Final Report on the Fynes Public Interest Hearing (MPCC 2011‑004) - Volume 3

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Table of Contents

  1. Overview
  2. The Hearing Process
  3. Narrative
  4. The Investigations
    1. 4.0 The Subjects of the Complaint: Role, Involvement and Background
    2. 4.1 The 2008 Investigation
      1. 4.1.1 Investigating the Sudden Death
      2. 4.1.2 Investigating Negligence
      3. 4.1.3 The Investigation Plan
      4. 4.1.4 The Concluding Remarks
      5. 4.1.5 Supervision and Recordkeeping
      6. 4.1.6 Search Warrants
      7. 4.1.7 Return of Exhibits
      8. 4.1.8 The Quality Assurance Review
      9. 4.1.9 The Consequences of Inexperience
    3. 4.2 The Suicide Note Left by Cpl Langridge
    4. 4.3 The 2009 PNOK Investigation
    5. 4.4 The 2010 Criminal Negligence Investigation
    6. 4.5 CFNIS Interactions with the Fynes
    7. 4.6 CFNIS Independence and Impartiality
  5. Findings
  6. Recommendations
  7. The Military Police Response
    1. 7.0 The Military Police Response
    2. 7.1 The Notice of Action | PDF version (390 KB) – as released March 10, 2015
  1. Appendices
    1. Glossary of Terms / Acronyms used throughout this Report
    2. Decision to Conduct a Public Interest Investigation – April 29, 2011
    3. Decision to Hold a Public Interest Hearing – September 6, 2011
    4. Decision to Recommend Funding for Legal Representation for the Complainants – October 26, 2011
    5. Publication Ban Order – May 17, 2012
    6. Ruling on Motion by Complainants to Issue Summons to Appear – June 14, 2012
    7. Decision to Recommend Funding for Legal Counsel for the Complainants to Prepare Closing Submissions – October 30, 2012
    8. Ruling on Request to Comment on the Interim Report – November 29, 2012
    9. Notice of Action and related correspondence | PDF version (22 MB) – as released March 10, 2015

V. Findings

Allegations Relating to Independence and Impartiality

1. The NIS investigations were not conducted in an independent and impartial manner. NIS lacks the independence, on a structural level, to conduct such investigations.

The Commission finds this allegation to be UNSUBSTANTIATED.

The Commission saw no evidence supporting this allegation. The Commission has identified deficiencies in all three investigations conducted in this case.Footnote 5046 However, there is no evidence any of these deficiencies were the result of lack of independence or bias on the part of the CFNIS members involved or the CFNIS as an institution.Footnote 5047 Rather, the deficiencies largely resulted from inexperience, faulty assumptions and inadequate supervision.

The evidence provides no indication of any interference or attempt by CF members to dictate or influence the conduct of the three CFNIS investigations or their ultimate conclusions. There is also no evidence of any bias or desire to protect CF interests having influenced the conduct of the investigations or the conclusions reached.Footnote 5048

The Commission has noted some of the events in this case did raise concerns about maintaining confidence in the CFNIS’ independence. In particular, the failure of the CFNIS members involved in the 2009 and 2010 investigations to conduct more extensive investigations, after they had obtained and reviewed the CF’s internal investigations into the same matters, could impact on the CFNIS’ ability to demonstrate its independence.Footnote 5049 However, the evidence did not demonstrate the review of the CF investigations actually impacted the conduct of the investigations or the conclusions reached.Footnote 5050

There was no evidence indicating the CFNIS, as an institution, lacked the independence to conduct the investigations.Footnote 5051 However, some of the policies and processes in place give rise to concerns about the CFNIS’ ability to maintain its independence. In particular, it was found the CFNIS does not have final decision-making authority to refuse to release information that might impact on ongoing investigations or police methods.Footnote 5052 However, there is no evidence information that could compromise CFNIS investigations or methods was in fact released despite the CFNIS’ objection.Footnote 5053 As such, there is no evidence the policies and processes impacted on CFNIS independence in practice.

2. The 2008, 2009 and 2010 investigations were aimed at exonerating the Lord Strathcona's Horse (Royal Canadians) regiment (LDSH) Chain of Command and the Canadian Forces (CF) more generally of any responsibility for their failure to prevent Cpl Langridge’s death and for the manner in which the complainants were subsequently treated.

The Commission finds this allegation to be UNSUBSTANTIATED.

There is no question all three investigations were incomplete and left many questions unanswered.Footnote 5054 However, there is no evidence these deficiencies were caused by any bias on the part of the members involved, nor that the investigations were aimed at exonerating anyone.Footnote 5055 In order to reach a contrary conclusion, the Commission would be required to find there was a conspiracy commencing with the front line investigators up to the highest ranking CFNIS members. Such planning and thought processes were not presented in any fashion in this case.Footnote 5056

On the contrary, the evidence shows the CFNIS members all sought to complete their tasks to the best of their ability. There is no evidence indicating any dishonesty or inappropriate motivations on the part of any of the CFNIS members involved in the investigations.Footnote 5057 Further, the evidence reveals many of the events that led the complainants to believe the investigations were biased, did not, in fact, happen as the complainants believed they had.Footnote 5058

3. The 2008 Sudden Death investigation report contained findings that were inaccurate, that the investigator was not qualified to make, and that were aimed at attacking Cpl Langridge’s character and exonerating CF members of any wrongdoing or liability.

The Commission finds this allegation to be SUBSTANTIATED IN PART.

The Commission finds the Concluding Remarks for the 2008 investigation contained information that was inaccurate or not supported by the evidence uncovered during the investigation. They contained a statement indicating Cpl Langridge’s addiction issues had caused him to suffer from mental health issues, which the investigator was not qualified to make, and which was not supported by the evidence.Footnote 5059 The revised Concluding Remarks authored by the supervisors for the 2008 investigation continued to include information not supported by the evidence about Cpl Langridge’s mental health and addiction issues.Footnote 5060 The Concluding Remarks also included a comment indicating Cpl Langridge’s death occurred despite the structure and support provided by his Unit. This conclusion was not supported by the evidence and may well have been inaccurate.Footnote 5061

However, there is no evidence the statements were aimed at attacking Cpl Langridge’s character or at exonerating CF members. On the contrary, the evidence indicates the CFNIS members involved had no improper motivations or bias and no intent to attack Cpl Langridge’s character or exonerate the CF.Footnote 5062

The Commission notes the Concluding Remarks were modified in 2010 following the Fynes’ complaints during meetings with CFNIS members.Footnote 5063 In recognition of the great distress these Concluding Remarks caused the complainants, all objectionable statements were removed. However, there was no recognition by the CFNIS or its members that the original Remarks were inaccurate or unsupported by the evidence.Footnote 5064

4. The 2008 Sudden Death investigation was overly intrusive in light of its initial aim of determining the cause of death. Obtaining and including in the file Cpl Langridge’s medical records was unnecessary for this purpose.

The Commission finds this allegation to be UNSUBSTANTIATED.

The Commission is satisfied it was both relevant and necessary for the purposes of this investigation to obtain Cpl Langridge’s medical records.

Those records had relevance to the sudden death investigation. They could be used to confirm suicide as the most likely cause of death because they contained information about Cpl Langridge’s mental health issues and past suicide attempts.Footnote 5065

The records were especially relevant to the investigation of potential negligence, which was also one of the stated goals set out in the Investigation Plan for the 2008 investigation.Footnote 5066 In this respect, the Commission has, however, found the investigation conducted into potential negligence was incomplete, and the medical records obtained were insufficient.Footnote 5067

The CFNIS members cannot be faulted both for doing too much and for not doing enough. The Commission has found more should have been done to investigate negligence but finds there is no support for the allegation the investigation was overly intrusive.

5. When they did start to examine the issue of the underlying causes of Cpl Langridge’s suicide in the 2008 investigation, NIS investigators failed to pursue this examination in a complete and unbiased manner. The investigators were selective in the information they obtained and included, and their selection was not objective or impartial. The conclusions drawn by the investigators were based on incomplete facts which contained numerous contradictions and discrepancies.

The Commission finds this allegation to be SUBSTANTIATED IN PART.

The Commission has found there was no bias on the part of the CFNIS members involved in the investigation. There is no evidence they selected information in a manner that was not objective or impartial.Footnote 5068

However, the evidence does reveal many aspects of the investigation were incomplete. Both in terms of investigating the cause of death and investigating potential negligence, the evidence reveals many obvious investigative steps were not taken and many clearly relevant documents were not obtained.Footnote 5069 Hence, Cpl Langridge’s parents and common-law spouse were never interviewed; Cpl Langridge’s medical records from civilian hospitals were never obtained; medical personnel from civilian hospitals and key care providers from the military medical community were not interviewed; members of Cpl Langridge’s CoC were not interviewed; the activities and whereabouts of Cpl Langridge during the days immediately preceding his death were not ascertained; and, the authenticity of his suicide note was never confirmed or investigated.Footnote 5070 Other steps directly relevant to ruling out foul play, including such obvious matters as confirming the lack of access to Cpl Langridge’s room by a third person, were also not pursued.Footnote 5071

These deficiencies were the result of poor planning and poor execution of the investigation as well as inadequate supervision. The Investigation Plan, in particular, was especially inadequate, and there was no intervention by supervisors to correct the situation.Footnote 5072

In terms of the conclusions drawn, there was sufficient evidence to support ruling out foul play at an early point in the sudden death investigation. As such, despite other deficiencies in this aspect of the 2008 investigation, it cannot be found the conclusions were based on incomplete facts.Footnote 5073 However, the contradictions and discrepancies in the facts relevant to potential negligence were not sufficiently investigated.Footnote 5074 Insofar as there were conclusions drawn in this regard, they were based on incomplete facts.Footnote 5075

6. The NIS investigators in the 2008 Sudden Death investigation met with CF members from the LDSH regiment prior to attending the scene. They were influenced by these meetings and discussions and this tainted the remainder of their investigation.

