TABLE OF CONTENTS

• Introduction
• Chairperson's Findings and Recommendations
• Conduct Complaints
  • Selected Case Summaries
• Interference Complaints
  • Case Summary - Interference Complaints
• Public Interest Investigations
  • Case Summary - Public Interest Investigations
  • Reason for Public Interest Investigation
  • Request for Review of Interim Report by the Chief of the Defence Staff
  • Chairperson's Findings and Recommendations
    1. Canadian Forces National Investigation Services investigation (CFNIS)
    2. “zero tolerance”
    3. Investigation of offences by Military Police personnel
    4. Solicitor-client privilege
• Chairperson’s Conclusion

PART II
OPERATIONS

INTRODUCTION

The Act contains a number of provisions allowing the Complaints Commission to closely monitor every step in the handling of conduct complaints by the Provost Marshal and to intervene as required.

One such provision is section 250.25 which states: “The Provost Marshal shall establish and maintain a record of all complaints received under this Division and, on request, make available any information contained in that record to the Complaints Commission.” Section 250.25 is of general scope and concerns the content of the record regardless of the outcome of the complaint.

The Military Police Complaints Commission responded to numerous enquiries during 2002. Excluding general requests for information, and matters determined to be outside the Commission’s mandate, these enquiries can be placed into one of five categories: conduct complaints; requests for review; interference complaints; investigations in the public interest and withdrawal of complaints.

According to section 250.2 of the National Defence Act, complaints cannot be made more than one year after the event giving rise to the complaint; however, this same section of the Act allows the Chairperson to extend this time limit at the request of the complainant, and if it is reasonable in the circumstances. The Chairperson exercised this discretion on two occasions during 2002.

A full summary of the number and type of complaints received and their disposition is provided in Annex E to the Annual Report.

CHAIRPERSON’S FINDINGS AND RECOMMENDATIONS

In summarizing the findings of the reviews and investigations conducted during 2002, there are a number of issues regarding the processing of complaints to which special attention should be drawn.

The importance of the initial contact with the complainant cannot be overstated. It is essential that appropriate assistance be provided to the complainant to help them state their complaint clearly and accurately. If not prepared by the complainant, a written copy of the formal complaint should be given to the complainant, and it should be discussed with him or her to ensure its accuracy. Complainants should also be advised of the next steps in the process, and given an overview of what they can expect as the complaint process moves forward.

The Commission also notes cases where Professional Standards has relied on results of an investigation conducted by the Canadian Forces National Investigation Service (CFNIS) to determine whether a complaint about the conduct of a Military Police member was well-founded. The CFNIS is responsible for investigating any criminal or service offence. Professional Standards investigations into Military Police conduct is usually held in abeyance until any criminal investigation that may be related to the incident has been completed. This procedure does not, however, intend that a criminal investigation should be used as a replacement for a Professional Standards investigation. A finding of “no criminal wrongdoing” is not necessarily the same as a finding of “no police misconduct.”

The CFNIS and Professional Standards have different mandates, and their services should be deployed accordingly.

Interference with Military Police investigations is an ongoing concern; indeed, the need to protect the independence of their investigations was a primary factor in the creation of the Military Police Complaints Commission, and its unique mandate to receive and investigate complaints of interference from Military Police members.

In 2002, it was suggested that there could be circumstances where a case can be made for “appropriate interference” with a Military Police investigation. This is a most dangerous idea, and simply entertaining the notion that an intervention by the Chain of Command is appropriate in any circumstances calls the independence of the Canadian Forces Military Police into question.

While section 250.19 (1) of the National Defence Act states that a member of the Military Police may complain if a member of the Canadian Forces or a senior official of the Defence Department has “improperly interfered” with an investigation, as Chairperson, I disagree most strongly with any suggestion that this wording is intended to infer the existence of “proper” interference.

CONDUCT COMPLAINTS – REQUESTS FOR REVIEW

Selected Case Summaries

1. alleged refusal to investigate; obstruction of justice; neglect of duty; unprofessional behaviour

The Commission was asked to review the disposition by Professional Standards of numerous allegations contained in a total of seven conduct complaints lodged by a former member of the Canadian Forces. The complainant had gone to the Military Police with a series of allegations of wrongdoing by Military Police members. Subsequently, he filed a number of conduct complaints, alleging Military Police members had either refused to investigate his allegations, or failed to investigate them properly.

