Military Police Complaints Commission -- Publications - Chairperson's Final Report

The Chairperson found, during this investigation by the Complaints Commission, that there was an absence of malice or bad faith on the part of military police members on all sides of this incident. Issues that arose from the complaints before the Military Police Complaints Commission are based on historical, cultural and organizational factors such as the history of Military Police activities, the culture of the military institution and the introduction of a practice of "zero tolerance".

The Commission is aware that, within the Military Police organization, this case has been the topic of much debate and upset. Comparisons have allegedly been made between the treatment of an Officer versus that of a Non-Commissioned Member. The Chairperson of the civilian Military Police Complaints Commission wishes to assure all members of the Military Police organization that, for the Commission, this has nothing to do with rank. Rather, it has everything to do with the fair and equitable treatment of military police members, regardless of rank or position.

Findings Relating to Specific Issues

(a) Erroneous and Incomplete Information in the Investigation Report and Brief for the Regional Military Prosecutor (NSI 370-0002-00)

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. These errors were as follows:

In fact, Chief Warrant Officer Galway was not able to go to the memorial service in Trenton because there was no seat available for him on the Service Flight. Chief Warrant Officer Galway told the Commission that he did not decline to go on the trip. He did not go because there was no seat available on the flight. This inaccurate analysis in the Regional Military Prosecutor brief and the Canadian Forces National Investigation Service 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. Commander Price wrote that he found it "of some significance" that Chief Warrant Officer Galway refused to go to the funeral given the wording ("command and control etc.") that he was told must appear on the claim.

Commander Price concluded that there was evidence upon which to form a reasonable belief that Lieutenant-Colonel Battista had breached subsection 125(a) of the National Defence Act, and that two (2) charges could be laid on the basis of making false statements by using the wording "Command and Control Security Review Update" as a purpose for his and Major Wight's Temporary Duty travel.

The problem extends beyond this. The Canadian Forces National Investigation Service investigative report is distributed to others as well, including the Vice Chief of the Defence Staff. Any factual errors in the investigative report can therefore affect the reputation and careers of those being investigated.

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.

Compounding the factual errors in the April 17, 2000 Canadian Forces National Investigation Service investigative report was the failure of investigators to meet with Lieutenant-Colonel Battista to discuss additional information that he wanted to present to them.

Inspector Grabb confirmed that Lieutenant-Colonel Battista had advised him about further information pertaining to the investigation. Inspector Grabb told the Commission that he did not want to discuss this with Lieutenant-Colonel Battista over the telephone, so said that someone would get back to him about this. Inspector Grabb stated: "I know that on at least eight occasions, I mentioned to Captain Garrick [the investigator] that they have to get back to him [Lieutenant-Colonel Battista]."

Inspector Grabb further explained that he saw no real investigative need to meet with Lieutenant-Colonel Battista again, because in his [Grabb's] view, there was no basis for laying charges:

Lieutenant-Colonel Battista told the Commission that he did not press this matter, in part, because of a telephone message he received from Captain Garrick on March 24, 2000:

Captain Chiasson and Lieutenant Kirschner, two other Canadian Forces National Investigation Service investigators on the case, did interview Lieutenant-Colonel Battista in June 2000. However, they told Lieutenant-Colonel Battista that they were not there to interview him about the initial funeral claims investigation. Lieutenant-Colonel Battista said he expressed his concerns that he had not been re-interviewed about the initial investigation. He reported that the investigator said words to the effect that they did not want to discuss this investigation further.

Lieutenant-Colonel Battista complained to the Commission that the Canadian Forces National Investigation Service investigators failed to conduct an adequate investigation and that this incomplete investigation presented an unfair and biased portrait of him and what actually transpired.

The Commission investigation lends support to Lieutenant-Colonel Battista's concerns. He was not re-interviewed, and was not given the opportunity to provide additional information. The Chairperson cannot say whether the additional information held by Lieutenant-Colonel Battista would have persuaded investigators not to lay charges. However, at the very least, Lieutenant-Colonel Battista was denied the opportunity to present further evidence with the potential to exonerate himself. This "professional courtesy" was not extended to Lieutenant-Colonel Battista by the Canadian Forces National Investigation Service investigators. Furthermore, since the Canadian Forces National Investigation Service investigation 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 #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.

The Chairperson concludes that 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 favor of laying charges and prosecuting. Had the Canadian Forces National Investigation Service report been more accurate and complete, and if it 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 #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.

The April 17, 2000 Canadian Forces National Investigation Service investigative report indicated that an interview had been conducted with assigned to A3 Security and Military Police, 1 Canadian Air Division, Winnipeg, Manitoba. The report recorded that 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. Again, the Chairperson reminds Canadian Forces National Investigation Service investigators that these reports are seen by others outside the investigative sphere, and comments such as this may unfairly influence how others perceive the subject of investigation, even after the criminal issues are resolved.