The Commission finds this allegation to be UNSUBSTANTIATED.

There is no evidence whatsoever to support this allegation. On the contrary, the evidence reveals the CFNIS investigators did not meet with members of the LDSH Regiment prior to attending the scene.Footnote 5076 Their investigation was not “tainted” by any such meeting or by any other event or discussions.Footnote 5077

When the CFNIS investigators arrived at the Base, they attended the MP guardhouse. There, they met with local MP members and, subsequently, with the ME investigator.Footnote 5078 At the scene, they also interacted with first responders including MP members and Base Firefighters.Footnote 5079 They met with LDSH members only after attending at and processing the scene and only for the legitimate purposes of conducting interviews in support of their investigation or discussing administrative matters related to Cpl Langridge’s property.Footnote 5080

As can be expected during the initial phases of any investigation, the CFNIS investigators encountered rumours and other unconfirmed information about Cpl Langridge and his last days in the course of their early interactions with MP members and witnesses. However, it is clear they recognized the speculative and fragmentary nature of such statements, and attempted, albeit without great success, to discern what, if any, truth lay behind them.Footnote 5081

7. NIS members involved in the conduct of the 2008 Sudden Death investigation provided inaccurate information to the Alberta Medical Examiner (ME) about whether Cpl Langridge was the subject of disciplinary action in the CF. This resulted in an inaccurate mention on the ME certificate that Cpl Langridge had “disciplinary issues.” NIS refused to make any attempt to have this inaccuracy corrected.

The Commission finds this allegation to be UNSUBSTANTIATED.

The evidence before the Commission has revealed the CFNIS investigators were not, in fact, responsible for the comment included in the ME Certificate. The information they provided to the ME investigator was accurate. When they provided preliminary or unconfirmed information, they specified the information had not been verified, and they offered further clarification when they obtained additional information.Footnote 5082

The mention of disciplinary issues included in the ME certificate was the result of the ME Investigator’s own interpretation and not of statements made by the CFNIS members.Footnote 5083 As such, the CFNIS cannot be faulted for not volunteering to provide assistance to the complainants in having the Certificate corrected. The complainants should have pursued this issue directly with the Office of the Alberta Medical Examiner.

8. The NIS and its members made inaccurate statements about where Cpl Langridge was residing immediately prior to his death. Those statements were aimed at exonerating the LDSH Chain of command of any responsibility and were examples of NIS participation in broader efforts by the CF to exonerate themselves from any responsibility.

The Commission finds this allegation to be UNSUBSTANTIATED.

The evidence reveals, during an interview with the complainants, one CFNIS member did discuss his belief – based on an initial review of the materials – Cpl Langridge did not reside in the Defaulters’ room at the time of his death.Footnote 5084 This information was not accurate.Footnote 5085 However, it is clear the statements were based on an honest misunderstanding, and the member made it clear he intended to verify the information.Footnote 5086

There were also inaccuracies in some of the notations about Cpl Langridge’s address included in the 2008 investigative file. The evidence shows these statements were in the nature of clerical errors.Footnote 5087

None of the statements made were aimed at exonerating the Regiment of responsibility, nor were they examples of CFNIS participation in any efforts to exonerate the CF from responsibility.Footnote 5088 In fact, the Commission has found no evidence of participation by the CFNIS in any such efforts.Footnote 5089

9. NIS members commented, during a meeting with the complainants, that a statement made by their Assisting Officer indicating that the complainants were “deceived, misled and intentionally marginalized in their dealings with DND and the CF was likely the result of Stockholm syndrome. This demonstrated a previously-held view by NIS members that any views critical of the CF must be wrong. Such views prevented NIS members from conducting independent investigations into the actions of CF members.

The Commission finds this allegation to be UNSUBSTANTIATED.

The CFNIS members adamantly denied making any comment related to ‘Stockholm syndrome’.Footnote 5090 The evidence before this Commission provides no confirmation of any such comment having been made.Footnote 5091 The recording for the meeting when the comment was alleged to have been made contains no trace of it.Footnote 5092 The recording was submitted to expert analysis by the Commission as a result of allegations by the complainants that the recording had been altered. That analysis confirms the recording was not altered.Footnote 5093

10. NIS agreed to participate in an intended briefing that was offered to the complainants by the CF and that was to include information about the CF Board of Inquiry, as well as about the CFNIS investigations. NIS failed to preserve its independence by failing to ensure that its police investigations were kept separate and distinct from other internal CF processes.

The Commission finds this allegation to be UNSUBSTANTIATED.

The Commission found no evidence a common briefing about the CFNIS investigations and the CF’s BOI was ever planned or offered to the complainants. The evidence reveals the only briefing offered to the complainants by the CFNIS related solely to the CFNIS’ own investigations.Footnote 5094

It appears the complainants’ impression there was a plan to provide a common briefing may have arisen as a result of their communications with Col Blais, who had been named as the point of contact to answer their questions on behalf of the CF.Footnote 5095 These communications included several discussions relating to the briefings or updates to be provided about the BOI and the CFNIS investigations. As the issues were discussed together, it may have appeared to the complainants the briefings would also be joined.Footnote 5096

Although the Commission has found there was no plan to provide a joint briefing, it also finds the communications with Col Blais about CFNIS issues opened the door to creating confusion about the CFNIS’ role and were problematic in terms of maintaining confidence in CFNIS independence.Footnote 5097

11. NIS participated in broader CF efforts to provide explanations and justifications in response to the complainants’ concerns, instead of conducting independent investigations in response to those concerns.

The Commission finds this allegation to be UNSUBSTANTIATED.

This allegation related to the complainants’ concerns about CFNIS participation in public affairs coordination with the CF. The evidence does not support a conclusion the CFNIS participated in efforts to present the CF’s perspective to the public. There is no evidence the CF exerted control or influence over the CFNIS’ public messages, nor is there any evidence the CFNIS modified its messages about its investigations to serve the CF’s interests or public relations strategy.Footnote 5098 In addition, the evidence indicates the CFNIS did not participate in a CF-wide Task Force constituted to advance the CF’s interests in civil litigation or to present the CF’s positions to the public.Footnote 5099

However, the CFNIS did participate in extensive public relations coordination involving other CF organizations. While the CFNIS generally retained control over the information released about its investigations and activities, the evidence reveals there were no formal policies or processes in place to protect the CFNIS’ independence in terms of its authority over the release of its information.Footnote 5100 This gives rise to concerns about maintaining confidence in CFNIS independence. The Commission has noted that having clear policies governing such matters, rather than relying on a general practice which may or may not be known or adhered to by all CF PAOs, would provide more effective safeguards.Footnote 5101

The evidence also reveals the CFNIS, in this case, often participated in preparing joint media response lines or public statements with other CF organizations.Footnote 5102 This was done because the case raised issues of concern to many different CF organizations. CFNIS messages were, at times, delivered by CF spokespersons, and messages related to the CF’s interests were, at times, included in the CFNIS’ own media lines.Footnote 5103 This risked creating confusion and impacted the CFNIS’ ability to demonstrate its independence.Footnote 5104

When the CF high command commented on the matter while it was still under investigation, because the CFNIS had not been careful to keep its public messages separate from those of the broader CF, there was a risk of creating an impression the CFNIS might be influenced by the positions taken by members of the CF CoC.Footnote 5105 The Commission has found the CFNIS does not have authority to prevent comment by the CF about matters it is investigating.Footnote 5106 However, the CFNIS can contribute to fostering greater confidence in its independence by keeping its own messages separate, not speaking on behalf of the CF, and not allowing the CF to speak on its behalf.Footnote 5107

12. Concerns raised by the complainants in discussions with CFNIS members (particularly, concerns about damages to Cpl Langridge’s vehicle while in CF custody) were discussed by NIS members with non-MP members of the CF (in particular, Land Forces Western Area). This was done for the purpose of participating in CF efforts to explain and justify their actions and not for the purpose of conducting an independent investigation.

The Commission finds this allegation to be UNSUBSTANTIATED.

The evidence before the Commission shows no inappropriate discussions took place between the CFNIS members and the LFWA CoC. The discussions that did take place were limited to legitimate information-sharing, and no details about the CFNIS investigation were provided.Footnote 5108

There was no impropriety in discussing the complainants’ administrative concerns with the LFWA CoC. These concerns were unrelated to the CFNIS investigation or mandate and were brought to the CF’s attention in an effort to assist the complainants.Footnote 5109 When they initially learned about these efforts, the complainants were grateful and did not express any concerns about lack of CFNIS independence or improper contacts with the CF.Footnote 5110 There is no evidence the discussions about these matters involved any attempt by the LFWA CoC to influence or interfere with the CFNIS investigation, let alone that this was the result.Footnote 5111

There is also no evidence the discussions were related to CFNIS participation in any CF efforts to explain or justify the CF’s actions. The LFWA CoC’s concern to ensure the CDS was aware of all ongoing investigations prior to issuing public comments was legitimate.Footnote 5112 The CFNIS Detachment OC’s own individual concern about the same issue was unrelated to the interests of the police investigation, but the evidence reveals it had no impact on the conduct of the investigations or the conclusions reached.Footnote 5113

13. NIS and its members failed to provide adequate and timely information to the complainants. NIS participated in broader Canadian Forces efforts to withhold information from the complainants. NIS members allowed non-MP members of the CF, including CF legal advisers, to influence or dictate their decisions about the type of information provided to the complainants and the manner in which this information would be provided. NIS members allowed a broader CF concern over potential litigation between the complainants and the CF to dictate or influence their decisions about the information to be provided to the complainants and the manner in which that information would be provided. In particular:
a) NIS improperly withheld information from the complainants about its 2008 Sudden Death investigation by providing a copy of the report which contained numerous redactions having no justification in law or privacy protection. The complainants were provided with an incomplete file with no specific or satisfactory explanation for withholding information.

