MPCC-2010-031

This complaint involved allegations from a former military police (MP) member that certain of his former MP superiors had maintained a “shadow file” containing copies of selected records from the complainant’s Canadian Forces (CF) personnel file which cast the complainant in an unfavourable light, and that information from this “shadow file” was improperly provided to a prospective employer, which resulted in the complainant not getting a job. The complainant alleged that the MP members in question acted maliciously on the basis of an internal CF harassment complaint which the complainant had made against them.

The complainant’s allegations had already led to an investigation by the Office of the Privacy Commissioner, a CF unit summary investigation and an investigative assessment by the Canadian Forces National Investigation Service (CFNIS). The overall result of these investigations was that breaches of privacy rules were identified; however, since the complainant had signed a consent form with the prospective employer authorizing the collection of personal information, and since the CFNIS assessment did not reveal malicious intentions on the part of the subjects, a criminal/service offence investigation was not pursued. 

In disposing of the complainant’s MP conduct complaint, the Deputy Provost Marshal Professional Standards (DPM PS) indicated that, since the alleged misconduct related to purely administrative matters, rather than the performance of “policing duties or functions” (per subsection 250.18(1) of the National Defence Act (NDA)), the complaint was outside the DPM PS’s mandate to investigate.

As a result of its review of the complaint, the Commission concluded that the DPM PS was correct in its assessment that the complaint did not relate to the performance of “policing duties or functions” under NDA subsection 250.18(1) and related regulations. As such, the complaint did not constitute a valid MP conduct complaint for the purposes of NDA Part IV.

Despite its finding that the complaint did not fall within NDA scheme for MP conduct complaints, in an observation the Commission expressed concern with the DPM PS’s apparent suggestion that he lacked the mandate to otherwise investigate the complaint. The Commission noted its understanding that the Military Police Professional Code of Conduct (MP Code of Conduct) – which the DPM PS, on behalf of the CF Provost Marshal (CFPM), is mandated to enforce – applied beyond the ambit of “policing duties or functions”. Alternatively, the CFPM could forward the complaint to the subject MPs chain of command.

In his response to the Commission’s interim report, the CFPM accepted the essential point of the Commission`s observation that the complainant should have been informed regarding the possibility of an internal professional standards investigation. (i.e., one conducted outside of the framework of the NDA Part IV). The DPM PS subsequently advised the complainant and the Commission that it had been decided not to conduct such an investigation in this case.

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