Conduct Case MPCC‑2017‑030 Summary

The complainant in this case had been investigated and charged with sexual assault by members of the Canadian Forces National Investigation Service Western Region (CFNIS WR). However, military prosecutors replaced this charge with the purely military charge of disgraceful conduct, contrary to s. 93 of the National Defence Act (NDA). All charges were eventually withdrawn prior to court martial.

In his Military Police (MP) conduct complaint, the complainant challenged the legality of his warrantless arrest, the seizure and search of his smartphone; and how the Military Police got him to divulge the passcode for his seized phone.

The Office of MP Professional Standards, who deal with MP conduct complaints in the first instance, determined that, while the arrest lacked legal grounds, and was a pretext for the seizure of the phone, there was no violation of the complainant’s constitutional right to consult with legal counsel as soon as practicable. Moreover, despite the fact that the search warrant for the phone was only obtained after its seizure, no forensic examination of the smartphone had occurred prior to the warrant being issued.

Following its own investigation, the Military Police Complaints Commission (MPCC) concluded that, while there were probable grounds for the arrest of the complainant, the circumstances suggested a lack of urgency to justify proceeding without a warrant.

The MPCC also concluded that the lead MP investigator violated the complainant’s rights by leading him to believe that timely access to legal counsel required that the complainant divulge his phone passcode.

The MPCC also made a number of recommendations to the head of the Military Police, the Canadian Forces Provost Marshal (CFPM): 1) review of the CFNIS internship program; 2) require the documentation and rationalization of changes to MP investigation plans; 3) encourage advance consultation of technical experts by MPs prior to the seizing of electronic devices; and 4) emphasize the importance of notetaking by MP supervisors in order to better document changes to investigations as they progress.

Finally, the MPCC made observations regarding the CFNIS investigation: 1) the lead investigator should have sought legal advice prior to deciding on the arrest of the complainant as the way to obtain the complainant’s phone; and 2) given the importance of pursuing sexual assault allegations, this CFNIS WR investigation team should have pursued the investigation more vigorously.

In response to the MPCC’s Report, the CFPM accepted three of the four findings made by the MPCC, as well as three of four recommendations made. The MPCC maintained its findings and recommendations. With respect to the unaccepted recommendation regarding a review of the CFNIS internship program, the MPCC considers the alternative action proposed by the CFPM to be consistent with the MPCC’s recommendation.

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