Conduct Case Summary MPCC‑2017‑055
The complaint in this matter was lodged on November 27, 2017, concerning the alleged recording of a telephone conversation the complainant had that day with a Military Police member. In an email to the Professional Standards Branch of the Canadian Forces Provost Marshal (CFPM), the complainant stated that she spoke to a Military Police member to lodge a complaint about other Military Police members and their actions on November 20, 2017. At the end of the conversation, she alleged the Military Police member informed her that it was being recorded. The complainant objected to the recording, stating that the recording of a conversation must be acknowledged by the parties to it prior to the recording taking place. She wished the recording of the conversation to be destroyed and all communications with her to be in writing.
On December 11, 2017, the Professional Standards Branch of the CFPM wrote to the complainant and directed her to subsection 184(1) of the Criminal Code which reads: “Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.” But there are numerous exceptions to this blanket prohibition, including paragraph 184(2)(a) which reads: “Subsection (1) does not apply to a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it.” Professional Standards concluded that the intended recipient of the communication (the Military Police member) was entitled to record it and was not obliged to inform the complainant of his doing so. Given that one party to the conversation had consented to it being recorded, Professional Standards concluded that no criminal offence or misconduct had been committed. It therefore informed the complainant that there would be no further investigation of the complaint as per paragraph 250.28(2)(c) of the National Defence Act (NDA).
On December 18, 2017, the complainant wrote to the Chairperson of the Military Police Complaints Commission (MPCC) to object to the lack of investigation into her complaint by the CFPM. In her letter, the complainant stated that, other than in exceptional circumstances, the police must obtain prior authorization from a judge by way of a warrant before recording private conversations. She also wanted to know when the remainder of her complaint sent on November 27, 2017, would be addressed.
The MPCC identified one subject of the conduct complaint and one allegation. The subject of the complaint is the Military Police member who spoke with the complainant on the telephone and, at the end of the conversation, is said to have informed the complainant that it was being recorded. The allegation is that the member improperly recorded the complainant’s telephone conversation by not advising her in advance that he was doing so.
Having reviewed the file materials, the MPCC determined that an investigation was required in order to determine why there was no recording provided to the MPCC of the November 27, 2017, telephone conversation between the complainant and the subject Military Police member. Subsequent inquiries revealed that the subject Military Police member denied that any recording was made of his telephone conversation with the complainant on November 27, 2017. He further denied that he told the complainant he had recorded their conversation. Further to its inquiry, the MPCC was advised by Professional Standards in a letter dated February 14, 2018 that “there is no telephone recording between the complainant and the Military Police member as calls are not recorded when transferred from the dispatch phone to the patrol phones.” The MPCC was left with two conflicting versions on whether or not the complainant’s telephone conversation with the subject Military Police member on November 27, 2017 was recorded. Confirmation provided by Professional Standards that such calls are not recorded corroborates the version of the subject Military Police member. Therefore, on a balance of probabilities, the MPCC found this allegation to be unsubstantiated.
The MPCC went on, however, to consider the question that even if the Military Police member did record the conversation with the complainant, would this constitute misconduct? The MPCC found that no misconduct could be found even if the conversation had been recorded. While section 84 of the Criminal Code imposes a general prohibition on the interception (recording) of private communications, paragraph 184(2)(a) of the Criminal Code provides an exception where a person has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it. In this instance, had the conversation been recorded by the subject Military Police member, the intended recipient of the communication would have consented to its being recorded.
The MPCC further determined that the Canadian Charter of Rights and Freedoms right to be secure against unreasonable search or seizure would not apply in this instance if a recording had been made since it was not done for a law enforcement purpose as there was no indication the complainant had committed or was about to commit a criminal offence.
In his Notice of Action, the CFPM accepted the MPCC’s findings without further comment.
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