The Commission finds this allegation to be SUBSTANTIATED IN PART.

The evidence has revealed many of the redactions applied to the copies of the 2008 investigation report provided to the complainants were difficult to understand or justify.Footnote 5114 The complainants were not provided with satisfactory explanations for the redactions.Footnote 5115 Many of the redactions were applied by a separate DND organization, the DAIP, while others resulted from the MP’s own failure to include certain information when compiling the file.Footnote 5116

The redactions applied are of concern, and what the evidence has revealed about the process in place for the release of CFNIS information also raises concerns.Footnote 5117 In particular, the fact the CFNIS does not have final decision-making authority to refuse to release information which may compromise its ongoing investigations or disclose police methods, can have an impact on the CFNIS’ ability to maintain and protect its independence.Footnote 5118 While this has not happened in practice, the existing process is of concern. In addition, delegating decisions about redactions to be applied to CFNIS information also raises concerns in terms of maintaining confidence in the CFNIS’ independence.Footnote 5119

However, the evidence does not support a conclusion the redactions were an attempt by the CFNIS or its members to withhold information from the complainants.Footnote 5120 There is also no evidence of CFNIS participation in any broader CF efforts to withhold information from the complainants in connection with the release of this report, nor of any concerns about the CF’s litigation interests having influenced decisions about the information released.Footnote 5121 While the CFNIS did allow non-MP members of the DND, namely the office of the DAIP, to make decisions about the release of the information contained in its investigative file, this was done pursuant to the process in place for the release of information and not with any improper intent or motivation.Footnote 5122

b) NIS members failed to provide regular updates to the complainants as promised. Communication was irregular and contained unexplained gaps of many months.

The Commission finds this allegation to be SUBSTANTIATED.

The evidence reveals the CFNIS members involved failed to provide timely and adequate information to the complainants throughout the course of all three investigations conducted. The complainants were never updated or briefed about the 2008 investigation until over a year after it was concluded.Footnote 5123 They were never provided with an explanation of the reasons for the CFNIS’ failure to disclose Cpl Langridge’s suicide note to them in a timely manner.Footnote 5124

When they did receive a briefing about the 2008 investigation, the complainants were provided general information and justifications but no specific information answering their questions. Commitments to provide information at a later date were not honored.Footnote 5125

During the 2009 and 2010 investigations, the complainants were not provided with the regular updates they had been specifically promised by the CFNIS members. A limited number of updates were initially provided, but then a period of five months elapsed without any update or contact.Footnote 5126 Even when they did receive updates, the complainants were given no substantive information about the investigations. In particular, the CFNIS members made numerous promises and commitments to the complainants about how the investigations would be conducted. The investigations were not conducted as promised, and the CFNIS members never advised the complainants about the change in approach.Footnote 5127

The Commission finds there was no acceptable justification for the failure to provide regular updates and substantive information to the complainants. The Detachment OC assumed responsibility for providing updates and information in connection with the 2009 and 2010 investigations but did not ensure they were, in fact, provided.Footnote 5128

c) NIS acquiesced and participated in an effort by the CF to prevent the complainants from communicating with CF members. The complainants received a letter advising them that, in light of anticipated litigation, they were not to communicate directly with any member of the CF. No exception was made to allow the complainants to communicate with the NIS members investigating their complaints and NIS members in fact did not contact the complainants during this period.

The Commission finds this allegation to be UNSUBSTANTIATED.

While the CFNIS’ failure to maintain contact with the complainants and provide them with information was serious, the Commission has found no evidence it was the result of influence by CF members or legal advisors. As well, the Commission has found it was not motivated by concern over the CF’s litigation interests. There is also no evidence the CFNIS participated in any CF efforts to withhold information from the complainants or to prevent the complainants from communicating with the CF.Footnote 5129

The evidence reveals the “no contact” letter sent by CF legal representatives in September 2010 had no impact on the CFNIS’ interactions with the complainants.Footnote 5130 The CFNIS was not involved in the decision to send this letter, nor were they consulted about it or even aware of it. Had they known about the letter, the evidence indicates the CFNIS members would not have viewed it as precluding them from contacting the complainants. On its face, it is also doubtful the CF’s correspondence could fairly be interpreted as seeking to limit or limiting the complainants’ contact with the CFNIS.Footnote 5131

d) NIS cancelled a planned verbal briefing on the 2009 and 2010 investigations that was to be provided to the complainants. This decision was made because the complainants requested that their lawyer attend the briefing as an observer. In cancelling a briefing about the police investigations because of potential litigation between the complainants and the CF, the NIS failed to act independently.

The Commission finds this allegation to be SUBSTANTIATED IN PART.

The Commission finds the CFNIS did cancel a verbal briefing initially offered to the complainants because they requested their lawyer be present as an observer. This decision was made by the CFNIS DCO, but two of the subjects of the complaint, the CFNIS CO and the Detachment OC, participated in the decision.Footnote 5132

The Commission finds the decision to cancel the briefing was not appropriate. The CFNIS members had obligations to provide information to the complainants, particularly in light of the commitments they had made to them and the CFNIS’ poor track record for maintaining contact during the investigations. Their desire not to become involved in the civil litigation process, while understandable, was not a sufficient or acceptable reason to fail to honor their obligations and commitments to the complainants in this case.Footnote 5133

There is no evidence the decision to cancel the briefing was influenced or dictated by non-MP CF members.Footnote 5134 Because of solicitor-client privilege, it cannot be known what advice, if any, was obtained from CF legal advisors when the decision was made.Footnote 5135 However, the evidence indicates no concerns arise in this respect as the CFNIS generally obtains advice only from members of the military prosecution service, and this does not raise police independence concerns.Footnote 5136

The evidence before the Commission does not conclusively refute the possibility that concern over the CF’s litigation interests may have influenced the decision to cancel the briefing. The evidence is not conclusive as to whether consideration of the specific fact the CF was involved in the litigation played a part in the decision, although the testimony of at least one of the subjects of the complaint did indicate the CF’s litigation interests may have been a factor considered in the decision.Footnote 5137 While this is not sufficient to conclude the CFNIS failed to act independently, it does raise concerns about its ability to maintain confidence in its independence.Footnote 5138

e) The written briefing provided to the complainants by NIS in May 2011 in replacement for the planned verbal briefing did not contain sufficient information to answer the complainants’ questions.

The Commission finds this allegation to be SUBSTANTIATED.

The evidence reveals the information contained in the written briefing provided to the complainants was inadequate and insufficient to answer the complainants’ questions.

The decision to provide a letter instead of a verbal briefing was, by its very nature, bound to result in the complainants receiving less information. Further, the letter, as drafted, provided no information about the rationale for the conclusions reached in the two investigations.Footnote 5139 The letter failed to honour the commitment made by the CFNIS members to the complainants that full justification would be provided if a decision was made not to proceed with charges. The letter also contained no information about the investigative steps taken in the 2009 and 2010 investigations and, as such, failed to inform the complainants the investigations did not proceed as earlier promised by the CFNIS members.Footnote 5140 Some of the information contained in the letter was inaccurate and some of the characterizations of the nature and scope of the activity undertaken were potentially misleading.Footnote 5141

Nevertheless, there is no evidence this was the result of CF influence or was motivated by concern over the CF’s interests.Footnote 5142

Allegations Relating to Insufficient Investigation or Failure to Investigate

14. The investigations conducted by CFNIS were inadequate. The investigations failed to properly address the issues to be investigated. NIS members failed to investigate other issues, and failed to provide an appropriate response to the complainants with respect to the concerns they specifically brought to their attention.

The Commission finds this allegation to be SUBSTANTIATED.

The Commission has identified significant deficiencies in all three investigations conducted.Footnote 5143 In each case, the CFNIS members failed to identify and/or investigate significant issues properly or at all. Irrelevant investigative avenues or steps were pursued while relevant ones were not. Supervisors failed to intervene to correct misconceptions or inadequate approaches taken by the investigators. Instead, at times, they directed relevant investigative steps not be taken.Footnote 5144

15. NIS failed to properly investigate in a timely manner the potential criminal or service offences committed by members of the LDSH Chain of Command and other CF members prior to Cpl Langridge’s death. Conduct requiring further investigation, follow-up and analysis was uncovered during the 2008 investigation and was specifically brought to the attention of the NIS by the complainants. This conduct was not adequately investigated.

The Commission finds this allegation to be SUBSTANTIATED.

