Final Report on the Fynes Public Interest Hearing (MPCC 2011‑004) - Volume 1
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Table of Contents
- The Hearing Process
- The Investigations
- 4.0 The Subjects of the Complaint: Role, Involvement and Background
- 4.1 The 2008 Investigation
- 4.1.1 Investigating the Sudden Death
- 4.1.2 Investigating Negligence
- 4.1.3 The Investigation Plan
- 4.1.4 The Concluding Remarks
- 4.1.5 Supervision and Recordkeeping
- 4.1.6 Search Warrants
- 4.1.7 Return of Exhibits
- 4.1.8 The Quality Assurance Review
- 4.1.9 The Consequences of Inexperience
- 4.2 The Suicide Note Left by Cpl Langridge
- 4.3 The 2009 PNOK Investigation
- 4.4 The 2010 Criminal Negligence Investigation
- 4.5 CFNIS Interactions with the Fynes
- 4.6 CFNIS Independence and Impartiality
- The Military Police Response
- 7.0 The Military Police Response
- 7.1 The Notice of Action | PDF version (390 KB) – as released March 10, 2015
- Glossary of Terms / Acronyms used throughout this Report
- Decision to Conduct a Public Interest Investigation – April 29, 2011
- Decision to Hold a Public Interest Hearing – September 6, 2011
- Decision to Recommend Funding for Legal Representation for the Complainants – October 26, 2011
- Publication Ban Order – May 17, 2012
- Ruling on Motion by Complainants to Issue Summons to Appear – June 14, 2012
- Decision to Recommend Funding for Legal Counsel for the Complainants to Prepare Closing Submissions – October 30, 2012
- Ruling on Request to Comment on the Interim Report – November 29, 2012
- Notice of Action and related correspondence | PDF version (22 MB) – as released March 10, 2015
1. There are at least three separate and distinct audiences for this report.
2. The first audience consists of the parties, namely the complainants and the subjects of the complaint. Their focus will be on the findings and conclusions reached by the Commission with respect to each of the 30 allegations making up the complaint.
3. A second audience is the Canadian Forces National Investigation Service (CFNIS) and the Canadian Forces Provost Marshal (CFPM), who is the head of the Military Police, of which the CFNIS is a part. While also obviously a primary audience for the Commission’s specific findings on each allegation, the CFPM will also focus on the Commission’s recommendations arising from those conclusions.
4. A third audience is the Canadian public at large. The National Defence Act (NDA) allows the MPCC to hold a public hearing where warranted. One obvious reason for public hearings is to promote confidence in the Military Police complaints resolution process through open and transparent hearings. Since public hearings also deal with systemic issues of public importance, a report of the proceedings can promote awareness of the issues underlying the particular complaints, explain why they are important and point out the implications of the Commission’s conclusions.
5. Each of these interests of the three respective audiences is dealt with in the body of this report. The Commission’s conclusions as to each of the allegations are set out in one place in the chapter entitled
“Findings”, which also provides a short explanation of the reasons for each finding. The Commission’s recommendations, aimed at addressing any deficiencies, gaps or other concerns identified in the Findings or the report as a whole, are addressed in the
“Recommendations” chapter. That chapter sets out, under topic headings, the Commission’s specific recommendations on each subject along with a brief rationale. The necessary facts and other background information to allow for an understanding of the Findings and the Recommendations is to be found in the body of the report in chapters 2.0 to 4.6, which are organized by topic. In the report, unless otherwise specified, the ranks of individual CF members mentioned are their ranks at the time of the event(s).
6. In recognition of the potential usefulness of a roadmap and explanatory comments, the Commission also offers this Overview, which is intended to orient the general reader to the contents of the report.
7. The status of this Overview as road map and commentary means it is not a substitute for reading the report itself, nor is it an executive summary in the usual sense of a précis of the full contents. Not every issue addressed in the report is set out in this Overview. While the sections of the Overview correspond to a number of the chapter headings of the report, some issues dealt with in several chapters of the report are brought together in one section of the Overview. Some linkages made explicit in the Overview may only seem implicit in the report, and the order in which issues are discussed may be different.
8. In reading this Overview as well as the full report, the reader should bear in mind the jurisdiction of this Commission. The role of the Commission is to investigate specific complaints about Military Police investigations and/or conduct. In the present case, those complaints arise in the context of separate grievances on the part of the complainants, Shaun and Sheila Fynes, about what the Canadian Forces did and did not do in connection with the death by suicide of their son, Cpl Stuart Langridge. The Fynes brought to the attention of the CFNIS a number of complaints against the CF they asked to be investigated. Their complaints about the CFNIS’ conduct arise from how those complaints against the CF were dealt with, or not dealt with, by the CFNIS. Their complaints about the CFNIS also deal with a number of matters arising from various contacts, communications and other interactions between the Fynes and the CFNIS over a three-year period following Cpl Langridge’s death.
9. It is important to keep in mind the focus of this Commission must at all times be on the complaints about the CFNIS and its members. There is no mandate for the Commission to investigate the substantive complaints against the Canadian Forces underlying the Fynes’ complaints about the CFNIS’ conduct. On the other hand, it is inevitable in the course of considering the thoroughness, accuracy and impartiality of the CFNIS investigations, the Commission must have regard for what it was the Fynes were alleging about the CF. Although those underlying issues are of considerable potential public interest and importance, it cannot be the role of this Commission to offer an opinion as to their merits. All this Commission can do is to review and comment on what the CFNIS did in response and how it conducted itself in the course of its interactions with the complainants. Because this Commission has come to the conclusion a number of matters presented by the complainants to the CFNIS were not properly investigated, it must be emphasized and re-emphasized, this conclusion does not extend to any conclusion at all about the likely outcome had a proper investigation been conducted.
10. Cpl Stuart Langridge was found dead, hanging from a ligature fashioned from his military belt, attached to the chin-up bar in an army barracks room. The CFNIS conducted three separate investigations into matters connected with his death. The first, the 2008 Investigation, was intended to investigate the sudden death and to determine whether there were grounds to suspect foul play. The second, the 2009 Investigation, arose from complaints by the Fynes about a decision to give authority over Cpl Langridge’s funeral to someone other than them. The third, the 2010 Investigation, arose from their allegations that members of the CF were culpably negligent in connection with this death.
11. The complainants allege deficiencies with respect to each of these investigations. They allege some or all of these deficiencies are related to a lack of independence by the CFNIS and a bias on the part of its members in favour of the military and its chain of command. They also allege the deficiencies are related to a lack of skills, professionalism, competence, experience or training on the part of the CFNIS members involved. In addition, they complain about the CFNIS’ failure to disclose their son’s suicide note to them, as well as about a number of matters arising from their interactions with the CFNIS both in their status as the family of a deceased soldier and as the complainants in two of the CFNIS investigations conducted.
The Hearing Process
12. The complaints made by Shaun and Sheila Fynes about the CFNIS investigations following the death of their son, Cpl Stuart Langridge, go to the core of military policing and raise issues of public interest and importance that in the Commission’s view required a full Public Interest Hearing (PIH).
13. The PIH was extensive, involving the testimony of some 90 witnesses and the entering into evidence of over 22,000 pages of documentary material.
14. Given the importance of the issues to both the complainants and the subjects, and given the broader implications, it is understandable that from time to time there were disagreements, including differing positions about matters of process and procedure, which led to competing submissions among counsel for the various parties as well as counsel for the Commission. For the most part, differences were resolved on an amicable and principled basis and overall there was good cooperation on most matters.
15. Some of the process issues were specific to the hearing, but some were of much broader importance, touching on the mandate and jurisdiction of the Commission and as such require special mention.
16. The subjects of the complaint made a number of submissions aimed at narrowing the Commission’s focus in the hearing and in this report. The subjects asserted the Commission is restricted to dealing with allegations of professional misconduct and cannot review systemic or policy issues. They also submitted the Commission can only look into the matters related to the policing function of the Military Police and not to
“administrative” matters, and the Commission may not look into or inquire about the conduct of individuals who are not members of the Military Police.
17. While it is correct the Commission’s mandate is focused on the specific complaints made against specific subjects in the context of specific investigations, this does not mean in the process of considering those complaints the Commission is forbidden from considering the broader context in which the matters in question took place, or the impact of policy and systemic issues on the conduct being examined. Further, when a complaint alleges deficiencies in an investigation, it will be necessary for the Commission to consider not only what was done but also what was not done that should have been done. In order to evaluate the thoroughness of an investigation it will be necessary to understand what there was to investigate, including information that could have been available to the Military Police but was not obtained or investigated by them. This might, in the process, raise inferences or questions about the conduct of third parties, but those are, after all, the very matters the CFNIS was asked to investigate.
“Speaking with One Voice”
18. The right of individuals to be represented by counsel of their own choice is undoubted. Nevertheless, the Government’s decision in this case that one set of counsel would represent multiple and disparate individuals and institutions connected with the military and/or government, raises concerns. Department of Justice counsel was put into the position of advocating not only for the interest of its clients the subjects, but also for the interests of government as a whole, the CF and the CFNIS, as well as for the interests of the various CF and CFNIS personnel who were actual or potential witnesses. While there is no necessary conflict amongst all those interests, it seems unsafe to assume at the outset no divergence in interests might subsequently ensue. From the point of view of public perception, there is also a risk of government appearing to use this single representation of multiple interests to enforce conformity of viewpoints where none exists, resulting either in unfairness to the subjects or in unnecessary obstacles to the Commission’s fact-finding mandate.
19. In terms of documentary disclosure, the role of government counsel as both an advocate for the subjects and the
“gate keeper” for access to documents raises further complexities, if only on the level of appearances.
20. The Commission is far from alleging any actual irregularities or improprieties in the current hearing, but it does consider there to be a real risk of public scepticism where a single counsel team represents such a multiplicity of interests. The current Treasury Board Policy on Legal Assistance and Indemnification has the effect of making common representation the default position. It would be preferable to avoid potential problems and any potential appearance of irregularity from the outset by providing independent counsel to the subjects of a complaint.
21. There is no question solicitor-client privilege occupies a unique place in our legal system. The protection from compelled disclosure of matters discussed between a client and his or her lawyer is nearly absolute. It is also true, however, that the law makes it clear the privilege belongs to the client, not the lawyer, and the client is free to waive the privilege as he or she sees fit.
22. In the context of this hearing, the Government asserted the
“client” for any communication between a lawyer and a member of the CF, including a member of the CFNIS, is the Minister of National Defence, and only the Minister can claim the privilege or waive it. The Minister made a blanket claim of privilege over all communications between government lawyers and any member of the CF. The impact of this position is that material made available to the CFNIS and relevant to the way it conducted its investigations is not available to the Commission. This can have a significant impact on the ability of the Commission to exercise its mandate to consider the thoroughness of investigations and to evaluate the validity of conclusions reached in those investigations.
23. Accordingly, the Commission asked the Minister to waive privilege with respect to material made available to the CFNIS as part of its investigations or that would have been available had it been requested by the CFNIS. The Commission did not, and would not, ask for any lawyer/client communications dealing with consultations between the subjects of the complaint and their lawyers in connection with this PIH.
24. The Commission’s request for this limited waiver of privilege was turned down by the Minister, who indicated such waivers are extremely rare, and cited jurisprudence affirming solicitor-client privilege is critical to the administration of justice. The Commission is of the view the real question is whether there should be a waiver of privilege where a communication is needed for a full and fair hearing of the evidence and no prejudice will result to a subject of a complaint. It is of the view no legal or policy rationale exists that would prevent disclosure of such material, and urges the Government to reconsider its position with respect to future proceedings.
25. In the current hearing, the refusal to waive privilege did not crucially affect the Commission’s ultimate ability to arrive at conclusions about the investigations in issue. On one issue, however, it did lead to unnecessary withholding of information on a key question. In the context of the 2010 Investigation, the evidence discloses the investigators sought legal advice shortly after their meeting with the complainants. No further investigative work was done and the file was closed without any factual investigation of the complainants’ allegations. Presumably, the legal advice was in some way relevant to the decision to close the file. It may even be the very fact of obtaining legal advice might have been asserted by the subjects as a full defence against allegations of a deficiency in the handling of that investigation. The subjects did not raise any such defence and any resulting prejudice can only accrue to their interests.
26. The Commission was able to conclude the validity of any legal advice obtained would necessarily depend on the facts made available to the lawyers being consulted. Since the complainants disputed the validity of many of the facts and conclusions in the materials gathered by the CFNIS, and in light of the Commission’s own determination there were significant evidentiary gaps in the materials available, absent evidence to the contrary, the Commission was able to conclude the legal opinions obtained could not provide conclusive guidance unless and until the facts upon which that advice was based were corroborated.
27. The fact the Commission was able to conclude, fortunately and somewhat fortuitously, that it was able to deal with the complaints even absent some of the material that would have been available to the CFNIS investigators, does not in any way diminish the concern with regard to the privilege claims. The subjects of the complaint are entitled to defend their interests by whatever legal arguments are available to them. The Government, on the other hand, ought not to be erecting obstacles to the Commission’s fact-finding mandate.
The 2008 Investigation
28. In the aftermath of a sudden death, both the police and the coroner (in Alberta, the Medical Examiner) conduct investigations to determine the cause and manner of death. While this leads to a degree of overlap, the police mandate is to investigate possible offences. A primary question for the police to answer is whether a death is suspicious. In this sense, the lead investigator assigned to the CFNIS investigation of Cpl Langridge’s death was accurate in stating the purpose of the investigation was
“to rule out foul play.”
29. The investigative steps undertaken in the 2008 Sudden Death Investigation, however, did little in terms of answering the questions necessary to conclude the investigation. Instead, it was marked by three months’ worth of sporadic activity but little progress towards its ostensible purpose. While the lead investigator was correct in bearing in mind the need to keep an open mind and avoid tunnel vision, this does not justify a reluctance to use the evidence assembled to form hypotheses and then test them against further facts and evidence gathered.
30. The issues with the 2008 Investigation begin with the processing of the death scene.
31. The investigators took their time, methodically compiling a meticulous catalogue of the state of the room and its contents. The time taken to complete this exercise, during the entirety of which Cpl Langridge’s body was left hanging in place, became the basis for a complaint by the Fynes that the investigators showed disrespect by unnecessarily leaving the body hanging and exposed to view by passersby rather than promptly cutting it down and/or covering it. Those complaints cannot be sustained. The time taken to process the scene was within normal parameters and expert evidence establishes it would not have been proper to disturb the body, cut it down or cover it before authorization was given for the body removal service to take it away. The Medical Examiner (ME) had agreed to allow the investigators to complete their work of processing the scene before ordering the body to be removed.
32. Nevertheless, some of the steps taken by the investigators were unnecessary and/or could have been completed after the body was removed. More importantly, the investigators do not appear to have pursued their work with any clear understanding of its purpose. The evidence was processed but not analyzed and no inferences or conclusions were drawn. Seemingly fixated on the instruction to keep an open mind, the investigators dismissed the probative value of the ME’s declaration the scene was consistent with a classic suicide by hanging. They also failed to appreciate the implications of the position of the body, the fact Cpl Langridge’s feet were at all times in contact with the floor, such that he could have stood up at any time to stop the process, the evidence of lividity on the body and the lack of the petichiae on the face, all of which were strongly suggestive of suicide, as was the lack of evidence of a struggle or of any disturbance of the room’s contents.
33. If the investigators were seriously considering the possibility of foul play, they did not conduct any of the expected further investigative procedures to confirm or deny it, including examining the possible entry points for an intruder or looking for fingerprint evidence. Despite elaborate early precautions to preserve the evidentiary integrity of the scene, the lead investigator disturbed possibly relevant evidence and ended by potentially contaminating the scene when he performed a last walkthrough and opened various doors and drawers without wearing gloves.
34. The fate of the suicide note is illustrative. The note was addressed to Cpl Langridge’s family and among other things asked for a simple family funeral. It was photographed and video-taped; its contents were recorded and the note itself was carefully put into a plastic bag, with strict attention to the rules for evidentiary continuity. It was then put away as
“evidence”. It was intentionally not released to the family on the basis the investigation was ongoing, a decision that made it impossible for the family to carry out the wishes expressed in the note. Nevertheless, literally nothing was ever done with the note, including no fingerprints or handwriting analysis being undertaken. Eventually, the note was forgotten by the investigators, missing from the list of personal possessions sent to the CF, and the family remained in the dark about its existence for 14 months.
35. The lack of focus and seeming uncertainty of purpose of the investigation are also illustrated by the Investigation Plan (IP). An IP should act as a guide to plan the investigative steps to be taken in order to address the questions needing an answer in order to conclude the investigation. In this case, the IP was simply an unranked and unorganized list of issues, observations, tasks, and notes to self that could be of no use either in organizing investigative steps or in clarifying how they related to the goals of the investigation.
36. One of the matters noted in the IP was
“possible negligent actions on behalf of the CF resulting in possible involvement in the death.” A subsequent Quality Assurance (QA) Review by the CFNIS of the 2008 Investigation, criticized the investigators for pursuing the topic of negligence, which the QA Review asserted should have been left for administrative review by a CF Board of Inquiry. That criticism was misguided. Negligence can form the basis for a charge under the Criminal Code or the Code of Service Discipline. Negligence in connection with a sudden death is a proper subject for police investigation and is well within the mandate and jurisdiction of the CFNIS.
37. The problem with the negligence aspect of the 2008 Investigation was not its subject matter but the way in which it was conducted.
38. The investigators became interested in the issue of possible negligence as a result of hearing Cpl Langridge may have been under a suicide watch at the time of his death. They reasoned if Cpl Langridge killed himself despite being under a suicide watch, the failure of the watch to prevent the suicide might constitute negligence. After the first few days, most of the investigative activity in the 2008 Investigation seems primarily focused on whether there was a suicide watch, to the point where that narrow question replaced the correct one, which should have been whether there was evidence of culpable negligence in connection with Cpl Langridge’s death.
39. The limiting assumption that negligence could only arise if there was a suicide watch, prevented the investigators or their supervisors from pursuing information obtained in their interviews that seemed to point to the possibility of negligence on a different basis. They did not notice information that may have suggested, in the circumstances, the failure to mount a suicide watch might have been evidence of potential negligence just as much as mounting a defective one. Focusing exclusively on whether facts confirmed or denied a suicide watch, they did not notice the restrictive conditions imposed on Cpl Langridge may have had some connection with his subsequent death, regardless of what they indicated about the presence or absence of a suicide watch. Instead, without confirmation of a suicide watch from the interviews, the negligence aspect of the investigation simply petered out.
40. Whether in terms of confirming suicide so as to rule out foul play or in terms of investigating possible negligence, what was not done in the 2008 Investigation was as important as what was done. Puzzling decisions were made not to contact Mrs. Fynes or to interview Ms. AFootnote 1, whom the military recognized as Cpl Langridge’s common-law spouse. Both had information highly relevant to both the issue of suicide and of potential negligence, which the investigators failed to obtain.
41. No treating physician and no one involved in dealing with Cpl Langridge’s addictions issues was contacted. No tests were conducted on any of the items seized from the death scene and no follow up was undertaken with respect to the scene or what was found there. No chronology was compiled of Cpl Langridge’s final days.
42. Early on, the investigators conducted warrantless searches of Cpl Langridge’s vehicle and storage locker. Nothing came of these searches, but the testimony of the investigators demonstrated an alarming lack of understanding of the law of search and seizure as it applied in the circumstances.
43. The investigators closed the file shortly after receiving the ME’s confirmation the death was a suicide.
44. The final version of the Case Summary in the 2008 Investigation file removed references to the investigative steps related to the suicide watch issue. The Concluding Remarks in the file stated Cpl Langridge committed suicide, referred to his mental health issues and stated they were caused by or subsequent to his addictions issues. The final version of the Remarks added that the suicide occurred despite attempts by the military to provide Cpl Langridge with structure and support. It is questionable whether, as it was conducted, the investigation was capable of supporting any of those conclusions, other than the death was suicide. Following strenuous objections by the Fynes, the other conclusions were deleted by the CFNIS, for reasons of
“compassion” rather than inaccuracy.
45. The 2008 Investigation was unsatisfactory both as a sudden death investigation and as an investigation of possible negligence in Cpl Langridge’s death. While the ultimate conclusion Cpl Langridge’s death was a suicide is clearly correct, little if anything of what the investigators did in the sudden death investigation contributed to that conclusion. On the other hand, while the investigators were correct in identifying potential negligence as a live investigative issue, their understanding of the concept was unnecessarily limited and that portion of their investigation led nowhere.
46. The overall deficiencies in the investigation are attributable to general inexperience in the investigation of domestic sudden deaths, as well as to a general failure of oversight and supervision. The inexperience of those conducting the investigation is not surprising since the CFNIS had only started to conduct domestic sudden death investigations in 2005. Given the relative infrequency of suicides on Defence Establishment property, it is likely such inexperience is a continuing issue.
The Suicide Note
47. After a number of false starts, in January 2009 the CF commenced a Board of Inquiry (BOI) into Cpl Langridge’s death. Toward the end of the process, the President of the BOI noticed a notation in a form accompanying the Province of Alberta Death Certificate referring to a suicide note. The General Occurrence (GO) file for the 2008 CFNIS Investigation contains a copy of the suicide note, but the evidence suggests neither it, nor any mention of it, was included with the redacted version of this file provided to the BOI. Six weeks after first asking about it, the BOI President was provided with a copy of the note and after another full month, he was given permission by his chain of command to contact the Fynes and to disclose the existence and copy of the note to them.
48. Even though the note was addressed to the Fynes and contained a specific request with respect to Cpl Langridge’s funeral, no one had informed them about its existence or its contents until the BOI President called them on May 22, 2009, some 14 months after Cpl Langridge’s death.
49. The Fynes were distraught. Not knowing about the note or its contents, they had been unable to act on Cpl Langridge’s request for a family funeral rather than the full military funeral that took place. They believed the note had been concealed from them in a cruel, callous and disrespectful manner. In the aftermath of the Fynes’ reaction, the CFNIS and its members provided many different, and often incompatible, explanations to the CF, to the Fynes and to the public, which in some cases bore no relationship at all to the facts of the case. It was suggested at various points it was necessary to withhold the note because of CFNIS policy about evidence; it was done in consideration of the best interests of the family; it was done to protect the integrity of the investigation; it had been intended to release the note but this intention was not carried out expeditiously. There was even a suggestion the Fynes themselves were in some way implicated because they did not ask about a note when they spoke to the lead investigator during the investigation. A year later, the Officer Commanding (OC) of the CFNIS Western Region Detachment (WR) was still telling the Fynes there had been a policy at the time not to disclose suicide notes and was providing them with the rationale that it would have been worse for them had the note been disclosed and it were subsequently to have turned out not to be genuine. This insensitive rationale was also provided by other CFNIS witnesses during their testimony before this Commission.
50. The efforts to formulate explanations appear to have been much more strenuous than any efforts to discover what actually happened. None of the suggested explanations was based on information from the investigators themselves and most, if not all, appear based on nothing beyond conjecture. In particular, there was no policy to prevent disclosure of suicide notes. The testimony of the investigators themselves suggests, while there was an initial decision to withhold the original note because the investigation was at an early stage, there was no consideration given to the question of whether the existence of the note should be disclosed to the family. As time passed, the note was simply forgotten and the failure to disclose it had no other basis. When the investigation was concluded, the original note was not returned to the family because there were no adequate processes in place at the Detachment for the return of seized items. When steps were finally taken to return other items, the suicide note was not included. As it had by then long been forgotten, no one noticed its absence. This simple though disturbing explanation does not seem to have been discovered by the CFNIS Chain of Command before the investigators testified in this Commission’s hearing.
51. Very early on, the emphasis in CFNIS communications, both to the Fynes and to the public, shifted from attempts to explain or justify withholding the note to a message there had been a change in CFNIS policy or procedures that would prevent any recurrence. The public was also informed the CFNIS had apologized.
52. The Fynes never accepted the proposition there had been a formal apology made to them for withholding the note. While there may be some semantic issues about what precisely was apologized for, and to whom various apologies were delivered, the evidence reveals there were a number of occasions where the CFNIS and the CF expressed their regret and apologies for what had happened. However, the CFNIS did not apologize immediately, nor take steps to deliver the original note personally to the Fynes once the failure to disclose it was discovered. In fact, when the Fynes first asked for the original note, the Detachment’s initial reaction was to suggest the Fynes make an Access to Information request to obtain a copy, and to advise they did not foresee the original being turned over.
53. The status of the second component of the messaging, about a change in CFNIS procedures to prevent any future recurrence, is more equivocal. The evidence reveals statements about changes in procedures having been enacted were being repeatedly communicated from 2009 onward, even though no explicit written policy about disclosure of suicide notes was in fact adopted before July 2011. The evidence does disclose that during this period before the adoption of a written policy, there had been a change in procedure in the form of an oral directive calling for the family to be informed of the existence of a suicide note as soon as possible and for a copy or the original of the note to be provided to the family or Next of Kin (
“NOK”) as soon as possible. CFNIS HQ also monitored individual cases to ensure suicide notes were not withheld.
54. The actual written policy adopted calls for the NOK to be advised of the existence of a note
“as soon as it is practicable” and for the note to be released to them or to the addressee
“upon conclusion of the investigation” or
“as soon as it is no longer required for the investigation.” Based on the evidence, this new policy is not fundamentally different from the existing practice at the time of Cpl Langridge’s death. It appears the CFNIS considers the failure to disclose Cpl Langridge’s suicide note to have been a mistake in practice rather than a mistake in policy. Nevertheless, the testimony heard by this Commission reveals there was and continues to be a lack of common understanding as to what is meant by disclosure
“as soon as practicable” or
“when it is no longer needed for the investigation.” Most of the CFNIS witnesses’ views about the appropriate time for disclosure did not change after the
“new” policy was adopted. Different witnesses gave differing and contradictory accounts as to their understanding of when, as a practical matter, a suicide note would be disclosed under both the former practice and the new policy. Based on that testimony, it appears the measures put in place are insufficient to prevent a recurrence of what happened to the Fynes. Notwithstanding the written policy, it is far from certain that future suicide notes will be revealed in time for any instructions in them about the deceased soldier’s requests for his or her funeral to be acted on by the family.
