IV: Facts

On Wednesday, January 26, 2000,                     , a military police member with the Air Force, died suddenly at Canadian Forces Base Trenton. Lieutenant-Colonel Tony Battista, the most senior Military Police Officer in the Air Force posted to 1 Canadian Air Division in Winnipeg, received a telephone message informing him of                     's death.

Before leaving his office that night, Lieutenant-Colonel Battista telephoned the then Provost Marshal, Brigadier-General P. Samson, to inform her of the death. He also sent a brief email message to his management, the Commander 1 Canadian Air Division, then Major-General L. Campbell, his supervisor, then Brigadier-General S. Lucas, and Brigadier-General R. Findley, to advise them of the death.

The next morning, Thursday, January 27, 2000, Lieutenant-Colonel Battista met with Brigadier-General Lucas to brief him on some discussions held at National Defence Headquarters and to discuss the funeral for                     . Lieutenant-Colonel Battista requested from Brigadier-General Lucas, and was granted, permission to attend the funeral of                      in an official capacity, should there be a military funeral. Because                      had been employed at Canadian Forces Base Trenton, it was thought that an official function might take place in Trenton. At this same meeting, Lieutenant-Colonel Battista asked permission from Brigadier-General Lucas to use this trip 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 few hours drive away from Trenton. Brigadier-General Lucas gave his approval.

Also during this meeting, Lieutenant-Colonel Battista and Brigadier-General Lucas discussed the movement of Military Police positions from Canadian Forces Base Trenton to Winnipeg and personnel issues that had surfaced in Trenton. Some of these issues arose from a recently completed extensive study referred to as the Air Force Security Review. Brigadier-General Lucas suggested that, if possible, Lieutenant-Colonel Battista could deal with these matters in Trenton after attending the funeral for                     .

It was only because Brigadier-General Lucas thought the funeral would be held in Trenton that he suggested that Lieutenant-Colonel Battista hold this discussion at the same time. In later interviews, Brigadier-General Lucas confirmed his support for Lieutenant-Colonel Battista and Major Wight attending funeral services for                     . However, he believed that Friday morning (January 28, 2000) that these services would be in Trenton and that this presented an opportunity to "kill two birds with one stone" as he had suggested to Lieutenant-Colonel Battista during their discussions the day before. It was also indicated that, even if the funeral services were in Hamilton,                     , the discussions could still take place subject to availability and circumstances.

On Friday, January 28, 2000, Lieutenant-Colonel Battista met with Major Wight and Chief Warrant Officer Galway to discuss attendance at                     's funeral. At this meeting, Chief Warrant Officer Galway expressed his view that attendance at the funeral might set a bad precedence. Ms.                     , Administrative Assistant to Lieutenant-Colonel Battista at that time, recalled for the Commission a conversation that she had with Chief Warrant Officer Galway that morning as follows: "If there was - the example he said was that if Sergeant Gilmore wished to attend the funeral of a Sergeant in North Bay, we would have to pay for that TD [Temporary Duty] out of our budget."

At this time, Chief Warrant Officer Galway's rationale for objecting to attendance at                     's funeral was based on rank and the precedence being set and no other reason.

Lieutenant-Colonel Battista decided that he and Major Wight would attend the funeral, tentatively scheduled for Monday, January 31, 2000. Details of the location of the funeral were not known at that time. It was thought that there might also be a memorial service. Lieutenant-Colonel Battista had originally intended that Chief Warrant Officer Galway would accompany them to the funeral, but no additional seats were available on the service flight. Lieutenant-Colonel Battista decided instead that Chief Warrant Officer Galway should represent them at the memorial service.

To keep costs down, as the cost of attending the funeral had not been anticipated, Lieutenant-Colonel Battista had Ms.                      book seats on Service Flights from Winnipeg to Toronto for himself and Major Wight. As he had discussed with Brigadier-General Lucas, Lieutenant-Colonel Battista planned to depart that afternoon, Friday, January 28, 2000, to spend the weekend with his family in Borden. Major Wight was to depart on a flight on Sunday, January 30, 2000.

