Conduct Case Summary MPCC-2001-014

Facts and Complaint

The complainant, a member of the Canadian Forces, had received two performance reviews from his supervisor; the first one was adverse, the second one was more positive. He filed a complaint and a harassment investigation was started. Following the involvement of a Member of Parliament, as well as the Minister of National Defence, the complainant was informed that the negative assessment would be removed from his file and replaced by the positive one. His supervisor was disciplined and the matter was deemed closed. However, the following year the complainant filed another complaint on the same issue. The second investigation concluded that an unknown person had unintentionally misinformed the complainant about the negative assessment being removed from his file.

The complainant alleged that the second investigator had acted unprofessionally in conducting a less than thorough investigation. He claimed that the investigator had failed to ascertain certain facts, failed to identify the source of the misinformation, and made erroneous conclusions. He further asserted that the investigator had failed to adequately investigate why his file had not been accessed to assist in the Ministerial inquiry, and whether the transmission of the misinformation was deliberate. Finally, he alleged that the investigator had failed to contact, interview or seek additional information from him prior to concluding the investigation.

Decision of the Canadian Forces Provost Marshal

In this case, the Deputy Provost Marshal Professional Standards informed the complainant that, according to section 250.28(2)(c) of the National Defence Act and having regard to all the circumstances, investigating his complaint was not necessary or reasonably practical. It was determined that the issues either did not warrant an investigation or did not fall within the Deputy Provost Marshal Professional Standards' mandate to investigate. The investigation had already established that the allegation was supported and that the identity of the individual who had provided the erroneous information was irrelevant. Further, the investigator had found in the complainant's favour and had fulfilled her duty to the satisfaction of the Minister of Defence.

The complainant asked the Military Police Complaints Commission (“Complaints Commission”) to review his case.

Findings and Recommendations of the Chairperson of the Complaints Commission

A- Investigation by Military Police Member

The Chairperson noted some inconsistencies in the subject member's report. The Chairperson also questioned whether the subject member was correct to allow Canadian Forces members to carry out the investigation regarding the erroneous information and wondered if the subject member had been correct in deciding not to pursue the matter.

The subject member concluded that there was no evidence to suggest that anyone acted to intentionally misinform the Minister of National Defence or the complainant. The Chairperson failed to see how such a conclusion could be reached without knowing the true source of the misinformation. The purpose of identifying the source of the misinformation would be to determine if there had been any wrongdoing and, if so, who was responsible, and then to ensure that the appropriate measures were taken to reduce the likelihood of reoccurrence.

The subject member also stated that, in researching the source of the misinformation, there had been round table discussions without anyone having verified the file. Such investigative methods are not commendable and it is easy to understand how the complainant would feel that there had been a cover up. The identity of the person who provided the wrong information was important in order to determine whether that person had improper motives for his actions.

Recommendation

Because of the questionable way in which the investigation was conducted, the Chairperson recommended that a Professional Standards investigation be launched as soon as possible. The Chairperson therefore referred the matter back to the Canadian Forces Provost Marshal.

B- Deputy Provost Marshal Professional Standards' Decision not to Conduct an Investigation

The Chairperson disagreed with the Deputy Provost Marshal Professional Standards' findings that, since the result of the investigation favoured the complainant and since the Minister of Defence was satisfied with the result, it was unnecessary to conduct a Professional Standards investigation. Even though the Minister was an interested party in this case, the complainant remained the primary client and the Deputy Provost Marshal Professional Standards must be careful not to undermine that status. Military Police members must be able to carry out their policing duties independently.

Recommendations

Section 250.28(c) of the National Defence Act, invoked by the Canadian Forces Provost Marshal, must be applied with caution and in the clearest of cases. Where significant questions are not answered, an investigation should be conducted in order to make a fully informed decision. When applying this section, a higher threshold than was present in this case must be observed so as to not deny the right of persons to make complaints about the conduct of a Military Police member.

Further, when the Deputy Provost Marshal Professional Standards informs a complainant that certain issues do not fall within his mandate or jurisdiction, the Deputy Provost Marshal Professional Standards then also has a duty to assist the complainant and refer him to the appropriate department or agency.

As for the new allegations, the Chairperson recommended that the Canadian Forces Provost Marshal arrange an interview with the complainant to identify the allegations and deal with them accordingly.

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

The Canadian Forces Provost Marshal did not accept all of the Chairperson's findings and recommendations.

With regards to the decision that it was reasonable in the circumstances not to investigate the complaint, the Chairperson provided concrete examples of various issues that should have been investigated further; for instance, identifying the source of the misinformation.

The Chairperson's position differed from the Canadian Forces Provost Marshal who argued that the subject member's decision not to physically review the file constituted an error in administrative action and did not in itself justify further investigation. In essence, the Canadian Forces Provost Marshal argued that the subject member's investigation was conducted not to determine if there were criminal or service offences present, but to corroborate the allegation that the Minister had been provided with erroneous information. However, the complainant already knew that the information was wrong; he wanted to know who created the misinformation and why. Therefore, in the Chairperson's opinion, the subject member handling the investigation did not answer the complainant.

The Chairperson stood by her initial recommendations and hoped that the Canadian Forces Provost Marshal would reconsider and concur with her.

The Chairperson also hoped that the Canadian Forces Provost Marshal would reconsider his decision not to support the recommendation that a Professional Standards investigation be held in the complaint because of the unanswered questions and concerns raised.

The Chairperson further stated that the Deputy Provost Marshal Professional Standards has a duty to assist complainants, even when their complaints are not within his jurisdiction. In those cases the complainants must be referred to the appropriate departments or agencies. The Canadian Forces Provost Marshal replied that the complainant was aware of the avenues and processes available to him and that, other than as a matter of courtesy, there was no duty in law to assist him.

The Chairperson is of the view that the Canadian Forces Provost Marshal cannot take for granted that some complainants know the processes and avenues available to them. Rather, they must all be offered the same assistance and be treated professionally, in accordance with public expectations. Furthermore, subsection 250.21(2)(b) of the National Defence Act goes beyond requiring that the complainant be given an acknowledgement of receipt; it requires providing the necessary assistance to the complainant, such as explaining the steps in the process.

The duty to assist the public is also found in subsection 2(1)(b) of the Complaints about the Conduct of Members of the Military Police Regulations. Conduct complaints can be made against any member of the Military Police for failing to provide assistance to the public. It is, therefore, a legal obligation and not just a question of professional courtesy.

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