Table of contents

9. Commission Members' Findings and Recommendations Having Considered the Notice of Action from the Provost Marshal
1. Civilian Oversight and the Purpose of the Notice of Action
2. Background of Complaints
3. Powers of Arrest under the National Defence Act and the Jurisdiction of the Complaints Commission in this case
4. Public Interest Component
5. Hearing versus Investigation
6. Refusal by Witnesses to be Interviewed and Treatment of Witnesses
7. Provost Marshal's Allegation that the Complaints Commission Refused to Provide Witness Statements
8. Credibility Findings Challenged by the Provost Marshal
9. Insubordination
10. Recall to Duty
11. Section 10(a) of the Charter and Corporal Hamm's Right to be Informed of the Reason for his Arrest
12. Superior Orders and the Arrest of Corporal Hamm
13. Abuse of Authority
14. Privacy Act comments by the Provost Marshal
15. Master Corporal Paul's notes
16. Findings surrounding Chief Warrant Officer Gauvin
17. Right of Complainants and Subject Members Concerning Classification of Complaints
18. Warrant Officer Hamm and Corporal Hamm as Subjects of Complaints
19. Deputy Provost Marshal Professional Standards' Conclusions
20. Warrant Officer Hamm's treatment by the Deputy Provost Marshal Professional Standards
21. Corporal Hamm's treatment by the Deputy Provost Marshal Professional Standards & Review of Police Credentials
22. Misleading the Investigator
23. Recommendations

IX. COMMISSION MEMBERS' FINDINGS AND RECOMMENDATIONS HAVING CONSIDERED THE NOTICE OF ACTION FROM THE PROVOST MARSHAL

In response to a significant report on complaints arising from an incident within a Military Police detachment, the Canadian Forces Provost Marshal has chosen to attack the credibility, the objectivity, the expertise and the jurisdiction of the Military Police Complaints Commission. Regrettably, even more than four years after the creation of the Complaints Commission, this is symptomatic of a culture of resistance at the upper levels of the Military Police to civilian oversight of military law enforcement.

We have, however, carefully considered the Provost Marshal's Notice of Action, and indeed after further research and analysis we have been persuaded to make certain changes to our findings and recommendations in some areas. Such an opportunity to clarify points of view and to ensure a proper understanding by interested parties is an important part of the complaint resolution process.

The Commission Members will now review the areas where the Provost Marshal has objected to the Commission Members' Findings and Recommendations or where the Provost Marshal has provided comments, which the Commission Members would like to further discuss.

(a) Civilian Oversight and the Purpose of the Notice of Action

The Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (often referred to as the Dickson Report), in Chapter 10 dealing with Oversight and Review, stresses the importance of civilian oversight for military police:

Independent oversight is especially important for the military police and, in this regard, civilian oversight of police forces is particularly instructive. If an individual citizen complains to a civilian police force about improper conduct of its personnel, there is an expectation of and a right to a response. The situation should be no different in the military context.

[…]

In this report, we have particularly recommended an increased role for the military police in the military justice system. With such an increase in responsibility and authority must come a corresponding professionalism and accountability. This responsibility should at all times be monitored by a process of oversight and review.^[8]

Complainants who are unsatisfied with the decision or handling of the conduct complaint in the first instance by the Provost Marshal may request a review by the Military Police Complaints Commission. In addition, the Chairperson of the Complaints Commission has powers to remove a conduct complaint from the Provost Marshal, at any time, where she feels the matter necessitates a public interest investigation or hearing, as was the case in the present files.

The fact that civilian oversight of law enforcement has become commonplace is not surprising. Canadians expect those upon whom they bestow power to use it responsibly, and when they do not, Canadians demand that those persons be held accountable. This accountability is fundamental to maintaining confidence in and respect for the institutions that bind us as a nation. Recognizing this, Parliament has developed mechanisms to ensure those who wield power on our behalf are not only accountable, but are seen to be accountable.

This is particularly true of our police services, institutions we have entrusted with very special powers - the power of detention, for example; even the power to use lethal force against citizens. With such exceptional powers come exceptional responsibility, and an equally exceptional degree of accountability.

Canadians understand the importance to society of police services that enjoy widespread trust and respect. It is in the interest of maintaining this trust that Canadians insist any allegation of police misconduct be investigated thoroughly, and through a process of independent civilian oversight that allows them to have confidence in the fairness of the result.

In the National Defence publication titled Duty with Honour, The Profession of Arms in Canada an accurate reflection of civilian oversight in the military context is stated at page 41:

In light of this overall structure, it is perhaps not surprising that civil-military relations characteristically exhibit a healthy tension between control and oversight, and legitimate autonomy and self-regulation.

The MPCC is a fact-finding administrative body that has no powers to make findings of law. The standard of review in this case is correctness. The MPCC was not correct in this finding. This finding must be amended.

It is also evident from the Provost Marshal's Notice of Action that a lack of understanding and acceptance exists of the general principles of civilian oversight and the purpose of the Notice of Action. We must at the outset address the disheartening language and tone of the Provost Marshal's Notice of Action in this case. Such a tone is neither necessary nor productive, and indeed is inimical to and detracts from the very important process, which Parliament created when enacting Part IV of the NDA. By taking an overly restrictive reading of the NDA and Regulations, the Provost Marshal risks hindering the efficiency and indeed the efficacy of the complaints process.

By way of illustration, in relation to Interim Finding 7 the Provost Marshal indicated "I must therefore surmise that Cpl Hamm told the MPCC that WO Rice swore at him on the telephone." The Provost Marshal goes on to say, "I would be very interested in examining the MPCC's questions which led Cpl Hamm to bring forth this fresh allegation." The Provost Marshal seems to be suggesting that the Complaints Commission somehow acted improperly or unprofessionally in the questions put to witnesses and was attempting to solicit certain answers from Cpl Hamm.

This is far from reality. The Complaints Commission does not favour one side over the other and is mandated to conduct a thorough, impartial investigation into the alleged events. Moreover, we were surprised and disappointed that the Provost Marshal would make such an inference without foundation.

Certain comments by the Provost Marshal in the Notice of Action show an unwillingness to improve the relationship between the two organizations. For example, the Provost Marshal writes at A-17:

It is clear to reasonable persons with knowledge and expertise in the military justice system that when WO Rice ordered the arrest of Cpl Hamm he was acting in his capacity as Cpl Hamm's superior officer, not as a police officer.

Furthermore, certain assertions are made without properly verifying their veracity. For example, in her commentary in Interim Finding 32, the Provost Marshal states:

This is an issue that demonstrates the limits of expertise of the Military Police Complaints Commission. The Commission has no members with prior military service, let alone any experience in the military justice system. It is therefore not surprising that the Commission was not able to identify and comprehend the functions, operations and responsibilities of the chain of command relationship that exist within a military unit and the various powers that can be exercised by that chain of command.

An officer, a non-commissioned member or an employee of the Department is not eligible to be a member of the Complaints Commission.

Given the tone and approach of the Provost Marshal in her Notice of Action, it seems necessary to examine the purpose of the Notice of Action as intended by Parliament. Accordingly, we turn to the parliamentary debates for guidance. The review of the Interim Report and the preparation of the Notice of Action by the Provost Marshal provide a mechanism for the Complaints Commission and the Provost Marshal to discuss certain points before a final decision is made. In the Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs in relation to Part IV of the NDA, the purpose of the Notice of Action was discussed. It was stated that the purpose of the Notice of Action is to ensure a proper understanding between parties and an opportunity to clarify certain points. It was also stated to be a method to shorten the process if people see a resolution.^[9]

Furthermore, in the creation of Part VII of the RCMP Act^[10] on which the military police complaints process was modeled, the purpose of the Notice of Action as stated in the debates is "to allow for a process of deliberation with the commissioner, if he is having trouble with the commission's findings, to make sure it is all understood and to be able to reconcile any particular difficulties" before the final report goes out to the parties. ^[11]

While we commend the Provost Marshal for bringing certain issues in the Interim Report to light for further examination, as a necessary and intended purpose for the Notice of Action, it is not meant to be an opportunity for the Provost Marshal to investigate or critique the Complaints Commission's work. It is certainly not intended to serve as a forum to further the Provost Marshal's apparent desire to undermine the credibility of the Complaints Commission.

(b) Background of Complaints

The complaints were eventually sent to the Military Police Complaints Commission (MPCC) by a member of the Royal Canadian Mounted Police who had been seconded to the Canadian Forces National Investigation Service CFNIS , after his own investigation into the matter had been called into question by Major Thobo-Carlsen, the military police detachment commander at Cold Lake.

On December 14, 2000, WO Hamm made a conduct complaint regarding the arrest of his brother, Cpl. Hamm. The Deputy Provost Marshal Professional Standards (DPM PS) initially classified this complaint as an "internal" matter. A CFNIS investigation was conducted first to determine if the circumstances described in WO Hamm's complaint disclosed the commission of criminal or service offences by members of the Military Police. The Professional Standards investigation was held in abeyance upon completion of the CFNIS investigation. It should be noted that Canadian Forces Military Police members, Capt. Pineau and MCpl. Rivard, conducted the CFNIS investigation, not the seconded RCMP member (Supt. Grabb) referred to by the Provost Marshal. As is discussed in detail in the Interim Report, the CFNIS concluded that WO Rice should be charged with a service offence.

On August 3, 2001, Major Thobo-Carlsen, dissatisfied with the outcome of the CFNIS investigation wrote to the DPM NIS formally requesting that the CFNIS investigate several alleged breaches of service regulations by Cpl. Hamm in relation to the events that occurred on December 12, 2000. On August 29, 2001, Supt. Grabb, then Officer Commanding of the CFNIS Sensitive Investigation Detachment replied to and refused the request of Major Thobo-Carlsen for further investigation of his allegations regarding Cpl. Hamm. In Supt Grabb's response, he stated that the complaint was vexatious and made in bad faith. Supt Grabb indicated that he would forward the CFNIS investigative materials to the Complaints Commission and ask it to conduct an unbiased review of the CFNIS investigation and all issues incidental to it. Supt. Grabb did so on August 20, 2001 and this was the first time the Complaints Commission learned of WO Hamm's complaint in the first instance or the ensuing investigations.

On October 31, 2001 the DPM PS advised that the Professional Standards investigation would resume now that the CFNIS investigation had been completed. On April 5, 2002 the DPM PS made her final decision regarding the Professional Standards investigation. It is important to note that in addition to Supt. Grabb forwarding the materials to the Complaints Commission, WO Hamm asked the Complaints Commission on April 30, 2002 to review the Professional Standards and CFNIS investigations. Further, on May 15, 2002, Cpl. Hamm made a conduct complaint in the first instance and asked the Complaints Commission to investigate his arrest of December 12, 2000, the Professional Standards investigation, and subsequent actions taken against him by the DPM PS.

(c) Powers of Arrest under the National Defence Act and the Jurisdiction of the Complaints Commission in this case

According to the Provost Marshal, when WO Rice ordered Cpl Hamm's arrest by MCpl Paul and Cpl Murray, he was invoking his powers of arrest as an ordinary Canadian Forces member under s. 155 of the NDA, and not his powers of arrest as a member of the Military Police under s. 156.^[12] The Provost Marshal asserts that, precisely because MCpl Paul and Cpl Murray were ordered by WO Rice to arrest Cpl Hamm, the ensuing arrest must have been affected under s. 155 - it not being legally possible for arrests under s.156 to be ordered.