Following his Friday morning meeting with Major Wight and Chief Warrant Officer Galway, Lieutenant-Colonel Battista asked Ms.                      to prepare the standard approval memo in his name for Temporary Duty travel to attend the funeral being held on Monday, January 31, 2000. Ms.                      delivered the memo to Brigadier-General Lucas for his approval.

Shortly after lunch on Friday, January 28, Ms.                      went to retrieve the approval memo for Lieutenant-Colonel Battista's Temporary Duty travel from the office of Brigadier-General Lucas. His Executive Assistant informed Ms.                      that Brigadier-General Lucas would not sign the approval memo to attend the funeral. He did not explain why, nor did she ask why.

Ms.                      told Lieutenant-Colonel Battista about the refusal by Brigadier-General Lucas to sign the form. Ms.                      told the Commission that Lieutenant-Colonel Battista just said, "Oh, I wonder why he [Brigadier-General Lucas] didn't sign it." Ms.                      stated further that she and Lieutenant-Colonel Battista had a brief discussion and that Lieutenant-Colonel Battista instructed her to state "Command and Control, Security Review" as the reason for travel on the Temporary Duty form. The approval memo did not require Lieutenant-Colonel Battista's signature. Ms.                      delivered a revised approval memo to the Executive Assistant of Brigadier-General Lucas, and received a call from him a short time later that Brigadier-General Lucas had signed it.

The purpose stated on the returned approval memo was "Command and Control, Security Review Update". There was no specific mention of attendance at the funeral. Reference to the locations Borden, Trenton and Hamilton remained. Even though there was now no specific mention of attendance at the funeral on the approval form, Lieutenant-Colonel Battista decided not to disturb Brigadier-General Lucas, who was attending a meeting related to a high priority NORAD exercise, to confirm his support for attendance at the funeral. Lieutenant-Colonel Battista was confident that both he and Major Wight had support to attend the funeral based on his earlier discussions with Brigadier-General Lucas.

Ms.                      had also prepared earlier an approval memo for Major Wight citing the funeral as the reason for the Temporary Duty. On her own initiative, to be consistent with the reasons now given on Lieutenant-Colonel Battista's approval memo, she placed the same reason for travel on Major Wight's approval memo. Lieutenant-Colonel Battista signed the memo approving Major Wight's Temporary Duty travel.

Lieutenant-Colonel Battista left Winnipeg on a Service Flight on January 28, 2000, at 16:25 hrs, just shortly after Brigadier-General Lucas had approved the travel. Lieutenant-Colonel Battista spent the weekend in Borden with his family. Major Wight took the Sunday, January 30, 2000, Service Flight to Toronto, and spent the night with family, as planned. He spoke with Lieutenant-Colonel Battista on arrival and learned that Lieutenant-Colonel Battista would travel to the funeral, now confirmed as being held in Hamilton, on a bus that was being supplied by Canadian Forces Base Borden. Lieutenant-Colonel Battista told Major Wight to rent a car to travel to the funeral.

As stated above, Lieutenant-Colonel Battista had decided that Chief Warrant Officer Galway should attend the memorial service, now scheduled for Trenton on Thursday, February 3, 2000 (the day after the return Service Flight from Toronto to Winnipeg for Lieutenant-Colonel Battista and Major Wight), instead of travelling to the funeral in Hamilton. Chief Warrant Officer Galway was wait-listed for a seat on a Service Flight to attend the Trenton memorial service. Ms.                      told him that it was unlikely that he would be able to get a seat. Chief Warrant Officer Galway later confirmed to the Commission that he did not attend the memorial service because he could not get a seat on the Service Flight. He did not "decline" to attend because of concern regarding any stated purpose for this trip. Because he could not get a seat on the Service Flight, it was never necessary to submit a Temporary Duty approval memo.

Chief Warrant Officer Galway contacted Lieutenant-Colonel Battista at his residence in Borden to say that he had not been able to secure a seat on the Service Flight but that a                     , was already in Trenton on other business and could represent them at the memorial service.

