Table of Contents

5. Issue 6: Did the Deputy Provost Marshal Professional Standards Properly Handle Warrant Officer Hamm's Complaint?

   Were Corporal Hamm and Warrant Officer Hamm Treated fairly After The Latter Filed his Complaint?

1. Commission Members' Finding and Recommendations: Issue 6
1. The Investigation by the Canadian Forces National Investigation Service
2. The Professional Standards Investigation
3. The Deputy Provost Marshal Professional Standards' Handling of Warrant Officer Hamm's Complaint: The Investigation Process
4. The Deputy Provost Marshal Professional Standards' Handling of Warrant Officer Hamm's Complaint; the Deputy Provost Marshal Professional Standards' Findings
1. Commission of Service Offence by Corporal Hamm
2. Allegation that Corporal Hamm Misled Warrant Officer Hamm
5. Was Warrant Officer Hamm Treated Fairly After He Filed His Complaint?
1. Conditions for Filing and Duty to Complain
2. Disclosure by Warrant Officer Hamm of his Concerns to the Chain of Command
3. Warrant Officer Hamm's Counselling
6. Was Corporal Hamm Treated Fairly After Warrant Officer Hamm Filed His Complaint?
1. Reason for Corporal Hamm's Suspension
2. Identification of Contradictory Reason for the Suspension of Corporal Hamm's Credentials

E. ISSUE 6: DID THE DEPUTY PROVOST MARSHAL PROFESSIONAL STANDARDS PROPERLY HANDLE WARRANT OFFICER HAMM'S COMPLAINT?

WERE CORPORAL HAMM AND WARRANT OFFICER HAMM TREATED FAIRLY AFTER THE LATTER FILED HIS COMPLAINT?

The Professional Standards investigation resumed on October 31, 2001. The investigation was completed and a report provided to the DPM PS on February 21, 2002. The DPM PS sent Letters of Final Disposition to the four (4) subject members, WO Hamm and Cpl Hamm. As previously indicated, the Professional Standards investigation was conducted by Sgt Dussault, an RCMP member seconded to DND. The investigation was, at all times, according to the secondment agreement, "[...] under the direction, control, supervision and instruction of the DPM PS." ^[199]

The office of the DPM PS tasked and advised the investigator and ultimately reviewed and acted on the investigator's report. Many of the statements and conclusions in the investigation report were incorporated verbatim into the DPM PS' Letters of Final Disposition. Sgt Dussault confirmed to Commission Members that he consulted with and reported to both LCol Carey, the DPM PS and MWO MacFarlane, the Master Warrant Officer In Charge of Professional Standards Investigations, during his investigation of WO Hamm's complaint.

The seconded Professional Standards investigator appears not to have submitted an investigation plan for approval even though he was tasked to do so. The seconded Professional Standards investigator told Commission Members that his point of contact as the investigation progressed was MWO MacFarlane. However, the content and direction of the investigation was, in essence, left to his discretion. He told Commission Members:

Basically, they give me the investigation and I run with it. If I have any questions, I know my limitations, so I go out and I seek the information. I will ask for counsel if I need it for guidance, but generally I do the investigation, I submit the report, I would discuss the findings, and if something happens in mid stream yes, there could be a conversation. But there was no specific direction given. ^[200]

The seconded Professional Standards investigator told Commission Members that, as a result of listening to the CFNIS interview tapes and before interviewing any witnesses, he concluded that it appeared as if Cpl Hamm had committed service offences in connection with the December 12, 2000 incident. He also knew of Maj Thobo-Carlsen's view that the CFNIS investigation had not "reflected" or "covered" Cpl Hamm's offences:

One of the things that I realized when I reviewed the tape was that NIS had all of the information at hand, and the conclusions - One of the points was that their role was supposed to be to investigate what happened from Corporal Hamm's perspective, Sergeant Rice, Corporal Murray and Corporal Paul, which meant that if there - that was my understanding - if there were any malfeasance on the part of Corporal Hamm, it should have surfaced in the investigation and been part of their report. I also knew that when the NIS investigators met with the Major - and I forget his name - at Cold Lake there was an understanding that they would investigate all of the people involved, including Corporal Hamm - the comments of Corporal Hamm. When I read their final report, it appeared to me that Corporal Hamm's behaviour had not been covered, or wasn't reflected in the report. Yet when I reviewed all of the tapes, all the information was there. Everything was there. There were several situations where Corporal Hamm clearly breached the Code - committed service offences under the National Defence Act, yet nothing was said. ^[202]

[…] The information that I gathered that I would put on paper would certainly not be flattering to him. So in fairness to him, I think it was fair to put all the information to him and say, "Here it is. What do you have to say? What happened?" And that's what I did. In order to do that, I had to do that once I was finished. ^[203]

MS DUNBAR: Would you agree with me that generally that's the type of approach that you would use for a member who is having to face allegations and have an opportunity to respond to those as somewhat of a last word? […]

SGT DUSSAULT: My problem was that I knew by the time I would write the report I would need to highlight the fact that, yes, in fact there were service offences committed by-it would appear. I am not the one that decides. It would appear based on the information, that Corporal Hamm may have committed service offences. ^[204]

MS DUNBAR: When did the red flag start going up in your mind […] "Okay, Corporal Hamm may have committed some service offences?" When did that start happening in the investigation? Was it before the interview of Corporal Hamm?

SGT DUSSAULT: Oh, yes, it was before the interview of Corporal Hamm, absolutely. ^[205]

"No, leave it be. Cover that in your report that there's the whole issue of the publication of the article and the involvement of Corporal Hamm. Don't contact the journalist." I said, Okay, that's fine. ^[206]

[...] This is when she pulled out the memo and that's when I became cognizant of the fact the OC of Cold Lake, MP detachment, when he perused the NIS report, was dissatisfied because Cpl. Hamm had not been dealt with in that investigation. So they sent a memo requesting NIS to investigate the alleged offence under the National Defence Act, service offences. ^[207]

The seconded Professional Standards investigator was also instructed by the DPM PS to cover and report on, without full investigation, Cpl Hamm's involvement in the press contact in his report.

The seconded Professional Standards investigator further concluded, as a result of his consideration of the CFNIS material and before interviewing any witnesses in connection with his own investigation, that there was reason to question Cpl Hamm's credibility and that Cpl Hamm had "manipulated information." He told Commission Members:

MS DUNBAR: Did you hear any initial thoughts or opinions that Corporal Hamm might have been playing the system or he was a manipulator? Did you hear those types of opinions early on in the investigation?

SGT DUSSAULT: No, but that came clear to me at the outset, once I started listening to the tapes.

MS DUNBAR: In what way did it become clear.

