Executive Summary

1. Background
2. The Complaints
3. Issues
4. Chairperson's Findings
5. Chairperson's Recommendations

(a) Background

On January 26, 2000, a military police member with the Air Force,                     , died suddenly at Canadian Forces Base Trenton. Lieutenant-Colonel Tony Battista, the Air Force Provost Marshal, received a telephone message informing him of the death.

The next morning, Lieutenant-Colonel Battista requested, and was granted, permission to attend the funeral by his supervisor, Brigadier-General Steve Lucas. Details of the funeral arrangements were sketchy at this time.                      was Hamilton, Ontario. Nevertheless, it was thought that an official function might take place in Trenton.
Brigadier-General Lucas suggested that, if possible, Lieutenant-Colonel Battista could deal with other work-related matters in Trenton after attending the funeral.

At this same meeting, Lieutenant-Colonel Battista asked permission from Brigadier-General Lucas to spend the weekend with his family, if this was possible with no additional cost to the Canadian Forces. Lieutenant-Colonel Battista's family resided at Canadian Forces Base Borden, a short distance from Hamilton and a few hours drive away from Trenton. Brigadier-General Lucas gave his approval.

Lieutenant-Colonel Battista asked his administrative assistant, Ms.                     , to prepare the standard approval memo in his name for Temporary Duty travel to attend the funeral, citing attendance at a funeral as the reason for the Temporary Duty travel. Later that day, the Executive Assistant to Brigadier-General Lucas told Ms.                      that Brigadier-General Lucas would not sign the approval memo to attend the funeral. Lieutenant-Colonel Battista then instructed her to state "Command and Control, Security Review" as the reason for travel. There was no longer any specific mention of attendance at the funeral on the Temporary Duty approval form. Brigadier-General Lucas approved this memo.

Ms.                     , on her own initiative and to be consistent with Lieutenant-Colonel Battista's claim, placed the same reason for travel on Major Gordon Wight's Temporary Duty approval memo. Lieutenant-Colonel Battista signed the memo approving Major Wight's Temporary Duty travel.

Lieutenant-Colonel Battista and Major Wight attended the funeral in Hamilton, Ontario on Monday, January 31, 2000. They returned to Winnipeg on the first available service flight, Wednesday, February 2, 2000, and submitted their Travel Order and Claim forms the following day, Thursday, February 3, 2000. Lieutenant-Colonel Battista made no claim for reimbursement of any of the costs he incurred during this trip. Major Wight certified Lieutenant-Colonel Battista's claim under section 34 of the Financial Administration Act.

On Friday, February 4, 2000, Chief Warrant Officer Frank Galway told Master Warrant Officer Bernie Verreault that he was concerned about the change in the stated purpose of the Temporary Duty travel of Lieutenant-Colonel Battista and Major Wight. Chief Warrant Officer Galway also told Master Warrant Officer Verreault that he had heard that Lieutenant-Colonel Battista had submitted a "no-cost claim." In the past, "no-cost claims" were sometimes associated with questionable practices.

Master Warrant Officer Verreault claimed that during a conversation, on February 9, 2000, Lieutenant-Colonel Battista mentioned the rumours about his (Lieutenant-Colonel Battista's) travel claims. Master Warrant Officer Verreault said that Lieutenant-Colonel Battista told him that he had submitted a "no-cost claim" and indicated that, "if this got out," Brigadier-General Lucas could lose his job. Master Warrant Officer Verreault interpreted the "no-cost claim" statement as an admission by Lieutenant-Colonel Battista that something illegal had happened.

Master Warrant Officer Verreault then contacted Chief Warrant Officer Galway. Chief Warrant Officer Galway instructed Master Warrant Officer Verreault to prepare a written statement with his recollection of the discussion. That same day, February 10, 2000, Chief Warrant Officer Galway telephoned Lieutenant-Colonel Don Dixon, Deputy Provost Marshal, Canadian Forces National Investigation Service, to report his suspicion of improper activity in the submission of travel claims by Lieutenant-Colonel Battista and Major Wight.

On February 10, Lieutenant-Colonel Dixon tasked the Canadian Forces National Investigation Service Sensitive Investigations Detachment to investigate whether Lieutenant-Colonel Battista and Major Wight had submitted fraudulent travel claims. The Sensitive Investigations Detachment was also tasked to determine if Brigadier-General Lucas had counselled them to submit fraudulent travel claims.