The 2009 Investigation
55. In the immediate aftermath of Cpl Langridge’s death, the Fynes assumed they would be planning his funeral. They were soon informed that, in fact, it was Ms. A, as Cpl Langridge’s common-law spouse, who would be making those decisions as Cpl Langridge’s Primary Next of Kin (PNOK). Their Assisting Officer (AO) described their reaction as being
“crushed like a grape.” They did, however, acquiesce, believing they had no choice. The actual decisions about the funeral were largely the subject of negotiations between Ms. A and the Fynes.
56. The Fynes subsequently discovered Cpl Langridge had filled out a Personal Emergency Notification (PEN) naming them as Primary and Secondary NOK. This discovery led them to conclude they were unjustly prevented from acting in the capacity Cpl Langridge wished them to act and their anger at the military increased.
57. Through the office of the DND/CF Ombudsman, the Fynes’ complaints were brought to the attention of the CFNIS. The OC CFNIS WR undertook to conduct an investigation, naming himself as lead investigator.
58. Like the Fynes, the OC assumed the PNOK named in the PEN form was the proper person to be recognized by the military as PNOK, including for purposes of funeral planning and decision making. The initial file was opened in December 2009 and a decision to conduct a full investigation was made in February 2010, but otherwise little progress was made for a number of months. The initial investigator working with the OC was transferred before any actual investigative work was undertaken. The investigator appointed to replace him conducted three interviews intended to identify who made the decision to recognize Ms. A as PNOK. He too was then transferred.
59. A third investigator (the
“Investigator”) was appointed and the OC largely withdrew from active participation. This Investigator took a totally different tack. He determined the PEN form was on its face not a document intended to create legal rights or obligations and therefore discounted its relevance to the question of who was properly Cpl Langridge’s NOK or PNOK. Based on his own research, he determined there was no relevant CF regulation or order defining NOK or PNOK and instead relied on the
“customs of our society” to conclude that NOK equals spouse and spouse includes common-law spouse. Having determined Ms. A was Cpl Langridge’s common-law spouse based on military policies and regulations, he recommended closing the file without further investigation.
60. The Investigator never interviewed either the complainants or Ms. A, preferring to rely on the documentary record in the file. He also did not feel it necessary to pursue the issue of who in the CF had made the PNOK decision, since he concluded it was Cpl Langridge himself who appointed Ms. A as his PNOK when he entered into a common-law relationship with her.
61. There was initial incredulity on the part of the Investigator’s supervisors, including the OC, who asked for further interviews to be conducted with respect to military policies about NOK. Despite repeated views by the ostensible
“subject matter experts” who were interviewed, to the effect that these were legal questions requiring legal input, the Investigator’s views prevailed and the file was closed with no further investigation and without legal advice being sought.
62. Throughout the course of his participation in the investigation, the Investigator assumed the Fynes’ complaint and therefore the subject matter of his investigation were simply based on the question of who was NOK. He did not understand the complaint he was investigating dealt with the decision making in connection with Cpl Langridge’s funeral. He testified he only became aware of this aspect of the complaint from watching a news conference held by Mrs. Fynes. He dealt with this as an additional complaint rather than as the actual nub of the complaint leading to the 2009 Investigation. In his view, this
“additional” complaint was answered by the fact the Fynes had input into the decisions about Cpl Langridge’s funeral.
63. The issue of who is entitled to make decisions with respect to a military funeral is a complex legal question. It is inconceivable to this Commission that the Investigator, a non-lawyer, attempted to tackle it on the basis of his own research, with no legal advice, and that the OC, the Case Manager and the rest of the supervisory team at CFNIS WR agreed with this approach.
64. The Investigator was mistaken in his understanding of the nature of the Fynes’ complaint. His review of the law and of applicable military policy was incomplete. Many, if not most, of his legal assumptions were arguably incorrect. His conclusion about who was the decision maker is logically puzzling, and his reliance on his own sense of social custom to decide the legal question of Next of Kin cannot be justified.
65. The Fynes’ own understanding of the PEN form as the basis for determining that question may also have been mistaken. However, they were correct in asserting, in focusing on the question of whether Ms. A was Cpl Langridge’s common-law spouse, the 2009 Investigation was not addressing the actual complaint they had made. The Fynes were also correct in complaining the time it took to conduct the 2009 Investigation was excessive. That aspect of the 2009 Investigation, along with the failure to keep the Fynes informed in any meaningful way of what was happening, was also unjustifiable.
66. It may well be, in the end, the Fynes’ complaint was not capable of being sustained. If such is indeed the case, it would not be for the reasons cited by the Investigator and the actual investigative work done would not justify the conclusions reached.
The 2010 Investigation
67. In May 2010, the Fynes met with the OC CFNIS WR in order to discuss, among other things, a complaint they wished to bring alleging negligence on the part the CF Chain of Command responsible for Cpl Langridge’s care. During the course of that extended interview, the Fynes made allegations about the military’s role in Cpl Langridge’s death essentially along the following lines.
68. At the beginning of March 2008, Cpl Langridge was in a civilian hospital following several suicide attempts. He requested to be sent to a treatment facility to help him deal with his addictions issues and the hospital was willing to have him stay there until a transfer could be arranged. Instead, the CF ordered Cpl Langridge back to the base, where, despite the CF’s knowledge of his instability, he was made the subject of restrictive and humiliating conditions. Cpl Langridge was coerced into agreeing to the conditions on the basis he would only be sent for treatment if he could demonstrate compliance with the conditions, even though the CF had already decided he would not be sent. The purpose of the conditions was to goad Cpl Langridge into acting out, so as to justify the CF’s intention to discharge him from the military. Cpl Langridge proved incapable of coping with the conditions and stated he would rather kill himself than return to work under them. Following a brief stay in the hospital, Cpl Langridge was returned to the base. He again asked for the conditions to be relaxed, but was told he must continue to comply with the conditions. Unable to cope, Cpl Langridge committed suicide.
69. The Fynes also alleged the CF was aware of Cpl Langridge’s past suicidal episodes and had a duty to keep him safe as a result. Mrs. Fynes alleged she had been assured Cpl Langridge was being monitored on a 24/7 basis. In their view, either Cpl Langridge was under a suicide watch that was defective or, if he was not, he ought to have been under a proper suicide watch. In either case, the military was negligent.
70. The Fynes believed these facts made out the elements of the Criminal Code offence of criminal negligence. In a formal complaint letter provided during the interview, Mr. Fynes also alluded to Criminal Code offences set out under the rubric of
“Failing to Provide the Necessities of Life” and
“Duties of Persons Directing Work”.
71. The Fynes also told the investigators they believed there were errors and inaccuracies in both the CFNIS 2008 Investigation record and the CF BOI, which they alleged was biased.
72. During the meeting, the OC made representations the CFNIS would conduct an elaborate investigation that would not take previous investigations – including the BOI – at face value, but rather would re-examine all existing evidence and would interview or re-interview all witnesses. Following the interview, the lead investigator assigned to the file assembled documents, including the BOI report and several items from the 2008 GO file, and requested legal advice.
73. There was no further investigation and as early as mid-August 2010 a decision was made to close the file without further investigation.
74. In order to justify closing the file without conducting any actual investigation, it would have been necessary to determine either the CFNIS had reliable evidence conclusively contradicting the facts necessary to support a criminal or service offence; or, even if the facts were as alleged by the complainants, no offence would be made out. Because of claims of solicitor-client privilege, this Commission is not in a position to know what legal advice was given to the CFNIS or on what such advice was based. Nevertheless, the legal advice could only be as accurate as the facts upon which it was founded and those facts were necessarily limited to the facts in the possession of the CFNIS.
75. In terms of a potential factual basis, the BOI was controversial and its conclusions were questioned even internally in the CF. Quite aside from the OC’s representations it would not be taken at face value, the BOI on its own could not have been relied on to test whether an offence could be made out on the facts. The 2008 Investigation only considered negligence to the extent of attempting to determine whether there was a suicide watch in place. Because of the limited investigation conducted, the information gathered and conclusions reached in the 2008 Investigation were not capable of either refuting or supporting the allegations made by the Fynes. Unless the CFNIS investigators or their legal advisors assumed the 2008 Investigation or the BOI refuted the allegations made by the Fynes, there was no basis to conclude those allegations could be dismissed without further investigation. It would appear to be a self-defeating exercise to conduct a fresh investigation that begins by accepting, without further investigative work, the facts and conclusions disputed by the complainants.
76. The investigator who was subsequently asked to produce a PowerPoint presentation to explain the decision to close the file did his own analysis of the elements of the various offences alleged by the Fynes. His substantive legal analysis of those elements is open to question, but it is in any event unclear what reliable facts were or could have been used to conclude the elements were not capable of being made out on the facts of the case. The presentation itself was limited to the Criminal Code offences set out in the Fynes’ written complaint. A police investigation cannot be circumscribed by the specific charges a complainant may identify. The question for the CFNIS was whether the Fynes’ allegations, if substantiated, were capable of making out either a Criminal Code or a service offence. It was for them, rather than for the complainants, to determine what those offences might potentially be.
77. Various CFNIS witnesses stated they did consider or would eventually have considered service offences as well as Criminal Code offences. There is no record of any such consideration or analysis taking place. The service offences that might potentially have been relevant are NDA s. 124,
“negligent performance of a military duty” or s. 129(1)
“conduct to the prejudice of good order and discipline”.
78. All of the criminal and service offences potentially applicable, in one way or another include as a foundational element a duty to do or not to do something and conduct in contravention of that duty.
79. The statements made by the Fynes during the May 2010 interview alleged a duty by the CF to keep Cpl Langridge safe, based on its control over him. Additional allegations made during that interview, potentially capable of supporting the existence of a duty or conduct required by law, include the alleged CF knowledge of Cpl Langridge’s suicidal tendencies, the alleged decision to remove him from a place of apparent safety in the hospital and the statements allegedly made to Mrs. Fynes reassuring her Cpl Langridge was being kept safe. The facts as claimed by the Fynes also alleged a failure to fulfill the duty to keep Cpl Langridge safe, either by failing to mount an effective suicide watch or by placing him under conditions they knew or ought to have known would destabilize him, and alleged these acts or omissions contributed to his death.
80. If those allegations were substantiated it is by no means certain a criminal or service offence could not be made out. That is not to say a charge would or should have been laid. The facts referred to by the Fynes were no more than allegations and without substantiation could not be relied on to support a charge. However, until they were investigated, it was not possible to know whether a charge could possibly be warranted.
81. The CFNIS file with respect to the 2010 Investigation should not have been closed without any actual investigation of the allegations made by the Fynes during the May 2010 interview.
82. The Fynes also made allegations during that interview the Commanding Officer in the Regiment had committed an offence by failing to institute a suicide prevention protocol and by failing to convene a Summary Investigation (SI) following each of Cpl Langridge’s suicide attempts. The CFNIS did not investigate either allegation. Certainly, in the case of the alleged failure to institute a suicide prevention protocol, there was no basis to dismiss the allegation summarily.
83. In their rush to close the file, the CFNIS members never attempted to do the very thing they promised to do, namely to uncover the truth of what had happened to Cpl Langridge, while apparently doing the very things they promised not to do, notably taking previous investigations at face value and using them to justify dismissing the Fynes’ allegations.
84. It is understandable the investigators would want to be cautious with the allegations made by the Fynes. They were by no means ordinary allegations and a decision that criminal or service offence charges relating to negligence could be laid on their basis may well have been without precedent. However, that does not justify dismissing them out of hand without further investigation. Just because a set of facts has never happened before, or has not formed the basis of a charge before, does not mean it cannot meet the elements of an offence. Precedent is not a requirement when a charge is applied to a novel set of facts.
85. While it is not possible to conclude the failure to investigate demonstrates CFNIS bias or lack of independence, that failure may indicate a lack of imagination and an inability to conceive of the possibility the military may have borne some responsibility for Cpl Langridge’s death. In that respect, this Commission is in no position to opine about any potential outcome of a proper investigation into the allegations. It can conclude, however, such an investigation ought to have taken place and the Fynes’ allegations that the CFNIS failed to properly investigate potential criminal or service offences alleged to have been committed by the CF Chain of Command in connection with Cpl Langridge’s death are substantiated.
CFNIS Interactions with the Fynes
86. From the outset, many of the Fynes’ complaints and much of their dissatisfaction can be seen as related to the way the CFNIS interacted and communicated with them.
87. The investigators in the 2008 Investigation appeared to have considered the Fynes extraneous to their investigation. The only contact with the Fynes during that investigation was initiated by the Fynes on another issue. There was certainly no effort to elicit relevant information or to brief the Fynes about the progress or results of the investigation.
88. The shocking failure to inform the Fynes about the existence or contents of the suicide note was, as the CFNIS later recognized, inexcusable. In many ways, it laid the ground work for many of the complaints that led to this Commission’s public hearing.
89. The CFNIS response to the discovery of the suicide note was geared more to finding a plausible explanation to convey to the CF and the public, than to providing accurate information or to try to make amends to the Fynes. On this matter as well, the Fynes appeared to have been an afterthought. Immediately upon discovering the suicide note had not been disclosed, the CFNIS ought to have personally delivered the note to the Fynes, provided an immediate official apology and made a concerted effort to find out exactly what happened so as to provide a meaningful explanation to the Fynes. They did none of these things. The apology they did provide a month later was the result of the CFNIS CO accidently calling the Fynes’ number in the mistaken belief he was calling their AO.
90. During the course of the awkward accidental conversation with the Fynes, the CO undertook to ensure the Fynes would be provided with a report about the 2008 Investigation. Whatever improvement ensued in the relations with the Fynes as a result of this commitment was quickly dissipated by the delivery of a heavily censored copy of the GO file, amounting to one-third of its actual size, which deleted all officer notes, witness interviews and documentation about the evidence collected. Although the Fynes eventually were given a less expurgated, though still incomplete, copy of the file, the entire saga managed to make things worse rather than better and led to complaints, substantiated by this Commission, that information was improperly severed without legal or policy justification.
91. In late November 2009, the CFNIS finally did provide an in-person briefing to the Fynes about the 2008 Investigation. The briefing was conducted by the OC CFNIS WR, who had no personal involvement in the 2008 Investigation, though he did play an important role in the discussions surrounding the discovery of the suicide note. During the briefing, the Fynes raised many of the issues about the 2008 Investigation that later came to form one of the bases for their complaint to this Commission. Though there is no evidence of any intention to mislead, the OC did not provide any specifics about the investigation and some of the explanations and answers given to the Fynes in response to their questions were inaccurate or unrelated to the facts of the case.
92. Although the National Defence Act establishes a mandatory process for the Military Police to report any complaint they receive to the CFPM and to this Commission, the OC treated the Fynes’ concerns as requests for information rather than as complaints to be acted upon. Although he undertook to provide answers to all unanswered questions, less than half of the questions raised and left unanswered during the course of the briefing were in fact dealt with in follow-up. In his testimony before this Commission, the OC cited his own assessment as to the merits (or lack of merit) of the Fynes’ complaints to justify not having reported or referred them, notwithstanding the Fynes’ expressed dissatisfaction with the explanations provided. This circular reasoning, by which a failure to investigate is justified by a prejudgment of the merits of what is sought to be investigated, is a recurring and unjustifiable theme in the CFNIS approach to complaints made by the Fynes.
93. Many of the questions left unanswered by the November 2009 briefing and some that were answered, but not to the Fynes’ satisfaction, were raised again over a year later in a letter addressed to the officer designated by the CF to coordinate contacts with them. Many of the responses then provided by the CFNIS were similar to those given in the course of the November 2009 briefing, focusing on general information unrelated to the facts of the case. Some were factually inaccurate. The answers appeared aimed at justifying the CFNIS’ handling of the case rather than providing factual information on what was done. While the failure to provide accurate information was not intentional, the underlying continued failure to make appropriate efforts to gather responsive information was unacceptable.
94. Shortly after the November 2009 briefing, the CFNIS opened an investigative file with respect to the Fynes’ complaints about the Regiment designating Ms. A to make decisions about Cpl Langridge’s funeral. The OC and a second investigator met with the Fynes in March 2010 to discuss the investigation. In May 2010, another interview was held. The Fynes presented additional complaints, which led to the opening of a separate investigative file into their allegations of CF negligence in connection with Cpl Langridge’s death.
95. During the course of the two interviews the OC made numerous representations about how the respective investigations would be conducted and gave specific undertakings to update the Fynes about the investigations through regular contact and to provide them justifications for any conclusions reached. The actual investigations were not conducted in accordance with the representations made, and no substantive updates or explanations were provided to the Fynes. The Fynes were not contacted at all for lengthy periods.
96. Representations about how an investigation will unfold are generally not advisable. When such representations are made, they cannot be treated as unbreakable commitments. Circumstances change, new information is uncovered, preliminary conclusions are revisited and necessary adjustments will be made. Decisions about the conduct of police investigations should be dictated by the needs of the investigation rather than by any prior commitments made to complainants. However, when such commitments are made and changes subsequently occur, the complainants should be notified and provided with an explanation.
97. In this case, contrary to the OC’s representations, both the 2009 and 2010 Investigations were largely based on existing documents rather than, as promised, on interviewing or re-interviewing of witnesses to establish the facts. Despite previous explanations the focus of the 2009 Investigation would be to establish who made the decision to recognize Ms. A as PNOK and on what basis, the 2009 Investigation veered off into a confirmation that Ms. A was Cpl Langridge’s common-law spouse. Despite assurances that previous conclusions would be revisited and statements made in previous witness interviews would be tested by direct questioning, the BOI, SI and 2008 Investigation reports and documents appear to have been taken at face value with no further testing or probing. Despite descriptions of elaborate investigative techniques and considerable human resources to be applied to the 2010 Investigation, no actual investigation at all was conducted.
98. There is good reason to question the substantive merits of each of these decisions, but none of them was prohibited simply because of the OC’s representations to the contrary. What was not permissible in the circumstances, however, was the utter abandonment of the undertaking to keep the Fynes updated and informed. Based on the testimony of the OC, the failure to honour these commitments was not deliberate but rather the result of inattention and occurred, at least for part of the time frame involved, in the context of serious issues affecting his family. While that may to some extent explain the failure to honour the explicit commitment to provide meaningful updates, it does not excuse it. The Fynes, justifiably, concluded they were once again being ignored and abandoned.
99. A separate unjustifiable departure from the commitments given involves the failure to provide a coherent and comprehensible explanation for the conclusions ultimately reached in each investigation. In the May 2010 interview, the OC gave a clear and unqualified promise if he were to conclude a charge was not warranted,
“I will have the justification for that statement.” The original plan for informing the Fynes of the outcome of the two investigations was to provide them with an oral briefing based on a PowerPoint presentation. Although the decision to close the 2010 file without conducting any further investigation was made as early as mid-August 2010, the Fynes were given no indication of that decision and the final oral briefing for both investigations was scheduled for February 2011. Because the Fynes requested the briefing to be conducted at their lawyer’s office and in his presence, the oral briefing was cancelled and instead, the Fynes were provided in May 2011 with a three-page letter informing them of the decision no charges were warranted with respect to the subject matter of either investigation.
100. The letter itself provides no justification for those conclusions other than to state they were reached as a result of
“two detailed and comprehensive investigations.” With respect to the 2009 Investigation, the letter does state the investigation determined Ms. A was Cpl Langridge’s common-law spouse, but offers no further explanation as to how this answered the Fynes’ allegations she was wrongly appointed as PNOK for purposes of making decisions about Cpl Langridge’s funeral. With respect to the 2010 Investigation, the letter provides no explanation at all.
101. The Fynes’ request to have the briefing in the presence of their lawyer may have caused understandable discomfort for the CFNIS, but it did not relieve the OC of compliance with his promise to provide a justification for a decision that charges were not warranted. The statements in the three-page letter do not constitute a meaningful explanation, let alone justification, of that conclusion. Not only does the letter fail to provide any explanation of the investigative steps taken and how they led to the conclusions reached, it does not provide even a hint that the steps taken were entirely inconsistent with the representations previously made to the Fynes. Worse still, the reference to
“two detailed and comprehensive investigations” is, at least with respect to the 2010 Investigation, potentially misleading given it involved no actual investigation of the facts whatsoever.
102. Even without the promise to provide justification for any decision that charges were not warranted, the Fynes should have been provided with a proper explanation of what was done in the investigations, including the radical departure from the previous representations. The promise to provide a justification only makes this failure worse, as does the entirely unnecessary length of time to complete each investigation as compared with the actual steps taken, including specifically the unexplained delay in providing a final briefing.
103. From the beginning of the 2008 Investigation right through to the written briefing three years later, the Fynes were not treated by the CFNIS with the respect and consideration they were entitled to receive. They were often ignored and the information provided to them was at best inadequate and at worst potentially misleading. While the CFNIS members involved did not intentionally seek to deceive the Fynes, their interactions with them made it impossible to establish a relationship of confidence and trust.
CFNIS Independence and Impartiality
104. The most serious group of allegations made in the Fynes’ complaint challenges the ability of the CFNIS to conduct independent and impartial investigations. This Commission has found each of the investigations conducted by the CFNIS was flawed in a number of respects. The Fynes go one step further and allege the reason the investigations were defective was that the CFNIS, lacking independence from the CF, was biased in favour of the military and its interests. They claim actual influence was exerted through various interactions and coordinated activities between the CF and the CFNIS, and also allege individual members were motivated by a desire to
“protect the uniform”. If sustained, these claims would go to the heart of the ability of the CFNIS to discharge its mandate to investigate serious and sensitive offences alleged to have been committed in the CF.
105. The importance of police independence is clear and obvious. Without independence from external interference, a danger arises of a
“police state” in which political or government actors can direct police to investigate enemies or refrain from investigating friends. On the other hand, structures must exist to hold police accountable so as to avoid the danger of a different sort of
“police state” in which the police exercise arbitrary and unconstrainable powers. The dangers of improper influence from above are heightened for internal police forces, like the CFNIS, who do not have a separate structure or corporate identity and ultimately answer to the CF chain of command. The potential for sensitive issues of independence to arise is especially present when the CFNIS is called on to investigate allegations of wrongdoing related to actions or decisions made or supported by the CF chain of command as opposed to isolated acts of wrong-doing by an individual CF member. The allegations of wrongdoing leveled against the CF and its members in the 2009 and 2010 Investigations, as well as the allegations of cover up with respect to the handling of the 2008 Investigation file, fall precisely into this category.
106. Many of the complainants’ allegations of bias and lack of independence appear to assume the very fact an investigation was defective or its conclusions were unsound is itself proof of an improper purpose. In so doing, the complainants mistake outcome for intent. The Commission found no evidence of any improper purpose or of any outside CF influence in the way the investigations were conducted. The vast majority of the problems with the investigations are the result of inexperience, inadequate supervision, faulty assumptions and human error, with no demonstrated relationship to bias or lack of independence.
107. As a factual matter, none of the complainants’ allegations of bias and lack of independence can be substantiated. Indeed some of the events complained of did not occur as they allege. Nevertheless, police independence and freedom from bias are not only important in terms of actual independence and actual freedom from bias. Because of the importance of maintaining public confidence in the police, appearances do matter. While the evidence does not substantiate the existence of any actual bias or lack of police independence, there are a number of instances and issues that put in question the appearance of independence.
108. With respect to independence, a particularly important issue is the relationship between CFNIS investigations, particularly the 2009 and 2010 Investigations, and internal administrative investigations conducted by the CF into many of the same issues.
109. The CFNIS 2009 Investigation addressed many of the same issues as the SI convened by the CF to look into the administration of Cpl Langridge’s estate. The SI was explicitly stated to have been convened
“in anticipation of litigation” and could be understood to be intended to help the CF defend its interest against a threatened lawsuit by the Fynes. The OC of the Detachment, who was also lead investigator for the 2009 Investigation, recognized a potential for the overlap in subject matter and in witness list to have a negative impact on the CFNIS investigation and asked for the SI to be deferred. It is unknown why the CF declined to allow the CFNIS investigation to go first, but there is no evidence of any wrongdoing or improper intent in that decision. Nevertheless, the failure to stop the SI could create an impression the CF investigation was considered more important, regardless of its impact on the CFNIS investigation into alleged service offences. Furthermore, once the SI was complete, the CFNIS did access its report. It was the unanimous testimony of all CFNIS personnel involved that the SI had no impact on the 2009 Investigation. Nevertheless, especially in light of the failure to conduct interviews with key fact witnesses, it is not clear the CFNIS investigation was sufficiently robust to refute an unfortunate possible impression the CFNIS deferred to the CF, not only in terms of timing but also in terms of conclusions.
110. The CF also conducted a BOI into the circumstances of Cpl Langridge’s death. The Fynes were especially critical of the BOI and how it was conducted, and requested a separate police investigation be conducted into their allegations of CF negligence in connection with their son’s death. This became the basis of the 2010 Investigation. In this case as well, CFNIS investigators accessed the BOI report, which contains a number of controversial conclusions and findings of fact. They did not obtain its annexes containing the evidence on which the BOI relied. The testimony is clear it would not have been proper for the 2010 investigators to base their own conclusions on those of the BOI without conducting their own assessment of the evidence. The decision to close the 2010 file was made on the basis of an investigative assessment that did not involve the CFNIS conducting any new interviews or factual investigations. There is no positive evidence the CFNIS relied on the BOI’s factual findings. However, not all CFNIS witnesses seemed to have a clear understanding such reliance would be problematic and, in the context of the limited investigative activity in the 2010 Investigation, at least an appearance might be created that would not bolster public confidence in CFNIS independence.