SGT DUSSAULT: You just listen to the tapes and then you understand - on the issue of the allegation that Mr. Gauvin had manipulated witnesses, that on the second summary trial he had contacted the individuals and that he had directed Sergeant Smith to ensure to do a better job, that he had showed some lacking in his first testimony, an on and on. Then, when you listen to the tape, that is not what happened. It was sheer manipulation of information. ^[208]

Nevertheless, the seconded Professional Standards investigator told Commission Members that he personally had concerns that his investigation of the four (4) named subject members would find that Cpl Hamm, who was not a named subject member, had committed service offences. His report recommended that Cpl Hamm's apparent breaches "should be investigated in a separate file." Sgt Dussault elaborated to Commission Members:

My problem was that I knew by the time I would write the report that I would need to highlight the fact that, yes, in fact there were service offences committed by-it would appear. I am not the one that decides. It would appear, based on the information, that Corporal Hamm may have committed service offences. I wasn't comfortable with that. It would have been preferable at one point for me ideally if I had put the information in the report and somebody would have turned around and read the information and said, "Okay, we are going to give this to a second investigator." That was my recommendation in the report. In my report I did state that. I said the apparent breaches of discipline, whatever, should be investigated in a separate file. ^[211]

The seconded Professional Standards investigator told Commission Members that he raised concerns about the matter with the DPM PS, LCol Carey, when he found out that Cpl Hamm's credentials were suspended after the Professional Standards investigation. He was concerned that Cpl Hamm's interview may have been used as a basis for Cpl Hamm's suspension after having been told that his interview would not be used against him.

When I heard he was suspended, I went back to Pete ^[212] and I said, "You know he was a witness in my case." I even went to Colonel Carey and she said, "Pete had told me about it. I understand what you are saying, but the decision to suspend Corporal Hamm was not based on your interview. It was based on the information provided by all the other parties. Just relax. It wasn't your interview of the information you got from Corporal Hamm-it's the information you gathered or NIS gathered [...]" So I said, okay, fine. ^[213]

MS DUNBAR: So why didn't you go to Carey or MacFarlane at that point and consider making him a subject of the complaint, or put forward these concerns that you have expressed to Carey, but much later on?

SGT DUSSAULT: I may have. I may have and maybe I didn't. I don't remember. That could have been a good idea. ^[214]

MS DUNBAR: In fairness to Cpl Hamm-in retrospect […] had he been considered a subject of a complaint, you would have read the subject member preamble. In fact, he could have objected to answering any questions at all.

SGT DUSSAULT: I understand that, and that would have been available to him, but you would need to assess how much of the decision to suspend him relied solely on my interview. That was the point that I put across to Lieutenant-Colonel Carey, and she said all of the information was already there [...] from other sources. ^[215]

Section 8 of the Military Police Professional Code of Conduct provides that the subject of a Military Police Professional Code of Conduct investigation may refuse to answer questions. Annex "C" to Chapter 13 of the Military Police Policies and Technical Procedures relating to "Conduct and Interference Complaints Against and by the MP," sets out the form of preamble to be acknowledged and signed by a witness in a Professional Standards investigation. The wording of Annex "C" was specifically set out in the Professional Standards tasking instructions of WO Hamm's complaint. The witness is told that the interview is in support of a Military Police Professional Conduct of Conduct investigation and that any statement made or information provided may be used for subsequent administrative proceedings. Annex "D" sets out the Professional Standards Investigation Preamble to be acknowledged and signed by a subject member of the investigation. It adds the following disclaimer to the witness preamble that the subject member must read and acknowledge:

1. I understand that I am giving this statement to a person in authority;
2. I understand that this statement is given in response to a conduct complaint against me.
3. I also understand that this statement shall not be used for any disciplinary or criminal proceedings against me other than any proceedings that may be taken against me for having given an answer or made a statement herein knowing it to be false.

SGT DUSSAULT: One thing I didn't mention, that this interview cannot be used against you. Okay?

CPL HAMM: Okay.

SGT DUSSAULT: However, unless, naturally, if there is-if something turns out to be a lie, then that portion could be used against you.

CPL HAMM: Okay. ^[216]

I remember, he told me, he said, "I'm the last one. I guess you have already made up your mind." I said, just wait a minute, and we went into that.

But it was clearly on my mind, and if I went the extra mile to tell him, even though he was officially a witness-that I would have spoken to him about the matter which is written in the subject member-it is a clear indication that I had some concerns about it and I wanted it to reassure him that the information he was going to give me would not be used against him. ^[218]

SGT DUSSAULT: […] I reassured him by telling him that "Tim, you are a witness. Anything that you say will not be used administratively or criminally against you, unless you lie". […]

MS DUNBAR: I don't want to put words in your mouth, but were you doing that, essentially, to provide him with some protection that would be given to a subject member?

SGT DUSSAULT: Yes, that's a fair statement. I was concerned because I knew that by the time I got to Tim the report would not be flattering to him. There were a lot of gaps that he had, and I intended to ask him for clarification. And I already knew the answers. You don't have to be a genius. You read everything that was given to me, or what the NIS had - I already had the answers. I knew that there would be issues that could fall back on his shoulders. But he was a witness, he wasn't a subject, so I tried to reassure him that "You are a witness." That's why I went to the extent of going to MacFarlane and personally going to the colonel and saying, "Hey, are you aware of this?" ^[219]

Except for the seconded Professional Standards investigator, members interviewed who had extensive experience in conducting investigations told Commission Members that the normal sequence in an investigation is to interview the complainant first and the subject of the complaint last and that this is the sequence that investigators are normally trained to follow. ^[220]

Both the Professional Standards investigation report and the DPM PS' Letter of Final Disposition addressed to Cpl Hamm stated that during his Professional Standards interview he was confronted with several contradictions in his account and that his answers and explanations raised doubt in the investigator's mind as to his credibility. In fact, the response of Cpl Hamm that caused concern about his credibility was his claim that he was telling the truth:

I confronted Cpl HAMM with the fact that his version of events was quite different from the account I got from the other members interviewed. Given the discrepancies and his admission that he lied to Sgt SMITH, I expressed my view that his version of events was not reliable. He retorted that he was willing to take a polygraph test anytime and that he was telling the truth. ^[221]

By failing to designate either WO Hamm or Cpl Hamm as subject members of the investigation at the appropriate time, both WO Hamm and Cpl Hamm were deprived of the basic rights and protections that are required by law and policy to be afforded to subject members of conduct investigations. In addition, they were deprived of basic rights to natural justice available to everyone subjected to a judicial or investigative process that may result in adverse findings against them. Among the rights and protections made available to the named subject members of the investigation that were denied in this case were the rights to be notified:

1. of the substance of the complaints made against them;
2. that the DPM PS had ordered a Professional Standards investigation of their professional conduct;
3. that the investigation would determine whether either of them breached the Military Police Professional Code of Conduct or the Code of Service Discipline or were otherwise deserving of disciplinary or administrative sanctions;
4. of the specific issues that the investigation of their conduct would address;
5. of their rights, as subject members, pursuant to section 8 of the Military Police Professional Code of Conduct, to refuse to respond to questions put to them in an investigation that would determine whether their conduct was in breach of the Code,
6. of their rights, under Military Police Policies and Technical Procedures if they chose to submit to an interview, to have an assisting officer present during the interview; and
7. of their rights, as subject members of the investigation to be told, before making any statement:
1. that the statement was being made to a person in authority;
2. that the statement was given in response to a conduct complaint against them; and
3. that the statement would not be used for any disciplinary or criminal proceedings against them other than proceedings for giving an answer or making a statement knowing it was false. It should be noted that Cpl Hamm was told this although WO Hamm was not.

