Chairperson's Final Report - MPCC-2004-028-MPCC-2004-034

National Defence Act - Part IV
Section 250.53

FINAL REPORT

Following a Public Interest Investigation
Pursuant to Section 250.38(1) of the
National Defence Act
With Respect to the Complaints Concerning the Conduct of
Military Police Members

Files: MPCC-2004-028
MPCC-2004-034


Ottawa, November 30, 2005

Mr. Henry Kostuck
Interim Chairperson

CAVEAT
Portions of this document have been edited pursuant to the Privacy Act and to protect the identities of persons under 18 years of age.

Table of content

  1. Summary of the Incident
  2. The Conduct Complaints made on behalf of Young Person #1 and Young Person #2
  3. Disposition of the Complaints by the Canadian Forces Provost Marshal
    1. Professional Standards Investigation
    2. The DPM PS Report of Findings and Actions
  4. Methodology of the Public Interest Investigation
    1. The Decision to call a Public Interest Investigation
    2. Delegation of Authority
    3. Documentation Review
    4. Interviews
    5. Legislative and Policy Review
    6. Consideration of the Canadian Forces Provost Marshal's Notice of Action
  5. The Complaints Commission's Findings and Recommendations Subsequent to the Public Interest Investigation
  6. Conclusion
  7. Summary of the Complaints Commission's Findings
  8. Summary of the Complaints Commission's Recommendations

I. SUMMARY OF THE INCIDENT

On the evening of April 24, 2004, a group of young persons were gathered at an area shared by an OC Transpo bus stop and an entrance to the National Defence Headquarters building (NDHQ). This location in Ottawa, at the MacKenzie King Bridge, is directly across the bridge roadway from the Rideau Centre shopping mall. The actual physical space between the bus stop and the building entrance area is not clearly delineated.

On this date, Military Police Member, Master Corporal (MCpl) Thivierge of the Canadian Forces Support Unit (Ottawa) (CFSU(O)) was monitoring the area by surveillance camera. MCpl Thivierge's attention was drawn to two young persons who were, as a practical joke, entering the revolving doors of the NDHQ building while one of them was wearing a bandana on his face. He further observed what he suspected was use and exchange of narcotics among some of the youths, taking particular note of two of the young people. He observed this to be occurring, in part, on NDHQ property. As a result, he directed several Military Police members of the CFSU(O) to attend the location in order to detain and search all of the youths, which comprised of males and females, for illegal drugs. A number of Military Police officers attended, detained and searched all of the youths, and found a small amount of [redacted text] on one youth only. In addition, a small amount of marijuana was found in an unclaimed knapsack located on the ground among the youths. After being detained for a period of time, all but one of the youths were permitted to leave. The one youth who was held and upon whom the [redacted text] was found, was later released to a parent, without charge. During the period of detention the youths were not advised they could call a parent or consult with legal counsel.

Complaints were received by the office of the Canadian Forces Provost Marshal (CFPM) from the parents of two of the young persons. Pursuant to subsection 250.21(2)(c)(i) of the National Defence Act (NDA) the CFPM's office forwarded a copy of these complaints to the Military Police Complaints Commission (Complaints Commission). As a result of the complaints, on May 17, 2004, the Deputy Provost Marshal Professional Standards (DPM PS), as the CFPM's delegate, advised that a professional standards investigation was ordered into the matter.

II. THE CONDUCT COMPLAINTS MADE ON BEHALF OF YOUNG PERSON #1 AND YOUNG PERSON #2 Footnote 1

On May 3, 2004, correspondence (dated April 27, 2004) was received by the office of the CFPM from the complainant, the father of Young Person #1. In his letter, he indicated that just after 12:00 a.m. on April 25, 2004, his child and some friends were waiting for an OC Transpo bus, in front of the National Defence Headquarters building, 101 Colonel By Drive in Ottawa. There were also other youths present who were known to Young Person #1 from school. The group of youths, including Young Person #1, were approached by four or five Military Police members, detained and searched before being permitted to leave the area. The youths were advised that the search was drug related. The complainant (father of Young Person #1) requested the rationale for the detention and search of his child, and the authority upon which these actions by the Military Police were based.

Correspondence was also received by the office of the CFPM (dated June 1, 2004) from the second complainant in relation to this incident, the mother of Young Person #2. She related that on the evening of April 24, 2004, her child and nine friends went to a movie in downtown Ottawa. Following the movie, they waited at a bus stop beside the NDHQ building. The group was described as “goofing around” and skateboarding under the overhang of the building. It is indicated that a number of Military Police members arrived at this location and that all of the young people were searched. The mother of Young Person #2 relates that the Military Police members told the youths a “drug deal” had been seen on camera. A small amount of [redacted text] was found on one of the youth. A number of the young people raised concern that they would miss the last bus heading eastbound. It is related that they were told they would be driven home. The mother of Young Person #2 further states that a request by one or more of the youths to “call home” was denied. The mother of Young Person #2 identified a number of questions and concerns. First, she questioned whether or not the Military Police had jurisdiction in the matter as, in her view, some of the actions of the youths occurred on Department of National Defence property and some on City of Ottawa property. Second, the complainant questioned the validity of the detentions and searches of the young persons based upon “seeing a drug sale”. Third, the complainant expressed concern about why the youths were held up past their last bus and then not driven home. Finally, the complainant raised concerns that the youths were not allowed to call home during the detention.

III. DISPOSITION OF THE COMPLAINTS BY THE CANADIAN FORCES PROVOST MARSHAL

a) Professional Standards Investigation

Based upon the letter of complaint from the father of Young Person #1, the DPM PS (CFPM's delegate), advised on May 17, 2004 that a Professional Standards investigation was ordered into this matter. The subsequent complaint of the mother of Young Person #2 was incorporated into the investigation. The specific allegations, summarized by the DPM PS, were as follows:

  1. Allegation 1 - that the CFSU(O) Military Police did not have jurisdiction to intervene in the noted matter;
  2. Allegation 2 - that the CFSU(O) Military Police did not afford the subject persons involved in this matter their rights under the Canadian Charter of Rights and Freedoms;
  3. Allegation 3 - that the CFSU(O) Military Police improperly detained and searched the subject persons involved in this matter;
  4. Allegation 4 - that the CFSU(O) Military Police did not properly advise the parents and/or guardians of the subject persons involved in this matter, and;
  5. Allegation 5 - that the CFSU(O) Military Police contravened the Military Police Professional Code of Conduct, paragraph 4(1) which states: “engage in conduct that is likely to discredit the military police or that calls into question the members ability to carry out their duties in a faithful and impartial manner.