111. There is no evidence to support the Fynes’ contention of improper discussions or information exchanges between the CF and CFNIS. Nevertheless, the CFNIS decision to communicate with the Fynes through a CF officer designated to coordinate the CF relationship with them was not helpful in bolstering the appearance of independence, nor was the CFNIS’ participation in media briefings and in Media Response Lines coordinated by the CF. Special care needs to be taken to avoid any impression the CFNIS and DND are
“speaking with one voice” or the military is in control of information being provided to the public about CFNIS investigations.
112. The CFNIS decision to cancel a planned verbal briefing for the Fynes, when they requested it be conducted in the presence of the lawyer representing them in a potential lawsuit against the CF, raises concerns. The evidence is equivocal as to whether, as the Fynes believed, the cancellation was motivated by a CFNIS desire to protect the CF’s litigation interests, with one member involved testifying his concerns related to his role as a CF member rather than as a CFNIS investigator. CFNIS members should not be wearing their CF hats in their interactions with complainants.
113. There is no evidence the redactions to the 2008 CFNIS GO file originally produced to the Fynes were made with an intent to cover up deficiencies in that investigation. However, it is concerning that many of the ultimate redaction decisions were not made by the CFNIS, but rather by a separate DND department. That process, still in existence today, needs to be reviewed and amended.
114. Ultimately the evidence revealed, whatever the deficiencies in any of the investigations, the CFNIS members involved all sought to complete their tasks to best of their ability and with no intention to cover anything up or to protect the CF.
115. CFNIS members receive strong indoctrination and training on the need to conduct robust investigations into individual behaviour by CF members, regardless of rank. It is not as clear that the importance of vigorous investigations into allegations attacking CF institutional conduct and decisions is equally deeply engrained. In order to ensure allegations are brought forward with confidence, it is necessary to demonstrate any such allegations will be fully investigated and CF conduct will be critically examined. In the present case, the investigations may not have been sufficiently robust or rigorous to avoid fueling suspicions and concerns about police independence and impartiality such as those raised by the Fynes.
The Notice of Action
“Notice of Action” as an Aspect of the Complaints Resolution Process
“Notice of Action” is a distinctive and integral aspect of the process set out by statute for dealing with complaints made to the MPCC, never the more importantly than when the Commission decides to hold a Public Interest Hearing.
117. Following completion of a Public Interest Hearing, the Commission prepares an Interim Report, including its Findings and Recommendations. This Interim Report is sent to the Minister of National Defence, the Chief of the Defence Staff, the Judge Advocate General and the Canadian Forces Provost Marshal (CFPM). The National Defence Act then requires the CFPM to prepare a Notice of Action setting out the Military Police responses to the Commission’s Findings and Recommendations. The CFPM is to set out any actions taken or planned with respect to the complaint. Where the Military Police declines to act on a Finding or Recommendation, reasons must be set out.
118. Once it has received the Notice of Action, the Commission prepares its Final Report, including a discussion of and responses to the Notice of Action.
119. The importance of the Notice of Action is manifest. The purpose of the independent oversight established by the National Defence Act in the form of the MPCC complaints resolution process is to identify deficiencies in practices and procedures; to promote remediation of such deficiencies; to ensure police accountability; and, in light of the extraordinary powers granted to the police, to safeguard public confidence that the conduct of the Military Police is being properly regulated and overseen. These values, and especially the value of promoting public confidence, require to the maximum extent possible, transparency in the oversight regime. That is the rationale for the availability in appropriate cases, of the MPCC Public Interest Hearing process.
120. The Commission believes that this transparency must extend to the entire Public Interest Hearing process from its inception through to the publication of the Commission’s Final Report.
121. In the Commission’s view, requiring the Military Police to prepare a Notice of Action before the Commission produces its Final Report is intended to ensure that the Commission, the parties and the public at large may be aware not only of the deficiencies pointed out by the Commission and what the Commission believes should be done about them, but also, and crucially, whether the Military Police accepts these Findings and how, if at all, it proposes to implement the Recommendations. Without such information and the Commission’s ability to publicize and comment on it, the principle of accountability is compromised and so is the transparency that is a prerequisite for public confidence in the process.
The Notice of Action in This Matter
122. In the current case, a Notice of Action was delivered to the Commission some seven months after the Commission provided the Military Police with its Interim Report.
123. The Commission has serious concerns regarding the content of this Notice of Action.
124. There is no requirement that the Military Police accept all – or indeed any – of the Findings and Recommendations set out in an Interim Report prepared by the Commission. What is required is for the Military Police to identify which Findings and Recommendations it will act on, which it rejects or will not implement, and the reasons for any rejections. The Commission can then respond with its final evaluation and readers of the Final Report, including government, the parties and the public, can reach their own conclusions as to the sufficiency of the proposed responses. If concerns remain, there can then be informed debate and discussion within the democratic process.
125. In the current Notice of Action, with only one exception, the recommendations explicitly accepted relate to relatively minor and technical matters, and even there, steps identified to implement the recommendations are at times vague.
126. There is a slightly larger number of recommendations directly rejected by the Military Police. These include some of what the Commission views as the most important of its recommendations, including recommendations related to:
- ensuring sufficient experience and expertise in the conduct and direction of sudden death investigations;
- ensuring that both the fact and the appearance of police independence is safeguarded in Military Police interactions with the media;
- ensuring all relevant information is before the Commission at Public Interest Hearings;
- preventing the appearance of conflict of interest by ensuring funding for separate legal representation for subjects of a complaint.
127. The Commission is not satisfied that the reasons set out in the Notice of Action justify rejecting these recommendations.
128. There is a troubling third category of response in the Notice of Action. This category consists of non-committal responses that do not explicitly reject Findings and Recommendations but also do not accept them either explicitly or by necessary implication.
129. In terms of responses to the Commission’s Recommendations, the number receiving such non-committal responses exceeds the combined number of Recommendations either explicitly accepted or explicitly rejected. When it comes to responses to the Commission’s Findings, every response in the Notice of Action but one falls into this category.
130. As responses to the Commission’s Recommendations, these non-committal comments most often involve vague references to future policy reviews in which the Recommendations in question will be considered. As responses to the Commission’s Findings, the non-committal comments acknowledge that the Findings have been made but contain no indication of whether the deficiencies set out by the Commission are acknowledged and accepted. Sometimes the responses take the form of statements essentially indicating an intention to seek a second opinion, presumably in confidence, from another police force.
131. In the Commission’s estimation, all of these non-committal responses amount to rejections of the Findings and Recommendations in question. If they were to be seen otherwise, the Military Police would in effect be entitled to ignore any Finding or Recommendation it chose to address in non-committal terms and neither the Commission nor the public would ever know what if anything was done about the identified deficiencies. The entire issue would be removed from public view. This would fly in the face of transparency, could potentially avoid accountability and would essentially nullify the process of independent oversight.
132. Properly categorizing these non-committal responses as rejections underlines the fact that no reasons are given for not accepting the Findings and Recommendations in question.
Attempt to prevent publication of the Notice of Action
133. The Commission has prepared a more detailed and substantive review of the responses in the Notice of Action in this matter. In the ordinary course, the Commission would publish this analysis as a chapter in its Final Report and would attach the Notice of Action as an appendix to the Report.
134. In the present case, however, four weeks after transmitting the Notice of Action, the Military Police delivered a letter to the Commission instructing the Commission not to publish the Notice of Action, something the Commission had invariably done without issue in past Public Interest cases. This new policy initiative was implemented by refusing to remove the designation
“Protected B” that had been marked on the Notice of Action.
“Protected B” is an internal Government of Canada designation intended to prevent the publication of sensitive personal, private or business information whose publication could result in
“grave injury”. The Military Police also marked the letter containing the instruction not to publish the Notice of Action, as itself
136. In the letter setting out the new policy initiative, the Military Police suggested an approach for the Commission to deal with the Notice of Action in light of its
“Protected B” designation. The Commission considered the suggested approach to be self-contradictory, inconsistent in principle with transparency and with accountability, and unworkable in practice. In response to the Commission’s objections, the Military Police subsequently offered to remove the
“Protected B” designation from the Notice of Action on condition that the Commission agree not to append the Notice of Action to its Final Report. This condition is unacceptable. The Commission cannot agree to suppress publication of a document it considers a central part of the Public Interest Hearing process. Because the Commission could not agree to the self-censorship being proposed, the
“Protected B” designations on the Notice of Action and related correspondence remain in place.
137. The Commission believes the parties and the public are entitled to see the Notice of Action. It also believes the use of the
“Protected B” designation by means of which the Military Police has sought to censor the Commission’s Final Report is wrong in law. However, much as it disagrees with this use of the
“Protected B” designation, the Commission does not intend to flout it by publishing the Notice of Action or referring to the specific information it contains.
138. The Commission has therefore launched an Application requesting the Federal Court to declare that the Military Police cannot prohibit the Commission from publishing the Notice of Action and that the designation
“Protected B” has been improperly applied to the Notice of Action and related correspondence in this case.
139. Pending the Court’s decision on the Application, the Commission has blacked out the chapter in this Final Report containing substantive analysis of the Notice of Action as well as the appendix containing the text of the Notice of Action and the related correspondence. Instead, the Commission has added a brief chapter containing a high level discussion of the Notice of Action, without specific reference to its wording. Once the Court delivers its final decision, the Commission will lift the redactions in a manner and to an extent consistent with the Court’s reasons.
140. The Commission considers the attempt to prevent publication of the Notice of Action to be as inconsistent with the principles of accountability and transparency as the non-committal responses in the Notice of Action, if not more so.
141. The Commission, the parties and the public have a right to know whether the Military Police acknowledges the deficiencies set out by the Commission in its Findings and to know whether and how the Military Police is committed to implement the Commission’s remedial recommendations, or the reasons why it is declining to do so. The Commission’s Findings and Recommendations are not transient expressions of opinion that the Military Police is entitled to peruse and at its option ignore. They cannot simply be dismissed with a non-committal shrug. The Notice of Action is not an element in a private confidential conversation between the Commission and the Military Police. It is a statutorily mandated requirement. The Commission understands it to be an essential part of the information to which the public, not to mention the parties, are entitled in the context of the Public Interest Hearing process. There is no functional reason why the Notice of Action should be cloaked in secrecy or removed from public scrutiny.
142. The purpose of independent oversight of the police is to ensure accountability, encourage remediation of identified deficiencies and promote public confidence in the effectiveness, objectivity and transparency of the oversight regime. The effective refusals in the Notice of Action to engage with the Commission’s Findings and Recommendations and the attempt by the Military Police to prevent its publication, are difficult to square with those purposes. They raise troubling questions as to the willingness of the Military Police to submit to effective independent oversight.
II. The Hearing Process
History and Outline of Proceedings
1. On January 18, 2011, the Commission received a complaint from Mr. Shaun Fynes on behalf of himself and his wife, Mrs. Sheila Fynes, seeking a review of the investigations conducted by the CFNIS following the suicide of their son, Cpl Stuart Langridge.Footnote 2 Mr. Fynes alleged the CFNIS lacked sufficient independence and the investigation of Cpl Langridge’s death was biased. He also complained about alleged errors and deficiencies in connection with the CFNIS investigations conducted following the death, including alleged suppression of Cpl Langridge’s suicide note for over a year.
2. Mr. Fynes expressed concern that an investigation opened in 2009 to look into allegations members of Cpl Langridge’s Regiment did not properly designate his
“primary next of kin” remained incomplete more than a year later. He further complained that in 2010, he had requested the CFNIS investigate the possibility of criminal negligence in connection with Cpl Langridge’s death, but to date there had been little progress beyond a legal review of the request and a seeking of direction from superiors. Mr. Fynes also pointed to an alleged failure of the CFNIS to communicate with him and his wife about the investigations.
3. On April 29, 2011, the Chair issued a decision to conduct a public interest investigation into the Fynes’ complaint.Footnote 3 The decision was made in recognition of the serious allegations about, among other things, the independence and objectivity of the CFNIS in conducting the 2008 investigation and forming conclusions about the death of Cpl Langridge, and about the CFNIS’ ability to adequately and independently conduct the 2009 and 2010 investigations.
4. These allegations go to the core of military policing. Such issues could raise questions about the ability of CFNIS members to fulfill their duties and potentially erode public confidence in their investigations. It was also important for the Commission to conduct an investigation to contribute to a restored confidence in the process for the complainants, as the Fynes indicated they felt marginalized and misled.
5. The complainants had not specifically identified the subjects of the complaint, so it became necessary for the Commission to do so after reviewing the investigative files and interviewing the complainants. Additionally, the complainants indicated they did not believe their initial complaint and subsequent correspondence and conversations captured the totality of their allegations about the 2008 investigation, and noted they might also have further allegations once they were advised of the results of the 2009 and 2010 investigations. As such, an interview with the complainants also allowed for clarification of the allegations.Footnote 4
6. Based on the information gathered during the public interest investigation, the Commission identified 13 subjects of the complaint and disclosed to them a list of formal allegations.Footnote 5
7. On September 6, 2011, the Chair issued a decision to hold a public interest hearing.Footnote 6 The Commission made it clear from the outset the public interest hearing would require an investigation into systemic matters such as the policies, practices and organization of the Military Police.Footnote 7 The allegations in the complaint put into question the very ability of the CFNIS to conduct independent investigations into the behaviour of members of the CF, particularly where members within the chain of command might be involved.
8. If there were conscious or unconscious biases preventing the CFNIS from uncovering and exposing information potentially detrimental to the CF, or if there was insufficient independence from the CF and its interests preventing CFNIS members from making adequate decisions concerning the issues to be investigated or appropriately working with complainants, this would cast doubt on the ability of the CFNIS ever to carry out its core functions. The allegations went beyond bias to raise specific concerns about incompetence and/or a lack of requisite experience on the part of the CFNIS investigators. An open, public hearing to address the allegations in a transparent manner and hear what would necessarily be extensive evidence and submissions was deemed necessary and in the public’s interest.
9. The Fynes Public Interest Hearing commenced on October 19, 2011, with an initial case conference.Footnote 8 The case conference was called to identify counsel for the parties, set a hearing schedule, and hear a motion from the complainants seeking that the Commission recommend the Government of Canada provide public funding for their legal representation.
10. On September 26, 2011, Col (Ret’d) Michel W. Drapeau, counsel for the complainants, filed a written motion formally requesting that the Commission make a recommendation to the Treasury Board of Canada to grant public funding to the complainants in order for them to retain legal representation for the PIH.Footnote 9 Col (Ret’d) Drapeau argued legal representation was necessary for the complainants to participate fully as parties in the PIH, noting they did not have the financial resources to afford representation without incurring severe hardship.Footnote 10 Col (Ret’d) Drapeau proposed to act at a reduced rate. An accompanying affidavit from the complainants set out their circumstances and means.Footnote 11
11. The complainants’ request for public funding was opposed by the Government through submissions made in writing by the Department of Justice (DOJ) counsel to the Government of Canada.Footnote 12 This position was surprising. Understandably, Government resources are not unlimited and public funding for counsel for complainants at MPCC public interest hearings should be considered exceptional rather than the norm. However, the fact Government’s legal advisor took a position on whether or not funding was warranted may seem incongruous in circumstances where Government counsel were also representing the subjects of the complaint before the Commission, and where the Government would have to make the ultimate decision about whether to accept a funding recommendation from the Commission, if one was issued.
12. On October 26, 2011, the Commission issued a recommendation to the Government of Canada to grant funding for the complainants’ legal representation, at the reduced hourly rates proposed by Col (Ret’d) Drapeau.Footnote 13 Pursuant to section 250.44 of the National Defence Act, the complainants are parties to a PIH held by the Commission.Footnote 14 Pursuant to the Act and the Rules of Procedure for Hearings before the Military Police Complaints CommissionFootnote 15 they are entitled, as much as the subjects of the complaint, to participate fully in the hearing including cross-examining witnesses, presenting evidence and making submissions, including final submissions. The Commission found that, in order for the status of parties to be meaningful, it is inevitable in some complex cases such as this one, the complainants will need some form of representation at the hearing.
13. The Minister of National Defence issued a decision to grant public funding for the complainants’ legal representation on March 16, 2012.Footnote 16 The decision may have been delayed to some extent by confusion regarding the responsible agency. The Commission’s funding recommendation was issued to The Honourable Tony Clement, President of the Treasury Board of Canada. In January 2012, Mr. Clement advised the Commission he had forwarded the recommendation to the Minister of National Defence as he felt it was more appropriate for it to be dealt with by the Minister under his powers and discretion.Footnote 17 The interval between the Commission’s recommendation and the Minister’s funding decision had the unfortunate result of forcing Col (Ret’d) Drapeau to remove himself, for the time being, as solicitor of record and preventing him from preparing for the imminent commencement of the hearing.
14. Following the October 2011 case conference, the Commission received evidentiary materials and disclosed that evidence to the parties in preparation for witness testimony. Although document production did not always proceed smoothly or without incident, ultimately sufficient documentation was identified and made available to the Commission to allow it to conduct the PIH and carry out its mandate. On March 27, 2012, the Commission entered into evidence six collections of documents containing a large volume of material provided to the Commission by the complainants and by the Government, and which had previously been disclosed accordingly.Footnote 18 As further documents were identified and redactions reassessed, new documents and revised versions of existing documents were added to the evidentiary record. By the conclusion of the hearing, the Commission had entered a total of 1699 documents into evidence, adding up to over 22,000 pages of material.
15. The PIH heard the testimony of its first witness on March 27, 2012. The Fynes Public Interest Hearing heard evidence from 90 witnesses over 60 days of testimony, generating over 12,500 transcript pages. The last witness testified on October 10, 2012.
16. Closing submissions and reply submissions from the parties were filed on January 2 and January 8, 2013 respectively, and oral submissions were heard January 9, 2013.
17. On October 12, 2012, Col (Ret’d) Drapeau formally requested supplemental funding in anticipation of the extensive work required to prepare written closing submissions, make oral submissions at the hearing, and prepare written reply submissions.Footnote 19 The Commission issued a funding recommendation on October 30, 2012, to grant supplemental legal funding at the reduced hourly rates again proposed by Col (Ret’d) Drapeau.Footnote 20 On February 14, 2013, the Minister of National Defence issued a decision to grant supplemental funding for the complainants’ legal representation in recognition of the increased length of the hearing, the increased number of witnesses, and the extensive documentary evidence filed.Footnote 21
18. In keeping with the Commission’s commitment to conduct open and fair hearings in the public view, no part of the hearing was held in camera. In only one instance was a publication ban imposed on the contents of the hearing, and this concerned graphic video recordings produced by the CFNIS investigators depicting the scene of Cpl Langridge’s suicide and their initial work at the scene, as well as that of the ME Investigator.Footnote 22 The video was viewed at the request of the complainants. Members of the media were permitted to be present during this evidence but were not permitted to record or broadcast images or audio of its contents. The publication ban is permanent.
19. In addition to the critical importance of full and timely disclosure from the Government and the parties of all materials relevant to the matters under investigation, the Commission’s ability to meet its mandate also greatly benefits when the Government takes a cooperative approach to information-gathering functions like witness interviews. Similarly, when a flexible approach is taken with complex legal issues, significant impasses can be resolved. All those who were involved in the PIH faced significant challenges and all, including Commission counsel, at times made errors in their sincere but unrealistic attempt to meet ambitious deadlines intended to give the public, and especially the parties, the timely answers they deserved.
20. Although a number of obstacles and process issues arose in the course of this complex and extensive public interest hearing, in many cases these were ultimately overcome through cooperation between the Commission, the parties, and their counsel. The procedural challenges encountered often – but not always – resulted from positions taken by the Government institutions involved, especially with respect to legal privilege and other impediments to disclosure.
21. This by no means implies any bad faith or misconduct on the part of the Government counsel who appeared before this PIH. All counsel clearly sought to carry out their instructions in a manner that recognized their ethical and professional obligations. Wherever responsibility for some of the problems outlined in this chapter might lie, it should not be seen to rest with counsel who represented their clients diligently under often difficult circumstances.
22. Ultimately, and despite the difficulties and setbacks, the most important objectives of the Commission were accomplished with the cooperation of all parties and counsel involved. In the end, it was possible to hold the public interest hearing in the open and provide meaningful findings and recommendations, which can be openly shared with the complainants, the subjects, the Government of Canada, and the Canadian public.
The Interim Report and the Notice of Action
23. On May 1, 2014, the Commission delivered the Interim Report to the Minister of National Defence, the Chief of the Defence Staff, the Judge Advocate General, and the Canadian Forces Provost Marshal (CFPM).Footnote 23 Four months later, on September 5, 2014, the Commission wrote to the CFPM to inquire as to when the Commission could expect to receive the Notice of Action.Footnote 24 On September 16, 2014, the Chief of Staff of the Canadian Forces Military Police Group (CF MP Gp) replied that the Notice of Action was ready, but that a delay of about one month was anticipated before it could be sent to the Commission, because the CFPM wished to brief the Senior Chain of Command regarding the Notice of Action before its distribution.Footnote 25 The Commission was advised that the Notice of Action would be forwarded following the briefing of the senior leadership.
24. On November 4, 2014, the Commission received an e-mail message from the CF MP Gp advising that it would be approximately six more weeks before the Notice of Action would be ready to be sent to the Commission, as the briefing to the Senior Chain of Command had been rescheduled to the last week of November 2014.Footnote 26
25. On December 10, 2014, the Commission was advised of still another delay in the delivery of the Notice of Action, meaning that the Notice of Action would not be delivered in mid-December as expected.Footnote 27 In an e-mail message, the CF MP Gp advised the Commission that further to the briefing already provided to the Chief of the Defence Staff about the Interim Report and the Notice of Action, the Minister also wished to be briefed. The message explained that as the Commission provides its Interim Report to these statutory recipients, it was to be expected they would wish to be briefed as to the status of the file before the Notice of Action was provided to the Commission. The CF MP Gp did not provide additional information as to when the Commission could now expect to receive the Notice of Action, but indicated that once the briefing to the Minister was scheduled, the Commission would be advised.Footnote 28
26. On December 11, 2014, the Commission responded, expressing concern about the unacceptable delay in providing the Notice of Action.Footnote 29 At this point, more than seven months had passed since the delivery of the Interim Report.
27. Shortly after, the CFPM provided the Commission with a Notice of Action. The Notice of Action was received on December 16, 2014 and was dated December 3, 2014.
28. The Notice of Action was marked
“Protected B,” a level of an internal government designation intended to protect sensitive personal, private, or business information that could result in grave or severe injury if compromised or released.Footnote 30
29. On December 22, 2014, the Commission wrote to the CFPM to acknowledge receipt of the Notice of Action. At that time, the Commission requested that the
“Protected B” designation be removed so that the Notice of Action could be included in the Commission’s Final Report, as had been done in previous cases.Footnote 31
30. On January 15, 2015, the Commission received a letter from the CF MP Gp indicating that the Notice of Action could not be included in the Commission’s Final Report or otherwise published and that it would remain designated
“Protected B”. The letter itself was also marked
“Protected B”. In this correspondence, the Military Police suggested an approach to deal with the Notice of Action in light of this designation, but the Commission considered this approach to be both unacceptable in principle and unworkable in practice.
31. Over the course of the following weeks, the Commission exchanged correspondence with the Military Police to express its strong objection to the attempt to prevent the publication of the Notice of Action, and to seek clarification of the reasons for this unprecedented position. As most of the correspondence received about this matter was marked
“Protected B”, the details of the exchanges are not discussed here.
32. On February 11, 2015, the Military Police transmitted its final decision on the matter to the Commission, maintaining its refusal to permit the publication of the Notice of Action.Footnote 32 In this correspondence, the CFPM agreed to provide an undesignated version of the Notice of Action to the Commission, but only on the condition that the Commission provide assurances the Notice of Action would not be appended to the Commission’s Final Report. The Commission could not agree to these conditions, and advised the CFPM on February 12, 2015, that it would not provide the requested assurances.Footnote 33
33. The Commission has launched legal proceedings requesting the Federal Court to declare that the Military Police cannot prevent the Commission from publishing the Notice of Action and that the designation
“Protected B” has been improperly applied to the Notice of Action and related correspondence in this case. Pending the Court’s decision in this matter, the Commission is prevented from publishing the Notice of Action and correspondence related to its designation, or from referring to the specific information they contain. The Commission has therefore redacted the chapter in this report containing a substantive analysis of the Notice of Action and the appendix attaching the text of the Notice of Action and related correspondence. Once a final decision is rendered by the Court, the Commission will lift these redactions in a manner and to an extent consistent with the Court’s reasons.