The Provost Marshal further argues that, since the power of arrest under s. 155 is not peculiar to Military Police, and since it was in this instance being used in connection with the maintenance of internal unit discipline, the arrest ordered by WO Rice should be viewed as falling within one of the categories of functions excluded from the definition of "policing duties or functions" by virtue of s. 2(2) of the Complaints About the Conduct of Members of the Military Police Regulations.^[13] Subsection 2(2) provides that "[f]or greater certainty," duties or functions performed by military police that relate to "administration, training, or military operations that result from established military custom or practice" do not constitute "policing duties or functions".

The Provost Marshal therefore concludes that the request for review by WO Hamm and complaint by Cpl Hamm regarding the latter's arrest did not relate to the performance of a "policing duty or function," did not fall under Part IV of the NDA, and should never have been handled by the Complaints Commission.

For the reasons that follow, we disagree.

Having reflected on the Provost Marshal's arguments in her Notice of Action, we are prepared to accept that WO Rice may well have been using the basic powers of arrest that he enjoys as a member of the Canadian Forces under NDA s. 155, rather than those conferred specially on Military Police members under s. 156. Moreover, we are sensitive to WO Rice's command and supervisory responsibilities in this situation, and the fact that he seems to have been motivated to act as he did in consideration of these responsibilities, rather than in consideration of his duties as a peace officer.

However, the means which WO Rice selected to deal with his subordinate, namely, his ordered arrest, represent the exercise of a special legal power which has significant implications for not only the physical liberty of the individual concerned, but also for that individual's dignity and emotional well-being and that of his family. The gravity and significance of the power to arrest an individual, and the responsibilities attached to the exercise of that power ought not, in our view, be diluted or devalued in the military context simply because, as a matter of practical necessity, the power to arrest without warrant is more widely distributed than it is in civil society. Not only is an arrest specifically listed as a "policing duty or function" to which the NDA Part IV complaints process applies, but the legislator has also seen fit in the same set of regulations (see s. 3 of the Complaints About the Conduct of Members of the Military Police Regulations) to preclude complaints concerning arrests from being dealt with by way of informal resolution, which implies that arrests are in a more serious category of police powers.

Moreover, the jurisprudence, cited in our Interim Report - namely, the cases of Gauthier^[14] and Dulude^[15]- indicates that the exercise of the arrest power within the military under the NDA is subject to similar requirements of reasonable belief, both in the grounds for and the necessity of an arrest, as those applicable to the arrest of civilians under the Criminal Code^[16] . The Provost Marshal may be technically correct when she states in her Notice of Action that s. 495 of the Criminal Code did not apply to the arrest in this case under the NDA. However, the Provost Marshal does not address the real point which is that, in fact, the conditions on the proper use of the arrest power found in s. 495(2) of the Criminal Code are now to be read into the arrest powers under the NDA in order to meet the constitutional requirements of s. 9 of the Canadian Charter of Rights and Freedoms (the right to be free from arbitrary arrest or detention).^[17] This is the thrust of the Gauthier and Dulude decisions. While these two cases dealt with arrests that had ostensibly been effected by Military Police using their special arrest powers under NDA s. 156, it is noteworthy that, in the Dulude case, the arrest by the Military Police was - as in this case - pursuant to an order by the arrestee's chain of command. In any event, we see no legal basis for limiting the reasoning in these cases to arrests under NDA s. 156.

It is interesting to note that, far from trying to appeal either of these two decisions, the Department of National Defence is in fact looking to codify their effect in amendments to the arrest provisions of the NDA. In the recent independent review of the 1998 amendments to the NDA^[18], former Chief Justice of Canada, the Rt. Hon. Antonio Lamer, has, on the recommendation of the Judge Advocate General, proposed that, in keeping with the Gauthier and Dulude decisions, both NDA ss. 155 and 156 be amended to add similar conditions on the use of the arrest power as are found in s. 495(2) of the Criminal Code.

While WO Rice may well have felt that he was acting merely as Cpl Hamm's supervisor, rather than in a policing capacity, we cannot agree with the Provost Marshal's portrayal of the power of arrest as a mere administrative tool.

We note that in the QR&O;, both arrest powers, NDA s. 155 and s. 156, are dealt with together in the volume of the regulations dealing with "Discipline", and not in the volume dealing with "Administration"^[19]. Former Chief Justice of Canada, the late Brian Dickson, in his 1997 report to the Minister of National Defence on military justice and military policing, also acknowledged a distinction between disciplinary and administrative action.^[20] Indeed, such a distinction is apparent in the very passage from that report that is quoted by the Provost Marshal at page 4 of her Notice of Action.^[21] Nor do we understand the distinction that the Provost Marshal is purporting to make between a so-called "internal disciplinary" arrest of a subordinate by a superior using members of the same unit, and an analogous situation where the Military Police are called in. Arrest under either s. 155 or s. 156 can only be done to enforce the Code of Service Discipline. We fail to see how enforcing discipline within an MP unit must be "administration"; while the use of those same Military Police members in the same manner to enforce the same discipline on the same facts, but in another unit, is deemed to be "law enforcement" or "policing"?

To be sure, we recognize that the military discipline system incorporates a range of responses to performance and behaviour problems, some of which are administrative in nature. However, an arrest is not part of this administrative aspect of discipline. Arrests clearly fall under the formal disciplinary system enshrined in the Code of Service Discipline.

Nor do we see the arrest in this case as falling within the other potentially relevant category of functions that are excluded from the definition of "policing duties or functions": namely, "military operations that result from established military custom or practice." In our view, this somewhat cryptic phrase is intended to refer to those functions typically performed by Military Police in an operational theatre. In any event, the power to arrest, deriving as it does from statutory authority, cannot therefore be described as an operation that results from custom or practice.

We must act in a manner consistent with our jurisdiction as defined in the relevant legislation. In this particular case, we had received one request for review and one conduct complaint that dealt with an arrest by Military Police members. Arrests are specifically listed as an activity deemed to be a "policing duty or function" for the purposes of making a valid conduct complaint. In light of the foregoing, we do not believe that we can fairly construe the exclusions in s. 2(2) of the Complaints About the ^[22] as extending to the arrest in this case or to arrests under NDA s. 155 generally, when these are done by Military Police members. We specifically do not read s. 2(2) of the Regulations as necessarily implying, as the Provost Marshal urges, that in certain circumstances, the listed policing activities will not constitute "policing duties or functions". If that had been the intent, we believe that s. 2(2) would have been added "notwithstanding s. 2(1)", rather than "for greater certainty."

It seems only reasonable to presume that those who formulated the Complaints About the Conduct of Members of the Military Police Regulations were aware that Military Police, being members of the Canadian Forces, have two distinct arrest powers under the NDA, namely, s. 155 and s. 156. If it had been the intent of the legislator to exclude arrests done under one of these provisions from the definition of "policing duties or functions", this intent could clearly and easily have been expressed in these Regulations. However, given the way that s. 2 of the Regulations has actually been drafted, we find it almost inconceivable that the legislator could thereby have sought to express an intention to exclude arrests under NDA s. 155.

Given our reading of s. 2 of the Complaints About the Conduct of Members of the Military Police Regulations, we had no choice but to discharge our statutory responsibilities in relation to this case. Indeed, the DPM PS herself had previously conceded that these complaints belonged in the Part IV process and that she had been wrong to have originally classified them as "internal". The DPM PS also had a professional standards investigation conducted into these complaints, which presumably implies some nexus to their special appointment as a Military Police member.

Particularly in light of these circumstances, we find the tone and some of the language used by the Provost Marshal in her Notice of Action in this regard - such as her reference to our "seizing jurisdiction" over these complaints, and her numerous references to what she views as our lack of expertise - to be not only unprofessional and unwarranted, but rather surprising. The Provost Marshal through her delegate, the DPM PS, previously determined that these cases did, in fact, belong in the Part IV complaints process (which necessarily implies a belief that they did relate to "policing duties or functions") and dealt with them accordingly. Yet the Provost Marshal and her delegate, the DPM PS, obviously have military experience and knowledge of military law as well as constant access to military lawyers of the office of the Judge Advocate General. It would appear, contrary to the Provost Marshal's suggestion, that these attributes are not determinative of one's capacity to discern the proper scope and application of Part IV.

We do not dispute the right of the Provost Marshal to raise jurisdictional issues about the application of Part IV or the Complaints Commission's mandate. We would, however, prefer that, in future, such issues be raised at a much earlier stage in the process. It seems to us neither fair nor appropriate for the Provost Marshal to wait all this time and to make such jurisdictional arguments only after she has seen the Complaints Commission's Interim Report. We think the complainants and the subject members deserve greater consideration. In this regard, we are especially conscious of the ongoing suspension of Cpl Hamm's policing credentials and his inability to have that suspension reviewed by the Military Police Credentials Review Board until the Part IV complaints process is complete - a process that the Provost Marshal now says was never even applicable to his case.

In any event, we do not accept the Provost Marshal's jurisdictional arguments. On the contrary, we are persuaded that, notwithstanding that in ordering Cpl Hamm's arrest WO Rice may well have been acting under NDA s. 155, such action can nonetheless be the proper subject of a conduct complaint under NDA s. 250.18 and is therefore within the jurisdiction of the Complaints Commission.

Unlike the Provost Marshal, we see no injustice in WO Rice's actions being subject to scrutiny, including independent civilian oversight, pursuant to the Part IV complaints process. Whatever the legal authority, the power to arrest is a significant and exceptional power in a free society. Like civilians, military personnel in Canada are only liable to be arrested for offences. Within the NDA, the grounds for arrest are essentially the same under s. 155 as those under s. 156. Moreover, current case law^[23] dictates that arrests under the NDA are subject to a similar test of necessity as arrests in the civilian world under the Criminal Code.

Furthermore, the acceptance of a distinction between arrests under s. 155 and those under s. 156 with respect to the application of Part IV and the corresponding jurisdiction of the Complaints Commission would present a practical difficulty. In making an arrest, Military Police members do not normally specify under which statutory arrest power they are acting. In some circumstances, the statutory authority will be clear, such as where a Military Police member arrests someone of higher rank on the member's own authority. In such a case, the arresting Military Police member would have to be acting under s. 156. But in many situations, a Military Police member would not strictly need to rely on his or her special powers of arrest under s. 156. This would cause considerable uncertainty about the application of the Part IV complaints process to many arrest scenarios. Nor are we particularly optimistic at this time about the manner in which such uncertainty would, in practice, be resolved in future cases. We certainly do not think it would be appropriate for the member who is the subject of the complaint, or indeed the Provost Marshal herself, to effectively be in a position to elect after the fact whether Part IV will apply to a complaint.

In any event, we do not believe that either Parliament, in adopting Part IV, or the Governor in Council, in defining "policing duties or functions," intended such uncertainty to exist in the application of the Military Police complaints regime.

Accordingly, none of the findings impugned by the Provost Marshal on the basis of our alleged lack of jurisdiction will be modified on that account.

Consistent with the foregoing analysis, some of the wording of Interim Finding 10 is being modified slightly.

Interim Finding #10 (revised) (Final 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 not carrying out an administrative function. A Military Police member ordering or carrying out an arrest must always follow the applicable laws and policies governing the exercise of policing duties or functions.