On April 19, 2000, as a result of this investigation, two (2) charges were laid under subsection 125(a) of the National Defence Act against Lieutenant-Colonel Battista; one (1) charge that he willfully made a false statement in a document made by him that was required for official purposes, and one (1) charge that he willfully made a false statement in a document signed by him that was required for official purposes. No charges were laid against Major Wight or Brigadier-General Lucas.

On September 27, 2000, Lieutenant-Colonel Battista was served with two (2) additional charges under subsection 125(a) of the National Defence Act, arising out of the same investigation, for having willfully made a false statement in a document signed by him that was required for official purposes. During the post-charge screening, it was decided to increase the number of charges. There were now a total of four (4) charges under subsection 125(a) of the National Defence Act against Lieutenant-Colonel Battista.

Between November 28th and 30th, 2000, Lieutenant-Colonel Battista was tried by Standing Court Martial in Winnipeg, Manitoba. On November 30th, he was found guilty on all four (4) charges and sentenced to a reprimand. On the advice of counsel, Lieutenant-Colonel Battista filed a Notice of Appeal to the Court Martial Appeal Court of Canada for "unreasonable finding". On October 1, 2001, the Court Martial Appeal Court allowed the appeal on all four (4) charges, set aside the verdicts of guilty and entered verdicts of not guilty.

Subsequent to the investigation that led to these four (4) charges against Lieutenant-Colonel Battista, the Canadian Forces National Investigation Service Sensitive Investigations Detachment initiated a second investigation, unrelated to the first incident, aimed at Lieutenant-Colonel Battista, but involving Major Wight and Chief Warrant Officer Galway. The allegations were that Lieutenant-Colonel Battista submitted fraudulent travel claims during his tenure at A3 Security and Military Police, 1 Canadian Air Division, Winnipeg, Manitoba.

In addition, Major Wight and Chief Warrant Officer Frank Galway were investigated relative to their responsibilities for approving payment of Lieutenant-Colonel Battista's claims as Financial Administration Act, section 34, signing authorities. This investigation was undertaken between February 29, 2000 and June 29, 2000 with the investigation report finalized on July 11, 2000. It concluded that there was insufficient evidence to proceed with service offence charges against Lieutenant-Colonel Battista, Major Wight or Chief Warrant Officer Galway.

On the basis of a reportedly unsolicited complaint, the Canadian Forces National Investigation Service Sensitive Investigations Detachment opened a third investigation of Lieutenant-Colonel Battista concerning travel claims submitted between 1995 and 1999. This investigation was undertaken between May 2, 2000 and May 10, 2000. However, the investigation report was not finalized until July 17, 2000. It concluded that there existed no evidence to suggest that Lieutenant-Colonel Battista was involved in any form of criminal activity or wrongdoing.

On April 20, 2000, the Military Police credentials of Lieutenant-Colonel Battista and Major Wight were suspended by then Deputy Provost Marshal for Professional Standards, Lieutenant-Colonel Paul Cloutier. Both officers were accused by the Deputy Provost Marshal, Professional Standards, of contravening paragraphs 4(h) and (l) of the Military Police Professional Code of Conduct in that they misrepresented or falsified information in their travel order claims and that by doing so they brought discredit to the Military Police organization.

On October 3, 2000, a Military Police Credentials Review Board voted unanimously to re-instate Major Wight's appointment expressing their view that "there was not clear and convincing evidence to support the revocation of Major Wight's MP Credentials". The Canadian Forces Provost Marshal returned Major Wight's credentials with conditions on October 11, 2000. Major Wight applied to the Federal Court for a judicial review to challenge the authority of the Provost Marshal to ignore a determination of the Military Police Credentials Review Board and to impose her own conditions on the return of Military Police credentials. At the writing of this report, the results of the judicial review by the Federal Court were not known.

A Military Police Credentials Review Board was convened on July 26, 2001 to consider the situation of Lieutenant-Colonel Battista. This resulted in a 4 - 1 decision to reinstate Lieutenant-Colonel Battista's credentials. On August 15, 2001, the Canadian Forces Provost Marshal directed that Lieutenant-Colonel Battista's credentials be reinstated immediately with terms and conditions. It should be noted that these decisions were made prior to the judgment of the Court Martial Appeal Court and the entering of a not guilty verdict on all four (4) charges against Lieutenant-Colonel Battista.

