2022 Annual Report | Charting Oversight in a New Era

i – Conduct Cases MPCC 2018‑14 and 2019‑007

The MPCC coordinated its investigations into these two conduct complaints as the underlying facts, Military Police members involved, and evidence overlapped. One conduct complaint was filed in April 2018 and the other in January 2019.

The complainants were members of a foreign navy's sports team that arrived in Canada to play in a tournament in April 2015. At the heart of the complaint is a sexual assault allegation against the complainants and two other members of the team that was investigated by the Canadian Forces National Investigation Service. The complainants 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 resulted in the complainants being committed to trial in September 2016. A decision from a Voir Dire hearing involving the complainants was released in September 2017 and included the conclusion that one complainant's right to counsel without delay had been violated. The Crown Prosecutors ultimately withdrew the charges.

The Office of Professional Standards of the Canadian Forces Provost Marshal investigated 28 allegations against 11 members of the Military Police. These included concerns about the arrest, language used by the Military Police, security, securing/suppressing evidence, documentation, failure to interview witnesses, and logistical issues. The Professional Standards investigation in 2018‑014 found all allegations were not substantiated except one which was partially substantiated. In 2019‑007, the Professional Standards investigation found 12 allegations were not substantiated, one allegation was partially substantiated, and one allegation was substantiated.

The complainants requested the MPCC to review their complaints in December 2019 and March 2020 respectively. The MPCC identified one additional subject Military Police member who was involved in the Canadian Forces National Investigation Service investigation in 2018‑014 and an additional three subjects in 2019‑007. The MPCC investigated 29 allegations overall. In 2018‑014, it determined two allegations partially substantiated and one substantiated. In 2019‑007, it determined that two allegations were partially substantiated and four substantiated. All other allegations were not substantiated.

The MPCC found that the search incident to arrest of the complainants took place within a reasonable time after the arrest, without excessive force and that there was no evidence that anyone other than the arresting Military Police members and the complainants witnessed the arrest. Military Police members are required to conduct a search incident to arrest at the location of the arrest and, as it was not a strip search, there was no requirement to conduct the search in private. One complainant was kept in handcuffs longer than required as there were no circumstances to justify continued restraint once the search was completed and he was placed in the back of the police vehicle. The MPCC did not find unprofessional conduct prior, during or after the interview of one complainant as there was no evidence of Military Police members making disparaging comments about legal counsel as alleged. As the MPCC found that one subject Military Police member did not make sufficient effort to locate a particular witness in order to serve a subpoena, it partially substantiated the related allegation. However, in this instance, the Military Police did successfully complete this service and the witness testified.

The MPCC found that the actions of the subject Military Police members did not demonstrate bias or a lack of independence from the military chain of command as alleged. The MPCC found no evidence that the military police failed to interview key witnesses thereby failing to conduct a thorough and complete investigation or that they suppressed evidence as was alleged by the complainants. The Military Police did, however, fail to interview an individual that was mentioned by the alleged victim during her statement, and also failed to inquire into the alleged victim's cellphone which may have contained evidence to support the prosecution or the defence; as such, the allegations in relation to these elements of the Military Police investigation were substantiated.

The MPCC noted that the subject Military Police members did not exhibit tunnel vision, nor did they intimidate or coach witnesses as alleged. The use of leading or clarifying questions in interviews did not transgress legal or policy limits. The allegation that Military Police improperly passed information about the case to the alleged victim was not substantiated as the evidence only demonstrated that the Military Police appropriately kept an alleged victim of sexual assault informed as to the progress of an investigation and legal proceedings, including deoxyribonucleic acid (DNA) and toxicology results. One subject Military Police member did not mislead Crown Prosecutors into thinking there was enough evidence to arrest the complainants as alleged. The Military Police had already formed the belief that there were reasonable and probable grounds to arrest the complainants and had the authority do so regardless of the legal advice provided by the Crown Prosecutors.

The allegation that false information was used to obtain a DNA warrant was not substantiated. 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 Military Police failed to retain a copy of the Information to Obtain as part of the General Occurrence file, thereby shielding conduct from review was partially substantiated. Only a portion of the Information to Obtain was scanned into the file after it was endorsed by a justice of the peace. This omission failed to respect Military Police policy on the requirement to document investigative activity fully. However, there was no evidence that subject Military Police member tried to shield his conduct from review or intentionally withheld information. The allegation that Military Police should have, but did not, seal the DNA warrant was partially substantiated because, while Military Police 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 Military Police member without him documenting the exercise of discretion or rationale for proceeding the way he did, as is required by Military Police policy.

