Determination of Scope of Public Interest Investigation and MPCC Jurisdiction

Introduction

1. On November 4, 2015, the Chairperson of the Military Police Complaints Commission (MPCC or the Commission) made a decision to conduct a Public Interest Investigation (PII) into this anonymous complaint relating to the treatment of detainees in Afghanistan. In the decision, the Chairperson explained that the next steps in the PII would be for the Commission to obtain disclosure of all relevant materials in the possession of the Military Police (MP) and then to determine the scope of the Commission’s investigation and to identify the subjects of the complaint.
2. The Commission has now obtained disclosure of the MP files for the relevant investigations. Having reviewed these materials, the Commission has determined the extent of its jurisdiction to investigate the different aspects of the complaint and has identified the subjects of the complaint. This decision sets out the scope of the issues that the Commission will investigate in this PII, and articulates why it is legally precluded from making findings and recommendations in relation to certain aspects of the complaint that fall outside of its jurisdiction.

The Complaint

3. On February 12, 2015, the Commission received an anonymous complaint concerning the conduct of members of the MP Company (Coy), Task Force 3‑10, stationed at Kandahar Airfield, Afghanistan (KAF) in December 2010 and January 2011.
4. The complaint alleges the Commanding Officer (CO) for the MP Company conducted exercises in the Detainee Transfer Facility (DTF) for the purpose of terrorizing the detainees. According to the complaint, the exercises involved dynamic entries in cells neighbouring those occupied by detainees, and eventually involved the conduct of exercises in cells occupied by detainees. It was alleged that on at least one occasion, MP members entered the cells, armed with police equipment and 9mm pistols, and then pressed the detainees against the wall and on the floor and applied arm locks. The complaint states the tension was so high after the previous two months that several detainees defecated and urinated on the spot.
5. The complainant goes on to state that the Canadian Forces National Investigation Service (CFNIS) conducted an investigation and interviewed close to thirty MP members, “in order to bring serious charges” against the MP Company CO. S/he states the charges were referred to the Canadian Armed Forces (CAF) Joint Task Force Afghanistan (JTF‑Afg) Commander, who allegedly ignored them.
6. The complaint further alleges that in October 2012, a member of the MP Chain of Command (CoC) was tasked to conduct an investigation regarding these events, but complains that to date, no charges have been brought against the MP Company CO and no court martial was convened.
7. In its previous decisions about this matter, the Commission has found that this complaint raises concerns both about the alleged conduct of the MP members involved in ordering and conducting the exercises at the DTF and about the conduct and results of the subsequent investigations. In this respect, the crux of the complaint appears to be that nothing was done about the exercise(s) and that the person or persons responsible were not brought to justice.

Actions Taken to Initiate the Investigation and to Obtain Disclosure of Relevant Materials