The DPM PS tasked a Professional Standards investigator to do the investigation. Upon completion of the investigation, the Professional Standards investigator prepared a Professional Standards Investigation Report dated November 3, 2004.

b) The DPM PS Report of Findings and Actions

Based on the Professional Standards investigation, the DPM PS made the following findings in her Report of Findings and Actions dated November 18, 2004:

  1. Allegation 1 - that the Canadian Forces Support Unit (Ottawa) Military Police did not have jurisdiction to intervene in the noted incident. As a result of the information, facts and evidence gathered with regard to this issue, the allegation is not supported. The following information is provided in support of this finding:

    1. our investigation determined that on 24 April 2004, an incident involving a group of youths, some of whom were observed in a drug transaction and/or possession of, occurred at the McKenzie Bridge exit, underneath the National Defence Headquarters North Tower building;
    2. verification with Public Works established that the activities that were observed by Master Corporal THIVIERGE through the security camera occurred on Department of National Defence property;
    3. our investigation established that the place where the Military Police responded to and the place where they dealt with the youths on 24 April 2004, was Department of National Defence property; and
    4. given the mandate of the Military Police as it relates to criminal activity on Department of National Defence property, the Military Police members involved on 24 April 2004, clearly had jurisdiction in the matter;
  2. Allegation 2 - that the Canadian Forces Support Unit (Ottawa) Military Police did not afford the subject persons involved in this matter their rights under the Canadian Charter of Rights and Freedoms. As a result of the information, facts and evidence gathered with regard to this issue, the allegation is not supported. The following information is provided in support of this finding:

    1. the Youth Criminal Justice Act states that police are required to notify the youth's parents only if the youth has been arrested and detained for show-cause in accordance with Section 26(1) of the Act. That situation applied only to [redacted text] [redacted text] who was not released upon being searched as was the case with the remainder of the youths;
    2. our investigation established that [redacted text] and [redacted text] mother were fully informed of the situation and the parent was called as soon as it was feasible to do so. [redacted text] attended the Military Police Detachment and [redacted text] was released to [redacted text] at that point in time;
    3. our investigation established that the Military Police detained the youths on 24 April 2004. While one of the youths interviewed in this investigation stated that [redacted text] had no recollection of the Military Police ever providing a reason for being detained or searched, other youths in the party clearly stated forthwith, that the Military Police explained that a drug transaction had been observed on the security camera. The youths indicated that they were fully aware that they were being detained and searched for matters relating to drugs;
  3. Allegation 3 - that the Canadian Forces Support Unit (Ottawa) Military Police improperly detained and searched the subject persons involved. As a result of the information, facts and evidence gathered with regard to this issue, the allegation is not supported. The following information is provided in support of this finding:

    1. it is entrenched in Military Police Policies that all drug related offences on Department of National Defence property shall be investigated, which may result in having individuals detained, searched and at times arrested;
    2. our investigation has determined that on 24 April 2004, a group of ten youths were observed by Master Corporal THIVIERGE through the security camera. His attention was drawn by [redacted text] [redacted text] who, as a practical joke, entered the revolving doors of the National Defence Headquarters, McKenzie Bridge entrance with one of them wearing a bandana on [redacted text] face;
    3. as Master Corporal THIVIERGE continued to monitor the activity of the group of youths, he observed what appeared to him to be a drug transaction between [redacted text] and [redacted text]. Without suggesting that all the youths were cognizant of the exchange, this transaction was executed in the open with no apparent objection by the others in the party;
    4. our investigation determined that Master Corporal THIVIERGE's appreciation of what he saw was reasonable and that the subsequent Military Police investigation in the matter proved him to be correct, in that [redacted text] [redacted text] and that [redacted text] was found in a backpack that was abandoned by one of the youths when the Military Police members arrived;
    5. our investigation established that Master Corporal THIVIERGE directed the members of his shift to attend the location at the McKenzie Bridge entrance to investigate the drug activity he had observed. Master Corporal THIVIERGE identified the two main suspects to the attending Military Police members and directed that they both be searched. It was confirmed to Master Corporal THIVIERGE that [redacted text] in a small metal container from which [redacted text] was observed taking some and passing it to another youth who appeared to be [redacted text] [redacted text] which led Master Corporal THIVIERGE to believe that another nearby youth may have taken possession of the drug;
    6. Master Corporal THIVIERGE then directed that all the youths in the group should be searched and the attending Military Police members complied;
    7. our investigation established that the male youths were searched by the male Military Police members in a cursory manner while the female youths were searched in a more thorough manner, but within acceptable parameters by the only female Military Police member present;
    8. our investigation established that the Military Police members informed the youths of the reason for them being detained and searched;
    9. our investigation established that upon being searched each youth who was not found in possession of drugs was informed that he/she was free to go, however, by their volition they remained in solidarity to the group. It was only when it became apparent to the group that [redacted text] that they departed in two groups, one group boarding the OC Transpo 95 bus and the second group boarding the OC Transpo 85 bus;
    10. in relation to the police powers to search the youths on 24 April 2004, the pertinent parameters can be found in the Controlled Drugs and Substances Act. In addition, case law (R. v. Debot (1986)), established that where a police officer conducts a search of a person based on the information of a superior officer, it is the superior officer that is the holder of the “reasonable and probable grounds to believe”, (in this case, Master Corporal THIVIERGE). The officer that acquiesced the superior officer's instructions need not have established “reasonable and probable grounds to believe” on their own. Furthermore, case law (R. V. Collins, (1987)) has established that where a police officer holds information from a reliable source that there are individuals in possession of drugs in a certain place (place was not defined), the police officer may search persons found at that place; and
    11. based on the circumstances of this incident and the legal precedence, a reasonable and well-informed person would not conclude that Military Police members involved improperly detained and searched the involved persons in this matter;
  4. Allegation 4 - that the Canadian Forces Support Unit (Ottawa) Military Police did not properly advise the parents and/or guardians of the subject persons. As a result of the information, facts and evidence gathered with regard to this issue, the allegation is not supported. The following information is provided in support of this finding:

