Table of Contents

1. Background
2. Issues
3. Chairperson’s Findings Subsequent to the Investigation
4. Chairperson's Findings Having Considered the Notice of Action from the CDS

Executive Summary

In July 1999, the Canadian Forces Provost Marshal1 (CFPM), Brigadier-General (BGen) Patricia Samson, directed that the Canadian Forces National Investigation Service (CFNIS) begin a criminal investigation into several events relating to the deployment of Canadian Forces (CF) personnel in Croatia from 1993 to 1995. In early August 1999, BGen Samson was made aware of allegations that CF members had put naphtha gas in the coffee of ex-Warrant Officer (WO) Matthew Stopford [...] protected [...] in Croatia in 1993. She directed that the CFNIS task force investigate these coffee tampering allegations. To assist with the investigation, and in recognition of the need for transparency of process and independent legal advice, the task force called upon a lawyer (described by the CFNIS as “external counsel” and referred to as such in this report) from outside the Department of National Defence (DND). The services of this lawyer were provided under an agreement with the federal Department of Justice (DOJ).

On May 30, 2000, the results of the investigation were made public at a press conference held at National Defence Headquarters (NDHQ). The press conference was conducted on behalf of the CFPM by the task force commander, RCMP Inspector (Insp) Russ Grabb,2 who had been seconded to the CFNIS as the Officer in Command (OIC) Sensitive Investigations Detachment (SID), and by Captain (Capt) Robert Lanouette, spokesperson for the CFPM. A PowerPoint slide presentation at the press conference indicated that:

• Charges in respect of the coffee tampering allegations would have been laid under section 129 of the National Defence Act (NDA) – an act to the prejudice of good order and discipline of the Canadian Forces – but a three-year limitation period prevented such charges from being laid because of the passage of time since the offences were committed (the three-year limitation period has since been repealed);
• It could be established that certain substances were placed in coffee intended to be consumed by ex-WO Stopford, [...] protected [...]; and
• Based on an external legal opinion on the evidence and the task force’s own analysis of the facts, there was insufficient evidence at that time to refer the Stopford case to a provincial prosecution service for a criminal prosecution.

The SRG was composed of BGen Sharpe, Dr. William Bentley and Dr. Allan English. As well, Professor Edward Ratushny was appointed as an observer on behalf of the DND/CF Ombudsman. The SRG began its work on June 5, 2000, and completed its report on June 16, 2000. The report, signed by BGen Sharpe, found no grounds to support the position of the CFNIS task force that legal advice precluded the laying of criminal charges in respect of the coffee tampering allegations. Accordingly, the SRG report recommended that the task force findings be referred to a provincial Crown Attorney to determine whether criminal charges should be laid. The CDS accepted this recommendation and requested that the Director of Military Prosecutions (DMP) forward the CFNIS investigation report to the appropriate provincial prosecutorial authority for review of action.

The SRG report went on to state that it was “difficult to avoid the conclusion that the CDS received [from the CFNIS] inadequate and misleading advice with regard to the laying of criminal charges.” Moreover, the report stated that the CDS then repeated the “inadequate and misleading advice” of the CFNIS at the June 1, 2000, press conference held to announce the formation of the SRG. This, the report concluded, led to the Canadian public being misled about the possibility of criminal charges being laid in the case.

The CFPM disagreed with the SRG’s conclusions regarding the CFNIS. In a memorandum dated June 20, 2000, and entitled “Special Review Group – Operation Harmony,” the CFPM rebutted the SRG report. The memorandum categorically rejected any notion that the CFNIS had misled the CDS or the Canadian public. The CFPM sent the memorandum to the Vice Chief of the Defence Staff (VCDS). That same day, the CFPM, in correspondence addressed to the Chairperson of the Military Police Complaints Commission (MPCC), requested that the MPCC investigate whether the CFNIS had misled the CDS and the Canadian public.