During the 2008 investigation, the CFNIS investigators obtained or had the means of obtaining information regarding Cpl Langridge’s last weeks including the regimental response to his distress and the medical treatment he received. This information suggested an investigation was required to determine whether there were instances of negligence, which could have contributed to Cpl Langridge’s death.Footnote 5145

The CFNIS members involved in the 2008 investigation did not consider any potential offences beyond the possibility Cpl Langridge might have been under a defective suicide watch when he died. They failed to investigate even this question adequately, and they failed to recognize and therefore failed to investigate all other relevant negligence-related issues.Footnote 5146 They failed to interview many important witnesses and also failed to obtain relevant records and evidence. As a result, key questions were never investigated, and easily accessible evidence was never gathered.Footnote 5147

In 2010, the complainants specifically requested an investigation be conducted into alleged criminal negligence in relation to Cpl Langridge’s death.Footnote 5148 Despite assurances made to them these allegations would result in an extensive investigation, the CFNIS members involved in the 2010 investigation did not gather any new evidence or undertake any investigative steps.Footnote 5149 Instead, the preliminary assessment they conducted relied largely on the flawed and inadequate 2008 investigation despite the concerns specifically brought to the CFNIS’ attention by the complainants about that investigation.Footnote 5150

The Commission finds the CFNIS failed to investigate the negligence-related issues adequately both in 2008 and 2010 and failed to conduct the follow-up investigation and inquiries, which would have been necessary as a result of the information uncovered during the 2008 investigation and the allegations brought forward by the complainants.

16. NIS failed to investigate the potential service offences committed by CF members in the application of (or failure to apply) suicide prevention policies in Cpl Langridge’s case. NIS failed to investigate what policies were applicable and whether they were followed. In particular, NIS failed to investigate whether a requirement existed for the CF to conduct a Summary Investigation for each instance of attempted suicide by a member and whether this was in fact done in Cpl Langridge’s case.

The Commission finds this allegation to be SUBSTANTIATED.

Although the evidence is clear Cpl Langridge’s suicidal ideation was known by the base medical community and the LDSH CoC prior to his death, at no point did any of the subjects of the complaint investigate the existence or application of suicide prevention policies with respect to Cpl Langridge.Footnote 5151

Relevant policies or orders directed base commanders and COs to develop and implement intervention plans to provide for a rapid, coordinated and effective response to reports of suicidal behaviour. The CFNIS members involved in the 2008 and 2010 investigations did not investigate whether this imposed a duty to develop and implement such a plan, nor whether the LDSH had developed the necessary intervention plans.Footnote 5152 The CFNIS members also did not investigate whether any offences could result from the failure to conduct an SI after each of Cpl Langridge’s suicide attempts, despite CF orders requiring this to be done and despite evidence the LDSH CoC and the base medical community were aware of several suicide attempts for which no SI was conducted.Footnote 5153

17. In the conduct of the 2008 Sudden Death investigation and the subsequent 2010 Criminal Negligence investigation, NIS members failed to conduct the necessary follow-up and analysis to resolve conflicts and discrepancies in the information obtained, including in relation to the alleged “suicide watch” (or lack thereof) conducted prior to Cpl Langridge’s death.

The Commission finds this allegation to be SUBSTANTIATED.

In the course of the 2008 investigation, the CFNIS members received contradictory information about a potential suicide watch having been planned or conducted for Cpl Langridge. They also received conflicting information about the purpose of the conditions imposed on Cpl Langridge and whether they constituted a suicide watch.Footnote 5154

The Commission finds the inquiries made by the CFNIS members about this issue were not focused or adequate. Many critical questions were left unanswered or were not thoroughly addressed. Contradictions in the evidence arose, and the CFNIS members failed to probe the witnesses critically, assess the evidence, and conduct the necessary follow-up inquiries.Footnote 5155 As a result, relevant evidence was never obtained, and relevant questions were never answered.

The CFNIS members conducting and supervising the 2010 investigation similarly failed to conduct the necessary follow up and analysis. Because they conducted no investigation at all, they did not gather any evidence or information that might have assisted in resolving the contradictions and discrepancies in the information available.Footnote 5156 The limited analysis conducted did not address the relevant issues or answer the relevant questions.Footnote 5157

18. The activity undertaken by the NIS investigators in the 2008 Sudden Death investigation had no clearly defined and understood purpose. NIS investigators failed to produce a report that provided a satisfactory explanation for the issues they undertook to investigate. NIS failed to provide clarity for its own personnel and for the complainants about what those issues were.

The Commission finds this allegation to be SUBSTANTIATED IN PART.

The CFNIS members who conducted and supervised the 2008 investigation did not exhibit a strong working understanding of the basic purpose and process for conducting a sudden death investigation. They did not have an adequate understanding of the role of the ME and how it related to their own role.Footnote 5158

The investigators understood the ultimate goal of the investigation was to rule out foul play. However, they did not appear to have a clear understanding of what was required to achieve this goal.Footnote 5159

The CFNIS members failed to assess the death scene and the evidence critically, and they failed to adjust their approach based on what the evidence revealed.Footnote 5160 They did not appreciate or assess the abundant evidence indicating Cpl Langridge’s death was the result of suicide, and they did not take into consideration the opinion of the ME Investigator at the scene.Footnote 5161 They failed to make note of significant information available at the scene and they failed to gather, preserve, and protect from contamination evidence that would have been significant and even essential if the possibility of foul play became a realistic suspicion.Footnote 5162

By March 19, 2008, it would have been appropriate, in view of the evidence gathered, to determine Cpl Langridge had not died as the result of homicide.Footnote 5163 Instead, the CFNIS members placed undue emphasis on the need to “keep an open mind” throughout the entirety of the investigation. As a result, the determination there was no foul play involved in the death was unnecessarily delayed.Footnote 5164

While generally complete, the police notes and SAMPIS entries made in the course of the 2008 investigation did not provide sufficient information about important decisions made and did not provide a clear picture of the issues under investigation or the conclusions reached regarding each of these issues.Footnote 5165

19. NIS failed to properly investigate in a timely manner the potential service offences committed by members of the CF in designating Cpl Langridge’s former partner as next-of-kin. Facts requiring further investigation, follow-up and analysis were specifically brought to the attention of the NIS by the complainants and were not adequately investigated, including facts relating to CF interactions with the funeral director and with the complainants about the Registration of Death documents and facts relating to Cpl Langridge’s missing paperwork located after his death.

The Commission finds this allegation to be SUBSTANTIATED.

The evidence reveals numerous serious deficiencies in the 2009 investigation conducted by the CFNIS.Footnote 5166

The investigation largely proceeded on the basis of faulty and untested assumptions. The allegations were never properly identified nor understood.Footnote 5167 Relevant questions were not asked or answered in the investigation. No conclusions were reached about who made the PNOK decision and on what basis.Footnote 5168 Other relevant issues related to the role of the executor, the registration of death, the misplaced paperwork and the involvement of a JAG officer in the PNOK decision-making process were never explored.Footnote 5169

A fundamental flaw in the investigation was the total failure to seek legal advice. The issues raised in addressing the PNOK allegations were numerous and of considerable complexity encompassing questions of military, provincial and case law.Footnote 5170 The conclusions reached were based on the lead investigator’s own understanding of legal norms and principles.Footnote 5171 The investigator involved had no legal training and did not have the expertise necessary to be able to draw legal conclusions with respect to the investigation.Footnote 5172 It should have been apparent to all CFNIS members involved that legal advice was required.

The investigation into the facts of the complaint also suffered from other shortcomings. Sources of evidence were unduly limited by the failure to conduct interviews with fact witnesses.Footnote 5173 Assumptions were made which were not supportable on the actual facts.Footnote 5174 Members of the Regiment CoC involved in the PNOK decision were never interviewed.Footnote 5175 The issues of Cpl Langridge’s marital status and the complainants’ input into the funeral arrangements were not adequately investigated.Footnote 5176

Throughout the investigation, supervisors were not sufficiently informed or aware of the issues being investigated. They provided limited input and did not intervene to correct the investigators’ faulty assumptions or ensure a legal opinion was obtained before legal conclusions were drawn.Footnote 5177

20. In the conduct of the 2009 PNOK investigation, NIS members failed to investigate the actual issue that they had been asked to investigate: whether service offences were committed in appointing Cpl Langridge’s former common law partner as next-of-kin for purposes of arranging the funeral. By focussing only on whether or not Cpl Langridge’s former partner still qualified as his common law spouse under CF policies, NIS members failed to answer the actual question brought to them for investigation.

The Commission finds this allegation to be SUBSTANTIATED.

The Commission finds the CFNIS members failed to identify the central issue of the complaint. Because the lead investigator involved focused his investigation very narrowly only on the issue of whether Ms. A was Cpl Langridge’s common-law spouse at the time of his death, the entitlements associated with being recognized as NOK, particularly in relation to funeral planning, were not investigated.Footnote 5178

Although the complaint lacked clarity, and although it was, in part, based on faulty assumptions as well, the complainants were ultimately concerned the role of planning the funeral had been given to someone who was not entitled. The CFNIS failed to investigate this issue.Footnote 5179

Although not noted in the investigation plan, an allegation about funeral planning was considered. However, the investigation of this allegation focused only on the complainants’ participation in funeral planning and still missed the central issue of who should have been entitled to plan the funeral.Footnote 5180

As a result, the CFNIS failed to answer the actual question brought to them for investigation.Footnote 5181

21. NIS failed to investigate or refer to the police of competent jurisdiction for investigation the potential criminal or service offences committed by Cpl Langridge’s former partner and the two CF members who accompanied her during her visit to the funeral director. Conduct which required further investigation, follow-up and analysis (including conduct which may have amounted to fraud in the provision of false information for the purpose of obtaining benefits) was specifically brought to the attention of the NIS by the complainants and was not adequately investigated.

The Commission finds this allegation to be SUBSTANTIATED IN PART.