The Commission’s Mandate
34. The Commission provides independent civilian oversight to the Military Police. The Commission is mandated to review conduct complaints (meaning a complaint about the conduct of a member of the military police), and interference complaints (meaning a complaint about interference with a military police investigation), which have been referred to it.Footnote 34 Conduct complaints refer to complaints about the conduct of MP members in the performance of their policing duties or functions. These include the conduct of an investigation, the handling of evidence, responding to a complaint, the enforcement of laws, and the arrest or custody of a person.Footnote 35
35. Created by statute, the Commission has had a number of powers conferred upon it to enable it to carry out its functions efficiently, fairly, and independently. The Chair can decide to commence a public interest investigation or hearing if it is
“advisable in the public interest” to do so.Footnote 36 This decision is discretionary. The Commission can commence an investigation even if the originating complaint has been withdrawn. The Chair has the ability to set rules for the conduct of investigations and hearings and for the performance of the Commission’s other duties and functions.Footnote 37 The Commission has the power to summon witnesses and compel them to provide sworn evidence, as well as to produce any documents or things under their control, which the Commission considers necessary for its investigation.Footnote 38
36. Subject to certain exceptions, the Commission operates under relaxed rules of evidence (like many administrative bodies) and can receive and accept evidence and information even if it would not be admissible in a court of law (for example, because of rules against hearsay).Footnote 39 The Commission also has a legislated duty to
“[…] deal with all matters before it as informally and expeditiously as the circumstances and the considerations of fairness permit.”Footnote 40
37. The Commission’s conclusions are non-binding and its reports are not legally enforceable, but the Military Police leadership must provide written reasons for declining to act on the Commission’s findings and recommendations. As such, the nature of the Commission’s work is akin to a public inquiry, with its influence
“[…] being a matter of moral or political suasion through transparency and public accountability, rather than executive or adjudicative authority.”Footnote 41 The Commission is legally and administratively separate from the CF and the Department of National Defence and is not subject to direction from the Minister in respect of its operational mandate. The Commission operates at arms’ length from the Government and does not form part of the Crown. The Commission’s legal counsel is staffed independently of the DOJ, whose lawyers provide the bulk of legal services to Government agencies.Footnote 42
Submissions about MPCC Jurisdiction
38. In their final submissions, the subjects of the complaint made a number of assertions concerning the MPCC’s jurisdiction. Notably, the subjects submit that: the MPCC can only make findings about allegations of professional misconduct; it should not review systems or policy issues; and:
[…] Nor did Parliament contemplate that this Commission would become a vehicle by which the conduct of the CF generally, or anyone within the CF aside from the MP, would be investigated. The mandate of this Commission cannot be used as a springboard to investigate or criticize the conduct of non-MP members of the CF or the Government of Canada […]Footnote 43
39. The Commission accepts the general principle that its oversight mandate is focussed on the specific complaints made against specific subjects. However, when the complaint alleges deficiencies in an investigation, that mandate requires it to examine whether or not investigators were diligent, thorough, objective, and competent during their investigation(s). This means the Commission’s mandated function, as envisaged by Parliament, to monitor and assess the day-to-day decisions of the Military Police, requires it to examine what the Military Police members examined or ought to have examined.
40. This does not constitute an attempt to expand or exceed its jurisdiction, as claimed by counsel for the subjects. To the contrary, in order to discharge its mandate, the Commission must be able to understand the information available to the Military Police and – most importantly – information which could have been available to the Military Police but was not obtained or investigated by them. To contend the Commission is precluded in these circumstances from examining what the Military Police members uncovered or ought to have uncovered in their investigation of a death, a potential crime, or a service offence would be an artificial and inappropriate constraint.
41. The final submissions of the subjects also warn the Commission against investigating, making findings, or making recommendations relating to the administration of the Military Police. The subjects note that sections 2(1) and 2(2) of the Complaints about the Conduct of Members of the Military Police Regulations, provide a definition of the military police duties and functions that may be the subject of a complaint.Footnote 44 Under section 2(2) of the regulations, when an MP member performs a duty or function relating to
“administration, training or military operations that result from established military custom or practice,” these are not policing duties or functions. The closing submissions of the subjects describe such administrative matters as:
Duties or functions related to administration are those unrelated to core policing and that a MP officer performs in his capacity as a member of the CF. They are, therefore, excluded from the“policing duties and functions”that may be subject of a complaint and more properly considered matters of“administration”based on common sense and interpretation of analogous case law.Footnote 45
42. For this reason, counsel for the subjects submit, matters such as the development of media lines and communications strategies and
“establishing reporting priorities; development of policies and procedures as well as application of ATIP legislation in relation to disclosure” are excluded from the Commission’s oversight jurisdiction.Footnote 46
43. The Commission accepts, as a general principle, there are matters related to what the Military Police do that are not connected with their policing function but rather arise in the context of their status as an administrative unit within the CF. However, this does not mean, as submitted by counsel for the subjects, certain Military Police duties and functions are categorically prohibited from consideration. A CFNIS member simply performing an administrative duty may not be subject to a conduct complaint, but a CFNIS member whose conduct in relation to an investigation or other core policing function is alleged to be deficient will be subject to a complaint to the MPCC even if part of the complaint pertains to how administrative matters impacted the investigation. Investigating and making findings and recommendations with respect to MP conduct in relation to an investigation is explicitly within the Commission’s jurisdiction.
44. While the subjects’ final submissions strenuously maintain the topic of media releases and communications strategies are outside of the Commission’s jurisdiction to investigate, one of the Fynes’ central complaints is that the CFNIS lacked independence in its approach to the investigations it undertook. In so far as the content of media releases or the interaction between CF and CFNIS communication strategies either confirms or rebuts these allegations, these topics are well within the Commission’s jurisdiction to investigate and to make findings and recommendations as appropriate.
45. Further, the interactions of the CFNIS members with the complainants form part of their policing function to be reviewed by the Commission and were directly raised in the Fynes’ complaint. To the extent the complainants sought to obtain Cpl Langridge’s file from the CFNIS, it is within the Commission’s mandate to address the issues that arose in the disclosure of the file to the complainants.
46. Similarly, if the evidence demonstrates a shortcoming in an investigative step or other procedure related to a gap or deficiency in Military Police policy or training, it is also clearly within the Commission’s jurisdiction to point out the deficiency and recommend corrective measures.
47. To draw a line between what Military Police and CFNIS members do in the course of an occurrence or investigation and the many interconnected activities capable of impacting on what they do and how they do it, is to propose an artificial and unrealistic distinction. Sections 2(1) and 2(2) of the Complaints about the Conduct of Members of the Military Police Regulations are not
“watertight compartments.”Footnote 47
48. With specific respect to allegations about CFNIS independence, the subjects submit,
“[t]his Commission has no free standing jurisdiction to conduct a review of the structure and means by which the CF has chosen to provide police oversight for the force.”Footnote 48 The Commission does not accept the terms in which this argument is framed. Systemic issues touching upon CF oversight and Military Police independence can affect the competence of investigations and may lead to improperly conducted investigations. As such, these issues are directly within the Commission’s mandate. Where specific allegations are made about improperly conducted investigations, including allegations that the investigators in question are biased or lack sufficient independence, it is incumbent upon the Commission to examine the conduct of the investigation wherever it leads. The concepts of police bias and tunnel vision are well-understood phenomena. Even an unconscious bias or a perceived lack of independence can seriously undermine the outcome of a police investigation and the public’s trust in the institution.
49. The subjects further submit:
[T]his Commission must be equally careful to ensure that its process is not subverted or its mandate exceeded by the broad and sweeping complaints against the CF at large which permeated this hearing. The vast majority of the witnesses who appeared before this Commission were not Subjects of this complaint, nor were they MPs. Many of them are the target of very serious accusations by the complainants, including accusations that they have made professional errors and or committed criminal offences. It is not the role of this Commission to investigate, pursue or comment on the behaviour of other government actors.Footnote 49 [Emphasis added]
50. This description of the Commission’s role is inaccurate. The focus of the Commission’s examination is to consider the thoroughness of the police investigations. If the Commission is presented with complaints about misconduct and/or inadequacies in connection with the thoroughness of an investigation or the adequacy of its conclusions, these complaints must be examined. It cannot be known whether an investigation was thorough and comprehensive unless one looks into what there was to investigate. Conclusions reached might, in the process, raise inferences or questions about the conduct of third parties, but these were, after all, the very questions the CFNIS was tasked to investigate. The Commission’s ability to determine for itself what the subjects knew or had the means of knowing, and to summon witnesses from the CF, the DND, or even other government departments in the course of its investigation into a complaint, should be beyond dispute.Footnote 50
51. Finally, the subjects submit:
This Commission has no jurisdiction to make findings or recommendations regarding the means by which the CF has chosen, as an institution, to provide legal advice to the NIS. Nor does this Commission have the jurisdiction to make findings about the conduct of individual JAG lawyers who have been subpoenaed to appear as witnesses before this Commission and have been the subject of serious professional allegations by the Fynes and their counsel.Footnote 51
52. The Commission reiterates the view its oversight of Military Police investigations requires an examination of the facts and information available to investigators. Where investigators rely upon legal advice provided to them, or on legal advice provided to other members regarding the conduct being investigated, it is appropriate for the Commission to attempt to understand the circumstances of these communications. Where a deficiency in the advice (such as a mistake of law) impacts the conduct or findings of an investigation based on that legal advice, the finding may be relevant to an assessment of the reasonableness of the police investigation and may explain the reason for the outcome of investigations subject to a complaint. It should be noted this report has made no such findings on the facts as revealed by testimony and by documents made available to the Commission. This result in no way diminishes the legitimacy of the inquiry.
Speaking with One Voice
53. The Commission acknowledges the high standards of professionalism demonstrated by counsel for the complainants and the subjects throughout a lengthy, complex, and occasionally contentious hearing process.
54. In particular, the comments here are not intended to reflect on the personal conduct of the individual lawyers in the Department of Justice and the CF acting on behalf of the subjects and the Government in the PIH. The Commission stresses that counsel conducted themselves throughout the proceedings with integrity in often stressful circumstances to discharge what, to the Commission, appears to be an almost impossible assignment given the disparate interests of their
55. It should nevertheless be noted, the Government’s decision that one set of counsel would represent multiple and disparate individuals and institutions connected with the Military and/or Government raises a number of potential concerns.
56. Professor Kent Roach testified about the representation of Military Police at public inquiries and considered the topic in a related paper submitted to the Commission. He discussed the possibility a conflict of interest may arguably arise where interference with Military Police independence has been alleged, and yet those complained about are represented by lawyers who also represent the CF and the Government.Footnote 52 The independence problem is compounded by a Government policy sometimes referred to as
“speaking with one voice,” about which the Hon. John Major remarked critically in the Final Report of the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182:
There is no doubt that agencies, no less than individuals, are entitled to representation by counsel who will present their actions and represent their interests in their best light. Where one set of counsel is appointed to do this for a variety of agencies with historically divergent perspectives and understandings, the task becomes unmanageable and risks trivializing the real differences that separate the agencies and compromising the benefits that might be expected from the separate representation of competing viewpoints.Footnote 53
57. In these proceedings, the
“one voice” approach meant, as a practical matter, a single legal team composed of DOJ and other Government or Military counsel represented throughout the PIH the interests of:
- The thirteen individual CFNIS subjects, who were a party to the proceedings and whose reputational interests were directly at stake;
- The dozens of witnesses currently or formerly employed by the CF or the Department of National Defence (and who were thus entitled to legal representation by DOJ counsel under the Treasury Board’s Policy on Legal Assistance and Indemnification);Footnote 54
- The Canadian Forces Provost Marshal;
- The Canadian Forces;
- The Department of National Defence and the Minister; and
- The Government of Canada.
58. The DOJ played a central role in acting for the MP, the CF, and the DND in responding to requests for documentary disclosure. This meant the DOJ was responsible for directing searches for documents in the possession of its various clients and making decisions about redactions and privilege claims prior to disclosure. The DOJ disclosed these documents in coordination with the CFPM Legal Advisor. This arrangement effectively puts the DOJ in the position of acting both as an advocate for its clients and as
“gatekeeper” on behalf of the Government as a whole in the process of disclosing documents.
59. While it is possible all these interests align and all these parties share a common perspective on the facts and issues raised during the hearing, the apparent decision, as a matter of policy, to proceed on the assumption all these separate voices will be harmonized into a single consistent perspective carries a risk. This unified representation risks creating an impression of unfairness, whether to the complainants or to the subjects themselves, and appearing to raise unnecessary obstacles in the Commission’s fact-finding mandate.
60. Early in the proceedings, Commission counsel voiced concerns to members of the DOJ legal team about the potential impact on fairness, or at least the appearance of fairness, in these proceedings.Footnote 55 One practical concern arose from the possibility, in the context of its representation of one set of interests, the legal team might obtain information from sources like pre-hearing interviews, which would otherwise not be available to other interests being represented if not for the joint representation. Given the legal presumption that facts within the knowledge of one member of a law firm - let alone one member of a legal team - become facts within the knowledge of all members, and given the ethical obligation of counsel to share potentially relevant information with their client, a perception of unfairness might well arise. It was therefore suggested consideration be given to establishing ethical screens designed to insulate the different working groups of Government counsel from one another. This would have allowed all parties and interests to be represented by DOJ or other Government counsel with no possible appearance that otherwise unavailable information was being shared. These concerns were acknowledged but dismissed by Government counsel, who noted the Treasury Board’s Policy on Legal Assistance and IndemnificationFootnote 56 did not contemplate such undertakings or ethical walls for Government counsel, and maintained such measures did not appear necessary or appropriate in this case.Footnote 57
61. The Government’s decision to speak with a single voice runs the risk of appearing to enforce conformity of viewpoints where such conformity might not otherwise be expected to exist. Concerns could arise about the possibility that a particular interpretation of evidence or a theory of the case reflecting the perspective of one or more institutional interests might be advanced in preference to an approach more directly reflective of the interests or views of one or more of the subjects.
62. To be clear, it is not being suggested any such circumstance actually did arise in the present hearing. Neither the Commission nor the public has any right to inquire about conversations between any persons or institutions being collectively represented and the lawyers who represent them, so all that is left are possibilities and appearances. What matters is that the possibility of such circumstances is inherent in the policy of having Government institutions, fact witnesses and all the subjects of a complaint being represented by a single counsel team. This possibility can lead to an appearance of irregularity, which is damaging to the process even when, in factual terms, there may be absolutely no impropriety.
63. Public confidence in the integrity of the complaints process depends on the fairness, transparency and legitimacy of the Public Interest Hearing process. To stress again, while the Commission has no reason to believe anyone acted in any way other than appropriately, appearances and perceptions count. There is a real risk of public scepticism in circumstances where a single counsel team represents such a multiplicity of interests. Such scepticism can be particularly unfortunate where it may raise doubts about the ability or willingness of a subject of a complaint to raise defences and explanations which could reflect negatively on Government institutions like the Military or other witnesses being represented by the same legal team.
64. To be sure, clients must be free to select counsel of their choice to represent them, and nothing in these comments should be understood as seeking to deny that right. The difficulty is, the Treasury Board Policy on Legal Assistance and Indemnification – cited by the counsel team as a reason for declining to establish ethical screens that would clarify who was speaking for which client – also has the appearance of acting as a constraint on the subjects’ and witnesses’ actual ability to retain counsel of choice.
65. As a practical matter, this policy places the subjects in a difficult position. They are forced to choose between accepting representation by DOJ counsel paid for by the Government, or objecting to such an arrangement and going through the long and arduous process of obtaining independent representation (or opting to retain private and independent counsel at their own expense). It would be preferable to avoid the potential problems completely from the outset by providing independent counsel to the subjects to protect their interests with no possibility of a perception of potential divided loyalty. In the past, the DOJ’s Canadian Forces Legal Advisor appears to have recognized this problem by appointing independent counsel for the subjects of PIHs.Footnote 58 On a going forward basis, it would be preferable to follow that process by providing the subjects with independent counsel at the outset of a PIH.
Fact-finding and Effective Oversight
66. To conduct effective oversight of the Military Police in accordance with its mandate, the Commission requires access to facts potentially relevant to a complaint. Those facts may be found in documents or in the oral testimony of witnesses. For hearings to be conducted effectively, it is necessary for the potentially relevant information to be available to Commission counsel and the parties sufficiently in advance of the actual testimony to allow for meaningful preparation both by Commission counsel and the parties, including the complainants. In the PIH process, potential relevance is determined by reference to the issues arising from the complaint submitted to the Commission. The qualifier
“potential” relevance is significant because it is not possible to determine actual relevance before evidence is collected and examined. Sometimes, when witnesses or subjects decline pre-hearing interviews, actual relevance cannot be determined until actual testimony is heard.
67. Where the complaint includes allegations of errors and inadequacies in investigations conducted by the CFNIS, potentially relevant information includes, at a minimum, the information that was available or could have been available to the investigators, along with the complete record of what was done to gather and draw conclusions from that information.
68. At the outset, it is necessary to acknowledge, in the present case, the information gathering exercise necessary to support meaningful fact-finding was both extensive and intensive. Much of the burden for collecting and processing the information fell on the CFNIS, on various branches of the CF and on their counsel. Given the volume of material, the complexity of some of the evidence, the potential for controversy arising from some of the legal issues and the time pressures inherent in the process, in may have been inevitable some mishaps would occur and there would be occasions of disagreement about what information should or could be made available.
69. Given this context, it is important to acknowledge the efforts of the CF, the CFNIS and their counsel team to comply with the information gathering needs of the Commission and to work with Commission counsel – and where appropriate counsel for the complainants – in a spirit of cooperative problem-solving, which ultimately led to most issues finding a reasonable resolution.
70. Nevertheless, the process was not always a smooth one.
71. The Commission appreciates the extensive and notable cooperation of all involved in the massive undertaking of responding to document requests for a large and complex PIH. Assembly of the immense collection of documents forming the evidentiary record was only possible because of the cooperation and hard work of the parties and their counsel, as well as of the Commission’s own counsel and staff.
72. The Commission understands the enormity of the task and the fact mistakes are inevitable, but disclosure issues, when they do arise, prejudice the ability of the Commission to do its work. The emergence of a number of disclosure issues on the one hand highlights problem areas in the hearing process, and on the other hand illustrates the possibility to resolve such issues with open discussions and concerted efforts. The hope is the incidents discussed below will be used as lessons to prevent, or at least to minimize, the impact of disclosure problems for future hearings.
73. When the Commission conducts a hearing, the NDA confers on it the power to compel witnesses to appear and give evidence and also to produce any documents under their control the Commission considers necessary to the full investigation and consideration of the matters before it.Footnote 59 Quite properly and helpfully, the Government legal team responsible for disclosure also was instructed to disclose to the Commission, upon request, all the records it would be entitled to receive as if the Commission had actually issued a summons.Footnote 60
74. Shortly after the decision to conduct a PIH was issued, Commission counsel requested from the CFPM a number of documents identified as being relevant to the complaint, in addition to the GO files for the three investigations already produced earlier.Footnote 61 The initial request covered documents at CFNIS WR and CFNIS HQ relating to Cpl Langridge’s death, interactions with the complainants, the 2008, 2009, and 2010 investigations, or the issues raised by the complainants. The initial request also sought documents relating to any meetings where the complainants’ case was discussed and any Military Police member was present, as well as information concerning the investigative training of CFNIS members in general, and the training specifically received by the 13 subjects in particular.
75. As Commission counsel reviewed documents and began to conduct pre-hearing interviews, follow-up disclosure requests were issued. In February 2012, Commission counsel wrote to the CFPM Legal Advisor requesting that potential witnesses represented by DOJ counsel search their records to identify relevant documents in their possession not already provided to the Commission.Footnote 62 This request was made upon the realization witnesses at pre-hearing interviews referred to and acknowledged the existence of relevant documents the Commission had not seen previously, putting Commission counsel in the position of having to review them only after the interviews or, in a few cases, shortly beforehand.
76. The pace of document production and the completeness of disclosure were not always problem-free. In particular, there were instances of last-minute disclosure of large collections of documents sent on the eve of testimony, and also late disclosure of documents that would have been exceptionally relevant for witnesses who had already testified. At the commencement of the hearing, for example, the Commission received a very large production of documents from the Government. Commission counsel raised concerns at that time about the difficulty such last-minute productions would impose.
77. In another instance, just prior to the testimony of Dr. Mohr, a psychologist employed by the CF, and Mr. Perkins, a Base Addictions Counsellor, roughly 100 pages of new documents relevant to that testimony were produced at the last moment.Footnote 63 This belated production occurred despite numerous specific requests for these documents and repeated confirmation all relevant documents had been produced. On this occasion, DOJ counsel stressed the late disclosure had not been intentional. The story of these documents requires some explanation, notably because their eventual production was preceded by numerous requests and by repeated confirmations all relevant documents had been produced. This raises serious concerns about the adequacy of document searches conducted.
78. Commission counsel requested disclosure of Cpl Langridge’s complete medical file in January 2012 following the pre-hearing interview with Dr. Mohr when Commission counsel realized the records might not be complete.Footnote 64 A first version of the file was produced in early February.Footnote 65 On February 23, 2012, Commission counsel made a specific request for any notes about a CFB Edmonton Garrison Clinic or Mental Health Clinic case conference about Cpl Langridge held on or about March 7, 2008.Footnote 66 Commission counsel were subsequently told no such notes were found.Footnote 67
79. On March 16, 2012, Commission counsel made a specific request for Cpl Langridge’s complete mental health file and records because it appeared the records in the Commission’s possession were still incomplete. Further mental health records were provided on March 29, and the Commission made a request for confirmation the records were now complete and included records for Cpl Langridge’s addictions counselling.Footnote 68 However, late in the afternoon on the day before Dr. Mohr and Mr. Perkins were scheduled to testify, new BAC records were received by the Commission – including the previously requested note specifically referring to a March 13, 2008 Base Clinic case conference about Cpl Langridge. This was the first record received of a conference held two days before Cpl Langridge’s death. These documents were highly relevant to the evidence of Mr. Perkins, one of the BACs in question, and to that of Dr. Mohr. Furthermore, one of the documents previously produced with respect to Dr. Mohr’s testimony turned out to be the wrong document, and the correct document was only produced the morning of her testimony. This document was several hundred pages in length.Footnote 69
80. These documents would also have been highly relevant to witnesses who had already testified. Commission counsel reserved the right to bring some witnesses back to testify about the documents,Footnote 70 although, fortunately, this did not prove necessary.
81. DOJ lead counsel acknowledged it was neither desirable nor acceptable that documents were being provided on such a late basis. She noted the legal team for the Government had made a number of inquiries to ensure the complete medical records were produced.Footnote 71 The team believed the complete medical records had been produced to the Commission as of March 30, but through an oversight, additional documents existed, which were not produced to the Commission. This was only discovered days before the scheduled testimony.Footnote 72 Further, the lengthy document was identified by the witness as incorrect and in need of replacement only the night before her testimony, and this was corrected as soon as DOJ counsel became aware of it. DOJ lead counsel made it clear she believed a thorough search had been made, and the appropriate priority had been given to the document requests. She promised to personally make the necessary queries to ensure all search efforts were made and do everything within her power to ensure this did not happen again.Footnote 73
82. The Commission accepts DOJ counsel’s bona fides in this matter. However, this does not diminish the frustration and inconvenience caused to the Commission and all parties by the inadequate research conducted on behalf of the CF.
83. On another occasion, the Commission received 200 additional pages of CFNIS materials on June 8, 2012, just two business days before the testimony of Maj Bolduc, the DCO CFNIS during the relevant investigations. The materials included communications from Sgt Mitchell to Maj Dandurand and were clearly captured by the Commission’s September 2011 request for disclosure
“of all notes, memorandums and correspondence (including internal)” at CFNIS HQ and Western Region concerning interactions with the complainants or related to Cpl Langridge’s death.Footnote 74 The late disclosure was made more vexing in view of a February 2012 letter from Government counsel, which made assurances all documents responding to this request had already been provided in December 2011.Footnote 75
84. In yet another instance, in February 2012, Commission counsel requested any documents or information concerning all changes or revisions made following the Fynes case to Military Police policies and procedures with respect to the disclosure of suicide notes.Footnote 76 Two documents were received in reply: an October 2010 revision to a CFNIS SOP, and a July 2011 revision to that policy.Footnote 77 Following a witness interview in April 2012, Commission counsel sent a further disclosure request seeking confirmation of the date when changes relating to the procedures for the disclosure of suicide notes were made, as well as any and all records of interim policies or directives prior to those changes taking effect.Footnote 78 On April 23, 2012, DOJ counsel advised that LCol Sansterre changed the policy by means of quarterly OC conferences and monthly conference calls in and around July 2009. Commission counsel were advised,
“[t]here are no additional written documents related to these communications.”Footnote 79 However, on the day of LCol Sansterre’s testimony to discuss the policy, additional written records of the OC conferences and conference calls were provided to the Commission.Footnote 80 Then, in the June 8, 2012, document production, and after LCol Sansterre had already testified on these issues, further records directly relevant to this request were delivered.Footnote 81
85. These incidents suggest a flaw in the means by which documents are searched and identified, and possibly a deficiency in the understanding of the relevance of these documents on the part of those in possession of them.Footnote 82 The frustrating disclosure problems were discussed on the record at the hearing on June 11, 2012.
86. A further instance of late disclosure involves the production of the subjects’ documents in the summer of 2012.Footnote 83 Many of these documents were clearly covered by the initial September 2011 request,Footnote 84 and they were directly relevant to the conduct of the CFNIS investigations and related activities. The documents included such basic information as the status reports for the investigations and should have been produced well before August 2012. The documents also included Sgt Bigelow’s notebook, which was never scanned into SAMPIS and would have been invaluable to the Commission and to the parties during the testimony of the fact witnesses heard between March and June 2012.
87. The delay is particularly remarkable considering subjects’ counsel were initially insistent on having all testimony completed in the spring of 2012,Footnote 85 which it turns out was a time prior to when these documents were ultimately produced.
88. These incidents provide just a few snapshots of an occasionally troubled disclosure process throughout the PIH. While there is no suggestion any individual acted improperly or any of the disclosure delays were intentional, the Commission was and remains concerned, since late production of documents has a serious impact on its ability, and the parties’ abilities, to prepare for witness testimony.Footnote 86
89. Whether there is a strict legal right to receive documents in advance of a witness’ testimony, receiving documents on the eve or the morning of such testimony means a scramble to assimilate new information and the possibility of missing implications or nuances, which only become clear with sufficient time for review or comparison to other evidence. This impact is even greater when a particularly relevant document is produced for witnesses who have already testified. Ultimately, the truth-seeking function of the Commission is impaired when relevant and important information does not come to light in time. It is inevitable errors or oversights will occur during the process of reviewing and producing many thousands of documents, but disclosure problems such as these can raise doubts about the completeness of searches and, in particular, the reliance which can be placed upon assurances that all relevant documents have been produced.Footnote 87
90. In light of these concerns, the Commission urges the greatest diligence be exercised in responding to document disclosure requests, so complete and comprehensive searches are undertaken in a timely manner. The Commission urges Government counsel to obtain the necessary assurances to confirm these searches have been completed before advising the Commission all requested documents have been produced or no such documents exist.
