Fortin Public Interest Investigation (MPCC‑2023‑006) – Decision on request for extension of time to file a complaint
Undesignated as of May 2, 2023 under the authority of the Chairperson of the MPCC.
April 12, 2023
Major-General Dany Fortin
Our file: MPCC 2023‑006
Request for extension of time to file a complaint
The Military Police Complaints Commission (MPCC) received your complaint by email on January 17, 2023. The complaint concerns the handling of an investigation by the Canadian Forces National Investigation Service (CFNIS) into a sexual assault that took place many years ago.
A complaint must be made within the one year after the incident in question.1 Given that your complaint is regarding the conduct of members of the Military Police which occurred more than one year ago, I can grant an extension of time if it is reasonable to do so.
In order to have in hand, all of the information relevant to a review of your request for an extension of time, the MPCC submitted a disclosure request to the Office of Professional Standards of the Canadian Forces Provost Marshal on January 25, 2023. More specifically, the MPCC requested a copy of the CFNIS investigation file into the allegation of sexual assault against you (General Occurrence (GO) file 2021‑5656).
On March 31, 2023, the Office of Professional Standards replied to this request by disclosing to the MPCC only a copy of the military police investigation report, a document a few pages long that contains only a summary of the investigation. The Office of Professional Standards asserts in its response that the information contained in the report is sufficient to rule on this request to extend the time to file a complaint and that, consequently, disclosure of the complete investigation file is unnecessary.
I would like to express my disagreement with this decision, since it is inappropriate for the Office of Professional Standards to take a position on the MPCC’s requirements in terms of information needed to decide on the questions before it. The MPCC alone is responsible for determining the relevance and scope of information required to accomplish its mandate. However, given that the MPCC is obligated to deal with all matters before it expeditiously,2 I have decided to proceed with the review of your request for a time extension based on the information available to date.
In reviewing your request for an extension of the time limit, I paid particular attention to the following factors: the MPCC’s jurisdiction; the length of the delay and the explanation you have provided; whether there is an arguable case; the potential prejudice to the military police subjects; and the interests of justice.
For the following reasons, I am granting your request for an extension of time.
In your complaint, you explain that the CFNIS initiated an investigation against you in response to the sexual assault allegation in mid‑March 2021. The subject Military Police member was the lead investigator on the file. On May 11, 2021, the CFNIS transmitted the investigation file to the Directeur des poursuites criminelles et pénales du Québec (DPCP) [Director of Criminal and Penal Prosecutions]. You were charged with sexual assault by the DPCP on August 18, 2021.
The trial began on September 19, 2022, and ended with a verdict of not guilty on December 5, 2022. The DPCP confirmed that it would not appeal the Court’s decision on January 9, 2023.
In your complaint, you claim that the CFNIS conducted a biased investigation in favour of the alleged victim and motivated, in part, by significant internal and external political pressure. You claim, among other things, that the CFNIS forwarded an investigation file against you to the DPCP in the absence of sufficient evidence.
Date of the events giving rise to the complaint
Your complaint raises allegations of mishandling of a sexual assault investigation by CFNIS members with respect to General Occurrence (GO) file 2021‑5656.
The events giving rise to your complaint primarily occurred between mid‑March and mid‑August 2021. This means that you filed your complaint approximately 17 to 22 months after the date of the conduct that is the subject of your complaint.
As stated above, your complaint is regarding military police conduct that occurred more than one year ago, so I must grant an extension of time for the complaint to proceed.3
The allegations are not clearly outside the jurisdiction of the MPCC
The jurisdiction of the MPCC is limited to complaints about the conduct of a member of the military police in the performance of “policing duties or functions” as prescribed in the Complaints about the Conduct of Members of the Military Police Regulations4 (the Regulations). Your complaint about the handling of an investigation by CFNIS members appears to fall within the jurisdiction of the MPCC as involving the “conduct of an investigation” as enumerated in paragraph 2(1)(a) of the Regulations.