Interim Finding #12 (revised) (Final 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 the requirements of section 495 (arrest without a warrant) of the Criminal Code of Canada, as well as the guidance provided in Note B to article 105.01 of Queen's Regulations and Orders.

(d) Public Interest Component

The NDA clearly vested the discretionary power to call a public interest investigation and/or hearing in the Chairperson and not the Provost Marshal. Section 250.38(1) reads:

If at any time the Chairperson considers it advisable in the public interest, the Chairperson may cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into a conduct complaint or an interference complaint.

… the de-railing of the regular statutory complaints process should be reserved for only the most serious of cases in which the conduct of the police involved is so reprehensible as to cause severe concern, shock or indignation in the surrounding military and civilian communities.

In these circumstances, it made little sense to await the Provost Marshal's handling of a second complaint concerning the same incident and seemed only sensible to combine the two complaints before the Complaints Commission. In this way, the Complaints Commission saved time and avoided the need for any further action by the Provost Marshal on the second complaint. Given that the Provost Marshal and her immediate subordinate and delegate in such matters, the DPM PS, had already in effect pronounced themselves on the matter in her handling of the first complaint, there seemed little point in leaving the second complaint with the Provost Marshal to follow the usual process. Moreover, the NDA clearly gives the power to the Chairperson to call a public interest investigation at "any time" which means that it may occur before, during or after a request for review has been made.

The Provost Marshal further appears to be criticizing the Chairperson for not clearly articulating her reasons for declaring a public interest investigation and seemingly does not accept the exclusive jurisdiction of the Chairperson to decide which complaints are in the public interest. Rather, as indicated at page 43 of the Interim Report, on October 31, 2002, the Chairperson decided to cause the Complaints Commission to conduct an investigation in the public interest for the following reasons:

1. The complaints contained numerous allegations of a serious nature;
2. Certain elements of the complaints struck at core issues in military policing, such as the proper role and conduct of the Military Police when conducting arrests; and
3. Allegations that superiors had abused their authority or had attempted to influence or punish complainants for exercising their right to submit a complaint, if true, might reflect a denial of those complainants' rights.

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

The Provost Marshal cites the case of Via Rail Inc. v. National Transportation Agency^[24] for the proposition that a thorough analysis of the reasons for declaring a public interest investigation must be articulated by the Chairperson. Notwithstanding our position that this was in fact done, the case is not on point, as it does not involve the declaration of the public interest. Rather, the case focuses on whether or not the Agency erred by failing to give adequate reasons for its findings after having considered all the evidence.

The Provost Marshal goes on to lament that "there does not appear to be an established threshold for the imposition of a declaration of public interest by the Commission". This is because the courts have held that there should not be a definitive threshold and that each case ought to be carefully considered on its own individual merits. Courts have held that it is the function and duty of the tribunal to form an opinion, based on the individual case before it and further note the wide and unfettered powers of discretion this gives.^[25] The meaning of the words "public interest" must also be construed in the context of the statute in which they are found.^[26] The Supreme Court of Canada has noted that the term "public interest" is an open-ended term and imports a standard that is completely discretionary.^[27] The Supreme Court case of Pezim v. British Columbia (Superintendent of Brokers)^[28] referred to the case of the Ontario Court of Appeal in Re the Securities Commission and Mitchell, (1957) O.W.N. 595 at p. 599 which discussed the discretion given to Securities Commissions to determine what is in the public interest:

The Chairperson and other members of the Commission are selected and appointed by the Lieutenant Governor in Council for their high qualifications, ability and experience. It is the function and duty of the Commission under s. 8 of the Securities Act to form an opinion whether or not it is in the public interest to suspend or cancel the registration of any person. It is intended by the legislation that the Commission shall have extremely wide powers of discretion in forming its opinion.

We are troubled and surprised by the Provost Marshal's attempt to minimize the serious nature of such issues as a potentially unlawful arrest, retaliatory treatment of complainants and improper classification of complaints.^[29]

(e) Hearing versus Investigation

In creating section 250.38 of the NDA, Parliament clearly envisioned two (2) separate processes; namely a public interest investigation and a public interest hearing. It is within the Chairperson's discretion to decide which proceedings should be employed. As with any investigation, including those conducted by the office of the Provost Marshal, the interviews are conducted in private with no opportunity to cross-examine. In a public interest investigation, the final report is made public through the Complaints Commission's Website.

Finally, the Complaints Commission is obliged by NDA s. 250.14 to proceed as expeditiously and informally as the circumstances of fairness permit in each case. There are situations, as here, where there are good reasons in the public interest to take the case

over from the Provost Marshal, but where the added expense, formality and delay of holding public hearings is not warranted. The public interest investigation serves this purpose and was clearly intended by Parliament to be a distinct option. Indeed, its existence calls into question the Provost Marshal's apparent assumption that the Chairperson's "public interest" powers were only intended for cases whose gravity demands a public airing.

In any event, the Provost Marshal's suggestion in this regard would amount to a de facto amendment to Part IV of the Act. The Provost Marshal has other channels for proposing legislative amendments. In the meantime, we must accept and respect the law as it is written.

(f) Refusal by Witnesses to be Interviewed and Treatment of Witnesses

Five (5) people declined interviews before the Commission Members: LCol Carey, DPM PS; Major Pumphrey, Acting DPM PS; MCpl Paul; Cpl Murray and MWO MacFarlane.^[30] The Provost Marshal states that she spoke to "several persons" who declined to be interviewed by the Complaints Commission. Given that three of the five individuals are employees of the office of the Provost Marshal and tasked to handle Part IV complaints, this is a serious issue.

The Provost Marshal also expresses the view that due to the lack of cooperation of witnesses, who were primarily her own staff, the Complaints Commission was "denied the ability to fully investigate and understand what transpired on 12 December 2000 and the ensuing days." While we recognize it is the personal choice of all witnesses to be interviewed or not (and thereby forgo the opportunity to present their version of events), we do find it disheartening to experience such a lack of cooperation at this level of authority. Nonetheless, we reviewed a wealth of documentation and conducted numerous interviews. As the persons delegated by the Chairperson to investigate these complaints, we felt we had ample evidence to proceed and make findings and recommendations on the enumerated issues. Had we not felt this way, a public interest hearing would have been deemed to be necessary.

It is important to note that the Provost Marshal on page 17 of her Notice of Action states that as a result of the discussions in Wakefield, Quebec^[31], between the Complaints Commission and her office, various individuals ultimately decided that they would not provide statements to the Complaints Commission in this investigation. This is not accurate. In fact, these decisions were made prior to the meeting in Wakefield on May 22, 2003. In December 2002 LCol Carey and Major Pumphrey declined the Complaints Commission's request to be interviewed by Mr. Elwood Johnston, Complaints Commission investigator. Subsequently on February 6, 2003 we wrote to LCol Carey and Major Pumphrey requesting to conduct an interview with them as part of Phase II of the public interest investigation. On February 7, 2003 the Complaints Commission received correspondence from Major Pumphrey declining the request to be interviewed by the Commission Members. Similarly, on March 3, 2003, LCol Carey advised the Complaints Commission in writing that she would not appear before the Complaints Commission to be interviewed. Further on March 21, 2003 the Commission Members wrote to LCol Carey and Major Pumphrey asking if they would respond to certain questions in writing. The letter attached the list of questions for their review. On March 25, 2003 LCol Carey advised our office that she would not be answering the questions provided. In addition, written questions were forwarded to MCpl Paul and Cpl Murray on March 27, 2003. None of the witnesses provided answers to the Complaints Commission.

Accordingly, contrary to the Provost Marshal's assertion, these witnesses made the decision not to be interviewed well in advance of the meeting in Wakefield on May 22, 2003.

Other statements made by the Provost Marshal are cause for concern. For example, the Provost Marshal indicated that Sgt. Claude Dussault made a complaint regarding his interview before the Complaints Commission. This was not the case. Rather, during a meeting between the Legal Counsel for the Provost Marshal and the General Counsel/Director of Legal Services of the Complaints Commission to prepare the agenda for the May 2003 Wakefield symposium, Legal Counsel for the Provost Marshal mentioned that a complaint might be forthcoming from Sgt Dussault. The General Counsel/Director of Legal Services of the Complaints Commission indicated that we would deal with his complaint if and when he decided to file one. Accordingly, it is imprudent to say that a complaint had been made when none was ever made or received.

The Provost Marshal goes on to say that the issue was subsequently addressed at the meeting in Wakefield, Quebec to no avail. This too is inaccurate. The general issue of certain witnesses being hesitant to testify due to the lack of protection afforded by the NDA as enumerated in paragraph 17 of the Complaints Commission's Public Interest Investigation Guide was discussed. At no time was the specific case of Sgt Dussault reviewed or discussed. The purpose of the Wakefield symposium was not to discuss particular files or complaints. In fact, it would have been completely inappropriate to discuss this public interest investigation given that LCol Carey, a subject member of the complaint, was in attendance at the symposium.

However, in order to clarify the circumstances surrounding Sgt. Dussault's interview, the following information is relevant. It was confirmed to Sgt. Dussault prior to his first interview with the Complaints Commission's investigator, Mr. Elwood Johnston, that allegations were made against him for having conducted a biased investigation. It was further stated to him that he was not considered to be a subject of the investigation because he had not been appointed under s. 156 of the NDA, which is necessary for the Complaints Commission to have jurisdiction over his conduct.^[32] However, during Sgt. Dussault's interview with the Complaints Commission Members it was clearly stated to him that given his role in conducting the Professional Standards investigation and given the heavy reliance on his report by the DPM PS in coming to her final conclusions, it was critical to examine in detail the rationale for several of his findings and recommendations in his report. The Complaints Commission Members noted the need to examine and perhaps even challenge some of his findings in order to satisfy themselves that they were well founded. During the introductory phase of the interview with Sgt. Dussault on March 18, 2003, Ms. Julianne Dunbar, Legal Counsel for the Complaints Commission, advised him of the following after having confirmed that Sgt. Dussault was never appointed under section 156 of the NDA:

Ms Dunbar: Given that, we do not have jurisdiction over you. Even though the complainants raised an allegation of bias in your investigation, you will not be considered as a subject of this complaint, and therefore you are appearing here as a witness.

I do wish to advise you, however, that as part of the Military Police Complaints Commission's mandate we will be examining the DPM PS handling of WO Hamm's complaint in the first instance. This of course includes examining your investigation and we will be asking you questions about your investigation as part of that. But you will not be a subject member per se.^[33]

Sgt. Dussault: When you started to nit pick the report and this and that, I became very uncomfortable because I felt that my credibility was being assessed and there was some insinuation.

I think that some of the arguments or the way things were put to me, my mental assessment and my perception of what you were suggesting were so much apart that I think at one point I said to hell with this. We agree to disagree, and that's fine. And your suggestion -- I guess I'll skip it. At one point I started wondering, and I said I am not comfortable. I do understand that you have to base yourself on the information you have; that your assessment of everything -- I mean, this is overwhelming. There are elements in the evidence that have attracted your attention. Your interpretation of that brings you -- that there is a mental link. I understand that. So I am leaving here satisfied that this was a fair process. I hope that I have divulged everything. I don't know what the others have said. My interpretation is the more I tell you; maybe it is going to verify the credibility of others.

