Table of Contents

• Executive Summary
1. Background
2. The Complaints
3. Issues
4. Commission Members' Findings
5. Commission Members' Recommendations

EXECUTIVE SUMMARY

(a) Background

WO Rice called in two (2) Military Police members working at the Detachment, Master Corporal (MCpl) David Paul (then at the rank of Cpl) and Cpl Pierre Murray. He ordered them to go to Cpl Hamm's residence and order Cpl Hamm to attend the guardhouse. If he refused, they were to arrest Cpl Hamm and bring him to WO Rice.

The two (2) members attended Cpl Hamm's residence and told Cpl Hamm of WO Rice's order. Cpl Hamm called his doctor, Captain (Capt) Paul Burke, and was advised that he was not required to go in to work while on sick leave. MCpl Paul also spoke to Capt Burke and was advised the same. MCpl Paul told Capt Burke that unless he could provide him with a specific authority for Cpl Hamm refusing to accompany them, he would carry out the arrest. Cpl Hamm told the two (2) members that he would follow his doctor's advice. The two (2) members then arrested Cpl Hamm. MCpl Paul read him his Canadian Charter of Rights and Freedoms (Charter)^[1] rights. Cpl Hamm claimed that, at his residence, he asked the arresting members on a number of occasions why he was being arrested and he was not given a reason. Cpl Hamm was then transported to the guardhouse. At the guardhouse, Cpl Hamm was brought before WO Rice. This short meeting became heated. WO Rice more than once ordered Cpl Hamm to come to attention. Cpl Hamm refused, claiming he was under arrest and wanted to speak to counsel. Cpl Hamm abruptly left the meeting and went to the guardhouse interview room. He remained there, under guard, for approximately two (2) hours.

While in the interview room, Cpl Hamm unsuccessfully tried to contact Duty Counsel. He then called his brother, WO Michael Hamm, who is also a member of the Military Police and was posted to the Military Police Detachment at 8 Wing, Trenton, Ontario. Cpl Hamm advised his brother of his arrest and suggested he was arrested for no reason. During this conversation, WO Hamm also spoke to the arresting officer, MCpl Paul, who told him, among other things, that the situation had gotten "way out of hand" and agreed with WO Hamm's suggestion that the arrest was unlawful.

At some point while Cpl Hamm was in the interview room, Cpl Hamm's doctor spoke to WO Rice by telephone and advised WO Rice that Cpl Hamm's sick leave was given for                 . At about 13.00 hours, WO Rice briefed his superior, Chief Warrant Officer (CWO) Pierre Gauvin who had been away during the morning and was unable to be contacted about the situation. After being briefed, CWO Gauvin had Cpl Hamm brought to his office. CWO Gauvin claimed at this meeting, with WO Rice present, that he attempted to diffuse the situation. Cpl Hamm alleged that CWO Gauvin made certain statements that led him to feel intimidated and suggested to him that he should not complain further. At this meeting, WO Rice apologized to Cpl Hamm, stating that if he had known Cpl Hamm's leave was                 he would not have tasked him for the deployment to Inuvik in the first place. CWO Gauvin ultimately released Cpl Hamm from arrest by making a comment "I de-arrest you." Cpl Hamm was then driven home by another member of the Detachment.

WO Hamm, after speaking to his brother on December 12, 2000, became concerned about his younger brother's welfare and believed he might have been subjected to an unlawful arrest. He sought advice about what to do from his own superior at 8 Wing, Trenton, Ontario, Master Warrant Officer (MWO) Richard Dennique, and then from CWO Frank Galway, the A3 Security and Military Police (A3 SAMP) Chief Warrant Officer with the office of 1 Canadian Air Division Provost Marshal (1 CAD PM) at 17 Wing, Winnipeg, Manitoba. Ultimately, he provided some details of the information he had received to CWO Galway. CWO Galway, believing the information disclosed a possible breach of the Military Police Professional Code of Conduct^[2] , provided the information he had to the Deputy Provost Marshal Professional Standards (DPM PS). Independently, on December 14, 2000, WO Hamm sent a formal letter of complaint to the DPM PS.

