Final Report issued to the Complainants, Subjects, and DND Statutory Recipients (MPCC-2021-026)

TABLE OF CONTENTS

1. Summary of Complaint
2. Findings
3. The MPCC Public Interest Investigation Process
4. The Interference Complaint
5. Factual Background to Complaint
6. Evidence, Analysis and Findings
   1. 6.1 Allegations #1 and #2: WO Eves’s direction regarding “tactical pause” and transfer of file to General Investigation Section.
   2. 6.2 Allegation #3: Capt Andriatz’s call to X’s mother.
7. Glossary of Terms / Acronyms Used Throughout Report

I Summary of Complaint

1. This interference complaint^{Footnote 1} arose from a welfare check on a Military Police officer, X^{Footnote 2}, at her residence. X’s neighbour had called the Military Police (MP) Unit because she had discovered that X’s young children were playing outside unsupervised while X was asleep inside her house. The neighbour and her husband had some difficulty waking X up and noted that she seemed disoriented. X was known to have a problem with alcohol and had just completed a rehabilitation program. This followed an incident three months prior involving X, which became the basis of both a separate interference complaint (MPCC 2021‑012) and a conduct complaint (MPCC 2021‑017).

2. No charges were laid against X as a result of the earlier incident, however, administrative measures were taken. Some members of the MP Unit felt that X had received preferential treatment in this regard and filed an interference and conduct complaint against members of the MP Unit chain of command. Two of the three MP members involved in those complaints are also the complainants in the present interference complaint: an MP Corporal, and his supervisor, an MP Sergeant, who responded to the welfare check.

3. The complainants completed the welfare check on X, and no action against X was taken. X’s children were not deemed to be in any imminent danger. However, a new MP investigation file was opened regarding X related to possible child abandonment and failure to provide the necessaries of life for a child, based on information provided by the neighbour who instigated the welfare check. The complainant MP Corporal briefed the regional duty officer of the Canadian Forces National Investigation Service (CFNIS), however, they declined to take the case for investigation at that time.

4. The Deputy Commanding Officer of the MP Unit, a subject of this complaint, called X’s mother to advise her of the welfare check.

5. The complainant MP Corporal developed a plan which called for production orders to obtain records from the Ministry of Child and Family Development (MCFD) and security video from area liquor stores. At this time, the complainants’ superior, an MP Warrant Officer and a subject of this complaint, sent an email suggesting a “tactical pause” in the investigation of X for child abandonment and failure to provide the necessaries of life. The MP Warrant Officer subsequently indicated to the complainant MP Sergeant his intention that the investigation be transferred to the General Investigation Section of the MP Unit.

6. In the meantime, the complainant MP Corporal continued to gather information regarding X’s behaviour as a parent, both from her neighbours and from MCFD staff. The further information gathered subsequently led CFNIS to take jurisdiction over the child abandonment investigation.

7. The complainants alleged interference on the part of the MP Warrant Officer for suggesting a “tactical pause” in the investigation of X and the transfer of the investigation to the General Investigation Section of the MP Unit. The complainants also took issue with the Deputy Commanding Officer of the MP Unit having called X’s mother to advise her of the welfare check conducted by the Military Police on her daughter.

8. Following an investigation, the Military Police Complaints Commission (MPCC) concluded that the allegations of improper interference were not substantiated. First, in suggesting a “tactical pause” and seeking to transfer the investigation to the MP Unit’s General Investigation Section, the subject MP Warrant Officer was not attempting to close the investigation. Second, at the time of his “tactical pause” email and attempt to transfer the file to the General Investigation Section, the subject MP Warrant Officer was unaware of the further information gathered by the complainant which persuaded the CFNIS to take over the case. Finally, it was concluded that, in speaking to X’s mother to advise her of the welfare check on her daughter, the subject MP Captain was merely acting as X’s assisting officer and this contact did not interfere with the MP investigation.

9. In response to the MPCC’s Interim report in this matter, the Chief of the Defence Staff (CDS) noted that, as there are no recommendations in this report, no further action was required on this matter.