91. Beyond the timing and thoroughness of disclosure, the Commission, at times, also met with resistance to its disclosure requests. This merits attention because of the potential this sort of reaction has to impact negatively on the Commission’s ability to function. In one instance, counsel for the CFPM and counsel for the DND/CF legal advisor challenged the relevance of the materials being requested and the Commission’s jurisdiction to request them.Footnote 88 As such, the Commission was asked to provide further information
“[…] regarding the relevance of the following information to the conduct of the military police subjects at issue in this matter […]”.Footnote 89 To name a few, the documents said to be of doubtful relevance included the mental health file materials requested from Dr. Mohr, documents concerning a possible suicide watch for Cpl Langridge in December 2007, records of suicide prevention training, March 2008 Base Clinic case conference records, and documents related to the personnel file review of Cpl Langridge.Footnote 90
92. The Commission agrees with the position taken by Commission counsel these comments appear to suggest it is the role of the DOJ and/or its clients to pass judgment on what is and is not relevant to the Commission’s investigation in responding to document requests.Footnote 91
93. For the reasons explained above in discussing the Commission’s jurisdiction, the issue of whether or not materials requested by the MPCC were reviewed by the MP is irrelevant to whether or not those documents should be produced to the Commission. Similarly, the topics the Military Police chose to investigate cannot constrain the topics relevant to the Commission: the Commission’s role is to determine the topics and materials the members should have investigated. It should be noted a similar position was previously advanced by the DOJ in Garrick et al. v. Amnesty International Canada before the Federal Court of Canada, where it was decidedly rejected by de Montigny J., who wrote:
[…] it is for the Commission, not the Government, to determine ultimately what documents are relevant to its inquiry. If it were otherwise, the Commission would be at the mercy of the body it is supposed to investigate. This was clearly not the intent of Parliament.Footnote 92
94. In this instance, the relevance of materials did not appear to be understood by those in charge of gathering and producing them. Because the Commission must rely on the searches conducted by those from whom it requests materials, this disconnect between their understanding of relevance and Commission counsel’s understanding is of obvious concern.
95. The Commission was also advised there were three boxes of documents concerning Cpl Langridge obtained from searches throughout DND and the CF, and while the view was expressed it was unlikely these documents were relevant, Commission counsel were invited to attend in person to review the documents.Footnote 93
96. Despite the initial opinion by the CFPM Legal Advisor and the CF/DND Legal Advisor as to the dubious relevance of the documents, the in-person review by Commission legal counsel of the three boxes of material generated a request for over 1600 pages of material. Some of the documents were likely duplicates of items already in the Commission’s possession, but the materials also yielded significant new evidence. The large volume of materials ultimately produced as a result of the review made it clear there are good reasons for the Commission and its counsel to be the judge of what is relevant to a hearing.
97. When the Commission decides to hold a PIH to investigate a complaint, the information available through documents is supplemented by oral witness testimony.
98. The Commission has the power to compel the appearance of witnesses by summons but also sought the cooperation of witnesses in advance of their testimony by inviting them to participate in pre-hearing interviews. Such interviews are of great assistance to the Commission in gathering new information and gaining insight into witnesses’ knowledge and recollections prior to their testimony. The interviews are also helpful to the Commission in determining whether or not calling a witness to appear at a hearing is, in fact, necessary. The names of people may appear on documents, which thereby suggest they have relevant information, but an interview may establish they have scant involvement in the matter or their evidence would not add materially relevant information. Pre-hearing interviews also can contribute to efficient use of time and resources by enabling Commission counsel to focus the witness’ examination-in-chief at the hearing on the most relevant topics about which the witness can assist the Commission. In addition, conducting pre-hearing interviews allows Commission counsel to provide more disclosure to the parties, at least about the expected areas to be covered with the witnesses, which in turn assists the parties in preparing for the hearing.
99. In order to facilitate cooperation and gain information from as many witnesses as possible, the Commission agreed with a DOJ proposalFootnote 94 that the pre-hearing interviews with witnesses who were represented by Department of Justice counsel (such as CF members and Crown employees) would be conducted on a confidential
“off-the-record” basis.Footnote 95 The agreement meant witness interviews would not be recorded or transcribed (apart from notes taken by Commission counsel), and the content of the interviews would not be used to cross-examine or impeach the witnesses during their testimony. For each witness who participated in a pre-hearing interview, a
“will-say” statement outlining the general topics anticipated during a witness’ testimony was disclosed to the parties. These terms were also applied to unrepresented witnesses and witnesses represented by other counsel.
100. While perhaps not ideal in terms of efficiency, the confidential pre-hearing interview format agreed to may be an inevitable cost of securing witness interviews in advance of their testimony and encouraging candour in those interviews. The trade-off is, the closed nature of the interviews does not necessarily engender public confidence in the transparency of the process.
101. Despite the Commission’s agreement to confidential off-the-record interviews to facilitate witness cooperation, not all witnesses agreed to participate in pre-hearing interviews. The Commission proposed that the subjects of the complaint be interviewed under similar terms as the non-subject pre-hearing interviews. As was their undoubted right, the subjects of the complaint did not agree to be interviewed in advance of the hearing.Footnote 96 In addition, several MP and JAG witnesses also declined to participate in pre-hearing interviews.Footnote 97 PO2 Gazzellone and Maj Bolduc, both non-subject CFNIS witnesses, refused to participate in a pre-hearing interview, as did LCdr Thomson, LCol King, Maj Fowler, LCol MacGregor and Maj Reichert, from the Office of the Judge Advocate General. DOJ counsel requested the identity of witnesses who refused to be interviewed be kept confidential. The Commission did not agree with this request.Footnote 98
102. Redactions are portions of documents expurgated by Government on the basis they are not producible to the public as a result of either a common law privilege or a statutory provision.
103. Documents may be redacted by Government agencies to remove personal information, to sever information protected by national security concerns (such as those enumerated by section 38 of the Canada Evidence Act),Footnote 99 or to prevent the disclosure of confidential communications afforded special protection by legal privileges (like solicitor-client privilege). When redactions are made carefully and judiciously, an appropriate balance can be struck between protecting sensitive information where disclosure could cause harm, and respecting the public’s right to be informed and hold the Government accountable.
104. The Commission urges the exercise of great diligence to ensure any and all redactions applied by the Government legal team to documents prior to disclosure are well-founded and appropriately confined in order to guarantee the broadest disclosure possible.Footnote 100 In this case, while there were a few instances in which redactions seemed excessive, the majority of the redaction issues encountered during the PIH were resolved through discussions between counsel and through the cooperation of counsel in reconsidering redaction decisions.
105. It should also be noted that a major portion of the redactions, which were imposed because of litigation privilege, were correspondingly lifted when the complainants discontinued their civil litigation claim against the Government.Footnote 101 Other redaction issues were resolved through creative compromises. Others still were never resolved.
106. The most vexing redaction problems occurred in the context of the ongoing issue of claims for solicitor-client privilege, which were made on a blanket basis. Because this issue took on a special importance and involved not just the redaction of documents but also extended to oral testimony as well, it is dealt with separately.
107. A sporadically recurring issue creating significant friction involved the reflexive and absolutist invocation on the part of DOJ counsel of solicitor-client privilege on behalf of the Minister of National Defence with respect to information which, at the time, appeared centrally relevant to the mandate of the Commission.
108. At the outset, it is important to acknowledge the central importance of the doctrine of solicitor-client privilege. Solicitor-client privilege applies to any confidential communications between a client and his or her lawyer made with respect to seeking or providing legal advice.Footnote 102 The privilege is a class privilege, meaning it presumptively applies in every case of such communications, and anyone seeking to have privileged information admitted has the burden of demonstrating why the communication should not be privileged.Footnote 103 There are only a few limited exceptions where the privilege will not apply or will be overridden by a court, such as in the case of legal advice intended to facilitate the commission of a crime or fraud or where the privilege would block evidence that might be the only way for an accused person to establish innocence.Footnote 104
109. The validity of the privilege and its special place in the legal system are not in issue. The functional reason for the extraordinary protection of solicitor-client privilege in our legal system is rooted in the need to protect client confidences in the context of the administration of justice in an adversarial system.
110. A client whose confidential communications to counsel could be exposed and disclosed against his or her will would be reluctant to seek legal advice or to be represented by legal counsel. The privilege promotes candour between clients and their legal advisors, enables individuals and institutions in need of advice to make fully informed decisions about how to conduct their affairs and facilitates access to the justice system. Although the protection of solicitor-client communications from disclosure is nearly absolute, the privilege belongs to the client (not the lawyer) and the client is free to waive that privilege if he or she sees fit regardless of anyone’s wishes, including those of the lawyer.Footnote 105
111. There are three principal issues comprising the Commission’s critical concerns with the solicitor-client privilege claims raised in this hearing.
112. The first issue pertains to advice received by the CFNIS subjects about the investigations. This would include, most importantly, advice potentially underlying the decision to conclude the 2010 investigation without conducting any witness interviews.
113. In the context of these hearings, it is important to bear in mind no suggestion has been made that the subjects ought to be required to waive privilege over any communication seeking legal advice regarding their own interests or their legal rights and certainly not with respect to any advice sought or received in connection with their status as subjects of the complaint. The ability of the subjects to rely on solicitor-client privilege in protecting their interests should not be second-guessed and, in any case, it would be difficult to justify overriding the claim or asking the subjects themselves to waive the privilege.
114. However, the subjects may themselves, in some cases, wish to waive privilege claims in order to explain their actions. It must be said here, should the subjects have wished to rely on legal advice received in order to explain or justify their actions, DOJ counsel would have been placed in a difficult position, considering their CF and DND clients’ position against any such waiver of privilege.
115. Treating the Minister as the sole client for the purpose of solicitor-client privilege could create significant problems for the individuals who actually sought or benefitted from the legal advice and whose interests are directly at stake in a PIH. The subjects appear to be effectively bound to insist upon such solicitor-client privilege claims advanced by their DOJ counsel because their counsel jointly represents the Minister and other Government clients. Because the Commission is properly not entitled to inquire as to any conversations between the subjects and their counsel, it – like the public – can only go on appearances. Because it cannot be known precisely whose interests are being advanced as among the many represented by DOJ counsel, when privilege claims are made, uncertainty may remain about the possibility, in some instances, the subjects’ ability to answer the allegations made against them might have been prejudiced.
116. Given the fact it is absolutely clear this type of information will often be central to the Commission’s mandate during a public interest hearing, consideration may need to be given to the development of a solution to allow the Commission to review the information without making it public and to fully and fairly assess the subjects’ conduct in the proper context.
117. The second issue of concern relates to solicitor-client privilege claims over advice received by CF members during the course of the events under investigation and which was known to CFNIS members, or should have become known, in the course of a thorough investigation. What was sought in this hearing was access to information about a number of CF decisions relevant to the Fynes’ complaints that may have involved legal considerations. Among these decisions were the CF decision not to mount a suicide watch and its decision to recognize Ms. A as Cpl Langridge’s Primary Next of Kin (
“PNOK”). Each of these decisions was clearly and centrally relevant to the police investigations being complained about, and any legal considerations would be similarly relevant to the Commission’s assessment of the reasonableness of the investigations themselves. Most of the information being sought was either before the investigators in the course of their investigation or could have been available to them.
118. In the present case, the Minister claimed a broad and categorical privilege with respect to any legal information whatsoever either in the documents – where it was redacted – or in the oral evidence.
119. The Commission acknowledges and appreciates the general argument that, if solicitor-client privilege was routinely waived or pierced, this could have a negative impact on the Government’s ability to have candid discussions with its advisors.Footnote 106 However, the Commission sought limited waiver from the CF and the Government of Canada exclusively, and it is the position taken by the CF and the Government that causes concern. Some of the privileged materials were provided directly to CFNIS investigators by counsel as legal advice, while others were disclosed as documents containing legal advice previously obtained by members of the Regiment. In both cases, a perverse outcome seems likely when the Commission is categorically denied the same documents and communications as were freely disclosed to CFNIS members.
120. The third issue involves questionable privilege claims made during the testimony of counsel working for the office of the JAG when asked for their individual views about what the law was. The breadth of the objection is illustrated in the testimony of Maj Rodney Fowler in relation to the Commission’s efforts to understand the CF perspective on the legal principles governing the administration of deceased soldiers’ estates – a question at the heart of the Fynes’ complaints about the 2009 investigation. Here, the position of DOJ counsel appeared to be that even asking the witness the meaning of
“next of kin,” as understood at the time by the CF in connection with the administration CF members’ service estates, would violate solicitor-client privilege.
121. DOJ Counsel went further and also contended that even asking the witness to provide basic factual information about whether or not Assisting Officers were entitled to approach his office for legal advice constituted an improper
“indirect” attempt to adduce privileged information concerning what advice was given and to whom.Footnote 107 The DOJ and JAG view appeared to be that answering these questions would run the risk of improperly disclosing any legal advice that had ever been given on the topic within the JAG branch. This was exemplified by Maj Fowler’s repeated assertion that answering questions about legal matters within his expertise would cause him to
“have to opine” on a legal issue, which fell within the JAG mandate to advise the CF,Footnote 108 and thus he could not answer
“because it would disclose a solicitor-client confidence.”Footnote 109
122. On May 23, 2012, the Commission heard submissions on the issue of whether it had jurisdiction to make rulings on questions of solicitor-client privilege. DOJ counsel made extensive submissions on this point but, given the scope of the motion being argued, was not in a position to make submissions on the validity of the objections she made during Maj Fowler’s testimony. She requested, in the event the Commission determined it did have jurisdiction to make rulings on solicitor-client privilege, submissions then be heard on the propriety of the objections.Footnote 110
123. The Commission ultimately did not make any determinations on this question and, accordingly, has not heard submissions on the validity of the claims themselves. As such, there may be good reasons justifying invoking solicitor-client privilege claims in this matter, of which the Commission is unaware. However, the Commission continues to have great difficulty with these claims at face value. Surely, solicitor-client privilege cannot apply to the CF’s understanding of the law it was applying. It cannot be the case the CF was entitled to administer military estates on the basis of legal interpretations, which were or could be kept from the public, thereby creating the impression the CF was entitled to administer a
“secret law” concerning military estates touching real lives and real families.
124. In the Commission’s opinion, there is no genuine conflict between a lawyer’s duty to maintain the privilege over confidential communications with clients concerning legal advice and the lawyer’s freedom to make a general public statement about his or her view of the state of the law. However, even if such a conflict did exist, this is precisely the sort of information that should be waived because it goes to the heart of the decisions made and conclusions reached by the CFNIS investigators. In cases where CFNIS investigators rely in good faith on legal information during the conduct of their investigations, they ought to be able to rely on this legal information in presenting their response to allegations made against them before this Commission. Whether or not such reliance did occur in the course of the various CFNIS investigations in this matter, the principle is an important one.
125. The positions taken in support of the broad privilege claims being asserted seem far removed from the generally understood purposes thought to underlie the privilege. Most importantly, insofar as they block access to information, which was or arguably should have been looked into during the course of the investigations being complained about, these sweeping claims seem in direct conflict with the Commission’s oversight mandate. If the Commission is to evaluate the thoroughness and technical competence of the investigations, it ought to have access to the information that was or should have been before the investigators.
126. In keeping with the spirit of public comments made by the Minister of National Defence reiterating the Government’s commitment to full cooperation with the Commission, the Commission sent a letter to the Minister on June 18, 2012, seeking a pragmatic compromise to the impasse.Footnote 111 The Commission recognized the law authorizes the Minister, as the ultimate
“client” and holder of the privilege on behalf of the Government of Canada, to waive the privilege either on a blanket basis or with respect to specifically identified communications. Rather than contending with the legal framework for the privilege claims, which involved certain very broad claims and could result in protracted adversarial proceedings, the Commission instead wrote to the Minister of National Defence requesting he exercise his discretion to waive the solicitor-client privilege claims on a limited basis.Footnote 112
127. In the past, the Minister has recognized the utility of this doctrine, and indeed granted a waiver in respect of a legal opinion related to a case before the Commission in order to facilitate the Commission’s exercise of its mandate in a public interest investigation.Footnote 113
128. The waiver sought for the current PIH would have applied only to specific communications going to the heart of the subject matter the PIH was meant to investigate. Because of potential prejudice to the subjects possibly arising from their inability to discuss the legal advice they reviewed or relied upon, the Commission also specifically requested the Minister consider waiving any claim of privilege with respect to information that might be helpful for the subjects of the complaint to explain their actions.Footnote 114
129. On June 21, 2012, the Commission received the reply from The Honourable Peter MacKay, then Minister of National Defence. The Minister declined to waive any of the claims of solicitor-client privilege and explained, the state of the law made any such waiver extremely rare. He based this conclusion on jurisprudence affirming solicitor-client privilege as critical to the administration of justice in Canada, citing a Supreme Court of Canada decision declaring that solicitor-client privilege must remain
“[…] as close to absolute as possible”Footnote 115 as supporting stringent norms to ensure its protection. The Minister concluded the Commission’s request that he waive the claims of solicitor-client privilege
[…] is neither warranted nor advisable in this case. Such a waiver would not accord with the state of the law in Canada or with the nearly absolute practice in maintaining confidentiality over communications between clients and legal advisors.Footnote 116
130. While the Commission remains of the view that there was clearly no legal impediment preventing the Minister, who claims the sole status of
“client”, from waiving the privilege, as a client may do so at any time and for any reason, the Commission also recognizes it was within the Minister’s discretion to decide to refuse the limited waiver request. However, where it is the Minister who claims the sole status of
“client” for purposes of waiver, the real question in connection with any given communication that may be capable of attracting solicitor-client privilege is: should there be a waiver of the privilege if it is needed for a full and fair hearing of the evidence and no prejudice will result? A refusal to waive solicitor-client privilege can deprive the Commission and the parties of extensive information central to the mandate of the MPCC.
131. In the event of an impasse such as arose in this hearing, the recourse, whether directly or by way of judicial review, would be to refer questions about the Commission’s jurisdiction and about the propriety of solicitor-client privilege claims to the Federal Court of Canada. Any such recourse would significantly delay the progress of a PIH – likely for many months – and would incur great cost to the Commission, to the parties, and to the Government to resolve. Such a detour inevitably would impede the Commission from being able to discharge its statutory mandate, which includes a requirement to
“deal with all matters before it as informally and expeditiously as the circumstances and considerations of fairness permit.”Footnote 117
132. As it turns out, subsequent testimony put the importance of some of the legal information being sought into a somewhat different perspective. Sgt Shannon testified he did not seek legal advice in connection with the 2009 investigation and conducted his own legal research about the Next of Kin issue.Footnote 118 In terms of the briefing he prepared for the chain of command concerning the conclusions of 2010 investigation, it is not known whether Sgt Shannon relied on the existing legal opinion obtained by MCpl Mitchell with respect to the potential offences involved. To the extent any external legal analysis or external opinion played any role in the earlier decision to close the file without conducting any investigation, such opinion could only have been based on the information that had been gathered for the file. The Commission has found this information was incomplete and contained many factual errors.Footnote 119 With respect to the 2008 investigation, the evidence indicates the investigators who did look or could have looked into the evidence never turned their minds to the issue of the authority of the CF to conduct a suicide watch or to any legalities that would have been relevant to such a decision. As well, they never interviewed any of the individuals who might have directly received legal advice on these matters.Footnote 120
133. All these factors reduced, although they did not eliminate, the importance of the content of any legal information received by the CF or by the CFNIS, in assessing the three CFNIS investigations.
134. In the final analysis, the Commission was able to discharge its oversight function with the Fynes’ complaints adequately, even without the legal information originally sought. That is a fortunate and somewhat fortuitous outcome, though it does not in any way diminish the concern with regard to the privilege claims. It would still have been preferable for a more complete examination of the issues, particularly in respect to the 2010 investigation, for the Commission to have the information. The information requested was relevant and material to the Commission’s mandate and remains so. In future cases, a similar blanket refusal by the Minister to waive privilege could have an even more serious impact on the Commission’s work.
135. The Commission continues to believe the Minister ought to consider waiver requests on a case-by-case basis and, unless there is actual prejudice, privilege ought to be waived so as to allow the Commission to discharge its oversight mandate. Where, as may sometimes be the case, the perceived risks associated with a waiver are too great, the possibility of allowing the Commission to receive the information without disclosing it publicly in order to discharge its mandate should not be discounted. The
“limited waiver” of privilege is certainly well understood in Canadian law, in that disclosure of a privileged communication for one purpose does not mean it can then be used for any other purpose.Footnote 121 Similarly, it is possible to disclose a privileged document under strict conditions and preserve the intention not to waive privilege.
136. Recent legislative developments make it clear that a limited waiver regime is entirely consistent with the great value placed on protecting solicitor-client privilege on the one hand, and police oversight functions on the other. This Commission, which was created by the National Defence Act, is modeled after the Commission for Public Complaints Against the RCMP, which was created by the Royal Canadian Mounted Police Act.Footnote 122 The Commission notes that the RCMP Act has recently been amended by Bill C-42Footnote 123 to permit the Commission for Public Complaints Against the RCMP to access information covered by solicitor-client privilege as well as other privilege claims.Footnote 124 When the amendments come into force, ss. 45.4(2) and (3) will provide that:
(2) Despite any privilege that exists and may be claimed, the Commission is entitled to have access to privileged information under the control, or in the possession, of the Force if that information is relevant and necessary to the matter before the Commission when it is conducting a review under section 45.34 or 45.35 or is conducting an investigation, review or hearing under Part VII.
(3) The entitlement to access includes the right to examine all or any part of a record and, subject to the Commissioner’s approval, to be given a copy of all or any part of a record.Footnote 125 [Emphasis added]
137. Pursuant to s. 45.41 of the amended RCMP Act, should the Commissioner of the RCMP refuse to grant the Commission for Public Complaints Against the RCMP access to the privileged information, a conciliation mechanism can be employed under which, at the Commission’s request, the Minister will appoint a conciliator (such as a former judge of the superior court of a province or of the Federal Court).Footnote 126 The conciliator will then review the privileged information and provide observations regarding the information and its relevance and necessity to the matter before the Commission. If after these observations are received an agreement concerning the privileged information cannot be reached, the parties may apply for judicial review.
138. The Commission for Public Complaints Against the RCMP will not have unfettered access to privileged information, nor is the privilege waived by virtue of accessing the privileged information. Pursuant to s. 45.43 of the amended RCMP Act, the Commission for Public Complaints Against the RCMP may not use the privileged information for any other purpose than the matter for which the access was granted, and under s. 45.47(2) may not disclose that information to anyone other than certain persons (such as the Minister, or the Attorney General if the information is required for criminal proceedings).Footnote 127 Additionally, the new s. 45.44(2) provides that whenever the Commission for Public Complaints Against the RCMP prepares a document or report for distribution, this document must first be reviewed by the Commissioner to ensure it does not contain privileged information before it can be published or distributed. Although this is a somewhat complicated and even convoluted system for reviewing solicitor-client privileged information, the amendments are an explicit recognition that a functional and pragmatic mechanism of limited waiver that facilitates the work of a police oversight body is at least possible.
BOI & SI Statements and Answers
139. It should be self-evident by now that the Commission’s oversight mandate requires it to be able to receive and review whatever information was available to investigators in any matter the Commission has been charged with investigating. For this reason, another evidentiary hurdle for the PIH was the strict, letter-of-the-law insistence by Government counsel on the absolute inadmissibility of statements and answers given by witnesses during a BOI or SI even though this information was provided to the CFNIS investigators.
140. In the course of the 2009 Investigation, MCpl Mitchell obtained from LFWA a draft report of the BOI examining the circumstances of Cpl Langridge’s death, which included extensive findings based on the evidence heard at the BOI.Footnote 128 The findings and supporting facts were expressly tied to the testimony of particular witnesses. MCpl Mitchell also received from LFWA the report and annexes to the SI conducted concerning the administrative actions taken by the Unit after Cpl Langridge’s death.Footnote 129 These materials comprised over 575 pages and, among other things, contained the questions Maj Chenette (who conducted the SI) provided to a large number of LDSH witnesses concerning the events following the death and the answers they provided.Footnote 130
141. The documents obtained by the CFNIS were of clear relevance to the 2009 and 2010 investigations, given they provided a wealth of information on the subjects of those very cases. The documents were scanned into SAMPIS and investigators assigned to these files reviewed them. Accordingly, the BOI report and SI report and annexes were clearly relevant and important to the Commission’s work.
142. Section 250.41(2) of the National Defence Act prohibits the Commission from receiving or accepting certain evidence:
- any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence;
- any answer given or statement made before a board of inquiry or summary investigation;
- any answer or statement that tends to criminate the witness or subject the witness to any proceeding or penalty and that was in response to a question at a hearing under this Division into another complaint;
- any answer given or statement made before a court of law or tribunal; or
- any answer given or statement made while attempting to resolve a conduct complaint informally under subsection 250.27(1).Footnote 131 [Emphasis added]
143. The DOJ took the position none of the information provided by witnesses in the BOI or SI was admissible because of section 250.41(2) of the NDA. All such information was redacted, meaning large portions of the 2009 GO file were essentially just blacked-out pages. Commission counsel argued the NDA provision did not prohibit admitting the information for the limited purpose of demonstrating what information was available to the CFNIS members during their investigations, even if the statements themselves could not be used as evidence of what a witness actually said for the purpose of making findings. For a time, the matter came to an impasse.