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.

The Chairperson was concerned by the suggestion that the military justice system had been used vindictively in this case - in particular, that it may have been applied to Lieutenant-Colonel Battista to eliminate him from the running for the position of Provost Marshal. If this proved to be the case, there would indeed be serious cause for concern.

Given the appearance to some that the alleged misconduct was so trivial, it was not unreasonable for Lieutenant-Colonel Battista to wonder whether the investigation and prosecution were improperly motivated. As well, Lieutenant-Colonel Battista had made efforts to have a further meeting with investigators to explain his situation more fully, but that meeting never occurred. This might have suggested to him that the investigators were not interested in exonerating him.

One must also keep in mind the fact that the Canadian Forces Provost Marshal is the Commanding Officer of the Canadian Forces National Investigation Service. It was no secret that the serving Canadian Forces Provost Marshal, Brigadier-General P. Samson, and Lieutenant-Colonel Battista had differences of view, specifically in relation to the conclusions of the Air Force Security Review led by Lieutenant-Colonel Battista. That said, Brigadier-General Samson had no involvement in the competitive process to find her replacement as Provost Marshal.

Furthermore, Lieutenant-Colonel Battista noted the strange coincidence that two complaints against him - from completely different sources - were made on the same day. This again might arouse suspicion of an orchestrated campaign against him.

The Commission reviewed a host of materials provided to it. It heard from numerous witnesses - those in the chain of command, the investigators and the complainants. 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 #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.

It goes without saying that in any organization not everyone likes everyone else. Personalities do come into conflict. Still, the Chairperson found no evidence that any of the actions taken during the investigation and prosecution were motivated by malice.

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. It certainly robbed Lieutenant-Colonel Battista of some confidence as he went through the selection process, and this may have harmed his performance during that process. It was clear from comments made by several of the witnesses that he was held in sufficient esteem and that he was also sufficiently qualified to be a contender for the position.

The Chairperson is convinced that the actual competition for the position of Provost Marshal was fair. Commission Counsel asked Vice-Admiral Gary Garnett, Vice Chief of the Defence Staff from 1997 to September 2001, to describe the procedure for selecting the replacement for Brigadier-General Samson as Provost Marshal. Admiral Garnett's description completely satisfied the Commissioners that this competition process was fair and equitable and that Lieutenant-Colonel Battista was treated similarly with the other candidates in the competition with no discrimination directed against his candidature. Clear and convincing evidence was presented to the Commissioners indicating that Brigadier-General Samson, the former Canadian Forces Provost Marshal, had no involvement or input in this competitive selection process to replace her.

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.

What Lieutenant-Colonel Battista experienced was a combination of unfortunate timing (the investigation, revocation of credentials and laying of charges in the months before the Provost Marshal competition) and the reality that being drawn into the justice system can damage one's reputation, innocent or not. 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.

The investigative processes in these cases were obviously not faultless. Follow-up investigations might have exonerated Lieutenant-Colonel Battista and Major Wight at an earlier stage; investigative reports might have been prepared with greater precision so that military prosecutors had more accurate information on which to base their recommendations concerning charges; and the discretion vested in every civilian peace officer could have been used in this case to decide whether or not to proceed by way of a criminal process or to rely on an administrative procedure to address any concern that may have arisen from the trip to the funeral. 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.

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.

Lieutenant-Colonel Battista told the Commission that he found it unusual that two separate complaints from different regions of Canada, leading to two separate investigations of him, were both made on February 10, 2000. Indeed, investigation reports concerning two separate complaints, by two separate individuals, indicated that both were reported to the Canadian Forces National Investigation Service the same day, February 10. The first complaint related to his attendance at 's funeral in January 2000. The second related to alleged fraud by Lieutenant-Colonel Battista between 1995 and 1999 while he was Commandant, Canadian Forces School of Intelligence and Security.

On the surface, Lieutenant-Colonel Battista was right to be suspicious about the dates. However, the date of the report to the Canadian Forces National Investigation Service about the alleged fraud by Lieutenant-Colonel Battista between 1995 and 1999 stated February 10 in error. This seems to have been a clerical error made by the Canadian Forces National Investigation Service investigator when compiling information for the three different investigative reports. This investigator opened the second investigation file (NSI 370-0006-00) to accommodate reporting on expense claims reviewed as part of the original investigation (NSI 370-0002-00). Upon receipt of the alleged unsolicited complaint covering the 1995 to 1999 period, a third investigation file was opened (NSI 370-0009-00). As they all had the identical subject of investigation, the investigator mistakenly "cut and pasted" tasking information from the first report to the two subsequent investigation reports.

