Table of Contents

4. Issue 5: Are the Rights of Complaints Being Negated Due to a Lack of Adherence to Part IV of the National Defence Act, through the Internal Classification of Complaints?
1. Commission Members' Finding and Recommendations: Issue 5
1. The "Internal" Classification of Warrant Officer Hamm's Complaint
2. Potential Effects of the Internal Designation on the Rights of Complaints and Subjects of Complaints

D. ISSUE 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?

(1) Commission Members' Findings and Recommendations: Issue 5

On September 4, 2001, the Complaints Commission first learned of the conduct complaint of WO Hamm dated December 14, 2000. The Complaints Commission received a letter dated August 30, 2001 from Supt Grabb, OC CFNIS SI, in which he formally requested that the Complaints Commission conduct "a complete review of the complaint, investigation and issues" incidental to its investigation of WO Hamm's complaint.

Subsection 250.21(2) of the NDA stipulates that the person receiving a conduct complaint must ensure that notice of the complaint is sent "as soon as practicable" to the Chairperson and to the CFPM. Accordingly, on November 9, 2001, the Chairperson wrote to the DPM PS, LCol Carey regarding the failure to notify the Complaints Commission of WO Hamm's complaint and the related investigations that had been conducted or were contemplated in relation to WO Hamm's complaint.

The Chairperson pointed out that a complaint of unlawful arrest by members of the Military Police is an obvious conduct complaint falling within the definition of subsection 250.18(1) of the NDA. Accordingly, the Chairperson should have been notified shortly following the receipt of WO Hamm's complaint at the office of the DPM PS in December 2000. The Chairperson asked the DPM PS, LCol Carey, to explain why the legislative requirements were not followed and expressed concern that the failure to deliver appropriate notices might indicate that the complaint was going to be handled as an "internal" investigation. In this instance the complaint would not have been investigated and monitored by the Complaints Commission had it not been brought independently to the Complaints Commission's attention.

The initial set of documentation received included a copy of the Chairperson's letter. On this copy, the DPM PS, LCol Carey, had written a note to "MWO" on November 14, 2001, asking that a letter be drafted to the Complaints Commission outlining that an acknowledgement letter was sent to subjects and the complainant the previous December when the complaint was received and that notification of Complaints Commission was omitted in error. The notation concluded "Leave it at that." In a further letter dated November 15, 2001, the DPM PS, LCol Carey, apologized:

One of the documents enclosed with the LCol Carey's letter of November 15, 2001 was headed: "(RESUME Invest Ltr to All)" and referenced file DPM PS 2120-2-3/TD 088-00, the file number of the Professional Standards investigation of WO Hamm's complaint. It notified the subject members and complainant of the completion of the CFNIS investigation and the resumption of the Professional Standards investigation with regard to the allegations in the original complaint. The heading again referred to "Professional Standards Internal Investigation."

On December 3, 2001, the Chairperson again wrote to the DPM PS, LCol Carey, asking for an explanation of the "internal" classification.

On December 17, 2002 Complaints Commission investigator Mr. Elwood Johnston interviewed MWO MacFarlane. He commented on the heading "internal investigations." He stated that, generally, if a complaint emanates from the Military Police section, for example, the Chain of Command, then it is classified as "internal". If it is a public complaint, the Complaints Commission gets it immediately. He indicated that this is an interpretation by the DPM PS depending on the circumstances of each case and the practice would continue. If the DPM PS feels that the Complaints Commission should be involved or advised concerning an "internal" investigation, then a letter would be sent. MWO MacFarlane did indicate that the Complaints Commission would continue to get all public complaints on a routine basis.

However, the comments of MWO MacFarlane do not explain the basis for withholding notification to the Complaints Commission of this conduct complaint when the NDA clearly requires that the Complaints Commission must be notified of all conduct complaints. Conduct complaints are not restricted to complaints filed by the general public as opposed to CF members, Military Police members or DND personnel. Section 250.18(l) of the NDA states "Any person" may make a complaint about the conduct of a member of the Military Police.

In a letter to the Chairperson dated January 10, 2002, the DPM PS, LCol Carey, responded to the Chairperson's letter of December 3, 2001 by stating that the "internal investigation caption […] was done so in error and has since been rectified." In addition, the DPM PS, LCol Carey, explained to the Complaints Commission's Executive Director, Mr. Robert A. MacDougall, that the same investigators are tasked to investigate internal complaints and public complaints. Further, LCol Carey, DPM PS, explained that at the time WO Hamm made his complaint, the automatic macro pop-up screen to categorize complaints was set at "internal investigation". In order for a complaint to be listed as a "public complaint" in the DPM PS system, the macro had to be manually changed. The Complaints Commission has no knowledge of what, if any, changes have been made to rectify the situation for future cases.

On January 22, 2003, Tom Pedersen, the Complaints Commission's Director of Operations, interviewed MWO Rutter (retired) by telephone. He had signed the original Professional Standards tasking order dated December 14, 2000, headed "internal" investigation. MWO Rutter stated that complaints could be classified in the automated system used by Professional Standards as either "internal", "public", or "informal resolution". He also stated that, because the DPM PS, LCol Carey, signed the letter dated December 15, 2000 advising the subject members of the Professional Standards investigation, she was likely responsible for the "internal" classification. He believed that, because these were early days in handling these types of complaints, the classification was an error. MWO Rutter had no personal recollection of the classification of this particular complaint.

COMMISSION MEMBERS' FINDING # 31: 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 # 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' 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 for classifying complaints.