On June 29, 2000, ex-WO Stopford submitted a related complaint to the MPCC. He was concerned about apparent discrepancies between the information reported to him by CFNIS investigators and that reported by the chair of the SRG about the number of “confessions” by individuals who had apparently attempted to poison him. As well, he was concerned about evidence that military police and the chain of command knew of the alleged poisoning in 1993, yet took no action. He stated that allegations made by the CFNIS and NDHQ may have been inaccurate in material ways, and that these inaccuracies had the effect of devastating his reputation.

On June 27, 2000, the Chairperson of the MPCC wrote to the CFPM that she had decided, pursuant to subsection 250.38(1) of the NDA, that it was in the public interest to cause the MPCC to hold an investigation into the conduct of the CFNIS in the Stopford case. After receiving the related complaint of ex-WO Stopford, the Chairperson decided to conduct a joint investigation into both complaints. Ex-WO Stopford and BGen Samson were informed of this decision.

Subsequently, in accordance with subsection 250.38(3) of the NDA, the military police members whose conduct could be the subject of the complaints were informed of the MPCC’s investigation.

From June to November 2000, the MPCC assembled and thoroughly reviewed relevant documents. During this period, between August 15 and August 24, 2000, eleven individuals were interviewed under oath. A further review identified certain avenues of investigation that, in the MPCC's opinion, could have been explored more fully by the CFNIS. Accordingly, the CFPM was requested to undertake a follow-up investigation. The MPCC received this follow-up report on October 27, 2000.

On November 30, 2000 the Chairperson of the MPCC, in accordance with section 250.39 of the NDA, forwarded to the Minister, the CDS and the Judge Advocate General (JAG) her interim report in writing setting out the Chairperson's findings with respect to both complaints. Although section 250.39 includes the CFPM as a recipient of this report, it was decided that, given her involvement as a subject of the complaint, she would not receive a copy. Sending the interim report to the CFPM in these circumstances would be contrary to the spirit of the Act.

Subsection 250.49(2) and section 250.51 of the NDA require the CDS to review the interim report in light of its findings and recommendations and to notify in writing both the Minister and the Chairperson of any action that has been or will be taken with respect to the complaints.

On December 14, 2000, the Chairperson of the MPCC received from the CDS his notice of action dated December 12, 2000. This notice was considered by the Chairperson prior to the preparation of this final report.

(b) Issues

The main issues examined by the MPCC are as follows:

• Did the CFNIS provide inaccurate or inadequate and misleading advice3 to the CDS and the Canadian public, among other occasions, during the press conference held on May 30, 2000, with regard to the possibility of laying charges pursuant to the Criminal Code and the National Defence Act?
• Did the CFNIS provide misleading information to ex-WO Matthew Stopford with respect to the “confessions” collected during the conduct of the CFNIS investigation?
• When did the military police and the chain of command become aware of the allegations that ex-WO Stopford was poisoned in Croatia in 1993?

(c) Chairperson’s Findings Subsequent to the Investigation

The MPCC examined the documents that were made available to the SRG. It also reviewed further documents, some prepared in response to the SRG report, and heard 11 individuals viva voce. The persons interviewed, including the military police members whose conduct could be the subject of the complaints, all agreed to give their versions of the events under oath, and cooperated fully with the MPCC. They were also given the opportunity to explain their understanding of the events. The MPCC, therefore, bases its conclusions on a more extensive body of information than that reviewed by the SRG. This has permitted the MPCC to have a fuller understanding of the CFNIS investigation and has also led the MPCC to substantially different conclusions than those reached by the SRG.

It should be noted that the central focus of the SRG’s criticism of the CFNIS lay in the SRG’s interpretation of the written legal opinions given to the CFNIS. The SRG could not find support in these written opinions for the decision reached by the CFNIS in May 2000 not to proceed with criminal charges at that time. Yet much of a legal opinion rendered by the external counsel on May 18, 2000 consisted of an examination of the evidence that could be used to support a charge of mutiny. The CFNIS task force relied on the analysis of the evidence contained in that opinion to help it decide whether to lay criminal charges, not merely mutiny charges. In light of all the information gathered by the MPCC, which consists of more than those written legal opinions, it was entirely reasonable for task force members to state at the May 30, 2000 CFNIS press conference that they had received external legal advice relating to the laying of criminal charges.