8. When the Commission initially received the complaint, it sought additional information from the Military Police, and obtained confirmation that a CFNIS investigation had been conducted into an incident relating to an exercise at the DTF in Kandahar in January 2011.
9. The Commission then attempted to contact the five “reference persons” listed in the complaint letter. Some of these individuals refused to provide information to the Commission, others could not be reached until many months later, and yet others provided information confirming that an incident had occurred at the DTF in the relevant time period.
10. In September 2015, the Commission Interim Chairperson rendered a decision finding that the Commission could receive an anonymous complaint and could extend the time for making such a complaint, and extending the time period for filing the complaint.  On November 4, 2015, the Commission Chairperson issued her decision to conduct a PII into this complaint.
11. On November 6, 2015, two days after the decision to conduct a PII was issued, the Commission wrote to the Canadian Forces Provost Marshal (CFPM), the head of the Military Police, to request disclosure of materials relevant to the complaint. In particular, the Commission requested disclosure of the investigative file for the CFNIS investigation, as well as the Report for the 2012 investigation conducted by the MP CoC.
12. On December 18, 2015, the Commission was advised that the CFNIS was now conducting an assessment of its 2011 investigation to determine whether any matters required additional investigation. At the time, the Commission understood that preparation of the disclosure was still ongoing, and that information would soon be available about the estimated time when disclosure would be provided.
13. On January 11, 2016, the Commission received a letter from the CFPM formally advising that, in light of the information contained in the anonymous complaint, the CFNIS was conducting an assessment of its 2011 investigation in order to determine if all appropriate steps were carried out in the initial CFNIS investigation. At that time, the CFPM informed the Commission that no disclosure would be provided until the review was concluded.
14. The Commission immediately entered into discussions with the Canadian Forces Military Police Group (CF MP Gp) to obtain information regarding the estimated time required for the review and to find out whether any disclosure would be provided to the Commission in the meantime.
15. In early February 2016, the Commission was informed that the CFNIS would likely be sending the file to military prosecutors for pre‑charge review in the near future. The Commission was advised the review might require many weeks, and that the investigation would be considered ongoing throughout this period. In response, the Commission insisted that the investigative file for the 2011 CFNIS investigation be provided without delay.
16. The Commission has since learned that a review of the 2011 CFNIS investigative file was ordered by the CFNIS CO on November 24, 2015 and that the review was completed on February 10, 2016. Upon receiving the document outlining the results of the review, the CFNIS CO tasked the CFNIS Central Region to obtain additional materials and information and to re‑submit the file for pre‑charge review if warranted.
17. In late February 2016, the Commission was informed that the new CFNIS investigation would not be concluded as quickly as initially anticipated. Disclosure of the 2011 investigative file was still not provided to the Commission, as the Military Police indicated it was concerned the Commission’s PII might interfere with the CFNIS investigation or with an eventual prosecution. The Military Police requested that the Commission agree to various restrictions on the conduct of its investigation in order to avoid this risk.
18. The Commission was not prepared to agree to restrictions that could delay its investigation indefinitely or compromise the independence of its investigation. Extensive discussions were held with the Military Police in an attempt to obtain disclosure of the investigative file for the 2011 CFNIS as soon as possible. However, disagreement remained as to the conditions the Military Police could legitimately place on the conduct of the Commission’s PII before providing the requested disclosure. Agreement was finally reached, and a Protocol regarding the conduct of concurrent investigations by the Commission and the CFNIS was signed on June 2, 2016.
19. On June 8, 2016, the Commission received disclosure of the Terms of Reference and Report for the 2012 investigation conducted by the MP CoC. On June 10, 2016, the Commission received disclosure of the complete investigative file for the 2011 CFNIS investigation.
20. On June 8, 2016, the Commission was informed that the CFNIS had decided to conclude its new investigation into the matter. The Commission was advised that the file would not be sent to military prosecutors for pre-charge review and that no charges would be laid. The file was concluded on June 10, 2016. The Military Police Group then reviewed the file to redact certain information.
21. On August 26, 2016, the Commission received disclosure of the file for the new CFNIS investigation.
22. In the course of reviewing the materials disclosed, the Commission identified additional materials required for its investigation. A request for additional disclosure was sent to the CFPM on July 22, 2016. A portion of the documents requested was received on September 29, 2016, and the remaining documents were received on October 17, 2016.
23. All told, the documentary disclosure received to date by the Commission totals over 3000 pages of materials, as well as over 25 audio and video recordings.
24. On January 14, 2016, the Commission Chairperson co‑delegated this file to Commission Member Michel Séguin.  As a result, the Chairperson and Member (the Commission Panel) will be jointly conducting this Public Interest Investigation and preparing the Interim and Final Reports relating to this complaint.
25. When the Commission received disclosure of the relevant files and materials, the Commission Panel began to examine the materials with a view to determining the scope of the PII and to identifying the individual subjects of the complaint.