WO Hamm's letter of complaint outlined in detail the information he had learned from Cpl Hamm regarding the events of December 12, 2000. WO Hamm also set out some matters affecting Cpl Hamm that had occurred at 4 Wing, Cold Lake during the preceding six (6) months. These incidents suggested that Cpl Hamm's superiors might have been mistreating Cpl Hamm or might have otherwise acted improperly during that period. WO Hamm emphasized in his letter that he was recounting third hand information, much of which he had received from Cpl Hamm.

On December 14, 2000, the DPM PS, referring to material received from CWO Galway on December 13, 2000 and the statement of complaint of WO Hamm dated December 14, 2000, issued tasking instructions to Sergeant (Sgt) Claude Dussault, a member of the Royal Canadian Mounted Police (RCMP) who was seconded to the Professional Standards section under the direction of the DPM PS. The tasking instructions defined four (4) allegations made by WO Hamm that were to be investigated:

1. that WO Rice may have abused his authority when, without lawful authority, he ordered the arrest of Cpl Hamm;
2. that WO Rice may have, while carrying out his duties, acted in a discriminatory or discourteous manner towards Cpl Hamm. This was during a verbal reprimanding which took place in front of several other people;
3. that MCpl Paul and Cpl Murray may have knowingly, without good cause, carried out an arrest that was unlawful when they arrested Cpl Hamm. They could not provide Cpl Hamm with a reason for his arrest; and
4. that CWO Gauvin may have intimidated or attempted to intimidate Cpl Hamm from complaining about the conduct of the Military Police members who ordered and effected his arrest.

On December 19, 2000, the Canadian Forces National Investigation Service (CFNIS) commenced an investigation to determine whether the circumstances described in WO Hamm's complaint disclosed the commission of criminal or service offences by members of the Military Police. The Professional Standards investigation was held in abeyance to await the completion of the CFNIS investigation.

The CFNIS investigation ultimately focused on two (2) basic issues: whether service or criminal offences had been committed in relation to the alleged unlawful arrest of Cpl Hamm on December 12, 2000 and whether CWO Gauvin had tampered with a witness who testified at an earlier summary trial of Cpl Hamm. The issue of witness tampering arose out of a reference to underlying facts by WO Hamm in his formal letter of complaint dated December 14, 2000.

On July 8, 2001, the CFNIS found that there was no evidence to support the allegation of witness tampering directed against CWO Gauvin. Their investigation also found that MCpl Paul and Cpl Murray had reasonable grounds to believe that the service offence had been committed when Cpl Hamm refused to accompany them pursuant to WO Rice's order. They were therefore found to be acting in good faith and had reasonable grounds to believe their actions were justified. This being the case, no further action against them was contemplated. The CFNIS investigation also found that WO Rice "recalled" Cpl Hamm to duty contrary to Queen's Regulations and Orders for the Canadian Forces (QR&O;) section 16.01,^[4] and concluded that he would be charged with one (1) count of Neglect to the Prejudice of Good Order and Discipline contrary to paragraph 129(2)(b) of the National Defence Act^[5] (NDA), for breaching the Regulations by failing to ensure that Cpl Hamm's Commanding Officer directed the recall. WO Rice was subsequently charged and had his credentials suspended for approximately ten (10) months.

On August 3, 2001, Major (Maj) Paul Thobo-Carlsen, the 4 Wing Security and Military Police Officer, dissatisfied with the outcome of the investigation by the CFNIS, wrote to the Deputy Provost Marshal of the National Investigation Service (DPM NIS) expressing his dissatisfaction and formally requesting that the CFNIS investigate several breaches of service regulations that Maj Thobo-Carlsen alleged were committed by Cpl Hamm relating to the events of December 12, 2000.

On August 9, 2001, WO Rice was summarily tried on the subsection 129(2) charge arising out of the CFNIS investigation and was found not guilty.

On August 29, 2001, Superintendent (Supt) Russ Grabb, then Officer Commanding of the CFNIS, Sensitive Investigation Detachment, replied to and refused Maj Thobo-Carlsen's request for an investigation or a further investigation of his allegations regarding Cpl Hamm. He disputed suggestions that the investigation conducted by the CFNIS was deficient and indicated that he would forward the CFNIS investigative materials to the Military Police Complaints Commission (Complaints Commission) requesting an unbiased review of the CFNIS and all issues incidental to the investigation.