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.

Chief Warrant Officer Galway played a pivotal role in setting the chain of events in motion that led to the charges against, and prosecution of, Lieutenant-Colonel Battista. The Commission examined whether it was appropriate for Chief Warrant Officer Galway to report his concerns to Lieutenant-Colonel Dixon, the Deputy Provost Marshal, National Investigation Service, rather than to speak directly with Lieutenant-Colonel Battista or Brigadier-General Lucas beforehand.

Chief Warrant Officer Galway told the Commission that he had two concerns about Lieutenant-Colonel Battista's attendance at the funeral. First, Chief Warrant Officer Galway did not understand why Brigadier-General Lucas would not sign a Temporary Duty request for the purpose of attending a military funeral only, nor did he understand why Lieutenant-Colonel Battista's claim did not have the word "funeral" on it. Second, he felt that the notion of filing a no-cost claim was wrong.

Chief Warrant Officer Galway told the Commission that he decided not to address these concerns directly with Lieutenant-Colonel Battista. Among the reasons Chief Warrant Officer Galway gave: he was very busy concentrating on preparing for a NORAD evaluation exercise; and he and Lieutenant-Colonel Battista would go days without seeing each other because of this. He did, however, raise his concerns about the no-cost claim with Major Wight, but Major Wight found nothing wrong with this claim.

After hearing Master Warrant Officer Verreault's report of his conversation with Lieutenant-Colonel Battista about changing the purpose of the funeral trip and the no-cost claim, Chief Warrant Officer Galway located copies of both Lieutenant-Colonel Battista's and Major Wight's claims. Because his suspicions were further aroused at that point, Chief Warrant Officer Galway felt that he could not approach Lieutenant-Colonel Battista about his concerns. Nor did he go to Brigadier-General Lucas. Chief Warrant Officer Galway said he elected to go "outside our headquarters" and have someone else review the file. He immediately reported the allegations to Lieutenant-Colonel Dixon.

Chief Warrant Officer Galway told the Commission that he was very loyal to the Chain of Command, but if the matter was a possible police issue, someone outside the Winnipeg office had to review it. He further told the Commission that he wanted to get as few people involved in this case as possible because of Lieutenant-Colonel Battista's rank and position of authority.

The day Lieutenant-Colonel Battista was charged, he asked Chief Warrant Officer Galway if he knew who had laid the complaint. Chief Warrant Officer Galway immediately replied that he was the complainant. Chief Warrant Officer Galway told the Commission that when Lieutenant-Colonel Battista asked him why he would do such a thing, he responded, "Sir, I had a decision to make, and made the decision and a decision I'm going to have to live with the rest of my life." Chief Warrant Officer Galway told the Commission, "right or wrong, I made a decision."

In fact, no guidelines exist in the Military Police Professional Code of Conduct about the types of violations to be reported or the standard of evidence required to report on another military police member. Section 7 of the Military Police Professional Code of Conduct states: A member of the military police who believes, or is aware of an allegation, that another member of the military police has breached this Code shall report the belief or allegation, as the case may be, to

The threshold for requiring a military police member to report another member is quite low. The duty to report lies with any member who simply "believes," or "is aware" of an allegation of a breach of the Code. It is not a requirement that a military police member who reports another member have reasonable or probable grounds to believe that a violation took place. The appreciation of what may constitute a violation is therefore left to the military police member, his discretion and good faith. This aspect of the Military Police Professional Code of Conduct is consistent with the Codes of Conduct for other Police Agencies. It is also consistent with the philosophy and practice of police ethics.

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. Chief Warrant Officer Galway sincerely believed that something was amiss, and that criminal activity might have been involved. In that circumstance, it was very proper for him to report his concerns to Lieutenant-Colonel Dixon, the Deputy Provost Marshal, National Investigation Service. Had Chief Warrant Officer Galway spoken to Lieutenant-Colonel Battista, he [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.

Furthermore, the Commission uncovered no information to indicate that Chief Warrant Officer Galway's actions were in any way vindictive. It was quite clear that he was troubled about reporting the senior officer with whom he worked. He clearly respected Lieutenant-Colonel Battista. He described Lieutenant-Colonel Battista as having "everything he needs to be Provost Marshal. In addition to that, Lieutenant-Colonel Battista has a great vision. … he has [the] vision to be the Provost Marshal…. He has the qualifications, he has everything."

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.