Relevant Facts

26. In order to determine the scope of its jurisdiction to investigate each aspect of this complaint, the Commission must examine how the legislation that defines its jurisdiction applies to the particular facts of this case.
27. While the Commission has thus far reviewed a fairly large volume of materials, it is important to note that the Commission has not yet conducted witness interviews or determined what other materials may be necessary to make findings about the merits of the complaint. As such, the Commission is limiting the discussion in this decision to only the basic facts relevant to determining its jurisdiction.
28. A complete discussion of the information contained in the materials reviewed and the information learned through the witness interviews to be conducted by the Commission will be included in the Commission’s Report. It is at that stage that the Commission Panel, having received all of the relevant information and evidence, will be able to make findings about the merits of the complaint, and any recommendations.
29. The following are the basic facts the Commission was able to ascertain based on its review of the materials. It is these facts that the Commission takes into account in determining its jurisdiction to investigate each aspect of the complaint.
30. First, the review of the materials has confirmed that the MP Company did conduct exercises at the Detainee Transfer Facility in Kandahar during the time period mentioned in the complaint. The disclosure has also confirmed that many of the individuals involved in ordering and conducting the exercises were members of the Military Police, but not all of them were, as some regular members of the CAF were also posted at the DTF.
31. In terms of the Chain of Command at the time of this deployment, the CO of the MP Company reported directly to the CAF Chain of Command in theatre, i.e. the Commander for the CAF JTF‑Afg for this deployment. This was a deployment in theatre that took place prior to the reorganization of the Military Police in April 2011, which led to the CFPM (the head of the Military Police) assuming direct command over MP members in many circumstances. As a result, the MP Company that was deployed at the time of the events complained of was not under the command of the CFPM, but rather under the command of the CAF Task Force Commander.
32. The MP Company was responsible for operating the Detainee Transfer Facility. The detainees held in that facility were solely suspected Afghan insurgents and not members of the CAF or other Canadian nationals being investigated or sentenced for violations of the military Code of Service Discipline. The MP Company was not responsible for making decisions about the capture, release or transfer of the detainees.  These decisions were made by the CAF Chain of Command.
33. The materials disclosed to the Commission have also confirmed that after the exercises were held, the CFNIS conducted an investigation into the matter. Unlike the MP Company, the CFNIS did not report to the CAF Chain of Command. The CFNIS Detachment deployed in theatre reported to the CFNIS CO, who in turn reported to the CFPM.
34. The CFNIS investigation was concluded in April 2011. At the time, the CFNIS decided not to lay charges, but to allow the CAF JTF‑Afg Commander to make a decision on the appropriate action to take. In November 2015, the CFNIS decided to conduct a review of its earlier 2011 investigation. In February 2016, the CFNIS decided to conduct certain additional investigative activity in this investigation. In June 2016, the CFNIS decided not to submit the matter to a military prosecutor for pre‑charge advice and decided not to lay charges in relation to the exercises conducted in 2010‑2011 at the DTF in Kandahar.
35. The investigation conducted in 2012 at the request of the Military Police CoC was a Summary Investigation meant to inquire into alleged MP leadership shortcomings during the deployment of the relevant rotation. It was not meant to inquire about the alleged exercises and did not make findings about the exercises. It was not a criminal investigation.

The Commission’s Jurisdiction

36. The complaint received by the Commission can be divided into three distinct allegations:
    1. The Chain of Command for the MP Company in Afghanistan improperly ordered the conduct of inappropriate or illegal exercise(s) involving detainees and the MP members involved participated in inappropriate or illegal conduct;
    2. The CFNIS failed to conduct an adequate investigation into the matter or improperly failed to lay charges;
    3. The MP member who conducted the subsequent investigation on behalf of the MP CoC failed to conduct an adequate investigation into the matter or improperly failed to address the matter or to lay charges.
37. In order to determine whether it has jurisdiction under the law to investigate this complaint, the Commission must examine each allegation separately, and ascertain whether each allegation relates to conduct that falls within the list of duties and functions that the Commission is mandated to review and investigate.
38. The matters that the Commission has the jurisdiction to investigate have been determined by Parliament in the National Defence Act^{Note 1} (the NDA), the law that created the Commission, and by the Governor in Council in Regulations that define the specific Military Police conduct that can be complained about under the NDA.
39. Section 250.18(1) of the National Defence Act provides that the only complaints that can be made about Military Police conduct are complaints about the performance of policing duties or functions listed in regulations made by the Governor in Council.
40. The Regulations that define what policing duties or functions can be complained about are called the Complaints about the Conduct of Members of the Military Police Regulations.^{Note 2} They provide the following list:

    2. (1) For the purpose of subsection 250.18(1) of the Act, any of the following, if performed by a member of the military police, are policing duties or functions:

    1. the conduct of an investigation;
    2. the rendering of assistance to the public;
    3. the execution of a warrant or another judicial process;
    4. the handling of evidence;
    5. the laying of a charge;
    6. attendance at a judicial proceeding;
    7. the enforcement of laws;
    8. responding to a complaint; and
    9. the arrest or custody of a person.^{Note 3}

