Facts and Complaint
The military police were notified by another police force that some members of the Canadian Forces had been stopped and searched at a border crossing. A military police member contacted the other police force for further information and was told that no charges would be laid. The MP then advised the Canadian Forces National Investigation Service (CFNIS) of the details of the incident and the CFNIS began an investigation. There was some urgency as the CF soldiers involved were scheduled for deployment and the chain of command was concerned that the deployments would be held up or cancelled. In the meantime, the soldiers’ chain of command continued with its administrative investigation which raised some concerns with regard to how such matters should be handled. An interference complaint was then lodged with the Commission alleging that an officer in the soldiers’ unit had interfered with an ongoing Canadian Forces National Investigation Service criminal investigation by conducting a concurrent administrative process. The complaint alleged that the officer interfered by conducting two interviews and requesting further information from an outside law enforcement agency even though he was aware of CFNIS involvement in the same matter.
Findings and Recommendations of the Member of the Complaints Commission
The Commission Member found that the officer did interfere with the Canadian Forces National Investigation Service investigation by contacting an outside agency and then determining that two of the soldiers were, in fact, available for deployment.
Generally, investigations by the Military Police should take precedence over administrative investigations which should be held in abeyance until completion of the criminal investigation. However, the Commission Member also recognized that certain urgent, operational situations may require an alternative response. It was clearly the officer’s role to conduct an administrative process and he could not be faulted for contacting the soldiers for that purpose. In this case, the officer had the responsibility to determine whether or not the soldiers could be cleared for their impending deployment and it was his role to contact the soldiers involved. The officer advised the CFNIS of his intentions and did not conduct “
interviews” as alleged; rather he contacted the three soldiers by telephone to arrange for information gathering which was appropriate. Had the officer’s actions stopped after contacting the soldiers, the Commission would have found that he did not interfere with the investigation. However, the officer arranged a meeting with an agent from the Canada Border Services Agency and obtained documentation. He also made a finding regarding two of the soldiers. The Commission Member noted that contact with outside agencies in the context of a law enforcement matter is usually best left to the Military Police and that criminal investigations usually take precedence. As well, it was noted that the officer had dealt with CFNIS in the past and had a fairly good understanding of the various roles and responsibilities of CFNIS and the Military Police.
Despite the finding that interference took place, the Commission Member found that several mitigating factors existed:
- The officer was responsible for carrying out the administrative investigation;
- His primary goal was to determine, on an urgent basis, whether or not the soldiers could be cleared for deployment;
- He advised the CFNIS of his intention to conduct an administrative investigation upon being notified that the CFNIS could not immediately investigate the matter;
- He was acting in good faith, at all times, as he was attempting to resolve the imminent deployment situation;
- The CFNIS was unable to carry out the criminal/service investigation immediately due to resource problems and prioritization of files; and
- The officer did not alter, in any significant manner, the course of the CFNIS investigation.
The Commission Member recommended that the Chief of Defence Staff examine the necessity of a policy or directive for the Chain of Command and the Military Police to clarify when concurrent investigations ought to be permitted.
Response of the Chairperson following the Notice of Action of the Chief of Defence Staff
The CDS expressed concern for the characterization of “
mitigating factors”. The CDS took the position that there are two types of interference; namely, improper and proper interference. Based on these facts, he would have characterized the interference as “
proper” interference, ending the matter in favour of the officer. He argued that in certain circumstances, interference would be justified, and therefore proper. The temporary suspensions of a military police investigation for national security reasons or to meet an urgent operational demand are examples.
It is the Interim Chairperson’s view that this reading is contrary to the spirit and intent of the legislation and could result in an overly exclusive interpretation of the concept of interference. Any interference or intervention in police investigations, other than a superior military police member properly exercising his supervisory duties, is improper. Therefore, the Canadian Forces should be cautious in their interpretation since it strikes at the heart of the independence of the Military Police.
In this case, the effects of the interference were minimal and, in light of the numerous mitigating factors, the Complaints Commission found that the officer should not be subjected to any consequences. In his Notice of Action, the CDS noted his agreement that the officer should not be subjected to any consequences. The CDS also noted the need for greater consensus with respect to what constitutes interference and how the merits of an interference complaint should be assessed.
Even though the Interim Chairperson and the CDS could not agree in this instance on the definition of interference, it is through future discussions such as these that the Complaints Commission and the Canadian Forces will hopefully come to a more consolidated approach to defining interference.
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