II Findings

Finding #1:
The MPCC finds that the allegation that WO Eves improperly interfered with a Military Police investigation into alleged child abandonment by suggesting a “tactical pause” in the investigation is NOT SUBSTANTIATED.

Finding #2:
The MPCC finds that the allegation that WO Eves improperly interfered with a Military Police investigation into alleged child abandonment by attempting to transfer the investigation to the Military Police Unit’s General Investigation Section is NOT SUBSTANTIATED.

Finding #3:
The MPCC finds that the allegation that Capt Andriatz improperly interfered with a Military Police investigation of X for child abandonment by calling X’s mother is NOT SUBSTANTIATED.

III The MPCC Public Interest Investigation Process

10. On August 3, 2021, the MPCC Chairperson called a public interest investigation into this complaint, along with the two earlier complaints by these complainants regarding their MP Unit’s handling of an investigation of X in respect of the initial March 10, 2021 incident: MPCC 2021‑012 and MPCC 2021‑017.

11. Disclosure of relevant records was received from the office of Professional Standards of the Canadian Forces Provost Marshal between August 24, 2021 and April 20, 2022. MPCC investigators conducted seventeen interviews between January and the end of March 2022.

12. The MPCC has the sole authority to dispose of interference complaints under Part IV of the National Defence Act (NDA). Apart from stipulating that “improper interference” in a military police investigation includes intimidation and abuse of authority, the Act provides no definition or guidance as to what constitutes improper interference. Nor is improper interference a legal term for which one may have recourse to other legislation or to the common law to assist in interpreting the concept. Rather, the MPCC has determined what constitutes improper interference on a case-by-case basis and over the years has developed principles as to what is, and what is not, improper interference.

13. One principle is that for improper interference in a military police investigation, it is not necessary that the person in question specifically intended to interfere in the investigation. It suffices that the individual knew or ought to have known of the existence of an active or potential military police investigation, and then acted or omitted to act in such a way as to impair or compromise such an investigation.

14.Another key principle that has been developed and consistently applied by the MPCC is that guidance or direction provided to military police investigators from their military police superiors is generally not interference. This is not to say, however, that military police superiors can never be found to have engaged in improper interference. Military police supervisors and superiors must act in good faith and for a proper purpose in providing their direction or guidance regarding investigations conducted by their subordinates. Personal favouritism, bias or discrimination would not be proper purposes or bases for guidance, direction or other intervention in respect of a military police investigation.

15. Finally, as the MPCC’s complaint process is administrative in nature, the standard of proof for substantiating the allegations is the civil standard of proof on a balance of probabilities (i.e., more likely than not), as opposed to the criminal standard of proof beyond a reasonable doubt.

IV The Interference Complaint

16. The MPCC has identified the following allegations for purposes of this interference complaint:

Allegation #1: WO Jeffrey Eves (MP Unit non-commissioned officer in charge of Operations) improperly interfered with MP file 2021‑15730 by directing “a tactical pause” in the conduct of the investigation by Cpl Wheeler;

Allegation #2: WO Eves improperly interfered with MP file 2021‑15730 by directing the transfer of the file to the MP Unit’s General Investigations Section.

Allegation #3: Capt Derek Andriatz (MP Unit Deputy Commanding Officer) improperly interfered with MP file 2021‑15730 by contacting the mother of X regarding the investigation without Cpl Wheeler’s knowledge or consent.

V Factual Background to Complaint

17. On March 10, 2021, X, a newly posted military police officer was prevented from driving herself and her three children home from a restaurant by bystanders who believed her to be impaired.

18. The civilian police who responded to the scene determined that X did not have ‘care and control’ of her car and so could not be charged with impaired operation of a motor vehicle. Military Police Corporal (Cpl) Bain subsequently attended the scene and drove X and her children home.  While service offences of drunkenness and conduct to the prejudice of good order and discipline were recommended by Cpl Bain, the MP Unit commanding officer, Maj Roland Russell, elected to deal with X’s conduct by way of administrative measures.

