Beamish Public Interest Investigation (MPCC‑2016‑040) - Decision to Conduct a Public Interest Investigation

Table of Contents

  1. In accordance with subsection 250.38 of the National Defence Act (NDA), I have considered whether it is in the public interest to cause the Military Police Complaints Commission (MPCC or the Commission) to conduct a Public Interest Investigation (PII) into this complaint. This decision sets out the reasons for my conclusion that a PII is advisable in this case.
  2. The Complaint

  3. The complaint was transmitted to the Commission by fax on December 28, 2016, by the complainant’s counsel. The complainant is Mr. Jeffrey Beamish, a former CAF member.
  4. The complaint states that between October 1983 and March 1984, the complainant participated in Infantry Battle School training at CFB Wainwright. Prior to graduation, the final training exercise was an “escape and evasion” drill. It is alleged that this exercise included a Prisoner of War (POW) scenario called “Fatal Blow”. The scenario was that the school was attacked and the instructors sought to extract information from the recruits. Approximately 33 recruits were involved.
  5. According to the complaint, the recruits were made to remove their clothes and were placed in prison cells that were too small to allow the recruits to move or sit. The complaint alleges that, over the following 24 to 48 hours, the naked recruits were sprayed through the jail door bars with cold water from a hose while the windows were left open, letting in the outside air. It is alleged that the temperature outside was between -15°C and -30°C. As the recruits did not have access to bathrooms, they had to urinate on the floor.
  6. The complaint states that early on during the scenario the complainant had his eyeglasses taken from him, causing anxiety as he could not see clearly. During the scenario, recruits were taken from the cells individually or in groups of two. The complainant witnessed several others being taken away. The complaint alleges that the complainant was eventually removed from the cells and taken to a washroom with a shower, where he watched another recruit being tortured in an ice cold shower and threatened to be thrown outside if he did not give the information the course instructors were looking for.
  7. The complaint states the complainant was then returned to the cell, where he remained for several hours, until the fire alarm was triggered. The recruits then ran and fought their way out.
  8. The complaint alleges that this exercise resulted in the complainant suffering from major depressive disorder, PTSD, night terrors, paranoia and adjustment issues. The complaint further states that the complainant’s counsel has four witness statements corroborating the complainant’s account of the events.
  9. The complaint indicates that the complainant made a complaint to the Military Police (MP), who referred the matter to the Canadian Forces National Investigation Service (CFNIS).  In August 2016, the CFNIS member in charge of conducting the investigation called the complainant to advise him that the investigation was closed. The recording of this debrief telephone call was transcribed and the transcription was attached to the complaint letter.
  10. The complaint recounts that, during the debrief call, the CFNIS investigator informed the complainant of the reasons why the investigation would not be pursued further. It is alleged that the investigator said that, even if the CFNIS could find a suspect, it was unclear what the court would do to a person for this type of offence. According to the complaint, the investigator stated that the CFNIS had to consider the actions of a court, in particular: “are they going to put somebody that’s 65 years or whatever in jail for something like this.”  The investigator then allegedly stated that, since torture did not become an offence until 1985, it was not in the Criminal Code at the time of the events.
  11. According to the complaint, the CFNIS investigator also told Mr. Beamish that he would not be provided with anything in writing. The complaint further states that during the conversation, when Mr. Beamish indicated that the investigator did not go through the file, the investigator confirmed that he indeed had not reviewed the file.
  12. The complaint states that the recording for the debrief demonstrates the following points: (a) the CFNIS investigator did not read the complaint or review the file before closing the investigation; (b) the CFNIS investigator refused to investigate the complaint because the word “torture” only appeared in the Criminal Code in 1985; (c) the CFNIS investigator was more concerned about what may happen to those responsible for the alleged assaults/torture than about finding out whether a crime was committed, in particular because the investigator believed it would be unfair to an assailant to investigate crimes that are more than 30 years old; and, (d) the CFNIS investigator refused to commit anything to writing in relation to the case.
  13. The complaint concludes by stating that this is a complaint about the conduct and performance of the CFNIS investigator and specifically alleges “professional negligence, incompetence, and failing to investigate serious criminal allegations.”
  14. Actions taken to investigate and review the complaint