The CFNIS did not conduct an investigation into the attendance at the funeral home by CF members or Ms. A. The Commission finds, while reasons of jurisdiction justify not investigating Ms. A’s involvement, it is not clear there would have been a jurisdictional bar to investigating the actions of the CF members who attended at the funeral home.Footnote 5182

In addition, the Commission finds it would have been a best practice to advise the complainants the CFNIS did not intend to investigate some of their allegations or refer them to other law enforcement agencies. The CFNIS should then have provided the complainants with information about other agencies that may have been able to investigate their complaints.Footnote 5183

22. NIS failed to investigate, follow up, or provide a response to the complainants with respect to the concerns they raised about how Cpl Langridge’s vehicle was damaged while in CF custody.

This allegation was withdrawn by the complainants during the hearing.

23. NIS failed to investigate, follow up or provide a response to the complainants with respect to the concerns they raised about damage done to Cpl Langridge’s blackberry and computer while in NIS and CF custody.

This allegation was withdrawn by the complainants during the hearing.

24. NIS failed to investigate, follow up or provide a response to the complainants with respect to the concerns they raised about the information they obtained from Rogers telephone indicating that someone was accessing the internet from Cpl Langridge’s blackberry after his death.

This allegation was withdrawn by the complainants during the hearing.

Allegations Relating to Professionalism and Competence

25. The CFNIS members involved in the investigations lacked the necessary skills, professionalism and competence to conduct these investigations and to resolve the issues brought to their attention by the complainants.

The Commission finds this allegation to be SUBSTANTIATED.

The evidence reveals the CFNIS WR Detachment members involved in the investigations, including those involved in providing supervision and oversight for the investigations, did lack the necessary skills and, at times, the competence to carry out their duties. The evidence shows this was mostly due to lack of adequate experience, particularly with respect to the conduct of sudden death investigations.Footnote 5184

Some of the deficiencies in the investigations were sufficiently egregious to put in question the skills and professionalism of the members involved. Examples of this type of conduct include: the supervisors’ direction not to interview Cpl Langridge’s parents and common-law spouse in the 2008 investigation;Footnote 5185 the failure of the members involved to understand the legal requirements applicable for conducting searches and seizures;Footnote 5186 the failure to disclose the suicide note;Footnote 5187 the failure to seek legal advice in the 2009 investigation;Footnote 5188 and the inordinate amount of time taken to complete the 2009 and 2010 investigations.Footnote 5189

The evidence also reveals numerous instances of lack of professionalism on the part of the CFNIS members. The failure to take steps to ensure Cpl Langridge’s suicide note was provided to the complainants when its existence was revealed to the BOI; the failure to provide an immediate and unqualified apology to the complainants; the failure to provide the complainants with an explanation regarding the reasons for the late disclosure; and the failure to put in place clearly understood processes and policies for the timely disclosure of suicide notes in the future, were prime examples.Footnote 5190 The general conduct of the CFNIS members in interacting with the complainants, including the failure to fulfil commitments and the failure to provide timely and accurate information, also constitutes a deficiency of professionalism.Footnote 5191

While many of the deficiencies observed in the conduct of the CFNIS members were the result of inexperience and honest mistakes or misunderstandings, there was a lack of professionalism displayed in the failure of the CFNIS members involved, particularly those in leadership or supervisory positions, to step forward, take responsibility, and appropriately correct the situation when serious mistakes were revealed.

26. NIS failed to advise the complainants of the existence of a suicide note left for them by Cpl Langridge and failed to provide the note until many months after Cpl Langridge’s death and after the investigation was concluded. NIS never came forward to reveal the existence of the note, which was learned by the complainants through other means. Once the complainants were advised, NIS failed to send the original note until the complainants made a specific request.

The Commission finds this allegation to be SUBSTANTIATED.

The evidence confirms the CFNIS failed to disclose Cpl Langridge’s suicide note to the complainants at any time during the 2008 investigation. There is no evidence early disclosure of the existence and content of the note and, in particular, of the funeral wishes it contained could have caused any jeopardy to the investigation.Footnote 5192 In fact, in the early days of the investigation and well before Cpl Langridge’s funeral, sufficient evidence had already been gathered as a practical matter to rule out foul play.Footnote 5193

It is clear there were never any reasons to suspect foul play in this case. The conduct of the investigation reveals the CFNIS members were not actively investigating suspicions of foul play but were simply refraining from drawing a final conclusion until confirmation was obtained from the ME as to the cause of death.Footnote 5194 This was not sufficient reason to withhold disclosure of the information contained in the suicide note to Cpl Langridge’s family.Footnote 5195 Moreover, the evidence has revealed there was no basis for reasonable suspicion about the authenticity of the note and, indeed, no steps were ever taken to confirm it.Footnote 5196

The evidence also confirms the CFNIS did not come forward to reveal the existence of the suicide note at any time after the investigation was concluded.Footnote 5197 When the BOI inquired about the existence of a suicide note, the CFNIS members took no steps to ensure it was disclosed to the family.Footnote 5198 When the BOI disclosed the existence of the note to the complainants, the CFNIS initially resisted their request to obtain the original suicide note.Footnote 5199 There was no rational justification for this response, which only increased the distress caused to the complainants as a result of the failure to disclose their son’s suicide note to them.

The Commission finds the failure to disclose the suicide note for over 14 months after the death shocking and beyond comprehension.

Once the failure was discovered, the evidence reveals the CFNIS members failed to provide an immediate and unqualified apology to the complainants.Footnote 5200 The CFNIS members also failed to make the necessary inquiries to discover the actual reasons the note had not been disclosed.Footnote 5201 As a result, they were unable to provide the complainants with a real explanation, and some of the information they provided to the complainants, the public and other members of the CF, was not entirely accurate.Footnote 5202

The CFNIS members failed to put in place sufficient measures to ensure this type of failure does not happen again.Footnote 5203 The modification of written policies and procedures took an excessively long time to complete, and current policies are insufficient to address the issue and, in particular, to ensure funeral wishes are disclosed to families in a timely manner.Footnote 5204 While CFNIS leadership did provide verbal directives and conduct case-by-case monitoring in an effort to avoid similar incidents, the CFNIS members failed to develop and disseminate within the organization an appropriate understanding of the criteria to be used to determine when suicide notes should be disclosed and released.Footnote 5205

27. NIS members failed to promptly cut down Cpl Langridge and show respect for his body once they arrived at the scene.

The Commission finds this allegation to be UNSUBSTANTIATED.

The evidence demonstrates the CFNIS members present at the death scene showed no disrespect to Cpl Langridge’s body. The expert evidence heard by the Commission confirms police attending at a death scene should not move or disturb the body unless absolutely necessary.Footnote 5206 The evidence also establishes the sole authority to move or remove Cpl Langridge’s body belonged to the Alberta Medical Examiner. The practice of the Alberta ME’s office was not to lower a body until they were ready to remove it from the scene.Footnote 5207 The expert evidence also shows it would have been improper to attempt to cover the body in any way prior to removal.Footnote 5208 There is no evidence Cpl Langridge’s body was made into a spectacle. To the contrary, appropriate steps were taken to ensure the body could not be viewed by passersby.Footnote 5209

The Commission cannot conclude the time that elapsed between the discovery of Cpl Langridge’s body and the removal of his body from the scene was unreasonable. The evidence establishes the time taken was not outside the reasonable range even if some of the steps taken by the CFNIS investigators to document the scene prior to the removal of the body were not strictly necessary.Footnote 5210 The investigators were inexperienced and this caused some delay, but they acted in good faith to do what they believed was necessary in order to preserve potential evidence.Footnote 5211 The ME Investigator agreed, in the spirit of cooperation, to wait until the CFNIS investigators had documented the scene before moving Cpl Langridge’s body but could have hastened the removal if it had been necessary.Footnote 5212

28. NIS failed to dispose of the seized exhibits when closing the Sudden Death investigation in July 2008 and failed to have the items returned to the complainants in a timely manner.

The Commission finds this allegation to be SUBSTANTIATED.

The evidence shows the CFNIS members took no steps to have the seized exhibits disposed of at the conclusion of the investigation. Because there were no adequate processes in place at the Detachment, disposal of exhibits did not generally proceed in a timely manner and was, in fact, often delayed for years.Footnote 5213 In this case, it was only because the lead investigator received a request from the Director of Estates in October 2008 that steps were eventually taken to return the exhibits.Footnote 5214 A letter requesting authority for disposal was then promptly sent to the Regiment CO, but almost three more months elapsed before a response was received.Footnote 5215 Once it was, the items were promptly returned to the Regiment.Footnote 5216 Additional delays in having the items returned to the complainants by the Regiment related to communications between the Regiment and the complainants and were unrelated to any action taken by the CFNIS members.Footnote 5217

Based on the policies in place at the time, it was reasonable for the CFNIS members involved to send a request for disposal authority.Footnote 5218 However, the Commission notes the policies were confusing and difficult to understand, and clarification would be appropriate in this respect.Footnote 5219 In particular, where items are no longer needed for an investigation or, at the latest, when a death investigation is concluded and no charges are anticipated, items should be returned immediately.Footnote 5220

29. NIS members failed to complete the 2009 PNOK and the 2010 Criminal Negligence investigations within a reasonable time.

The Commission finds this allegation to be SUBSTANTIATED.