19. Some members of the MP Unit, including Cpl Bain and the two complainants in the present complaint – Cpl Monty Wheeler and his supervisor, Sergeant (Sgt) Daniel Mongraw – believed that the MP Unit chain of command were trying to cover-up the incident involving X and to give her preferential treatment. On April 30, 2021, these MP members filed interference and conduct complaints with the MPCC: MPCC files 2021‑012 and 2021‑017.

20. On June 12, 2021, the MP Unit received a call from one of X’s neighbours, reporting that X’s young children were outside of their residence without supervision. The neighbour reported that she entered X’s house and found her unconscious on the couch. The neighbour reported that her husband, who also attended the residence of X, noted she seemed disoriented.

21. The call from the neighbour came in at 1216 hrs that day (June 12, 2021). Cpl Wheeler and Sgt Mongraw attended at X’s residence in response to the call. The lead investigator, Cpl Wheeler, arrived at 1221 hrs. He spoke with X, and that conversation was recorded on Cpl Wheeler’s Mobile Video Recording System. Cpl Wheeler determined that X was “of stable mind and health”. He cleared the residence five minutes later at 1227 hrs. Cpl Wheeler documented that occurrence in Military Police investigation file 2021‑15072.

22. After being apprised of this latest incident involving X, at 1258 hrs, the MP Unit Deputy Commanding Officer, Captain (Capt) Derek Andriatz called X’s mother to advise her of the welfare check.

23. As a follow-up to this investigation, on the same day, Cpl Wheeler opened another file (General Occurrence (GO) 2021‑15730). In this file, he commenced an investigation for Child Abandonment (s. 218 Criminal Code); and Fail to Provide Necessaries (s. 215(2)(ii) Criminal Code) in respect of X. He also notified the Ministry of Children and Family Development (MCFD).

24. The following day, on June 13, 2021, at 1115 hrs, Cpl Wheeler reported the matter to Sgt Ryan Wilson, the CFNIS Duty Officer for the region. Sgt Wilson declined to accept the investigation at that time. Sgt Wilson documented on the file his rationale for not accepting the case: he believed there was not sufficient evidence to support an investigation for child abandonment.

25. On June 14, 2021, at 0817 hrs, Warrant Officer (WO) Jeffery Eves first reviewed MP file 2021‑15730. He again reviewed it 1500 hrs.

26. At 1655 hrs on June 14, WO Eves sent an email to Cpl Wheeler’s shift supervisor, Sgt Mongraw, stating, “I think Cpls Wheeler and Trenh should take a ‘tactical pause’ until we get more information from the Ministry [Ministry of Children and Family Development] before proceeding further”. Between 1728 hrs and 1746 hrs, WO Eves reviewed the file again.

27. At 1826 hrs on June 14, WO Eves called Sgt Mongraw on a recorded line. In that phone call, WO Eves directed that the file be turned over to the MP Unit’s General Investigation Section (whereas Cpl Wheeler and Sgt Mongraw were on patrol duties).

28. At the same time as Sgt Mongraw was speaking with WO Eves, Cpl Wheeler was on the phone to Sgt Wilson again and provided new information regarding the matter. Sgt Wilson told him he would reassess the file the following day once all the new information was put in the file.

29. Throughout that evening shift, Cpl Wheeler updated the file with the further information he had obtained.

30. June 15, 2021, at the request of the MP Unit Sergeant‑Major, Chief Petty Officer Second Class (CPO2), Dean Mackinnon, the regional CFNIS Officer Commanding, Capt Evan Foster and WO William Evershed reviewed the investigation file 2021‑15730 and agreed to assume the investigation.

31. This interference complaint was submitted on July 14, 2021, initially by Cpl Wheeler; however, Sgt Mongraw subsequently joined as a co-complainant.

32. On August 3, 2021, the MPCC Chairperson launched a public interest investigation of this complaint, along with the earlier complaints connected with the March 10, 2021 incident involving X: MPCC files 2021‑012 and 2021‑017.