    1. the Youth Criminal Justice Act states that police are required to notify the youth's parents only if the youth has been arrested and detained for show-cause in accordance with Section 26(1) of the Act; and
    2. our investigation established that there was no obligation on the part of the Military Police to inform the parents and/or guardians of the youths involved, except for [redacted text] who was further detained and whose parent was appropriately advised;
  5. Allegation 5 - that the Canadian Forces Support Unit (Ottawa) Military Police contravened the Military Police Professional Code of Conduct, paragraph 4(l), which states; “engage in conduct that is likely to discredit the military police, or that calls into question the member's ability to carry our their duties in a faithful and impartial manner”. As a result of the information, facts and evidence gathered with regard to this issue, the allegation is not supported. The following information is provided in support of this finding:

    1. the Military Police members that were involved have stated that subsequent to the incident, they discussed the manner in which their investigation had unfolded. They recognized that they should have been able to complete what they needed to do in a shorter time. However, because consultation needed to be carried out between Corporal BEDARD outside and Master Corporal THIVIERGE in the office via telephone, some delay was generated;
    2. the members also recognized that the communication between them on the scene could have been better coordinated given that there was a different understanding between them as to the level of search to be carried out [redacted text] in that a cursory search was conducted on the male youths and a more detailed search was carried out by Corporal BOULET on the female youths. When they were instructed to search everyone, most of the Military Police members relied on their experience to determine what was appropriate for the situation. A better understanding of the particular role the individual youths had played in the suspected offence could have been provided to the Military Police members outside;
    3. given that only Corporal BOULET carried out a more thorough search, but within expectable parameters, and that all the others understood that a cursory search was sufficient, a reasonable and well-informed person could conclude that Corporal BOULET may have been excessive;
    4. in relation to this matter, Corporal BOULET recognizes that she too could have conducted a cursory search if she had realized what the other Military Police members were doing and if she had understood Master Corporal THIVIERGE's expectation when he directed that everyone be searched. However, she clarified that having little experience as a Military Police member (a recent graduate of the Canadian Forces Military Police Academy), she carried out the searches in the manner that she was trained to and that at the time, she believed that that it was the proper way to proceed; and
    5. notwithstanding the issues noted above, no elements of bad faith or malice on the part of the Military Police members surfaced in relation to the actions taken by them. Given the circumstances, a reasonable and well-informed person would conclude that the Military Police members carried out their duties as police officers and they responded in a measured way without exceeding the scope of their authority and/or responsibilities.

Finally, the DPM PS made the following observations in her Letter of Findings and Actions:

  1. our investigation showed that the Military Police members that were involved in searching the youths on 24 April 2004 did not fully understand the nature of the search, in that some believed that they were carrying out voluntary searches while others understood that Master Corporal THIVIERGE was the holder of the grounds and that the searches were not voluntary. Given the circumstances of the incident, the searches would not fall into the voluntary category as it was made clear to the youths that they could not leave and that individually they were informed that they were free to go only after they were searched. While this situation did not impact on the appropriateness of the actions taken by the members, it did highlight the fact that some uncertainty existed which may have caused some delay that could have been avoided; and

    Master Corporal THIVIERGE was proven to be keen in his observation and decisive in his action as he directed the Military Police members at the scene to respond in a measured manner. However, it must be recognized that Master Corporal THIVIERGE could have ensured that his staff clearly understood that he was expecting a cursory search to be carried out on the youths, [redacted text]

The DPM PS ended by noting her disposition of the complaint as follows:

The mandate of the Office of the Deputy Provost Marshal Professional Standards, on behalf of the Canadian Forces Provost Marshal is to determine if the Military Police acted professionally and in accordance with established Military Police Policies, Military Police Policies and Technical Procedures, and the Military Police Professional Code of Conduct. Based on the facts, the information gleaned regarding the issues would lead a reasonable person to conclude that Master Corporal THIVIERGE and the other Military Police members did not breach Military Police Policy, Military Police Policy and Technical Procedures, nor did they contravene the Military Police Professional Code of Conduct. As a result, there will be no further action taken by the Office of the Deputy Provost Marshal Professional Standards against the subject Military Police members. However, it is directed that the Canadian Forces Support Unit (Ottawa) Military Police Detachment incorporate the powers of search under the various Acts utilized by the Military Police and search techniques, in their Annual Unit Training. The Office of the Deputy Provost Marshal Professional Standards is to be advised in writing once this action has been taken.

On September 21, 2005, the Complaints Commission received correspondence from the DPM PS advising that he had received confirmation from the Provost Marshal National Capital Region that all directions given by him had been addressed.

IV. METHODOLOGY OF THE PUBLIC INTEREST INVESTIGATION

(a) The Decision to Call a Public Interest Investigation

It was determined that the complaints presented on behalf of the young persons raised a number of important issues which merited close examination in the public interest. The interaction between the Military Police members and civilians, all of who were youths, in an area open and accessible to the general public highlights several areas of concern.

Arising from this are important questions in relation to the detention, search and questioning of young persons within the context of the Canadian Charter of Rights and Freedoms and the Youth Criminal Justice Act. The paramount objective is to assess and support the evolution of sound, fair and equitable procedures in policing. This objective is combined with the important mandate of ensuring the reputation and integrity of the Military Police in an open, accountable and transparent fashion.

On June 30, 2004, the former Chairperson of the Complaints Commission ordered a Public Interest Investigation, pursuant to subsection 250.38(1) of the National Defence Act. The following issues were identified as relevant to the investigation:

  1. What is the appropriate role of the Military Police in conducting investigations of civilians, particularly young persons and within which geographic boundaries?
  2. Are there consistent and well-understood policies and procedures in relation to the detention, questioning and search of young persons? Specifically, do guidelines exist which follow the Canadian Charter of Rights and Freedoms and the Youth Criminal Justice Act requirements?

    Do Military Police members receive sufficient training on how to properly deal with young persons? Did the Military Police members follow proper procedures in this instance? Did the Military Police members properly advise the parents and/or guardians of the young persons in this case?