Military Police Credentials Review Board Procedures state that the authorized possession of Military Police credentials is a requirement for appointment as a military police member. Hence, the withdrawal of these credentials constitutes the suspension/revocation of the National Defence Act section 156 appointment. The Canadian Forces Provost Marshal may revoke, suspend or reinstate (with or without conditions) Military Police credentials.

This procedural statement includes the following guidance on the removal of Military Police credentials:

Evidently, the authority to temporarily suspend Military Police credentials in the event of a perceived serious breach of the Military Police Professional Code of Conduct is delegated by the Canadian Forces Provost Marshal to the Deputy Provost Marshal for Professional Standards.

The role of the Military Police Credentials Review Board is to determine actual breaches of the Military Police Professional Code of Conduct and to make recommendations to the Canadian Forces Provost Marshal, with respect to Military Police credentials, according to the referenced procedures.

Queen's Regulations and Orders for the Canadian Forces section 22.04 deals with the Military Police Credentials Review Board. Paragraph 22.04(7) states:

As concerns Lieutenant-Colonel Battista and Major Wight, Canadian Forces National Investigation Service investigation report NSI 370-0002-00 was dated April 17, 2000. It concluded that there was insufficient evidence to form a belief that Major Wight committed an offence. However, it confirmed that Lieutenant-Colonel Battista would be charged with two (2) counts under subsection 125(a) of the National Defence Act (Offences relating to documents). Lieutenant-Colonel Battista was served with these charges on April 19, 2000.

On April 20, 2000, then Deputy Provost Marshal for Professional Standards, Lieutenant-Colonel Paul Cloutier, forwarded a message to then Commander, 1 Canadian Air Division, Major-General Campbell, with copies to then Vice Chief of Defence Staff, Vice-Admiral Garnett, then Chief of the Air Staff, Lieutenant-General Kinsman and the Deputy Provost Marshal (Police) informing them of the suspension of Lieutenant-Colonel Battista and Major Wight's credentials.

In this message, the Deputy Provost Marshal for Professional Standards explains his decision to suspend the two military police members for their alleged breach of the Military Police Professional Code of Conduct. Specifically, the Deputy Provost Marshal for Professional Standards cites Reference B 4 (H) of the Code in that:

Lieutenant-Colonel Battista knowingly misrepresented or falsified information in documents in that on one occasion he falsely indicated on his travel claims and other related documents as to the purpose and locations of his temporary duty trip when in fact the trip was for his personal travel to a funeral 31 JAN 00; on one occasion made similar false statements or misrepresentation in the TD requests and approval of Maj Wight, one of his subordinates; and one occasion gave a false statement or misrepresentation in that he attempted to arrange a meeting in Trenton with the 8 Wing Comd and Wing Ops O during the same TD trip while the investigation shows that such attempts did not occur; Ref 4 (L) engage in conduct that is likely to discredit the Military Police or that calls into question the member's ability to carry out his duties in a faithful and impartial manner in that he has brought discredit to the Military Police by knowingly making false statements or misrepresentation on three separate occasions. In making these false statements and misrepresentations, he misled a superior and knowingly caused a subordinate to do the same.

…he [Major Wight] allegedly made false statements or misrepresentation on his travel order claims in relation to his trip to Hamilton and the purpose of his trip to Hamilton; 4 (L) in that by making false statements or misrepresentation he brought discredit to the Military Police organization.

On October 3, 2000, a Military Police Credentials Review Board was convened to consider the case of Major Wight. A report from the Board to the Canadian Forces Provost Marshal was issued that date communicating the following:

Following determination and review of the material facts the Board members voted unanimously that the item of suspension, dishonesty, was not valid. The Board members voted unanimously that the second item of suspension, discredit the Branch, was not valid. This vote reflected the common concern that DPM PS had suspended Maj WIGHT's appointment although the CFNIS investigation acknowledged that there were neither ground for any criminal charges nor a service offence. Furthermore, the MP Professional Code of Conduct establishes the parameter for a presumed discredit, which in this case, was not met. All members agree that there was not clear and convincing evidence to support the revocation of Maj WIGHT's MP Credentials. There was not a preponderance of evidence that he acted in a manner that would preclude him from exercising the powers and discharging the duties of a MP person pursuant to Section 156 of the NDA. The Board recommends the re-instatement of Maj WIGHT's appointment.

The Chairperson notes and endorses the unanimous decision of the Military Police Credentials Review Board that there was no evidence to support the revocation of Major Wight's credentials, nor their temporary suspension. Even on the basis of the inaccurate, erroneous, incomplete and biased wording of the Canadian Forces National Investigation Service investigation report, the Canadian Forces National Investigation Service itself had concluded that Major Wight had committed no offences. Yet, his Military Police credentials were suspended for six months. No perceived breach of the Code could have been so serious as to render, considering all the circumstances of the case, the member incapable of effectively discharging his Military Police duties.