Upon initial review, the Commission determined that two of the complaints fell outside the Commission’s mandate, in that they related to incidents that occurred prior to December 1, 1999, before the Commission’s mandate came into force.

The Commission reviewed the remaining five complaints, and in her interim report, the Chairperson issued a total of 29 findings and made 6 recommendations, all of which were accepted by the Canadian Forces Provost Marshal.

Of note in this case is the concept of “duty to assist.” The Professional Standards disposed of one complaint on the grounds the Military Police member whose conduct was in question was not performing a policing duty or function, and therefore the complaint against him was not eligible for review. While coming to such a conclusion is permitted by the legislation, the Professional Standards’ letter to the complainant referenced the National Defence Act and the Military Police Policies and Technical Procedures Directives to support the finding.

Citing the entire contents of legislation to support a specific finding is not particularly helpful to complainants trying to understand why their complaints are not being reviewed, and thus is not in keeping with the “duty to assist” that exists for the members of any police service. The Chairperson recommended that Professional Standards’ letters to complainants and subjects of complaint quote precise sections of legislation or policy when making specific determinations.

The Canadian Forces Provost Marshal agreed with the Chairperson’s recommendations.

2. alleged unlawful detention;
unprofessional conduct

In this case, the complainant made three allegations against a member of the Military Police. Quoting from the Military Police Complaint Form submitted by the complainant, the allegations were:

• “Unlawful arrest/detention – was not told details of the offence until asked.”
• “I was told that I was charged with an offence, when I was not charged.”
• “I was issued five tickets because

• Question 1: Was (the complainant) unlawfully arrested?
• Question 2: Was (the complainant) lied to?
• Question 3: Was the issuance of five TVTs (Traffic Violation Tickets) excessive?

Of these questions, only the first partially addresses any of the complainant’s stated concerns. Given this paraphrasing, it is somewhat understandable that the eventual results of the Professional Standards investigation would not be fully satisfactory to the complainant.

Despite these instructions, and much to his credit, the Professional Standards investigator went beyond the specific instructions he had been given, and was able to answer some of the issues raised by the complainant.

Notwithstanding the investigator’s efforts, the final letter from Professional Standards to the complainant explaining the findings of the investigation and the action taken, returned to the incomplete allegations as stated in the tasking instructions.

The Professional Standards’ letter stated that the investigation found the complainant had not been arrested, and thus the complaint of ‘unlawful arrest’ as investigated by Professional Standards was not supported.

The Professional Standards investigation did find the complainant had been detained, but does not state whether the detention was unlawful, and thus failed to address the actual complaint of “unlawful arrest/detention.” The investigation also found the complainant had not been “lied to,” but that issuing five traffic tickets to the complainant was excessive. The letter further advises that as a result of the latter finding, the Military Police member did not act professionally, and that the member’s actions will be brought to the attention of the Chain of Command “for remedial action as deemed necessary.”

The Commission’s review of this complaint again draws attention to the fundamental importance of Military Police discharging their duty to assist. Had the complainant been contacted at the outset to ensure that Professional Standards understood the precise nature of the complaint, it is entirely possible this matter might never have been referred to the Commission for review.

Also worthy of note relative to this case is the statement in the final Professional Standards’ letter stating that the Military Police member would be subject to “remedial action as deemed necessary.” This rather vague statement is unlikely to satisfy the need of a complainant to see that justice has been served.

In her review of this complaint, the Chairperson found this statement meets neither the spirit nor the intent of section 250.29(c) of the National Defence Act, which stipulates the complainant is to be provided with “a summary of any action that has been or will be taken with respect to the disposition of the complaint.” Returning to the original complaint, as stated on the Military Police Complaint Form, the Chairperson found the complainant had been detained unlawfully, and that despite believing he had been charged in relation to a hit-andrun, he had not in fact been charged. That said, the Chairperson did not find the Military Police member used the threat of laying charges in an attempt to extract a confession from the complainant.

The Chairperson also found substance to the complainant’s belief that he was issued five traffic tickets because he refused to confess to the hit-and-run.

The Canadian Forces Provost Marshal accepted all of the findings and recommendations issued by the Chairperson with regard to the review of this complaint.