I normally review my tapes for myself just to see, and I am probably going to come to the conclusion that hell, il souffre,                , ferme-toi, t'as trop parlé.

So I have been very forthcoming as much as I could. There were times when I was uncomfortable with some of your questioning, but that is fair game.I think I showed my reluctance at that, but I think it is fair.

Membre Emond: Mais moi, on apprécie beaucoup, je vais le dire en français pour être très clair aussi, on apprécie ta participation, ton témoignage et je voudrais t'assurer que le but, tu l'as très bien défini pour nous. C'est de bien comprendre, de bien saisir l'ampleur de tout ça et on n'a pas de parti-pris on est pas là pour représenter qui que ce soit dans tout ce projet là mais c'est de faire ressortir les faits tels qu'ils sont. Des fois, on est peut-être obligé de pousser, de poser des questions qui peuvent rendre certains témoins inconfortable. Mais ce sont des faits dans le but précis de bien s'assurer que l'on comprend bien tout ce qui s'est passé puis tes explications sont utiles. Alors, c'est dans cet esprit là que ça était fait et puis je voulais te...

Me Dunbar: Pour vraiment bien comprendre la conclusion c'est qu'on fait le même genre de question avec tout le monde dans ce sens là qu'on veut vraiment bien comprendre les décisions, les conclusions de qui que ce soit.

Sgt. Dussault: Non. Je comprends ça, puis je dois dire que le niveau de professionnalisme de votre part est évident. Entre autres vous m'avez permis un peu d'aggressivité ou de m'exprimer. Donc, non je suis confortable. J'ai tout dit ce que j'avais à dire. I wish you good luck.

Ms. Dunbar: Thank you very much.

Mr. Seheult: I want to thank you as well, Sergeant Dussault. We appreciate your efforts to assist us in this investigation. You understand that part of our job is to test and to probe your opinions.

Sgt. Dussault: Like I said, it is fair game. I hold no grudge. I had a little difficulty with you, and perhaps you did with me. I don't know. But that's all right. I have no problem with that. I respect you very much, sir. I respect everybody.

Ms. Dunbar: Thank you very much, Sergeant Dussault. --- Whereupon the interview concluded at 12:00 p.m. Emphasis added

(g) Provost Marshal's Allegation that the Complaints Commission Refused to Provide Witness Statements

By way of background, the following is a chronology of the relevant actions taken pursuant to the Provost Marshal's request. In reviewing this chronology, it is useful to bear in mind that this is the first time such a request had been made by the Provost Marshal, and that the purpose of the Notice of Action is not for the Provost Marshal to oversee the work of the Complaints Commission and reinvestigate the matter.

• On December 2, 2003 the Provost Marshal made a request to the Complaints Commission for access to "all the tapes, transcripts and notes that were compiled by the MPCC for the purpose of this public interest investigation." The Provost Marshal claimed to be trying to reconcile conflicts between the conclusions reached in our investigation and that of the DPM PS. The Provost Marshal acknowledged the following: "I am fully aware that there is no legislative requirement for the MPCC to provide me with these materials (…)".
• On December 15, 2003 the Provost Marshal sent a second letter to the Complaints Commission reiterating her request.
• On December 18, 2003 the Chairperson of the Complaints Commission responded to the Provost Marshal and stated the following in the text of the letter:

I am writing in response to your letter dated December 2, 2003 wherein you request access to all of the tapes, transcripts and notes that were compiled by the Complaints Commission for the purpose of the above-noted public interest investigation.

I have reviewed the Interim Report of the delegated members in this file, Mr. Peter Seheult and Mr. Odilon Emond, and can assure you that every finding and recommendation is clearly substantiated by the relevant evidence, which is laid out in detail in the Interim Report.

As you pointed out in your letter there is no legislative requirement for the Complaints Commission to provide these materials. However, in the spirit of cooperation, we would like to assist to the extent possible. We must request that you detail your specific concerns, and clarify which particular issues concern you, and which interviews or portions of interviews you wish to review, in order to narrow the focus of your request.

It should be noted that we have concerns about releasing witnesses' personal information and statements given they were not put on notice, prior to their interview, that the Complaints Commission may release their entire interview to you in preparation of the Notice of Action. Depending upon your needs and areas of concern, we will need to obtain the interviewees' consent prior to releasing their interviews.

In light of your request, and the potential for any future requests of this nature, my office will look into the possibility of altering our practice to put witnesses on notice that their statement may be disclosed to you in full in preparation of the Notice of Action.

• On January 2, 2004 the Provost Marshal, as per the Chairperson's request to specify her request, indicated that she wished to review the transcripts of Cpl Hamm, WO Rice, Major Burke and MCpl Paul.

On January 9, 2004, the Chairperson wrote to the Provost Marshal. The text of the letter was as follows:

I am writing in response to your letter dated January 2, 2004 wherein you requested copies of all recordings and transcripts of Corporal Timothy Hamm, Warrant Officer Stephen Rice, Major Paul Burke and Master Corporal David Paul that were compiled by the Complaints Commission for the purpose of the above-noted public interest investigation.

As was clearly noted at page 47 under the heading of "Persons Interviewed" of the Interim Report dated October 20, 2003, Master Corporal Paul refused to be interviewed by the Complaints Commission. Further noted in the Interim Report, Master Corporal Paul was also provided an opportunity to respond to written questions and declined. Accordingly, the Complaints Commission did not conduct any interview of Master Corporal Paul. All references in the Interim Report to Master Corporal Paul's interview are clearly footnoted as being his interview with the investigators from either the Canadian Forces National Investigation Service or the Deputy Provost Marshal Professional Standards.

In your letter of January 2, 2004 you indicated "there appeared to be inconsistencies between the statements that some witnesses made to the MPCC and the statements those same persons made to both Canadian Forces Provost Professional Standards and Canadian Forces National Investigation Services investigators". As a point of clarification, your letters of December 2 and December 15, 2003 rather stated that the "the findings of the Commission are often quite different than those of the Deputy Provost Marshal Professional Standards" which is not necessarily the same point.

As I stated in my letter of December 18, 2003 to you, I have reviewed the Interim Report of the delegated Members in this file, Mr. Peter Seheult and Mr. Odilon Emond, and can assure you again that every finding and recommendation is clearly substantiated by the relevant evidence including statements before the Complaints Commission, which is laid out in detail in the 202 page Interim Report.

You stated in your letter that it is your understanding that all witnesses interviewed by the Complaints Commission are advised that their statements receive no protection from future use and you go on to cite paragraph 17(1) of our Guide Governing Public Interest Investigations Conducted by the Military Police Complaints Commission. When your initial request dated December 2, 2003 was received, the delegated Members and myself were particularly concerned with whether or not the witnesses who appeared before the Complaints Commission had been given reasonable notice that their statement could be disclosed to you for the preparation of the Notice of Action. The wording used in paragraph 17(1) as well as the wording of the statement form signed by some witnesses states that there is no protection against the use of their statement as evidence "in any proceeding". "Any proceeding" in our view, and as contemplated when writing the Guide Governing Public Interest Investigations by the Military Police Complaints Commission, refers to such things as a civil, criminal or disciplinary hearing. It was in this manner that it was explained to certain witnesses prior to their interview before the Commission Members. We do not consider the preparation of your Notice of Action to be a "proceeding" and cannot assume the witnesses interpreted "proceeding" beyond the intended meaning.

Our main concern is fairness to the witnesses who appeared before the Complaints Commission. We are of the view that the witnesses were not clearly put on notice, prior to their interview, that the Complaints Commission may release their entire interview to you in preparation of the Notice of Action. As this is the first request of this nature, it was not contemplated prior to the interviews. However, as I indicated in my letter of December 18, 2003, my office will look into the possibility of altering our practice to put witnesses on notice that their statement may be disclosed to you in full in preparation of the Notice of Action for future cases.

That being said, we are not opposed to releasing the requested transcripts and recordings to you if the individual witnesses consent to me doing so. As such, my staff has already contacted Warrant Officer Rice, Major Burke and Corporal Hamm through his counsel. We are awaiting their replies. If the witnesses consent to me releasing the recordings and transcripts to you, I will do so forthwith. I hope to have an answer to you very shortly although it is dependant upon the response time of the witnesses.

In addition, in the interests of assisting you with this file and in proceeding as expeditiously as possible, Julianne Dunbar, Legal Counsel at the Complaints Commission, would be pleased to answer any questions you or your staff may have about the facts and evidence underlying any particular finding. Ms. Dunbar may be reached at (613) 943-5592 or by e-mail at dunbarj@mpcc-cppm.gc.ca or through DWAN.

As a final note, we wish to address your concluding remark in your letter of January 2, 2004 that you are concerned with the amount of time that this investigation has already taken. You appear to be conveying the message that any delays are the sole responsibility of the Complaints Commission, which is inaccurate. You will recall that there were several delays from your office in receiving full disclosure after our numerous requests for additional disclosure as well as issues arising with witnesses.

The Complaints Commission is and always has been concerned with the issue of timeliness and will continue to respond diligently to all requests and complaints. We hope to be able to send you the requested materials as soon as possible and trust, in the meantime, in light of the very detailed and voluminous Interim Report that you are well under way in your preparation of the Notice of Action so as to not delay the process.

• Complaints Commission staff contacted Cpl Hamm, WO Rice and Major Burke to see if they would consent to the disclosure of their transcripts.
• On January 14, 2004 after having received consent from WO Rice, his transcripts of his interview before the Complaints Commission were forwarded by courier to the Provost Marshal. In the covering letter, the Provost Marshal was also advised that the Complaints Commission was still waiting a response from the other two individuals.
• As Major Burke is a medical practitioner and his interview with the Complaints Commission contained some of Cpl Hamm's personal medical information, both Major Burke and Cpl Hamm, through his counsel, were consulted.
• In correspondence dated January 29, 2004 from Cpl Hamm's counsel the Complaints Commission was advised which portions were to be vetted given the medical information. Cpl Hamm's counsel clearly indicated that some of his client's medical information could be disclosed on the pre-condition that this personal information be used for the specific and sole purpose of completing the Notice of Action.
• On February 6, 2004 the Provost Marshal provided, in writing, the necessary assurance.
• After receiving Major Burke's consent on February 11, 2004, Major Burke's transcript was forwarded to the Provost Marshal by courier on February 13, 2004.
• The transcripts of Cpl Hamm were never forwarded as the Complaints Commission was still waiting a response from Cpl Hamm's counsel when the Notice of Action was received. Counsel for Cpl Hamm advised the Provost Marshal and the Complaints Commission that he was awaiting requested information from the Provost Marshal before deciding on whether or not to provide consent.

(h) Credibility Findings challenged by the Provost Marshal

The principles of judicial deference apply. Although the Provost Marshal is not an appellant body, nor is her role to review or reinvestigate the Complaints Commission's investigation, the same rationale is applicable in this instance. The rationale of a deferential standard of review is that the trier of fact (in this case, the Complaints Commission Members) is in the best position to assess the credibility of witnesses' testimony as he or she has both seen and hear the witnesses.^[34]

We will now examine specific findings relating to this issue.

Interim Finding #2 (Final Finding #2):

Interim Finding 2 reads as follows:

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.

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.

As such, Interim Finding 3 (Final Finding #3) remains as written.

