Facts and Complaint
The complainant, a military police member, was driving an unmarked MP vehicle off base on a provincial highway when he pulled over a civilian motorist for speeding. The member then contacted the local civilian police who arrived and issued a ticket for speeding based on the complainant’s information. When the complainant informed his supervisor of the incident the supervisor referred the matter to the DPM PS who launched an administrative investigation. During this investigation alleged discrepancies were noted between the copies of the notebook entries provided by the complainant and the information provided by the complainant to the local civilian police. The matter was then referred to the CFNIS detachment. Arrangements were made to interview the complainant and on the appointed day he arrived at the detachment with his lawyer. He requested that his lawyer be present during the interview but the investigator would not allow this; he did, however, offer to let the lawyer observe the interview on a video monitor located in another room. The investigator then decided not to proceed with the interview. Subsequently, the complainant was ordered by his chain of command to produce his MP notebook for evidentiary purposes. The complainant complied under protest, and he was then charged with making a false entry and altering an official document contrary to the NDA.
The complainant submitted a conduct complaint alleging the following: he was denied access to his lawyer during an interview; he was not informed of the purpose of the interview; attempts were made to interview him after he had asserted his right to silence; and he was ordered to produce his notes which he alleges violated his right to silence.
Decision of the Canadian Forces Provost Marshal
The DPM PS investigation found all the allegations to be unfounded. It was noted that a subject has no legal right to have counsel or another person present during an interrogation; the complainant was not under arrest or being detained and therefore had no legal right to be informed before the interview of any specifics regarding the allegations under investigation; military police policies require MP members to disclose their notebooks to superiors and supervisors, and the investigator’s actions were in accordance with applicable policies and procedures and did not contravene the MP Professional Code of Conduct.
Findings and Recommendations of the Chairperson of the Complaints Commission
The complainant did not have a constitutional right to have counsel present at the police interview. He was neither under arrest nor detained and had voluntarily attended for an interview. However, the Chair indicated that he would prefer that investigators evaluate the net benefit of an interview on a case by case basis. Investigators should not be too quick to forego potentially relevant evidence for purely technical reasons. The complainant knew the general nature of the interview, but was not advised of the specific interests regarding the alleged discrepancies between his notebook entries and the information he provided to the civilian police officer who attended at the traffic stop. However, investigators are not required to provide subjects with advance notice of specific areas of questioning prior to conducting an interview. As for the continued attempt to interview the complainant, the Chair found that investigators were only attempting to obtain the complainant’s notes from him as they were critical to the investigation. The complainant was not answering the investigators’ call and they therefore continued to try to contact him. The complainant took exception to the fact that he was ordered to turn his notes over to the investigators as he argues that this constitutes an involuntary statement. However, given that MP policies specify that notebooks “
are the property of the CF and shall be stored as evidence” it is clear that the notes did not belong to the complainant. The policies also provide that MPs must disclose the contents of their notebooks to certain individuals (supervisors, court officials, etc.). As such, the Chair found that the complainant’s right against self-incrimination (right to silence) was not violated.
Chairperson’s Reply following the Canadian Forces Provost Marshal Notice of Action
The Chair noted that the CFPM accepted the findings and recommendations relating to this complaint.
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