Facts and Complaint
The complainant in this file forwarded a letter to the Deputy Provost Marshal National Investigation Service outlining allegations of misconduct against senior military officers regarding incidents of perceived harassment and unfair treatment toward the complainant and he requested that his allegations be investigated as possible service offences. The matter was forwarded to the Sensitive Investigation Detachment of the Canadian Forces National Investigation Service (CFNIS) and the assessment that followed found that the majority of the allegations were not properly within the CFNIS mandate (other administrative processes were better suited to the issues raised). However, one of the allegations was retained for investigation under the Code of Service Discipline. This allegation concerned an alleged attempt by a General Officer to deliberately mislead two of his superiors in an e-mail message.
Allegedly, subsequent to a project team meeting which he did not attend, the General Officer sent an e-mail to his superiors intimating that the complainant was the only member of the project team who had expressed objections to a draft policy being prepared for submission to a group which directly advises the Chief of the Defence Staff. In the e-mail the General Officer states that the complainant provided no rationale for his objections and concluded by asking for the assistance of the e-mail addressees. An assistant to one of the addressees then forwarded the e-mail to others, including the complainant. The CFNIS investigator interviewed various people and concluded that while the e-mail was misleading there had been no significant impact or lasting adverse effect and, therefore, determined that he had no basis for charging the General Officer with a service offence. He informed the complainant of this.
The complainant then filed a conduct complaint with the Complaints Commission regarding the CFNIS’s handling of his initial allegations (i.e. the decision not to investigate the majority of his allegations), and the decision to discontinue the investigation of the alleged misconduct with respect to the misleading e-mail sent by the General Officer to his superiors.
Decision of the Chief of the Defence Staff
As the complainant named the Canadian Forces Provost Marshal as the subject of his complaint, the Chief of the Defence Staff (CDS) assumed responsibility for the handling of the complaint in accordance with the National Defence Act.
The Director of Special Examinations and Investigations (DSEI) was tasked with investigating all of the complainant’s grievances complaints and allegations. After the investigation, the CDS concluded that the majority of the original allegations were administrative in nature and outside the mandate of the CFNIS, that CFNIS should not investigate alleged ethical violations unless a criminal or service offence is involved, and that there were no grounds for laying a charge with respect to the sending of the misleading e-mail. The CDS also indicated that he did not agree that the proper subject of the complaint was the Canadian Forces Provost Marshal.
The complainant was not satisfied with the results of the CDS investigation and requested that the Complaints Commission review his initial complaint against the CFPM and raised certain new issues for consideration. In particular, he noted that he had not received a copy of the DSEI Report on his complaints and further that the DSEI office was not the appropriate office for investigating his complaint. Finally, he was not happy with the amount of time taken by the CDS to respond to the complaint.
The Complaints Commission Review
Identification of the Proper Subjects to the Complaint
The Chair examined the process of identifying a subject of a complaint under Part IV of the National Defence Act, as the proper identification of a subject is essential to respecting the procedural rights of such persons. The complainant’s responsibility is to identify the conduct that is the subject of the complaint. Complainants may, or may not, accurately identify all the MP members whose actions are implicated in the MP conduct with which they take issue in their complaint. In this instance, although the complainant wished to complain only about the conduct of the Canadian Forces Provost Marshal, there rests a responsibility with the authorities responsible for disposing of complaints under NDA Part IV – CFPM and DPM PS (and, exceptionally, the CDS, where the CFPM is himself a subject of the complaint), as well as MPCC – to ensure that others whose conduct is effectively impugned in the complaint are identified and designated as subjects, whether or not such persons are named or accepted as such by the complainant. This is not only a matter of fairness to those whose conduct is the de facto subject of scrutiny in the complaints process, but also contributes to an effective and balanced review by ensuring that those in the best position to speak to impugned MP activity are so recognized and have an interest in providing their perspective on the matter.
Based on this approach, in this case, the Commission added subject members to the during the course of its review. However, it is preferable that any additional subjects to a complaint be identified prior to the Commission review stage of the complaints process.
The Commission determined that the then-CFPM, in her capacity as Commanding Officer of the CFNIS, was properly named as a subject in this case because of her role in reviewing and approving the final CFNIS investigation report. However, the Commission concluded that the following MP members were also proper subjects of the complaint: the actual CFNIS investigator, the Operations Officer for the CFNIS Sensitive Investigations Detachment who supervised the investigation, and the Deputy Provost Marshal NIS.
Conduct of the CFNIS Investigation
On the actual merits of the conduct complaint, the Commission concluded that the CFNIS was justified in not investigating most of the allegations put forward by the complainant, correctly identifying them as administrative, rather than disciplinary or criminal issues. Nor did the Commission find any basis for the complainant’s allegations that the CFNIS investigation was improperly influenced or biased in favour of the subject of the CFNIS investigation.
The Commission, however, disagreed with the CFNIS investigator’s stated rationale for discontinuing a service offence investigation into the remaining allegation of sending a misleading email to superior officers. The Commission found that, as a matter of law, the apparent lack of any actual misleading effect on the message’s recipients is not a necessary ingredient for service liability (e.g., an act to the prejudice of good order and discipline) in respect of the communication of misleading information to a military superior. The Commission noted that the CFNIS investigator did not obtain legal advice on the elements of the offence to which the allegation related before deciding to discontinue the investigation. As a result, the Commission recommended that consideration be given to modifying the CFNIS SOPs for Sensitive Investigations to ensure that any decision to discontinue an investigation on legal grounds is informed by legal advice, rather than only where a charge is contemplated.
However, notwithstanding the apparent legal error in the CFNIS decision to discontinue its investigation of the complainant’s allegations, the CFNIS’s actions were nonetheless justifiable as a reasonable exercise of military police investigative discretion.
Following the Notice of Action, the Chair was pleased to note that the Chief of the Defence Staff has accepted the findings and forwarded the recommendation to the Canadian Forces Provost Marshal for consideration.
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