Table of Contents

5. Summary of the Commission Members' Interim Findings

V. SUMMARY OF THE COMMISSION MEMBERS' FINDINGS

Finding #1:
The Commission Members find that Warrant Officer Rice and Chief Warrant Officer Gauvin did not know that Corporal Hamm's sick leave was                 when they chose Corporal Hamm to deploy to Inuvik on December 26, 2000. The Commission Members accept Warrant Officer Rice's statement that he would not have called Corporal Hamm on December 12, 2000 if he had known Corporal Hamm's sick leave was                .

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

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

Finding #4:
The Commission Members find no substantive evidence to support the conclusion reached by the Deputy Provost Marshal Professional Standards that Corporal Hamm manipulated the information to drive events in his favour.

Finding #5:
The Commission Members accept, on a balance of probabilities, Corporal Hamm's statement that he did not refuse outright to go on the deployment. However, the Commission Members also find, on a balance of probabilities, that due to Corporal Hamm's ambiguity in his response, it was not unreasonable for Warrant Officer Rice to form the opinion that Corporal Hamm refused to deploy.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.