144. A compromise was ultimately reached to admit some of the information in question through the use of agreed-upon summaries. One document included a list of the questions asked to witnesses during the SI.Footnote 132 DOJ counsel agreed with Commission counsel these should not be redacted, as they were not inadmissible under any NDA provision. The questions were admitted verbatim except where the question could identify the answers provided by a specific witness. The questions were important because of the possibility the conduct of the SI, which took place before any CFNIS investigation into the same issues, may have contaminated certain witnesses by the nature of those questions.Footnote 133 The second document contained a general summary of the information the SI witnesses provided.Footnote 134 Any information capable of identifying which witness provided what information was reworded or omitted. Neither Commission counsel nor the DOJ regarded the compromise as derogating from or contradicting their respective conflicting positions about the appropriate interpretation of section 250.41(2) of the National Defence Act.
145. Significant compromises were made in connection with this global summary. However, while the resulting documents did not wholly satisfy anyone, the compromise prevented delays and allowed important and relevant information to be received.
146. The reading of the restriction in NDA section 250.41(2)(b) proposed by the DOJ once again has the effect of depriving the Commission of the ability to examine the very materials the CFNIS had access to during the investigations. More specifically, the Commission is prevented even from examining the documents for the purpose of assessing what information the CFNIS had in its possession (rather than for the truth of its contents). Here, too, the Commission’s mandate to informally and expeditiously deal with the matters before it is relevant,Footnote 135 since the proposed interpretation of the section can add significant length, complexity and expense to a PIH (for example, by operating as a de facto
“best evidence rule” requiring the expense of hearing testimony from witnesses even when their evidence is uncontroversial). The prohibitions also mean a significant tool for testing the reliability and credibility of a witness is impeded, to the detriment of the Commission’s ability and duty to uncover the truth.
147. Notwithstanding these problematic aspects of the prohibitions in the NDA, the compromise reached in this hearing demonstrates the benefits of a collaborative problem solving approach, which mitigates some of the potentially detrimental impact of the provision. The Commission is hopeful compromise will be employed more often and, in future hearings, the Government can adopt a more relaxed approach to recognize the distinction between accepting statements for the truth of their contents and the fact the statements were made.
Specific Document Management Problems Arising from SAMPIS
148. The Commission faced a number of document management problems specifically related to the uniqueness and idiosyncrasies of SAMPIS, the electronic military police information database into which investigative materials are compiled and stored.Footnote 136 SAMPIS is a police records management system developed by the firm Versaterm, and is a customized version of a commercial system licensed to police services across North America.Footnote 137
149. These problems related to SAMPIS are distinct from the issues of production discussed earlier in this chapter. They may recur in future PIH proceedings unless dealt with specifically. A significant amount of time and attention was spent at the hearing in an attempt to understand the problems and, in some instances, answers were still lacking despite best efforts by all involved to get to the root of the issues.
Multiple versions of GO files
150. On June 26, 2012, the Commission heard evidence from a panel of witnesses called to testify about SAMPIS and the management and disclosure of GO files (the
“GO files panel”).Footnote 138 Although the opinion of members of the GO files panel was that the SAMPIS system is
“very reliable,”Footnote 139 problems undoubtedly remain. The evidence of the GO files panel made it clear, between the quirks of SAMPIS and simple human error, (which, despite the clear diligence of the CFPM liaison officer to the MPCC and all those responsible for ATIP severances and disclosure, may be inevitable) SAMPIS may produce unpredictable results. Due to the systemic nature of this issue, it can be expected the disclosure of potentially incomplete and/or inconsistent versions of GO files is likely to reoccur in future complaints. Unless dealt with, this problem will continue to make it difficult for the Commission to have confidence in the completeness of disclosure and for the Commission and the parties to adequately apprehend and assess the facts within an investigation.
151. The fundamental problem is the fact there are a number of scenarios in which pages may not print when disclosing a GO file, and there is no guarantee these omissions will be caught by those reviewing the files prior to disclosing them to the Commission. At least some of these scenarios impacted the documents provided to the Commission. Throughout the proceedings, the Commission received multiple versions of the General Occurrence Files for the investigations in question. It became apparent there were differences in the page count between the redacted and unredacted versions of the GO files, and these differences were not explainable simply because redactions were made.Footnote 140 The issues were eventually remedied through follow-up disclosure.Footnote 141
152. The Commission sought explanations for the different versions of the GO files for the three investigations produced to the Commission and to the complainants.Footnote 142 The issue was not that pages were consciously withheld, but rather that they were unaccountably missing in the disclosure.
153. The Commission’s concern is to ensure the hearing record fully reflects all of the documents included in the electronic system and available to the Military Police members involved in the investigation.Footnote 143 Consequently, the Commission sought evidence regarding the workings of SAMPIS, as well as explanations concerning the discrepancies and information about any measures put into place by the Military Police to ensure the problem of incomplete disclosure or missing pages did not reoccur.
154. According to the process in place for disclosure, when a request for a GO file is received, the CFPM liaison officer to the MPCC first contacts the relevant Military Police Unit to ensure all records connected to that file have been scanned.Footnote 144 A
“release” is then generated in the system. For MPCC disclosure, everything but information protected by solicitor-client privilege is to be included. Because the SAMPIS release function for disclosure automatically selects all items in the GO file for the release, privileged materials must be visually identified and manually de-selected by the operator.Footnote 145 This means that in the ordinary course, the expectation is all the materials that can be disclosed to the Commission should be included in the disclosure release.Footnote 146
155. There are, nevertheless, some problems created by the process with respect to privileged materials. Where information is marked as solicitor-client privileged by the individual who created an entry, but in actuality contains a mixture of privileged and non-privileged material, the Commission is concerned that entire entry may, inadvertently, not be printed. The evidence of the panel is that a whole text box would be de-selected if the entire content pertained to a legal assessment.Footnote 147 This gives rise to the possibility of errors in judgment resulting in entire entries not being produced, even though only portions should in fact have been removed. Additionally, when text boxes or other documents containing a legal opinion are redacted manually, it is clear something has been severed,Footnote 148 but in other cases, entries marked as privileged are de-selected for printing, meaning there will be no indication in the disclosed file that a document exists but was not included.Footnote 149
156. Although each entry marked as privileged is examined by the liaison officer to determine whether something has been identified improperly – or has not been identified as being privileged when it should have been – each entry is not necessarily examined by legally trained individuals to determine whether privilege claims can or should be made.Footnote 150
157. Many of the other problems with GO file production are the result of SAMPIS idiosyncrasies. Entries in a GO file often include documents scanned or added into the file.Footnote 151 This is where the system’s quirks arise. In many cases, the scanned or added documents will be missing from the final printout or PDF file disclosed.Footnote 152 Generally, the printout will include a notation indicating the pages are missing, and the operator can then print them manually.Footnote 153 However, in some cases, depending on how the document was initially attached to the file, there will be no indication in the printout the missing document existed.Footnote 154
158. What this means is, depending on a number of factors, printouts of the GO file are often incomplete, at least initially. There seems to be no easy way to ensure the integrity of the contents of the disclosed file. Discovering and restoring any missing documents involves additional steps, including a review of the entire GO file for references to files or recordings that are missing.Footnote 155 The GO files panel testified many of the discrepancies in the different versions of the GO files provided to the Commission were likely a consequence of these issues, combined with a possible failure to manually incorporate some of the missing images.Footnote 156 Nevertheless, some of the discrepancies simply could not be explained.Footnote 157
159. It is difficult to reconcile differences between GO file releases because of the way SAMPIS organizes the output. When generating a release, SAMPIS determines the order in which the documents will be printed and assigns page numbers.Footnote 158 However, the page numbers are only set out in relative terms based on the pages sent to the printer and not based on the total number of pages in the GO file. This means a given document could appear on a different page in each release and, if for any reason a folder is not selected for printing or pages do not print, there will be no skipping of page numbers to indicate any portion of the file is missing.
160. In the end, the inquiries made mean the Commission is, overall, now satisfied all of the GO file materials for the three investigations at issue in this case have been produced. The oversights that led to the failure to produce all pages initially are not surprising, given the large number of pages involved and a page reconciliation process vulnerable to human error. However, they emphasize the discouraging prospect that these problems are likely to be recurring, if not systemic. Through no fault of the individuals involved, the evidence of the GO file panel has revealed the unfortunate reality that the disclosure process is inefficient and error-prone.
161. It is of great concern there are so many opportunities for entire pages not to be disclosed despite the good faith efforts and diligence of the individuals involved. In this vein, although it is clear the SAMPIS problems were not the product of bad faith or any intent to hide information, the weaknesses in the system left the complainants with the impression the CFNIS was keeping a
“double set of files”Footnote 159 because there were such large and unexplainable discrepancies between what was found on the same pages of the different versions of the GO files they received.Footnote 160 Efforts to resolve these issues would help to prevent any future impression by victims, complainants or families that the CFNIS is trying to hide information.
162. A further SAMPIS issue, which can influence the integrity of the evidence received by the Commission, involves the dates reflected in GO file entries. The evidence of the GO file panel is a SAMPIS entry generally has more than one date assigned to it.Footnote 161 For example, an investigator may take a statement from a witness but not enter the statement into SAMPIS until several weeks later. The SAMPIS entry itself would be internally date-stamped with the current date, but the user might also assign to the entry the date the statement was originally taken. However, when the GO file is printed, only the user-assigned date is displayed.Footnote 162 It appears at the top of the GO File entry, below the author’s name, under the heading
“Related date.”Footnote 163
163. The problem that arises is the entry gives no indication to anyone reviewing the GO file of the date when the entry was made. Only the assigned
“related date” is known. This means, from the perspective of an individual reading a disclosed GO file, an entry may appear to be more contemporaneous than it is. During the testimony of MS McLaughlin, for example, he was asked to look at his typed
“Investigative activity” entry concerning a meeting with the DND and CF Ombudsman Investigator, Mr. Patrick Martel. The
“related date” field for this entry reads Friday, December 18, 2009, the date when the meeting took place.Footnote 164 MS McLaughlin could no longer recall when this entry was typed.Footnote 165 From SAMPIS metadata provided to the Commission, it was learned the entry was created on January 15, 2010.Footnote 166 This was nearly a month after the meeting.
164. MS McLaughlin prepared this entry from memory and without the benefit of notes.Footnote 167 The significance of this span of time is the fact his recollection of the meeting differs from Mr. Martel on some significant points – in particular, MS McLaughlin’s entry specifically stated Mr. Martel identified Capt Lubiniecki as negligent in appointing the wrong next of kin,Footnote 168 while Mr. Martel adamantly denies this.Footnote 169 The fact it is impossible to know simply by looking at the GO file entry when this synopsis was written means one might mistakenly assume the individual creating the document had done so nearly immediately after the events described, and thus with a fresh recollection of what transpired.
165. If it were necessary to resolve competing versions of evidence, it is possible greater weight would be assigned to the documentary evidence (or the testimony derived from it if used to refresh a witness’ recollection) based on this mistaken assumption, as compared to the weight that might be assigned if one learned an entry was written some time after the events discussed and without the assistance of notes or a recording. To be clear, there is no suggestion MS McLaughlin acted improperly in any way. The point is the Commission, as a review body, (or a trial judge in the case of a criminal prosecution) might inadvertently be misled when such entries are disclosed and the police member has no personal recollection of when the entry was typed.
166. Similarly, MS McLaughlin prepared a complaint synopsis for the 2009 GO file after he and Maj Dandurand met with the complainants. MS McLaughlin believed he created this entry
“[…] almost immediately after or the following day”Footnote 170 after the meeting, which was held November 28, 2009. The entry also has the
“related date” heading of November 28, 2009. However, based on the SAMPIS metadata information provided to the Commission in an affidavit from Mr. Beaulieu (the Military Police National Records Centre Manager, SAMPIS administrator, and a participant in the GO files panel), the complaint synopsis was actually created on January 12, 2010, a month and a half after the meeting with the Fynes.Footnote 171
167. In assessing the reliability or weight to be assigned to an entry made into the GO file, it is very relevant for the Commission to know how long after the events the entry was made and what materials were used to prepare it. Because of the way the system prints the entries, the Commission is not in a position to easily know whether entries are contemporaneous or whether more questions need to be asked about what materials were used to refresh memory. A Military Police witness could seek to refresh his or her memory of events based on a document he or she sincerely (but mistakenly) believes had been written contemporaneously, and, without making onerous additional enquiries, there would be no indication of the true date it was created.
168. The idiosyncrasies in the design and functioning of SAMPIS raise serious concerns about the integrity and accuracy of SAMPIS files being disclosed to the courts, this Commission or other third parties. Consideration should be given to working with the designer of the underlying software in order to address these concerns.
Early Years and History of Career in Military
1. Stuart Langridge was born in Surrey, British Columbia on March 26, 1979.Footnote 172 His mother and biological father were divorced when Stuart was five years old. His mother, Sheila, met Shaun Fynes when Stuart was six, and they subsequently married. Mr. Fynes was continuously in Stuart’s life from then on, so he had the benefit of a two-parent family for most of his life. He also had two brothers with whom he was close as a child.Footnote 173
2. Stuart’s early childhood was described by Mr. and Mrs. Fynes as happy. He was an energetic little boy with an infectious laugh.Footnote 174 He was fond of the outdoors, playing soccer and learned to ski at an early age.Footnote 175 He also took part in karate, football and Scouts.
3. Stuart’s involvement with the military began early in his life.Footnote 176 He had always wanted to be in the militaryFootnote 177 and, on his twelfth birthday, Mr. Fynes took Stuart to the local armoury where he joined the Irish Fusiliers Army Cadets.Footnote 178 Mrs. Fynes said,
“From that point on, Stuart was in a green uniform more often than not.”Footnote 179 Mr. Fynes encouraged him to join the reserves as soon as he was ableFootnote 180 and he enrolled on February 4, 1997.Footnote 181 When he was 21, he transferred directly from the reserves to become a full time member in the army. He was posted to the Lord Strathcona’s Horse (Royal Canadians) in Edmonton on June 1, 2000.Footnote 182
4. During his employment in the regular force, Cpl Langridge’s occupation was as a crewman.Footnote 183 A crewman is an armoured soldier who operates and maintains armoured fighting vehicles including their weapon systems and communications equipment.Footnote 184 Cpl Langridge deployed overseas twice. From October 1, 2002, until April 1, 2003, he was deployed on Operation Palladium in the former Yugoslavia where he was a Coyote (armoured reconnaissance vehicle) driver in an infantry battle group.Footnote 185 From August 9, 2004, to February 10, 2005, Cpl Langridge was deployed on Operation Athena in Kabul, Afghanistan.Footnote 186 On that mission, he worked as a Coyote gunner on a reconnaissance squadron.Footnote 187 He was also deployed from August 14 to November 1, 2003, as part of Operation Peregrine assisting the British Columbia government in its efforts to fight forest fires.Footnote 188
5. Cpl Langridge did very well as a soldier. At the time of his re-engagement with the military in December 2005, Cpl Langridge was described by his troop leader as having
“performed extremely well” in his prior employment with the CF, as being
“dedicated, loyal and motivated” and a
“definite asset to the CF.”Footnote 189 In his last personnel evaluation report for the period ending March 31, 2007, Cpl Langridge’s supervisor wrote he was
“a very reliable soldier who completed all tasks given to him on time and to a high standard” and he
“consistently approached his duties with a vigour and professionalism that sets an example for junior soldiers.”Footnote 190 In the last training course he took in March 2007, even though he did not complete it due to medical concerns, the course officer described Cpl Langridge as
“demonstrat[ing] above average leadership potential,”
“having an extremely positive attitude” and stated,
“his overall performance was excellent.”Footnote 191
March 2007 to June 2007: Cpl Langridge’s Declining Health and Its Consequences
6. Prior to March 2007, Cpl Langridge was generally a fit and healthy young man.Footnote 192 He was described in his personnel evaluation for the period ending March 31, 2006, as
“a physically fit soldier, [who] has a warrior’s attitude and continuously places in the top of the Sqn during [the] Sqn fitness competitions and attempted the gruelling Ex MOUNTAIN MAN competition.”Footnote 193
7. In terms of pre-existing medical concerns, he did have a history of complaints regarding chest discomfort since at least 2001.Footnote 194 Also, he attended an appointment at the Base Mental Health Clinic in December 2003, following his deployment to the former Yugoslavia, after he received less than optimal ratings on his enhanced post-deployment screening report.Footnote 195 In particular, he had medium risk scores on psychosocial stressors and alcohol problems in addition to a high risk score on the somatization index.Footnote 196 Somatization is the conversion of anxiety into physical symptoms. However, Cpl Langridge did not complete the assessment process at the clinic and no diagnosis was made.Footnote 197 In July 2005, following his deployment to Afghanistan, Cpl Langridge was assessed once again and found to be at low risk of problem drinking and to be experiencing no depression, suicidality, panic attacks or generalized anxiety.Footnote 198 However, it was noted he was experiencing major sleep disturbance.Footnote 199 No follow-up appointments were made.Footnote 200
8. In the latter months of 2006, and prior to the onset of his serious medical issues, Cpl Langridge was employed by the Headquarters Squadron.Footnote 201 The role of Headquarters Squadron is to provide support, both in the field and in garrison, to the other squadrons who are the tactical troops that operate the combat vehicles.Footnote 202 Headquarters Squadron employs CF members who, for example, are cooks, or clerks or maintain the military vehicles.Footnote 203 Cpl Langridge worked in the regimental kit shop, a store where soldiers could purchase equipment (e.g., boots, gloves, knives) and sundries such as cigarettes and snack food.Footnote 204 His work in the kit shop appears to have been intended to give him a break from the tour schedule.Footnote 205
9. At this time, Cpl Langridge was also in a stable, long-term relationship with Ms. A. They had met in October 2005Footnote 206 and, by May of the following year, she had moved in with him.Footnote 207 Ms. A described the early stages of their relationship as
“fantastic,” and Cpl Langridge as being someone who
“loved to have fun,”
“a happy guy” and he
“loved being in the military.”Footnote 208
10. The onset of Cpl Langridge’s serious medical problems seems to have coincided with the Primary Leadership Qualification (PLQ) Course he attended in March 2007. Successful completion of the course would have led to a promotion for Cpl Langridge, as the aim of the PLQ course is
“to qualify personnel to perform the duties of a MCpl within the Land Environment.”Footnote 209
11. Cpl Langridge left on the fourth day of the 34-day PLQ course due to
“medical reasons”Footnote 210 which included
“sharp pains in the chest.”Footnote 211 When he visited the Base Clinic upon his return from the PLQ, Cpl Langridge complained of, among other things, chest pain which he said he had been experiencing for over a year.Footnote 212 On subsequent visits to the clinic over the following weeks, Cpl Langridge’s doctor, Dr. Sivaprakash Rajoo, determined the pain was likely caused by anxiety – Cpl Langridge complained he had been
“under alot [sic] of stress lately” – and placed him on medication for anxiety and later, also on antidepressants.Footnote 213 Cpl Langridge’s health began to deteriorate rapidly as he complained of insomnia and night sweats as well as decreased energy and concentration.Footnote 214 Cpl Langridge also revealed he had been binge drinking because it decreased his pain and anxiety and it made him happy.Footnote 215 By May 30, 2007, Dr. Rajoo had written in the clinical notes,
“may need to consider PTSD.”Footnote 216
12. On June 12, 2007, Cpl Langridge received a referral to a psychiatrist to be assessed for PTSD versus major depressive disorder.Footnote 217 Dr. Rajoo wrote in his referral that Cpl Langridge suffered from depression and anxiety and failed to improve on medication. He also mentioned Cpl Langridge’s underlying alcohol and substance abuse disorder.Footnote 218 As described in testimony, Dr. Rajoo, and later, Cpl Langridge’s psychiatrist, Dr. Leo Elwell, considered his two illnesses to be co-morbid and to require concurrent treatment.Footnote 219
13. Sometime in May 2007, Cpl Langridge was transferred from the kit shop to B Squadron (a tank squadron) to prepare for deployment to Afghanistan.Footnote 220 It is standard procedure for any soldier deploying to an operational theatre to undergo safety-sensitive drug screeningFootnote 221 and Cpl Langridge was given a safety-sensitive drug test.Footnote 222 On June 8, 2007, the Regiment was notified Cpl Langridge’s test was positive for cocaine.Footnote 223
14. As a consequence of the positive test, Cpl Langridge was no longer able to deploy overseas.Footnote 224 He was transferred back to the kit shopFootnote 225 because, at the time, Headquarters Squadron did not deploy overseas.Footnote 226 There was some suggestion by Cpl Jon Rohmer, a good friend of Cpl Langridge, that Cpl Langridge had purposely failed the test to avoid going on tour.Footnote 227
15. In general, soldiers within the Regiment preferred to be employed within a squadron operating armoured vehicles than within Headquarters Squadron.Footnote 228 From at least one of his own comments, it appears Cpl Langridge felt assignment to Headquarters Squadron carried a stigma. He told staff at a hospital, where he was later admitted, he was humiliated to have to work in the kit shop because he had been deemed unfit for the field.Footnote 229 Cpl Langridge’s first Base Addictions Counselor (BAC), Mr. Don Perkins, confirmed other soldiers looked
“very dimly” at those who had to be taken off tour because of a failed drug test, and soldiers not able to go on tour are
“the black sheep of the family because you are not holding up your end. […] If you get dropped out, other people are going to have to pick up your slack.”Footnote 230
16. The failed drug test also led the Commanding Officer of LDSH, LCol Pascal Demers, to recommend Cpl Langridge complete counselling and probation.Footnote 231 As explained in testimony by Capt Mark Lubiniecki, the Unit Adjutant, it was common practice if a solider tested positive for drugs prior to deploying overseas to give that individual an opportunity for rehabilitation, referred to as counselling and probation. The rehabilitation would take place over a 12-month period during which the solider would seek medical treatment and be tested randomly for drug use. If, at any time during the 12-month period, the soldier failed a drug test, a recommendation would be made for release from the CF.Footnote 232
17. Cpl Langridge formally denied the use of cocaine on October 17, 2007.Footnote 233 There was a limited internal review of the test results completed on January 4, 2008, which confirmed the initial positive finding for cocaine.Footnote 234 On January14, 2008, Cpl Langridge requested the sample be re-tested by an independent civilian lab,Footnote 235 which delayed the start of the counselling and probation period.Footnote 236 At the time of his death, there is no evidence the secondary testing had been completed, and Cpl Langridge had not yet been placed on counseling and probation.Footnote 237
18. Cpl Langridge was first referred to the BAC in his May 28 and 29, 2007, appointments with Dr. Rajoo.Footnote 238 He met with Don Perkins, an addictions counsellor, over three sessions and, in his June 13, 2007 assessment, Mr. Perkins wrote there was a high probability Cpl Langridge suffered from substance dependence.Footnote 239 Mr. Perkins testified it was his recollection he presented Cpl Langridge with the option of attending residential treatment but, at that point, Cpl Langridge was not interested.Footnote 240 Instead, Cpl Langridge agreed to attend a week-long Secondary Substance Intervention Workshop.Footnote 241
19. Cpl Langridge had not yet been seen by anyone at the Base Mental Health ClinicFootnote 242 when he attempted suicide for the first time on June 22, 2007. He tried to overdose on his prescription medication as well as other medications.Footnote 243 He took the pills following an argument with Ms. A when she found cocaine in their home. When Ms. A returned home the next day, she testified Cpl Langridge told her he had not been feeling well, so he took extra pills. She testified she found pills all over the house but was not certain whether he had actually taken all the pills or had just made a mess and the attempt demonstrated he was trying to ask for help.Footnote 244
20. Following this apparent suicide attempt, Cpl Langridge attended the first day of the substance intervention workshop on June 25, 2007.Footnote 245 The aim of the program was to educate the attendees on their alcohol and drug use and where it might lead.Footnote 246 Cpl Langridge refused to return after the first day because he was
“uncomfortable with the ‘huggy feely’ stuff and did not wish to disclose any information to the other participants.”Footnote 247
21. That evening, Cpl Langridge attempted suicide for the second time in three days. He drove to a field, began to drink heavily, and ran flexible piping from the exhaust of his vehicle into the passenger compartment. He was found by friends after he sent text messages asking them to comfort Ms. A.Footnote 248
22. As a result of this second suicide attempt, Cpl Langridge was admitted to a civilian hospital for a short-term stay. His diagnosis upon discharge two days later was he suffered from an alcohol induced mood disorder and severe stress.Footnote 249
July 2007 to November 2007: Medical and Mental Health Evaluations
23. Following his second suicide attempt, Cpl Langridge took a period of sick leave and then summer vacation leave.Footnote 250 Cpl Langridge followed up with members of Mental Health Services and the Base Medical Clinic.Footnote 251 He also agreed to try one-on-one addictions counselling although he attended only three more meetings with Mr. Perkins.Footnote 252
24. In mid-July 2007,Footnote 253 Cpl Langridge was transferred from working in the kit shop to working for the Stables NCO, MCpl William Fitzpatrick.Footnote 254 The job involved taking care of the computer lab and other tasks assigned as part of the RSM’s detail such as polishing brass, collecting garbage, changing oil pans and cleaning the mess.Footnote 255 Cpl Langridge described his work as
“not a good job,”
“nothing to do.”Footnote 256 MCpl Fitzpatrick confirmed in his testimony there was not a lot of work for Cpl Langridge and he wasn’t busy.Footnote 257
25. On August 7, 2007, Cpl Langridge had an appointment with Dr. Rajoo, at which he was assessed for the appropriateness of being placed on a TCAT or
“temporary category”.Footnote 258 A TCAT is for soldiers not able to perform to the minimum set of standards for their military trade because of a medical condition.Footnote 259 When the medical condition is resolved, the soldier is removed from the temporary category and can return to their trade and full duties.Footnote 260 In Cpl Langridge’s case, Dr. Rajoo placed him on a TCAT for six months.Footnote 261 Among other things, the TCAT alerted the Unit the CF member would be given extra appointments and seen more frequently by physicians.Footnote 262 A TCAT is also a step in the process for getting a medical release from the military.Footnote 263 There is evidence Cpl Langridge intermittently expressed interest in pursuing a medical release throughout the last year of his life.Footnote 264
26. Dr. Rajoo also imposed medical employment limitations (MEL) on Cpl Langridge. MELs describe particular limitations on how a member can be employed by the unit because of a medical concern. They have to be honoured by the military Chain of Command without alteration.Footnote 265 The MELs for Cpl Langridge indicated he was
“unfit [for] military operational environment,” he was not permitted to use weapons or practice at ranges and he needed regular specialist follow-up.Footnote 266 In practice, this meant he could be at the base working half days or full days doing routine jobs, but could not go out into the field.Footnote 267
27. In August 2007, Cpl Langridge was assessed by a base psychologist, Dr. William Lai, who conducted a clinical interview, administered psychometric testing and reviewed Cpl Langridge’s medical file.Footnote 268 During the clinical interview, Cpl Langridge complained of feeling depressed most of the time and, when he was stressed, having difficulties breathing, blurred vision, dizziness, light-headedness, and chest and intestinal discomfort. He also said he was having
“horrifying” nightmares, two or three times a week, though he did not believe they were related to his tours of duty.Footnote 269 Dr. Lai made the following provisional diagnosis in his draft psychological assessment report:Footnote 270
DSM IV DIAGNOSES
Axis I: […] Major Depressive Disorder, Single Episode, Severe without psychotic features. […] Posttraumatic Stress Disorder – chronic, moderate […] Alcohol abuse.