On August 30, 2001, Supt Grabb wrote to the Chairperson of the Complaints Commission asking for a complete review of the complaint, the investigation, and issues related to the CFNIS report dated July 8, 2001. This was the first time that the Complaints Commission learned of WO Hamm's complaint or of the investigations by both the CFNIS and the DPM PS in relation to that complaint.

On November 9, 2001, the Chairperson of the Complaints Commission wrote to the DPM PS, LCol Carey, referencing the letter received from Supt Grabb and the complaint lodged by WO Hamm. The Chairperson inquired about the rationale for the classification as an "internal" investigation and the failure to notify the Complaints Commission of the conduct complaint lodged by WO Hamm as required by subparagraph 250.21(2)(c)(i) of the NDA.^[6] The DPM PS, LCol Carey, in subsequent correspondence, responded that the failure to notify the Complaints Commission was an oversight, that the situation had been rectified, and that it would not reoccur.

The Professional Standards investigation report was submitted on February 21, 2002. The investigation concluded that none of the allegations against the named subject members, WO Rice, CWO Gauvin, MCpl Paul and Cpl Murray, were supported by the evidence.

On April 5, 2002 and May 2, 2002, the DPM PS delivered Letters of Final Disposition of the Professional Standards Investigation to the named subject members, the complainant, WO Hamm and to Cpl Hamm. The Letters of Final Disposition dated April 5, 2002, were signed by LCol Carey, DPM PS, and the further Letters of Final Disposition dated May 2, 2002, were signed by Maj John Pumphrey, then acting DPM PS. The letters of April 5, 2002 were redone and signed on May 2, 2002 to ensure each individual received only the information pertaining to him. As was the case in the Professional Standards investigation report, and for essentially the same reasons, the four (4) allegations against the four (4) named subject members were stated to be unsupported based on the information, facts and evidence gathered in the investigation. The May 2, 2002 Letter of Final Disposition addressed to WO Rice noted his acknowledgement that he should not have acted                 during the incident with Cpl Hamm. It was directed that he should be counselled to ensure that, in similar circumstances, "he steps back from the situation before taking action to ensure the right decision is made." The Letter of Final Disposition addressed to CWO Gauvin noted that he was to be advised that he should not have released Cpl Hamm from custody on December 12, 2000 as it was the arresting officer's authority to do so.

The Letter of Final Disposition addressed to WO Hamm criticized him for having filed a complaint based solely on his perceptions that his brother was in distress and was being harassed and without first confirming the accuracy of his complaint. It directed that, although WO Hamm was not wrong to engage the Chain of Command in the matter, he should be counselled "to ensure that he ascertains a clearer understanding of the given situation, before involving himself in matters pertaining to another unit."

The Letter of Final Disposition addressed to Cpl Hamm found that he committed five (5) service offences in connection with the events of December 12, 2000; that in five (5) instances he supplied his brother with misleading information used as a basis for his lodging the complaint and that he committed three (3) violations of the Military Police Professional Code of Conduct. On April 15, 2002, the DPM PS directed the suspension of Cpl Hamm's Military Police credentials. The suspension was confirmed on April 23, 2002. Cpl Hamm's credentials have remained suspended as of the date this report was written.

(b) The Complaints

I would like to point out that I am the complainant in this matter, and Corporal Hamm was the victim. As a result of my complaint, it would appear that Corporal Hamm and I have now become subjects, and there are serious allegations made by professional standards with respect to his credibility, and by extension, mine. […]

I am completely dismayed with the conduct and outcome of the investigation by Professional Standards, and am asking that the entire investigation, including the investigative action taken by the Canadian Forces National Investigation Service, be reviewed.

On October 31, 2002, the Chairperson of the Complaints Commission decided, pursuant to subsection 250.38(1) of the NDA, that it was advisable, in the public interest, to cause the Complaints Commission to conduct an investigation into the complaints of Cpl Hamm and WO Hamm and, if warranted, to hold a hearing. As both complaints concerned the same incidents, it was decided to investigate both complaints jointly.