3. alleged reckless driving

The complainant requested a review by the Commission of his complaint that members of the Military Police, while conducting a surveillance operation, engaged in reckless driving by going through a red light, passing other vehicles on a solid yellow line, and exceeding the posted speed limit.

In the final letter summarizing the Professional Standards investigation of this complaint, Professional Standards advised that, while the complainant’s allegations were supported, the actions of the military police involved were “justified given the circumstances.” The letter concluded that the Military Police members “…acted professionally and in accordance with established Military Police Policies…”

The Commission’s review of this complaint found that the Military Police members involved did not contravene the Military Police surveillance policy. Nonetheless, the Chairperson also found that this policy is inadequate in that it does not address several key issues, including public safety and the rule of law, and recommended that it be amended to do so.

The Chairperson also found the Military Police members involved contravened many sections of Standard Operating Procedure 117 – Vehicle Use, and did not act in accordance with Military Police policies, the law, or the requirements outlined in the Canadian Forces National Investigation Service Surveillance Training Handbook.

The Chairperson is pleased to note that the Canadian Forces Provost Marshal accepted all of the recommendations of this review, and that the Military Police Policies and Technical Procedures Directives with respect to surveillance have been modified and improved. In the words of the Provost Marshal, “This report has served to improve the professionalism of the Military Police in their conduct of surveillance operations.”

4. jurisdiction of military police

A civilian requested a review of the disposition of his complaint against the conduct of Military Police members he believed had exceeded their jurisdiction by contacting him with regard to a dispute with his daughter-in-law over a civil matter.

The daughter-in-law, a former clerk in the Canadian Forces Reserves, had contacted the Military Police, alleging that her father-in-law was refusing to return her children’s legal documents, and thus was in violation of a civil separation agreement between her and her spouse, a member of the Canadian Forces.

The Military Police member contacted the father-in-law to ask him to return the documents. When the man refused to return the documents, Military Police members contacted a member of the Ontario Provincial Police (OPP) with a request that the OPP contact the father-in-law and ask him to return the documents. An OPP offcer subsequently contacted the man, and he agreed to surrender the documents in question.

The father-in-law complained that since both he and his daughter-in-law were civilians, the Military Police had no authority to contact him, or involve themselves in any way. In a report on the complaint, Professional Standards concluded that the Military Police members had acted professionally and in accordance with established Military Police procedures.

In reviewing this complaint, the Chairperson found that police would not normally become involved in the enforcement of a separation agreement, unless it was specifically documented in a Court Order that they must do so, or there were some other compelling reason, such as a threat of violence. Neither was present in this case, and the Chairperson found that Military Police had no authority to contact the complainant, or request that he return the documents in question.

The Canadian Forces Provost Marshal accepted all the findings and recommendations of this review. The Provost Marshal gave priority attention to amending Military Police policies and training with regard to Military Police handling of civil matters, and since October of 2002, policies similar to those in place at other Canadian police services have been part of the Military Police Policies and Technical Procedures Directives Manual.

INTERFERENCE COMPLAINTS

The Parliament of Canada recognized this with amendments to the National Defence Act in 1998. Section 250.19 (1) of the Act states, “Any member of the Military Police who conducts or supervises a Military Police investigation, or who has done so, and who believes on reasonable grounds that any officer or non-commissioned member or any senior official of the Department has improperly interfered with the investigation may make a complaint about that person under this Division.”

The Act gives the Military Police Complaints Commission exclusive jurisdiction over the investigation of interference complaints. The Commission issued one final report on an interference complaint in 2002.

Case Summary – Interference Complaint

Specifically, the complainant alleged that the Canadian Forces officer directed the two Military Police members into his office to explain their actions while they were processing a traffic infraction against a member of the Canadian Forces.

The complainant further alleged that when the Military Police members advised the officer that his actions could be construed as interference, the officer told the Military Police members they were being insubordinate.

As a result of her investigation, the Chairperson found the officer in question interfered with a Military Police investigation, and recommended the officer attend a Military Police familiarization program in order to understand the need for Military Police to operate independently of the Chain of Command.

Of special interest in this case is the response of the Chief of the Defence Staff to one of the Chairperson’s findings, specifically, the finding that no member, officer or official within the Canadian Forces and the Department of National Defence has discretionary authority to interfere with Military Police members when they are conducting police duties.