  3. What are the policies and procedures relating to the surveillance and investigation of civilians on both Military and public property? Were the Military Police members acting within their authority?
  4. Were the young people in this matter treated fairly and with appropriate respect and courtesy by the Military Police members involved? Were the Military Police members acting within the norms of the Military Police Professional Code of Conduct?

(b) Delegation of Authority

Pursuant to subsection 250.11(3) of the NDA, the Interim Chairperson of the Complaints Commission delegated on January 7, 2005 the responsibility to conduct this Public Interest Investigation and to prepare the Interim Report in this matter to Commission Member, Mr. Odilon Emond.

(c) Documentation Review

The Complaints Commission thoroughly reviewed relevant documentation pertaining to the Military Police investigation in question (GO 2004-13273), as well as the subsequent Professional Standards investigation (2120-2-3/TD 029-04), which included all reports, notes, witness interviews and audio recordings.

In addition to the materials sent to the Chairperson by the DPM PS, the documentation review included relevant correspondence from the complainants, as well as correspondence between the DPM PS and the Complaints Commission.

(d) Interviews

An interview was conducted with Young Person #1 in the presence of the youth's parents at the office of the Complaints Commission on March 22, 2005. Further interviews were conducted with Young Person #2 and another youth present during the incident at Young Person #2's mother's residence on March 29, 2005. In addition, a meeting was held with the Professional Standards investigator, Legal Counsel with the Office of the Judge Advocate General and the DPM PS on May 30, 2005, to discuss certain aspects of the handling of these complaints in the first instance. On June 15, 2005, an examination of the location of the events, which are the subject of this report, was conducted.

In relation to the investigation conducted by the Complaints Commission, it is noted that all subject Military Police members were advised in writing that if they had any further information to provide to the Complaints Commission they were invited to do so either by way of interview or in writing. No further requests to be interviewed were received in response to this correspondence, which was sent through the Chain of Command.

(e) Legislative and Policy Review

(f) Consideration of the Canadian Forces Provost Marshal's Notice of Action

In accordance with the requirements of Part IV of the NDA, the Commission Member submitted his Interim Report to the CFPM on September 23, 2005, and, on November 15, 2005, the CFPM completed a Notice of Action (received November 17, 2005) responding to the Interim Report. In conformity with NDA section 250.53(1), the Interim Chairperson has prepared this Final Report after having considered the CFPM's Notice of Action. In the Notice of Action, the CFPM is required to notify the Minister and the Interim Chairperson of any action that has been or will be taken with respect to the complaint.

V. THE COMPLAINTS COMMISSION'S FINDINGS AND RECOMMENDATIONS SUBSEQUENT TO THE PUBLIC INTEREST INVESTIGATION

This public interest investigation included a careful and thorough review of the materials provided by the DPM PS as well as the letters of complaint on behalf of the young persons. All the information gathered by the Complaints Commission's staff during the course of the investigation was carefully considered by the Interim Chairperson in the preparation of this Final Report. Finally, the CFPM's Notice of Action was taken also into account in arriving at this Final Report.

The Interim Chairperson sincerely thanks the CFPM for his Notice of Action and is pleased to note that the CFPM agreed with all the findings and recommendation made by the Complaints Commission in relation to these complaints. The CFPM's response to each finding and recommendation is indicated in parentheses immediately following the text of the finding or recommendation.

As mentioned earlier, the Complaints Commission conducted interviews in relation to this public interest investigation. They are summarized as follows:

Interview of Young Person #1

Young Person #1 was interviewed, along with the youth's parents, at the Complaints Commission's offices. During the interview a number of concerns were presented. Young Person #1 explained that [redacted text] was part of a group of young people waiting in the area of an OC Transpo bus stop near the entrance to the NDHQ building. The group was approached by a number of Military Police members, detained and searched. Young Person #1 feels that the Military Police members did not appear to be acting in an informed, well coordinated way and improperly detained and searched [redacted text] as well as a number of the other young people. Young Person #1 was not advised of [redacted text] Right to Counsel, pursuant to s. 10(b) of the Charter and s. 25 of the Youth Criminal Justice Act, and [redacted text] parents were not contacted. Young Person #1 describes a confusing and upsetting experience where the male youths were given a pat down search or simply asked to empty their pockets while the female youths were searched in a very thorough manner.

It was expressed by Young Person #1's father that the Military Police members may have had grounds to search certain youths other than his child; however, no appropriate distinctions were made in that the youths were viewed as one large group. A concern was raised that the Military Police members appeared to lack education as to the appropriate grounds required for search and detention. It was felt that the young persons' rights were not properly respected and that an apology should be issued by the Military Police.

Interview of Young Person #2

An interview of Young Person #2 was conducted at the youth's home. A friend of Young Person #2, who was present during these events, was also interviewed at the request of the mother of Young Person #2. The mother of Young Person #2 also provided an interview. Young Person #2, the friend and the mother of Young Person #2 all expressed concern that the youths were detained and searched without proper foundation. The mother of Young Person #2 felt strongly that she, as a parent, was not properly notified by the Military Police members of the detention and search of her child. The mother of Young Person #2 also questioned whether the Military Police members had jurisdiction in this matter. She believes that her child was improperly detained. In addition, the mother of Young Person #2 felt that a letter of apology from the Military Police would “go a long way” toward rectifying the situation, in that it would demonstrate an acknowledgement and understanding of this difficult experience for the young people and their parents.

ANALYSIS OF ISSUES:

Each of the issues raised by the complainants and further examined by the DPM PS warrant careful analysis in this investigation. The overriding issue, as identified by the Complaints Commission, relates to the appropriate role of Military Police in conducting investigations involving young persons and if there are any special duties or obligations on the part of the Military Police members. The concern which emerges most clearly in this investigation relates to the organization amongst the Military Police members who acted to search and detain the youths, as well as communication both among the Military Police members themselves and between the Military Police members and the young persons.

All policing services in Canada take their guidance from established law and in the present matter the Canadian Charter of Rights and Freedoms, the Youth Criminal Justice Act and the Controlled Drugs and Substances Act are relevant sources of such guidance. The question is whether the Military Police members' actions are based upon consistent and well-understood policies and procedures based upon the law.

In answering the question it is clear that such policies do exist in a clear and well-outlined way. This report proposes to refer to and examine Military Police operations policy in addressing the issues raised by the larger investigation.