41. The Regulations also provide the following exceptions to the list:

    For greater certainty, a duty or function performed by a member of the military police that relates to administration, training, or military operations that result from established military custom or practice, is not a policing duty or function.^{Note 4}

42. The Federal Court of Canada has determined that this list of exceptions excludes certain duties from the definition of policing duties or functions that are otherwise included in the list provided in the Regulations.^{Note 5} This means that even if a function performed by a Military Police member is part of the list of policing duties or functions, it will not be part of the matters that can be complained about if it relates to one of the following:
    1. Administration;
    2. Training; or
    3. Military operations that result from established military custom or practice.
43. The Commission must now examine whether each of the allegations in this complaint relates to one of the duties listed and, if so, whether it is part of the exceptions listed. The answer to these questions will determine what the Commission can investigate in this case.
44. The Commission notes that this determination about its jurisdiction concerns only the specific facts of this case, as different situations may require a different analysis and decision.

A)  Allegation 1: The exercises conducted at the Detainee Transfer Facility

45. The Commission finds that the conduct of the Military Police members involved in ordering and carrying out the exercises at the DTF is prima facie part of the policing duties or functions specifically listed in the Regulations, as it relates directly to the functions listed in section 2(1)(i) of the Regulations: “the arrest or custody of a person.”^{Note 6}
46. The question that needs to be answered in this case is whether this conduct falls within one of the matters that are excluded from the Commission’s jurisdiction by the Regulations.
47. The Federal Court of Canada has answered the question in the case of Amnesty International.^{Note 7} The case related to complaints made in 2007 and 2008 by Amnesty International, alleging that Military Police members had transferred Afghan detainees to Afghan authorities despite a known risk that these detainees would be tortured. The jurisdiction of the Commission to investigate these complaints was challenged by the Attorney General of Canada.
48. In its decision, the Federal Court concluded that “the detention of insurgents in Afghanistan” is not a function that falls within the Commission’s jurisdiction to investigate because it relates to military operations that result from established military custom or practice and is therefore part of the functions excluded by the Regulations.^{Note 8}
49. In the Amnesty International case, the complaints related to the involvement of MP members in the transfer of detainees. Decisions about detainee transfers were made by the CAF Chain of Command and not by the Military Police.^{Note 9} In this case, the complaint relates to the conduct of MP members in the treatment of detainees while the detainees were in their custody. The MP members were responsible for the day‑to‑day operations of the detention facility, but the MP Company CO remained under the command of the CAF Chain of Command.
50. In the Amnesty International decision, the Federal Court mentioned the CAF’s responsibility for decisions over the transfer of detainees, but did not make its decision on this basis. Instead, the Federal Court stated categorically that “the capture, detention and transfer of insurgents in Afghanistan” is part of the duties excluded from the Commission’s jurisdiction.^{Note 10} While the allegations in the present complaint may be seen as more directly related to matters that fall under the Military Police’s responsibility, the Federal Court decision precludes a finding that the Commission can have jurisdiction over conduct related to the treatment of Afghan detainees captured as part of the military operations in that country.
51. In the decision, Harrington J. discussed the Report of the Special Advisory Group on Military Justice and Military Police Investigation Services^{Note 11} (the Dickson Report). He wrote:

    As noted in the Dickson Report, the investigation of service offences is not the main role of the Military Police. Most Military Police members carry out numerous functions and tasks assigned by the Commanding Officer:

    Military police have very broad responsibilities which can best be described as four core areas, namely, police, security duties, custodial duties and direct support to military operations. The performance of their police functions are similar to those of other police forces and include law enforcement, crime prevention and investigations. The security duties of the military police include those of security or personnel, materiel, information and information technology and those related to military intelligence. The military police is also responsible for the custodial functions associated with service prisons or field detention barracks which may be required in operations.

    It is in the field of operations that military police’s most important war time duties reside. Thus, the military police has an operational function which includes, inter alia, battlefield rear area and site security, route reconnaissance as well as traffic control for tactical movement, control of refugees, custody of prisoners of war and sundry direct defence duties in specific areas such as airfields. In short, the primacy of the operational mission will prevail over other duties when military police are deployed with forces in the field, be it in actual operations or in training.^{Note 12}

    [Emphasis added by Harrington J.]