Axis II: Deferred
Axis III: Chest pains; gastrointestinal problems; knee problems
Axis IV: Potential conflicts with common-law and coworkers; concerns regarding health of mother and brother
Axis V: Current GAF 45: some self-harm ideation, serious impairment in social and occupational functioning.Footnote 271 [Emphasis added]
28. In a case conference note dated August 23, 2007, Dr. Lai observed the psychometric testing results pointed to PTSD, but no specific traumatic incident or event had been identified and identification of such an event was required for a diagnosis of PTSD.Footnote 272 Dr. Lai testified it was
“likely” Cpl Langridge had PTSDFootnote 273 based on the information he had at this point, but further exploration was necessary to determine if a full PTSD diagnosis was justified.Footnote 274 Several follow-up appointments were made with Cpl Langridge in an attempt to complete the psychological assessment, but, in the end, the assessment was never finalized.Footnote 275
29. Cpl Langridge’s relationship with Ms. A had also been deteriorating since the onset of his health and addiction issues. According to Ms. A, Cpl Langridge began to change in 2006, with more pronounced changes occurring in 2007.Footnote 276 Over time, the state of their relationship became more volatile, marked by good days and bad days, as Cpl Langridge’s health and substance abuse issues became increasingly serious.Footnote 277 Cpl Langridge told his health care providers in the spring of 2007 he had numerous arguments with Ms. A because of his drinking,Footnote 278 and in October 2007, he told them he was having problems at home.Footnote 279 In his interviews with Dr. Lai, Cpl Langridge stated Ms. A was someone who was easily
“worked up,” had
“lots of anxiety” and had given him an
“ultimatum,” demanding he stop drinking. However, Cpl Langridge also said he was determined to keep and improve the relationship with Ms. A, and he wanted to marry her at some point.Footnote 280
30. Cpl Langridge attempted suicide for a third time on October 29, 2007. He took an unknown quantity of prescription medication at home and was taken to emergency.Footnote 281 On his discharge the following day, he was diagnosed as suffering from an alcohol-induced mood disorder as well as alcohol abuse.Footnote 282
31. Following his discharge, Cpl Langridge again met with members of Mental Health Services and members of the Base Clinic.Footnote 283 His symptoms continued unabated with clinical notes stating he had nervous pains in his chest, was stressed out, tired, confused and would wake up screaming and drenched in sweat.Footnote 284
32. On November 15, 2007, Cpl Langridge had an appointment with Dr. Elwell.Footnote 285 During the appointment, Dr. Elwell conducted a clinical interview.Footnote 286 His diagnosis was Cpl Langridge suffered from generalized anxiety disorder, major depressive disorder and alcohol abuse but most likely not PTSD. He also identified quite strong personality traits and moderate to severe stressors in Cpl Langridge’s life.Footnote 287 He treated Cpl Langridge by adjusting his medicationsFootnote 288 and suggesting individual therapy sessions.Footnote 289 Dr. Elwell scheduled a follow-up appointment with Cpl Langridge on February 19, 2008, but Cpl Langridge was in Alberta Hospital Edmonton at the time of the appointment.Footnote 290 The appointment was not rescheduled.Footnote 291
December 2007 to January 2008: Common-law Declaration and Residential Treatment Program
33. Cpl Langridge continued to visit the Base Clinic regularly and also attended individual counselling sessions with a mental health nurse three times through November and December 2007.Footnote 292 During his meeting with Mr. Perkins on November 21, 2007, Cpl Langridge requested to attend a residential treatment program.Footnote 293 Because of his deteriorating condition, Mrs. Fynes and Ms. A had staged an intervention that same month aimed at getting him to reduce or stop his substance abuse.Footnote 294 Cpl Langridge acknowledged his loss of control to Mr. Perkins, stating, once he started drinking, he was unable to stop.Footnote 295 Arrangements were made for Cpl Langridge to attend a residential treatment program starting early in January 2008.Footnote 296
34. On December 7, 2007, on one of the happier days of their relationship,Footnote 297 Cpl Langridge and Ms. A signed a CF common-law statutory declaration.Footnote 298 Ms. A testified Cpl Langridge had been asking her to sign the declaration since July.Footnote 299 The declaration required they make an appointment and attend at the base, provide identification as well as proof they had lived together for a year and then sign the declaration before a CF officer.Footnote 300 The declaration stated Cpl Langridge and Ms. A
“undertake to hold each other out as husband and wife.”Footnote 301 The declaration entitled Ms. A to the benefits the military offered spouses, for example medical insurance and travel assistance.Footnote 302 Most importantly, Ms. A agreed to sign the declaration because it would allow her to attend the spousal program at the Edgewood residential treatment centre.Footnote 303 Ms. A testified,
“it would allow me to attend treatment at Edgewood with him, something that was really important because Stuart had committed to me that I could be a part of his treatment from start to finish.”Footnote 304
35. Shortly after Christmas, Cpl Langridge went on a cocaine bingeFootnote 305 and, in the opinion of Mr. Perkins, he scared himself. At Cpl Langridge’s request, Mr. Perkins was able to move the residential treatment start date up by a week. Cpl Langridge had given his ID, car keys and credit cards to Ms. A, and Mr. Perkins noted Cpl Langridge was
“motivated to get help.”Footnote 306
36. The extent to which Cpl Langridge acknowledged his use of alcohol and drugs varied widely, but when he was admitted to residential treatment, he disclosed he had been bingeing on alcohol two to five times a week for several years. He also stated he had been using approximately two grams of cocaine daily for at least four months. In addition, he acknowledged smoking marijuana daily for twelve years.Footnote 307
37. Cpl Langridge arrived at the Edgewood Treatment Centre in Nanaimo, B.C., on January 4, 2008, but only remained in treatment for six days.Footnote 308 He withdrew from treatment after leaving group therapy sessions.Footnote 309 This led Ms. A to take some of her belongings, leave their shared townhouse and go to her parents’ condominium before Cpl Langridge arrived back in Edmonton.Footnote 310
January 2008 to March 2008: Cpl Langridge’s Precipitous Decline
38. Cpl Langridge’s substance abuse problems continued following his early departure from Edgewood. Upon his return to the Regiment, Cpl Langridge did not see Mr. Perkins again.Footnote 311 A medically ordered drug test on January 22, 2008, returned a positive result for marijuana.Footnote 312 He tested positive for cocaine and marijuana in hospital on February 2, 2008, after his fourth suicide attempt.Footnote 313 He tested positive again for cocaine and marijuana on March 7, 2008.Footnote 314 Though he did at various times in the last weeks of his life attempt to reduce his substance use, and he did seek and desire treatment, Cpl Langridge’s struggle with addictions evidently persisted until his death.
39. Cpl Langridge was also undoubtedly upset over the state of his relationship with Ms. A, telling his clinicians he was finding it hard to cope with his girlfriend leaving him, and that he was going through a divorce.Footnote 315 However, despite their falling-out, Cpl Langridge and Ms. A continued to have contact. When things were good, Ms. A would return to live in the townhouse with Cpl Langridge, but when things were bad, she would take some clothes and go to her parents’ home.Footnote 316 In clinical notes from the time, Cpl Langridge described Ms. A as calling him constantly and stated not much had changed except they were not living together.Footnote 317 Also, despite Cpl Langridge’s early departure from residential treatment and despite the volatile nature of their relationship at the time, Ms. A still attended the spousal program at Edgewood. She testified the program delved into issues of co-dependency and, because of its personal emotional content, was
“probably one of the most difficult things I have ever done in my entire life.”Footnote 318
40. After his return from Edgewood, Cpl Langridge was, at his request, moved to work in a reconnaissance squadron.Footnote 319 Cpl Langridge asked for an opportunity to work alongside his peers and demonstrate they could have confidence in himFootnote 320 – he wanted to be
“an effective soldier of the Strathconas.”Footnote 321 The move was short lived, lasting less than a week.Footnote 322 There was conflicting testimony about whether the move did not work out because the squadron commander did not feel Cpl Langridge was being a productive soldier,Footnote 323 or because Cpl Langridge felt mentally he was just not in the right space and the reconnaissance squadron was not the best place for him to be.Footnote 324 Whatever the reason, Cpl Langridge was moved back to Headquarters Squadron working for MCpl Fitzpatrick.Footnote 325 Cpl Langridge continued to work in this job until his death.
41. Cpl Langridge’s health also deteriorated even further.Footnote 326 The clinical notes indicate he told his mental health nurse he
“often thinks about hurting himself in the evenings so he won’t have to go back to work.”Footnote 327
42. Cpl Langridge’s fourth known suicide attempt was on January 31, 2008, when he tried to hang himself at home.Footnote 328 He went to the Base Clinic the next morning where he was observed to be
“tearful, curled in a fetal position, no eye contact, active suicidal ideation with plan and means.”Footnote 329 He was admitted to the RAH for a short-term stay with an admitting diagnosis of
“bizarre paranoid behaviour.”Footnote 330 While in hospital, he attempted suicide for a fifth time on February 3, 2008, by attempting to strangle himself.Footnote 331 Cpl Langridge was discharged, apparently against medical advice, the next day.Footnote 332 His diagnosis was noted as alcohol and cocaine induced mood disorder, alcohol and cocaine abuse, borderline personality disorder and antisocial traits, as well as severe stressors.Footnote 333
43. Mrs. Fynes testified she believed Cpl Langridge would finally be getting proper help after his hospital suicide attempt, and she was therefore astounded to arrive at the RAH on February 4 and find Cpl Langridge ready to leave. She described seeing a red mark on Cpl Langridge’s neck from the ligature.Footnote 334 She had a low view of the treatment offered by the RAH, describing it as
“a catch and release program” where
“people arrive drunk or stoned or whatever and they dry them out and then they kick them out. Three days and you’re done.”Footnote 335 Records from the RAH indicated the discharge was against medical advice because Cpl Langridge wanted to leave but
“Mother not willing to take [Cpl Langridge] home [with] her or take responsibility for him.”Footnote 336 Mrs. Fynes testified she did not want Cpl Langridge to leave the hospital, and felt the hospital was kicking him out.Footnote 337 She told the Commission,
“[i]f they wanted him to stay, then he wouldn’t have been leaving.”Footnote 338 However, Cpl Langridge insisted on leaving.Footnote 339 Mrs. Fynes testified she then accompanied Cpl Langridge back to the Health Unit and to the Padre’s care.Footnote 340 The padre and some members of the Base Mental Health Team were concerned that Cpl Langridge was not in fact stable,Footnote 341 and Mrs. Fynes recalled they made arrangements to have another soldier stay with Cpl Langridge for his safety.Footnote 342 On February 5, 2008, just a day after his discharge, Cpl Langridge drove himself to the Alberta Hospital Edmonton and was admitted for a 30-day stay on an involuntary basis.Footnote 343
44. After he was admitted to hospital, Ms. A and his friend, Cpl Rohmer, went to the townhouse where Cpl Langridge had been living. Ms. A described finding pills, drugs, empty beer cans and liquor bottles all over the house. More disturbingly, she also testified she found the bathtub half full of water with
“knives everywhere” as well as
“between three and five nooses made out of different things that he had obviously attempted to hang himself with” in the basement.Footnote 344
45. In mid-February 2008, this townhouse, which Cpl Langridge and Ms. A had been sharing during their relationship, was given up and the lease was terminated.Footnote 345 It was Ms. A’s testimony the lease had to be broken because they could no longer afford to pay the rent,Footnote 346 while Mrs. Fynes testified Cpl Langridge wanted to move back onto the base.Footnote 347 Ms. A removed all of her belongings,Footnote 348 and Mrs. Fynes, with the help of the Base Padre and several other soldiers, removed Cpl Langridge’s belongings, which were placed in storage at the base.Footnote 349
The Military’s Knowledge of Cpl Langridge’s Condition
46. The Regiment was not privy to the specifics of Cpl Langridge’s medical condition as his health deteriorated. The medical authorities share very little with the chain of command.Footnote 350 The chain of command received notification of medical employment limitations and medical leave, but the military medical system does not seek approval of the military chain of command to send CF members on treatment.Footnote 351
47. The military chain of command would have been aware of Cpl Langridge’s reduced work schedule as a result of his deteriorating health. Cpl Langridge was frequently on sick leave or working a reduced schedule. When his health allowed him to work, he was almost always working only half days and, with a few exceptions, only three days a week.Footnote 352 In his testimony, Dr. Rajoo agreed Cpl Langridge needed to either be off work or on a reduced schedule in order to get better.Footnote 353 While the clinical notes are not completely clear, it appears there was no period of time after May 30, 2007 – nine months prior to his eventual suicide – in which Cpl Langridge was healthy enough to be able to work more than four consecutive full days in a row.Footnote 354
48. There was also evidence members of the Regiment chain of command may have been aware of all but the first of Cpl Langridge’s suicide attempts.
49. The chain of command was undoubtedly aware of Cpl Langridge’s second suicide attempt. Cpl Langridge’s friends who received his text message and who found him in his Jeep were CF members and, after receiving the text message, they contacted the MP as well as their supervisor, who in turn contacted the chain of command.Footnote 355 The attempt resulted in a military administrative investigation (i.e., a Summary Investigation) into facts and causes. The Summary Investigation contained recommendations regarding how the Regiment could assist in Cpl Langridge’s ongoing treatment and recovery.Footnote 356
50. With respect to his third suicide attempt, there was military involvement in getting Cpl Langridge to hospital. On the morning of October 29, 2007, Sgt Anick Murrin, who was the sheriff for LDSH,Footnote 357 was asked by RSM Douglas Ross to attend at Cpl Langridge’s residence.Footnote 358 Cpl Langridge had not shown up for work or for a scheduled medical appointment that morning, meaning he was AWOL.Footnote 359 Clinical notes state he had phoned the Unit to tell them he would not be going to work because Ms. A had left him.Footnote 360 Sgt Murrin found him asleep at his home. After initially being roused, Cpl Langridge seemed unable to wake up, so Sgt Murrin contacted the Base Clinic and was told he should go to a civilian hospital.Footnote 361 She called 911 and waited with him until the ambulance came and transported him to hospital.Footnote 362 She advised the LDSH RSM, CWO Ross, of the situation.Footnote 363 In her testimony, Sgt Murrin was adamant she had not been responding to a suicide attempt and did not believe Cpl Langridge was suicidal.Footnote 364 However, Cpl Langridge’s military Unit was aware he had been admitted to the RAH psychiatric unit and even advised the Base Clinic.Footnote 365
51. Cpl Langridge attempted suicide for a fourth time at the end of January 2008 and again in hospital, a few days later, in early February 2008. Capt William Hubbard, the chaplain for the Regiment, testified Ms. A called him and made him aware of the attempt in January 2008 and, as a result, Cpl Langridge had been taken to hospital.Footnote 366 It was Capt Hubbard’s evidence he personally spoke to members of the regimental chain of command and made them aware of this attempt.Footnote 367 There was conflicting evidence from the members of the chain of command about what (if any) information they received from Capt Hubbard.Footnote 368 Capt Lubiniecki did not recall being informed of the January attempt but confirmed having been told of the subsequent attempt made while Cpl Langridge was in hospital.Footnote 369
Cpl Langridge’s Last Days
52. From February 5 to March 5, 2008, Cpl Langridge was hospitalized as a patient of the Alberta Hospital Edmonton (AHE) in the acute adult psychiatric unit.Footnote 370 His admission to hospital was the culmination of several suicide attempts over the course of the prior ten months (including a suicide attempt only days before while at the Royal Alexandra Hospital),Footnote 371 continuing drug and alcohol abuse, and serious, unresolved mental health issues. While he went to the hospital voluntarily, he was admitted for a 30-day stay on an involuntary basis because his behaviour was unpredictable.Footnote 372 He was admitted in a state of anxiety and suicidal depression.Footnote 373
53. While in hospital, Cpl Langridge’s progress was mixed. He did join the programming offered by the hospitalFootnote 374 – for example the Substance Abuse Recovery Group,Footnote 375 AAFootnote 376 and Narcotics AnonymousFootnote 377– but his attendance at programming was not consistent nor was he particularly engaged.Footnote 378 He sometimes accessed drugs while in care,Footnote 379 using his privileges to leave the grounds to visit his drug dealer.Footnote 380 About halfway through his stay, he confessed to staff he was continuing to use cocaine and, when coming down off the drug, he had increased feelings of suicidality.Footnote 381 In the early hours of February 19, 2008, Cpl Langridge either contemplated suicide or actually attempted to hang himself with a belt, but then approached hospital staff for help.Footnote 382 He stated he wanted to quit drugs, but his addiction made it very difficult.Footnote 383 As a result, he was placed under close observation,Footnote 384 meaning he could not leave the unit and a nurse had to check on him every 15 minutes.Footnote 385 However, when the restrictions were removed,Footnote 386 there was some suspicion his drug use began again,Footnote 387 and Cpl Langridge was again placed on close supervision until his departure from hospital.Footnote 388 His treating psychiatrist, Dr. Bernard Sowa, testified that while there had been some issues with Cpl Langridge, this was not unexpected in terms of his treatmentFootnote 389 and progress was made in terms of his mood and anger settling down.Footnote 390
54. While Cpl Langridge was in hospital, a psychology report was completed on the basis of clinical interviews and psychometric testing. The conclusion of the report stated:
Stuart’s history and presentation is consistent with posttraumatic stress disorder with situationally based panic attacks (i.e. going to work for the military). Currently, he is also struggling with a major depressive disorder and traits of social anxiety. Stuart also displays traits of borderline and narcissistic personality. At this time, he has very poor coping abilities relying primarily on drug and alcohol abuse with minimal insight into his psychological difficulties.Footnote 391 [Emphasis added]
55. Dr. Lori Harper, the clinical psychologist who oversaw the psychology resident who completed the report, said Cpl Langridge presented with symptoms consistent with post-traumatic stress disorder and it could not be ruled out as a diagnosis.Footnote 392 Similar to the findings of Dr. Lai from August 2007, no traumatic event was identified by Cpl Langridge, though he did allude to one, so no definitive diagnosis of PTSD could be made.Footnote 393
56. Mrs. Fynes was present for the early part of Cpl Langridge’s treatment at the AHE. She testified that
“Stuart did really well for the first few days and he was starting to make plans about what was going to happen next.”Footnote 394 He said he felt safe in the hospital, and expressed interest in moving back to the base. But shortly after that, he seemed almost too happy. Mrs. Fynes felt something was
“[o]ut of context, it didn’t fit. […] I remember driving back to the hotel thinking, Footnote 395 She phoned the ward and told a nurse she suspected Stuart had accessed some drugs because his mood and behaviour had changed quickly. Although reluctant to believe this could happen in the AHE, the nurse arranged for testing and cocaine was detected in his system.Footnote 396
“There’s something wrong here.” ”
57. During his stay in hospital, Ms. A and Cpl Langridge continued to have steady contact. Ms. A had assisted him over the phone to get to the AHE and stayed on the phone with him while he waited to be admitted.Footnote 397 Ms. A testified she visited Cpl Langridge as much as possible during this hospitalization. However, there were also occasions when Cpl Langridge specifically asked medical staff to not allow Ms. A to visit.Footnote 398
58. Towards the end of his hospitalization, Cpl Langridge expressed interest in attending an addiction rehabilitation (rehab) program.Footnote 399 This was a course of action supported by Dr. Sowa who stated in testimony,
“this is someone who definitely need[ed] treatment for his addictions problems,” and was encouraged by Cpl Langridge’s show of initiative.Footnote 400 This was also a course of action endorsed in the psychology report, which recommended,
“although Stuart’s insight is somewhat limited, he may benefit from inpatient drug treatment, such as the services available at AADAC or Henwood.”Footnote 401 Twice Cpl Langridge contacted Leo Etienne, a CF BAC, to ask if he could remain in hospital voluntarily when his 30-day committal ended, and proceed directly to a residential rehabilitation program.Footnote 402 Cpl Langridge contacted the base because, as a member of the military, he had certain responsibilities in terms of accounting for his whereabouts with the CF.Footnote 403 Furthermore, the CF would be paying the cost of the rehab program.Footnote 404 Mr. Etienne told Cpl Langridge a case conference would be held with the CF treatment team at the base to make recommendations on his continued care.Footnote 405
59. The military treatment team wanted Cpl Langridge to come back to base for a period of time prior to attending a rehab program. Cpl Langridge told Dr. Sowa he was required to spend two weeks at the base following his discharge.Footnote 406 Dr. Sowa contacted the base and confirmed this was the case.Footnote 407 This return to the Unit was referred to in the notes from the Base Clinic as a
“‘trial of good behaviour’ to see if [he was] capable of going to [an] addiction treatment centre.”Footnote 408 According to base medical personnel, the concern was Cpl Langridge had been continuing to access drugs while in hospital and needed to be stable and
“a little bit clean” prior to being sent for addictions treatment.Footnote 409 The thinking was Cpl Langridge was suitable for outpatient management and would attend individual and group counselling while at the Base.Footnote 410 In testimony, base medical personnel maintained there was no suggestion Cpl Langridge would not be sent for residential rehab eventually, though he first had to be stable, able to follow some routine, and willing to participate in the program.Footnote 411
60. Cpl Langridge expressed considerable anxiety about returning to the Regiment, telling nursing staff he was scared to leave the hospital.Footnote 412 Dr. Sowa described the events preceding Cpl Langridge’s release from hospital in the discharge summary as follows:
Our plan was to keep him in the hospital until he could be discharged directly to the military. [Cpl Langridge] certainly was not certifiable at the end of the first certificates. He agreed to stay in hospital as a voluntary patient until arrangements could be made for him to return to a drug rehabilitation program.