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.

The DPM PS was critical of the conduct of Cpl Hamm and WO Hamm in the Letters of Final Disposition. WO Hamm was criticized for filing his complaint prematurely, for not confirming with Cpl Hamm the accuracy of his complaint before making his submission, for relying on his perceptions that his brother was in distress and was being harassed, ^[222] and for acting on incomplete information provided by Cpl Hamm. ^[223] The DPM PS directed that WO Hamm should be counselled "to ensure that he ascertains a clearer understanding of the given situation, before involving himself in matters pertaining to another unit." ^[224]

Cpl Hamm was criticized in both the Professional Standards investigation report and the DPM PS' Letter of Final Disposition addressed to him, for supplying allegedly misleading information to WO Hamm on five (5) different issues. The DPM PS also adopted the finding of the seconded Professional Standards investigator that Cpl Hamm committed five (5) service offences. Ultimately, the DPM PS concluded that the only violator of the Military Police Professional Code of Conduct flowing from the investigation of WO Hamm's complaint was Cpl Hamm, who was never made a subject member of the investigation. The DPM PS' Letters of Final Disposition set out three (3) alleged violations of the Military Police Professional Code of Conduct by Cpl Hamm, the details of which follow.

On April 15, 2002, the DPM PS sent a telex to the Officer Commanding of the CFNIS unit in Ottawa (Capt Chiasson), where Cpl Hamm was then employed as an investigator, directing the suspension of Cpl Hamm's credentials.

In July 2002, LCol Dixon carried out the direction of the DPM PS to counsel WO Hamm. LCol Dixon told Commission Members that, in the circumstances, he "did not embrace" the concept of counselling WO Hamm because he had not taken enough care in verifying the information received from Cpl Hamm; rather, he counselled WO Hamm on other matters, discussed in more detail below, that he believed were more appropriate in the circumstances.

1- On December 12, 2000, Cpl Hamm refused a lawful command when WO Rice ordered him to prepare for a deployment to Inuvik;

As indicated, the Commission Members find, on a balance of probabilities, that Cpl Hamm did not refuse outright to go on the deployment, but that WO Rice interpreted Cpl Hamm's ambiguous comments as a refusal. WO Rice told Commission Members that he did not order Cpl Hamm to deploy during their telephone conversation. However, even if WO Rice did order him to deploy and Cpl Hamm said, "I won't go," he could not have been found to have disobeyed a lawful command until he actually failed to deploy on December 26, 2000. This could not have occurred because the deployment was cancelled before December 26, 2000. The same reasoning applies to an order to prepare for deployment. It could not be said that Cpl Hamm disobeyed a lawful command until Cpl Hamm failed to meet the said requirements.

The second alleged violation was:

2- On December 12, 2000, Cpl Hamm was insubordinate in that he acted with contempt towards WO Rice by saying "See you later bud," or words to that effect and then hung up the phone;

As discussed earlier, the Commission Members find that WO Rice used profanity during the telephone conversation with Cpl Hamm. Cpl Hamm was therefore not insubordinate in hanging up the telephone. (Finding #7)

WO Rice told Commission Members that Cpl Hamm said "See you later bud" or words to that effect just prior to hanging up the phone. Cpl Hamm adamantly denied saying this. Rather, Cpl Hamm told Commission Members that WO Rice was swearing and he held the phone away from him and hung up by clicking his phone. ^[226] The Commission Members could not conclude whether or not the statement "See you later bud" was made by Cpl Hamm.

The third alleged infraction was:

3- On December 12, 2000, Cpl Hamm refused a lawful command when WO Rice through MCpl Paul and Cpl Murray ordered him to attend his office;

Commission Members find that Cpl Hamm was not told the reason why WO Rice wanted to see him on December 12, 2000 and subsequently the reason for his arrest. WO Rice's initial step of ordering Cpl Hamm to come to his office was a recall to duty of a member on sick leave that was not personally ordered by Cpl Hamm's Commanding Officer, contrary to QR&O; section 16.01. (Finding #9) Cpl Hamm's section 10(a) Charter right to be told the reason for his arrest was violated. (Finding #20)

The CFNIS concluded that MCpl Paul and Cpl Murray acted in good faith, notwithstanding the fact that they had been ordered to effect an unlawful arrest. Commission Members also agree with Insp Blizard's conclusion, after his review of the CFNIS investigation, that WO Rice's order and the subsequent arrest were unlawful.

The fourth alleged violation was:

4- On December 12, 2000, Cpl Hamm refused lawful commands when WO Rice ordered him to stand at attention several times.

When Cpl Hamm was brought into WO Rice's office subsequent to his arrest, WO Rice asked Cpl Hamm to have a seat. When Cpl Hamm refused, WO Rice ordered him several times to stand at attention. Cpl Hamm admitted not doing so as he had still not been provided with a reason for his arrest. Cpl Hamm demanded to know why he was arrested, indicated he wanted to exercise his right to call a lawyer and subsequently left to go towards the interview room.

While there is no question Cpl Hamm refused to stand at attention, the DPM PS did not evaluate if it was a lawful command given that Cpl Hamm had not been given his Charter right to be informed of the reasons for his arrest. On the other hand, the Commission Members find that this may very well have constituted a service offence.

The fifth alleged violation was:

5- On or about February 18, 2001, Cpl Hamm disclosed information to the Edmonton Sun newspaper on issues that were under investigation by CFNIS SI and DPM PS and those views were published. The content of the article brought discredit to the Military Police.