Arrest and Detention

The point of departure in this matter is the observation by MCpl Thivierge of two youths, who were not the children of either of the complainants, appearing to exchange narcotics on or near National Defence property. This observation set into motion a series of actions by the Military Police members. Military Police Policies and Technical Procedures, Chapter 5, Annex C, Military Police Operations: Arrest and Detention Footnote 2 outlines procedures to be followed when arresting or detaining persons who commit offences while under Military Police jurisdiction. This procedural guideline addresses a critical point relevant to this investigation, which is that although arrest and detention appear quite similar, they have clear and distinct meanings. It must be understood how they differ and in what circumstance each is to be used.

The fundamental, most difficult and challenging point of contact between any police officer and citizen relates to the officer's power of arrest and detention. In R. v. Storrey (1990), 53 C.C.C. (3d) 316, the Supreme Court of Canada reviewed the provisions of what was s. 450(1)(a) of the Criminal Code of Canada which authorized a peace officer to arrest without warrant “a person who.on reasonable and probable grounds, he or she believes has committed or is about to commit an indictable offence.Footnote 3 Justice Cory, in this case, stated that it would be insufficient for an officer to personally believe that he or she had the necessary reasonable and probable grounds. Justice Cory held “it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say, a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest.Footnote 4 This statement from the Court in R. v. Storrey sets out the basis for any proper arrest.

The Military Police Policies and Technical Procedures, Chapter 5, Annex C addresses the distinct act of detention as follows:

A detention occurs when an MP exercises control over a person by a demand or a direction that prevents or impedes a person's liberty without the formality of an arrest. A detention, as an arrest, has significant legal consequences, including the requirement to inform the person of their rights in accordance with the Canadian Charter of Rights and Freedoms (.).

Where any person is arrested or detained, section 10 of the Canadian Charter of Rights and Freedoms provides as follows (emphasis added):

Everyone has the right on arrest or detention

  1. to be informed promptly of the reasons therefore;,
  2. to retain and instruct counsel without delay and to be informed of that right; and
  3. to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

In addition, the Military Police Policies and Technical Procedures outline that a person under arrest or detention may waive a constitutional right only if such a waiver is based upon informed and voluntary consent. Footnote 5

Cautions and the Canadian Charter of Rights and Freedoms

Military Police Policies and Technical Procedures, Chapter 7, Annex E, Appendix 2: Investigation Aid: Cautions and Charter of Rights and Freedoms, section 1 Footnote 6 reads as follows:

It is imperative that a person who has been charged, arrested, detained or is suspected of having committed an offence shall be read the cautions in accordance with QR& O Vol II, Art.101.12, prior to being interviewed in respect of the offence. (.) Care must be taken when dealing with any offender, especially a Young Offender, that every effort is made to ensure the offender fully understands the meaning of any caution.

The policy further prescribes that young persons must be advised of their rights in language adapted to their age and understanding. A young person has the right, before making a statement, to consult a lawyer or another person (father, mother, relative or other appropriate adult) and any statement must be made in the presence of that person unless the youth decides otherwise.

The policy establishes clear guidelines for Military Police members in providing cautions and Charter rights to young persons. This includes the directive that any waiver of rights by a young person shall be in writing. Specific reference may be made to the Youth Criminal Justice Act, Right to Counsel, at s. 25(1) with regards to a youth's Right to Counsel.

  1. A young person has the right to retain and instruct counsel without delay, and to exercise that right personally, at any stage of proceedings against the young person and before and during any consideration of whether, instead of starting or continuing judicial proceedings against the young person under this act, to use an extra judicial sanction to deal with the young person.
  2. Every person who is arrested or detained shall, on being arrested or detained, be advised without delay by the arresting officer or the officer in charge, as the case may be, of the right to retain and instruct counsel, and be given an opportunity to obtain counsel.

Of additional relevance to the present case is section 26 of the Youth Criminal Justice Act in relation to Notices to Parents, which reads:

Subject to subsection (4) if a young person is arrested or detained in custody pending his or her appearance in court, the officer in charge at the time the young person is detained shall, as soon as possible, give or cause to be given to a parent of the young person, orally or in writing, notice of the arrest stating the place of detention and the reason for the arrest.

Searches

In the Military Police Policies and Technical Procedures, Chapter 5, Annex A, Appendix 1, Military Police Operations: Searches of Persons establishes and outlines procedures to be followed by Military Police members. This policy states,

MP have the power to search a person when the search is conducted as a result of a lawful arrest and to seize anything in their possession or immediate surroundings.

Importantly, the policy also states,

No MP member has the right to search any person based upon suspicion alone. The MP personnel must have reasonable grounds for believing that the person is committing or has committed an offence and must seek justification under statutory authority relating to lawful arrest.

Section 8 of the Canadian Charter of Rights and Freedoms provides that “Everyone has the right to be secure against unreasonable search or seizure.” The law establishes that a warrantless search, as in the present investigation must, on a balance of probabilities, be reasonable. “A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable.Footnote 7 The standard of proof to establish reasonable grounds for a search is one of reasonable probability rather than proof beyond a reasonable doubt or a prima facie case. Where there is a waiver of the right to be secure against unreasonable search and seizure “the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right.Footnote 8

Military Police Policies and Technical Procedures, Chapter 5, Annex A, Appendix 1, Military Police Operations: Searches of Persons also address categories of personal search, identifying four types:

(1) Frisk search;
(2) Body search;
(3) Strip search; and
(4) Internal search.

Relevant to this investigation are the categories

(1) Frisk search, which is described as a quick pat down and
(2) Body Search, described as examining an individual who remains dressed with a thorough search of the clothing.

Personal searches shall, according to the guidelines, only be conducted under the authority of a particular judicial statute or immediately following the arrest of a subject. Moreover, the guidelines importantly acknowledge that, as every search is intrusive, there must be respect for human dignity and Military Police members should make every reasonable effort to allow the person being searched to retain his or her dignity. The policy establishes methods to be followed by Military Police members in conducting personal searches.