On December 30, 2002, pursuant to subsection 250.11(3) of the NDA, the Chairperson delegated her authority to conduct this public interest investigation and to prepare and send Interim and Final Reports in relation to it, to Commission Members Mr. Peter Seheult as Chairperson and Mr. Odilon Emond.

(c) Issues

1. Was the order to arrest Cpl Hamm issued by WO Rice proper and lawful?
2. Was the subsequent arrest by MCpl Paul and Cpl Murray proper and lawful?
3. Was the release from arrest by CWO Gauvin proper and lawful?
4. Did CWO Gauvin attempt to deter Cpl Hamm, in his office on December 12, 2000, through the use of intimidation or otherwise, from making a complaint in regard to his arrest?
5. Are the rights of complainants being negated due to a lack of adherence to Part IV of the National Defence Act, through the internal classification of complaints?
6. Did the DPM PS properly handle WO Hamm's complaint? Were Cpl Hamm and WO Hamm treated fairly after the latter filed his complaint?

(d) Commission Member's Findings

COMMISSION MEMBERS' FINDING # 2: The Commission Members find that, in light of the information that was available to them, it was reasonable for Warrant Officer Rice and Chief Warrant Officer Gauvin to believe that Corporal Hamm would return to work on December 14, 2000 and would be available to deploy to Inuvik on December 26, 2000.

COMMISSION MEMBERS' FINDING # 3: The Commission Members do not accept in its entirety the evidence given by Warrant Officer Rice or Corporal Hamm. In certain areas, their evidence was self-serving or inconsistent to the point that their credibility was questionable.

COMMISSION MEMBERS' FINDING # 4: The Commission Members do not accept in its entirety the evidence given by Warrant Officer Rice or Corporal Hamm. In certain areas, their evidence was self-serving or inconsistent to the point that their credibility was questionable.

COMMISSION MEMBERS' FINDING # 5: The Commission Members find no substantive evidence to support the conclusion reached by the Deputy Provost Marshal Professional Standards that Corporal Hamm manipulated the information to drive events in his favour.

COMMISSION MEMBERS' FINDING # 6: The Commission Members find, on a balance of probabilities, Warrant Officer Rice did not attempt to call Corporal Hamm back after their telephone conversation.

COMMISSION MEMBERS' FINDING # 7: The Commission Members find, on a balance of probabilities, that Warrant Officer Rice used profanity during his telephone conversation with Corporal Hamm. The Commission Members therefore find that Corporal Hamm was not insubordinate in hanging up the telephone.

COMMISSION MEMBERS' FINDING # 8: The Commission Members accept Warrant Officer Rice's explanation that his purpose in summoning Corporal Hamm to attend his office, after the latter hung up the telephone, was two-fold: (i) to resolve whether Corporal Hamm would prepare to deploy and (ii) to resolve the perceived discipline issue.

COMMISSION MEMBERS' FINDING # 9: The Commission Members find that the order or instruction by Warrant Officer Rice to come to the guardhouse is separate from the arrest itself. Therefore, although an arrest of a member for a service offence does not constitute a "recall to duty", the instruction by Warrant Officer Rice to bring Corporal Hamm to the guardhouse was a "recall to duty" within the meaning of Queen's Regulations and Orders section 16.01 and failed to meet the prerequisites of the section. Corporal Hamm's Commanding Officer did not personally direct the recall.

COMMISSION MEMBERS' FINDING # 10: The Commission Members find that Warrant Officer Rice, in ordering Corporal Hamm to be arrested if he refused to come in to the office voluntarily, was acting as a Military Police member and not in his capacity as a non-commissioned officer carrying out an administrative function. A Military Police member ordering or carrying out an arrest must follow the law and policies governing the exercise of Military Police functions and duties.

COMMISSION MEMBERS' FINDING # 11: The Commission Members find that, while insubordination or disobeying a lawful command are arrestable offences under the National Defence Act, in the circumstances of this case the arrest was not necessary nor was it reasonable and proportional to the alleged violation.