The specific allegations forming the basis of the 2009 investigation were unusual, and the members had to contend with changes of personnel during the investigation due to deployment or reassignment.Footnote 5221 However, 535 days to complete the investigation is simply not reasonable. There were long periods of delay in which nothing was accomplished and the investigation seemed to stagnate.Footnote 5222 It was the responsibility of the supervisors to ensure the investigation continued to move forward and was completed in a reasonable time. In this investigation, this responsibility fell particularly on the shoulders of the OC, who led the file at its outset and was ultimately responsible for the conduct of the file. While personal circumstances may have prevented him from being able to fully engage in the latter stages of the investigation, this does not excuse the inordinate amount of time it took to complete the investigation.Footnote 5223

The time taken to complete the 2010 is similarly unreasonable. In fact, throughout most of the period when the investigation remained open, absolutely nothing was done to investigate the allegations, review the materials available or perform any analysis.Footnote 5224 The evidence indicates a decision had been made to conclude the 2010 investigation as early as August 2010.Footnote 5225 The decision to keep the investigation open in case new information came to light in the 2009 investigation or in order to provide a common briefing to the complainants was simply not reasonable.Footnote 5226 The two investigations were not factually related. As such, there was no reason to expect relevant evidence could be uncovered during the 2009 investigation. Further, the conclusion of the 2010 investigation should not have been delayed for the sole purpose of providing a common briefing to the complainants, especially considering the briefing, in fact, never took place.Footnote 5227

30. NIS members failed to provide their written briefing within a reasonable time after the verbal briefing on the 2009 and 2010 investigations was cancelled in February 2011.

The Commission finds this allegation to be SUBSTANTIATED.

After the CFNIS made the decision to cancel the verbal briefing initially offered to the complainants, a delay of over two months elapsed before they were provided with the written briefing promised in replacement.Footnote 5228 The evidence reveals no acceptable justification for this delay. The draft briefing was prepared and approved by CFNIS HQ in early March 2011, but the letter was not signed and sent by the OC until late April 2011.Footnote 5229 While this may, in part, be explained by some personal issues impacting on the availability of the OC, the Commission has heard no evidence to explain why other members of the Detachment could not have attended to this matter.Footnote 5230

31. The NIS members involved in the investigations lacked the experience and training necessary to perform these investigations. They did not appear to have knowledge of the appropriate steps to take and appeared paralysed in any ability to take initiative.

The Commission finds this allegation to be SUBSTANTIATED.

The evidence reveals the CFNIS members involved in the investigations had only limited field experience related to the investigation of sudden deaths in a domestic context.Footnote 5231

The lack of experience of the members involved in the 2008 Sudden Death investigation was particularly striking. The lead investigator had never previously conducted a death investigation or attended a death scene.Footnote 5232 His immediate supervisor had also never been involved in conducting or supervising a death investigation.Footnote 5233 The other members of the investigative team had limited experience with death investigations in a domestic context.Footnote 5234

Many of the deficiencies observed in the 2008 investigation were a direct result of the lack of experience of the members involved. From the outset, the investigation lacked focus, clear objectives, or a meaningful plan. In the name of keeping an open mind, the members did not form or test hypotheses and lacked the flexibility and judgment to respond appropriately to new information or address, in a critical fashion, ambiguity and contradictions in the evidence.Footnote 5235 The members did not appear to understand how to properly handle seized items, including the suicide note.Footnote 5236 The supervisors failed to provide appropriate supervision and guidance to the investigators.Footnote 5237

Neither the very serious deficiencies in the sudden death investigation identified by the Commission, nor the lack of experience which led to them, were recognized as problems by the CFNIS witnesses, including members of the CoC who testified before the Commission. There is no evidence these problems have been addressed by the CFNIS.Footnote 5238

The evidence shows the problems encountered were not the result of lack of training. The CFNIS members received appropriate formal training to conduct criminal investigations, including training relevant to the processing of death scenes.Footnote 5239

With respect to the 2009 and 2010 investigations, because the nature of the allegations and the investigations to be conducted were not common or usual, it is not surprising most of the members had limited experience in conducting similar investigations.Footnote 5240 Unlike the situation for the 2008 Investigation, however, it cannot be concluded the deficiencies in these two investigations were caused by lack of experience.

32. NIS reports contained inaccurate factual statements. In particular:
a) The 2008 investigation report contained incorrect facts, including an account of a suicide attempt and hospitalization of Cpl Langridge, whereas hospital records show he was not hospitalized during this period and the MP making the statement took no notes about the incident. The inaccurate factual statements were not re-examined by NIS members when the complainants brought new facts to their attention.

The Commission finds this allegation to be SUBSTANTIATED IN PART.

Many of the statements contained in the 2008 report simply recorded the information received by the investigators.Footnote 5241 While this information was not always accurate, the CFNIS members cannot be faulted for reporting what they learned. On the contrary, this is a necessary part of police work. The example listed in this allegation refers to information provided to the CFNIS by Sgt Murrin of the local MP. The Commission finds this information was accurately reported by the investigators.Footnote 5242 While some aspects of it may have been incorrect or questionable, it is clear the suicide attempt referred to did, in fact, occur.Footnote 5243 This information was not an example of inaccurate information included in the report by the CFNIS members.

However, the Commission finds the report did contain other information that was inaccurate because it was not adequately recorded by the investigators. In particular, some of the interview summaries prepared by the CFNIS members did not accurately reflect the information received, including inaccurate notations indicating Cpl Langridge had attempted suicide in 2003, and indicating Sgt Hiscock had stated there was no suicide watch for Cpl Langridge.Footnote 5244 While these were clearly the result of unintentional errors, poor recordkeeping could be observed in many instances, and this had an impact on the information available to supervisors reviewing the entries as well as on the information ultimately provided to the CF CoC when the investigation was concluded.Footnote 5245

b) The written briefing for the 2009 and 2010 investigations incorrectly stated that both of the investigations had been opened at the request of the complainants.

The Commission finds this allegation to be UNSUBSTANTIATED.

The information contained in the written briefing was not inaccurate. The evidence reveals there was a lack of clarity as to the identity of the complainant within the 2009 investigative file.Footnote 5246 However, the evidence also reveals the CFNIS members involved in the investigation generally viewed the Fynes as the true complainants while they viewed the Ombudsman’s investigator as a “third party complainant” or a conduit for the Fynes’ complaint.Footnote 5247 The Commission finds this approach was reasonable.

The statements made in the written briefing did not misrepresent the situation. The letter did not purport to identify the Fynes as the sole complainants. It only stated they had made verbal allegations and noted the investigation focused on those allegations.Footnote 5248 This statement was accurate.

c) The statement in the 2009 investigation written briefing that the NDA trumps all provincial law was inaccurate.

The Commission finds this allegation to be SUBSTANTIATED.

The Commission finds the unqualified statement included in the written briefing was inaccurate in the context of this investigation. Whether federal law (in this case the National Defence Act) will prevail over provincial law in specific circumstances depends on a number of factors, which were not considered by the CFNIS members.Footnote 5249 Provincial law should not have been dismissed out of hand in this case, and it may well have been relevant to answer some of the questions under investigation.Footnote 5250 In order to clarify the situation, a legal opinion was necessary.

However, the Commission notes the statement included in the briefing was not intended to mislead the complainants. Footnote 5251 It accurately reported the legal theory adopted during the investigation. It was inaccurate because of a failure in the legal analysis, not because of a failure to provide information to the complainants.

33. Inaccurate rationales were provided by NIS members to explain or justify the actions taken by NIS. In particular:
a) NIS members, during a meeting with the complainants, justified the NIS decision not to provide the suicide note sooner on the basis that it had to be kept in case of appeals.

The Commission finds this allegation to be UNSUBSTANTIATED.

The Commission has reviewed the transcripts for the three CFNIS interviews with the complainants and has heard evidence from the members involved in the meetings. The Commission finds there was no discussion related to the possibility of appeals during any of the meetings.Footnote 5252 While the CFNIS members did, at times, take the position it was legitimate not to disclose the existence of the suicide note to the complainants early in the investigation, and, in particular, prior to the funeral, there is no evidence they ever referred to the possibility of appeals to justify the failure to disclose the note for 14 months.Footnote 5253

In a response provided to the Fynes through Col Blais, the CFNIS members did refer to a policy providing for the retention of exhibits to provide for an appeal period.Footnote 5254 However, this reference was not included in the response directly addressing the failure to disclose the suicide note.

b) NIS members inaccurately stated that the responsibility for failing to promptly cut down Cpl Langridge’s body rested with the Alberta Medical Examiner.

The Commission finds this allegation to be UNSUBSTANTIATED.

The Commission finds the CFNIS members accurately described the legal authority to make decisions for the removal of Cpl Langridge’s body.Footnote 5255 In this respect, they correctly stated the authority rested solely with the Alberta ME.Footnote 5256 However, the Commission has also noted the responses provided to the complainants about this issue were not entirely accurate. By focusing solely on the legal authority to make the decision, the responses implied the CFNIS investigators played no part in delaying the removal of Cpl Langridge’s body.Footnote 5257 This was not consistent with the facts. While the CFNIS did not have authority to make the decision, the evidence has revealed it was because of a request by the CFNIS investigator that the ME investigator waited a longer period prior to removing Cpl Langridge’s body.Footnote 5258

c) NIS members took the position that it was not their responsibility if the ME overheard things during the processing of the scene and made his inaccurate comment about the disciplinary issues on that basis.

The Commission finds this allegation to be UNSUBSTANTIATED.

The evidence reveals the CFNIS investigators were not, in fact, responsible for the comment included in the ME Certificate.Footnote 5259 The statements made by the CFNIS members about this issue were accurate.Footnote 5260

d) NIS members advised the complainants that, under MP policies, they were allowed to retain the exhibits for a period of one year to provide for an appeal period.

The Commission finds this allegation to be SUBSTANTIATED IN PART.

In a response provided to the complainants to explain the failure to return the exhibits in a timely manner after the 2008 investigation, the CFNIS members did make reference to a policy providing for a retention period for the time during which an appeal may be launched.Footnote 5261 Like many of the other policies referred to in the response, this policy had no application to this case as no charges had been brought.Footnote 5262

The response provided no explanation about the reasons for not returning the exhibits earlier. By referring to all of the policies related to the return of exhibits, including the one about the appeal period, the response implied these policies were the reason the exhibits were not returned immediately upon the conclusion of the investigation.Footnote 5263 This was not an accurate explanation.