In his Notice of Action, the Chief of the Defence Staff noted that, “There may be circumstances in which intervention is necessary to ensure commanders are in a position to carry out their command responsibilities.” The Chief of the Defence Staff also pointed out that there may be cases where a superior has an interest, even a duty to intervene if there is an obvious abuse or improper situation occurring. In support of this point, the Chief of the Defence Staff noted that section 250.19 of

the National Defence Act refers to “improper” interference, the implication being that the framers of the Act intended that there could be such a thing as “proper” interference. The only situation the Chairperson can foresee of “proper” interference or intervention, at this point, is the Military Police superior who is properly exercising his supervisory capacity over a Military Police subordinate, for example, in a situation where the Military Police member is abusing his power or has neglected to interview a witness. A clear distinction must be made between a Military Police member properly exercising his supervisory capacity and a non-Military Police superior who attempts to interfere with or intervene in an investigation.

Throughout his Notice of Action, the Chief of the Defence Staff appears to be making a distinction between an “intervention” by Commanders in a Military Police investigation and “interference” with these police investigations. The Chairperson recommends caution in making such a distinction. Any incursion on a police investigation must be very carefully considered. Appropriate instructions given by authorized managers do not constitute an infringement in the conduct of the investigation, but there is a very fine line to be drawn: it is important that these instructions be defined in very precise terms. “Intervention” by the Chain of Command could be perceived as, and may well constitute, “interference” with a police investigation.

The Chairperson stood by her findings, and reaffirmed that the Military Police Complaints Commission will continue to pursue complaints of this nature vigorously.

PUBLIC INTEREST INVESTIGATIONS

In the case of a conduct complaint, the Chairperson’s decision to initiate a public interest investigation relieves the Canadian Forces Provost Marshal of responsibility for the investigation.

The Chairperson’s power to undertake investigations of this type is essential to the integrity of the entire complaints process, ensuring that fairness and transparency are maintained, and are seen to be maintained.

To further enhance fairness and transparency, the Commission published the Guide Governing Public Interest Investigations conducted by the Military Police Complaints Commission (see Annex H) in December of 2002. The Guide was created to ensure that this type of investigation runs smoothly in order to meet the Commission’s obligation to deal with complaints as informally and expeditiously as the circumstances and fairness permit, in accordance with section 250.14 of the Act.

For the most part, this Guide applies to the Complaints Commission interviewing witnesses as part of a public interest investigation. There may be, when deemed appropriate by the Complaints Commission, a preliminary gathering of facts by an investigator.

The Guide is not enforceable, thus no infraction can or will be sanctioned by the Complaints Commission. It is not intended to be a regulatory instrument, but rather a tool to assist anyone involved in such an investigation to better understand their role and, in doing so, contribute both to the mandate entrusted to the Commission, and to maintaining the transparency of the complaints process. The Commission plans to use the Guide whenever possible.

During 2002, the Chairperson issued a final report on a public interest investigation, which began in 2001. In another case, the Chairperson caused the Commission to conduct a public interest investigation under section 250.38 of the Act. The latter investigation, now in progress, is based on two complaints concerning a single incident that will be investigated jointly.

Case Summary – Public Interest Investigation

alleged improper, incomplete, inaccurate and biased investigation

Background

Two senior officers, both members of the Military Police, filed complaints alleging improper conduct and supervision of a total of three investigations by the CFNIS.

As a result of these investigations, one officer was charged with four offences under the National Defence Act. Although only one of the two was charged, based on the findings of the CFNIS investigations, the Deputy Provost Marshal Professional Standards suspended the Military Police credentials of both officers.

The officer facing charges under the Act was found guilty on all four counts by the Court Martial. These convictions were subsequently overturned and verdicts of not guilty were entered on all four of the charges by the Court Martial Appeal Court.

The Military Police credentials of the second officer, who was never charged with an offence, were reinstated, although the Provost Marshal set a number of terms and conditions for the re-instatement.

A Military Police Credentials Review Board also re-instated the credentials of the officer who was charged under the Act. The Provost Marshal directed the re-instatement of this officer’s credentials, albeit with conditions, after the officer was convicted by the Court Martial, but before the convictions were overturned by the Court Martial Appeal Court.