When interviewed by Commission Members, Cpl Hamm stated that he consulted with a superior, Capt Morrison, as to whether he could respond to a reporter who had initiated contact with him and was about to print an inaccurate story. He told Commission Members that the superior told him that he could respond as long as he provided only factual information to ensure accurate facts were reported. He responded in accordance with the advice received when the reporter called back, but the reporter printed inaccuracies, which Cpl Hamm claims he did not provide. The seconded Professional Standards investigator questioned Cpl Hamm about the press contact, but did not inform Cpl Hamm that one focus of the investigation was to determine whether he had acted improperly in dealing with the press or that his conduct in the matter was being considered in relation to a possible breach of the Military Police Professional Code of Conduct. In addition, the seconded Professional Standards investigator was not allowed to contact the journalist who would have been an independent witness, assuming the journalist would have disclosed details about his sources. Nevertheless, the DPM PS' Letter of Final Disposition found that Cpl Hamm's contact with the press breached the Military Police Professional Code of Conduct.^[227]

The Complaints Commission did not address in detail the fifth allegation noted in the DPM PS' Letter of Final Disposition. However, it is to be noted that the DPM PS did not evaluate whether Cpl Hamm reasonably believed or had been properly advised that he could communicate with the media. It also did not address whether it would have been proper for Cpl Hamm to impart only correct facts to a reporter who told him he was going to print inaccurate facts. Had Cpl Hamm been designated a subject member of the Professional Standards investigation and properly informed about the purpose of the questioning and what the issues were, he might have, as he did when interviewed by Commission Members, addressed facts that were capable of providing a justification for his press contact.

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.

Although not entirely clear in the DPM PS' Letter of Final Disposition dated April 5, 2002 addressed to Cpl Hamm, it appears that the DPM PS may have concluded that the five (5) instances of alleged misleading of WO Hamm by Cpl Hamm amounted to a breach, by Cpl Hamm, of the Military Police Professional Code of Conduct. Paragraph 7 of the DPM PS' Letter of Final Disposition stated:

It is evident throughout the investigation that Cpl Hamm only divulged certain information to certain personnel at certain times. He led other MP personnel in believing that he was targeted, harassed and unjustly dealt with by the senior MP personnel at 4 Wing Cold Lake. In this regard, Cpl Hamm engaged in conduct that is likely to discredit the MP or that calls into question the member's ability to carry out their duties in a faithful and impartial manner. Accordingly, this breach of the MP Professional Code of Conduct will be dealt with further under separate cover.

During Cpl Hamm's interview, he was confronted with several contradictions in his account. His answers and explanations raised doubt in the mind of the investigator as to Cpl Hamm's credibility. Cpl Hamm's unwarranted depiction of being a victim of egregious and systemic abuse from the MP Commanders at 4 wing Cold Lake persisted in the minds of some in the MP branch that responded to his plight. This investigation has shown that Cpl Hamm manipulated events to drive events in his favour.

1- When he (Cpl Hamm) informed WO Hamm that he was being harassed for failing the Express Test, he withheld the fact that he was ordered in writing by the

4 Wing, Cold Lake Military Police Officer Commanding to attend Remedial Physical Training:

The Commission Members found no evidence that Cpl Hamm informed WO Hamm that he had been harassed regarding his failure of the Express Test. WO Hamm independently came to believe Cpl Hamm was being harassed, based on what Cpl Hamm had told him was happening. The only reference to harassment in the correspondence or taped conversation between WO Hamm and Cpl Hamm is one e-mail that Cpl Hamm sent to WO Hamm on November 23, 2000. In that e-mail, Cpl Hamm notified WO Hamm of the decision to hold a second summary trial related to the RPT issue. He asked for WO Hamm's opinion on it and specifically added that he wanted such "without screaming about harassment."

In addition, WO Hamm's e-mail to CWO Galway of December 13, 2000 and his statement of complaint dated December 14, 2000, make no reference to WO Hamm having been informed by Cpl Hamm that he had been harassed. The only mention of harassment in relation to Cpl Hamm in WO Hamm's complaint letter to the DPM PS dated December 14, was in WO Hamm's concluding remark:

I have attempted to advise Cpl Hamm on several occasions, to seek intervention through harassment mediators. He declined to do so, for fear it would hamper his career […]

The second matter that Cpl Hamm allegedly misinformed WO Hamm about was:

2- He withheld from WO Hamm the pertinent facts that he had failed to attend Remedial Physical Training as ordered by Sgt Smith and WO Lewis and the fact that was the real issue for him being charged in relation to the Remedial Physical Training issue;

This is, essentially, a repetition of the first matter already mentioned and the same comments apply. The "real" issue was made clear in the particulars of the charge quoted verbatim by Cpl Hamm to WO Hamm. In doing so, WO Hamm was obviously made aware, by Cpl Hamm, that it was alleged that Cpl Hamm's attendance at RPT was less than satisfactory. At the time of making the complaint, WO Hamm was aware that Cpl Hamm had been found guilty at his second summary trial, which he mentioned in his letter of complaint. Before he was found guilty Cpl Hamm believed that he did not fail in his duty as alleged and was contesting the allegation through the summary trial process.

The third alleged instance of misleading by Cpl Hamm was:

3-When he alleged to WO Hamm that CWO Gauvin had tampered with witnesses, he withheld the fact that he had spoken to his Assisting Officer and that CWO Gauvin had simply ensured that Sgt Smith had his notes in time for his testimony. In addition, Cpl Hamm contacted Sgt Smith and the latter assured him that CWO Gauvin had not attempted to influence him;

WO Hamm's statement of complaint simply asserted that, by Cpl Hamm's account, Sgt Smith's testimony at the second trial differed from the first trial. WO Hamm clearly stated that CWO Gauvin "may have tampered with witnesses."

WO Hamm was stating his own opinion that witness tampering may have occurred. There was no information as to what Cpl Hamm told WO Hamm concerning CWO Gauvin's conversation with Sgt Smith. He may well have spoken of this with WO Hamm before speaking to his Assisting Officer or to Sgt Smith. In fact, the Professional Standards interview of Sgt Smith suggested that Cpl Hamm did not talk to Sgt Smith about his arrest until February 2000, as Sgt Smith went to                 almost immediately after Cpl Hamm's second summary trial. The revelation Cpl Hamm would have obtained by speaking to Sgt Smith therefore occurred long after WO Hamm lodged his complaint. In any event, it was clear that Cpl Hamm candidly agreed, by the time of the Professional Standards interview, that he had been mistaken about the possibility that CWO Gauvin might have improperly influenced the testimony of Sgt Smith.

About one week after interviewing Sgt Smith, the seconded Professional Standards investigator interviewed Cpl Hamm. He asked Cpl Hamm to indicate when he had come to realize that Sgt Smith's change in testimony between the two trials was not due to possible witness tampering by CWO Gauvin. Cpl Hamm suggested it had something to do with his conversation with Sgt Smith sometime after December 12, 2000 and after his brother lodged the complaint. The seconded Professional Standards investigator then stated:

SGT DUSSAULT: Yes. Okay. But it was after you called your brother and your brother made a complaint?

CPL HAMM: Yeah.