Interim Finding #4:

Interim Finding 4 reads:

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.

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.

Accordingly, we confirm Interim Finding 5 (Final Finding #5).

Interim Finding #6:

Interim Finding 6 reads:

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

We disagree. Commencing at page 82 of the Interim Report, MCpl Paul's evidence during his CFNIS interview is detailed. MCpl Paul's recollection was that WO Rice called them into his office immediately after slamming down the phone after his conversation with Cpl Hamm. This would confirm Cpl. Hamm's version of the events.

The standard of proof required for us to come to our conclusions is one of a balance of probabilities and not one of certainty.

Accordingly, we confirm Interim Finding 6 (Final Finding #6). It is not the Provost Marshal's role to weigh the evidence. Such would suggest a clear indication of a misunderstanding of her role.

We are pleased to note the Provost Marshal's agreement with Interim Finding 1 (Final Finding #1).

(i) Insubordination

Finding 7 of the Interim Report reads as follows:

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.

The Provost Marshal states in her Notice of Action in relation to this finding that:

Cpl Hamm did not mention any swearing in his complaint to his brother, his interview with the NIS, or his interview with the DPM PS investigator. The first mention that I have seen of WO swearing at Cpl Hamm was made in the MPCC's Interim Report.

Sgt Rice looses it, starts yelling into the phone that I am in the Military and better damn well realize it, becomes verbally abusive, I hold the phone away from my ear listen to him ranting and raving and hang up.

The statement that Sgt Rice was verbally abusive during the telephone conversation was also noted in Cpl Hamm's complaint in the first instance to the Complaints Commission on May 15, 2002.

In Cpl Hamm's interview with the DPM PS Professional Standards investigator of January 17, 2002 Cpl Hamm stated at page 58 of the transcript:

Sgt Rice told me, he said "You better                 learn you're in the military." He said the "F" word a couple of times. He was yelling and screaming."

Ms Dunbar: Did you ever say before you hung up, "See you later, bud"

Cpl Hamm: No, I did not say, "See you later, bud."

Ms Dunbar: What was the conversation just prior to hanging up?

Cpl Hamm: A click. I held it away from me

Ms Dunbar: You were listening to him.

Cpl Hamm: He was swearing. I was going to the bathroom. He was swearing. I went click.

Ms Dunbar: What exactly was he saying again when he was swearing? Was this the part about "If I go, you go"?

Cpl Hamm: "You better                 learn you're military. If I tell you to                 do something, you do it, blah, blah, blah." Click. I say "man" a lot. I say "Hey, man." Even my friends have said the same thing. I never say, "See you later, bud."

The Provost Marshal is quite right that this ultimately comes down to an issue of credibility. We had the benefit of investigating this matter in the public interest and hearing the evidence of the various witnesses and therefore feel we are the proper persons to make conclusions in this respect. The duty to investigate was removed from the Provost Marshal when the Chairperson of the Complaints Commission called a public interest investigation.

Accordingly, we confirm the first part of Interim Finding 7 that "on a balance of probabilities, (...) Warrant Officer Rice used profanity during his telephone conversation with Corporal Hamm."

Legal Issue:

The Provost Marshal in her Notice of Action also specifically objects to our conclusion in Finding 7 in the Interim Report that, given WO Rice's use of profanities in his telephone exchange with Cpl Hamm, "Corporal Hamm was not insubordinate in hanging up the telephone [on WO Rice]."

The Provost Marshal effectively takes the position that nothing that WO Rice may have said to Cpl Hamm during their telephone conversation while the latter was at home on medical leave could have justified or excused Cpl Hamm in hanging up on WO Rice. The Provost Marshal further states that our suggestion to the contrary demonstrates on our part a fundamental lack of understanding of military law, a failure to research the relevant law and to consult with military law experts and an excess of our mandate by attempting to interpret a provision of the Code of Service Discipline.

On further reflection, we wish to clarify that we did not intend in Interim Finding 7 to express a conclusion on Cpl Hamm's guilt or innocence of the Code of Service Discipline offence of insubordination contrary to NDA s. 85. It was our intention merely to address the issue of insubordination in a generic sense. In that sense, we agreed with the assessment made by the CFNIS investigators on this point. However, we admit that, given the context of this case, our use of the term "insubordination" does create confusion on this point. Therefore, we will revise this finding accordingly. Interim Finding #7 (revised) (Final Finding #7):

The Commission Members find, on balance of probabilities, that Warrant Officer Rice used profanity during his telephone conversation with Corporal Hamm. The Commission Members further find that this led Corporal Hamm to hang-up the telephone on Warrant Officer Rice.

In making this finding in the Interim Report, we deliberately refrained from citing NDA s. 85, as it is the policy of the Complaints Commission, not to express conclusions as to the criminal or civil liability of individuals. We have, however, conducted legal research into the interpretation of the insubordination offence, both under s. 85 of the NDA specifically and in other analogous contexts, such as internal police service offences.

There is, in fact, very little available jurisprudence on the interpretation and application of this offence as it is usually dealt with at summary trial where reasons for judgment are not given. However, in reviewing the limited jurisprudence and analysis of this offence that was available, we have found nothing to support the Provost Marshal's assertion that hanging-up on a superior is, without exception, an act of insubordination for which there can be no legal excuse, justification or defence. Nor does the Provost Marshal cite any authority in support of her position. This omission on her part is particularly striking given her gratuitous remarks and characterizations of our competence and methods, which convey the distinct impression that such authority exists in abundance and is easily found.

We accept that it was not the best choice of language to use in our Interim Report as the finding could be interpreted as expressing an opinion that Cpl Hamm was innocent of the offence of insubordination under the Code of Service Discipline. The Provost Marshal may wish to consider taking a similar approach in the drafting of her Notices of Action. As it is, she has in this portion of her Notice of Action expressed a fairly strong opinion of Cpl Hamm's guilt under s. 85, notwithstanding that he has never even been charged with this offence, let alone convicted. We cannot help but contrast her approach to Cpl Hamm in this regard with her objection to our Interim Report Finding 9, where she takes issue with our conclusion that WO Rice attempted to recall Cpl Hamm to duty on the basis that it conflicts, in her view, with WO Rice's acquittal by a service tribunal on a charge of conduct to the prejudice of good order and discipline.

Finally, while we do wish to refrain from making findings that express conclusions about the guilt or innocence of individuals, we do not concede that the interpretation of legislation, including provisions of the Code of Service Discipline, is beyond our mandate. As a body that issues only non-binding findings and recommendations, such legal interpretations in our reports should not be viewed as "findings of law" in the administrative law sense for which we require any special statutory authority. Rather, our reports constitute findings of fact and opinion notwithstanding that they will inevitably have some legal content given that they are reviewing the conduct of law enforcement professionals.

We are pleased to note the acceptance of Interim Finding 8 (Final Finding #8) by the Provost Marshal.

(j) Recall to Duty

… 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.

Taking the second point first, a mere acquittal on a charge of conduct to the prejudice to good order and discipline is in no way determinative of the issue of whether or not WO Rice, in fact, sought to recall Cpl Hamm from sick leave, or whether, in doing so, he followed the legal requirements for this step. While there is overlap, the issues are not the same. There are additional elements to proving an offence under NDA s. 129 which go beyond a determination of whether the requirements in QR&O; 16.01 were followed. Therefore, we do not agree with this objection to our finding.

However, on further reflection, we are prepared to accept the Provost Marshal's argument that any necessary leave cancellations for the affected personnel can be viewed as implicit in the tasking order from Cpl Hamm's Commanding Officer. Paragraph 16.01(2)(b) of QR&O; does stipulate that a member's Commanding Officer must personally direct a member's recall from leave, which we understood to require that the member's Commanding Officer must at least have directed his mind to the cancelling of the member's leave. However, after having considered the opinions expressed by persons from the office of the Judge Advocate General as well as others with relevant military experience, we are persuaded that, in practice, such a step is not deemed to be necessary or practical given the tempo of operations and the competing demands on Commanding Officers in such situations.

Therefore, consistent with this understanding of how QR&O; 16.01 is construed in practice, and in the absence of any apparent jurisprudence to the contrary, we have modified Interim Finding 9 accordingly.

Interim Finding #9 (revised) (Final 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 could be construed as a "recall to duty" within the meaning of Queen's Regulations and Orders section 16.01.

(k) Section 10(a) of the Charter and Corporal Hamm's Right to be Informed of the Reason for his Arrest

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.

In his interviews with both Professional Standards and the CFNIS investigators, Cpl Murray was adamant that Cpl Hamm's rights were respected. Indeed, Cpl Murray stated that MCpl Paul borrowed his caution card to read Cpl Hamm his rights.

(l) Superior Orders and the Arrest of Corporal Hamm

We are sympathetic to the difficult position of MCpl Paul and Cpl Murray in this case. We are fully cognizant of their legal and ethical obligation to obey the orders of their military superiors, even when they do not agree with, or fully comprehend the reasons for, such orders - indeed, even when the very lawfulness of the orders they are given is unclear. We also understand the necessity and rationale for such a doctrine within the military.

At the same time, it must be recognized that circumstances do often permit - and sometimes require - that military subordinates seek additional information from their superiors before carrying out their orders. Such a need may arise where the subordinate requires clarification regarding the actual task or action that has been ordered. Another scenario where it would be acceptable, if not essential, for a military subordinate to question his or her superior about an order would be where the subordinate must personally be aware of certain information, or must personally make an assessment of the situation, in order to satisfy applicable legal requirements. We believe that the situation of a Military Police member ordered to arrest a suspect is just such a scenario.

Due at least in part to court decisions such as Gauthier and Dulude, it now seems clear that the arrest of a person subject to the Code of Service Discipline for a service offence is subject to essentially the same legal conditions as the arrest of a civilian under the Criminal Code: namely that the person responsible for the arrest must subjectively believe that the grounds for arrest (i.e., reasonable belief that the person has committed an offence) are present; and, at least for less grave offences, that the use of the arrest power (as opposed to less restrictive means, such as the issuance of a summons) is actually necessary in the public interest (as, e.g., where there is a need to establish identity or prevent the repetition or continued commission of an offence, or where there is a likelihood of flight from or evasion of justice, etc.).

It is also clear that a superior order does not displace these legal requirements for a valid arrest (see, e.g., the Dulude case). It could hardly be otherwise, if the rights guaranteed to suspects under the Constitution were not to be rendered meaningless.

What is less clear from existing jurisprudence is whether those who make an arrest pursuant to a superior order bear any responsibility for ensuring that the legal requirements for an arrest are satisfied. Certainly, such subordinates are relieved of any criminal liability, provided that the order to arrest is not manifestly unlawful. But this does not fully address the issue. When the subordinates in question are specially trained and appointed as Military Police members, such subordinates also have legal and ethical obligations of a professional nature, and should, in our view, generally be accountable in this regard for ensuring that an ordered arrest is lawfully effected. Such a responsibility comes with being appointed a Military Police Member.

We are of the view that when a Military Police member, acting in his or her capacity under NDA s. 156, is ordered to arrest a suspect, it should be presumed that the Military Police member will exercise his or her professional judgment in giving effect to such an order. Consequently, the Military Police member in this situation ought to take personal responsibility, notwithstanding the fact of the order, for ensuring that the arrest meets all the applicable legal requirements. In this respect, Military Police are no different from other professional occupations in the Canadian Forces (e.g., military physicians or lawyers, etc.) whose members, while still subject to the orders of their military superiors, are nonetheless expected to exercise their independent professional judgment when performing their duties.