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.

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 on October 1, 2002 and the entering of a not guilty verdict on all four (4) charges against Lieutenant-Colonel Battista.

Given the circumstances existing at the time, the temporary suspension of Lieutenant-Colonel Battista's credentials may be able to be understood. However, given the written decision of the Court Martial Appeal Court, much of the rationale of the moment may no longer be a valid consideration. 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 #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.

One of the most troubling aspects of the Chairperson's investigation into these complaints was the apparent inflexibility of the Canadian Forces National Investigation Service when it came to laying charges against Lieutenant-Colonel Battista. This case exhibited an inflexible "zero tolerance" practice regarding the laying of charges. In essence, "zero tolerance" means abandoning the discretion, inherent to police work, about whether to lay charges. "Zero tolerance" simply means that if there is evidence to form a reasonable belief that an offence has been committed, a charge must be laid.

In the historical context of the creation of the Canadian Forces National Investigation Service and the question of the independence of Military Police investigations, Inspector Grabb described his perception of the introduction of this "zero tolerance" approach by the then Provost Marshal, Brigadier-General Samson:

Lieutenant-General Lloyd Campbell, then Commander of 1 Canadian Air Division in the Canadian NORAD Region, gave the Commission his explanation of how this "zero tolerance" practice evolved in the Canadian Forces National Investigation Service:

I think it's fair to say that as a fallout of a number of events over the last four to five years, the Somalia Inquiry being one of those, the findings that came from there, other activities that we've done, you know, the Dickson reports and so on, that there was not only a perception of justice being somewhat differently applied by rank but there were enough circumstances where it was demonstrated that perhaps a different standard was applied, that the system has reacted by moving the pendulum from one side of the bar to quite the other side and so I mean my sense here on the part of the NIS and other investigators in general is not one of vindictiveness but one of trying to make sure that they can never be accused of favouritism towards one of their own or to a senior officer in general. … I believe that the pendulum needs to swing back a bit, not to where it might have been at one time but to something that recognized that there are shades of grey in many of these areas and a degree of common sense needs to be applied as we work our way through these programs.

So my sense is not one that the system is broken irreparably or that there are people there who just are out to get their fellow Military Police officers, my sense is more one of we haven't yet well defined what movement space there is.

Standard Operating Procedure 238 explains the Canadian Forces National Investigation Service policy in laying charges. Paragraph 3 states, in part:

The Chairperson has been unable to locate any formal policy statement of "zero tolerance" relating to the period during which the present investigations and charges occurred. However, on May 28, 2001, Inspector Grabb circulated an email entitled "Clarification on Laying Charges and Reporting on SI Cases." The relevant portions of the email read as follows:

When it comes to the execution of criminal or service-offence investigations falling under the SI umbrella, there are essentially five evidentiary tests that one typically addresses. They are as follows:

Whether or not there is a factual or evidentiary basis to initiate an investigation. If there is such a basis, then there is almost always a necessity to approach the subject(s) directly, unless during the course of the investigation such a basis evaporates. As a matter of sound investigative procedure, and given the fact that these investigations almost always implicate Senior Officers, there will be very few occasions when the subject(s) won't be approached for an interview.
Whether or not there is an evidentiary basis, based upon an analysis of each element of each alleged offence, to form a reasonable belief that an offence has been committed by the subject(s). The reasonable belief must be that of the investigator(s). Nobody can be directed to form a reasonable belief.
Whether or not there is a reasonable prospect of a conviction.
Whether or not a prosecution is in the public interest.
Whether or not the charge(s) can be proven beyond a reasonable doubt.
When it comes to the execution of criminal or service-offence investigations falling under the SI umbrella, we only concern ourselves with meeting tests No. 1 & 2. If test 2 can be satisfied, then charges will be laid, regardless if tests 3,4 & 5 cannot. …
When it comes to the execution of criminal or service-offence investigations falling under the SI umbrella, we will seek the advice of the RMP only to the degree that it is necessary to conduct the analysis specified in test number 2 above. Although RM Prosecutors generally give us unsolicited advice with respect to tests 3 & 4, and occasionally on test 5, we ONLY ask their opinion on evidentiary test number 2.
If the investigator cannot form the reasonable belief necessary to lay a charge, after having exhausted all necessary investigative avenues, there is no need to seek the advice of the RMP. If the investigator is not quite sure, or if the investigator believes that there is indeed sufficient evidence to lay a charge, then regulations require us to seek a "pre-charge" legal opinion in writing from the RMP, with respect to evidentiary test number 2 only. The final decision to charge rests strictly with the investigator. Such written legal opinions are only to be interpreted as one tool necessary to conduct the analysis specified in test 2.
When a written legal opinion is received from the RMP, ignore all comments on the public interest and the reasonable prospect of a conviction. Direct your attention only to the analysis of whether or not there exists an evidentiary basis to form a reasonable belief necessary to lay the specified charge.
. . . If charges are going to be laid, no great analysis in the SI report is necessary. Simply say words to the effect that "this investigation has determined that there is an evidentiary basis to allege that [the subject(s)] contravened [whatever acts or regulations]. As such, [the subject(s)] will be charged with [x number of specified charges under whatever applicable act].