COMMISSION MEMBERS' FINDING # 12: The Commission Members find that Warrant Officer Rice's direction to the arresting officers in relation to Corporal Hamm's arrest failed to follow applicable Military Police Policies and Technical Procedures, namely sections 10, 11, and 16, relating to arrest without a warrant. The Commission Members also find that Warrant Officer Rice should have known of the policy requirements as well as those under section 495 (arrest without a warrant) of the Criminal Code of Canada and section 105.01 of the Queen's Regulations and Orders.

COMMISSION MEMBERS' FINDING # 13: The Commission Members find that Master Corporal Paul and Corporal Murray in carrying out the arrest of Corporal Hamm failed to follow applicable Military Police Policies and Technical Procedures, namely sections 10, 11, 13 and 16. The Commission Members also find that Master Corporal Paul and Corporal Murray should have known of the policy requirements as well as those under section 495 (arrest without a warrant) of the Criminal Code of Canada.

COMMISSION MEMBERS' FINDING # 14: The Commission Members find that Warrant Officer Rice did not properly exercise his discretion to order an arrest. Warrant Officer Rice failed to take into consideration existing law requiring a distinction to be drawn between the power to arrest and its exercise and he failed to consider whether, in the circumstances, the arrest of Corporal Hamm was necessary, justified in the public interest or proportional to the alleged violation.

COMMISSION MEMBERS' FINDING # 15: The Commission Members find that Master Corporal Paul and Corporal Murray, even though they were ordered to arrest Corporal Hamm, failed to exercise their discretionary powers of arrest as required of them as Military Police. As such, they failed to consider the distinction that must be drawn between a power to arrest and its exercise and they failed to consider whether, in the circumstances, the arrest was necessary, justified in the public interest or proportional to the alleged violation.

COMMISSION MEMBERS' FINDING # 16: The Commission Members find that Warrant Officer Rice did not provide sufficient information to Master Corporal Paul and Corporal Murray to enable them to form the reasonable and probable grounds required to effect a lawful arrest.

COMMISSION MEMBERS' FINDING # 17: The Commission Members find that Master Corporal Paul and Corporal Murray failed to confirm either the reason why Warrant Officer Rice wanted to see Corporal Hamm or the reason for the arrest before leaving the guardhouse for Corporal Hamm's residence. This lack of information prevented them from properly informing Corporal Hamm of the reasons for his arrest.

COMMISSION MEMBERS' FINDING # 18: The Commission Members find that Master Corporal Paul and Corporal Murray should have sought more information as it was their duty as the arresting officers to form the reasonable and probable grounds to arrest. As they lacked such grounds, the arrest of Corporal Hamm was unlawful.

COMMISSION MEMBERS' FINDING # 19: The Commission Members find that Master Corporal Paul and Corporal Murray did not form the reasonable and probable grounds to arrest Corporal Hamm and that no reasonable person could have genuinely believed that such grounds existed. Accordingly, the Commission Members find that the detention was arbitrary as per section 9 of the Canadian Charter of Rights and Freedoms.

COMMISSION MEMBERS' FINDING # 20: The Commission Members find that Corporal Hamm was not promptly informed of the reasons for his arrest which was in violation of paragraph 10(a) of the Canadian Charter of Rights and Freedoms. Accordingly, the Commission Members find that the arrest of Corporal Hamm was unlawful.

COMMISSION MEMBERS' FINDING # 21: The Commission Members find that Corporal Hamm had a right to make an informed determination whether the order given by Warrant Officer Rice was manifestly unlawful. It was therefore essential for Corporal Hamm, who pursuant to Queen's Regulations and Orders, section 19.015, note "C", could disobey a manifestly unlawful command, to be told why Warrant Officer Rice wanted Corporal Hamm to attend his office.

COMMISSION MEMBERS' FINDING # 22: The Commission Members find that Warrant Officer Rice acted beyond the scope of his authority and responsibility in the circumstances. It is therefore the Commission Members' finding that Warrant Officer Rice abused his authority.

COMMISSION MEMBERS' FINDING # 23: The Commission Members concur with the conclusion of the Deputy Provost Marshal Professional Standards that the fact that Warrant Officer Rice's course of action was chosen                 only served to inflame the situation. A different approach could have resolved the matter in a more appropriate fashion.