We do not accept the Provost Marshal's argument that arrests by Military Police acting under s. 156 cannot be ordered, or that an order to arrest necessarily means that the Military Police member carrying out such an arrest must thereby be acting in a purely military (i.e., non-policing) capacity under s. 155. The ordered arrest at issue in the Dulude case, for instance, was held to be an arrest carried out under s. 156. Indeed, elsewhere in her Notice of Action, the Provost Marshal acknowledges implicitly the possibility of ordered arrests under s. 156, when she writes (at page 12): "Thus, a peace officer cannot arrest, or be ordered to arrest, an individual unless he has the knowledge that an offence has been committed by that individual" [Italics added for emphasis].

A responsible and properly trained military commander ordering Military Police to arrest someone for a service offence should understand that there are particular legal requirements for an arrest. Such a commander should also expect that the specially-trained Military Police members will apply their professional knowledge to the situation and either: take whatever additional steps, or acquire whatever additional information, they judge necessary to effect a valid arrest in a professional manner; or, alternatively, advise the commander that an arrest would not be legal in such circumstances.

However, the fact that there is room for, and indeed a requirement of, some independent judgment, does not in our view mean that such arrests cannot be said to have been ordered. Nor, conversely, does the mere fact of a superior order to arrest eliminate a Military Police member's duty to exercise his or her own professional judgment and discretion in carrying out his or her policing duties.

QR&O; article 105.07 does provide that service members who receive an order to arrest from a superior officer are required to perform the arrest notwithstanding that they could not have made the arrest on their own responsibility. While the provision makes no explicit distinction between ordered arrests under NDA s. 155 and s. 156, we think that QR&O; 105.07 is best understood as speaking primarily to arrests under s. 155. Given the extent of the Military Police members' authority to arrest under s. 156, QR&O; 105.07 would add little to these powers. In any event, QR&O; 105.07 should not, in our view, be read as requiring or authorizing Military Police members acting under s. 156 to perform arrests without forming the necessary grounds for the arrests or assessing whether arrest is necessary in the public interest.

However, having considered the views of the Provost Marshal in her Notice of Action, we accept that different considerations may well apply to arrests ordered under s. 155. We recognize that in the military context there must be a mechanism for securing the arrest of persons without the need to justify the arrest to those expected to carry it out, and without these subordinates having to be personally satisfied as to the necessity or appropriateness of this action. NDA s. 155 serves this purpose in the Canadian Forces and, as the Provost Marshal correctly points out in her Notice of Action, s. 155 applies without distinction to all Canadian Forces members, including Military Police members.

As we indicated earlier in this document, we have come to the conclusion that the arrest in this case - regardless of whether it was done under NDA s. 155 or 156 - constitutes a "policing duty or function" when performed by a member of the Military Police and is therefore reviewable by the Complaints Commission pursuant to Part IV of the NDA. We further believe that - again, regardless of which arrest power was being invoked - those Military Police members involved in the arrest of Cpl Hamm are all accountable, as police professionals, to the Provost Marshal and to the Complaints Commission as well as the Canadian public in general, for the manner in which they discharged their responsibilities. Specifically, MCpl Paul and Cpl Murray, as Military Police performing a policing function, were responsible as police professionals for executing the physical arrest of Cpl Hamm in a lawful, appropriate and professional manner, regardless of which legislative provision they were acting under.

In this connection, we were somewhat surprised by certain comments made in relation to our Interim Finding 13, at page A-22 of the Provost Marshal's Notice of Action, which seem to suggest that MCpl Paul and Cpl Murray were not required to advise Cpl Hamm of the reason for his arrest or of his right to counsel. While we have conceded that the Military Police Policies and Procedures referenced in Interim Finding 13 were not technically applicable, it should be clear that these constitutional rights of arrested persons, enshrined as they are in section 10 of the Charter, are engaged by any arrest, including an arrest under the NDA s. 155. The requirement of Canadian Forces personnel performing arrests to respect these rights is further specified in QR&O; 105.08, which applies to arrests under both sections 155 and 156. We hope that the Provost Marshal, as the most senior police officer in the Canadian Forces, did not intend to suggest otherwise.

In terms of the actual decision to arrest, however - specifically, the need to discern the legal grounds for arrest and to determine its necessity (the so-called "mental elements" of an arrest) - we accept that there may well be a difference in the professional responsibilities of Military Police ordered to make an arrest pursuant to NDA s. 155 versus s. 156. In contrast with the special Military Police arrest powers under s. 156, the general arrest powers of Canadian Forces members under s. 155 do not as such import the same considerations of police professional responsibility so as to qualify, dilute or read-down the direction under QR&O; 105.07 to carry out ordered arrests without regard to personal responsibility. In other words, the combined effect of NDA s. 155 and QR&O; 105.07 would appear to be such that only the person who orders an arrest is expected to concern themselves with the propriety of the actual decision to arrest.

As the particular facts of this case suggest that WO Rice may well have been acting under s. 155 when he ordered Cpl Hamm's arrest, we are inclined to revisit certain of our findings and recommendations concerning the conduct of MCpl Paul and Cpl Murray in connection with that arrest.

In the somewhat unusual circumstances of this case, it seems only fair to give MCpl Paul and Cpl Murray the benefit of the doubt and assess their conduct through the lens of s. 155, rather than s. 156. Given its application to all Canadian Forces members, an ordered arrest under s. 155 does not seem to engage a Military Police member's special professional responsibilities in the same way, or to the same extent, as would an arrest under s. 156. As already indicated, MCpl Paul and Cpl Murray were expected to carry out the arrest of Cpl Hamm in a manner consistent with their professional obligations in any event. However, given the requirements of QR&O; 105.07, we believe that MCpl Paul and Cpl Murray, acting in their military capacity under s. 155, were entitled to rely upon WO Rice having been satisfied as to the existence and sufficiency of the grounds for arrest and its necessity. In other words, we believe that any specific failure to form the proper grounds for the arrest of Cpl Hamm and to assess its necessity in the public interest should rest with WO Rice alone. Accordingly, we are withdrawing Interim Report Findings 13, 15, 16, 18 and 19, as well as interim Recommendation 6.

We continue to believe, however, that, even in the context of an ordered arrest under s. 155, those carrying out such an order do bear some responsibility for trying to ascertain the reason for the arrest so that they can convey this information to the person being arrested, as required by s. 10(a) of the Charter and QR&O; article 105.08. Therefore, we confirm Interim Finding 17 (now Final Finding #15).

We also believe that, as they knew or ought to have known that they had arrest powers under both ss. 155 and 156, and given the differing professional obligations applicable under those provisions, it was incumbent on MCpl Paul and Cpl Murray to try to ascertain the capacity in which they were being called upon to arrest Cpl Hamm. While it might no doubt have been awkward seeking this clarification from WO Rice given his mood at the time, this knowledge was essential for them to properly discharge their professional responsibilities. MCpl Paul and Cpl Murray needed to know whether they were performing the arrest as Military Police per se - in which case, they would have needed to personally discern the grounds for and necessity of the arrest - or as military subordinates - in which case, they could rely on WO Rice having done so.

Therefore, we are adding a new Finding 13 regarding the responsibility of MCpl Paul and Cpl Murray in this regard.

Finding #13 (new) (Final Finding #13):

The Commission Members find that Master Corporal Paul and Corporal Murray, before proceeding to arrest Corporal Hamm, should have sought to ascertain from Warrant Officer Rice whether they would be performing the arrest as Military Police members under s. 156 or as Canadian Forces members under s. 155 of the National Defence Act.

As is clear from the foregoing discussion, the legal issues presented by the interplay of the law governing arrests, police professional obligations, and the duty to obey superior orders, are neither simple nor free from doubt. Specific legislative and judicial guidance is lacking in key areas. We believe that the foregoing analysis reflects a balancing of rights and duties that is most consistent with the present state of the law. However, we also recognize that other answers and perspectives are possible. The issues at stake here are significant and include: the liberty of the individual, and the rights of suspects; the nature and limits of the arrest powers under the NDA; and the legal liability and professional accountability of Military Police members. While achieving the proper balance among these concerns involves grappling with some grey areas of the law, we believe that it is essential that those institutions with responsibility for military policing in Canada move toward a common understanding in this area.

Although further clarification from Parliament or the courts would be beneficial, we believe that some action can and should be taken in the interim. We believe that representatives of the key agencies involved in these issues should meet informally to discuss and share their various perspectives on the legal issues in question. Ideally, some consensus on these questions could be achieved that could form the basis of future policy guidance to Military Police and those who command them. Moreover, each organization would benefit from the specific concerns, experience, and perspectives of the others. From the military policing side, obviously there should be participation from the Provost Marshal and the Complaints Commission. The office of the Judge Advocate General would obviously be best suited to provide insight and expertise on the military justice system and general questions of military law. Also, given the substantial experience of the civilian criminal justice system with respect to the law governing arrests, we think it would be useful to have the involvement of counsel of the Department of Justice with expertise in criminal law and procedure under the Criminal Code.

Therefore, we would add the following recommendation:

Recommendation #6 (new) (Final Recommendation #6):

The Commission Members recommend that appropriate representatives of the Complaints Commission, the Canadian Forces Provost Marshal, the Judge Advocate General, and the Department of Justice meet to review and discuss the legal and professional issues surrounding the exercise by Military Police members of arrest powers under the National Defence Act and the relevant implications of an order to arrest from a military superior.

(m) Abuse of Authority

The Commission Members find that Warrant Officer Rice acted beyond the scope of his authority and responsibility in the circumstances.

(n) Privacy Act^[36] comments by the Provost Marshal

At no time did we wish to infer that Dr. Burke disclosed the reasons for Cpl Hamm's medical leave to MCpl Paul. Rather, the text in the Interim Report noted that MCpl Paul knew all along that Cpl Hamm's sick leave was                 because Cpl Hamm had told him on December 7, 2000. The Commission Members do wish to acknowledge the confusion that was created at page 131 of the Interim Report, lines four through nine.

For these reasons, Interim Finding 24 is withdrawn and Interim Finding 25 is modified as follows:

Interim Finding #25 (revised) (now Final Finding #19):

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 questions had been raised about Corporal Hamm's sick leave status, in order to obtain confirmation that the arrest was still warranted.

(o) Master Corporal Paul's notes

This statement by the head of the Military Police certainly causes us some concern. There is never an excuse for poor note-taking. We take issue with the fact that MCpl Paul never mentioned in his notes that he had a conversation with Dr. Burke. Even if the Commission Members were to believe that MCpl Paul and Cpl Murray were conducting this arrest pursuant to s. 155 of the NDA, they would still be required to take proper notes. The members carrying out the arrest are responsible for ensuring the person's Charter rights are respected. If any Charter violations are alleged it would be difficult for the member who effected the arrest to properly respond. In addition, in order for the officer to be a credible witness at a summary trial or court martial, proper notes are essential.

Accordingly, Interim Finding 26 (now Final Finding #20) remains as written.

(p) Findings surrounding Chief Warrant Officer Gauvin

Interim Finding #27 (revised) (now Final Finding #21): 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 QR&O; section 105.12. Chief Warrant Officer Gauvin should have called on the arresting officer to release Corporal Hamm from arrest.

