MPCC-2006-042

Facts and complaint

A female Captain in the Canadian Forces (C) contacted the Canadian Forces National Investigation Service (CFNIS) Central Region to submit a sexual assault complaint regarding an incident that occurred in 1995

Until recently, when C recalled the evening she thought of it merely as a bad experience. However, after attending a Sexual Harassment and Rape Prevention Course she reflected on what happened to her and identified the incident as a sexual assault. She reported the 1995 incident to the CFNIS and described the incident in her oral and written statements to the lead investigator tasked to the file. The investigator consulted with his superiors regarding the statute of limitations, jurisdiction and investigative actions required. He devised an investigative plan and requested a pre-charge legal opinion from the Regional Military Prosecutor’s office, providing C’s written statement and a copy of the audio and video taped interview. The Prosecutor responded that, based on the facts of the case as related by C in her statements, the elements of the offence of sexual assault and the law as it existed in 1995, it was his opinion that there would not be a reasonable prospect of conviction. Furthermore, during the time period in which the incident occurred, jurisdiction would belong to the local provincial Crown.

Accordingly, the investigator requested an opinion from a Crown Attorney. The following day, when C telephoned the investigator, he told her that as far as the CFNIS was concerned, the case was closed. Upon her request, C met with the investigator. He showed her the two written legal opinions and quickly paraphrased the contents. C quickly glanced at the letter from the Regional Military Prosecutor but read the legal opinion of the Crown Attorney. Later, she requested a meeting with the Crown Attorney. His subsequent written response to her stated, “…based upon your statement, there was no reasonable prospect of conviction”.

C submitted a complaint alleging: the existence of another version of the Crown Attorney’s written legal opinion; that the CFNIS investigator lacked knowledge with respect to the issue of consent; inadequate training was provided to the investigator and to CFNIS investigators generally; and that the investigation was not conducted in accordance with applicable regulations/orders.

Decision of the Canadian Forces Provost Marshal

Before responding to the subject-matter of the complaint on behalf of the CFPM, the Deputy Provost Marshal, Professional Standards (DPM PS) did a preliminary review and met with C. It was agreed that the matter would be thoroughly reviewed by a “focused evaluation” which would review all pertinent information related to this complaint and conduct a systematic examination of the policy, training and allocation of resources in relation to sexual assault complaints.

Following the focused evaluation, the DPM PS issued his Report of Findings and Actions which stated that the actions of the military police were generally professional and sympathetic to the complainant. The MP was a competent investigator commensurate with skills and knowledge recognized by Canadian policing standards. It was also found that the CFNIS has an adequate mechanism in place to maximize the professional competencies of its members. Further, it is not within the professional duties of CFNIS investigators to address matters of law. Consistent with policing practices in Canada, CFNIS investigators rely on the expertise of legal personnel to review the relevant information and make determinations regarding issues such as consent. In this case, the investigator relied on the legal opinions given. There was no evidence that the CFNIS file had been altered or that another version of the Crown Attorney’s written opinion existed.

It was found that, overall, this investigation was conducted in accordance with applicable policies, regulations and orders which reflect common policing practices. Recommendations were made to update related policies, as well as to ensure that a Victim Services “package” be given to victims by the investigator at some point during first contact.

The complainant was not satisfied with the findings of the CFPM and asked the Complaints Commission to review the file.

Findings and Recommendations of the Chairperson of the Complaints Commission

The MPCC conducted a full review of the file, including audio and visual recordings, notebook entries as all relevant correspondence and documentation provided by the complainant and persons interviewed. As well, MPCC investigators interviewed eight individuals.

In C’s written complaint, as well as in her interviews with Commission investigators, she challenged the authenticity of one of the legal opinions on file. The Commission thoroughly investigated this matter by reviewing all MP information system entries and statements of the individuals involved. No evidence was found that a third legal opinion existed.

In response to the complainant’s concern that salient information regarding her level of intoxication was not obtained by the CFNIS, the Chair noted that the investigator questioned her about how much she had to drink. The facts were also noted in the Regional Military Prosecutor’s legal opinion.

C also alleged that the CFNIS investigator did not adequately explore the issue of withdrawal of consent. I t is not within the purview of the MPCC to review the legal opinions regarding the issue of consent; however, the Commission reviewed the facts to determine whether the military police failed to properly investigate the issue of consent. Clearly, the investigator followed the best practice in this case by obtaining the pre-charge legal opinion of the Regional Military Prosecutor. The investigator also obtained the legal opinion of the Crown Attorney. Both legal opinions considered the elements of the offence including the issue of consent and found there was no reasonable prospect of conviction. It would only be reasonable for the investigator to have followed the legal advice provided.

Overall, t he Chair found that the investigation and supervision of this file was appropriate and effective. The evidence did not substantiate the complaint.

Chairperson’s Reply following the Canadian Forces Provost Marshal Notice of Action

In his Notice of Action, the Canadian Forces Provost Marshal agreed with the Chairperson’s findings and confirmed that the recommendations made in the focused evaluation are currently being actioned.

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