against laying charges. This opinion was apparently based on a statement made by the complainant in her CFNIS interview which caused the RMP to believe that he would not be able to prove a lack of consent on the part of the complainant beyond a reasonable doubt.
The lead CFNIS investigator subsequently briefed the complainant on the results, at which time, he allegedly made some inappropriate remarks.
This conduct complaint was submitted by counsel on behalf of the complainant and raised various concerns about the handling of the CFNIS investigation and about the concluding remarks made to the complainant by the lead investigator.
The Office of Professional Standards of the Canadian Forces Provost Marshal partially substantiated the complainant’s allegation about inappropriate remarks by the lead investigator, but the rest of the allegations were found to be unsubstantiated.
After a thorough review of the MP file materials and its own further investigation, the Military Police Complaints Commission (MPCC) reached the following conclusions:
- The CFNIS subjects were not at fault for not immediately charging the suspect with sexual assault and forcible confinement, rather than releasing him on conditions. Under the military justice system, charges can only be laid after advice from a prosecutor, and the system of interim release is governed by different rules than the civilian criminal justice system.
- There was no evidence to indicate that the CFNIS investigators held back any relevant evidence from the prosecutor. This allegation appears to have arisen through a misinterpretation of the documentary evidence based on redacted records obtained by the complainant under the Access to Information Act and the Privacy Act.
- The CFNIS investigators were not at fault for failing to send the SAEK test results to the RMP. The results did not come in until after the pre-charge review package was sent to the RMP. Moreover, at that point in the investigation, consent was the only outstanding issue in the case.
- The CFNIS investigators did not conclude that there was “insufficient evidence” to support charges against the suspect. Charges were not laid on the basis of the RMP’s advice with respect to prosecutorial discretion: the RMP felt there was not a reasonable prospect of a conviction.
- The CFNIS investigators were not at fault for failing to investigate the suspect further for transmission of an STI to the complainant. With a large segment of the adult population carrying the particular STI, transmission by the suspect would have been difficult to establish beyond a reasonable doubt. Even if transmission could be proven, it would be necessary to prove beyond a reasonable doubt that the suspect was aware that he had the virus at the time of the sexual assault. Finally, it would have been necessary for the suspect to submit voluntarily to a medical examination in order to diagnose the disease – there is no authority for police to compel such testing.
- The CFNIS investigators were not at fault for failing to charge the suspect with breach of his release conditions for trying to communicate with the complainant through social media. The breach of conditions incident was handled by the local base MP members, and not the CFNIS investigators. Moreover, it is unusual to proceed with breach of conditions charges when the prosecution for the underlying substantive offence does not proceed.
- The CFNIS investigators were not at fault for failing to have the suspect’s DNA sample tested against the complainant’s SAEK sample. At this point in the investigation, the only issue in dispute was the complainant’s consent – the fact of the sexual act having been admitted by the suspect.
- The lead CFNIS investigator did make inappropriate remarks to the complainant. The remarks appear to have been the result of a misguided effort to offer emotional support to the complainant.
- The CFNIS investigators did not fail to give due consideration to the complainant’s state of mind as a sexual assault survivor in the interpretation of her statement.
The MPCC made four recommendations. The first one to the Minister of National Defence. The remaining three recommendations were made to the Canadian Forces Provost Marshal (CFPM):
- That the Minister:
- support and facilitate good faith discussions with relevant stakeholders with a view to resolving the issue of MPCC’s access to solicitor-client privileged information for the purpose of resolving complaints, as recommended in the Report of the Third Independent Review Authority to the Minister of National Defence; and
- in the meantime, direct that prosecution or Crown briefs be considered exempt from solicitor-client privilege for the purpose of resolving complaints under Part IV of the National Defence Act.
- That the CFPM issue directions to the effect that MP members be required to be transparent in communicating their reasons for not laying charges.
- That the CFPM put in place a policy to ensure that the relevant CFNIS Detachment is notified about any breach of release conditions handled by another MP Detachment; and
- That the CFPM consider a requirement that all DNA samples taken from suspects be tested against Sexual Assault Evidence Kit samples.
In his Notice of Action, the CFPM accepted all of the MPCC's findings and recommendations; however, deferred responding to recommendation #1 to the Minister of National Defence. It should be noted that at the time of the issuance of the Final Report, the MPCC had not obtained a response from the Minister of National Defence with respect to recommendation #1. Once the Minister’s response is obtained, the MPCC will review and re-issue the Final Report accordingly.
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