Table of Contents

1. Military Police Complaints Commission
1. Scope of the Public Interest Investigation
2. Methodology
1. Document Review
2. Designated Members
3. Persons Interviewed
4. Assisting the Complaints Commission
5. Legal Framework of the Public Interest Investigation
6. Burden of Proof and Jurisdiction

II. MILITARY POLICE COMPLAINTS COMMISSION

The Complaints Commission was created by amendments, in 1998, to the National Defence Act^[7] (NDA). Subsection 250.18(1) of the NDA authorizes any person, including Department of National Defence (DND) and Canadian Forces (CF) personnel to make a complaint to the Complaints Commission about the conduct of a member of the Military Police in the performance of policing duties or functions prescribed in the Complaints About the Conduct of Members of the Military Police Regulations, Appendix 7.2 of volume IV of the Queen's Regulations and Orders for the Canadian Forces (Regulations). Under the NDA, the Canadian Forces Provost Marshal (CFPM) is initially responsible for dealing with conduct complaints, such as the complaint submitted by WO Hamm. The CFPM has delegated these responsibilities to the DPM PS. In addition, under section 250.31 of the NDA, a complainant who is dissatisfied with the disposition of a conduct complaint in the first instance, as set out in a report under section 250.29, may request, in writing, a review by the Complaints Commission. Subsection 250.32(2) of the NDA provides that, in conducting a review of a complaint, the Chairperson of the Complaints Commission (Chairperson) may investigate any matter related to the complaint.

The Complaints Commission is a civilian oversight authority external to, and independent of, the DND and the CF. The Complaints Commission was created to render the handling of complaints involving the Military Police more transparent and accessible and to ensure that both complainants and members of the Military Police are dealt with impartially and fairly. The mandate of the Complaints Commission is to promote and ensure the highest standards of conduct of members of the Military Police in the performance of their policing duties, to discourage improper interference with any Military Police investigation and to advance the climate of confidence within the DND, the CF and the Canadian public regarding the Military Police. The Complaints Commission carries out quasi-judicial functions pursuant to statutory authority. It has jurisdiction to monitor and review complaints lodged with the CFPM about the conduct of Military Police members in the performance of their policing duties or functions. It has exclusive authority to conduct investigations into complaints alleging interference with any Military Police investigation.

The NDA allows the Complaints Commission to investigate only those events occurring on or after December 1, 1999. The CFPM deals with complaints relating to events that occurred before December 1, 1999. However, the Complaints Commission may examine events occurring before December 1, 1999, to provide the necessary background for its investigations into more current events.

(a) Scope of the Public Interest Investigation

Subsection 250.38(1) of the NDA provides that if, at any time, the Chairperson considers it advisable in the public interest, she may cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into a conduct complaint or an interference complaint.

On October 31, 2002, the Chairperson 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 WO Hamm and Cpl Hamm and, if warranted, to hold a hearing. As both complaints concerned the same incidents, it was decided to investigate both complaints jointly. The decision to conduct a public interest investigation in this matter was taken, essentially, because:

1. the complaints contained numerous allegations of a serious nature;
2. certain elements of the complaints struck at core issues in military policing, such as the proper role and conduct of the Military Police when conducting arrests; and
3. allegations that superiors had abused their authority or had attempted to influence or punish complainants for exercising their right to submit a complaint, if true, might reflect a denial of those complainants' rights.
As required by subsection 250.38(3) of the NDA, the Chairperson notified the Minister of National Defence, the Chief of the Defence Staff (CDS), the Judge Advocate General (JAG) and the CFPM of her decision, and the reasons for it, in letters dated October 31, 2002. On the same date, the complainants (WO Hamm and Cpl Hamm), the subject members (Chief Warrant Officer (CWO) Pierre Gauvin, Master Corporal (MCpl) David Paul, Cpl Pierre Murray, WO Stephen Rice; Lieutenant-Colonel (LCol) Shelley Carey, Major (Maj) John Pumphrey), and witnesses, were notified that the public interest investigation would address the following issues:^[8]
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?
On the same date, the Chairperson also notified Maj Pumphrey, as former Acting DPM PS, and LCol Carey, DPM PS, that they were considered subject members of the complaints as authors of the DPM PS' Letters of Final Disposition relating to WO Hamm's complaint and in light of issues five (5) and six (6) to be addressed in the public interest investigation.

