XII: Summary of the 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 #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.