Table of Contents

11. Summary of Commission Members' Final Findings

XI. SUMMARY OF THE COMMISSION MEMBERS' FINAL FINDINGS

COMMISSION MEMBERS' FINAL FINDING # 1:

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

COMMISSION MEMBERS' FINAL FINDING # 2:

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

COMMISSION MEMBERS' FINAL FINDING # 3:

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

COMMISSION MEMBERS' FINAL FINDING # 4:

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

COMMISSION MEMBERS' FINAL FINDING # 5:

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

COMMISSION MEMBERS' FINAL FINDING # 6:

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

COMMISSION MEMBERS' FINAL FINDING # 7:

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

COMMISSION MEMBERS' FINAL FINDING # 8:

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

COMMISSION MEMBERS' 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.

COMMISSION MEMBERS' 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 and functions.

COMMISSION MEMBERS' FINAL FINDING # 11:

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

COMMISSION MEMBERS' 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 the Queen's Regulations and Orders.

COMMISSION MEMBERS' 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 section 156 or as Canadian Forces members under section 155 of the National Defence Act.

COMMISSION MEMBERS' FINAL FINDING # 14:

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

COMMISSION MEMBERS' FINAL FINDING # 15:

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

COMMISSION MEMBERS' FINAL FINDING # 16:

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.

COMMISSION MEMBERS' FINAL FINDING # 17:

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

COMMISSION MEMBERS' FINAL FINDING # 18:

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

COMMISSION MEMBERS' 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.

COMMISSION MEMBERS' FINAL FINDING # 20:

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

COMMISSION MEMBERS' 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 Queen's Regulations and Orders section 105.12. Chief Warrant Officer Gauvin should have called on the arresting officer to release Corporal Hamm from arrest.

COMMISSION MEMBERS' FINAL FINDING # 22:

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

COMMISSION MEMBERS' FINAL FINDING # 23:

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

COMMISSION MEMBERS' FINAL FINDING # 24:

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

COMMISSION MEMBERS' FINAL FINDING # 25:

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

COMMISSION MEMBERS' FINAL FINDING # 26:

The Commission Members find, on a balance of probabilities, that the internal designation was an error as there is no clear evidence to the contrary.

COMMISSION MEMBERS' FINAL FINDING # 27:

The Commission Members find that errors in classifying complaints as "internal" rather than Part IV conduct complaints have the potential effect of nullifying important statutory rights of complainants and subjects of complaints.

COMMISSION MEMBERS' FINAL FINDING # 28:

The Commission Members find that the Professional Standards investigation focused on Corporal Hamm's behaviour when the seconded investigator determined early in the investigation that Corporal Hamm might have committed service offences or might have violated the Military Police Professional Code of Conduct and when the investigator determined that Warrant Officer Hamm failed to confirm the accuracy of the complaint.

COMMISSION MEMBERS' 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.

COMMISSION MEMBERS' FINAL FINDING # 30:

The Commission Members find that the failure to designate Corporal Hamm and Warrant Officer Hamm as subject members of the investigation deprived them of their basic rights to natural justice, their rights to appreciate and defend themselves against the allegations or potential jeopardy they were facing, their rights of choice to refuse to be interviewed, and their rights to have counsel or an assisting officer present.

COMMISSION MEMBERS' 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.

COMMISSION MEMBERS' FINAL FINDING # 32:

The Commission Members find that there was insufficient evidence to establish, on a balance of probabilities, that Corporal Hamm misinformed or provided misleading information to Warrant Officer Hamm about any matter relevant or material to Warrant Officer Hamm's complaint. Accordingly, the Commission Members find that Corporal Hamm did not mislead Warrant Officer Hamm in the five (5) manners detailed by the Deputy Provost Marshal Professional Standards.

COMMISSION MEMBERS' FINAL FINDING # 33:

The Commission Members find that Warrant Officer Hamm did not err nor was he negligent in basing his complaint on information received from Corporal Hamm nor did Warrant Officer Hamm prematurely file his complaint based on the information received.

COMMISSION MEMBERS' FINAL FINDING # 34:

The Commission Members find that Warrant Officer Hamm had an obligation, pursuant to section 7 of the Military Police Professional Code of Conduct, to report to his superior in the Military Police Chain of Command a belief in or awareness of an allegation that a member of the Military Police had breached the Military Police Professional Code of Conduct. The information Warrant Officer Hamm received on December 12, 2000 provided him with the requisite belief or awareness. There is no requirement to verify or investigate the belief or allegation before it is reported.

COMMISSION MEMBERS' FINAL FINDING # 35:

The Commission Members find that Warrant Officer Hamm properly reported his reasonable belief to, and sought advice from, his superior in the Military Police Chain of Command at 8 Wing Canadian Forces Base, Trenton, Master Warrant Officer Dennique.

COMMISSION MEMBERS' FINAL FINDING # 36:

The Commission Members find that it was reasonable and proper, in the circumstances, for Warrant Officer Hamm to follow Master Warrant Officer Dennique's advice.

COMMISSION MEMBERS' FINAL FINDING # 37:

The Commission Members find that it was reasonable and proper for Warrant Officer Hamm to advise Chief Warrant Officer Galway of his concerns and to forward the information to Chief Warrant Officer Galway.

COMMISSION MEMBERS' FINAL FINDING # 38:

The Commission Members find that, in the circumstances, Warrant Officer Hamm should not have been counseled and the direction to counsel Warrant Officer Hamm issued by the Deputy Provost Marshal Professional Standards was inappropriate.

COMMISSION MEMBERS' 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.

COMMISSION MEMBERS' 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.

COMMISSION MEMBERS' 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.

COMMISSION MEMBERS' 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.

COMMISSION MEMBERS' 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.

COMMISSION MEMBERS' 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.

COMMISSION MEMBERS' 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.