Military Police Policies and Technical Procedures Footnote 9 state that searches and seizures shall only be conducted when they are fully and clearly authorized by law or under the express and informed consent of a subject. Reference is also made to the “plain view” doctrine or warrantless seizure of narcotics. Normally, in order for the doctrine of “plain view” to be met, the property must be found in plain view and the Military Police member must have a reasonable belief that the items afford evidence of the commission of an offence. The policy also thoroughly examines and outlines the procedures to be followed for consent searches. Specifically, section 21 of Chapter 5, Annex A of the Military Policies and Technical Procedures reads as follows:

A search conducted with the consent of the individual to be searched.will be valid provided the consent is voluntary and issued from a conscious and informed operating mind that is free from disability and with knowledge of the consequences. Members of the MP are advised not to rely on consent for search as justification for an investigative procedure unless they can satisfy several demanding tests for informed consent. Consent searches are fraught with procedural and judicial problems, and should only be used in extenuating circumstances.

A final important investigation aid available to Military Police members is Chapter 7, Annex J, Guide - Controlled Drug and Substances Act Offences of the Military Police Policies and Technical Procedures. This policy enumerates general procedures, investigative methods and information reporting practices.

The Military Police policy information sets out clear and well-organized guidelines for Military Police members dealing with arrest and detention, search and seizure and the special obligations relating to young persons. These policies provide a thorough study and examination of the role and duties of Military Police members and are consistent with the Canadian Charter of Rights and Freedoms, the Youth Criminal Justice Act and the Controlled Drugs and Substances Act.

Finding #1: The Complaints Commission finds that the Military Police Policies and Technical Procedures are sufficiently detailed in relation to detention and search and are consistent with the Canadian Charter of Rights and Freedoms, the Youth Criminal Justice Act and the Controlled Drugs and Substances Act. (CFPM agrees)

This report will now address the specific issues raised by the complainants and the DPM PS in light of all of the information gathered and the analysis of the legal issues.

ISSUE #I Did the Military Police have jurisdiction to intervene in this matter?

The Complaints Commission finds that the Military Police did have jurisdiction in this matter. It is apparent that MCpl Thivierge observed suspected drug activity on property associated with the Department of National Defence. This is supported by his statement, and corroborated by an examination of the video surveillance. In addition, the group of young persons were interacting within an area which is in many aspects shared by the entrance to the NDHQ building and the OC Transpo bus stop. There is no line of demarcation or physical boundary existing in this area. This was additionally supported by an examination of the site. The jurisdiction to act is founded upon the physical presence of the young persons on Department of National Defence property and the authority of the Military Police to act in their role as peace officers pursuant to s. 495 of the Criminal Code of Canada.

Finding #2: The Complaints Commission agrees with the Deputy Provost Marshal Professional Standards' finding that the subject Military Police members had jurisdiction to intervene in the noted matter. (CFPM agrees)

ISSUE #II Did the Military Police members properly provide the subject young persons their Charter rights?

The obligation of a peace officer to advise a subject of their Right to Counsel, pursuant to s. 10(b) of the Canadian Charter of Rights and Freedoms and more particularly in this case, pursuant to s. 25 of the Youth Criminal Justice Act, arises upon arrest or detention. While not formally arrested, the young persons were detained. Control was exercised over them by the Military Police members through a demand or direction, which restricted their liberty. This detention had significant legal consequences. Not every detention invokes an automatic Right to Counsel, as for example where limits are placed upon motorists under the Highway Traffic Act for investigation of sobriety. However, no such limit based upon statutory authority or exigent circumstances existed in the present case. In addition, as the young persons were not advised of their Right to Counsel they could not be seen to have waived that right. In this case, the young persons were detained while the Military Police conducted a search for narcotics. All of the young persons, except for the young person on whom a small amount of [redacted text] was found, were permitted to leave immediately following the search. However, the other young persons, once detained, even though not formally arrested, should have been advised of their Right to Counsel. The DPM PS concluded that the Military Police members did not breach the Charter Right to Counsel of the subject young persons. The Complaints Commission disagrees.

While the Complaints Commission finds that the Right to Counsel should have been afforded to the young persons (children of the complainants), it is noted that they were not formally arrested, charged or questioned. They were released immediately following the search.

It is also noted that the Military Police members lacked clear instruction, organization and communication among themselves in relation to this issue. Of equal importance is that more effective communication with the youths would have made for a more constructive and better understood investigation of the suspected drug activity.

The obligation to advise parents does, however, arise upon formal arrest and detention pending an appearance in court. This was not the case for either Young Person #1 or Young Person #2. As a result, their rights were not breached under s. 26 of the Youth Criminal Justice Act. However, best police practices, proper public relations, and communication would have merited notification of the parents in the present case, especially given that the incident occurred late in the evening.

Finding #3: The Complaints Commission finds that the young persons were detained and their rights to counsel pursuant to section 10(b) of the Charter and section 25 of the Youth Criminal Justice Act were breached in this case. (CFPM agrees)

In stating his agreement with this finding, the CFPM in his Notice of Action stated that there is no evidence that the Military Police advised the youths who were detained of their right to counsel. The CFPM further noted that the Charter requires that the youths be advised “without delay”. The Complaints Commission agrees entirely with the CFPM.

Finding #4: The Complaints Commission agrees with the Deputy Provost Marshal Professional Standards that the subject members did not breach the rights of the young persons under section 26(1) of the Youth Criminal Justice Act by not advising their parents. However, best police practices, proper public relations, and communication would have merited notification of the parents in the present case. (CFPM agrees)

ISSUE #III: Were the subject youths in this matter improperly detained and searched?

In the present case, MCpl Thivierge observed the suspected drug activity occurring on National Defence property. The direct observation was in relation to only two of the youths present. It appears that the initial instruction to the Military Police members from MCpl Thivierge was directed to a search of these two individuals and then widened to include the entire ‘group’ of young people. The Complaints Commission concludes that the subject members acted within legal authority to detain and search the two youth observed in what was believed to be a possible drug transaction on video surveillance.

The broadening of the search was based upon viewing the youths as an identifiable group within a specific area, on or near NDHQ property. Additionally, narcotics were found in a backpack on the ground, which was unclaimed. As a result, the Complaints Commission finds that the detention of the youths was not improper. They should, however, have been advised of their Right to Counsel upon detention and, in accordance with best practices, had their parents notified, especially given the late hour. This search could have been briefly suspended for this purpose as there were no exigent or urgent circumstances. It would have been reasonable to ask the youths, once their rights were afforded, to empty their pockets or be subject to a quick pat down of their pockets. This type of search was in fact conducted with respect to some of the male youths.

