MPCC-2009-047

This misconduct complaint arises out of an event that took place in a restaurant located near Canadian Forces Base Valcartier. On that day, two corporals from the 22nd Regiment, one of whom is the complainant, were seated at the bar in the restaurant eating lunch, when nine military police officers (MPs) from the Canadian Forces National Investigation Service (CFNIS) and another person who was with them entered the restaurant and sat down at a table.

The complainant and one of the members who are the subject of the complaint knew each other because of a criminal proceeding that had been brought against the complainant and was still pending. The MP in question was the investigator in the case. The two men looked each other right in the eyes when the MP entered the restaurant. From that point on, according to the statements of some of the MPs sitting at the table, throughout the meal, the complainant never stopped staring at the MPs and smiling contemptuously. According to the complainant and his friend, there was indeed an exchange of looks, but it amounted to brief, civilized eye contact.

At one point during the meal, a military police officer thought she saw the complainant lift his cell phone and use it to photograph the MPs sitting at the table. To all appearances, this is not exactly what happened. Rather, it seems that it was the complainant’s friend who, without actually taking a photograph, moved the cell phone in a way that might have suggested otherwise. In any event, a discussion then ensued at the MPs’ table, with some of them suggesting that the complainant’s actions constituted intimidation of police officers. The MP who had had the first eye contact with the complainant then decided to consult a Crown attorney about this. Over the telephone, he described the situation to her and asked for her advice. Counsel’s opinion was that the complainant’s actions did constitute intimidation, to her mind, and that this type of offence could not be taken lightly. Accordingly, she advised the member to seize the complainant’s cell phone and arrest him for intimidating police.

After the discussion with the Crown attorney, the member decided not to make the arrest himself, but instead to ask the Sûreté du Québec (SQ) to get involved. This was not because the member doubted that he had the power to arrest the complainant himself off base—he believed he had that power—but out of a concern for transparency and because he was not equipped to make an arrest. The complainant was preparing to leave the scene before the SQ officers arrived, and so the same member, with the help of two of his colleagues, apprehended the complainant, seized his cell phone, read him his rights and detained him until the SQ officers arrived. Charges were laid against the complainant, who then spent five days in custody before being released on bail. Nearly a year and a half later the complainant was acquitted, without an actual trial taking place, since the Crown was unable to mount a sufficient case.

The complainant states that he should never have been arrested and detained by the MPs who were present that day. He submits that in the circumstances, the subject members should have considered other options, for example giving him a verbal warning. He alleges that by treating him as they did, the members engaged in intimidation, abuse of power and harassment against him. He believes that he was the victim of a form of discrimination because of the criminal charges that were pending against him. The complainant also submits that in the statement that one of the members made to the SQ, he described the criminal charges pending against him inaccurately and improperly.

For the reasons set out below, the Commission concludes that there is no basis for these allegations. It was not unreasonable, in the circumstances, for the members to interpret the complainant’s conduct as intimidation, and once that interpretation was made, the arrest was also a reasonable response to the situation. The members took the precaution, in order to interpret the facts properly and respond appropriately, of seeking the opinion of a Crown attorney, and they followed her advice. Although the charge may ultimately not have stood up to careful scrutiny before a court, MPs cannot be expected to meet such an exacting standard when they have to exercise their judgment in the heat of the moment. The Commission therefore finds that the members acted reasonably in the circumstances, as they honestly perceived them.

The Commission also found no serious impropriety in the written statements given by the members to the SQ. There is no evidence from which it could be believed that those statements were false or intentionally misleading.

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