Lieutenant-Colonel Battista and Major Wight returned to Winnipeg on Wednesday, February 2, 2000, as scheduled. They both submitted their Travel Order and Claim forms the next day, February 3, 2000. Although his form reported expenses totalling $236.75, Lieutenant-Colonel Battista made no claim for reimbursement of any of the costs he incurred during this trip. Ms.                      wrote on the form, "No cost associated with this claim. 3 Feb 2000." Major Wight certified Lieutenant-Colonel Battista's claim under section 34 Financial Administration Act. Section 34 of the Act reads, in part:

34. (1) No payment shall be made in respect of any part of the public service of Canada unless, in addition to any other voucher or certificate that is required, the deputy of the appropriate Minister, or another person authorized by that Minister, certifies
    1. in the case of a payment for the performance of work, the supply of goods or the rendering of services,
       1. that the work has been performed, the goods supplied or the service rendered, as the case may be, and that the price charged is according to the contract, or if not specified by the contract, is reasonable,

       2. where, pursuant to the contract, a payment is to be made before the completion of the work, delivery of the goods or rendering of the service, as the case may be, that the payment is according to the contract, or

       3. where, in accordance with the policies and procedures prescribed under subsection (2), payment is to be made in advance of verification, that the claim for payment is reasonable; or

    2. in the case of any other payment, that the payee is eligible for or entitled to the payment.

On Friday, February 4, 2000, Chief Warrant Officer Galway had a discussion with Master Warrant Officer Verreault, a reservist working with A3 Security and Military Police in Winnipeg. Chief Warrant Officer Galway told Master Warrant Officer Verreault 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. However, there was no consistent understanding of what "no-cost claims" were. Some witnesses told the Commission that "no cost" simply meant that no reimbursement was being claimed. Ms.                     , for example, simply thought that "no cost" meant that no costs - meals, hotels, taxis and incidentals -- were claimed. Major Wight explained his understanding as follows:

Major Wight's conversation with Chief Warrant Officer Galway occurred shortly after he and Lieutenant-Colonel Battista returned from their Temporary Duty travel. Chief Warrant Officer Galway had invited Major Wight for coffee. Chief Warrant Officer Galway stated that he discussed his concerns about the Temporary Duty travel and the "no cost" travel claim submitted by Lieutenant-Colonel Battista. As stated above, Major Wight recalled that Chief Warrant Officer Galway mentioned "no-cost claims," but said that the discussion did not cause him [Wight] any concern.

On February 9, 2000, Master Warrant Officer Verreault and Lieutenant-Colonel Battista were both taking part in the NORAD exercise. Lieutenant-Colonel Battista joined Master Warrant Officer Verreault for supper. Master Warrant Officer Verreault claimed that during their conversation 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 happened. The comment about Brigadier-General Lucas confirmed this in his mind. Lieutenant-Colonel Battista later recalled that Master Warrant Officer Verreault had raised the issue of rumours, and that he (Lieutenant-Colonel Battista) responded that he had not claimed anything for the trip and that he would never do anything to put the Brigadier-General in an awkward position or to cause him to lose his job. Lieutenant-Colonel Battista said that the room was crowded and noisy and that perhaps the Master Warrant Officer had not heard him accurately.

Master Warrant Officer Verreault then contacted Chief Warrant Officer Galway and met with him early on the morning of February 10, 2000. Master Warrant Officer Verreault reported the conversation he had with Lieutenant-Colonel Battista the previous evening. Chief Warrant Officer Galway instructed Master Warrant Officer Verreault to prepare a written statement with his recollection of the discussion. Chief Warrant Officer Galway said that he would take matters from there.

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. He did not speak beforehand with Lieutenant-Colonel Battista or Brigadier-General Lucas.

Also 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. Inspector Russ Grabb, on secondment to the Canadian Forces National Investigation Service from the Royal Canadian Mounted Police, was to be appointed lead investigator.

On April 3, 2000, the Canadian Forces National Investigation Service delivered a Brief to the Regional Military Prosecutor relating to this investigation.

In a legal opinion dated April 12, 2000, Commander C.J. Price concluded that there was no basis on which to form a reasonable belief that Brigadier-General Lucas had committed an offence with respect to Lieutenant-Colonel Battista's Temporary Duty. Similarly, he found insufficient evidence to form a belief that Major Wight had committed an offence in relation to the travel claim in question.