As earlier referred to, the law establishes that a warrantless search must, on a balance of probabilities, be reasonable. “A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner on which the search was carried out is reasonable.Footnote 10 The great difficulty in the present case arises from the failure to distinguish among the youths their relative involvement. They were not a homogenous group. Reasonable and probable grounds may, in fact, have existed to arrest the two youths observed in alleged drug activity in accordance with the standard set by the Supreme Court of Canada in R. v Storrey. Footnote 11 A constellation of objectively verifiable indicia such as the observation of suspected drug activity, the location of narcotics, and suspicious behaviour can amount to grounds for arrest.

However, while it is found that a brief detention was not unlawful, further confusion arises in that some of the Military Police members considered the young persons to be consenting to a search, while others considered the searches non-voluntary. Had the youths been advised of their Right to Counsel and afforded the opportunity to contact counsel they then could have fully and meaningfully consented to be searched. Young Person #2 indicates that [redacted text] did not object to being searched and no narcotics were found on [redacted text]. The search itself cannot be found to be proper given that neither young person can fairly be said to have provided the requisite consent to be searched since they were not advised and afforded their Right to Counsel.

With respect to Young Person #1 [redacted text] was, without speaking to counsel, subjected to a thorough, intrusive and excessive search, which was not reasonable in light of the circumstances. The manner of search, considering the lack of information suggesting that the youth was in possession of narcotics, was not reasonable. Additionally, the searches of both young persons were not incident to a lawful arrest. As a result, the detention, while not unlawful, was followed by an improper search.

It is clear that, except for the young person on whom a small amount of [redacted text] was found, all young persons were, as earlier mentioned, permitted to leave following the search. It remains relevant to this issue, which the DPM PS acknowledges, and is to be commended accordingly, that better communication among the Military Police members of the CFSU(O) and with the young persons would have ensured a more consistent and better-understood approach. As acknowledged, certain of the young women were very thoroughly searched, while the young men only in a cursory way. The Complaints Commission finds that the subject members did nonetheless act in good faith. The key issue is undeniably communication and this was constructively recognized in the DPM PS' Report of Findings and Actions. As indicated, a lack of understanding of the particular role of individual youths led to what was an upsetting and difficult experience for Young Person #1 and Young Person #2, neither of who was found to be in possession of narcotics.

While acting in good faith, Corporal (Cpl) Boulet's searches of the young women were, as conceded by the DPM PS, capable of being viewed as excessive. The Complaints Commission does concur with the recognition by the DPM PS that its execution was, in certain respects, problematic.

Finding #5: The Complaints Commission agrees with the Deputy Provost Marshal Professional Standards that the young persons in this case were not improperly detained. They should have, however, been advised of their Right to Counsel. (CFPM agrees)

Finding #6: The Complaints Commission finds that Young Person #1 and Young Person #2 were improperly searched, as neither can fairly be said to have provided the requisite consent to be searched. (CFPM agrees)

Finding #7: The Complaints Commission finds that the searches of the young women were excessive. (CFPM agrees)

Finding #8: The Complaints Commission finds that better communication between the Military Police members themselves, as well as with the youths, would have ensured a more consistent and better understood approach. (CFPM agrees)

ISSUE #IV: Did the subject Military Police members properly advise the parents and/or guardians of the subject youth persons involved in this matter?

The Youth Criminal Justice Act provides, pursuant to s. 26(1) that a young person's parents are to be contacted / advised when a youth is formally arrested and held pending an appearance in court. This obligation existed for the young person who was arrested and not for the young persons who were released without being arrested or charged following the search. Again, as earlier referred to, communication with parents of the young persons in this case, while not mandatory, may have facilitated better and enhanced mutual understanding in this matter.

Finding #9: The Complaints Commission agrees with the Deputy Provost Marshal Professional Standards that the subject Military Police members did not fail to comply with the provisions of section 26 of the Youth Criminal Justice Act. However, communication with the parents of the young persons would have facilitated a better understanding in this matter. (CFPM agrees)

ISSUE #V Did the subject Military Police members contravene the Military Police Professional Code of Conduct, paragraph 4(1) by engaging in conduct that is likely to discredit the Military Police or that calls into question the members ability to carry out their duties in a faithful and impartial manner?

The Complaints Commission finds that the subject members did not contravene the Military Police Professional Code of Conduct. At the outset of addressing this critically important issue it is recognized that the subject Military Police members acted in good faith throughout these events.

It is equally recognized and acknowledged that this was undoubtedly a difficult and upsetting experience for the young people who were detained and searched. In discussions with representatives of the office of the DPM PS, consensus emerged on this point and additionally, that it would be appropriate for letters of apology to be sent to the families of Young Person #1 and Young Person #2. Both of these young people present themselves as intelligent, pleasant and respectful. Their concerns are supported by those of their parents who have been actively involved in this process. It is my understanding that letters have now been sent to the families of Young Person #1 and Young Person #2 and the office of the DPM PS is to be commended for this positive and constructive approach to a difficult situation.

Considerable credit is also to be given to the DPM PS and staff regarding the constructive analysis of the concerns about delay in the searches conducted, communications amongst the members about the level of search, and the particular role of individual youths.

The Complaints Commission finds that the searches conducted on the female youths were, in fact, excessive and not reasonable in the circumstances. A simple request to empty pockets or brief pat down of pockets would have been appropriate. As the Military Police policies require, due regard must be had for human dignity. The searches of the youths were clearly upsetting and disturbing to them.

It is significant that there is an acknowledgement that Cpl Boulet's search of the female youths may have been excessive. This is, of course, a matter of education and communication, and not bad faith. Every indication is that the subject Military Police members did not act with malice of any kind. The Complaints Commission ultimately concurs with the DPM PS that MCpl Thivierge could have ensured that his staff clearly understood that he was expecting only cursory searches to be carried out.

