Conduct Case MPCC‑2011‑050 Summary

A few months prior to the complainant’s deployment to Afghanistan, an incident occurred while the complainant was outside Canada for training that resulted in a sexual assault allegation against him. According to the foreign police detective investigating that case, he agreed to allow the complainant to return to Canada based on assurances from the complainant and his superior officer that the complainant would return to face charges should he be indicted in the matter.

However, the complainant was deployed to Afghanistan just a few days before the grand jury hearing in the foreign country that resulted in the complainant being indicted on a number of sexual assault related charges. Moreover, on the very day of the complainant’s departure on deployment, Canadian Forces National Investigation Service (CFNIS) investigators met with him and sought to convince the complainant that he should remain in Canada pending the completion of the grand jury process, adding that, if he chose to deploy and was indicted, he would be arrested and returned to Canada from Afghanistan. The CFNIS members however advised the complainant that they had no authority or basis to order the complainant not to deploy at the time. The complainant felt that, as he had orders from his chain of command to deploy, and as neither the military police (MP) members, nor anyone in the chain of command, were issuing him with contrary orders, he should proceed to his deployment, which he then did. The complainant and members of his chain of command appeared to believe that any criminal proceedings against the complainant in a foreign country could be put on hold pending his five-month operational deployment.

After the complainant returned to Canada from his deployment, he was involved in an alleged incident of domestic violence resulting in him being criminally charged. The complainant was released on bail under a recognizance which, among other things, stipulated that he not consume alcohol.

A few weeks later, the complainant was arrested and charged in another alleged sexual assault incident. As the complainant had been drinking at the time of this incident, he was also charged with a breach of the outstanding recognizance from the earlier domestic assault charge. The complainant was remanded in custody pending a bail hearing.

The complainant’s bail hearing on the Canadian sexual assault charges took place four months after his arrest. The complainant alleged that one or more MP members wrongly testified at this hearing that his decision to proceed on his deployment to Afghanistan while the foreign sexual assault case was ongoing was evidence that the complainant represented a ‘flight risk’; and that this evidence led to the complainant being denied bail.

The MPCC appreciates the complainant’s position that, in the absence of any judicial or military orders to the contrary, he should not be blamed for deploying on a mission in compliance with orders from his chain of command, especially given that the chain of command had at least some awareness of his outstanding foreign criminal proceedings.

Notwithstanding, the MPCC’s investigation determined that, contrary to the complainant’s recollections, court records indicated that no MP members testified at the complainant’s bail hearing. The term ‘flight risk’ was not used in the proceeding. While the issue of the timing of the complainant’s deployment relative to the outstanding criminal matters outside Canada was raised by the Crown prosecutor in her submissions, it was not a significant part of her representations to the court. Finally, the court’s reasons for decision indicated that the deployment issue had little if any effect on the decision to deny bail.

Rather, the court was motivated by concerns about: the accumulation of charges against the complainant involving violence against women; the complainant’s breach of his pre-existing recognizance by drinking; and concerns about the adequacy of the sureties proposed by the complainant. Also, the fact that the onus was on the complainant, and not the Crown, in the bail was an important factor.

As a result, the MPCC determined the complaint was not substantiated.

With a view to avoiding such situations in the future, the Commission recommended that the CFPM consider proposing that the chain of command check with the Canadian Forces Military Police Group as part of selection and screening for deployments.

In response to the MPCC’s report, the CFPM accepted the MPCC’s finding, but did not accept its recommendation. In the CFPM’s view, the question of selection and screening for deployments is outside the purview of the MP, and by extension, is not a proper subject on which the Commission should make recommendations. In this instance, at least some members of the complainant’s chain of command were aware of the pending foreign criminal proceedings against the complainant, but nonetheless approved his departure.

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