The SRG did not take into account the frequent verbal advice that the external counsel gave the task force. In particular, because it had not asked for or sought additional information, the SRG was apparently not aware that verbal discussions took place about the possibility of laying charges for attempt under the Criminal Code.

The strong criticisms by the SRG of the CFNIS for “misleading” would probably not have arisen had the SRG asked for further information about what was obviously a key issue in its report. If the members of the SRG felt that information was missing, they could have asked Capt Lanouette, designated by the CFPM to act as liaison with the SRG. Capt Lanouette had demonstrated a clear willingness during the work of the SRG to provide any information that the SRG requested.

The mandate given to the SRG by the CDS was to address questions of leadership and the possible administrative measures to be taken with respect to the CF members implicated in the coffee tampering. The CDS had explained the scope of the SRG’s mandate at a press conference held June 1, 2000. It was apparent from this explanation that the SRG would not be examining whether or not charges could be laid. This had already been addressed by the CFNIS investigators. The SRG extended its mandate on its own initiative to include a review of the process by which the CFNIS decided not to lay charges. The SRG did not inform BGen Samson, the CFNIS task force or other concerned individuals, including the CDS, about this extension of the mandate. Nor would BGen Samson have any reason to think that the SRG mandate would extend to assessing the process by which the CFNIS decided not to lay charges and the conduct of CFNIS members.

It would not have been improper for the members of the SRG to speak with the Provost Marshal. BGen Sharpe did write to ex-WO Stopford inviting his input (the letter arrived too late for ex-WO Stopford to respond). The fact that BGen Sharpe also consulted officers not directly or indirectly concerned or involved with this matter, instead of BGen Samson, in the hope that somehow the concerns of the SRG would filter back to her through them, surprised the MPCC.

If the SRG had doubts or questions about the correctness of the process by which the CFNIS decided not to lay charges or about the conduct of CFNIS members, it should have referred these matters to the MPCC and lodged a formal complaint. One of the mandates of the MPCC, pursuant to Part IV of the NDA, is precisely that – to examine any complaint about military police conduct in the performance of policing duties or functions prescribed by regulation. It is important to note that the “laying of a charge” is specifically mentioned as a policing duty or function in the regulations made pursuant to section 250.18 of the NDA.4

Much of the difference of opinion between the SRG and BGen Samson about whether any “misleading” occurred appeared to arise because of the cursory examination, by the SRG, of the process used by the CFNIS task force which led to a decision not to lay charges. The SRG, driven by its two-week deadline, condemned BGen Samson and the CFNIS before they were given an opportunity to explain fully their rationale for not proceeding with criminal charges. It is unfortunate that, because of the cursory examination by the SRG, the reputations of BGen Samson and the CFNIS were unfairly discredited.

On another issue, at the May 30, 2000, CFNIS press conference, reliance on “external independent legal counsel” was discussed. The MPCC was initially concerned by the failure to mention the involvement of a military lawyer in the preparation of a legal opinion on mutiny. From the interviews conducted by the MPCC, it became apparent that the failure to mention the involvement of a military lawyer flowed from a misunderstanding within the CFNIS. Nonetheless, the involvement of the military lawyer should have been mentioned.

As for the information provided to ex-WO Stopford with respect to the “confessions” collected during the conduct of the CFNIS investigation, there may have been confusion arising from the explanation given to ex-Warrant Officer Stopford. Just as dictionary definitions vary, it would seem that ex-WO Stopford and Insp Grabb may have had a different understanding of the term “confession.” Insp. Grabb seemed to understand “confession” to include a statement to a third party, not merely a statement to a police officer or person in authority. Yet it is also quite reasonable to consider a confession to be a statement by a suspect to a person in authority only. Ex-WO Stopford, for example, appeared to consider statements to a third party to be hearsay, and understood the notion of confession to be something different. As well, the explanation given to ex-WO Stopford by the investigator who briefed him on May 30, 2000, may have referred to five or six people “confessing” to allegations of coffee tampering, and this explanation might have mistakenly referred to “written” confessions. In any event, such an error, if it occurred, was not made with any intent to mislead.