VI Evidence, Analysis and Findings

6.1 Allegations #1 and #2: WO Eves’s direction regarding “tactical pause” and transfer of file to General Investigation Section

33. The first allegation is based on an email sent by WO Eves to Cpl Wheeler’s supervisor (and co‑complainant), Sgt Mongraw on June 14, 2021 at 1655 hrs. The relevant portion of this email reads as follows:

In regard to GO 2021‑175702 [sic – should read 15702] – Check welfare is more or less concluded (e.g., you received the complaint, investigated the complaint, action plan put in place). Essentially please tie up any loose ends and conclude it.

In regard to GO 2021-17730 [sic – should read 15730] – I believe you started the file in good faith and as such you contacted CFNIS Duty Officer and MCFD [Ministry of Child and Family Development]. Sgt Wilson, CFNIS has reviewed the file and typed a very detailed textbox in the file of the fact they (CFNIS) do not believe that there are grounds for Child Abandonment exists [sic]. As well the MCFD Social Worker has been there several times over the weekend and did not think the children were in any danger or they would have immediately removed them from the care of the parent/guardian. As such I think Cpls Wheeler and Trenh should take a “tactical pause” until we get some more information from the Ministry before proceeding further. I understand they plan on compiling a production order to get the MCFD files but to what end? By all accounts it doesn’t appear a criminal offence has occurred. Please remember that the MCFD has a duty to report to police if there is any real danger to the children.

34. In assessing this allegation regarding the “tactical pause” direction, it is important to consider the state of WO Eves’s knowledge at the time he sent this email. X had been asleep and was reportedly hard to wake up by the neighbours. Her children were playing outside unsupervised at the time the neighbours called the MPs. Cpls Wheeler and Trenh responded to the call to check on X. Cpl Wheeler felt that X was clearly tired and seemed confused. However, he did not note any signs of alcohol use, though he felt she may have been hungover.

35. Cpl Wheeler briefed CFNIS Sgt Wilson on the matter with a view to having them take over the investigation. Sgt Wilson noted the following on the electronic MP file on the Security and Military Police Information System (SAMPIS):

2.Cpl WHEELER stated he had originally suspected that [X] was passed out from alcohol consumption when he was made aware of the call; however, after attending the residence he was unable to formulate any grounds that [X] had consumed alcohol, as there was no smell of alcohol on her person, no visual indication of open alcohol in the residence and her speech was not slurred. Cpl WHEELER did say that she looked hung over and she had just came out of rehab for alcohol abuse on 8 Jun 21. Cpl WHEELER also mentioned that [X] was an ex‑MP. Sgt WILSON was aware that [X] was subject of an alcohol related file involving her children in the recent pass [sic].

4.Cpl WHEELER informed Sgt WILSON that the MCFD was contacted and attended the residence on 12 Jun 21, IOT ensure the safety of the three children. Upon their assessment, the children were allowed to remain in the residence with [X] and were not deemed to be in any immediate danger.

5.Although MP Gp Order 2‑381.1 (Benchmarks - Serious and Sensitive Offences) states that serious offences where a child is the victim shall be referred to CFNIS, the assessment of information does not suggest this is a serious offence against a child, as the SUB of the investigation was only deemed to be sleeping, which caused the children to be left unattended for a short period of time. CFNIS would normally take investigative responsibility for a file involving a member of the MP; however, this file was simply the result of a check welfare call, which MP patrol members and the MCFD responded to and determined that all parties in the residence (children included) were not at harm. For that reason, [CFNIS] has declined investigative responsibility at this time.

36. The foregoing SAMPIS entry is dated June 13, 2021 at 1107 hrs. Cpl Wheeler conducted further investigation by speaking with X’s neighbours, as well as staff from the MCFD. As a result, further information was learned about X’s parenting behaviour. After a further conversation with X’s neighbour and with staff from the MCFD, Cpl Wheeler had gathered significant information suggesting neglectful parenting on the part of X. This time, CFNIS agreed to take up the case. Sgt Wilson made the following SAMPIS entry dated June 14, 2021 at 1730 hrs:

2. MP Gp Order 2‑381.1 (Benchmarks-Serious and Sensitive Offences), para 2. h. states that serious offences where a child is a victim shall be referred to the CFNIS; as well, para 2. s. offences committed by MP/MPO appointed under section 156 of the National Defence Act (NDA) shall be referred to the CFNIS. The new information provided to Sgt WILSON provides sufficient grounds that [CFNIS] should accept and assume investigative responsibility for this investigation.