COMMISSION MEMBERS' FINDING # 24: The Commission Members find that Master Corporal Paul had a minimum of two (2) opportunities to advise Warrant Officer Rice that Corporal Hamm's leave was                : (i) at Corporal Hamm's residence after talking to Doctor Burke and (ii) in Warrant Officer Rice's office when Warrant Officer Rice confronted Corporal Hamm in Master Corporal Paul's presence.

COMMISSION MEMBERS' FINDING # 25: The Commission Members find that once Master Corporal Paul spoke to Doctor Burke at Corporal Hamm's residence, he should have advised Warrant Officer Rice that Corporal Hamm was                 or that questions had been raised about his sick leave status, in order to obtain confirmation that the arrest was still warranted.

COMMISSION MEMBERS' FINDING # 26: The Commission Members find that the notes and records of the incident made by Master Corporal Paul were deficient and not in accordance with best police practices. The failure of Master Corporal Paul to record the fact or details of his conversation with Doctor Burke in his notes or in any subsequent reports was a serious error.

COMMISSION MEMBERS' FINDING # 27: The Commission Members find that Chief Warrant Officer Gauvin did not have the authority to release Corporal Hamm. His releasing Corporal Hamm was not in accordance with the principles of subsection 158(1) of the National Defence Act and Queen's Regulations and Orders section 105.12. Chief Warrant Officer Gauvin should have called on the arresting officer, Master Corporal Paul, to release Corporal Hamm from arrest.

COMMISSION MEMBERS' FINDING # 28: The Commission Members find that the measure taken to advise Chief Warrant Officer Gauvin of the requirements for the release of arrested persons, pursuant to the direction in the Deputy Provost Marshal Professional Standards' Letter of Final Disposition, was appropriate and sufficient in the circumstances.

COMMISSION MEMBERS' FINDING # 29: The Commission Members find that, considering all of the circumstances, including the fact that Corporal Hamm was under stress and had just been arrested by his peers, Chief Warrant Officer Gauvin's comments and actions during the encounter in his office could well have caused Corporal Hamm to feel intimidated. However, the Commission Members could not find, on a balance of probabilities, that Chief Warrant Officer Gauvin attempted or intended to intimidate Corporal Hamm from complaining further.

COMMISSION MEMBERS' FINDING # 30: The Commission Members find that Chief Warrant Officer Gauvin should have used more appropriate language and his comments reflected poor police practice and management.

COMMISSION MEMBERS' FINDING # 31: The Commission Members find that the correspondence received from the Deputy Provost Marshal Professional Standards regarding the "internal" designation of Warrant Officer Hamm's complaint did not satisfactorily explain how the designation came about.

COMMISSION MEMBERS' FINDING # 32: The Commission Members find, on a balance of probabilities, that the "internal" designation was an error as there is no clear evidence to the contrary.

COMMISSION MEMBERS' FINDING # 33: The Commission Members find that errors in classifying complaints as "internal" rather than Part IV conduct complaints have the potential effect of nullifying important statutory rights of complainants and subjects of complaints.

COMMISSION MEMBERS' FINDING # 34: The Commission Members find that Corporal Hamm and Warrant Officer Hamm became subject members of the Professional Standards investigation when the seconded investigator determined early in the investigation that Corporal Hamm might have committed service offences or might have violated the Military Police Professional Code of Conduct and when the investigator determined that Warrant Officer Hamm failed to confirm the accuracy of the complaint.

COMMISSION MEMBERS' FINDING # 35: The Commission Members find that when the Professional Standards investigation focused on Corporal Hamm and Warrant Officer Hamm as subject members of the investigation, a new and separate investigation of the allegations against Corporal Hamm and Warrant Officer Hamm should have been commenced. Corporal Hamm and Warrant Officer Hamm should then have been provided with the appropriate notices and protections required by law and policy.

COMMISSION MEMBERS' FINDING # 36: The Commission Members find that the failure to designate Corporal Hamm and Warrant Officer Hamm as subject members of the investigation deprived them of their basic rights to natural justice, their rights to appreciate and defend themselves against the allegations or potential jeopardy they were facing, their rights of choice to refuse to be interviewed, and their rights to have counsel or an assisting officer present.