  15. Upon receiving the complaint, the Commission sent it to the Canadian Forces Military Police Group (CF MP Gp) Professional Standards Section for investigation, in accordance with the process set out in the National Defence Act.
  16. After conducting an initial review of the matter, the CF MP Gp Deputy Commander ordered that a Professional Standards (PS) investigation be conducted into the complaint. On February 10, 2017, the Deputy Commander advised the complainant and the subject of the complaint of this decision. During the PS investigation, only the CFNIS investigator in charge of conducting the investigation and providing the briefing to the complainant was identified as the subject of the complaint.
  17. On September 20, 2017, the Deputy Commander wrote to the complainant and to the subject to advise them that the investigation was complete and had determined that the allegation in the complaint was not substantiated. The reasons for this disposition were detailed in the report prepared by the PS investigator, which was attached to the letter.
  18. The PS investigation report recounted the steps taken during the investigation, including a review by the PS investigator of the transcript and recording for the telephone debrief, as well as interviews conducted with the CFNIS investigator, the Warrant Officer (WO) supervising this investigation, and the Officer Commanding (OC) the CFNIS Detachment. Based on the investigation conducted, PS then reviewed each of the statements made in the complaint letter about the telephone debrief provided to the complainant, and concluded that those statements were not substantiated. PS found that the CFNIS investigator sought advice from appropriate authorities, and took steps in the meantime to obtain information. PS cited the observations of the CFNIS supervisors regarding the CFNIS investigator’s experience and the quality of his work.
  19. PS concluded that the allegation that the CFNIS investigator was professionally negligent, incompetent and failed to investigate serious criminal allegations was not substantiated. PS found that, although the CFNIS investigator had difficulty communicating effectively during the telephone debriefing, he was experienced and qualified for the task. PS also concluded that the CFNIS investigator conducted a thorough investigation, which PS stated was only stopped due to the intervention of the Crown prosecutor.
  20. On September 26, 2017, the complainant submitted a request to the Commission for a review of the complaint, pursuant to the National Defence Act. The request alleges that the PS investigation report does not answer the complaint, and requests a full review of the PS investigation.
  21. On September 29, 2017, the Commission requested disclosure of the relevant investigative files from the head of the Military Police, the Canadian Forces Provost Marshal (CFPM).
  22. On November 15, 2017, disclosure was received from the CFPM. The disclosure included three separate investigation files and several hours of recorded interviews.
  23. The Commission reviewed the files and interview recordings for both the original CFNIS investigation and the PS investigation.
  24. Following this review, I have decided to exercise my discretion as Chairperson to cause the Commission to conduct a PII into this matter.
  25. Considerations Relevant to the Decision to Conduct a PII

  26. The MPCC’s authority to conduct a Public Interest Investigation is anchored in the National Defence Act. Past practice and the MPCC’s mandate also provide relevant considerations that are given weight when deciding whether to exercise this discretion.
  27. Under subsection 250.26(1) of Part IV of the National Defence Act, the CFPM is responsible for investigating conduct complaints against MP members at first instance. These investigations are generally carried out by the PS section. Should a complainant be dissatisfied with the CFPM’s disposition of the complaint, they may request a review of that disposition by the Commission.
  28. In addition, the MPCC Chairperson may decide at any time to conduct a Public Interest Investigation into a complaint where it is advisable to do so, per subsection 250.38(1) of the National Defence Act:
    If at any time the Chairperson considers it advisable in the public interest, the Chairperson may cause the Complaints Commission to conduct an investigation, and, if warranted, to hold a hearing into a conduct complaint or an interference complaint.
  29. When the MPCC conducts a PII, this differs from the regular conduct complaint review process in that the investigation unfolds in a more public manner. The Commission makes the entire Final Report public, with the details of the information learned during its investigation, as well as the Commission’s findings and recommendations about the complaint. The Commission is also able to provide updates to the public as the investigation unfolds.
  30. In determining whether to cause the MPCC to conduct a Public Interest Investigation, there are several considerations to bear in mind.  Foremost among these is the MPCC’s mandate to investigate complaints about the conduct of MP members and its aim, through its oversight of the complaints process, to promote and ensure the highest standards of conduct for MP members and to promote public confidence in the Military Police.
  31. The decision of whether the public interest would be served by causing the MPCC to conduct a PII must be made on a case-by-case basis, in the context of each complaint. Nevertheless, it is also helpful to examine the considerations taken into account in past decisions to conduct PIIs.
  32. Drawing from the MPCC mandate and those past decisions, I consider the relevant public interest considerations to include: the nature and seriousness of the allegations; whether the allegations have the potential to affect public confidence in the Military Police; whether the allegations raise systemic issues related to MP processes and policies; whether there has been prior public interest in the events manifested by the community; whether there is a need for a public and transparent investigation process due to the nature of the allegations or other factors; and whether there is a need for an independent investigation process in order to maintain confidence in the Military Police and in the complaints process.
  33. Relevant Facts

