Conduct Case MPCC‑2017‑015 Summary
The complainant was a Reserve Force officer who worked in the Cadet program. He became a prosecution witness in a sexual assault case against a fellow officer in the Cadet Instructor Cadre (CIC) at the Cadet Camp where he worked. The alleged sexual assault was against another CIC officer. The complainant played a role in this alleged victim coming forward and making her complaint to investigators of the Canadian Forces National Investigation Service (CFNIS).
The arrest and charging of the fellow CIC officer for sexual assault on a colleague prompted the chain of command (CoC) responsible for the Cadet Camp to launch an internal administrative investigation. This process discovered a number of other female CIC members who had allegedly been subjects of the accused’s sexual misconduct. One of these agreed to report her story to the CFNIS, while the others preferred not to reopen the issue. As a result, the accused CIC officer was charged with a second sexual assault. The two cases were tried together and the officer was acquitted.
However, both prior to and during the trial, various members of the complainant’s CoC sought information from him, which the complainant considered to be inappropriate. Indeed, he believed that these efforts amounted to interference with – or intimidation of – a witness, and therefore, witness tampering.
The regional Cadet Program Command wanted to speak with him regarding the conduct of the accused officer and related matters. They also wanted the complainant to share copies of certain letters he had written to the CFNIS lead investigator on the sexual assault case. However, the requested meetings were also related to matters personal to the complainant, which were the subject of an outstanding grievance.
The complainant was not comfortable meeting with his commanding officer (CO) to discuss these issues, or with sharing the letters, as the sexual assault trial was still pending. The complainant contacted the CFNIS investigator on the sexual assault file for guidance. The investigator initially indicated the complainant should simply tell his CoC that the matter was still before the courts. However, the complainant’s CoC persisted in seeking the information. The complainant’s CO also advised him that he was relieved of duty until such time as they met to discuss these matters and so the complainant went back to the CFNIS investigator. This time, after consulting with a superior CFNIS officer, the investigator was able to provide more specific guidance to the complainant. The CFNIS investigator advised that, while the letters the complainant had sent to him at the time of the sexual assault investigation should not be shared, as they were considered evidence in an outstanding case, the complainant was free to discuss the other issues with his CoC.
Not satisfied with this guidance, the complainant sought the advice of a regional legal advisor from the office of the Judge Advocate General (JAG). She advised that it would be inappropriate for a CO to discuss matters pertaining to an outstanding sexual assault prosecution, and that she did not think that the complainant could be legitimately disciplined for declining to attend such a meeting.
A number of months later, as a result of seeing some wording in a Canadian Armed Forces (CAF) document related to his grievance, the complainant became concerned that the JAG legal advisor had been incorrect in her assessment regarding the meeting which his CoC had sought with him. As a result, he questioned her professionalism and advised her that he would be contacting her professional governing body. In response, among other things, the legal officer reminded the complainant that he was also vulnerable to scrutiny by his professional governing body.
A year later, the complainant, now released from the CAF, received further email contact from the Cadet program CoC, this time from the national command level, rather than his former regional CO. The national Cadet command were pursuing an administrative inquiry into various issues about the Cadet Camp, including its local CoC. These were issues which the complainant had previously tried to raise with his CoC. A meeting was arranged to discuss the issues of concern.
At this meeting, the assigned CoC officer conducting the inquiry apparently mentioned the name of the second sexual assault complainant. Moreover, following the meeting, the inquiry officer continued to contact the complainant by email, even after being advised by the complainant that he did not wish further contact.
However, even before the complainant had been contacted by the national Cadet program CoC, the CFNIS investigator, who is the subject of this conduct complaint, reached out to the complainant regarding his concerns about witness interference by his CoC. The complainant had written a letter expressing these and other concerns to the CAF Strategic Response Team on Sexual Misconduct; and the CFNIS was notified of this letter.
The complainant responded to the subject CFNIS investigator by providing substantial correspondence outlining the issues of alleged witness interference and intimidation described above.
After reviewing the material provided by the complainant, the subject CFNIS investigator advised that he had concluded that the information did not provide a reasonable basis for further criminal investigation.
Dissatisfied with the response from the subject CFNIS investigator, the complainant filed a conduct complaint.
The Deputy Commander (DComd), Canadian Forces Military Police Group, with responsibility for Military Police Professional Standards, reviewed the complaint as well as related information provided and referenced by the complainant. After this review, the DComd dismissed the complaint without further investigation on the basis of paragraph 250.28(3)(a) of the National Defence Act (complaint deemed “frivolous, vexatious or made in bad faith”).
The complainant requested a review by the Military Police Complaints Commission (MPCC). The MPCC investigated two allegations. The first allegation was that the subject CFNIS investigator was wrong to decline to pursue a CFNIS investigation into the complainant’s concerns about witness interference, etc., namely: (a) improper attempts by the complainant’s immediate CoC to communicate with him about problems at the Cadet camp; (b) intimidation by the JAG legal advisor; and, (c) unwanted contact by the national Cadet command and their inquiry officer’s reference to the name of one of the sexual assault complainants.
The second allegation was that the subject CFNIS investigator should have disclosed these alleged incidents of witness interference to the defence counsel of the accused CIC officer.
After thoroughly reviewing the voluminous and complex documentation provided by the complainant, as well as the CFNIS file material disclosed to the MPCC, the Commission found both allegations to be unsubstantiated.
Regarding the impugned interactions, and attempted interactions, between the complainant and his immediate CoC, the MPCC noted that the complainant had, at the time, consulted with the relevant CFNIS investigator on the sexual assault file, and received guidance as to what he could share with them. Therefore, it was entirely reasonable that the subject CFNIS investigator, confronted with the same issues more than a year later, would not open a criminal investigation.
It was also reasonable for the CFNIS investigator not to open a criminal investigation regarding the JAG legal advisor’s statement to the complainant about his professional licencing body. Nothing in the statement, or the context in which it was made, appeared to suggest either the criminal offence of intimidation – which is aimed at threats involving violence – or the purpose of dissuading the complainant from providing evidence in the court case – which would have been relevant to an obstruction of justice charge.
Finally, with respect to the unwanted contact by the national Cadet command and their inquiry officer’s reference to the name of one of the sexual assault complainants during a meeting, the MPCC concluded that it was reasonable for the subject CFNIS investigator not to investigate these matters since:
- The evidence portion of the sexual assault trial was concluded;
- The complainant had already taken his release from the CAF; and
- The Criminal Code prohibition on revealing the names of sexual assault complainants applies to publication and not to private conversations.
Thus the first allegation was unsubstantiated.
In light of its findings on the first allegation, the MPCC determined that there were no incidents of improper witness contact which would have required disclosure to the defence in the sexual assault prosecution. Therefore the second allegation was also unsubstantiated.
In response to the Commission’s Report, the Canadian Forces Provost Marshal accepted the MPCC’s findings in this matter.
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