(b) The Complaints

Lieutenant-Colonel Tony Battista:

Lieutenant-Colonel Battista's complaints related to the conduct and supervision, by the Canadian Forces National Investigation Service, of three (3) investigations concerning him.

Lieutenant-Colonel Battista stated that these investigations were "heavy-handed, unnecessarily intrusive, biased and incomplete" causing him great prejudice. He also stated that he did not feel that he had been treated fairly and impartially by the Canadian Forces Provost Marshal organization. Lieutenant-Colonel Battista also raised the issue of the selection process for a new Provost Marshal, a position for which he was a candidate.

Specifically, Lieutenant-Colonel Battista alleged that the investigators failed to thoroughly examine the content of a Canadian Forces Administrative Order that provides guidance on the issue of the selection of purposes for "Temporary Duty" and that they failed to return to re-interview him, as he had requested. As well, he maintained that the Canadian Forces National Investigation Service should have requested the Chain of Command resolve this issue since this was "not a Military Police function but rather an administrative matter …".

Lieutenant-Colonel Battista also alleged that the Canadian Forces National Investigation Service investigators and supervisors violated standard investigative practices and procedures, including their failure to acquaint themselves with regulations pertaining to official attendance at a military funeral. He stated that they undertook unnecessary follow-up actions, intrusive investigative steps, squandered valuable public resources and presented incomplete (and in some instances inaccurate and biased) information in their police reports. Lieutenant-Colonel Battista argued that the actions of the investigators and incomplete investigations presented an unfair and biased portrait of him and what actually transpired.

Lieutenant-Colonel Battista made additional complaints that as a result of an incomplete, inaccurate and biased report his Military Police credentials were suspended. He alleged that such actions caused him grave prejudice.

Lieutenant-Colonel Battista alleged that one investigation report contained several inaccuracies and untrue information. Lieutenant-Colonel Battista also expressed concern regarding the third investigation of him (covering the period between 1995 and 1999) in that his supervisor during this time, who allegedly approved his temporary duty travel and could have clarified the relevant issues, was not interviewed by the investigators. Lieutenant-Colonel Battista alleges that, by interviewing several other members instead, Canadian Forces National Investigation Service investigators squandered precious public resources while unnecessarily subjecting his reputation to an intrusive and lengthy process.

Major Gordon Wight:

Major Wight complained that Canadian Forces National Investigation Service investigators and their supervisors involved with the investigation into his conduct violated standard investigative practices and procedures. He further complained that, in doing so, they undertook unnecessary, intrusive investigative steps and thus squandered valuable and expensive resources. Major Wight took "particular exception" to how the information collected during the investigation was presented in the investigation report. He said that the presentation of the information collected during the investigation was "slanted, biased, selective and highly suggestive of wrongdoing." Major Wight argued that Canadian Forces National Investigation Service investigators failed to understand his explanation of events and inaccurately portrayed his responses.

Major Wight stated that proper investigative procedure requires research to be done at the start of the investigation. Specifically, he said, the alleged crime or service offence must be identified. Following this, the elements of the offence must be identified. Major Wight stated that this "essential step" did not appear to have been done when so required in accordance with proper investigative procedure.

Major Wight argued that there was a lack of evidence setting up a standard of care for a Financial Administration Act signing authority under section 34. Major Wight stated that if investigators had taken the time to determine the standard of care under the Act, they would have realized that there was no need to investigate him further. Because this was not done, he believed that the investigators and their supervisors had clearly failed to follow proper investigative procedure.

Major Wight stated that if, on the other hand, the standard of care under section 34 of the Financial Administration Act was understood at the beginning of the investigation, the conduct of an unnecessary investigation with the use of intrusive police techniques "would lead one to suspect a level of maliciousness in the NIS' actions."

Major Wight expressed concern that Chief Warrant Officer Galway, also being investigated for possible violation of the same Financial Administration Act section, may have been treated in a less confrontational manner by the Canadian Forces National Investigation Service investigators. According to Major Wight, if there was in fact a difference in their treatment, this would suggest a double standard and it would also support his accusation of malicious actions by the Canadian Forces National Investigation Service towards him. "For this reason, I believe informal resolution is not an option in this instance and thus, I request a formal investigation be conducted."