The MPCC substantiated the allegation that subject Military Police members infringed on the complainants' 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 complainants wait for over one hour to speak with a lawyer after arrival to the Canadian Forces National Investigation Service building simply because the one designated Duty Counsel Room was being used by a co-accused. The MPCC also found the conversations between the complainants and legal counsel were not sufficiently private. It was incumbent on the military police to facilitate the complainant's immediate and private access to legal counsel.

The MPCC noted that an investigation of this size and complexity would have benefited from the use of Major Case Management.

The MPCC recommended that the subject Military Police members review the policies and best practices of: professionalism and discretion when discussing information related to an investigation; documenting investigative activity in a General Occurence file; the principles of Major Case Management, and the resources available to implement them. It recommended that all subjects who had been involved in the arrest and interviewing of the complainants, review the principles of section 10(b) of the Canadian Charter of Rights and Freedoms and the importance of providing an accused access to legal counsel without delay and in private. The MPCC also recommended that the Canadian Forces Provost Marshal review the facilities at the Military Police Unit in this matter and confirm compliance with the need to provide immediate and secure access to consult legal counsel in private.

In response to the MPCC's reports in these two conduct complaints, the Canadian Forces Provost Marshal accepted the findings and recommendations. He also broadened the scope of the recommendation to review facilities from this Military Police Unit to all Military Police Detachments.

ii – Conduct Case MPCC 2018-035 Summary

This Military Police conduct complaint arose from the Canadian Forces National Investigation Service 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 into a broom closet and sexually assaulted her. The complainant provided a recorded statement to the Canadian Forces National Investigation Service investigators – the subjects of this complaint. She was taken to hospital where a sexual assault evidence kit protocol was performed, and samples of bodily fluids taken.

The following day, the suspect was arrested and provided a statement to Canadian Forces National Investigation Service investigators. In this statement, the suspect admitted to having sex with the complainant, and seemed to concede, that he may have been reckless as to whether or not there was consent. On June 13, 2018, the investigators took a 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 indicated that she had a sexually transmitted infection. The complainant believes that she got the infection from the suspect. The Canadian Forces National Investigation Service investigators advised the suspect to get tested for a sexually transmitted infection and also had the suspect sign 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.

The Canadian Forces National Investigation Service investigators referred the case to the Regional Military Prosecutor for pre-charge review. The Regional Military Prosecutor recommended against laying charges. This opinion was apparently based on a statement made by the complainant in her Canadian Forces National Investigation Service interview which was considered by the prosecutor to suggest consent on the part of the complainant. As a result, the prosecutor came to believe that the reasonable prospects of obtaining a conviction were impaired.

The lead Canadian Forces National Investigation Service investigator subsequently briefed the complainant on the results, at which time, he allegedly made some inappropriate remarks.

This conduct complaint raised various concerns about the handling of the Canadian Forces National Investigation Service 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 not substantiated.

After a thorough review of the Military Police file materials and its own further investigation, the MPCC reached the following conclusions:

1. The Canadian Forces National Investigation Service 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.
2. There was no evidence to indicate that the Canadian Forces National Investigation Service 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.
3. The Canadian Forces National Investigation Service investigators were not at fault for failing to send the sexual assault evidence kit test results to the Regional Military Prosecutor. The results did not come in until after the pre-charge review package was sent to the Regional Military Prosecutor. Moreover, at that point in the investigation, consent was the only outstanding issue in the case.
4. The Canadian Forces National Investigation Service investigators did not conclude that there was "insufficient evidence" to support charges against the suspect. Charges were not laid on the basis of the Regional Military Police's advice with respect to prosecutorial discretion: the Regional Military Police felt there was not a reasonable prospect of a conviction.
5. The Canadian Forces National Investigation Service investigators were not at fault for failing to investigate the suspect further for transmission of a sexually transmitted infection to the complainant. With a large segment of the adult population carrying the particular sexually transmitted infection, 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 to diagnose the disease – there is no authority for police to compel such testing.
6. The Canadian Forces National Investigation Service investigators were not at fault for failing to charge the suspect with a 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 Military Police members, and not the Canadian Forces National Investigation Service investigators. Moreover, it is unusual to proceed with a breach of conditions charges when the prosecution for the underlying substantive offence does not proceed.
7. The Canadian Forces National Investigation Service investigators were not at fault for failing to have the suspect's DNA sample tested against the complainant's sexual assault evidence kit 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.
8. The lead Canadian Forces National Investigation Service 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.
9. The Canadian Forces National Investigation Service 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:

1. That the Minister:
   1. 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
   2. 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.

The remaining three recommendations were made to the Canadian Forces Provost Marshal:

2. That the Canadian Forces Provost Marshal issue directions to the effect that Military Police be required to be transparent in communicating their reasons for not laying charges.
3. That the Canadian Forces Provost Marshal put in place a policy to ensure that the relevant Canadian Forces National Investigation Service Detachment is notified about any breach of release conditions handled by another Military Police Detachment; and
4. That the Canadian Forces Provost Marshal consider a requirement that all DNA samples taken from suspects be tested against Sexual Assault Evidence Kit samples.