(b) Methodology

(i) Document Review

The Complaints Commission assembled and thoroughly reviewed voluminous relevant documentation including documentation related to the investigations conducted by the CFNIS^[9] and the DPM PS.^[10]

Subsequent to WO Hamm's request for review forwarded on April 30, 2002, the Chairperson made a request to the DPM PS on May 6, 2002 for all information and materials relevant to the complaint.

On May 27, 2002, the Complaints Commission received the first shipment of documentation and materials from the office of the DPM PS. Following the initial collection and analysis of information and materials, detailed requests were made on July 12, 2002, September 11, 2002, December 3, 2002, December 10, 2002, and January 17, 2003, to the offices of the DPM PS or the CFPM for further documentation. Documentation and/or responses were received on November 26, 2002, December 30, 2002, and March 10, 2003.

Additional documents were also presented to the Complaints Commission, some by witnesses who identified documents that had not previously been provided.

The Complaints Commission also examined the following:

• National Defence Act, R.S.C. 1985, c. N-5.
• The Queen's Regulations and Orders for the Canadian Forces.
• Complaints About the Conduct of Members of the Military Police Regulations, App. 7.2 of volume IV of the Queen's Regulations and Orders for the Canadian Forces.
• A-SJ-100-004/AG-000 Military Police Policies.
• A-SJ-100-004/AG-000 Military Police Policies and Technical Procedures.
• Military Police Professional Code of Conduct, S.O.R./2000-14.
• Canadian Forces National Investigation Service Standard Operating Procedures.
• Canadian Forces Administrative Orders.
• Military Justice at the Summary Trial Level, B-GG-005-027/AF-011 updated September 14, 2001.
• Canadian Forces Medical Orders, A-MD-175-002/AG-001.
• Standard Operating Procedures, 4 Wing SAMP Sqn., Cold Lake, Alberta.
• Criminal Code, R.S.C. 1985, c. C-46.
• Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11.

(ii) Designated Members

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 and Mr. Odilon Emond.

(iii) Persons interviewed

The public interest investigation was conducted in two stages. In the first phase, Mr. Elwood Johnston, an investigator retained by the Complaints Commission, and Mr. Tom Pedersen, the Complaints Commission's Director of Operations, were asked to gather facts and details concerning the complaints, including interviewing witnesses as required for the Complaints Commission's evaluation. Between September 16, 2002 and February 5, 2003, they interviewed Cpl Hamm, Andrea Hamm, Superintendent (Supt) Russ Grabb, WO Hamm, WO Diane Lewis, WO Rice, Sergeant (Sgt) Andrew Smith, Sgt Jim Berney, Maj Paul Thobo-Carlsen, Elena De Guzman, Dr. Paul Burke (Captain (Capt)), Dr. Louise Laplante, Sgt Claude Dussault, Master Warrant Officer (MWO) Peter MacFarlane; Capt Glen Morrison (then Lieutenant), Capt John Pineau, Capt Gary Chiasson, Dr. Linda McNally, and MWO K.R. Rutter (retired).

In the second phase of the public interest investigation the Commission Members decided, as part of their ongoing investigation, to interview certain individuals who they believed might be able to enlighten them further regarding the complaints and allow the complainants' allegations to be fairly weighed. On and after January 16, 2003, the Commission Members sent correspondence to some individuals requesting interviews before Commission Members as part of the Complaints Commission's public interest investigation. Between February 12 and April 8, 2003, inclusive, the Commission Members interviewed eleven (11) individuals personally at its offices in Ottawa: Cpl Hamm, WO Hamm, Capt Pineau, CWO Gauvin, LCol Donald Dixon, Sgt Dussault, Capt Chiasson, WO Rice, Inspector (Insp) Wade Blizard, Capt Robert Bell, and Maj Thobo-Carlsen. The Commission Members also interviewed MWO Richard Dennique by teleconference and CWO Frank Galway by video conference. All interviews in both phases of the public interest investigation were recorded. The correspondence sent to each individual informed them of their rights including the right to have a person of their choosing accompany them to the interview. All individuals were provided with ample opportunity to express their point of view.