[A]ny time I hear of anything that talks about people wanting to apply the terminology zero tolerance, my antennas immediately go up because in many cases, that is just a facile way of not applying your brain to figure out what's going on.

. . . [I]f you don't have that kind of latitude [to use discretion], if you don't expect that kind of latitude, then you've got nothing but -- I hesitate to use it -- but you've got a mini police state working in there which is clearly going to create a huge confrontation within the organization, because from my perspective, if you can't bring discretion to bear on a relatively simple situation like this, then how can I, as a Commander, be comfortable that the application of police activity and military justice is going to be reasonable. If you have to wait until you've gone to a federal appeals court before you actually get the right answer, he says with prejudice, well there is an awful lot of damage that has been done along the way, and I don't think that's fair.

Former Vice Chief of the Defence Staff, Admiral Gary Garnett, offered the following insights:

In all cases, the Provost Marshal, in using advice from the Prosecutor's Office, has a degree of discretion. Certainly initially the discretion is in the review of whether even to proceed with an investigation. That is a degree of discretion.

In relation to the changes in policing, certainly the Provost Marshal would have been very conscious that in this new cultural era -- and now I'm speaking, you know, I'm trying to put things in a bit of a historical context in '97, '98 through to, you know, leading to today -- that the Provost Marshal would have been very conscious initially that the overall performance of her office and the independent investigation and laying of charges had to be as a package, if you like, again beyond reproach and certainly not wanting to have the same kinds of criticism that took place before that, that the chain of command was exercising too much discretion and exercising discretion differently based on rank in particular.

So the Provost Marshal would have been aware of that and again that zero tolerance notion may well have been very strict at the beginning, or was, in relation to what I answered before in terms of police beyond reproach.

. . .

I think that it's only fair and logical that these new processes that were tremendously difficult and culturally difficult for the Canadian Forces, that when they mature, then, indeed, the issue of discretion can become a little broader and a little more broadly applied.

The Chairperson remains concerned that 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. The objective - to develop a policy on investigations that will not overlook wrongdoing or be improperly influenced by the Chain of Command - is good, but the strict application of the policy may cause harm. A "zero tolerance" approach may end up sacrificing the innocent in order not to miss the guilty.

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.

Discussion on the application of discretion in the Military Police environment led to a description of the culture within the Military Police organization. Inspector Grabb provided some interesting insights to this culture from the perspective of a member of the Royal Canadian Mounted Police on secondment with the Military Police. Following are some of these comments:

…
Culturally within the NIS, they believe - - they tended to believe that any violation of policy on any case - - and I can cite many outside of the Battista situation - - any violation where someone gets a meal that they are not entitled to in policy, that is automatically in and of itself proof that an offence has been committed.
…
But I was also alive to their cultural tendency, not Dixon's tendency but the whole NIS tendency to want to jump - - eat their own young and jump all over their own people before the investigations are completed. …

And I remember thinking my first reaction when I first got to the NIS, which would be obviously eight to nine months before the Battista case came to my attention, that the policies, the rules, the culture, the procedures, the way they go about their business creates a culture of cruelty for particularly senior officers in the military. And I was really uncomfortable when I first got there and I remember having a number of philosophical discussions with Brigadier General Samson about this and the whole notion of equality before the law and how senior officers were being put under a microscope to a greater degree than any other individuals who were the subject of complaints.