52. Having reviewed this Report, as well as the Somalia Inquiry Report,^{Note 13} Harrington J. concluded they had found that the custody of prisoners of war or detainees in a theatre of war is an operational function or a function that relates to military operations.^{Note 14} Having concluded that subsection 2(2) of the Regulations operates to exclude certain duties from the definition of policing duties or functions, even if they are specifically listed in subsection 2(1),^{Note 15} Harrington J. found that the capture, detention and transfer of Afghan insurgents are excluded from the definition of policing duties or functions that can be reviewed by the Commission because they relate to military operations that result from established military custom or practice.^{Note 16}
53. Regardless of the other factual distinctions that exist between this complaint and the one at issue in the Amnesty International case, the Federal Court’s general determination with respect to the custody of Afghan detainees, writ large does cover the circumstances of the present case. While some of the facts can be distinguished, the reasoning Harrington J. chose to rely on to reach his conclusion makes the conclusion equally applicable to this case as it was in the Amnesty International case. Thus, it must be concluded that in this case, as in the Amnesty International case, the detention of the Afghan nationals, like their capture and their transfer or release, was part of the military operations and therefore falls under the exclusion in section 2(2) of the Regulations and is not part of the matters that can be reviewed by the Commission.
54. Hence, where the capture of a detainee is part of an established military operation, the resulting detention, release or transfer of the detainee will similarly be part of the military operation, as the Federal Court has found was the case with respect to Afghan detainees.  Conversely, if the capture or arrest of a person is not part of a military operation, as would for example be the case for an arrest made for the purpose of enforcing the military Code of Service Discipline or other law enforcement purpose, then the nature of the functions involved would have to be analyzed differently. In the present case, the analysis already set out in the previous Federal Court decision is directly applicable.      
55. The Commission recognizes the fact that the result in this case may appear to be leaving the actions of the Military Police in the treatment of foreign detainees during deployed operations without scrutiny or oversight. This is not entirely accurate. There are accountability mechanisms available via investigation by the CFNIS for potential violations of the Military Code of Service Discipline or other laws – and these investigations can be reviewed by the Commission if a complaint is received. Nevertheless, under the current law and jurisprudence, no direct independent oversight from an organization external to the military is available to scrutinize the conduct of MP members in the treatment of foreign detainees in their custody, at least in the context of this complaint.
56. That being said, in the absence of contrary guidance from higher courts and under the specific circumstances of the present case, the Commission feels bound to follow the existing jurisprudence that made specific determinations about the Commission’s jurisdiction over the treatment of Afghan detainees. The Commission considers that a different decision is not possible in this case.  The Commission is bound by the law and the Regulations as written, and must follow the existing Federal Court decision directly on point. Accordingly, the Commission is precluded from assuming jurisdiction over the complaint relating to the alleged exercises conducted by Military Police members at the Detainee Transfer Facility.
57. The Regulations also list another exception to the policing duties that can be the object of a complaint before the Commission. Functions that relate to “training” are also specifically excluded.
58. Because the Federal Court already determined in Amnesty International that the detention of Afghan detainees is excluded from the Commission’s jurisdiction as relating to military operations, it is not necessary for the Commission to examine whether the training exclusion could apply based on the facts of this case. Therefore, the Commission makes no finding or determination here about the nature of the exercises conducted at the DTF and about whether the training exclusion could have applied to exclude the conduct of these exercises from the Commission’s jurisdiction.