Finding #10: The Complaints Commission agrees with the Deputy Provost Marshal Professional Standards that the subject members did not contravene the Military Police Professional Code of Conduct as none of the Military Police members acted in bad faith despite their errors. (CFPM agrees)

The DPM PS Handling of the Complaints:

One further outstanding issue is the question of which Military Police members were considered to be subject members of the Professional Standards investigation. Certain of the subject Military Police members expressed concern to the Complaints Commission that they were not named as subject members in the Professional Standards investigation but were later named as such by the Complaints Commission. The Complaints Commission is of the view that all of the Military Police members involved in the detention and searches of the young persons, in this instance, should have been named as subject members to ensure that they were provided their right to respond to any potential criticism about their conduct.

In conferring with the Professional Standards investigator, the Complaints Commission was advised that the complaints were registered in relation to MCpl Thivierge. However, out of an abundance of caution, he interviewed all of the other Military Police members as subject members, recognizing that they were potentially also possible subjects of the complaint. This was an appropriate step to take. Nonetheless, given that the conduct of all of the Military Police members was examined during the Professional Standards investigation, they ought properly to have been notified, in writing and prior to being interviewed, that they were subject members of the Professional Standards investigation. This was not done.

This is an essential step in order to ensure they are provided natural justice and given an opportunity to respond to any potential adverse findings that could be made against them.

This is important in many respects in that certain Military Police members may have chosen not to make a statement if notified at the outset that they were subject members.

Finding #11: The Complaints Commission finds that all Military Police members involved in the detention and searches in relation to this incident should have been named as subjects of complaint at the outset of the Professional Standards investigation and prior to being interviewed. (CFPM agrees)

Recommendation #1: The Complaints Commission recommends that the Canadian Forces Provost Marshal provide direction to the Professional Standards unit for future cases to carefully examine who should be named as subject members and advise those persons at the earliest possible stage in the investigation. (CFPM agrees and accepts recommendation)

In his Notice of Action, the CFPM noted his agreement for this recommendation. The CFPM indicated that efforts are being made by the DPM PS to ensure that Professional Standards investigators clearly identify and advise as quickly as possible all subject members of any investigation. The Interim Chairperson is very pleased with this undertaking.

VI. CONCLUSION

In preparing this report careful consideration has been given to the Professional Standards investigation, interviews with Youth Person #1, Young Person #2, and their respective parents, as well as the applicable legislation.

Consensus emerges respecting a number of critically important issues. First, it is clear that all of the subject members acted in good faith and in accordance with their individual understandings of their duties and obligations. The DPM PS report fairly identifies the areas of concern relating to communication and coordination of their efforts in relation to the detention and search of youths on April 24, 2004. Further education of the Military Police on the power of search as an element in their annual training is a recommendation made by the DPM PS with which the Complaints Commission concurs. This will not only ensure that proper direction is provided to the Military Police members who are the subject of these complaints, but will also serve to reach a wider audience to prevent similar unfortunate incidents from occurring.

The equally important conclusion which emerges is that both Young Person #1 and Young Person #2 were greatly impacted by their detention and search. Neither youth was in possession of narcotics or engaging in any type of illegal activity. The events of April 24, 2004, were shocking and upsetting for these young people and their families. They are to be commended for raising their concerns in an appropriate and constructive fashion. The apology letters sent by the DPM PS to the two families will no doubt assist them in maintaining confidence in our public institutions.

As a final note, the Interim Chairperson wishes to thank the CFPM for his Notice of Action. The Interim Chairperson is very pleased that the CFPM agreed with all findings and the recommendation made in relation to this investigation.

VII SUMMARY OF THE COMPLAINTS COMMISSION'S FINDINGS

Finding #1: The Complaints Commission finds that the Military Police Policies and Technical Procedures are sufficiently detailed in relation to detention and search and are consistent with the Canadian Charter of Rights and Freedoms, the Youth Criminal Justice Act and the Controlled Drugs and Substances Act. (CFPM agrees)

Finding #2: The Complaints Commission agrees with the Deputy Provost Marshal Professional Standards' finding that the subject Military Police members had jurisdiction to intervene in the noted matter. (CFPM agrees)

Finding #3: The Complaints Commission finds that the young persons were detained and their rights to counsel pursuant to section 10(b) of the Charter and section 25 of the Youth Criminal Justice Act were breached in this case. (CFPM agrees)

Finding #4: The Complaints Commission agrees with the Deputy Provost Marshal Professional Standards that the subject members did not breach the rights of the young persons under section 26(1) of the Youth Criminal Justice Act by not advising their parents. However, best police practices, proper public relations, and communication would have merited notification of the parents in the present case. (CFPM agrees)

Finding #5: The Complaints Commission agrees with the Deputy Provost Marshal Professional Standards that the young persons in this case were not improperly detained. They should have, however, been advised of their Right to Counsel. (CFPM agrees)

Finding #6: The Complaints Commission finds that Young Person #1 and Young Person #2 were improperly searched, as neither can fairly be said to have provided the requisite consent to be searched. (CFPM agrees)

Finding #7: The Complaints Commission finds that the searches of the young women were excessive. (CFPM agrees)

Finding #8: The Complaints Commission finds that better communication between the Military Police members themselves, as well as with the youths, would have ensured a more consistent and better understood approach. (CFPM agrees)

Finding #9: The Complaints Commission agrees with the Deputy Provost Marshal Professional Standards that the subject Military Police members did not fail to comply with the provisions of section 26 of the Youth Criminal Justice Act. However, communication with the parents of the young persons would have facilitated a better understanding in this matter. (CFPM agrees)

Finding #10: The Complaints Commission agrees with the Deputy Provost Marshal Professional Standards that the subject members did not contravene the Military Police Professional Code of Conduct as none of the Military Police members acted in bad faith despite their errors. (CFPM agrees)

Finding #11: The Complaints Commission finds that all Military Police members involved in the detention and searches in relation to this incident should have been named as subjects of complaint at the outset of the Professional Standards investigation and prior to being interviewed. (CFPM agrees)

VIII SUMMARY OF THE COMPLAINTS COMMISSION'S RECOMMENDATION

Recommendation #1: The Complaints Commission recommends that the Canadian Forces Provost Marshal provide direction to the Professional Standards unit for future cases to carefully examine who should be named as subject members and advise those persons at the earliest possible stage in the investigation. (CFPM agrees and accepts recommendation)

Ottawa, November 30, 2005

_____________________________
Henry Kostuck
Interim Chairperson
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