SGT DUSSAULT: Okay. Because that's an important benchmark for me. Your brother makes the complaint based on the information he's got. So I would have a problem if you would tell me "Well, when I called Smith on December 15th or whatever," and it was at the time your brother wrote the complaint. Then I would say "Well, why didn't you tell him?"

CPL HAMM: I've never actually seen the complaint yet.

SGT DUSSAULT: No?

CPL HAMM: No. ^[229]

The fourth instance of alleged misleading by Cpl Hamm was:

4- He misled WO Hamm as to the true nature of the phone conversation between he and WO Rice on December 12, 2000;

In the note of the events that WO Rice made on December 12, 2000, he wrote;

At about 1020 hrs 12 Dec 00, in response to Op planning for a deployment to Inuvik 26 Dec I telephoned Cpl Hamm to inform him that he should prepare his kit and make preparations for a possible deployment 26 Dec 00. I was tasked to identify 7 Pers for this task. Cpl Hamm was on 7 days sick leave which was to end Dec 13 00. Upon informing Cpl Hamm he stated he would not and could not go. When queried as to why, he stated that his wife was gone to                 over that period and he had no childcare. I informed him that I would do what I could but that he should plan in case he was required to go.

Cpl Hamm informed me he was on sick leave from his unit. Sgt Rice contacted him by telephone and attempted to put him on standby for an upcoming mission. Cpl Hamm reminded Sgt Rice he was on sick leave. Sgt Rice became verbally abusive with Cpl Hamm. Cpl Hamm terminated the telephone call.

He informed me that he was                 , and that Sgt Rice had called him at home, attempting to put him on standby for deployment. Cpl Hamm had concerns with the deployment timings, and reminded Sgt Rice he was on sick leave. Sgt Rice became verbally abusive with Cpl Hamm and Cpl Hamm terminated the telephone call.

The various accounts are in near agreement as to the "nature" of the conversation. The criticism seemingly lies in the fact that WO Hamm lodged a complaint based on his awareness of Cpl Hamm's version of events, which is precisely what section 7 of the Military Police Professional Code of Conduct requires him to do. Section 7 requires all Military Police members to report a belief in or awareness of an allegation that a member has breached the Military Police Professional Code of Conduct. In order to "verify" that awareness, WO Hamm would have had to engage in an investigative process. Therefore, the Commission Members find that WO Hamm was never misled in this regard.

The fifth instance of alleged misleading by Cpl Hamm was:

5- On the day of his arrest he misled WO Hamm by telling him that WO Rice had ordered him into custody in the cells, that he was arrested for no reason and that WO Rice had invented charges after the arrest.

These allegations are based on the recorded telephone conversation between Cpl Hamm and WO Hamm on December 12, 2000. An excerpt of this conversation reads as follows:

CPL HAMM: Then he (WO Rice) starts screaming at me telling me that I'm under arrest for insubordination. I said there's no arrest. I said, first of all sergeant, if there was no arrest to begin with, the first time, you're just making up a charge now, right? WO HAMM: Ya; CPL HAMM: I said second of all, I want to see your supervisor. Because this is wrong. He said he wanted me in the cells for insubordination now.

Although there is confusion as to exactly what was said, WO Rice stated in his Professional Standards interview that he told Cpl Hamm "he was under arrest for disobedience of a lawful command and that there was insubordination involved." ^[231] It would therefore not have been unreasonable for Cpl Hamm to believe that his arrest was related to insubordination. Indeed, MCpl Paul told CFNIS investigators that he believed "Tim either (a) disobeyed a lawful command or he's been disrespectful to a senior NCM (Non-Commissioned Member) and I'm bringing him in for those causes." ^[232]

Cpl Hamm did not say that WO Rice had "ordered" him in custody in cells, rather he said "he wanted me in the cells for insubordination." ^[233] WO Rice told the seconded Professional Standards investigator that he did not recall and did not think he said that Cpl Hamm should be placed in the cells. However, in WO Rice's December 12, 2000 telephone conversation with Cpl Hamm, he stated and later noted that he told Cpl Hamm that "if he was ordered to go he would or he would go to jail." He told various investigators that this was only a "figure of speech" but he did not tell Cpl Hamm this. Cpl Hamm told CFNIS investigators that MCpl Paul had suggested that Cpl Hamm might be locked up. In fact, MCpl Paul told the seconded Professional Standards investigator that, when Cpl Hamm was in the interview room, a Duty Counsel finally returned his call. At some point MCpl Paul spoke to the Duty Counsel. MCpl Paul told the seconded Professional Standards investigator of his conversation with the Duty Counsel:

The JAG asked me what the next process was and I said, "Well, I believe that once we're done here, I believe his next post is the cells". Which is, if that's closed custody, then that's where he's going. ^[234]

Cpl Hamm was detained in the interview room, was being watched over and was not free to leave. Cpl Hamm summarized his state of mind after his arrest to the seconded Professional Standards investigator: "You have to realize my whole world is upside down" ^[236] and "I was in shock and I was quite emotional about what was going on." ^[237]

The seconded Professional Standards investigator confronted Cpl Hamm more than once with the allegation that WO Hamm's complaint said that WO Rice had "ordered" Cpl Hamm into the cells. Cpl Hamm's response was consistent in that this did not happen. WO Hamm did not allege in any statement of complaint that Cpl Hamm told him or that he believed WO Rice ordered Cpl Hamm into the cells. The seconded Professional Standards investigator maintained, that WO Hamm had "either misinterpreted or was misinformed." He then suggested to Cpl Hamm that he told WO Hamm, in the interview room that "WO Rice ordered you into cells." Cpl Hamm responded that this "never happened." The following exchange then took place:

SGT DUSSAULT: So you didn't - inadvertently - I don't know - inadvertently, through rage or emotion or purposely, you misinformed your brother into believing something that didn't really happen […].

CPL HAMM: Did I intentionally make it up? No. Was I scared to death and confused? Yes. But I don't know, Cpl Paul telling me I'm going to cells next, I think that's the point you're missing, is that he was in there with me. He left and came back a couple of times. ^[238]

With respect to the allegation that Cpl Hamm misled WO Hamm by stating he was arrested for no reason, Cpl Hamm consistently stated he was not given a reason for his arrest and even made a written statement that asserted he was arrested for no reason. The Commission Members find that Cpl Hamm was not provided a reason for his arrest and that his Charter right was breached.

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.

Prior to and on December 12, 2000, WO Hamm acquired information from Cpl Hamm and other sources that led him to believe that Cpl Hamm might have been subjected to an unlawful arrest and possibly other abuses of authority by Military Police personnel at 4 Wing, Cold Lake. The information disclosed possible breaches of the Military Police Professional Code of Conduct and improper conduct of members of the Military Police in the performance of policing duties and functions.