B)  Allegation 2: The CFNIS Investigation and Decision Not to Lay Charges

59. The allegation relating to the CFNIS investigation centers on the failure to lay charges. As indicated in the Commission’s decision to extend the time for making the complaint and in the Commission’s decision to conduct a PII into the complaint, this aspect of the complaint amounts to an allegation that the CFNIS either conducted an inadequate investigation that failed to uncover the relevant information about the exercises or, having collected sufficient information, made an improper decision with respect to charges.
60. The CFNIS, unlike other Military Police units, has the authority to lay charges under the military Code of Service Discipline. A complaint about the failure to lay charges is therefore a complaint about the conduct of CFNIS members.
61. Both “the conduct of an investigation” and “the laying of a charge” are specifically listed in the Regulations as part of the policing duties that fall within the Commission’s jurisdiction. None of the exceptions related to administration, training or military operations apply to this aspect of the complaint, as the CFNIS mandate is to conduct investigations into criminal or service offences for law enforcement purposes. The actions of CFNIS members in the conduct of such investigations and in making decisions regarding the laying of charges are therefore clearly within policing conduct that is subject to review by the Commission.
62. In the Amnesty International case, a complaint had also been made about the alleged failure by the Military Police to investigate the CAF officers responsible for ordering the transfer of detainees to Afghan authorities. The Federal Court found that this aspect of the complaint was within the Commission’s jurisdiction.^{Note 17}
63. Harrington J. specifically stated that “the conduct of an investigation within the meaning of the Regulations includes a failure to investigate.”^{Note 18} The same reasoning applies to “the laying of a charge” duty listed in the Regulations. Therefore, a complaint alleging an improper failure to lay a charge relates to one of the duties listed in the Regulations and is within the Commission’s jurisdiction to investigate.
64. Thus, a complaint alleging that an inadequate investigation was conducted or that MP members failed to investigate certain aspects also relates to one of the duties listed and is clearly within the Commission’s jurisdiction to investigate.
65. As a result, the Commission concludes that it has jurisdiction to investigate all aspects of the allegations made about the 2011 CFNIS investigation and decision not to lay charges.

C)  Allegation 3: The Investigation Conducted by the MP Chain of Command

66. The complaint alleges that an investigation relating to the exercises at the DTF was conducted in 2012 by the MP Chain of Command and complains that no charges were laid following the various investigations conducted.
67. The conduct of an investigation, if carried out by a MP member (as was the case for this investigation), is part of the policing duties that the Commission has jurisdiction to review. However, functions relating to administration are excluded by the Regulations. Because of the nature of this investigation, the Commission must determine whether it relates to “administration” and therefore falls outside its jurisdiction.
68. In order to make this determination, the Commission has reviewed the Terms of Reference and the Report for the investigation, as well as the relevant orders and directives applicable to the investigation.
69. Based on this review, the Commission has found that the investigation conducted was a form of administrative investigation called a Summary Investigation. According to the relevant Queen’s Regulations and Orders for the Canadian Forces, a Summary Investigation can be ordered by Commanding Officers to investigate matters relating to their Unit or affecting members under their command.^{Note 19} It specifically cannot be used to investigate criminal or service offences.^{Note 20}
70. In this case, the Summary Investigation was ordered by the then CFPM in September 2012 to investigate alleged Military Police leadership shortcomings during the relevant deployment (TF 3‑10).  The findings required by the Terms of Reference for the investigation all related to administrative, organizational and training-related issues, such as the composition of the MP Company, pre‑deployment training, communication protocols, Standard Operating Procedures (SOPs), etc. The Terms of Reference specifically required that the Summary Investigation be adjourned if evidence believed to be related to criminal or service offences allegations was received.
71. The Report for the Summary Investigation did contain some references to the investigation conducted by the CFNIS in this case, but did not make findings about the exercises conducted at the DTF.
72. Having reviewed the definition of the policing duties that fall within the Commission’s jurisdiction and the exclusions in the Regulations, the Commission concludes that it does not have jurisdiction to investigate the conduct and results of the Summary Investigation in this case.
73. This was an administrative investigation related to purely internal matters, akin to investigations conducted in the workplace to resolve personnel or organizational issues. It was not related to the law enforcement and policing duties carried out by the Military Police.
74. That being said, some of the information uncovered in the Summary Investigation may well be relevant to the Commission’s Public Interest Investigation. As the Commission investigates and assesses the conduct of the CFNIS investigation and the CFNIS’ decision not to lay charges, all relevant information that can shed light on the events and surrounding context can be considered.