Unfortunately the military called as to inform us […] that they actually […] did want him back at the Garrison and that they would make their own arrangements for him to be referred to a drug rehab program. We were rather surprised by this as Stuart had indicated his willingness to stay with us in hospital so that that could be done. However based on that request he was escorted the day after his certificates expired directly to the military Garrison and handed over to his sergeant and this was done on the 5th of March 2008.Footnote 413 [Emphasis added]
61. While Dr. Sowa had no medical objection to Cpl Langridge leaving the hospital, he did state he did not initiate any return of Cpl Langridge to the base.Footnote 414 The plan had been for Cpl Langridge to remain voluntarily in hospital. It was Dr. Sowa’s recollection there was a message from the base saying essentially,
“We want him” and
“We have our program here.”Footnote 415 There is also evidence Cpl Langridge believed he had no choice but to leave the hospital and return to the base if he wanted to attend the treatment program he sought.Footnote 416 Despite Cpl Langridge’s wish to stay in hospital voluntarily and transfer directly to a residential treatment program,Footnote 417 his clinician’s support for this optionFootnote 418 and his anxiety about leaving the hospital,Footnote 419 Cpl Langridge returned to the CF base on the morning of Wednesday, March 5, 2008.Footnote 420
62. Very little is known about the actual arrangements made by the CF for Cpl Langridge upon his return to base, despite the fact Dr. Elwell, Cpl Langridge’s treating psychiatrist on the base, stated in testimony,
“we were technically on the hook to watch after him.”Footnote 421 There is conflicting evidence as to where he lived upon returning, even though he was assigned a barracks room on the base.Footnote 422 Ms. A testified he had the option of coming to live with her in her parents’ condo, but he instead returned to the base because he had been told he had to by the military.Footnote 423 It is not known whether Cpl Langridge was required to work, though the clinical notes from the hospital indicate he was told by his BAC he would not be starting work immediately and would instead be attending substance abuse groups.Footnote 424
63. Due to Cpl Langridge’s instability, some effort was made to arrange what some CF members referred to as a
“suicide watch.”Footnote 425 This consisted of compiling a list of names of CF members who would be available to
“watch” Cpl Langridge on an around the clock basis.Footnote 426 However, the list and potential watch were never implemented, in part because Cpl Langridge reportedly objected to such supervision.Footnote 427 It was also called off because Maj Earl Jared, who was the Officer Commanding of Headquarters Squadron where Cpl Langridge worked, did not agree with the measure.Footnote 428 Despite this, both Mrs. Fynes and Ms. A, stated they received assurances from Cpl Langridge’s BACs that Cpl Langridge would be watched by someone 24 hours a day.Footnote 429
64. Other details regarding what was expected of Cpl Langridge or the treatment plan put in place to stabilize him are not known. What is known is Cpl Langridge had four scheduled appointments at the Base Mental Health Unit in the two days following his return from the hospital, though he did not show up for three of those appointments.Footnote 430 There is evidence he did see BAC Dennis Strilchuk between three and five times during the period he was out of the hospital, and was provided individual counseling.Footnote 431 Cpl Langridge’s last meeting with Mr. Strilchuk was Friday, March 7, 2008, two days following his release from the hospital. Mr. Strilchuk noted Cpl Langridge had been
“totally non-compliant” in following restrictions which had been placed on him and Cpl Langridge was
“sent to his unit for close supervision.”Footnote 432 Cpl Langridge admitted to medical personnel he had been consuming alcohol and using other drugs since he was released.Footnote 433 In light of these developments, Mr. Strilchuk stated he would no longer work with Cpl Langridge and felt he could no longer help him.Footnote 434
65. Following his last meeting with Cpl Langridge, Mr. Strilchuk referred him to the Base Surgeon, Capt Richard Hannah, who met him the same morning. Cpl Langridge was upset. He complained to Capt Hannah about restrictive conditions that had been placed on him.Footnote 435 There are no details in the documentary record about the conditions Cpl Langridge was complaining about. He told Capt Hannah he wanted to return to the AHE for treatment; Capt Hannah contacted the AHE and learned that the AHE was
“full” and not accepting referrals.Footnote 436 Cpl Langridge refused to go to the RAH instead. Consultation between Capt Hannah, members of the mental health clinic and members of the Regiment, in particular the Regimental Sergeant Major CWO Ross, resulted in a series of medical employment limitations and, in the words of CWO Ross,
“control measures” being
“imposed” on Cpl Langridge.Footnote 437 The
“control measures” included a requirement to live at the Regimental Duty Centre, to sleep in the defaulters’ room, to keep the door to that room open at all times, a 2100 hrs curfew, a requirement to sign in with the Duty Officer every two hours daily and to provide a phone number where he could be reached if he left the Harvey Building (where the Duty Centre was located).Footnote 438 Cpl Langridge was also required to attend all medical appointments, abstain from alcohol and drugs, work Monday to Friday from 0800 hrs to 1630 hrs (which was half an hour beyond what other soldiers had to workFootnote 439) and wear his uniform during the normal duty hours.Footnote 440
66. According to CWO Ross, the intent behind the conditions was to provide Cpl Langridge with structure and not as punishment, although CWO Ross stated the extra work was
“just because I wanted to do that, to be quite honest.”Footnote 441 If Cpl Langridge failed to comply, he could be charged under military law, as the conditions were considered to be orders.Footnote 442 The defaulters’ room, where Cpl Langridge was required to sleep, was for CF members receiving punishment and, as part of the punishment, they were required to follow a specific and strict work and reporting schedule for a period of time.Footnote 443 Though Cpl Langridge’s conditions were, in some respects, similar to those imposed on defaulters, Capt Hannah and CWO Ross both stated Cpl Langridge was not a defaulter.Footnote 444
67. Both CWO Ross and Capt Hannah stated the conditions were agreed to by Cpl Langridge and were, in fact, welcomed by him.Footnote 445 The conditions were supposed to provide him with the structure necessary to get back to being a solider.Footnote 446 There was no time limit on how long the conditions would apply. Rather, the conditions were to be in place until Cpl Langridge
“showed he could handle himself.”Footnote 447
68. If Cpl Langridge initially agreed to the conditions, this agreement was short-lived as he very soon came to find them upsetting, onerous and restrictive. On Tuesday, March 11, 2008, less than a week after his return from the AHE, Cpl Langridge visited the Base Clinic complaining he felt like he had been thrown back into the deep end and had no idea where his life was going.Footnote 448 He stated the conditions placed on him were too hard, and he wanted them changed.Footnote 449 However, he was advised he
“must return to his unit and continue to work and see how he does” and if he was doing okay, there would be consideration of a residential treatment program.Footnote 450 When faced with returning to his Unit, Cpl Langridge stated to the clinic physician he was suicidal and he
“would rather kill himself than return to his unit.”Footnote 451 He was taken to emergency at the Royal Alexandra Hospital where it was noted he was depressed, anxious and suicidal.Footnote 452 In particular, he is quoted as saying he
“can’t take army stuff anymore.”Footnote 453 He complained he had not slept in two days, his anxiety was increased, his mood was low and he had been using drugs more frequently.Footnote 454 He was placed under close observation.Footnote 455 Cpl Langridge told Royal Alexandra staff he wanted to return to Alberta Hospital Edmonton because, during his time there, he benefited from the treatment he received.Footnote 456 Cpl Langridge remained at the Royal Alexandra for only two days, until Thursday, March 13, 2008, when he signed himself out of hospital against his treating physician’s advice.Footnote 457
69. In the days preceding his death, there is evidence Cpl Langridge had been giving away his personal belongings.Footnote 458 There is also evidence he continued to seek to have his
“restrictions lessened,”Footnote 459 in particular to have the two-hour mandatory check-in increased to three hours.Footnote 460 CWO Ross refused to change the condition, instructing Cpl Langridge he needed to show he could handle himself first.Footnote 461 Nevertheless, according to CWO Ross, there had been no issues with Cpl Langridge complying with the conditions before March 11, 2008,Footnote 462 and Capt Lubiniecki, the Regimental Adjutant, maintained the chain of command
“were happy with [Cpl Langridge’s] performance and the way he was conducting himself up to that point.”Footnote 463
70. It remains unknown to what extent Cpl Langridge had actually been complying with the conditions or to what extent he was monitored and supervised. Even though CWO Ross stated the duty staff were fully aware of the conditions,Footnote 464 the evidence suggests they were not. According to Sgt Trent Hiscock, who was the Duty Officer on the day of Cpl Langridge’s death, the only conditions actually written out and passed on from Duty Officer to Duty Officer were in a handwritten note stating the Duty Driver would drive Cpl Langridge to all his appointments and drop him off.Footnote 465 The rest of the conditions were passed on verbally and not all the conditions were known by the Duty Staff.Footnote 466 There was even uncertainty as to whether he had to personally attend every two hours to sign in, or whether it was possible for him merely to check in by telephone.Footnote 467 In fact, many members believed Cpl Langridge could simply call every two hours.Footnote 468 By his own admission, Cpl Langridge was not complying with the restrictions on alcohol and drug consumption.Footnote 469 Since the sign-in sheets for the days preceding his suicide were never found and few other records exist, his behaviour and comings and goings cannot be verified. Although Cpl Langridge’s activity was restricted to some extent, Ms. A told the Commission he had managed to visit her at her parents’ home and other locations during that time.Footnote 470 She specifically indicated that Cpl Langridge had, on some of those occasions, seen her by
“evading his caretakers.”Footnote 471 She also told the Commission that during his absences Cpl Langridge had been drinking.Footnote 472
71. Throughout this period of time, Cpl Langridge and Ms. A continued to see and call each other. Sometimes Cpl Langridge would show up at places where Ms. A was, other times they would plan to meet.Footnote 473 However, the relationship continued to be unpredictable, and Ms. A testified Cpl Langridge’s mood was very volatile.Footnote 474 A few days before Cpl Langridge’s death, Ms. A contacted Capt Lubiniecki to discuss whether, as a result of signing the common-law declaration, she would be responsible for the payment of outstanding debts if Cpl Langridge defaulted on payment.Footnote 475 Capt Lubiniecki testified Ms. A told him she still loved Cpl Langridge but needed a break from him.Footnote 476 Capt Lubiniecki stated Ms. A had asked if the military was able to place a restraining order on Cpl Langridge, and he had informed her that was not possible, but he did provide her with the name of a lawyer.Footnote 477 Capt Lubiniecki also testified, following his phone conversation with Ms. A, he spoke to Cpl Langridge, explained Ms. A needed a break from him, and Cpl Langridge agreed to give her the space she needed.Footnote 478 In testimony, Ms. A agreed she had discussed separating for a few days from Cpl Langridge, but stated it was not her intention they would separate permanently.Footnote 479 She also testified she did not recall discussing the issue of a restraining order with anyone around that time.Footnote 480 There is mention in Cpl Langridge’s medical records he had reportedly been harassing her.Footnote 481 Ms. A stated she and Cpl Langridge had continued to discuss plans for the future right up until the day before he died, including plans for Ms. A to visit Cpl Langridge when the CF arranged for him to attend a second residential treatment facility.Footnote 482 Cpl Langridge’s medical records indicate he attended the Base Clinic and renewed six prescriptions on March 14th. The prescribing physician is noted as Dr. Robin Lamoreux.Footnote 483
72. On Saturday, March 15, 2008, Cpl Langridge signed in at the Duty Centre at 0700 hrs and again at 0905 hrs.Footnote 484 It was indicated on the sign-in sheet he was in the room he had been given in the single quarters (colloquially known as the
“shacks”).Footnote 485 There was conflicting evidence about his activities, but there was evidence Cpl Langridge’s mood was brightFootnote 486 and he may have, on his own initiative, shovelled the front walk to the Harvey Building since it was snowing.Footnote 487 At 1100 hrs, he signed in again and had a conversation with the Duty Officer Sgt Hiscock.Footnote 488 Cpl Langridge told Sgt Hiscock there had been a change in his medications. In addition, he said the medications had not taken away his nightmares last night and, as a result, he was very tired.Footnote 489 There also was some conversation about a movie Sgt Hiscock had seen.Footnote 490 Cpl Langridge then went back to his room in the shacks.Footnote 491
73. The day of March 15, 2008, many CF members were attending the funeral of Trooper Hayakaze, who had been killed in Afghanistan,Footnote 492 but Cpl Langridge remained at LDSH and went to the shacks, ostensibly to do laundry.Footnote 493 The sign-in sheet records Cpl Langridge signed in again at the Duty Desk at 1235 hrs.Footnote 494 When he did not show up for his next sign in, efforts were made to contact him by phoneFootnote 495 and by knocking on the door of his room in the shacks.Footnote 496 When he did not respond, the master key was obtained, and entry was gained to the room.Footnote 497 At 15:20, Cpl Langridge was found dead, hanging from the chin-up bar in his room.Footnote 498 On his desk was a suicide note, which read as follows:
Sorry but I can’t take it anymore. I love you Mom, Shaun, James, Mike, Grandma, Aunti, Tom. Please know that I needed to stop the pain.
PS I don’t deserve any kinda fancy funeral just family. Ty.Footnote 499
Stuart Langridge’s Death: The Fallout
74. Mr. and Mrs. Fynes were informed of Cpl Langridge’s death in a phone call from LCol Demers,Footnote 500 on the evening of March 15, 2008. The notification was done in accordance with the Personal Emergency Notification (PEN) form completed by Cpl Langridge and on file at the Regiment.Footnote 501 Cpl Langridge had named his parents as his emergency contacts and also as his next of kin.Footnote 502 A short time after the phone call, the Fynes were notified in person by a CF notification team.Footnote 503
75. Ms. A was also formally advised of the death. Unlike the Fynes, she had not been named by Cpl Langridge as either a contact or as a next of kin on the PEN form at the Regiment.Footnote 504 The Regiment, however, determined she should be contacted.Footnote 505 Since she was located in Edmonton, LCol Demers advised her in person after he had contacted the Fynes.Footnote 506
76. During the notification, neither the Fynes nor Ms. A were told Cpl Langridge had left a suicide note. The note had been found in Cpl Langridge’s room by the CFNIS members who responded at the scene. The Fynes were not advised for another 14 months that a suicide note even existed.Footnote 507
77. Shortly after the notification, both the Fynes and Ms. A were assigned Assisting Officers (AO) by the CF. The role of the AO was to provide a link to the military and help the family navigate the military’s system of benefits and rules surrounding the death. This included explaining the benefits provided by the CF for the funeral. Footnote 508 Mr. and Mrs. Fynes lived in Victoria and their AO was Maj Stewart Parkinson, who was also located in British Columbia.Footnote 509 Ms. A’s AO was 2Lt Adam Brown who was located in Edmonton and was part of LDSH.Footnote 510
Appointment of Next of Kin
78. In making arrangements, the military assumed the
“Primary Next of Kin” (PNOK) was entitled to plan Cpl Langridge’s funeral.Footnote 511 (Although legally distinct, the documents and the testimony at the hearings sometimes refer simply to
“Next of Kin” (NOK) interchangeably with PNOK.) Initially, the Fynes were identified as Cpl Langridge’s PNOK and SNOK (
“Secondary Next of Kin”) in correspondence sent within the CFFootnote 512 as well as during the initial briefing Maj Parkinson received as the Fynes’ AO.Footnote 513 They were also identified as his PNOK and SNOK on the PEN form at the Regiment. The Fynes began to provide Maj Parkinson with instructions concerning what they wanted for the funeral.Footnote 514 However, on March 17, 2008, two days after Cpl Langridge’s death, they were informed by Maj Parkinson the Regiment had decided Ms. A was Cpl Langridge’s PNOK.Footnote 515 Mr. and Mrs. Fynes were deeply upset and saddened when confronted with this decisionFootnote 516 as they were told final decision making authority over funeral planning now lay with Ms. A,Footnote 517 whom they considered simply to be Cpl Langridge’s ex-girlfriend.Footnote 518
79. How the Regiment made the decision to assign PNOK status to Ms. A is not known precisely, though it seems to have been based on the common-law declaration which Cpl Langridge and Ms. A had signed in December 2007. An email from LCol Demers on the morning of March 17, 2008, stated,
“Given the docs on file, it seems [Ms. A] is PNOK, so we need to follow her wishes.”Footnote 519 In a casualty coordination meeting held shortly afterwards and attended by senior members of the Regiment and a military lawyer (Assistant Judge Advocate General, or AJAG), further discussions took place about who was PNOK.Footnote 520 Later that day, Capt Lubiniecki wrote in an email
“[the] AO in Victoria will inform [the] parents that [Ms. A] is the PNOK.”Footnote 521 While the Fynes and Ms. A were encouraged to work together,Footnote 522 it was understood from that point forward if there was disagreement about decisions regarding the funeral, the Regiment would accede to Ms. A’s wishes.Footnote 523
80. In October 2008, many months after the funeral, the Fynes discovered Cpl Langridge had specifically named them as PNOK and SNOK on the PEN form, which was in the possession of the Regiment.Footnote 524 This form had been part of Cpl Langridge’s file when the PNOK decision was made.Footnote 525 Based on this revelation, the Fynes were confused and upset over what they believed to be the Regiment deliberately ignoring the explicit written wishes of their son for the Fynes, and specifically Mr. Fynes, to act as his PNOK and therefore plan his funeral.Footnote 526
81. On March 20, 2008, three days following the PNOK decision, four partially completed and previously unknown administrative documents belonging to Cpl Langridge were foundFootnote 527 behind a filing cabinet during some routine house cleaning. Footnote 528 Each of the
“found” documents related to the post-death administration of Cpl Langridge’s affairs. The
“found” documents were new versions of a PEN form,Footnote 529 a Designation of Memorial Cross Recipients form,Footnote 530 a willFootnote 531 and a Supplementary Death Benefits (SDB) form.Footnote 532 None of the forms was fully completed.
82. Prior to the discovery of these
“found” documents, the Regiment was in possession of a series of fully completed and valid forms belonging to Cpl Langridge including the PEN form, an SDB form and a will.Footnote 533 The
“found” documents were significant because Cpl Langridge had changed the executor of his will from his friend David White to Mr. Fynes, changed the beneficiary of his SDB from Ms. A to Mrs. Fynes and again had named his parents as his NOK on his PEN form.Footnote 534
“found” documents were turned over to Capt Lubiniecki on March 21, 2008,Footnote 535 and forwarded to the Office of the Director of Estates in Ottawa on March 26, 2008.Footnote 536 Capt Lubiniecki was advised by Suzanne Touchette, a Service Estate and Elections Officer for the JAG, the
“found” documents were of
“no value as they are unsigned.”Footnote 537 Some months later, this initial position was reversed and the
“found” will designating Mr. Fynes as executor was deemed by DND to be valid pursuant to the Alberta Wills Act.Footnote 538
84. The Fynes were told about the existence of a second will in an email from Maj Jared on March 26, 2008, but they were only advised that Mrs. Fynes was the beneficiary.Footnote 539 Mr. Fynes was not advised there was any change in the estate executor until June 17, 2008,Footnote 540 almost three months after the second will was found. In a letter dated June 19, 2008, Mr. Fynes was formally advised the
“found” will was valid, and he, in fact, was the executor of the estate.Footnote 541
85. With respect to the actual planning of Cpl Langridge’s funeral, Ms. A attended a local funeral home with her AO, 2Lt Brown, and her and Cpl Langridge’s mutual friend, Cpl Rohmer.Footnote 542 The funeral director testified it is the executor who plans the funeral.Footnote 543 The executor, according to the first will, was Mr. White. In a telephone conversation, he told the funeral director he did not wish to be involved in funeral planning.Footnote 544 When the funeral director asked Ms. A about Cpl Langridge’s parents, he was told his father was not involved and his mother lived out of province and would not be coming to make funeral arrangements.Footnote 545 2Lt Brown told the funeral director Ms. A was Cpl Langridge’s common-law wife,Footnote 546 and the funeral director satisfied himself Ms. A and Cpl Langridge had cohabited for two years.Footnote 547 It was the funeral director’s evidence he was told by 2Lt Brown for funeral arrangements,
“It’s [Ms. A] that you will be dealing with.”Footnote 548
86. The funeral director also received information, possibly from 2Lt Brown,Footnote 549 possibly from Ms. A,Footnote 550 which he used to complete the Registration of Death.Footnote 551 However, the information he received was incorrect. This led to several different versions of the Proof of Death being produced over the course of the next few weeks, each containing slightly different but still legally or factually incorrect information.Footnote 552 Finally, more than a year later, the Fynes had the information on the Registration of Death concerning Cpl Langridge’s marital status, his place of residence and the name of the informant corrected by means of an ex parte court order.Footnote 553
87. In planning the funeral, Ms. A consulted with the Fynes, seeking their input on some of the decisions.Footnote 554 However, the final decisions were ultimately made by Ms. A. In particular, the Fynes acceded to Ms. A’s choice of flag to be draped on the casket so Ms. A would agree to Cpl Langridge’s remains being buried rather than cremated.Footnote 555 The Fynes also had other requests, including a closed casket, but they ultimately acquiesced to Ms. A having a viewing of the body prior to the funeral.Footnote 556 It was particularly upsetting for the Fynes because, while they had asked for and were presented with Cpl Langridge’s beret and medals,Footnote 557 it was Ms. A who received the flag from his casket.Footnote 558
88. The funeral for Cpl Langridge was held on March 26, 2008, at the chapel on the Base.Footnote 559 Since neither the Fynes nor Ms. A were aware Cpl Langridge had left a suicide note requesting a small, family funeral, there was a large, military funeral.Footnote 560 The interment for Cpl Langridge was held on March 29, 2008, in Victoria and was attended by, among others, the Fynes and Ms. A.Footnote 561 Their relationship had been slowly deteriorating, and, by the end of the interment, all communications between Mr. and Mrs. Fynes and Ms. A had irrevocably broken down.Footnote 562
The Fynes’ Complaints and CF Responses
89. In the aftermath of Cpl Langridge’s death, there were three CFNIS investigations. The first began immediately following Cpl Langridge’s death and was tasked to investigate the circumstances of his death.Footnote 563 The second CFNIS investigation began in late 2009 and was tasked to investigate whether LDSH leadership had been negligent in the performance of their military duty in assigning PNOK status to Ms. A after Cpl Langridge’s death.Footnote 564 The third investigation began in May 2010 and focused on whether the LDSH chain of command and the medical community were negligent in failing to provide appropriate medical treatment and care to Cpl Langridge, thereby contributing to his death.Footnote 565
90. There were other administrative proceedings relating to Cpl Langridge’s death. It was a requirement, following Cpl Langridge’s death, that an internal CF administrative investigation be conducted.Footnote 566 In this case, both a Board of Inquiry (BOI) and a Summary Investigation (SI) were held. These are internal CF fact-finding processes involving gathering documents and interviewing witnesses and, in the case of the BOI, compelling testimony from witnesses.Footnote 567 Generally, a BOI is a more formal process to investigate more significant issues.Footnote 568
91. The BOI was convened after much delayFootnote 569 on January 13, 2009,Footnote 570 almost ten months after Cpl Langridge’s death. The mandate of the BOI was
“to investigate the cause and contributing factors that may have lead (sic) to the death of Cpl Langridge and identify applicable preventative measures.”Footnote 571 The Fynes attended the BOI hearing and were of the strong opinion it was tainted by bias in favour of the military and failed to address many of the questions relevant to Cpl Langridge’s death.Footnote 572 The BOI made findings of fact, as well as recommendations, generally exonerating the CF of any responsibility in connection with Cpl Langridge’s death.Footnote 573 While the BOI report was first submitted for the necessary approvals on June 1, 2009,Footnote 574 the report has yet to receive final approval by the Chief of the Defence Staff.
92. It was as the result of an inquiry by the President of the BOI that the existence of Cpl Langridge’s suicide note first came to light.Footnote 575 There was a delay of several weeks between the initial inquiry and the actual disclosure of the existence of the note to the Fynes on May 22, 2009.Footnote 576 The Fynes were informed of the existence of the suicide note by the BOI President and not by the CFNIS, which had stored it as
“evidence” and subsequently apparently forgot about its existence.Footnote 577
93. The terms of reference for the SI were issued June 22, 2009.Footnote 578 They state the SI was being conducted
“in anticipation of litigation.”Footnote 579 By this time, the Fynes had hired legal counsel in an effort to resolve their outstanding claims against the military and had, with their lawyer, met with legal representatives from the CF.Footnote 580
94. The mandate of the SI was focused on investigating the administrative procedures followed by LDSH after Cpl Langridge’s death.Footnote 581 The report generally concluded there was nothing wrong with the existing CF forms or procedures.Footnote 582 In his capacity as the reviewing authority for the SI report, BGen K. A. (André) Corbould wrote:
I concur with the findings of the Investigation Officer and that the various possible administrative errors that occurred following the death of Corporal Langridge were not caused through intentional neglect nor that any documentation was mismanaged by a staff member at the Lord Strathcona’s Horse (Royal Canadians) (LdSH(RC)), contrary to current regulations.Footnote 583
95. The Fynes had been advised of the possibility of an SI in an email from Maj Lubiniecki on April 29, 2009, indicating that he understood there would be a summary investigation conducted by the Regiment.Footnote 584 They heard nothing further about an SI until their May 5, 2010 CFNIS interview with Maj Dandurand and MCpl Mitchell, when Maj Dandurand suggested that the SI had looked into administrative issues following Cpl Langridge’s death. Mr. Fynes stated,
“Sorry, and I'll thank you both for sharing it with us, because two years-plus, you can understand our frustration, because nobody ever briefed us or told about that Summary Investigation.”Footnote 585
96. The SI had been designated solicitor-client privileged and was not to be disclosed or released to any person outside of the CF.Footnote 586 Indeed, BGen Corbould wrote,
“this topic has been dwelled into enough, and [I] do not believe there to be any benefit of disclosing any of the SI to the Corporal Langridge family, [as] it simply would not provide or console them in any manner.”Footnote 587 The Fynes did not receive a copy of the SI report until the MPCC public hearing.
97. As time went on, the Fynes grew increasingly frustrated with what they felt was a lack of answers concerning Cpl Langridge’s death and the subsequent administrative aftermath. They raised a number of issues including questions about the adequacy of the medical care Cpl Langridge had received and his treatment by the military, the storage and return of Cpl Langridge’s personal property, the retention of Cpl Langridge’s suicide note, and the mishandling of Cpl Langridge’s personal paperwork.Footnote 588 They sought, and ultimately received, disclosure of the contents of the 2008 Sudden Death Investigation file, but voiced concerns about its contents and about the redactions made to the copy disclosed to them.Footnote 589
98. The Fynes contacted the DND/CF Ombudsman for assistance.Footnote 590 They maintained ongoing contact with the Regiment and the BrigadeFootnote 591 and did receive assistance regarding their outstanding concerns from DND Casualty Support,Footnote 592 as well as meeting with the CFNIS as part of their ongoing investigations.Footnote 593 With the exception of their contact with the Ombudsmen, most, if not all of these interactions were problematic from the Fynes’ point of view.
99. On August 31, 2009, the Fynes were successful in having Cpl Langridge’s registration of death corrected.Footnote 594 They directed their lawyer to attempt to get reimbursement from the CF for the legal fees they paid to achieve this outcome.Footnote 595 In September 2010, the Fynes’ lawyer received a letter from legal counsel for the CF advising the Fynes to no longer
“have any further direct contact with members of the Canadian Forces, Department of National Defence or Department of Justice with respect to any matters relating to the claims [Mrs. Fynes] has demanded from the Crown.”Footnote 596 This led to Mrs. Fynes coming to Ottawa and holding a press conference in which she denounced the lack of progress in resolving the outstanding issues related to her son’s death.Footnote 597 The Chief of the Defence Staff responded with a public apology about the delay in releasing the suicide note as well as about the poor communications with the Fynes regarding Cpl Langridge’s estate.Footnote 598 He later clarified he was specifically not apologizing for the medical care Cpl Langridge had received from the CF.Footnote 599
100. In the fall of 2010, a senior officer, Col Gerard Blais, was appointed by the Minister of National Defence to act as the single point of contact to respond to the Fynes (and other families) who had
“expressed concerns for BOI/NIS and other investigations and concerns related to the death of their loved ones.”Footnote 600 Col Blais did attempt to provide information to the Fynes about all of their remaining concerns,Footnote 601 but, in their opinion, the answers received did not sufficiently address their questions.Footnote 602 The Fynes went on to file a complaint in January 2011 with the MPCC concerning alleged deficiencies in the three CFNIS investigations into the events before and after Cpl Langridge’s death.Footnote 603 That complaint led to the Public Interest Hearing, which forms the basis for this report.
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