3. On 15 Jun 21, [CFNIS] OC and WO reviewed this GO and agreed with Sgt WILSON that [CFNIS] has assumed investigative responsibility for this investigation.

37. Further information gathered by Cpl Wheeler was set out in an email to Sgt Mongraw on June 15, 2021, at 05:44 hrs, which was forwarded a minute later to WO Eves as a response to the latter’s “tactical pause” email of the previous day. In this June 15 email, Sgt Mongraw and Cpl Wheeler presented WO Eves with similar information to that provided to Sgt Wilson of CFNIS regarding X’s parenting. This message to WO Eves from Sgt Mongraw concluded as follows:

Respectfully, due to this new information I cannot in good faith take a “Tactical Pause” from this investigation as suggested by the WO EVES. I have observed many safety and health concerns which I cannot turn a blind eye. I am morally and ethically obligated to continue this investigation. I feel as though the CoC is encroaching on interference and potential obstruction of my criminal code investigation (Capt ANDRIATZ contacting family of X without consulting me). I have built report with all involved parties and have liaised with CFNIS throughout this process as per our group order. I do not have any conflict of interest as I was not involved with X in her previous encounter when she was a MP.

This matter should be further investigated by CFNIS with this new information, however if not assumed I will remain as lead investigator.

38. So, while there initially did not appear to be grounds to pursue a child abandonment investigation, further information gathered by Cpl Wheeler from X’s neighbour and MCFD, and subsequently provided to the CFNIS and to WO Eves, appeared to provide such grounds. However, it must be noted that WO Eves was only made aware of this additional information after he sent his “tactical pause” email on June 14, 2021 at 1655 hrs. If one considers solely the evidence presented to WO Eves as at the time of his email, there did not, at that time, appear to be grounds for the steps being contemplated by Cpl Wheeler: namely, search warrants to obtain videotape from area liquor stores and a production order for relevant records from the MCFD. This view is consistent with Sgt Wilson’s initial assessment of the file on behalf of CFNIS.

39. In evaluating this allegation, it is also important to note the actual language used by WO Eves in his June 14, 2021 email. The message does not in fact direct a halt to the investigation. Rather, it suggests awaiting further information from MCFD, which is precisely what occurred. WO Eves noted that MCFD already has a duty to report to the police if there is “any real danger to the children”. As such, he questioned the need to prepare a production order for disclosure from MCFD. The message concluded with a promise to call Sgt Mongraw shortly thereafter, at 1800 hrs.

40. WO Eves did call and speak with Sgt Mongraw at 1826 hrs. In that conversation, WO Eves indicated that he would transfer the investigation file (GO #2021‑15730) to the MP Unit’s General Investigation Section – Cpls Wheeler and Trenh and Sgt Mongraw being then with the Patrol Section. This statement of intent by WO Eves is the basis for the second allegation in this complaint. This direction to transfer responsibility for the file to the MP Unit’s investigations section was confirmed by WO Eves in an email sent that same evening of June 14, 2021, at 1936 hrs. In that message, WO Eves also directed that Sgt Mongraw ensure that all investigative steps and an investigation plan be entered on the file. Again, such direction suggests that WO Eves was not seeking to shut down an investigation of this matter or to ignore it or cover it up in any way. In the event, as noted above, the investigation was taken over by CFNIS after new information was obtained by Cpl Wheeler from X’s neighbours and MCFD.

41. One of WO Eves’s reasons indicated for directing the transfer of the file to the MP Unit’s investigation section was that it was Sgt Mongraw’s patrol shift which had previously dealt with X in connection with the March 10, 2021 incident. He further suggested that Cpl Wheeler had some unstated personal history with X. During the phone call with Sgt Mongraw, WO Eves further stated that “it looks like you guys have got an axe to grind potentially” with X. In his interview with MPCC, WO Eves stated, in light of the foregoing, that he felt Cpl Wheeler was “being very biased”.