VI. Recommendations

I. Investigative Deployments for Sudden Deaths

There is no substitute for experience in the conduct of sudden death investigations. The evidence before the Commission suggests a lack of relevant domestic experience for the Canadian Forces National Investigation Service (CFNIS) in the investigation of sudden deaths. In order to allow the CFNIS to gain the requisite domestic experience, while ensuring that in the interim, investigations of sudden deaths on Defence EstablishmentFootnote 5264 property are conducted under the direction of appropriately experienced lead investigators, the Commission recommends:

  1. The Canadian Forces Provost Marshal (CFPM) direct appropriate protocols be entered into with federal, provincial or municipal police agencies, to ensure ongoing opportunities for CFNIS investigators to gain sufficient field experience in sudden death investigations to qualify as lead investigators for CFNIS sudden death investigations, such experience consisting of active and significant involvement in a minimum of 15 sudden death investigations.
  2. The CFPM direct the existing Military Police Policy and Technical Procedure (MPPTP) Chapter 7, Annex IFootnote 5265 (or corresponding MP Order) dealing with sudden death investigations, be amended to permit the assignment of federal, provincial or municipal police investigators as lead investigators for sudden death investigations occurring on Defence Establishment property.
  3. The CFPM direct all sudden death investigations on Defence Establishment property be led by experienced federal, provincial or municipal police investigators until such time as sufficient numbers of CFNIS investigators possess the necessary field experience in sudden death investigations to qualify as lead investigators.
  4. The CFPM direct protocols and agreements be established with the federal, provincial or municipal police agencies to secure their agreement to provide lead investigators for the investigation of sudden deaths on Defence Establishment property.

II. Policies, Orders and Directives: Documentation Reviews

Expert evidence from federal, provincial and municipal officers before this Commission demonstrates that many of the CFNIS policies, orders and directives currently in place are inadequate to deal with issues arising from sudden deaths. Some are inconsistent with one another; others are insufficiently detailed or explicit; and others still do not represent best practices.

The Commission recommends:

  1. With respect to policies, orders and directives in general,
    1. The CFPM direct all existing Military Police (MP) and CFNIS policies, orders, directives and Standard Operation Procedures (SOPs) related, directly or indirectly, to sudden death investigations, be reviewed for consistency and compatibility with other existing orders, policies, directives and SOPs, and necessary adjustments be made to ensure such consistency;
    2. The CFPM direct that all new MP and CFNIS policies, directives, orders and SOPs be the subject of a similar review for consistency before adoption;
    3. The CFPM direct ongoing review of MP and CFNIS orders, policies, directives and SOPs related to sudden death investigations, including comparison to best practices by other Canadian police services, to ensure continuing consistency with recognized best practices;
  2. With respect to specific policies, orders and directives:
    1. the CFPM direct deletion from MPPTP Chapter 7, Annex I, section, “Death”, paragraph 1 (or corresponding MP Order) of the following sentence:
      1. All deaths will be handled IAW [in accordance with] the same stringent standards as homicide.Footnote 5266
    2. the CFPM direct replacement of the deleted extract with a provision stating:
      1. all instances of sudden or unexplained death or of human remains being found on Defence Establishment property be approached initially as potential homicides until reasonably determined otherwise;
      2. for deaths for which foul play has not been reasonably ruled out, and for deaths determined in fact to be homicide, stringent procedures designed to collect and safeguard evidence to preserve its integrity and continuity continue to be applied;
      3. for deaths reasonably determined not to be potential homicides, different investigative procedures, including turning over various investigative responsibilities to provincial coroners or medical examiners (ME), will be appropriate.
    3. the CFPM direct the addition of the above provision in CFNIS SOP 237.Footnote 5267
    4. the CFPM direct deletion of the portion of MPPTP Chapter 7, Annex I, section, “Suicide and Attempted Suicide” (or corresponding MP Order), stating:

      Administrative details (previous attempts, possible causes, marital status, alcohol or drug dependencies, etc.) need not be actively pursued and should only be reported if they are offered unsolicited to MP. It must be recognized that a Board of Inquiry or Summary Investigation designed to determine the administrative details will be initiated and will report relevant facts to the appropriate departmental authority.Footnote 5268
    5. The CFPM direct replacement of the deleted extract, consistent with CFNIS SOP 237, with a provision instructing investigators to:

      gain a comprehensive understanding of the background of the deceased, including medical and psychological state, (medication or alcohol consumption)Footnote 5269
    6. the CFPM direct deletion in clause 3 of the “General Statement” section of CFNIS SOP 237, of the following:

      Do not make assumptions or lose evidence based on misconceptions or inexperience.Footnote 5270
    7. The CFPM direct replacement of the deleted extract with a new section:
      1. cautioning investigators against making hasty assumptions;
      2. affirming the investigative propriety of formulating hypotheses to be tested against the facts and evidence as discovered;
      3. cautioning investigators to bear in mind at all times the need to preserve the integrity and continuity of evidence until its potential relevance has been reasonably ruled out.
    8. the CFPM direct deletion from clause 11 in the “Action” section of CFNIS SOP 237, of the following extract:

      Where there is no suspicion of foul play, you are generally permitted to act under the authority of the respective Province’s Coroners Act. The relevant act will typically authorize the investigator to exercise any power of the Coroner, including possession of the body, entering and inspecting any place where the body is or from which it was removed. Investigators under this authority are generally permitted access to the location the deceased was prior to death, to inspect and extract information from any record or writing relating to the deceased, or seize anything that you have reasonable grounds to believe is material to the investigation.Footnote 5271
    9. the CFPM direct replacement of the deleted extract with a provision consistent with the law and jurisprudence in each province setting out the powers, if any, for MP to act under the authority of that jurisdiction’s Coroners Act or equivalent.

III. Supervision

The evidence before this Commission demonstrates inconsistent and in some cases inadequate supervision. Meaningful supervision requires an informed understanding of the issues under investigation in order to provide meaningful feedback to the investigators, as well as diligent supervisory follow-up on issues of concern to ensure allegations have been properly and fully investigated.

The Commission recommends:

  1. The CFPM direct policies and practices with respect to supervision be put into effect stating:
    1. investigations involving complex facts or allegations require active, informed and involved supervision;
    2. where an investigation is led by an investigator with limited experience in the specific type of investigation being undertaken, the Case Manager must have significant experience in such investigations;
    3. in all cases involving complex facts or allegations, Senior MP advisors must be alert to possible gaps in experience by investigators or Case Managers and must manage resources, including human resources, accordingly;
    4. supervisors are to record in the General Occurrence (GO) file any directions given with respect to the conduct of an investigation, including the reasons for those directions.

IV. Return of Property and Evidence

The evidence before this Commission demonstrates there was no well understood process in place at CFNIS WR Detachment for the return of property and evidence, and that policies dealing with these matters were incoherent and lacking in clarity, with the result that return of property and evidence was delayed beyond what was reasonably necessary.

The Commission recommends:

  1. The CFPM direct that seized property and evidence no longer required for investigations be returned to the rightful owners and/or disposed of in a timely manner, pursuant to the following principles:
    1. property or evidence is to be returned to its rightful owner or otherwise disposed of when it is no longer needed for investigative purposes;
    2. in sudden death investigations, property or evidence is no longer needed for investigative purposes when the death is reasonably determined not to have been a homicide, and/or there is no reasonable prospect of a criminal or service charge being laid;
    3. in sudden death investigations, property or evidence is no longer needed for investigative purposes at the latest at the conclusion of the investigation, where a determination has been made that no criminal or service charges will be laid in connection with the death;
    4. in cases where a determination has been made that no charges will be laid in connection with the death, property and evidence no longer needed for investigative purposes in relation to a sudden death is to be returned immediately with no waiting period and with no disposal authority needing to be sought;
    5. the policy with respect to return of suicide notes should be in accordance with recommendations 11 to 13.
  2. The CFPM direct amendment of the applicable portions of MPPTP Chapter 7Footnote 5272 and Chapter 7, Annex CFootnote 5273 (or corresponding MP Order(s)), CFNIS SOP 208,Footnote 5274 CFNIS SOP 237Footnote 5275 and CF MP GP Order 2-391Footnote 5276 and its relevant annexes, in accordance with the principles set out in this recommendation.
  3. The CFPM direct every CFNIS Detachment establish clear processes and allocate the necessary resources for the timely return of exhibits by ensuring investigators are responsible to make notations in the file once exhibits are no longer required for the investigation, and that a designated person is responsible for ensuring the exhibits are then returned immediately, with clear timelines established and supervisors monitoring the process.

V. Suicide Notes

A prominent place in the PIH hearings was occupied by the issue of the failure by the CFNIS to ensure timely disclosure of the existence of a suicide note in this case and to provide it to the family. The evidence discloses serious efforts have been made to improve policy and practice on this topic, but further policy clarity and practical guidance are still needed.