Concerning Lieutenant-Colonel Battista, Commander Price concluded that it appeared that the stated purpose of the trip on the claims was false. He concluded that Brigadier-General Lucas was misled into thinking that Lieutenant-Colonel Battista was going to Trenton, and that it was fair to conclude that Lieutenant-Colonel Battista knew he could not make the Trenton trip even before he submitted the "command and control" Temporary Duty approval memo to Brigadier-General Lucas. Commander Price also noted that even if Lieutenant-Colonel Battista ultimately believed that Brigadier-General Lucas' direction was that the word "funeral" was not to appear on the claim and that, in effect, a false purpose was to be created, that still did not exculpate Lieutenant-Colonel Battista.

Commander Price therefore concluded that "on the face of" what he read and heard on interview tapes, there was evidence upon which to form a reasonable belief that Lieutenant-Colonel Battista had breached subsection 125(a) of the National Defence Act. In reaching this conclusion, Commander Price wrote that he found it "of some significance" that the Canadian Forces National Investigation Brief comments that Chief Warrant Officer Galway refused to go to the funeral given the wording that he was told must appear on the claim.

The legal opinion suggested two charges: wilfully making a false statement in a document made by Lieutenant-Colonel Battista (the Temporary Duty approval for his own travel) that was required for official purposes, and wilfully making a false statement in a document signed by him (the Temporary Duty form for Major Wight) that was required for official purposes.

On April 17, 2000, the Canadian Forces National Investigation Service report NSI-370-0002-00 concluded as follows:

As a result of this investigation, two (2) charges were laid against Lieutenant-Colonel Battista. No charges were laid against Major Wight or Brigadier-General Lucas.

Subsection 125(a) of the National Defence Act reads:

On May 3, 2000, Lieutenant-General D.N. Kinsman, Chief of the Air Staff, wrote to the Chief of the Defence Staff and Vice Chief of the Defence Staff expressing his concerns about the case:

Queen's Regulations and Orders article 107.12 gives the authority to a commanding officer or superior commander to decide not to proceed with a charge laid by a member of the Military Police assigned to Canadian Forces National Investigation Service investigative duties. This decision, and the reasons for it, must be communicated to the Canadian Forces National Investigation Service member who laid the charge or the supervisor of the investigation. A copy of the decision must also be provided to the officer to whom the commanding officer or superior commander is responsible in matters of discipline.

In a memorandum dated May 19, 2000, Colonel W.F.G. Koch, Headquarters Commanding Officer, 1 Canadian Air Division, recorded his decision that the two charges against Lieutenant-Colonel Battista should not proceed. He gave several reasons, among them that the matter should have been resolved administratively and internally.

Queen's Regulations and Orders article 107.12 provides that if, following a review of reasons given for not proceeding with the charge, the Canadian Forces National Investigation Service member considers that the charge should proceed, this member may refer the charge directly to a referral authority in accordance with article 109.03, which outlines this procedure.

On May 26, 2000, Inspector Grabb, the Canadian Forces National Investigation Service supervisor of the investigation that led to charges against Lieutenant-Colonel Battista, recorded that the case investigator did not agree with the Commanding Officer's decision not to proceed with the charges and wanted to refer the matter to the referral authority. The referral authority in this case was Major-General L.C. Campbell, Commander, 1 Canadian Air Division.

Queen's Regulations and Orders for the Canadian Forces article 109.03 sets out the procedure for referring a charge to the referral authority in cases of disagreement. Article 109.05 describes the courses of action available to the referral authority. Article 109.05 reads, in part:

On June 20, 2000, Major-General Campbell wrote to the Director of Military Prosecutions recommending that the Director not proceed with the charges. He cited the reasons given earlier by Colonel Koch as justification for his decision.

Queen's Regulations and Orders for the Canadian Forces article 110.04 establishes that the Director of Military Prosecutions may:

1. prefer the charge, or any other charge that is founded on facts disclosed by evidence in addition to or in substitution for the charge ;
2. refer the charge for disposal by an officer who has jurisdiction to try the accused person by summary trial where the Director is satisfied that a charge should not be proceeded with by court martial; or
3. decide not to proceed with the charge.