Now of course, public perception was just the opposite that the rank and file were under a microscope and going to jail while senior officers were walking and things were being swept under the rug. It became very apparent to me that the 'zero tolerance approach', particularly with Majors and above, creates the impression that the NIS was devoting an awful lot of time, energy and money and the whole justice system indeed was focusing on an awful lot of trivial cases, which is the unfortunate consequence of a 'zero tolerance policy', whereby every complaint, no matter how trivial, as long as there is a factual basis to suggest that an offence might have been committed - - I am not talking administrative conduct. I am talking statutory violation or Criminal Code, then there is always an obligation to open up a file and do an investigation. And where the evidence exists to lay a charge, no matter how trivial, charges will be laid, if the investigator can form a reasonable belief.
…
But what we have here in the Battista case is perception created by 'zero tolerance policy', mandatory charge and decision to look at travel claims as a potential statutory violation as opposed to administrative irregularities. And one last point, the culture of the investigators, I remember when I first joined the RCMP, a lot of my peers fresh out of the Academy were put on traffic duties and were eager to pull over every vehicle that didn't have their licence plate properly affixed and speeding for one kilometer over the limit. There was this cultural attitude among junior officers to want to enforce every violation of every law ……. That was kind of in many instances the culture with the NIS investigators. Any irregularity, any potential conduct that was out of line and could be potentially statutory was automatically looked at as a possible NIS investigation in every instance. And it would be highly narcissistic for a Colonel Battista and Major Wight to assume that they were centred out for any particular unfair treatment ….. It was just one of many sensitive cases we were working on and we were doing our best to survive with five or six investigators and a caseload of about 80 cases.

It is obvious from these observations that any change in the use of discretion by Military Police investigators must be accompanied by a change in the culture of the organization and its investigators. A better distinction must be made between breaches of administrative policies and statutory or criminal offences. This would serve to better focus and utilize the valuable resources of the Canadian Forces National Investigation Service. If the culture within the Canadian Forces National Investigation Service, as described by Inspector Grabb, exists, it must be replaced by a culture of fair, focused, objective and unbiased investigators that are rank blind. Officers and Non-Commissioned Members must be treated similarly by the investigative arm of the military justice system.

In light of the harms associated with "zero tolerance" notions, the Chairperson finds that the Provost Marshal must reconsider the "zero tolerance" practice. Military police members need discretion to perform their duties fairly. 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 #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.

Military Police are required by the Queen's Regulations and Orders for the Canadian Forces to consult with legal counsel from the Office of the Director of Military Prosecutions about the laying of charges. 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. For example, the Commission may need to examine the information that the Military Police provided to military prosecutors to determine if that information is accurate and complete.

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. It seriously limits the ability of the Commission to monitor the actions of the Military Police if the information that influences those actions is withheld from the Commission on the grounds of solicitor-client privilege.

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.

When a civilian police agency consults Crown prosecutors, the privilege in any resulting legal opinion belongs to the police. This may well be an appropriate model for legal opinions given to Military Police. The present administrative procedure does not allow the Provost Marshal to waive solicitor-client privilege. 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, whom the Chairperson considers the client in this relationship. 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 understands and respects military culture and that the Provost Marshal is part of the Canadian Forces/Department of National Defence. Still, control over the legal opinions it obtains is necessary for the Military Police to be credible and independent. The Chairperson finds that the authority to waive solicitor-client privilege should in future rest with the Provost Marshal.

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.

Both Lieutenant-Colonel Battista and Major Wight are members of the military police. They were investigated by other members of the military police. To an outside observer, the prospect of a police organization investigating its own members may well raise concerns about impartiality, favoritism or bias in the conduct of the investigation, especially in a small organization such as the Military Police. Furthermore, simply because a seconded member of the Royal Canadian Mounted Police or another police force is involved in a Canadian Forces National Investigation Service investigation does not make it a joint investigation.

The National Defence Headquarters Policy Directive: Revised Military Police Investigation Policy, distributed by the Provost Marshal on May 7, 1999, states in part:

Investigation of Offences Committed by Military Police Personnel

19. Offences committed by Military Police personnel will be investigated by CFNIS, by a joint investigation involving CFNIS and a civilian police force, or solely by an outside agency. The composition of the investigative team shall be determined by the CFPM in accordance with the continuum at Annex F. Whenever possible CFNIS investigators will not be tasked to investigate a Military Police person(s) within the same [geographical] area/area of responsibility. It is emphasized that notwithstanding these guidelines the CFPM has the discretion to assign an investigation to other investigators. Further, the CFPM is the only authority who may deviate from this continuum.

20. Investigations into alleged breaches of service regulations/criminal code offences, involving Military Police personnel, shall be reported to DPM CFNIS Invest SP as soon as possible. The Military Police Unusual Incident Report would normally be the first communiqué that would alert DPM CFNIS Invest Sp of allegations involving Military Police personnel.

The investigative continuum set out in Annex F of this policy indicates that a civilian police agency should conduct the investigation if the subject of the investigation is a Military Police/Canadian Forces National Investigation Service member and it involves a sensitive offence.