The following four (4) individuals refused the Commission Members' request for interviews: LCol Carey, MWO MacFarlane, MCpl Paul and Cpl Murray. Subsequently, all four (4) individuals were given an opportunity to respond to written questions provided to them. All four (4) individuals declined. The Commission Members also requested an interview with MWO MacFarlane who declined. However, MWO MacFarlane was interviewed in the first phase of the public interest investigation by Mr. Johnston.

(iv) Assisting the Complaints Commission

Assisting the Complaints Commission during its public interest investigation were Commission Counsel Julianne Dunbar and Registrar Suzan Fraser.

(v) Legal Framework of the Public Interest Investigation

Mr. Seheult, Commission Member, made a brief opening statement before the Commission Members interviewed each of the individuals. Among other things, he described the role of the Complaints Commission, pursuant to subsection 250.38(1) of the NDA, in conducting this public interest investigation to collect any information (oral, written or otherwise) which would allow the Complaints Commission to weigh, as fairly as possible, the complainants' allegations. Mr. Seheult also reminded the persons interviewed that this public interest investigation by the Complaints Commission was not a public hearing, nor an adversarial proceeding. The Commission Members acted as investigators whose role was to collect evidence and decide whether a public hearing was warranted. Those interviewed were told that they were under no obligation to answer questions or provide statements. To maintain the integrity of this public interest investigation, Mr. Seheult requested that each of the persons interviewed not disclose to anyone any part of the discussions stemming from their interviews with the exception of counsel, should they have retained one.

Finally, Mr. Seheult described the issues under investigation.

(vi) Burden of Proof and Jurisdiction

The Complaints Commission applies a civil balance of probabilities standard in making findings of fact for the purpose of a public interest investigation as required by case law and doctrine.

Part IV of the NDA gives the Complaints Commission the jurisdiction to review a complaint about the conduct of a member of the Military Police in the performance of policing duties or functions prescribed in the Regulations. In doing so, it may investigate any matter related to the complaint. Queen's Regulations and Orders for the Canadian Forces (QR&O;) Appendix 7.2 (Complaints About the Conduct of Members of the Military Police Regulations), subsection 2(1), specifies certain matters that are policing duties or functions for the purpose of subsection 250.18(1) of the NDA, including:

1. the conduct of an investigation;
7. the enforcement of laws;
8. responding to a complaint; and
9. the arrest or custody of a person.
In this case, the Regulations clearly designate the arrest or custody of a person as being a policing duty or function. The Complaints Commission therefore has jurisdiction to review or investigate a complaint about a Military Police member's conduct in conducting an arrest and related manners, as well as the manner in which such a complaint is handled by the DPM PS.

Although the complaints lodged in this case suggested that part of the conduct complaint may have pertained to harassment, the Complaints Commission chose not to determine harassment issues in this particular case as other procedures already exist designed to deal with allegations of harassment involving military personnel.

In addition, the complaints considered in this public interest investigation contained allegations about the conduct of an investigator, Sgt Dussault, seconded from the Royal Canadian Mounted Police (RCMP) to Professional Standards, who conducted the Professional Standards investigation into WO Hamm's complaints. It was ascertained that Sgt Dussault was not appointed pursuant to section 156 of the NDA, although in his secondment agreement section 4.4 provides that "DND will provide the secondee with all the powers, authorities and appointments required, in accordance with the NDA to enable the secondee to perform his/her duties." Therefore, as Sgt Dussault is a member of the RCMP and was not appointed under section 156 of the NDA, the Complaints Commission has no jurisdiction to make findings with respect to his conduct or to name him as a subject member of this public interest investigation.^[11] Nevertheless, the Complaints Commission does have jurisdiction to consider whether the DPM PS, as the delegate of the CFPM who is responsible for dealing with Part IV matters in the first instance under the NDA, properly handled the complaints and does examine the Professional Standards investigation from that perspective.