The DPM PS' Letter of Final Disposition dated May 2, 2002 addressed to WO Hamm concluded that he "acted on incomplete information provided by Cpl Hamm." It stated that, although he was not wrong to engage the Chain of Command in the matter, he was "premature" in submitting a formal complaint that levelled allegations against personnel at 4 Wing, Cold Lake. It directed that he should be counselled as previously stated.

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 a member of the military police has breached this Code shall report the belief or allegation, as the case may be, to

1. their superior in the military chain of command; or
2. the next superior in the military police chain of command, if the superior referred to in paragraph (a) is the subject of the belief or allegation.

In addition, no requirement is set out, either in the NDA or in the Military Police Professional Code of Conduct, that either a complaint or facts underlying a complaint first be verified or investigated before a complaint is filed. In order to file a complaint, no more is required than a belief in or an awareness of an allegation. In fact, the legislation is clear that there is a duty to file a complaint when a member acquires the requisite belief or awareness, without more. ^[239]

The NDA specifically gives powers to investigating agencies to decline to investigate or further investigate complaints or allegations that are determined to be trivial, frivolous, vexatious or made in bad faith. ^[240] In other words, it is the responsibility of the investigating authority, not the complainant, to weed out complaints lacking in merit or substance.

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.

MWO DENNIQUE: My advice to WO Hamm was "Let's get in touch with the chain of command. Sergeant Rice is responsible to somebody. Let's call the warrant officer in charge of police services in Cold Lake, or Chief Warrant Officer Gauvin, or the Major in charge of the MP squadron" - Thobo-Carlsen, I believe, at the time. Warrant Officer Hamm's response to me was "Nobody is available. The major is on course                . The warrant officer" - and his name escapes me-was away from Cold Lake, I believe                 . And the Chief, although he was in Cold Lake, he was nowhere to be found on that particular day.

I suggested, "If you believe that there is an abuse of authority situation occurring, then go outside the MP squadron in Cold Lake and call the base chief warrant officer, who is responsible for all personnel on the wing" in Cold Lake […]

[…] my understanding is that Warrant Officer Hamm did, in fact, call the base Chief Warrant Officer in Cold Lake and expressed his concerns and subsequent to that the base chief warrant officer somehow got in touch with Chief Warrant Officer Gauvin, who went in to the guardhouse to resolve the

Based on the information that Warrant Officer Hamm was receiving, he was obviously upset and concerned about the welfare of Corporal Tim Hamm, and he was at a loss to know really what he should be doing or what he should do. So I said, "Allow the chain of command to handle it. If there is something going on that's not right, Sergeant Rice "now Warrant Officer Rice" is responsible to somebody. Try to get in touch with who he is responsible to." That was my advice to him.

MS DUNBAR: Did you ever advise him specifically to make a complaint?

MWO DENNIQUE: No, absolutely not. I went away on vacation. This was his own decision. ^[241]

MS DUNBAR: Is it your opinion that WO Hamm actually had an obligation to report what he perceived to be an unlawful arrest?

MWO DENNIQUE: In accordance with the Military Police Code of Conduct, it is my understanding that if there is a breach of the Military Police Code of Conduct, he has that responsibility. ^[242]

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.

LCOL DIXON: The counselling he received - or the sage advice and guidance that he was receiving from me was not to insert himself into a process where he has a personal - not a commitment, but he is personally involved with his brother.

The rest of it - what they were talking about as it pertains to him - was irrelevant, because if you ask somebody for something, which Professional Standards did, and you take it from the victim or you take it from the accused - not this - you have to verify that.

Surely to goodness they didn't proceed on this as if it were the God - given truth. It was a reflection-an articulation of an emotional time, and he put it down. I flipped through it. I looked through it the other day, and I know his writing voice, and I recognized emotion in there, and I would have validated it.

MS DUNBAR: So you didn't actually counsel him, then, on not verifying the -

LCOL DIXON: No. I never even mentioned it to him. ^[243]

MS DUNBAR: I don't want to put words in your mouth, but I want to make sure that I understand about the counselling of WO Hamm. You felt that it was appropriate for him to call up Chief Warrant Officer Galway and advise him of this. In fact, you mentioned about his duty to do so under the MP Code of Conduct. But where you felt it was inappropriate was when he called over to the folks at Cold Lake. Is that the distinction?

LCOL DIXON: Correct. ^[244]

LCol Dixon explained to Commission Members that Canadian Military Police are in a unique situation. Unlike other police forces, they are not under the command and control of police leaders. Their day to day administrative activities, such as annual evaluations fall under the command and control of Wing Commanders, Base Commanders, and Base Operations Officers. 1 CAD in Winnipeg, Manitoba is the technical Chain of Command for Provost Marshals' policing functions. This group, then under the direction of LCol Dixon, audits the policing and security functions. CWO Galway started a mentoring program for all Wing Provost Marshals. WO Hamm fell within the 1 CAD Winnipeg technical purview and within the mentoring program. ^[245]

LCol Dixon did not know that WO Hamm had sought out the advice of MWO Dennique. In fact, WO Hamm did contact CWO Galway in the evening of December 12, 2000. LCol Dixon explained:

LCOL DIXON: He would have been well advised - I mean, somebody had called him, so he is stuck with that. He is at the end of the phone. Of course his brother, a loved one, is distraught, so he can't hang up on him. So he had to go through that conversation. I understand that.

Then, if he was that concerned - and obviously he was - he should have picked up the phone and called Chief Warrant Officer Galway at the CAD, who is a tremendous representative of our police folk in the field. Galway would have gotten a grip on the situation. There is no doubt about it. He would have got involved in the process to find out exactly what was going on. And he would have been the ideal person because he had no vested interest, except for the professional conduct of the people. And then Mike could have gone back to the role of providing moral support. ^[246]

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' 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.

Cpl Hamm and WO Hamm were not made aware that allegations or complaints against them were being investigated. They were not made aware that the Professional Standards investigation would address whether their conduct violated the Military Police Professional Code of Conduct and might make findings and recommendations on that issue. They were not made aware that they could refuse to answer questions or be interviewed at all. They were not notified of the issues that were relevant to the investigation or issues they might have wanted to address in their own defence. Commission Members have accordingly noted the failure of the DPM PS to make Cpl Hamm and WO Hamm subject members of its investigation of WO Hamm's complaint or to start a new investigation with them as the subject members and the resulting denial of various rights that should have been available.

From Cpl Hamm's perspective, he was at no time advised of his potential jeopardy. In the April 5, 2002 DPM PS' Letter of Final Disposition, which Cpl Hamm was given on April 22, 2002, findings were made against him that (i) he committed five (5) service offences in connection with the events of December 12, 2000; (ii) in five (5) instances, he supplied his brother with misleading information and in doing so, violated the Military Police Professional Code of Conduct; (iii) he manufactured a false picture of being a victim of "egregious and systemic abuse from the Military Police commanders at 4 Wing, Cold Lake;" (iv) he manufactured a complaint and let others advance it so that he would not "suffer any fallout;" and (v) he manipulated information to drive events in his favour. Then, on April 22, 2002 his Military Police credentials were suspended and have remained so to the date this report was written. Cpl Hamm has never been charged with or convicted of any of the offences or transgressions alleged against him in the DPM PS' Letter of Final Disposition.