It is unfortunate that the CFNIS decided to send an investigator who had little knowledge of the case to inform ex-WO Stopford of the conclusions reached by the CFNIS. This is not a criticism of that investigator, who had merely been assigned to meet with ex-WO Stopford because they were acquaintances. However, had an investigator more familiar with the case been sent to explain the results, at least some of the apparent confusion relating to the number of confessions might not have occurred.

Concerning the knowledge of the military police and the chain of command about the coffee tampering allegations, the facts provided by Insp Grabb at the May 30 press conference are somewhat, although not substantially, at variance with the task force investigation report dated May 24, 2000. Insp Grabb appears to have erred about the rank of the individual (a non commissioned member and not an officer) who may have brought the allegations of coffee tampering to the chain of command. The MPCC finds no indication that this was in any way deliberate. The main point – that there was some evidence to suggest that the chain of command in Croatia was aware of the poisoning allegations – was reported by Insp Grabb.

In reviewing the CFNIS report, the MPCC took note of the fact that interviews of certain members of the chain of command, conducted during the initial investigation, were not tape recorded, whereas interviews with non-commissioned members were recorded on tape. This way of proceeding may give the impression of offering preferential treatment to senior officers.

A further review of the evidence identified certain avenues of investigation that, in the MPCC’s opinion, the CFNIS could have pursued more fully. Accordingly, the MPCC asked the CFPM to look further into the possible knowledge, by the military police and the chain of command in Croatia, of the coffee tampering allegations. The additional information provided by the CFNIS in response to that request does not enable the MPCC to draw any further conclusions at this time about possible knowledge by the military police and the chain of command in Croatia.

((d) Chairperson's Findings Having Considered the Notice of Action from the CDS

In his notice of action dated December 12, 2000, the CDS, though comforted by the conclusion that there was no misconduct by the CFPM or the CFNIS members and reassured by the finding that neither he nor the Canadian public had been misled, was nevertheless cognizant of the need to address several issues raised. The CDS stated, in part:

The Chairperson is pleased that the CDS has decided to take these measures and welcomes the proposed direction and explanations to be documented in the terms of reference for a study or review team.

The CDS goes on to state:

Finally, with reference to the request by the CDS to have the CFNIS investigation report referred to the appropriate provincial prosecutorial authority, the Chairperson is informed in the notice from the CDS that the Office of the Assistant Deputy Attorney General – Criminal Law for Ontario does not disagree with the CFNIS decision not to lay a charge.

Following the investigation by the MPCC, and after having considered the notice of action from the CDS, the Chairperson upholds her interim report conclusions and reiterates them as follows:

• There was no misconduct by BGen Patricia Samson, CFPM, the CFNIS or the military police members whose conduct the MPCC has investigated.
• The CFNIS did not mislead, intentionally or otherwise, the CDS or the Canadian public about the nature of the legal advice on which the CFNIS relied in reaching its decision not to proceed with Criminal Code and National Defence Act charges.
• A review of the evidence did reveal minor inadequacies in the information provided at the CFNIS press conference on May 30, 2000. However, none of these were of any significance in the discussion of whether the CFNIS had provided inaccurate or inadequate and misleading advice with regard to the laying of criminal charges.
• Varying interpretations of what was meant by the word “confession” led to confusion and, perhaps, the perception on the part of ex-WO Stopford that he had been given misleading information. There was no intent on the part of the CFNIS to mislead.
• A CFNIS investigator more familiar with this investigation should have been sent to brief ex-WO Stopford.
• Upon reviewing the CFNIS investigation report and all pertinent documents in its possession and after interviewing 11 individuals, the Chairperson concludes that the comments made at the CFNIS press conference on May 30, 2000 adequately reflected whether and when the military police and chain of command were made aware of the coffee tampering allegations.