Your explanation for the delay is reasonable in the circumstances
I have considered your explanation for the delay in complaining to the MPCC; namely, that you were dealing with other related proceedings.
You were charged with one count of sexual assault on August 18, 2021, and you were acquitted on December 5, 2022. The DPCP confirmed that it will not be appealing the Court’s decision on January 9, 2023. Therefore, you stated that you had been focused on preparing your defence for the trial and on the pending legal process for practically the entire intervening period.
In my view, your explanation is a reasonable justification for the delay in making your complaint and that this delay is not excessive in the circumstances.
The complaint includes an arguable case
When I review requests to extend the time limit for filing a complaint, one of the factors I consider is whether the request or complaint includes an “arguable case.”5 An arguable case must be based on alleged conduct deficiencies of Military Police members when they were performing their policing duties or functions.
In your complaint, you raise concerns about the failure to correctly investigate allegations of sexual assault, an indictable offence liable to imprisonment for a term of not more than 10 years under the Criminal Code of Canada.6 You claim, among other things, that the CFNIS mishandled the investigation; was generally biased in favour of the alleged victim; did not follow up on the “important contradictions” in the alleged victim’s version of events; and transmitted the investigation file against you to the DPCP in the absence of sufficient evidence. In my view, these elements constitute an arguable case, since it is expected that members of the Military Police perform their policing duties and functions in accordance with military police best practices and policies, and any deficiency in this regard could constitute misconduct.
Consequently, I conclude that you have an arguable case, which weighs in favour of an extension to the time limit to file your complaint.
Minimal prejudice to the Military Police subjects
In general, for complaints made outside of the statutory time limit, a certain inherent degree of prejudice to the Military Police members you are complaining about is presumed on the basis of failing memory and the potential loss of relevant records. Furthermore, it is reasonable that they would not expect to face complaints regarding their conduct after the one-year limitation period has passed.
However, the prejudice in this case is mitigated by the existence of an investigation file and by the fact that the related judicial proceedings concluded recently.
The interests of justice require that the prescribed time limit be extended
Generally speaking, when the MPCC reviews the interests of justice, we ask ourselves whether the complaint contains allegations of serious misconduct; whether the issues have the potential to adversely affect confidence in the Military Police or the complaints process; whether the complaint involves or raises questions about the integrity of senior military or Department of National Defence (DND) officials; and whether it is probable that the questions at issue may have serious impacts on MP practices and procedures.
In this case, you claim that the CFNIS conducted an inadequate investigation into an allegation of sexual assault against you. You claim that this investigation was biased in favour of the alleged victim and partially motivated by significant internal and external political pressure exercised on the Canadian Armed Forces and the CFNIS. You state that there was “clearly and unequivocally” insufficient evidence to establish the identity of the alleged perpetrator of the sexual assault in this matter, but that the CFNIS nevertheless transmitted the investigation file to the DPCP. You claim that there is pressure on the CFNIS to believe the alleged victims of sexual assault and to bring charges in these cases.
You state that the CFNIS’s mishandling of the investigation has harmed your personal and professional reputation. This matter also had serious repercussions on your family life, finances and career, in particular by preventing you from obtaining employment outside the Canadian Forces. Indeed, you state that you were removed from the position of Vice President of Logistics and Operations that you held in the context of a secondment to the Public Health Agency of Canada, further to the investigation into the allegations made against you. Furthermore, this matter attracted considerable media attention, particularly regarding the filing of this complaint.
Given the concerns raised in your complaint, in particular the supposed bias of the CFNIS in conducting an investigation, it is in the interests of justice that the allegations contained in this complaint be investigated, since the consequence of not doing so could contribute to eroding public confidence in the Military Police.
Considering all of the information available, I have decided that it is reasonable in the circumstances to extend the time limit for filing this complaint.
Your request for an extension of time is therefore granted.
Please note that while granting your request for an extension of time, I make no finding regarding the merits of your complaint.
Original document signed by:
Me Tammy Tremblay, MSM, CD, LL.M.
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