LCol Carey, DPM PS, on April 5, 2002 in her Letter of Final Disposition noted at paragraph 3(c) that:

Cpl Hamm told Commission Members that he was scared to complain and feared reprisals. ^[247] This does not appear to have been considered by the DPM PS as a potential reason why Cpl Hamm did not make the complaint himself.

1. he engaged in conduct likely to discredit the Military Police or that called into question his ability to carry out his duties in a faithful and impartial manner, contrary to paragraph 4(l) of the Code, by only divulging "certain information to certain persons at certain times," and leading other Military Police personnel in believing that he was being targeted, harassed and unjustly dealt with by the senior Military Police personnel at Cold Lake; ^[248]

1. he "only divulged certain information to certain persons at certain times;" and
2. he led other MP personnel in believing that he was being targeted, harassed and unjustly dealt with by the senior MP personnel at 4 Wing, Cold Lake.
3. he disclosed military police information to the press when not authorized. ^[249]
4. he knowingly suppressed, misrepresented or falsified information in a report or statement, contrary to paragraph 4(h) of the Code, by withholding, until he was arrested, the fact he was                 and letting his supervisors believe he was on sick leave that would expire the day after the incident; ^[250]

The second branch of the first alleged violation flows from an investigation which the investigator was not, in fact, tasked to investigate. If the seconded Professional Standards investigator was tasked to investigate whether Cpl Hamm somehow misled various Military Police into thinking he was unjustly harassed, Cpl Hamm was never notified that such an allegation was being investigated. He was therefore deprived of any opportunity to make full answer and defence to the allegation. Which Military Police did he allegedly mislead and why were they misled? What did he tell them? In what respects was what he told them misleading? Cpl Hamm was never alerted that he should be addressing these issues in the Professional Standards investigation or even that he could refuse to be interviewed when the focus of the investigation turned from the named subject members to him.

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 Police 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.

Cpl Hamm's second alleged Military Police Professional Code of Conduct violation was of paragraph 4(k), prohibiting disclosure of Military Police information unless authorized. This violation allegedly occurred when he divulged information pertaining to an ongoing CFNIS investigation to the media. In this case, the letter stated that "[...] the information supplied by Cpl Hamm in this regard cannot be used against the interests of the member by the MPCRB."

Although this allegation contained the noted disclaimer, it appears that the DPM PS believed that the information supplied by Cpl Hamm could be used to support its own allegation in the Letter of Final Disposition that Cpl Hamm violated the Military Police Professional Code of Conduct. Again, Cpl Hamm was never advised that he was a subject member of an investigation of this issue or that it was alleged that his contact with the press was a violation of the Military Police Professional Code of Conduct. As indicated previously, the failure to treat Cpl Hamm as a subject member of the investigation prevented Cpl Hamm from addressing whether he was authorized or had a reasonable belief that he was authorized to respond to the reporter's questions as he did.

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.

The third basis on which Cpl Hamm allegedly violated the Military Police Professional Code of Conduct was paragraph 4(h), which prohibits knowingly suppressing, misrepresenting or falsifying information in a report or statement. He allegedly violated this clause by withholding the information that his sick leave was                 until after his arrest. The evidence during all investigations of this issue was clear. There was no obligation on Cpl Hamm to disclose to WO Rice that his sick leave was                 . Cpl Hamm was also told this by his doctor. It is simply unfair and improper to find that a Military Police member who does not disclose information that the law states he does not have to disclose has "suppressed" the information so as to violate the Military Police Professional Code of Conduct.

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.

Chapter 3, section 14 of the Military Police Policies and Technical Procedures, "MP Professional Code of Conduct and MP Credentials Review Board" states:

Thus, one (1) or more of the three (3) alleged breaches of the Military Police Professional Code of Conduct set out in the DPM PS' Letter of Final Disposition addressed to Cpl Hamm must have been seen as a breach of the Code that reached or exceeded the required level of seriousness necessary for the immediate suspension of Cpl Hamm's credentials. However, Cpl Hamm was never advised which, if any, of the grounds justified the suspension.

I saw Colonel Carey about the reason why he was being suspended. This was prior to the message coming out. She explained to me that it was because Corporal Hamm had lied to one of her investigators. The way she explained was that he had ample opportunity to come forward and basically, in her words, tell the truth about what he was lying about, but didn't do that. This was basically the reason for the suspension. I was never provided with a report from Professional Standards to indicate what he had lied about. I was never provided with any documentation to prove that he had lied to any of the investigators and so on and so forth. ^[251]

SGT DUSSAULT: I know where you are going but the issue is Tim never misled me. I only spoke to him once at the end. The report contains not only my investigation, but it incorporates all the investigation of NIS. If you read the report, obviously Tim didn't mislead me. I don't think so. I would have to re-read it, but that's not the impression I got.

[…]

SGT DUSSAULT: Okay. I understand your rationale and I respect it because I understand what you are saying, that clearly somebody that reads that has the - you know - the investigative report was done by Claude Dussault. I totally agree with you. It should have been written differently. It should have been specified, you know in relation to what. But my reaction is to tell you, no, Tim Hamm never misled me. In fact, he admitted to a lot of discrepancies. The issues of misleading were more in relation to what was provided to NIS, I took the NIS report and went up and met everybody. ^[252]

I didn't get the sense that he was lying to me, because a lot of the discrepancies he provided some sort of explanation for. That's all I can say about it. ^[253]

MS DUNBAR: Based on your investigation, did you formulate any opinions on the credibility of Corporal Hamm?

CAPT PINEAU: Not based on my investigation, and not based on what I saw of him in the NIS. I know that the PS investigation had problems with his credibility, but neither myself nor Master Corporal Rivard did, nor did any of the NIS when he came to us. How PS arrived at their conclusion, I don't know. MS DUNBAR: Was there anything that you saw that has made you doubt his credibility?

CAPT PINEAU: Nothing that I saw personally. ^[254]

The allegation that Cpl Hamm violated the Military Police Professional Code of Conduct by providing false information to or withholding information from WO Hamm was not directly stated in the DPM PS' Letter of Final Disposition addressed to Cpl Hamm. However, as indicated, MWO MacFarlane and Maj Pumphrey, Acting DPM PS, in later correspondence stated that this was the reason for the suspension of Cpl Hamm's credentials. Commission Members find that there was no evidence to establish that Cpl Hamm misinformed or withheld material information from WO Hamm.