Reason for Public Interest Investigation

In filing their complaints about the conduct of the investigations, both officers asserted that they had not been treated fairly or impartially, and perceived a bias on the part of the Provost Marshal. Both complainants noted that since officials in the office of the Provost Marshal had taken decisions based on the results of the CFNIS investigations, i.e., the revocation of their Military Police credentials, a conflict of interest situation existed, and requested that the Commission investigate their complaints.

The Chairperson also noted that one of the officers being investigated, the officer overseeing the CFNIS investigation, and the officer with the authority to suspend Military Police credentials, were all of the same rank. Further complicating the matter, at the time of the investigation, all three were competing for an appointment to the same higher position within the Military Police hierarchy.

The Chairperson agreed that a reasonable apprehension of bias existed, and determined it would be in the public interest to cause the Commisson to conduct the investigation into the complaints.

Request for Review of Interim Report by the Chief of the Defence Staff

Under section 250.49(1) of the National Defence Act, the Provost Marshal has the responsibility to review the Chairperson’s interim report of a conduct complaint, unless the Provost Marshal is the subject of the complaint. While the Provost Marshal was not the subject of the complaint in this case, for the reasons noted above, the Chairperson believed it would be contrary to both the spirit of the Act as well as the rules of natural justice and fairness for the Provost Marshal to review the interim report in this case. Thus, the Chairperson asked that the Chief of the Defence Staff review the interim report and prepare the Notice of Action for this public interest investigation.

The Chairperson regrets that her request was not accepted by the Chief of the Defence Staff, and that the Notice of Action responding to the findings and recommendations contained in the interim report was prepared by the Provost Marshal, a reviewing authority against which a bias was alleged and acknowledged by the Commission. The Chairperson considered the Notice of Action a crucial step in the complaint process.

Chairperson’s findings and Recommendations

As a result of this public interest investigation, the Chairperson made a total of 24 findings and issued 10 recommendations. Some of these findings and recommendations dealt with circumstances specific to the case at hand, while others concerned some much broader issues. The sections following do not detail all of the Chairperson’s findings and recommendations, but are intended to acquaint the reader with some of the key issues involved in this case.

A. Canadian Forces National Investigation Services investigation (CFNIS)

The Commission’s investigation found erroneous and incomplete information in an investigative report prepared by the CFNIS, and in a related court brief prepared for the Regional Military Prosecutor. Indeed, the Chairperson found that this erroneous and incomplete information may have been responsible for the decision to charge and prosecute the officer.

The Chairperson regrets that the Provost Marshal did not accept this finding, but is pleased to note that in the Notice of Action, the Provost Marshal recognizes the seriousness of this issue, and states that measures will be taken “to reinforce the importance of ensuring the complete accuracy of statements attributed to personnel interviewed in the course of an investigation.”

B. “zero tolerance”

Also of concern to the Chairperson in this case was the application of a “zero tolerance policy” regarding the laying of charges. Zero tolerance means, simply, that if there is evidence to form a reasonable belief that an offence has been committed, a charge must be laid. In essence, such a policy abandons the discretion, inherent to police work, about whether to lay charges.

For the Canadian Forces Military Police, this approach had its origins in the events leading up to the major changes in the military justice system included in amendments to the National Defence Act in 1998. In an effort to ensure the system would be seen as above reproach, and that there could be no perception that the Chain of Command was enjoying any favouritism, the Provost Marshal of the time instructed that “zero tolerance, mandatory charge with evidence” was the policy.

The objective – to develop a policy on investigations that will not overlook wrongdoing or be improperly influenced by the Chain of Command – is good, but the strict application of the policy may cause harm. A “zero tolerance” approach may end up sacrificing the innocent in order not to miss the guilty.

While there may be a place in military policing for some restrictions on police discretion, removing it completely can lead to harsh consequences out of proportion to the alleged misconduct. A policy of zero tolerance also short circuits the checks and balances that exist within the system.

For example, the Queen’s Regulations and Orders article 107.12 gives a Commanding Officer the authority to decide not to proceed with a charge laid by a member of the Military Police assigned to the CFNIS. In this case, the Commanding Officer did so, providing several reasons, among them, that the matter should have been resolved administratively and internally.