COMMISSION MEMBERS' FINDING # 37: The Commission Members disagree with four (4) of the five (5) conclusions of the Deputy Provost Marshal Professional Standards as stated in her Letter of Final Disposition dated April 5, 2002 that Corporal Hamm committed five (5) breaches to the National Defence Act.

COMMISSION MEMBERS' FINDING # 38: The Commission Members find that there was insufficient evidence to establish, on a balance of probabilities, that Corporal Hamm misinformed or provided misleading information to Warrant Officer Hamm about any matter relevant or material to Warrant Officer Hamm's complaint. Accordingly, the Commission Members find that Corporal Hamm did not mislead Warrant Officer Hamm in the five (5) manners detailed by the Deputy Provost Marshal Professional Standards.

COMMISSION MEMBERS' FINDING # 39: The Commission Members find that Warrant Officer Hamm did not err nor was he negligent in basing his complaint on information received from Corporal Hamm nor did Warrant Officer Hamm prematurely file his complaint based on the information received.

COMMISSION MEMBERS' FINDING # 40: The Commission Members find that Warrant Officer Hamm had an obligation, pursuant to section 7 of the Military Police Professional Code of Conduct, to report to his superior in the Military Police Chain of Command a belief in or awareness of an allegation that a member of the Military Police had breached the Military Police Professional Code of Conduct. The information Warrant Officer Hamm received on December 12, 2000 provided him with the requisite belief or awareness. There is no requirement to verify or investigate the belief or allegation before it is reported.

COMMISSION MEMBERS' FINDING # 41: The Commission Members find that Warrant Officer Hamm properly reported his reasonable belief to, and sought advice from, his superior in the Military Police Chain of Command at 8 Wing Canadian Forces Base, Trenton, Master Warrant Officer Dennique.

COMMISSION MEMBERS' FINDING # 42: The Commission Members find that it was reasonable and proper, in the circumstances, for Warrant Officer Hamm to follow Master Warrant Officer Dennique's advice.

COMMISSION MEMBERS' FINDING # 43: The Commission Members find that it was reasonable and proper for Warrant Officer Hamm to advise Chief Warrant Officer Galway of his concerns and to forward the information to Chief Warrant Officer Galway.

COMMISSION MEMBERS' FINDING # 44: The Commission Members find that, in the circumstances, Warrant Officer Hamm should not have been counselled and the direction to counsel Warrant Officer Hamm issued by the Deputy Provost Marshal Professional Standards was inappropriate.

COMMISSION MEMBERS' FINDING # 45: The Commission Members find that the Deputy Provost Marshal Professional Standards erred in concluding that Corporal Hamm violated paragraph 4(l) of the Military Police Professional Code of Conduct.

COMMISSION MEMBERS' FINDING # 46: The Commission Members find that the Deputy Provost Marshal Professional Standards' rationale for finding that Corporal Hamm violated paragraph 4(l) of the Military Professional Code of Conduct is so vague that it would be an unduly difficult allegation to defend against before the Military Police Credentials Review Board.

COMMISSION MEMBERS' FINDING # 47: The Commission Members find that it was unfair and improper for the Deputy Provost Marshal Professional Standards to rely on paragraph 4(k) of the Military Police Professional Code of Conduct, as Corporal Hamm was not advised either that he was a subject member of an investigation or that the Professional Standards investigation was addressing this issue.

COMMISSION MEMBERS' FINDING # 48: The Commission Members find that Corporal Hamm did not violate paragraph 4(h) of the Military Police Professional Code of Conduct in failing to disclose the reason for his sick leave to his supervisor. Corporal Hamm had no obligation in law to disclose the nature of his illness. It is, therefore, both improper and contrary to law to make Corporal Hamm's failure to disclose the reason for his sick leave a basis for either the suspension of his credentials or a finding that Corporal Hamm breached the Military Police Professional Code of Conduct.

COMMISSION MEMBERS' FINDING # 49: The Commission Members find that there was no evidence to support the conclusion of the Deputy Provost Marshal Professional Standards that Corporal Hamm knowingly revealed information intended to mislead the investigator.