Major Wight also alleged that during a cautioned interview, two investigators from the Canadian Forces National Investigation Service told him untruths. In addition, Major Wight alleged that the information he provided during the interview was misrepresented in the final investigation report.

(c) Issues

The main issues examined by the Military Police Complaints Commission (hereinafter referred to as the Commission) during this public interest investigation are as follows:

1. The handling of the investigations conducted by the Canadian Forces National Investigation Service.

2. The process for the suspension of credentials in relation to Canadian Forces National Investigation Service investigations.

3. The implications and repercussions of the "zero tolerance" approach on Canadian Forces National Investigation Service Sensitive Investigations Detachment investigations and the laying of charges.

4. The independence of Military Police investigations and involvement of the Chain of Command in Military Police investigations and the laying of charges.

5. The appropriateness of the Military Police investigating its own officers.

(d) Chairperson's Findings

Chairperson's Finding #1: Erroneous and incomplete information in Canadian Forces National Investigation Service report NSI 370-0002-00 and in the related brief delivered April 3, 2000 to the Regional Military Prosecutor may have been responsible for the decision to charge and prosecute Lieutenant-Colonel Battista. In particular: The misinterpretation of Major Wight's understanding of "Command and Control" may have led prosecutors to conclude that there was an attempt to deceive through using this term to justify the travel. The inaccurate analysis in the Regional Military Prosecutor brief and the Canadian Forces National Investigation Service investigation report gave the strong impression that Chief Warrant Officer Galway had declined to go on the trip because he perceived some illegality in stating the purpose of the trip. This erroneous information appeared to influence Commander C.J. Price, Deputy Director of Military Prosecutions, who signed an April 12, 2000 legal opinion reviewing the case, to conclude that charges were warranted.

Chairperson's Finding #2: The wide distribution of Canadian Forces National Investigation Service investigation reports provides the potential for harm to the reputations and careers of those being investigated should these reports contain falsehoods or factual errors.

Chairperson's Finding #3: Lieutenant-Colonel Battista was denied the opportunity to present further evidence with the potential to exonerate himself. Furthermore, since the Canadian Forces National Investigation Service report was distributed to others, the failure to follow up with Lieutenant-Colonel Battista could have had even greater negative repercussions than those related simply to the criminal investigation.

Chairperson's Finding #4: The failure of the Canadian Forces National Investigation Service to complete its investigation, the misreporting of the understanding of Major Wight about the term "Command and Control Security Review Update," and the inaccurate portrayal of the reasons given by Chief Warrant Officer Galway for not attending the memorial service in Trenton may have tilted the balance in favour of laying charges and prosecuting Lieutenant-Colonel Battista. Had the Canadian Forces National Investigation Service report been more accurate and complete, and if the Canadian Forces National Investigation Service had provided this same information in the brief to the Regional Military Prosecutor, it is at least possible, and perhaps likely, that these charges would not have proceeded.

Chairperson's Finding #5: The April 17, 2000 Canadian Forces National Investigation Service report recorded that                      assigned to A3 Security and Military Police, 1 Canadian Air Division, Winnipeg, Manitoba, described Lieutenant-Colonel Battista as "                    " The Chairperson finds it difficult to see how this editorial comment is in any way related to the fraud investigation of Lieutenant-Colonel Battista. Remarks such as this have no place in an objective police report.

Chairperson's Finding #6: The Chairperson found nothing to suggest that the military justice system was being used to "get at" Lieutenant-Colonel Battista or Major Wight. There was no evidence of any coordinated conspiracy to undermine either Lieutenant-Colonel Battista or Major Wight.

Chairperson's Finding #7: The Chairperson finds that the competition process to select a new Canadian Forces Provost Marshal was fair and equitable and that Lieutenant-Colonel Battista was treated similarly to other potential candidates with no discrimination evident.