If the CFNIS member believes that the charge should proceed nonetheless, this same section of the Queen’s Regulations and Orders allows the CFNIS member to refer the matter to a referral authority, essentially, an authority farther up the Chain of Command. This procedure is detailed in article 109.03 of the Queen’s Regulations and Orders.

In this case, the referral authority also recommended against proceeding with the charges, outlining the reasons for this recommendation in a letter, as required, to the Director of Military Prosecutions. The Director of Military Prosecutions did not accept this recommendation, and proceeded to prefer the charges against the officer in question.

The Chairperson recommended that the Canadian Forces Provost Marshal reconsider the “zero tolerance” approach, with the proviso that any change in policy on the use of discretion be accompanied by relevant training on the appropriate exercise of discretion.

While disputing whether “zero tolerance” was ever in fact a stated “policy,” in the Notice of Action, the Canadian Forces Provost Marshal advises that CFNIS investigators are being encouraged to exercise greater discretion in accordance with existing policies and procedures. The Chairperson is also pleased to note, in response to this recommendation, the development of a CFNIS interim policy on discretion, and other new work instruments available to provide guidance to investigators in this area.

C. Investigation of offences by Military Police personnel

The National Defence Headquarters Police Directive: Revised Military Police Investigation Policy, distributed in May of 1999, sets out guidelines to be followed for the investigation of offences alleged to have been committed by members of the Military Police.

The investigative continuum set out in Annex F to this policy indicates that if the subject of the investigation is a Military Police/CFNIS member and a sensitive offence is involved, the investigation should be conducted jointly by the CFNIS and a civilian police agency, or exclusively by a civilian police agency. A sensitive offence is defined, among other things, as an offence involving a senior officer. Whether outside investigators are actually engaged however, remains at the discretion of the Provost Marshal.

In this case, a Royal Canadian Mounted Police (RCMP) Inspector was assigned to take part in the investigation with the CFNIS, an arrangement that might ordinarily meet the requirements of the policy. In this situation, the Chairperson found that not to be true.

In the first instance, the RCMP Inspector in question was not the lead investigator. Further, he had been seconded to the CFNIS some months earlier and, according to the terms of his secondment, was under the direction, control, supervision and instruction of Military Police management.

In the Notice of Action, the Provost Marshal agreed that the RCMP Inspector could not be considered “outside” the CFNIS.

D. Solicitor-client privilege

Military Police are required by the Queen’s Regulations and Orders for the Canadian Forces to consult with legal counsel from the Office of the Director of Military Prosecutions about the laying of charges. In order to conduct a thorough investigation, the Chairperson of the Military Police Complaints Commission may need to review the legal opinions requested by the Military Police in the process leading up to the laying of charges, as well as the police brief upon which the legal opinions are based.

It is important to note that the Commission is not reviewing the legal opinions themselves; rather, it needs to know what information the Regional Military Prosecutor provides to the Military Police, the basis for that advice, and what the Military Police do with the information. The ability of the Commission to monitor the actions of the Military Police is seriously limited if the information that influences those actions is withheld on the grounds of solicitor-client privilege.

When a civilian police agency consults Crown prosecutors, the privilege in any resulting legal opinion belongs to the police. In other words, as the client, the decision to waive solicitorclient privilege rests with the police. In the Canadian Forces, current administrative procedures do not allow the Provost Marshal the same option. The Provost Marshal advised in her Notice of Action that the decision to waive solicitor-client privilege is made by the Minister of National Defence.

The Chairperson is very concerned with this situation, one that goes to the heart of the independence of the Military Police. It is a well-established principle that police, in the performance of their policing function, are and must remain independent from the Executive Branch of Government.

In expressing this concern, the Chairperson is not expressing the view that the Minister of National Defence is directing investigations by the Military Police. The Chairperson is pointing out that the public perception of the independence of a police service is crucial to fostering confidence and trust in the justice system.

Chairperson’s Conclusion

While it is evident much needs to be done in fostering an appreciation for situations that present a real or perceived conflict of interest, or a reasonable apprehension of bias, the Chairperson is pleased with the positive results of the Commission’s investigation of these complaints. CNFIS personnel will be provided with enhanced training in the areas of report writing and professional development. They will have continued encouragement, direction and, it is hoped, training in the appropriate use of police discretion.

Note: The complete final report of this public interest investigation is available on the Commission’s Web site, at www.mpcc-cppm.gc.ca.