We note the Provost Marshal's agreement with Interim Finding 28 (now Final Finding #22).

In relation to Interim Finding 29 (now Final Finding #23), we confirm this finding.

The Provost Marshal disagreed with the Commission Members' Interim Finding 30 which stated that:

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

Interim Finding #30 (revised) (now Final Finding #24):

The Commission Members find that Chief Warrant Officer Gauvin should have used more appropriate language.

(q) Rights of Complainants and Subject Members Concerning Classification of Complaints

In the Provost Marshal's commentary she notes that she is not "aware of any statutory rights that are provided by Part IV of the NDA that are otherwise unavailable to personnel submitting complaints or grievances under the many other provisions of the NDA and QR&O.;"

The Provost Marshal stated that there are other recourse mechanisms that provide the same rights to complainants.

We do not share her view. Civilian oversight provides an opportunity to complainants and subject members to have their matter reviewed by an outside, independent oversight agency. At page 145 of the Interim Report, we explained the various rights which may potentially be nullified:

If conduct complaints, brought to the attention of the CFPM either through the Military Police Chain of Command or through any other source, are classified as "internal" the complainant may never be notified of the right to have their conduct complaints reviewed by the Complaints Commission and thus may be unable to exercise that right. The complainant and subject of complaint may also lose the right to have the complaint monitored at all stages by the Complaints Commission. The complainant and subject of complaint may also lose their potential right to have the complaint investigated by the Complaints Commission as a public interest investigation and/or hearing.

Accordingly, Interim Finding 33 (now Final Finding #27) remains as written.

(r) Warrant Officer Hamm and Corporal Hamm as Subjects of Complaints

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.

We agree that, technically, WO Hamm and Cpl Hamm were not named as subject members by the DPM PS in her investigation. We found that, if and when a complainant's own conduct becomes a focus of the investigation, a new Professional Standards investigation ought to be commenced naming them as a subject of the complaint. This would ensure that this individual is given all the proper warnings and protections in relation to the allegations against him or her. Accordingly for reasons of clarity, the Commission Members make the following modifications to Interim Finding 34:

Interim Finding #34 (revised) (now Final Finding #28):

The Commission Members find that the Professional Standards investigation focused on Corporal Hamm's behavior 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.

Interim Finding #35 (revised) (now Final Finding #29):

The Commission Members find that when the Professional Standards investigation began to focus on possible misconduct by Corporal Hamm and Warrant Officer Hamm, a new and separate investigation of the allegations against Corporal Hamm and Warrant Officer Hamm should have been commenced which would have provided them with the appropriate notices and protections required by law and policy.

After a review of File #2002-005, we are of the view that Finding 4 of that file was taken out of context by the Provost Marshal.

This case was one that involved the person affected by the conduct reporting the information to a person in authority who subsequently made a complaint. Some time later in the process, the DPM PS named the person affected as the complainant without that person ever being made aware. The point of this finding was simply to ensure that the DPM PS contacts those persons she is naming as a complainant to ensure that they wish to be named as a complainant. It is a leap for the Provost Marshal to assume that this finding stands for the proposition that the DPM PS is not at liberty to name herself as a complainant in a file where no complainant comes forward.

The Commission Members are certainly supportive of the DPM PS naming herself as the complainant in such cases where a complainant has not come forward. The Commission Members do not see anything wrong with such a practice and in fact, encourage it. It is further consistent with Part IV of the NDA which allows "any person" to file a conduct complaint, which includes the DPM PS.

Interim Finding 36 (now Final Finding #30) remains as written.

(s) Deputy Provost Marshal Professional Standards' Conclusions

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.

The Commission Members make the following modification to Interim Finding 37:

Interim Finding #37 (revised) (now Final Finding #31):

The Commission Members disagree with all of the 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. Interim Finding 38 reads:

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.

(t) Warrant Officer Hamm's treatment by the Deputy Provost Marshal Professional Standards

We view this as tantamount to investigating a complaint himself and do not agree with such an obligation. Furthermore, it would be ill-advised to do so as it could be considered as interfering in a police investigation. In fact, we are of the view that section 7 of the Military Police Professional Code of Conduct required WO Hamm to report his awareness of the allegation. There is no requirement to verify or investigate the belief or allegation before it is reported. This was essentially the main thrust of Interim Finding 40 to which the Provost Marshal agreed.

We are pleased to note the Provost Marshal's agreement with Interim Findings 40, 41, 42 and 43 (now Final Findings #34, 35, 36 & 37).

The Provost Marshal disagreed with Interim Finding 44 wherein we found that WO Hamm should not have been counseled. The Provost Marshal in stating her disagreement noted that:

I believe that WO Hamm made an error in judgment by accepting his younger brother's versions of the events without verifying them. He should not have asserted himself into this issue, particularly because it was his brother who was involved.

We conclude that Interim Finding 44 (now Final Finding #38) is the correct finding on the facts of this case and confirm this finding.

(u) Corporal Hamm's treatment by the Deputy Provost Marshal Professional Standards & Review of Police Credentials

This is a matter for determination by the MP CRB, a separate decision making body. In this context it is inappropriate for the MPCC or the Office of the Canadian Forces Provost Marshal to comment on this issue.

It is important to note that the findings and conclusions contained within this report cannot be taken as findings of criminal or civil liability. The findings and conclusions neither bind courts considering the same subject matter nor are they intended to infringe on the jurisdiction of other decision makers in related matters.

Since the Complaints Commission has no penal jurisdiction and its Findings and Recommendations are not legally binding, reports by Complaints Commission Members are in no way equivalent to the judgments of a court or service tribunal properly seized of such issues. However, in assessing Military Police conduct, the Complaints Commission is nonetheless entitled to draw upon relevant standards, including legal ones. The Canadian Charter of Rights and Freedoms, the Military Police Professional Code of Conduct and, in some cases, the Code of Service Discipline, or even the Criminal Code, are all valid sources of potentially relevant standards for Military Police conduct. In fact, the Complaints Commission would be remiss in its duty to act fairly if, in assessing the appropriateness of Military Police conduct, it were to ignore relevant, pre-existing and authoritative norms simply on the basis that other institutions bear primary responsibility for their application and enforcement.

We therefore reject the Provost Marshal's assertion that the Provost Marshal and the Military Police Credentials Review Board have a monopoly on the construction and application to specific cases of the Military Police Professional Code of Conduct. The Military Police Professional Code of Conduct is clearly relevant to the Complaints Commission's mandate under Part IV of the NDA and the Commission Members have an implicit jurisdiction to consider the Military Police Professional Code of Conduct in arriving at the Findings and Recommendations in their reports. Indeed, the Military Police Policies and Technical Procedures themselves stipulate that the Military Police Credentials Review Board process must await any review by the Complaints Commission (A-SJ-100-004/AG-000, page 3-8, paragraph 18), which clearly suggests a role for the Complaints Commission in the interpretation of the Military Police Professional Code of Conduct.

As they do not legally bind any other body, such findings by the Complaints Commission do not in any way detract from the unique authority of the Provost Marshal - on the advice of the Military Police Credentials Review Board - to enforce professional standards through the imposition of sanctions or other remedial measures.

We would like restate that the Complaints Commission is entitled to make findings and recommendations on a broad scale (as per NDA s. 250.32, the Complaints Commission's mandate covers "any matter relating to the complaint"). Given that the DPM PS conclusions regarding Cpl Hamm's conduct derived from this complaint, and thus cannot be separated from the initial complaint, it is not only part of the Complaint Commission's mandate, but it is incumbent upon us to comment and to make findings and recommendations relating to the complaints.

That being said, we do wish to afford the proper deference to those empowered to make the ultimate decisions and as such feel it appropriate to revise the following findings:

Interim Finding #45 (revised) (now Final Finding #39):

The Commission Members are of the view that the evidence does not support the conclusion that Corporal Hamm violated paragraph 4(l) of the Military Police Professional Code of Conduct.

Interim Finding #46 (revised) (now Final Finding #40):

The Commission Members are of the view 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.

Interim Finding #47 (revised) (now Final Finding #41):

Because Corporal Hamm was not treated as a subject member or advised that the Professional Standards investigation was addressing this issue, the Commission Members are of the opinion that it was unfair to Corporal Hamm for the Deputy Provost Marshal Professional Standards to rely on paragraph 4(k) of the Military Police Professional Code of Conduct.

Interim Finding #48 (revised) (now Final Finding #42):

The Commission Members are of the view that the evidence does not support the conclusion that Corporal Hamm violated 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.

Interim Finding #51 (revised) (now Final Finding #44):

Based on the evidence reviewed and heard, the Commission Members do not support the decision to suspend Corporal Hamm's credentials for supplying false information to or withholding information from Warrant Officer Hamm.

Interim Finding #52 (revised) (now Final Finding #45):

The Commission Members disagree with the various and contradictory reasons advanced by the Deputy Provost Marshal Professional Standards to suspend Corporal Hamm's credentials.

(v) Misleading the Investigator

The Provost Marshal in her Notice of Action stated that the accuracy of this finding depends on which investigator we are referring to. The Provost Marshal states her understanding to be that the DPM PS finding refers to the CFNIS investigator and not the DPM PS investigator.

To clarify, we were under the impression that the DPM PS was referring to her own investigator. Capt. Chiasson, in his interview with the Complaints Commission, stated the following:

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.^[38]

Accordingly, Interim Finding 49 is modified as follows:

Interim Finding #49 (revised) (now Final Finding #43):

In the Commission Members' view, the evidence does not support the conclusion of the Deputy Provost Marshal Professional Standards that Corporal Hamm knowingly revealed information intended to mislead the Professional Standards investigator or the Canadian Forces National Investigation Service investigators.

The members have chosen to withdraw Interim Finding 50 for reasons of duplicity with Interim Finding 38.

(w) Recommendations

We are of the view that WO Rice did not act properly on the day of Cpl Hamm's arrest. Accordingly, we make the following modification to interim Recommendation 2:

Interim Recommendation #2 (revised) (Final Recommendation #2):

The Commission Members recommend that Warrant Officer Rice receive, if he has not already, advanced training on the elements and requirements for a proper arrest and the rights of suspects who are subjected to an arrest.

The Commission Members recommend that the Canadian Forces Provost Marshal impose corrective measures on Warrant Officer Rice for abuse of authority.

Interim Recommendation #3 (revised) (Final Recommendation #3):

The Commission Members recommend that the Canadian Forces Provost Marshal ensure that Warrant Officer Rice is provided with sage advice and guidance on the proper exercise of his authority.

In interim Recommendation 7, we recommended that the Provost Marshal implement safeguards regarding the classification of complaints. The Provost Marshal in her Notice of Action responded that the DPM PS process for the categorization of complaints was reviewed following discussions in Wakefield in May 2003. The Provost Marshal indicated that the Director of Operations attended the office of the DPM PS in September 2003 and was briefed on the process.