Chairperson's Finding #8: The investigation by the Commission revealed that, in spite of the inaccuracies in investigative reporting, there existed no malice, vindictiveness or personal intent to harm any individual by Canadian Forces National Investigation Service investigators. Despite the lack of malice in the investigation, it is clear that the investigation itself, suspension of credentials and subsequent charges against Lieutenant-Colonel Battista had the potential to harm his chances of being appointed Provost Marshal. The potential harm done to an individual merely by a criminal accusation underlines the importance for the Military Police as a whole to ensure that investigations are thorough, unbiased and objectively presented.

Chairperson's Finding #9: The apparently suspicious coincidence in which two separate complaints about Lieutenant-Colonel Battista, from different parts of the country, and concerning completely different activities and timeframes, were reported to the Canadian Forces National Investigation Service on the same day, was the result of a simple clerical error by an investigator. In fact, these two complaints were not made on the same day.

Chairperson's Finding #10: The Chairperson does not fault Chief Warrant Officer Galway for proceeding in the manner he chose after he became concerned about the justification given for travel to the funeral and the no-cost claim. His conduct was appropriate. Further, had he spoken to Lieutenant-Colonel Battista, Chief Warrant Officer Galway might have been perceived as interfering with a potential police investigation.

Chairperson's Finding #10: The Chairperson does not fault Chief Warrant Officer Galway for proceeding in the manner he chose after he became concerned about the justification given for travel to the funeral and the no-cost claim. His conduct was appropriate. Further, had he spoken to Lieutenant-Colonel Battista, Chief Warrant Officer Galway might have been perceived as interfering with a potential police investigation.

Chairperson's Finding #11: The Commission uncovered no information to indicate that Chief Warrant Officer Galway's actions were in any way vindictive. To the contrary, Chief Warrant Officer Galway held considerable respect for Lieutenant-Colonel Battista and was clearly troubled by the decision he had to take.

Chairperson's Finding #12: The Chairperson notes and endorses the unanimous decision of the Military Police Credentials Review Board that there was no evidence to support either the temporary suspension or the revocation of Major Wight's Military Police credentials.

Chairperson's Finding #13: The Chairperson finds that it would be fair and prudent for the Canadian Forces Provost Marshal to re-visit her decision to reinstate Lieutenant-Colonel Battista's credentials with terms and conditions, as these may no longer be relevant or appropriate.

Chairperson's Finding #14: A "zero tolerance" approach poses a danger for any system of justice. Police discretion is an integral element of the policing function. While the nature of military policing duties may demand some restrictions on that discretion beyond those that would apply in traditional civilian policing, the complete removal of discretion in military policing activities can lead to very harsh consequences out of proportion to the alleged misconduct. A "zero tolerance" approach may end up sacrificing the innocent in order not to miss the guilty.

Chairperson's Finding #15: The Provost Marshal must reconsider the application of the "zero tolerance" practice in the Military Police. Military Police members need discretion to perform their duties fairly. However, any change in the use of police discretion must be accompanied by a change in attitudes or culture. The Provost Marshal must encourage and support a culture of fair, focused, objective and unbiased investigators that are rank blind. Relevant training will help them learn to exercise that discretion appropriately, as well as ongoing guidance from supervisors and interaction with members of civilian police forces.

Chairperson's Finding #16: The Chairperson finds that a better distinction must be made between breaches of administrative policy and statutory or criminal offences.

Chairperson's Finding #17: To conduct a thorough investigation, the Chairperson may need to review the legal opinions requested by the Military Police in the process leading to the laying of charges, as well as the police brief upon which the legal opinions are based. The Commission may be unable to investigate a matter thoroughly if it cannot review one of the relevant pieces of information in the laying of charges. It is important to note that the Commission is not reviewing the legal opinions themselves. Rather, the Commission needs to know what information the Regional Military Prosecutor provides to the Military Police, the basis for that advice, and what the Military Police do with the information.

Chairperson's Finding #18: The Chairperson strongly believes that the decision to waive solicitor-client privilege should rest with the Provost Marshal as head of the Military Police institution. The independence of the Provost Marshal is essential for the integrity of her investigations. Control of legal opinions obtained by the Military Police is a cornerstone of that independence. The Chairperson finds that the authority to waive solicitor-client privilege should in future rest with the Provost Marshal.

Chairperson's Finding #19: The presence of Royal Canadian Mounted Police Inspector Russ Grabb on the investigative team did not fulfill the policy requirement that the investigation be conducted jointly or by an outside agency. Inspector Grabb was not "outside" the Canadian Forces National Investigation Service because he was under the direction, control, supervision and instruction of Military Police management as part of the terms of the Memorandum of Understanding governing his secondment.