In the DPM PS' Letter of Final Disposition and subsequent documentation, six (6) different violations of the Military Police Professional Code of Conduct have at various times been alleged by the DPM PS against Cpl Hamm, either arising out of the Professional Standards investigation or as other potential reasons for the suspension of his credentials:

1. misinforming or withholding information from his supervisors about the reason for his sick leave;
2. divulging certain information to certain persons at certain times;
3. leading other Military Police personnel in believing that he was being targeted, harassed and unjustly dealt with by the senior Military Police personnel at Cold Lake;
4. disclosing Military Police information to the press when not authorized.
5. during an investigation knowingly revealed information intended to mislead the investigator;
6. he was not forthcoming with all information when he contacted WO Hamm and also provided incomplete and biased information to his brother, which WO Hamm then used to formulate the allegations against the respondents in the Professional Standards investigation.

On April 23, 2002, Capt Chiasson confirmed that Cpl Hamm's credentials were suspended by telex message addressed to the DPM PS at National Defence Headquarters in Ottawa.

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.

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.

^[199] Memorandum of Understanding Between the Department of National Defence and the Solicitor General of Canada Concerning the Secondment of an RCMP Member to DND, November 1, 2001, DND identification No. 97121937, section 4.2.
^[200] Military Police Complaints Commission interview of Sgt Dussault, supra note 91 at 16.
^[201] Ibid. at 35-36.
^[202] Ibid. at 20-21.
^[203] Ibid. at 40.
^[204] Ibid. at 42-43.
^[205] Ibid. at 48.
^[206] Ibid. at 33-34.
^[207] Ibid. at 34.
^[208] Ibid. at 28-29.
^[209] CFNIS Investigation Report, File No. NSI 525-0029-2000, July, 9, 2001, p. 2.
^[210] Military Police Complaints Commission interview of Sgt Dussault, supra note 91 at 29-30. ^[211] Ibid. at 43-44.
^[212] This refers to MWO MacFarlane.
^[213] Military Police Complaints Commission interview of Sgt Dussault, supra note 91 at 44-45.
^[214] Ibid. at 48.
^[215] Ibid. at 51.
^[216] Professional Standards interview of Cpl Hamm, File No. 2120-20-2-3/TD 088-2000 (DPM PS), January 17, 2002, p. 1.
^[217] Military Police Complaints Commission interview of Sgt Dussault, supra note 91 at 106.
^[218] Ibid. at 105.
^[219] Ibid. at 106-107.
^[220] Military Police Complaints Commission interview of Capt Chiasson, supra note 131 at 30-31; Military Police Complaints Commission interview of Capt Pineau, supra note 65 at 88; Military Police Complaints Commission interview of MWO Dennique, File Nos. MPCC-2002-020, MPCC-2002-028, March 21, 2003, pp. 25-26.
^[221] Professional Standards Investigation Report, supra note 37, paragraph 24(y).
^[222] DPM PS' Letter of Final Disposition dated May 2, 2002, addressed to WO Hamm, File No. 2120-2-3/TD 088-2000 (DPM PS), paragraph 3(a).
^[223] Ibid., paragraph 4(a).
^[224] Ibid.
^[225] DPM PS' Letter of Final Disposition dated April 5, 2002, addressed to Cpl Hamm, supra note 52, paragraph 3(d).
^[226] See text accompanying note 68.
^[227] The Letter of Final Disposition dated April 5, 2002, addressed to Cpl Hamm, supra note 52, stated, at paragraph 6(d): "although it could not be confirmed who in fact went to the media regarding this matter in the first instance, Cpl HAMM, by his own admission, spoke with the media (Edmonton Sun) and divulged information that pertained to an ongoing CFNIS investigation. Further, the information that was provided and then later confirmed by Cpl HAMM was reported erroneously. In this regard Cpl HAMM contravened the MP Professional Code of Conduct by disclosing military police information when not authorized. However, it should be noted that the information supplied by Cpl HAMM in this regard can not be used against the interests of the member by the MPCRB."
^[228] DPM PS' Letter of Final Disposition dated May 2, 2002, addressed to WO Hamm, supra note 222, paragraph 4(a).
^[229] Professional Standards interview of Cpl Hamm, supra note 216 at 44.
^[230] CFNIS interview of MCpl Paul, supra note 84 at 68.
^[231] Professional Standards interview of WO Rice, supra note 77 at 19.
^[232] CFNIS interview of MCpl Paul, supra note 84 at 56.
^[233] Transcript telephone conversation between WO Hamm and Cpl Hamm on December 12, 2000.
^[234] Professional Standards interview of MCpl Paul (2 of 2), supra note 109 at 35.
^[235] Professional Standards interview of Cpl Hamm, supra note 216 at 157-158.
^[236] Ibid. at 90.
^[237] Ibid. at 93.
^[238] Ibid. at 163-164.
^[239] Section 7 of the Military Police Professional Code of Conduct; Section 4 of the Military Police Professional Code of Conduct provides, among other things, that no member of the Military Police shall: (a) knowingly, without good cause, supervise or carry out an arrest, a detention, a search or surveillance that is unlawful; (d) while carrying out their duties, act in a discriminatory or discourteous manner towards any person; (e) intimidate or retaliate against any person who makes a report or complaint about the conduct of a member of the military police.
Subsection 250.18 (1) of the NDA provides that any person, including any officer or non-commissioned member, may make a complaint about the conduct of a member of the military police in the performance of any of the policing functions prescribed in regulations made for the purposes of section 250.18. The Complaints About the Conduct of Members of the Military Police Regulations, section 2(i) provides that the arrest or custody of a person is a policing duty or function for purposes of subsection 250.18(1).
^[240] See also, to the same effect, the Military Police Complaints Commission interview of MWO Dennique, supra note 220 at 19-20.
^[241] Ibid. at 10-13.
^[242] Ibid. at 18.
^[243] Military Police Complaints Commission interview of LCol Dixon, supra note 58 at 70-71.
^[244] Ibid. at 62-63.
^[245] Ibid. at 9-11.
^[246] Ibid. at 37-38.
^[247] See text accompanying note 22.
^[248] DPM PS' Letter of Final Disposition dated April 5, 2002, addressed to Cpl Hamm, supra note 52, section 7.
^[249] Ibid., paragraph 6(d).
^[250] Ibid., paragraphs 6(a)-(c).
^[251] Military Police Complaints Commission interview of Capt Chiasson, supra note 131 at 17-18.
^[252] Military Police Complaints Commission interview of Sgt Dussault, supra note 115 at 222-224.
^[253] Ibid. at 245.
^[254] Military Police Complaints Commission interview of Capt Pineau, supra note 65 at 90.
^[255] Professional Standards Investigation Report, supra note 37, paragraph 31.