Several of those who appeared before the Commission were asked for their views about whether the Canadian Forces National Investigation Service should investigate military police members. Lieutenant-General Campbell spoke of the concern in the Canadian Forces National Investigation Service "that they don't want to be perceived by Canadians and by those in government and elsewhere as showing favouritism to either senior officers or members of their own organization." He added:

Now, could that be solved by having somebody who is independent come in and do it? I think that may be so. It brings with it though some added dimensions of what happens if this is on deployment, what if it takes place overseas?

So I don't know whether the advice that I would give here would be let's automatically move anything that has to do with a military police member outside of the Canadian Forces because I think there will be circumstances where that probably would not be the right approach. But is that one of the avenues that should be made available or should be used? I think so and in fact the avenue exists. We've done that in certain cases, used external review authorities for particularly sensitive cases.

Commission counsel asked Lieutenant-Colonel Dixon if the type of investigation in this case -- military police officers of high rank, when sensitive issues are brought up in relation to them -- should as a matter of policy be referred outside the Canadian Forces National Investigation Service. Lieutenant-Colonel Dixon replied that he considered the presence of Inspector Grabb (who had been seconded from the Royal Canadian Mounted Police but was working under the direction of Military Police management) satisfied that requirement. However, Inspector Grabb's involvement with this case was minimal because of other pressing duties. He was certainly not the lead investigator.

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.

Deciding to engage outside investigators is very much a judgment call. However, the facts of the present case suggest that, if an investigation was considered necessary, relying on outside investigators might have been appropriate for several reasons:

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.

Although Canadian Forces National Investigation Service investigators concluded that there was insufficient evidence to form a belief that Major Wight had committed any offence, he was subjected to two (2) Canadian Forces National Investigation Service investigations followed by the temporary suspension of his Military Police credentials.

Major Wight's complaint in the NSI 370-0006-00 investigation alleged that investigators did not perform essential research in advance to identify the elements of the offence. He maintained that, had this been done, investigators would have determined that there was no need to investigate his conduct further.

In this case, investigators simply 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 #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.

Major Wight also raised a question about the treatment, by the Canadian Forces National Investigation Service investigators, of Chief Warrant Officer Galway implying that Chief Warrant Officer Galway was treated better than was Major Wight. Given the circumstances and the fact that this represented the second investigation of Major Wight, it is understandable that Major Wight might raise this question and may have entertained suspicions of differing standards of treatment. Although the atmosphere during the Canadian Forces National Investigation Service interviews of Major Wight and Chief Warrant Officer Galway differed somewhat, this appears to be more a factor of circumstances and interview content than preferential treatment by the investigators.

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.

The purpose of limiting the legal authority of the chain of command in investigations is to maintain the integrity of the military justice system. The 1997 Report of the Special Advisory Group on Military Justice and Military Police Investigative Services (often referred to as the Dickson report) stressed the need for Military Police to be independent in the investigation of service offences, and recognized that the system then in place did not give the appearance or reality of independence:

As a result, the report recommended a number of changes to the Military Police function:

Those in the Chain of Command may possess knowledge and a perspective on issues that can be useful to investigators and the Provost Marshal. It might be appropriate in certain cases to allow them to communicate their views about the conduct of investigations and prosecutions. However, maintaining the integrity and independence of the system and yet allowing these views to be communicated poses a delicate problem.

In his independent review of the VCDS/CFPM Accountability Framework dated June 12, 2001, former Royal Canadian Mounted Police Commissioner, Mr. Philip Murray, addressed the principle of the independence of the criminal investigative process and the reporting relationship of the entire Military Police to the Canadian Forces Provost Marshal by recommending that a full analysis of these issues be included in the first five year review of the 1998 amendments to the National Defence Act. 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 review of the Act.

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.

Several of those who gave evidence to the Commission mentioned the enormous strain placed on Ms. , Lieutenant-Colonel Battista's administrative assistant, by the events under investigation. Although she was in no way implicated in any possible wrongdoing, Ms. found herself at the centre of the investigation of Lieutenant-Colonel Battista and Major Wight. She was not the person who reported the alleged misconduct relating to the attendance by Lieutenant-Colonel Battista and Major Wight at the funeral, but others may have thought she was.

Amidst all this, Ms. had to continue to work in the same office environment with Lieutenant-Colonel Battista and Major Wight. This certainly created a situation of conflict and distress for her. On one hand, she was attempting to perform her professional duties for these two officers, while on the other hand she was being asked to provide information that might incriminate them. Yet, the Canadian Forces National Investigation Service appeared to abandon her when she wanted to turn to it for advice and assistance. The investigator, who had interviewed her, told her to call him but Ms. found that he was frequently not available. Investigators must become more aware of the strain that some investigations place upon witnesses and recognize their duty to assist.

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.

V: Chairperson's Findings Subsequent to the Investigation

Findings Relating to Specific Issues