The Commission Members believe that the CFPM's Part IV duties are properly characterized as "policing duties and functions" given the scheme of the NDA, the object of the legislation and the intent of Parliament. The Commission Members would like to point out that the current delegation of authority from the CFPM to the DPM PS does not affect their position. The NDA imposes the various Part IV duties on the CFPM and her decision concerning the day-to-day processing of complaints does not change this legal reality.

The handling of a complaint by the CFPM is a "policing duty or function". This is supported by subsection 2(1)(h) of the Complaints About the Conduct of Members of the Military Police Regulations (responding to a complaint). "Complaint" is not restricted by any term or expression that would suggest a different meaning than the plain one. Indeed, the term "complaint" is mentioned in numerous provisions of Part IV of the Act. It would be contrary to statutory interpretation principles to allege that Parliament opted for two (2) different meanings under the NDA scheme, namely Part IV of the NDA and of its Regulations (subsection 2(1)(h) in this case).

The CFPM is and should be the guardian of professionalism, integrity and ethics of the Military Police. As such, the CFPM and her delegates must set the example and must be held accountable for their actions before the Complaints Commission. Given the importance of professional standards in the discharge of policing responsibilities, Part IV duties are constabulary duties in pith and substance.

With respect to the object of Part IV of the NDA, the Commission Members would like to point out two (2) significant recent judgments^[12] that examined the purpose of a police complaint process. In both decisions the court described legislative purpose as being to "increase public confidence in the provision of public services, including the processing of complaints."^[13]

Although these decisions examined the Ontario scheme, the Commission Members have no reason to believe that the Federal Court, if seized, would endorse a different viewpoint vis-à-vis Part IV of the NDA. The object of the NDA and the intent of Parliament can be reasonably characterized as "increasing the public confidence in the provision of military police services."^[14]

Furthermore, one must bear in mind the reasons why Parliament created the Complaints Commission and tasked it to monitor and review conduct complaints. The Military Police, like the other police organizations, had to be held accountable for its actions before a civilian oversight agency. In light of this, Parliament enacted section 250.18 of the NDA and various provisions allowing the Complaints Commission to monitor the handling of complaints concerning the Military Police.

The process leading to and involved in this public interest investigation has, no doubt, imposed inconveniences and burdens on complainants, subject members and witnesses. Commission Members appreciate the cooperation, professionalism and dedication of all persons involved with the investigation. The Commission Members recognize that members of the Military Police must live up to dually high standards expected of both soldiers and police officers. Accordingly, while the actions of some may be criticized in this report, the Commission Members emphasize that they have the utmost respect for the complainants, subject members and witnesses.

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^[7] R.S.C. 1985 c. N-5
^[8] In the Chairperson's letter of October 31, 2002 five (5) issues were identified. Subsequently, these issues were modified into the listed six (6) issues.
^[9] File No. NIS 525-0029-2000.
^[10] File No. 2120-20-2-3/TD 088-2000 (DPM PS).
^[11] WO Hamm and Cpl Hamm were advised of this by the Commission Members at the outset of their interviews before the Complaints Commission.
^[12] Browne v. Ontario Civilian Commission on Police Services, (2001) O.J. no 4573 (QL); Canadian Civil Liberties Association v. Ontario Civilian Commission on Police Services, (2002) 220 D.L.R. (4th) 86.
^[13] Browne v. Ontario Civilian Commission on Police Services, ibid., at para. 67.
^[14] Canadian Civil Liberties Association v. Ontario Civilian Commission on Police Services, supra note 12, at para. 35.