Conduct Case MPCC‑2016‑039 Summary
The complainant attended a Military Police Unit in November 2015 to report that she had been a victim of harassment while she was a reservist. During a voluntary interview, the complainant verbally provided a number of examples of alleged harassment and furnished a number of documents intended to support her allegations.
In response, the Military Police (MP) advised her that her complaint of harassment did not fit within the Military Police mandate to investigate and so her file would be closed. She replied that the conduct complained of did fall within the Code of Service Discipline, set out in Part III of the National Defence Act (NDA). She was provided with the option of contacting the Canadian Armed Forces Ombudsman or the Human Rights Commission.
The complainant then sent an email to the Military Police Complaints Commission (Commission) asking why the Military Police were not investigating her allegations of harassment. In her email, she cited the definition of harassment in section 264 of the Criminal Code. The Commission referred the complaint to the Canadian Forces Provost Marshal (CFPM) for an initial review and disposition. The Professional Standards (PS) office of the CFPM informed the complainant that it had consulted on the definition of criminal harassment in the Criminal Code as well as other definitions of harassment. It told the complainant that the substance of her complaint did not meet the definition of criminal harassment as that offence is set out in section 264 of the Criminal Code. It further informed the complainant that the actions of Military Police members were proper. PS suggested other possible avenues the complainant could pursue with her harassment complaint, such as a Canadian Armed Forces (CAF) Harassment Investigation, the CAF/Department of National Defence (DND) Ombudsman or making a human rights complaint. PS then cited section 250.28(2)(c) of the National Defence Act in saying that no further investigation into the matter was required.
The complainant then referred her complaint to the Commission for review. The Commission identified three subjects in the conduct complaint and two allegations. One allegation is that an individual Military Police member failed to investigate the complainant’s allegations of criminal harassment and applicable Code of Service Discipline offences. The other allegation is that the Military Police member’s chain of command failed to order that an investigation be conducted into the complainant’s allegations of criminal harassment and applicable Code of Service Discipline offences.
Upon receipt of the complainant’s request for review, the Commission requested disclosure of all relevant Military Police file materials from the CFPM. Following an initial assessment of the complaint, the assigned investigator conducted a detailed review of the materials received from the CFPM, in order to assess whether the Commission needed to take additional investigative steps.
Having reviewed the Commission’s independent Investigative Assessment, as well as the MP and PS file materials – including the material provided to the MP and PS by the complainant – the Chairperson of the Commission determined that no additional investigation was required in order to dispose of the complaint. She did, however, request that research be conducted on whether allegations of workplace harassment could result in Code of Service Discipline charges being laid.
Following a review of the research, the Commission found that this complaint could not be sustained for two main reasons. One was that the conduct complained of, even if every allegation were taken to be true, did not rise to the level of criminal harassment as set out in the Criminal Code. The other reason was that the allegations so lacked in consistency and particulars that not even a lesser standard of harassment could be met. The reasonableness of the decision not to pursue this matter criminally was bolstered by the fact that numerous possible administrative remedies were readily available. The Commission has made one recommendation, namely that Military Police members set out fully and clearly the reasons why they have exercised their discretion to investigate a matter or decided not to do so.
In response to the Commission’s Report, the CFPM accepted the Military Police Complaints Commission of Canada’s (MPCC) findings, and accepted in part the MPCC’s recommendation, stating that while he agreed with the Commission that direction regarding the documenting of investigative discretion is required, since the original investigation that led to this complaint was concluded, a new Canadian Forces Military Police Group Order has already been put into effect which addresses the concerns raised by the Commission.
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