COMMISSION MEMBERS' FINDING # 50: The Commission Members find that there was no evidence to establish that Corporal Hamm misinformed or withheld material information from Warrant Officer Hamm.

COMMISSION MEMBERS' FINDING # 51: The Commission Members find the suspension of Corporal Hamm's credentials for supplying false information to or withholding information from Warrant Officer Hamm was not justified.

COMMISSION MEMBERS' FINDING # 52: The Commission Members find that all the various and contradictory reasons advanced by the Deputy Provost Marshal Professional Standards to suspend Corporal Hamm's credentials are without merit and contrary to the evidence.

(e) Commission Member's Recommendations

COMMISSION MEMBERS' RECOMMENDATION # 2: The Commission Members recommend that Warrant Officer Rice receive, if he has not already, instructions on the elements and requirements for a proper arrest and the rights of suspects who are subjected to an arrest.

COMMISSION MEMBERS' RECOMMENDATION # 3: The Commission Members recommend that the Canadian Forces Provost Marshal impose corrective measures on Warrant Officer Rice for abuse of authority.

COMMISSION MEMBERS' RECOMMENDATION # 4: The Commission Members recommend that Warrant Officer Rice be given additional management training.

COMMISSION MEMBERS' RECOMMENDATION # 5: The Commission Members recommend that additional training be provided to Master Corporal Paul and Corporal Murray on Military Police powers of arrest, the law and Military Police Policies governing the exercise of powers of arrest and note-taking.

COMMISSION MEMBERS' RECOMMENDATION # 6: The Commission Members recommend that the Canadian Forces Provost Marshal impose corrective measures on Master Corporal Paul and Corporal Murray for the unlawful arrest of Corporal Hamm in failing to form the reasonable and probable grounds prior to the arrest and for violating Corporal Hamm's section 10(a) Charter right by not promptly informing him of the reason for his arrest.

COMMISSION MEMBERS' RECOMMENDATION # 7: The Commission Members recommend that the Canadian Forces Provost Marshal implement safeguards to ensure that the improper classification and handling of complaints will not reoccur. The Canadian Forces Provost Marshal should advise the Complaints Commission of the safeguards instituted to protect complainants' rights in this regard and of the procedures in place for classifying complaints.

COMMISSION MEMBERS' RECOMMENDATION # 8: The Commission Members recommend that the Deputy Provost Marshal Professional Standards acknowledge, with appropriate supplementary correspondence, that the direction to counsel Warrant Officer Hamm was inappropriate.

COMMISSION MEMBERS' RECOMMENDATION # 9: The Commission Members recommend that Corporal Hamm's credentials be immediately reinstated.

COMMISSION MEMBERS' RECOMMENDATION # 10: The Commission Members recommend that in all future complaint investigations, if an investigator perceives that a complainant may be suspected of having committed a criminal or service offence or a professional standards violation, a new and separate investigation be commenced with the complainant as the subject member. This will ensure the individual is afforded his or her rights according to law.

^[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.
^[2] S.O.R./2000-14.
^[3] A-SJ-100-004/AG-000.
^[4] Section 16.01 of the QR&O;'s provides that: " (1) Leave may be withheld from an officer or non-commissioned member only when there is a military requirement to do so. (2) An officer or non-commissioned member on leave may be recalled to duty only: (a) because of imperative military requirements; and (b) when the member's commanding officer personally directs the recall. (3) An officer or non-commissioned member recalled to duty under paragraph (2) ceases to be on leave and is on duty during the period of the journey from the place from which he is recalled to his place of duty and during the period of the return journey if he resumes leave immediately after completion of the duty for which he was recalled."
^[5] R.S.C. 1985, c. N-5; paragraph 129(2)(b) provides that: "An act or omission constituting an offence under section 72 or a contravention by any person of […] any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof […] is an act, conduct, disorder or neglect to the prejudice of good order and discipline."
^[6] Subparagraph 250.21(2)(c)(i) provides that: "The person who receives a complaint shall […] (c) ensure that notice of the complaint is sent as soon as practicable in the case of a conduct complaint, (i) to the Chairperson and the Provost Marshal."