  34. In considering whether to cause the Commission to conduct a PII in this case, I note at the outset that I make no assessment in this decision as to the substantive merits of the allegations in the complaint. Because the Commission has not yet commenced its investigation or conducted witness interviews, I am also limiting the discussion in this decision to only the basic facts relevant to determining whether to conduct a PII.
  35. In addition to the allegations made and the PS disposition of the complaint, the Commission takes into account the fact that its own review of the materials confirmed that a complaint was made to the CFNIS by Mr. Beamish and one other individual regarding the training exercise and the alleged torture, and that a decision was made by the CFNIS not to pursue the investigation further before all planned investigative steps were taken and after advice was sought from prosecutorial authorities.
  36. I consider that, in light of the allegation of failure to investigate made in the complaint, the Commission will be required to determine, as part of its own investigation, whether improper considerations influenced the decision to close the investigation, in order to determine whether this decision constituted an improper failure to investigate as alleged in the complaint.
  37. I make no comment here on the merits of the decision to close the CFNIS investigation, as this will be a matter to be investigated by the Commission in order to make findings about the complaint. In determining the public interest in having the Commission conduct a PII, I take into account the fact that this decision was made, and the issues it raises, solely for the purpose of evaluating the nature and seriousness of the allegations, as well as any systemic issues raised.
  38. Public Interest Considerations Applicable in this Case

  39. In assessing the public interest in light of the factors listed above, I consider that it is in the public interest for the allegations in this complaint to be investigated in an open and transparent manner.
  40. The allegations in this complaint are serious, and raise issues that can impact on confidence in the Military Police and its independence.
  41. The gravity of the underlying events alleged to have taken place is indisputable. They involve an allegation of torture, a very serious offence, and they are also alleged to have been the result of institutional conduct by a CAF Battle School Chain of Command and/or persons occupying positions of power or leadership in the CAF.
  42. In this sense, the underlying allegations differ from the more common allegations of criminal conduct investigated by police, which involve alleged misconduct by one or more individuals. In this case, the complaint being investigated by the CFNIS involved allegations that the alleged torture and abuse committed during the training exercise had been planned and sanctioned –or at least condoned– by the Battle School chain of command. The institutional aspect of the underlying allegations in turn impacts on the seriousness of the allegations in this complaint relating to the CFNIS’ handling of the investigation.
  43. At the crux of this complaint is an allegation that the CFNIS failed to investigate serious criminal allegations. Not only is this part of the allegations directly articulated in the complaint, but the issues raised in the complaint regarding the telephone debriefing provided to the complainant also relate to the decision not to investigate the matter further, in that they raise issues with how the decision was explained and how it was perceived to have been made.
  44. Given what the Commission has learned in reviewing the investigative files, in particular that the CFNIS made the decision to close the investigation after seeking advice from prosecutors, the allegation of failure to investigate raises systemic issues related to Military Police processes. In particular, the issue of the respective role and responsibility of the police and prosecutors in making decisions regarding the pursuit of investigations and the laying of charges is raised by the nature of the allegations and the facts of this case.
  45. Further, the allegation of failure to investigate is particularly serious in this case because it relates to underlying allegations of serious criminal offences allegedly perpetrated or condoned by CAF institutions or their Chain of Command. Because of the nature of the underlying events, the allegation that the CFNIS failed to investigate the matter could undermine public confidence in the Military Police and its independence, as it could risk creating a perception that the MP is hesitant to investigate and fully pursue allegations that may impact on the reputation of the CAF or its institutions and Chain of Command.
  46. A perception that the Military Police, as an internal police force, is declining to investigate allegations of torture against the military Chain of Command could, in turn, give rise to a perception of a lack of MP independence. Such a perception could discourage other potential complainants from coming forward and lodging complaints with the Military Police.
  47. For these reasons, I consider that it is in the public interest to have these allegations investigated in an open and transparent manner. When allegations put in question the independence of the MP or could give rise to a perception of institutional resistance to an investigation, an open and transparent process is useful to avoid any lingering suspicions once the investigation is complete. This serves to foster confidence both in the Military Police and in the complaint process itself.
  48. In addition, due to the nature and seriousness of the allegations, I consider that it is in the public interest to have these allegations investigated by an independent body. In this case, an internal investigation has already been conducted by the Military Police via its Professional Standards section. However, where allegations raise issues about MP independence, an internal investigation may not be sufficient to put to rest any negative perceptions or potential loss of confidence in the Military Police created by the allegations.As such, it is in the public interest to have the Commission, an independent agency, conduct a full investigation and make public its findings.
  49. I also note that, as evidenced by media reports, there has been public interest in the allegations made in this complaint regarding the events at the Battle School and the Military Police response. In April 2017, articles were published and television broadcasts were aired regarding the alleged events at the Battle School. The complainant in this case was interviewed, as well as other recruits involved in the exercise and the CAF Officer in charge of the Battle School at the time. One of the articles quoted an email statement from the Department of National Defence and the Canadian Armed Forces indicating that a nine-month long investigation had been conducted and that there was insufficient evidence to pursue the matter further. The article also reported at length on the issues raised by the complainant regarding the telephone debriefing and the decision to close the investigation.
  50. While this factor is not determinative, I consider that the fact that some of the allegations in this complaint have been made public constitutes one more reason why it is important that the findings about these allegations also be available to the public. Given the contrast between the official position of the Military Police, presented via the DND/CAF statement, and the allegations of the complainant about the response to his police complaint, it is important to shed light on the issues in an open and transparent way.
  51. Subsequent media coverage further reported that a number of other former CAF members had contacted the media to indicate they too had been subjected to training similar to the one described in the present complaint in different locations across Canada, during the same time period. This raises the possibility that there may be other individuals wishing to come forward with allegations of criminal behavior by CAF officials in the context of training. If this is the case, it further highlights the importance of investigating the present complaint to the fullest and to make the findings and any recommendations public, to ensure that confidence in the MP is preserved and that potential complainants are not prevented from coming forward due to a perception that the allegations will not be pursued by the Military Police.
  52. In discussing media coverage of this matter, I must also note that some of the individuals involved in the Battle School training may not be interested in complaining or participating in any investigation of the matter.  In reviewing the investigative materials, the Commission identified at least one such individual. While it is important to ensure that public confidence is preserved through the conduct of an open and transparent investigation, the Commission must also be sensitive to the concerns of individuals who may have been involved in the events and may not wish to be publicly identified.
  53. A PII is a uniquely well-suited process to allow the Commission to strike an appropriate balance between the need for transparency and public accountability, on the one hand, and the need to protect the privacy of individuals who went through some of the events described in the complaint and do not wish to be publicly identified.  As such, the Commission will ensure that appropriate measures are taken to protect the privacy of such individuals during the conduct of its PII, while ensuring that principles of openness, fairness and transparency are upheld.
  54. Given the public interest considerations present in this case, including the systemic issues raised, the nature and seriousness of the allegations, and the risk of potential negative perceptions that may impact on confidence in the Military Police or even discourage potential victims or complainants from coming forward, it is in the public interest that the Commission conduct a PII.
  55. Subjects of the complaint

