Conduct Case MPCC‑2019‑007 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 (MP) 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 co-accused’s right to counsel without delay had been violated.
The complainant filed a conduct complaint in January 2019 in which he raised thirteen allegations and named five MP members. As the complaint was beyond the one-year statutory time limit for filing, the complainant applied for and was granted an extension of time by the Chairperson of the Military Police Complaints Commission (MPCC). The Office of Professional Standards (PS) of the Canadian Forces Provost Marshal (CFPM) initiated an investigation in March 2019 into fourteen allegations regarding: the arrest; security; securing/suppressing evidence; documentation; failure to interview witnesses and logistical issues. In February 2020, PS found twelve allegations were unsubstantiated, one allegation was partially substantiated, and one allegation was substantiated.
In March 2020, the complainant requested a review by the MPCC. In addition to the three subject MP members that were part of the PS investigation, the MPCC identified three additional MP members who were involved in the CFNIS investigation and named them as subjects. Of a total of fifteen allegations investigated, the MPCC determined that nine allegations were unsubstantiated, two were partially substantiated, and four were substantiated.
The MPCC found that as it was not a strip search of the complainant, there was no requirement to conduct the search in private. There is no evidence that anyone other than the arresting MP members were present at the arrest site. The complainant’s dignity and privacy were maintained in a manner consistent with the circumstances.
The allegation that the complainant was in handcuffs longer than required, an estimated 47 minutes, was substantiated. Handcuffing upon arrest is required and there were no circumstances in this incident that allowed for an exception. However, there were also no circumstances to justify the continued handcuffing of the complainant once the search was completed and he was placed in the back of the police vehicle. The criteria listed in the Military Police Policies and Technical Procedures, that allow for continued handcuffing were not met, and there are no notes in the disclosure in which MP members reasonably articulated the decision to leave the complainant in handcuffs.
The allegation that the MP processed the custody of the complainant improperly was unsubstantiated. The Crown did not consent to the MP plan for telebail hearings at the CFNIS office which was a familiar process and may have taken less time. The Crown’s request for in-person hearings before a judge required the remand into custody at a non-CFNIS facility that was subject to that that facility’s process and resources. Also unsubstantiated were the allegations that witnesses were threatened and that MP improperly provided the victim investigative information. There was no evidence of threats and also is no issue with keeping an alleged victim of sexual assault informed as to the progress of the investigation and legal proceedings, including deoxyribonucleic acid (DNA) and toxicology results as deemed appropriate.
The allegation that false information was used to obtain a DNA warrant was unsubstantiated. It was determined that the mistake in the Information to Obtain was more likely than not a single typographical error in the information transcribed and not an intentional falsification.
The allegation that MP should have, but did not, seal the DNA warrant was partially substantiated because, while MP did file and obtain a sealing order, it was done a month after the warrant. While it is common police practice, there is no requirement to file for a sealing order at the same time as a warrant. Further, this is a discretionary decision but was taken by a subject MP member without him documenting the exercise of discretion or rationale for proceeding the way he did, as is required by MP policy.
The MPCC found that the MP failed to retain a copy of the endorsed subpoena and to document the investigative activity related to the service on a witness in the General Occurrence (GO) files did not fulfill the requirements of a Canadian Forces MP Order or reflect best policing practices. However, there was no evidence that the subpoena was destroyed in order to prevent a witness from appearing in court or to shield MP conduct from review. The witness was successfully served once the issue of his alias was identified and resolved, and this witness did appear in court.
The MPCC substantiated the allegation that subject 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 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 conversations with legal counsel were not sufficiently private. It was incumbent on the MP to facilitate the complainant’s immediate and private access to legal counsel.
The MPCC found that subject MP members had reasonable and probable grounds to arrest the complainant. The evidence does not support a generalized allegation that the MP investigation into the allegation of sexual assault was not fair or balanced overall. In his correspondence with the MPCC, the complainant stated that the MP had a “xenophobic attitude adopted towards a non-Canadian national” and that he was arrested because he was scheduled to leave Canada. There is no evidence that the MP discriminated against the complainant on this basis. The MPCC found no evidence that the CFNIS investigators tampered with the exhibits or the photos of the exhibits and also that on a balance of probabilities, that MP did not lie that all witnesses were interviewed with the intent to mislead the Crown Prosecutors into supporting the MP decision to arrest.
However the MPCC found allegations related to two specific investigative activities did amount to a failure to investigate. The failure to interview or note in the file the information about a witness mentioned by the alleged victim and another interviewee was a failure by MP to investigate. As was the failure to examine the alleged victim's cellphone. The MP owed a duty of care to the complainant under investigation for an allegation of sexual assault as there may have been evidence to support the prosecution or the defence.
The MPCC recommended that:
- A subject review the polices and best practices for documenting investigative activity in the GO file.
- All the subject MP members 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 the MP Unit building and confirm compliance with the need to provide immediate and secure access of an accused to consult legal counsel.
- The subject MP members the polices about the principles of Major Case Management and the resources available to implement them.
In response to the MPCC’s report, the CFPM accepted the findings and recommendations in this matter.
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