The Scope of the Public Interest Investigation and the Subjects of the Complaint

75. Due to the constraints on the Commission’s jurisdiction imposed by the legislation and Regulations, as interpreted by the Federal Court of Canada, the Commission is precluded from making findings and recommendations about the conduct of any MP members involved in ordering and conducting the exercises at the Detainee Transfer Facility, as well as about the conduct of the MP member who conducted the administrative investigation in 2012.
76. As a result, the Commission’s Public Interest Investigation will focus on the conduct of the CFNIS investigation and on the CFNIS’ decision not to lay charges.
77. However, the Commission will need to investigate what happened at the Detainee Transfer Facility in order to make informed findings about the adequacy of the CFNIS investigation and decision not to lay charges, including determining whether sufficient information was obtained by the CFNIS, whether there were deficiencies in the investigation, and whether the decision not to lay charges was appropriate in the circumstances.
78. Hence, the scope of the PII will include gathering all information the Commission deems necessary about the underlying facts (i.e. the conduct of the exercises) and the surrounding context, where relevant, in order to make the necessary findings about the CFNIS members’ conduct and to formulate recommendations, as necessary.
79. However, because the Commission can only make findings and recommendations about the CFNIS investigation and charging decision, the only persons who can be named as subjects of the complaint are the CFNIS members involved in or responsible for the investigation and the charging decision.
80. The Commission is cognizant of the fact that this situation may seem like an anomaly in a case like this one. While the complainant clearly objected to the fact that no charges were laid or court martial convened despite the CFNIS investigation, it is also apparent that an important aspect of the complaint related to the conduct of those MP members involved in ordering the exercises at the DTF. Based on the text of the complaint, it is those individuals who the complainant alleges were responsible for inappropriate conduct and who s/he alleges should have been brought to justice.
81. In this case, the end result of the limits placed on the scope of the Commission’s jurisdiction, whether intended or not, is that some individuals whose conduct the complainant wished to complain about cannot be named as subjects of the complaint while those individuals who attempted to investigate this same conduct must be named as subjects.
82. The Commission must emphasize at this stage that the fact that the CFNIS members involved in and responsible for the investigation and the decision not to lay charges have been identified as the subjects of the complaint should not be interpreted as an indication that the Commission has concluded there were deficiencies in their conduct.
83. It is only at the conclusion of its investigation that the Commission will be able to determine whether there were deficiencies in the CFNIS investigation, whether the decision not to lay charges was inappropriate or unreasonable and, in case deficiencies or issues are identified, whether the subjects of the complaint were responsible. The Commission is not currently in a position to make those determinations. The identification of the subjects of the complaint is not meant as an indication of the eventual conclusions to be drawn.
84. The subjects of a complaint before the Commission are not similar to accused persons in a criminal case. While those accused persons are presumed innocent, they are accused because the state has reasons to believe they are involved in the crime. Subjects of a complaint in a Commission investigation are in a different position. They are not identified because the Commission believes they had involvement in inappropriate conduct or that there were deficiencies in their work. They are identified solely on the basis of the fact that they were involved in the tasks or conduct that has been complained about.
85. Hence, if a complaint is made that an investigation was inadequate, the police members involved will be named as subjects of the complaint whether or not any information has been obtained indicating the investigation was in fact inadequate.  Identifying and notifying the subjects of the complaint allows the Commission to advise them that their conduct has been complained about and that findings will be made about events they were involved in.
86. Each of the subjects identified will be provided an opportunity, during the Commission’s PII, to participate in interviews with Commission investigators in order to explain their role in the CFNIS investigation and charging decision.
87. In this case, based on its review of the materials, the Commission has identified six subjects of the complaint, including four investigators from the in‑theatre CFNIS Detachment who were involved in leading and assisting with the conduct of the 2011 investigation, the Officer Commanding for the in‑theatre CFNIS Detachment, and the Deputy Commanding Officer at CFNIS HQ at the relevant time.

Conclusion

88. Having reviewed the applicable law that determines the Commission’s jurisdiction in this case, the Commission has found that the scope of this PII will be limited to making findings and recommendations in relation to the allegations made about the CFNIS investigation and decision not to lay charges. The Commission is precluded from making findings or recommendations about the conduct of the MP members involved in the actual exercises at the DTF, or about the conduct of the MP member who conducted the subsequent administrative investigation.
89. The Commission understands that the limited scope of the findings and recommendations may appear anomalous, particularly to the complainant and any others who have similar concerns about the exercises conducted at the DTF. This is the result of the legislation and regulations, as interpreted by the courts and as applicable in this particular case.
90. The Commission will conduct a thorough and complete investigation of all matters within its jurisdiction. This will include an investigation of the events at the DTF, in order to understand the full context and information available to the CFNIS, and to make findings and any necessary recommendations about the conduct of the CFNIS investigation and about the CFNIS decision not to lay charges.

DATED at Ottawa, Ontario on this 27th day of February, 2017.

Date modified:

2017-03-02