  56. During the Professional Standard investigation of this complaint, only one subject of the complaint was identified, the CFNIS investigator in charge of conducting the investigation and providing the briefing to the complainant. The CFNIS investigator had been specifically named in the complaint letter, and his conduct was directly put in issue. As such, it is clear he is a subject of this complaint.
  57. In reviewing the investigative files, the Commission has ascertained that other CFNIS members were involved in or responsible for the decision to conclude the investigation which is being called in question by the failure to investigate allegation. Further, these members also had responsibility for supervising and overseeing the conduct of the investigation.
  58. As a result, the Commission has identified two additional subjects of this complaint: the WO who was in charge of supervising this investigation and the Officer Commanding the CFNIS Detachment at the time.
  59. It is important to emphasize at this stage that being identified as the subject of a complaint should not be interpreted as an indication that the Commission has concluded there were deficiencies in the conduct of the individuals identified. On the contrary, it is only at the conclusion of its investigation that the Commission will be able to determine whether any aspect of the complaint is substantiated and, if so, what responsibility the individual subjects of the complaint bear for any deficiencies.
  60. As the Commission has indicated in another case,Note 1 being the subject of a complaint is not at all similar to being an accused person in a criminal case. Rather than being an indication that the Commission has reasons to believe the individuals in question had involvement in inappropriate conduct or that there were deficiencies in their work, being identified as a subject of a complaint means only that the individual was involved in the tasks or the conduct complained about.
  61. The Commission will make findings and recommendations about the merits of the allegations in this complaint in its Final Report, after conducting a thorough and fair investigation, allowing all parties to provide information and explanations regarding the events and actions taken.
  62. The additional subjects of the complaint identified by the Commission will be notified of the complaint and of my decision to cause the Commission to conduct a PII.Each of the subjects of the complaint will be provided an opportunity, during the Commission’s investigation, to participate in interviews with Commission investigators in order to explain their role in conducting and/or supervising the CFNIS investigation and in the decision to close the investigation.
  63. Conclusion

  64. Given the circumstances of this case, I have concluded that it is advisable in the public interest to cause the Commission to conduct a Public Interest Investigation into this complaint. The Commission will now notify the additional subjects identified and will begin its investigation of the matter.

DATED at Ottawa, Ontario, on this 11th day of April, 2018

Original signed by

Hilary C. McCormack

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