From November 28 to 30, 2000, Lieutenant-Colonel Battista was tried by Standing Court Martial. On November 30, he was found guilty on all four charges and sentenced to a reprimand. Lieutenant-Colonel Battista filed a notice of appeal to the Court Martial Appeal Court of Canada on December 5, 2000, for "unreasonable finding."

The Court Martial Appeal Court rendered its decision on October 1, 2001. The Court stated that the only issue to be decided was whether it was unreasonable for the Military Judge to find that Lieutenant-Colonel Battista had made false statements and entries on travel and expense account documents. The Court Martial Appeal Court allowed the appeal on all four charges, set aside the verdicts of guilty and entered verdicts of not guilty.

In reaching this decision, the Court Martial Appeal Court states:

In a covering letter accompanying the April 17, 2000 Canadian Forces National Investigation Service report [NSI 370-0002-00] that resulted in charges against Lieutenant-Colonel Battista, Lieutenant-Colonel Dixon stated that other evidence uncovered during the investigation indicated that Lieutenant-Colonel Battista might have submitted other fraudulent travel claims. Lieutenant-Colonel Dixon indicated that this would be investigated as a separate file. The report of this second investigation [NSI 370-0006-00], which also examined possible wrongful activities by Major Wight and Chief Warrant Officer Galway, concluded on July 11, 2000 that, "Investigation into this matter has determined that insufficient evidence exists to proceed with service offence charges against Lieutenant-Colonel Battista, Major Wight or Chief Warrant Officer Galway." In a July 16, 2000 covering letter accompanying the report, Lieutenant-Colonel Dixon wrote: "Canadian Forces National Investigation Service investigation into these allegations failed to uncover any information or evidence which would support criminal or service offence charges. As such, investigation into this matter has been concluded."

A third investigation was conducted into the alleged submission of fraudulent travel claims by Lieutenant-Colonel Battista between 1995 and 1999 while he was Commandant, Canadian Forces School of Intelligence and Security. The Canadian Forces National Investigation Service report of that investigation [NSI 370-0009-00], dated July 17, 2000, concluded that, "there exists no information to suggest that Lieutenant-Colonel Battista was involved in any form of criminal activity/wrongdoing." In a covering letter dated July 16, 2000 accompanying the report, Lieutenant-Colonel Dixon wrote: "CFNIS investigation into these allegations failed to uncover any information or evidence which would support criminal or service offence charges. As such, investigation into this matter has been concluded."

Military Police Credentials

On April 20, 2000, the then Deputy Provost Marshal, Professional Standards, Lieutenant-Colonel Paul Cloutier, suspended the Military Police credentials of both Lieutenant-Colonel Battista and Major Wight. The Deputy Provost Marshal, Professional Standards concluded that both officers had contravened the Military Police Professional Code of Conduct. They had allegedly misrepresented or falsified information in their travel order claims and thereby brought discredit to the Military Police organization.

A Military Police Credentials Review Board was convened on October 3, 2000, to consider the suitability of Major Wight to exercise the powers and discharge the duties of a Military Police Person under section 156 of the National Defence Act. The Board members voted unanimously to re-instate Major Wight's appointment. They found that "there was not clear and convincing evidence to support the revocation of Major Wight's MP credentials."

The then Provost Marshal returned Major Wight's credentials with conditions. 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. This matter had not been heard as of the conclusion of Commission witness interviews in February 2002.

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.

Competition for the Position of Provost Marshal

On February 16, 2000, six days after Chief Warrant Officer Galway reported the alleged misconduct of Lieutenant-Colonel Battista to Lieutenant-Colonel Dixon, the then Provost Marshal, Brigadier-General Samson, sent an email to all Lieutenant-Colonels advising them that the competition for her replacement as Provost Marshal would soon begin. On May 17, 2000 a formal announcement was made about the competition and applications were invited. Lieutenant-Colonel Battista was interested in seeking the position. He was concerned that the criminal investigations and charges would seriously diminish his chances of becoming Provost Marshal. Lieutenant-Colonel Battista did apply for the position, but was not the successful candidate. Interviews for the position were held on June 26, 2000, at which time Lieutenant-Colonel Battista had been charged with two (2) offences, but not yet tried. At the time of the interview, his Military Police credentials had also been removed.