In his Notice of Action, the Canadian Forces Provost Marshal 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.

iii – Interference Case MPCC 2019-029 Summary

This interference complaint arose from the handling of two alleged incidents of unlawful incursion, and other breaches of the Canada Wildlife Act, in relation to the National Wildlife Area located within the Canadian Forces Base by members of the local Canadian Forces Base Military Police Platoon. These incidents occurred in May and July, respectively, of 2019, and appeared to have involved soldiers of a foreign army unit posted to the Canadian Forces Base.

In accordance with a 2009 Memorandum of Understanding between Environment Canada (now Environment and Climate Change Canada) and the Department of National Defence, the investigation of the alleged Canada Wildlife Act breaches fell to members of the local Military Police Platoon, which was commanded by the complainant.

The subject of the interference complaint was the acting Military Police Company Commander, who was the complainant's supervisor at the times relevant to this complaint.

The local Military Police Platoon conducted investigations of these two Canada Wildlife Act cases through the summer of 2019. Over the course of these investigations, the acting Military Police Company Commander apparently became increasingly concerned with the handling of the investigation by the Military Police Platoon under the command of the complainant. These concerns included: an alleged failure to consult appropriate military or civilian legal counsel; the magnitude of the fines under the Canada Wildlife Act and regulations potentially applicable to charges under the wildlife legislation; and, in light of the huge fines being discussed (up to $200 million), the potential risk to the Canadian Armed Forces "strategic relationship" with the foreign army unit, if charges were to proceed.

Such concerns by the acting Military Police Company Commander ultimately led to certain directions by the Military Police Company Commander to the complainant who viewed these as constituting improper interference in the two Canada Wildlife Act investigations: 1) the referral of the two Military Police Platoon investigations to the regional detachment of the Canadian Forces National Investigation Service for review and feedback; and 2) the disposition of the investigation into the May 2019 Canada Wildlife Act incident by way of recorded warning to the foreign army unit rather than the laying of charges. The complainant interpreted these directions as due, not to genuinely perceived deficiencies in the Military Police Platoon investigations, but to the acting Military Police Company Commander's preference that the cases not result in charges against members of the foreign army unit. As a result, the complainant submitted to the MPCC this interference complaint against the acting Military Police Company Commander.

After a thorough review of the relevant Military Police records, as well as a series of interviews, the MPCC concluded that this interference complaint was not substantiated.

In his interview with the MPCC, the complainant seemed to back away from his initial belief that the above-noted interventions by the acting Military Police Company Commander were the result of an ulterior and inappropriate motive.

The MPCC investigation also determined that the decision to dispose of the investigation into the first incident by way of a recorded warning, instead of by charges, was reached independently by the Military Police Platoon lead investigator and was not the result of pressure from the acting Military Police Company Commander. In any event, the MPCC noted that good faith direction by Military Police superiors on the handling or disposition of a Military Police investigation is within the purview of the Military Police chain of command and does not in itself constitute improper interference.

Moreover, with respect to the direction to refer the investigation files to Canadian Forces National Investigation Service for review, the MPCC determined that this was an accepted practice within the Canadian Forces Military Police Group and did not necessarily entail the entire transfer of investigative responsibility to Canadian Forces National Investigation Service. This appeared to be the case here, where the lead investigator positions on both Canada Wildlife Act files remained with the same members from the Military Police Platoon (although supervisory roles were transferred to the regimental level).

On the basis of the foregoing, the MPCC determined both interference allegations to be not substantiated.

During its investigation of this complaint, the MPCC observed that the Environment Canada-Department of National Defence memoranda of understanding regarding the management of the Canadian Forces Base National Wildlife Area, having been developed prior to April 2011, was outdated in that it treated the local Military Police Platoon members as delegates and subordinates of the Canadian Forces Base Command, which is inconsistent with the current command structure of the Canadian Armed Forces Military Police. Since April 1, 2011, all Military Police performing policing duties form part of the Canadian Forces Military Police Group under the command of the Canadian Forces Provost Marshal. Certain witnesses interviewed by the MPCC in this case shared that observation.

Indeed, it was noted to the MPCC that the practice of the Canada Wildlife Act enforcement in respect of the Canadian Forces Base National Wildlife Area under the memoranda of understanding has been modified by direction to the local Military Police Platoon that they are to play a supporting role, rather than a leading role, in such investigations.

To better clarify relevant authorities and responsibilities, the MPCC recommended that the memoranda of understanding be modified to reflect the current Military Police command structure.