42. Another factor to consider in assessing the reasonableness of WO Eves’s actions in suggesting a “tactical pause” and directing the transfer of the file to the MP Unit’s investigation section was Cpl Wheeler’s relative lack of experience at the time: he had barely two years’ experience as a Military Police member. Moreover, the Criminal Code offences of child abandonment and failure to provide the necessities of life are not commonly‑charged offences and are complex in nature in terms of the elements to be proven.

43. The foregoing information indicates that WO Eves’s directions regarding the “tactical pause” and the transfer of the investigation file in question were reasonable and were undertaken for legitimate reasons and not with a view to improperly interfering with, or stopping, the investigation, which, in the event, continued with the CFNIS. It may be noted that this CFNIS investigation did not lead to charges against X.

Finding #1:
The MPCC finds that the allegation that WO Eves improperly interfered with a Military Police investigation into alleged child abandonment by suggesting a “tactical pause” in the investigation is NOT SUBSTANTIATED.

Finding #2:
The MPCC finds that the allegation that WO Eves improperly interfered with a Military Police investigation into alleged child abandonment by attempting to transfer the investigation to the Military Police Unit’s General Investigation Section is NOT SUBSTANTIATED.

6.2 Allegation #3: Capt Andriatz’s call to X’s mother

44. It is true that the MP Unit Deputy Commanding Officer, Capt Andriatz, called X’s mother at 12:58 hrs on June 12, 2021, the same day as the Military Police executed a welfare check at X’s home. Capt Andriatz did so in order to advise X’s mother of the event.

45. Capt Andriatz was X’s assisting officer and, as such, had been involved in supporting X in her recent difficulties. Capt Andriatz had developed a good relationship with X’s mother. X’s parents had assisted with the children while X was in treatment for her alcohol addiction. Indeed, X had only recently returned home from addiction treatment prior to the Military Police welfare call on June 12, 2021, and her parents had just left X that morning to return home to Alberta. Given his pre-existing involvement with X and her mother, it seemed only natural for Capt Andriatz to contact X’s mother to advise her of the latest development.

46. It was entirely legitimate and appropriate for Capt Andriatz and other members of the MP Unit leadership to be concerned for X’s welfare and that of her children. This legitimate concern did not cease because X was under investigation for possible service or criminal misconduct.

47. It must also be noted that Capt Andriatz had limited information as he had yet to be briefed on Cpl Wheeler’s new criminal investigation for child abandonment (GO # 2021‑15730) at the time he made this call. He was only aware of the welfare check conducted by Cpl Wheeler and Sgt Mongraw. Nor is there any reason to suggest that he ought to have known about this further investigation at the time of his call to X’s mother. Capt Andriatz’s intention was only to update X’s mother with a view to ensuring that X had appropriate support in dealing with her problems. Even if Capt Andriatz had been aware of the new criminal investigation, it is difficult to see how calling X’s mother to advise her of the welfare check could have interfered with that investigation.

Finding #3:
The MPCC finds that the allegation that Capt Andriatz improperly interfered with a Military Police investigation of X for child abandonment by calling X’s mother is NOT SUBSTANTIATED.

Consideration of the Chief of Defence Staff’s response letter

48. Having reviewed all information and materials relevant to this complaint, the Commission members then began the preparation of the Interim Report. In accordance with section 250.39 of the Act, the Interim Report was issued on August 25, 2023, and was transmitted to the Minister of National Defence, the Chief of Defence Staff (CDS), the Judge Advocate General, and the CFPM.

49. Pursuant to subsection 250.51(1) of the Act, the CDS is required to notify the Minister and the Chairperson of any action that has been or will be taken with respect to this complaint. On October 26, 2023, the MPCC received the CDS’ response letter (dated October 20, 2023) in response to the MPCC’s Interim Report.

50. In his response letter, the CDS noted that as there were no recommendations made in this matter, no action is required on the part of the CDS in relation to this complaint.

51. In conformity with subsection 250.53(1) of the Act, the Commission members prepared this Final Report after having considered the CDS’ response letter.

Ottawa, November 27, 2023

VII Glossary of Terms / Acronyms Used Throughout Report