By way of background, the issue of classification of complaints was raised as an issue at meetings between the Complaints Commission and the office of the Provost Marshal in Wakefield, Quebec, in May 2003. The Complaints Commission raised the issue that they were concerned that some complaints were being incorrectly categorized as "internal" (i.e., not falling under the NDA Part IV complaints process). The Complaints Commission also raised the issue that if the two organizations do have differences of opinions on classification, we will never be able to sort them out if we are not aware of these files. The Complaints Commission asked for access to all the files classified as "internal" to review. The Provost Marshal and her staff were not willing to allow the Complaints Commission to see all the files, but did agree to allow the Complaints Commission to see a pre-selected sampling of files.

Ultimately, on September 9, 2003 the Complaints Commission's Director of Operations reviewed this sampling of files. The information relayed to the Director of Operations from the DPM PS staff was that if there is no clear complainant, or complaint and instead, Professional Standards issues surface from the chain of command or from a Military Police Unusual Incident Report, the DPM PS may classify the files as an internal matter rather than a Part IV complaint.

The Complaints Commission takes the view that if the subject of the alleged misconduct relates to a "policing duty or function" it ought to be categorized as a Part IV complaint. This does not appear to always be the case.

We are of the view that this meeting was an initial step in gathering information on how the office of the CFPM is classifying complaints but that by no means is this considered to be a resolved issue.

There could not be a better example of why the Complaints Commission should be involved in the classification of complaints than the present case. Initially, the DPM PS categorized this complaint as an "internal" file due to the manner in which the issues were brought to her attention (i.e., complaint from another Military Police member). Subsequently, upon questioning by the Chairperson of the Complaints Commission, the DPM PS acknowledged that an error had occurred in the classification and that it was now being treated as a Part IV complaint. Surprisingly, at the very late stage of the Notice of Action, the Provost Marshal now reverts to the position that the matter is an "internal" matter and not a Part IV complaint though notably for a very different reason: namely, that this type of arrest is "administrative" in nature and not one that falls under "policing duties and functions". The Provost Marshal has delegated certain powers under Part IV of the NDA to the Deputy Provost Marshal Professional Standards. We fail to see how the Part IV complaints process will work if the Provost Marshal chooses to reverse decisions made by her delegate at such a late stage in the process. This will only confuse the Part IV complaints process, and sadly result in procedural inequity to the parties involved.

The need for the Complaints Commission to be actively involved in the process of classification of complaints is entirely apparent and appropriate. Given the obvious institutional conflict of interest, it seems contrary to the spirit and purpose of Part IV of the NDA for the Military Police to exercise exclusive control for classifying complaints.

Accordingly, we confirm interim Recommendation 7 with the following modification.

Interim Recommendation #7 (revised) (Final 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. Furthermore, the Complaints Commission should be involved in the development and application of criteria in the classification of complaint and where the Provost Marshal or her delegate makes a decision that a complaints does not fall under Part IV of the National Defence Act, the complainant should be notified of the right to have such a decision reviewed by the Complaints Commission. All such correspondence should be copied to the Complaints Commission.

We do wish, however, to recognize the jurisdiction of others and accordingly modify interim Recommendation #8 as follows:

Interim Recommendation #8 (revised) (Final Recommendation #8):

The Commission Members do not agree with the decision to counsel Warrant Officer Hamm and recommend that the Canadian forces Provost Marshal revisit this decision.

she considers the recommendations of the Military Police Credentials Review Board. We strongly object to the Provost Marshal's comments regarding interim Recommendation #9 that the Complaints Commission is "attempting to interfere with or otherwise improperly influence the decisions of the MPCRB." Such a comment is both inappropriate and unwarranted.

We refer the reader to the rationale as stated under the section titled "Cpl Hamm's treatment by the DPM PS & Review of Police Credentials". While it is not our intention to infringe on the jurisdiction of others, the Complaints Commission has the power to make broad findings and recommendations in relation to complaints. Furthermore, given the order of precedence in the Military Police policy as referred to above, it would appear that there is an expectation that the findings of the Complaints Commission are taken into consideration by the Military Police Credentials Review Board.

However, in order to show the necessary deference to those empowered to make recommendations and decisions regarding police credentials, we modify interim Recommendation 9 as follows:

Interim Recommendation #9 (revised) (Final Recommendation #9):

Based on the findings in this public interest investigation, the Commission Members do not support the decision to suspend Corporal Hamm's credentials and recommend that the Canadian Forces Provost Marshal revisit this decision as soon as possible. The Commission Members ask that the Final Report be forwarded to the Military Police Credentials Review Board for their consideration.

members may have breached the Military Police Professional Code of Conduct. The Provost Marshal has stated that:

Currently, under Part IV of the NDA, there is no provision which allows the CFPM or the DPM PS to start a conduct complaint investigation unless a complaint has been made.

Accordingly, we leave interim Recommendation 10 (Final Recommendation #10) as written.

Finally, interim Recommendations 1, 4, & 5 (Final Recommendations #1, 4 & 5) also remain the same.

^[7] Duty with Honour, The Profession of Arms in Canada (Ottawa, Published under the auspices of the Chief of Defence Staff by the Canadian Defence Academy - Canadian Forces Leadership Institute, 2003) at page 40.
^[8] Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (Ottawa: Department of National Defence, 1997) at page 65.
^[9] Canada. Senate. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 38, Fourth meeting on Bill C-25, an Act to amend the National Defence Act, 1st session, 36th Parliament, October 28, 1998 at page 19-21.
^[10] R.S.C. 1985, c. R-10, as amended.
^[11] Canada. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-65, Issue no. 11, 1st session, 33d Parliament, December 10, 1985, at page 145.
^[12] For ease of reference, the following sections of the National Defence Act are reproduced:
Section 154 reads: "(1) Every person who has committed, is found committing or is believed on reasonable grounds to have committed a service offence, or who is charged with having committed a service offence, may be placed under arrest. (2) Every person authorized to effect arrest under this Division may use such force as is reasonably necessary for that purpose."
Section 155 reads: "(1) An officer may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of (a) any non-commissioned member; (b) any officer of equal or lower rank; and (c) any officer of higher rank who is engaged in a quarrel, fray or disorder. (2) A non-commissioned member may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of (a) any non-commissioned member of lower rank; and (b) any non-commissioned member of equal or higher rank who is engaged in a quarrel, fray or disorder. (3) Every person who is not an officer or non-commissioned member but who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence may, without a warrant, be arrested or ordered to be arrested by such person as any commanding officer may designate for that purpose."
Section 156 reads: "Officers and non-commissioned members who are appointed as military police under regulations for the purposes of this section may (a) detain or arrest without a warrant any person who is subject to the Code of Service Discipline, regardless of the person's rank or status, who has committed, is found committing, is believed on reasonable grounds to be about to commit or to have committed a service offence or who is charged with having committed a service offence; and (b) exercise such other powers for carrying out the Code of Service Discipline as are prescribed in regulations made by the Governor in Council.
^[13] P.C. 1999-2065, 18 November 1999, in force December 1, 1999.
^[14] (1998) 264 N.R. 179 (C.M.A.C.).
^[15] [2001] 1 F.C. 545 (C.A.)
^[16] R.S.C. 1985, c. C-46, as amended.
^[17] These same considerations are also set out in chapter 5 of the Military Police Policies and Technical Procedures, as we note in Findings 12 and 13 of our Interim Report. We accept the CFPM's point at page A-22 (note 8) of her Notice of Action that the version of these policies cited in these findings - while posted for all to see, and presumably with a view to providing some guidance to members - were technically in draft form. Therefore, we have modified Finding 12 accordingly. Interim Finding 13 has been withdrawn for other reasons.
^[18] Report of the First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of Statutes of Canada 1998, submitted to the Minister of National Defence, September 3, 2003, at pages 49-50. ^[19] Queen's Regulations and Orders for the Canadian Forces, volume II (Disciplinary).
^[20] Supra, note 8, at page 9.
^[21] The Provost Marshal in part quotes the Dickson report as follows: "… At each level of the military hierarchy, there is an expectation that the person at the next higher level has the authority to hold subordinates accountable, and to impose disciplinary and administrative measures as a means of enforcing that accountability. Military justice and the chain of command are, therefore, closely intertwined." [Emphasis added]. Interestingly, the last sentence quoted also seems somewhat at odds with the Provost Marshal's thesis that discipline by the chain of command is somehow divorced from the military justice system and the work of the military police in the application of that system.
^[22] Supra, note 13.
^[23] Supra, notes 14 and 15.
^[24] (2001) F.C.J. No. 1685, [2001] 2 F.C. 25 (F.C.A.).
^[25] Gordon Capital Corp. v. Ontario (Securities Commission) (Ont. Div. Ct.), (1992) 1 Admin. L.R. (2d) 199 at page 211; also R. v. Ittinuar (1993) N.W.T.J. No. 140 at para. 13 (N.W.T.C.A.).
^[26] Lindsay v. Manitoba (Motor Transport) (1989), 62 D.L.R. (4th) 615; also Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772.
^[27] R. v. Morales, [1992] 3 S.C.R. 711 at page 732; also Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557 at para. 105.
^[28] Ibid.
^[29] As a technical point, it should be clarified that this is the third public interest investigation the Complaints Commission has conducted since its inception in 1999 and not 2001 as stated by the Provost Marshal in her Notice of Action.
^[30] Please note that there is an error on page 47 of the Interim Report. The name MWO MacFarlane should be replaced by Major Pumphrey.
^[31] This consisted of a symposium in Wakefield, Quebec in May 2003 between representatives from the Canadian Forces and the Military Police Complaints Commission. MPCC participants were: Ms. Louise Cobetto, (Chairperson), Mr. Odilon Emond (Member), Mr. Robert MacDougall (then Executive Director), Mr. Tom Pedersen (Director of Operations), Ms. Johanne Gauthier (Director of Legal Services and General Counsel), and Ms. Julianne Dunbar (Legal Counsel). Canadian Forces representatives in attendance were: Col Cooper (Canadian Forces Provost Marshal), Col Drummond (Executive Assistant to the Vice Chief of Defence Staff), LCol Gleeson (Special Assistant to the JAG), LCol Carey (DPM PS), LCol Gibson (Director of Law/Military Justice Policy and Research) and Maj Drew (JAG lawyer assigned to the CFPM's office). By way of background, the following items were on the agenda: (1) Civilian Oversight Principles; (2) Challenges of the CFPM/DPM PS; (3) Policing Duties and Functions; (4) Categorization of Complaints and Documents from witnesses; (5) Public Interest Investigations; (6) Follow-up on Recommendations and (7) Areas for Improvement. It is important to note that this symposium was a forum to discuss common issues and work towards problem solving. At no time were any specific files discussed although the general issue of the lack of witness cooperation during the discussion on public interest investigations was raised.
^[32] We wish to remind the reader that Sgt. Dussault is seconded to the Professional Standards Unit from the RCMP.
^[33] Military Police Complaints Commission interview with Sgt. Dussault, File Nos. MPCC-2002-020, MPCC-2002-028 on March 18, 2003 at pages 7-8.
^[34] Schwartz v. R., [1996] 1 S.C.R. 254 at para.32.
^[35] Interim Finding 21 reads: "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.
^[36] R.S.C. 1985, c. P-21, as amended.
^[37] Military Police Complaints Commission interview of CWO Gauvin, File Nos. MPCC-2002-020, MPCC-2002-028, February 14, 2003 at p. 92.
^[38] Military Police Complaints Commission interview of Capt. Chiasson, File Nos. MPCC-2002-020, MPCC-2002-028, March 19, 2003 at p. 17.