In response to the MPCC's Report, the Chief of Defence Staff accepted the MPCC's findings and recommendation in this matter.

i – Canadian Forces National Investigation Service

Once again this year, the MPCC was invited to present at the training session for new Canadian Forces National Investigation Service members. The Senior General Counsel and Director General, Julianne Dunbar, and the General Counsel and Senior Director of Operations, Elsy Chakkalakal, both attended and provided the new members with a very useful discussion on our mandate and the importance of professionalism in the work of Canadian Forces National Investigation Service members.

ii – Office of the Chief of Defence Staff

Interim Chairperson, Bonita Thornton, Senior General Counsel and Director General, Julianne Dunbar, and General Counsel and Senior Director of Operations, Elsy Chakkalakal, provided a virtual session to the Chief of Defence Staff and his staff on Part IV of the National Defence Act complaints process and answered questions regarding procedures and practices.

iii – Australian Royal Commission into Defence and Veteran Suicides

Interim Chairperson, Bonita Thornton, Senior General Counsel and Director General, Julianne Dunbar, and General Counsel and Senior Director of Operations, Elsy Chakkalakal, along with other Department of National Defence Portfolio agencies provided a presentation and briefing to the Australian Royal Commission into Defence and Veteran suicides regarding our work.

iv – Canadian Armed Forces Locations across Canada

Virtual sessions with participants across Canada and beyond increase awareness of the MPCC's mandate and activities, build relationships with stakeholders and provide an opportunity to respond to questions and concerns about the Complaints process. The primary audiences are:

• members of the Military Police who may be subjects, complainants or witnesses in conduct or interference complaints;
• the military chain of command, which relies on the services of members of the Military Police to maintain military discipline, but cannot interfere with police investigations; and
• those who may interact with the Military Police because they live, work, or visit a Canadian Armed Forces base. The MPCC's connection to this group is often made through the executive directors and staff of the Military Family Resource Centres.

The MPCC's goal is to reach as many members of the military family as possible, while respecting the operational realities of Canadian Armed Forces bases and wings across the country and abroad.

Following the success of the virtual national town halls on interference, as well as some other pilot outreach sessions, the MPCC launched a series of national virtual outreach sessions in the Fall of 2021. This continued into 2022. The new program allows members of the primary audience to register to an event at the date and time of their choice. Rather than restrict each session to one base, each session is aimed at a particular audience and offered widely. We delivered 5 sessions to Military Family Resource Centres audiences, 7 to military police audiences, and 5 to Command team members. A total of 291 participants attended virtual outreach sessions throughout the year.

The feedback provided by participants was very positive. Their feedback and our experience will be used to continue to improve the design and delivery of further virtual outreach sessions in the coming year.

v – Canadian Forces Military Police Academy

The MPCC delivers regular outreach sessions to the Canadian Forces Military Police Academy located in Borden, Ontario as part of its curriculum. Again this year, the MPCC presented virtually to the graduating Qualifying Level 3 classes in the spring and the fall. We appreciated the opportunity to remind 94 new Military Police members of the importance of police oversight. The MPCC also delivered outreach sessions to Military Police Officers Course classes in the spring. Twenty police members attended these Military Police Officers Course outreach sessions.

vi – Canadian Association for Civilian Oversight of Law Enforcement (CACOLE)

The Canadian Association for Civilian Oversight of Law Enforcement (CACOLE) is a national, nonprofit organization of individuals and agencies dedicated to advancing the concept, principles and application of civilian oversight of law enforcement organizations across Canada and abroad. CACOLE is recognized worldwide for its policing oversight leadership. The MPCC's Chairperson is a member of the CACOLE Board of Directors.

CACOLE held its annual educational conference in 2022 ("The Changing Face of Oversight") using a hybrid model for in-person attendance as well as attendance via videoconference and was attended virtually by the Interim Chairperson and several members of the MPCC.

i – Canadian Forces Provost Marshal

The MPCC Interim Chairperson and the Canadian Forces Provost Marshal continued the practice of having annual meetings to discuss matters of mutual interest, including their core mandates and objectives.

This year, the meeting took place on November 25, 2022. These meetings provide an opportunity for the MPCC Interim Chairperson, the Canadian Forces Provost Marshal, along with their respective key staff to discuss issues with respect to the complaints process and to find ways to improve the process. These meetings have been fruitful in ensuring strong lines of communication and a collaborative relationship. This has been reinforced by regular meetings between the MPCC Senior General Counsel and Director General and the Deputy Commander of the Canadian Forces Military Police Group / Office of Professional Standards of the Canadian Forces Provost Marshal. MPCC personnel have also engaged as needed with Professional Standards staff to maintain a professional and collaborative relationship to address issues as they arise.

i – Biography of the Interim Chairperson

ii – Biographies of the Commission Members

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