Chairperson's Finding #20: The facts of the present case suggest that engaging the services of outside investigators might have been appropriate given the rank of Lieutenant-Colonel Battista and Major Wight, the possible perception of bias on the part of some of those connected with the investigation due to an upcoming competition for the Provost Marshal position, and the fact that both those being investigated and those investigating were members of the same small police organization.

Chairperson's Finding #21: Canadian Forces National Investigation Service investigators did not discover that a standard of care necessary to demonstrate a breach of the Financial Administration Act had not been established until they sought legal advice at the conclusion of their investigation.

Chairperson's Finding #22: Given the circumstances surrounding the Canadian Forces National Investigation Service interviews of Major Wight and Chief Warrant Officer Galway, it is understandable that Major Wight might perceive preferential treatment extended to Chief Warrant Officer Galway. However, the Chairperson finds that no preferential treatment was provided and that any difference in atmosphere during the two interviews was more a factor of circumstance and interview content than any intent to favour one interview subject over another on the part of Canadian Forces National Investigation Service investigators.

Chairperson's Finding #23: The Chairperson finds it appropriate that the involvement of the Chain of Command, including their ability to communicate their views, knowledge and perspectives while respecting the independence of the investigative process, form part of the analysis of issues leading up to the five year review of the National Defence Act.

Chairperson's Finding #24: The Chairperson finds that investigators must become more aware of the strain that some investigations place upon witnesses and recognize their duty to assist.

(e) Chairperson's Recommendations

Chairperson's Recommendation #1: The Canadian Forces Provost Marshal must ensure that military police members, in particular Canadian Forces National Investigation Service investigators, receive essential training on police report writing with emphasis on the need to be objective, accurate and unbiased. Police reports should state relevant facts and details only. There is no place for personal comments irrelevant to the investigation being conducted.

Chairperson's Recommendation #2: Military police members and Canadian Forces National Investigation Service investigators must be thorough in conducting service offence/criminal investigations. The subject of an investigation must be given every reasonable opportunity to provide input in their own defence. The Canadian Forces Provost Marshal must ensure that Military Police policies and procedures provide such a guarantee.

Chairperson's Recommendation #3: The Canadian Forces Provost Marshal should review the standard distribution of police investigation reports with a view to limiting their release to those with an absolute demonstrated need to know so as not to negatively impact reputations and careers.

Chairperson's Recommendation #4: The Canadian Forces Provost Marshal should re-consider the terms and conditions imposed on the return of Lieutenant-Colonel Battista and Major Wight's Military Police credentials, given the decisions of the Military Police Credentials Review Boards, the Court Martial Appeal Court and now the results of the investigation by the Military Police Complaints Commission.

Chairperson's Recommendation #5: The Canadian Forces Provost Marshal must reconsider the application of the "zero tolerance" approach. Military Police members, like their civilian counterparts, need to use discretion to perform their duties fairly. Given the alleged culture within, any change in policy on the use of discretion must be accompanied by relevant training to assist in the appropriate exercise of discretion.

Chairperson's Recommendation #6: The Canadian Forces Provost Marshal must seek out ways to ensure the development and promotion of a culture of fair, focused, accurate, objective and unbiased investigations by the Military Police.

Chairperson's Recommendation #7: To uphold the independence of the Military Police, the Canadian Forces Provost Marshal must possess authority over legal opinions and advice requested by, and provided to, the Military Police. The decision to waive solicitor-client privilege must rest with the Canadian Forces Provost Marshal.

Chairperson's Recommendation #8: Given the small size of the Military Police organization, consideration should be given to conducting serious offence investigations of military police members jointly with a civilian police agency or exclusively by an outside police agency.

Chairperson's Recommendation #9: The ability of the Chain of Command to communicate their views, knowledge and perspectives while respecting the independence of the investigative process, and not interfering in that process, should form part of the analysis of issues leading up to the five year review of the amendments to the National Defence Act.

Chairperson's Recommendation #10: The Canadian Forces Provost Marshal must recognize the need to provide assistance to witnesses during investigations and implement measures to ensure that they, too, do not become victims.