The Commission recommends:

  1. The CFPM direct the review and revision of Clause 21 of CFNIS SOP 237 dealing with Sudden Death,Footnote 5277 by including a revision within the SOP that provides for a stand-alone clause ensuring there is greater clarity relative to the release of suicide notes found at the scene of a suicide or in the course of a sudden death investigation.
  2. The CFPM direct the section dealing with suicide notes found at the death scene or in the course of a sudden death investigation be revised, the revision to be focused on protocols for ensuring the apparent wishes of the deceased soldier be brought to the attention of the family or other most appropriate person prior to the soldier’s funeral.
  3. The CFPM direct that, in drafting the new provision, the following principles are to be reflected:
    1. The default position should always favour early disclosure of the existence and contents of suicide notes. Disclosure should only be delayed where there is a compelling reason to do so, based on concrete facts and evidence and not on abstract possibilities.
    2. The criteria for determining the timing of disclosure should not be whether it has been determined the death was suicide. Instead, the question should be whether there is any actual, realistic reason to suspect foul play or to have doubts about the authenticity of the note.
    3. Where there is a realistic suspicion of foul play, the criterion for determining whether the suicide note can be disclosed should be whether disclosure could harm the investigation. If a realistic harm cannot be identified, the suicide note should be disclosed.
    4. Where questions about authenticity of the suicide note are invoked as a reason to delay disclosure, testing must be conducted to confirm authenticity.
    5. Where funeral wishes or other time-sensitive information is contained in the suicide note, this should be taken into account in the determination. In such cases, if suspicion does exist and disclosure is delayed as a result, all available measures should be taken to conduct testing of the suicide note immediately. While it may not be possible to obtain absolute confirmation of the suicide note’s authenticity prior to the funeral, preliminary testing such as handwriting comparison could provide at least the necessary indications to determine whether the level of suspicion is sufficient to deprive a family of the opportunity to fulfill what may well be their loved one’s last wishes.
    6. A desire to protect the family from potential “harm” that could result from early disclosure of a suicide note, if it was later discovered the suicide note was not authentic, is not sufficient reason to delay disclosure. If no realistic harm to the investigation could result from disclosure, the proper procedure will be to disclose the existence and contents of the suicide note to the family, and to advise them final confirmation of the cause of death or authenticity of the suicide note has not yet been obtained. Under such circumstances, families should be allowed to make their own decisions about whether to honour any wishes contained in the suicide note.
    7. Once the family has received a copy of the suicide note, the CFNIS may need to retain the original for a certain period of time. The level of suspicion required to justify retaining the original will not be as great as what would be required to justify not telling the family about the suicide note at all. If releasing the original could hinder the investigation – including by making it unavailable for testing or use as evidence if subsequent information revealed this was necessary – there will be justification for not proceeding immediately.
    8. In all cases, the original suicide note should be returned to the family at the end of the investigation, unless court proceedings justify retaining it longer.

VI. Interactions with Complainants and Families

Briefings to complainants or families should always be conducted with a view to addressing the needs of the complainants or of the families of deceased soldiers who are the subject of sudden death investigations.

The Commission recommends:

  1. The CFPM direct CFNIS briefings to families at the end of a sudden death investigation contain meaningful, substantive information that addresses the main points covered in the investigation and answers the family’s questions. Where questions cannot be addressed immediately, there must be follow up to provide substantive responses.
  2. The CFPM direct family briefing presentations be conducted, not by means of PowerPoint presentations or similar formal formats, but rather in an interactive, less formal manner that addresses the facts and findings from the point of view of the family and is geared to its perspective.
  3. The CFPM direct the portion of CFNIS SOP 237 dealing with Sudden Death – Next of Kin Briefings,Footnote 5278 be amended to specify that the lead investigator, or a person involved in the investigation having full knowledge of all aspects of the investigation, must attend at a family briefing along with the other designated personnel.
  4. The CFPM direct the portion of CFNIS SOP 237 dealing with Sudden Death – Next of Kin Briefings,Footnote 5279 be amended to delete the provision requiring the Assisting Officer (AO) to attend at family briefings, and to replace it with a provision providing the family with a choice as to whether the AO will attend.
  5. The CFPM direct these procedures for briefings with respect to sudden death investigations also be followed for briefings to victims or complainants in relation to any other CFNIS investigation, where briefings are provided.
  6. The CFPM direct that, in addition to the two briefings provided for in the Sudden Death SOP, the CFNIS provide ongoing contact, information and services for the family of the deceased in death investigations and for complainants in other investigations. Contact and services should be at least at the same level as services provided to victims pursuant to applicable victim services policies (i.e. MPPTP Chapter 5, Annex FFootnote 5280 (and corresponding MP Orders); CFNIS SOP 204;Footnote 5281 and CF MP GP Order 2-915Footnote 5282 and its relevant annexes).
  7. The CFPM direct that, in cases where MP decides not to investigate complaints (or ancillary complaints), the complainant must be informed promptly of the decision not to investigate, as well as of any other methods for potential recourse (such as contacting civilian law enforcement authorities) so as to allow the complainant to pursue such alternatives in a timely manner.
  8. The CFPM direct that MP investigators not make commitments or specific representations to complainants as to the approach or steps to be taken in an investigation. Where, however, such commitments or representations are made, the complainants must be advised of any change in the actual approach or steps taken.

VII. Investigative Plans

The evidence before this Commission suggests Investigation Plans (IP) are vital both as a planning tool for investigators and as a means to provide information on ongoing investigations to supervisors and the chain of command.

The Commission recommends:

  1. The CFPM direct the establishment of a policy, directive or order with respect to IP:
    1. to require the IP to set out the investigative steps necessary to determine each of the issues requiring investigation, as well as the link between the proposed steps and relevant issues;
    2. to require all allegations that investigators believe merit investigation be specifically identified in the IP;
    3. to specify the notation “completed” in the IP should be used only to indicate the relevant question has been answered; and
    4. to specify where the evidence relevant to an investigative step is inconclusive a notation is to be made as to whether the issue will be pursued further along with an indication of the reasons for the decision.

VIII. Interviews with Witnesses and Complainants

Interviews with witnesses or complainants must be meticulously documented to avoid subsequent possible controversy or confusion.

The Commission recommends:

  1. The CFPM direct that, where feasible, all CFNIS interviews with witnesses or potential complainants be recorded in full by audio or audio-visual means.
  2. The CFPM direct complex allegations or complaints made to MP investigators be specifically reviewed with the complainants in order to ensure the essence of the allegation is understood, with the investigator verifying with the complainant whether a complaint is being made and what it is about.

IX. Search Warrants

The Commission is alarmed by the evidence of incomplete or defective understanding of the law of search and seizure applicable to MP that emerged through testimony.

The Commission recommends:

  1. The CFPM direct a review of training offered and demonstrated knowledge required for MP personnel with respect to the law of search and seizure related to police powers.
  2. The CFPM direct mandatory training with respect to police powers of search and seizure including:
    1. the information required to obtain judicial search warrants;
    2. powers of consensual search;
    3. powers of warrantless search and the circumstances when such powers can be exercised;
    4. powers of search and seizure under Provincial legislation related to sudden death investigation, including under Coroners Acts or equivalents;
    5. powers of search and seizure under the National Defence Act, including powers of a Commanding Officer to issue warrants in connection with the Code of Discipline.

X. Investigator Continuity During Investigations

Lack of continuity in complex investigations poses significant challenges to effective and timely investigation.

The Commission recommends:

  1. The CFPM direct that where a new MP Investigator assumes responsibility for an ongoing investigation:
    1. a full face-to-face briefing be conducted with the investigator by the departing investigator;
    2. prior to such briefing, the departing investigator conduct a detailed file review to ensure all documentation the new investigator may reasonably be expected to require is readily accessible;
    3. where special circumstances make the departing investigator unavailable, the briefing and/or file review be conducted by the departing investigator’s direct supervisor.

XI. Recordkeeping: General Occurrence Files and SAMPIS

Investigations depend on meticulous and accurate recordkeeping, both for the integrity of the investigation itself and for possible use of evidence and information for various judicial and/or regulatory purposes.

The Commission recommends:

  1. The CFPM direct the CFNIS to ensure all significant investigative steps be accurately recorded in the GO file, including but not limited to:
    1. all documents obtained in the course of the investigation, as well as the source of the documents;
    2. a list of any documents related to the law reviewed by investigators, including, CF policy documents, orders, legislation or case law, as well as copies of such documents;
    3. any evaluation or summary of the documents prepared by investigators;
    4. a notation of any documents of particular relevance or importance to the investigation;
    5. a summary of any command team briefings and briefing material, including PowerPoint presentations used in the meeting;
    6. a notation of any decisions or conclusions that were reached based on the meeting;
    7. a notation of any direction that was given as a result of the meeting.
  2. The CFPM direct that complainants in an investigation be clearly identified in SAMPIS from the outset of the investigation.
  3. The CFPM direct where circumstances surrounding a sudden death give rise to the possibility of criminal charges or charges under the Code of Discipline, including charges arising from negligence, such matters be investigated separately and a separate GO file be created for investigative purposes.
  4. In order to ensure investigative assessments (also known as “preliminary investigations”) are detailed and comprehensive, the CFPM direct the amendment of MPPTP Chapter 2, Annex HFootnote 5283 (and corresponding MP Orders) and SOP 238Footnote 5284 to require investigators to record in detail the steps taken in reaching a conclusion about whether a complaint requires further investigation, the facts considered in reaching the conclusion, and the sources for those facts.
  5. The CFPM prohibit the practice of making unattributed or misattributed modifications to GO file entries, and prohibit in particular the existing practice of supervisors amending and/or altering GO file documents created by subordinates without notation in the file indicating the change in authorship of the document.
  6. The CFPM direct engagement by the MP with SAMPIS software vendor, Versaterm, to design and implement a version control/revision control system by which SAMPIS preserves the original version of all entries made in a GO file and tracks and logs in detail any and all changes made to each entry.
  7. The CFPM direct engagement by the MP with Versaterm to customize the SAMPIS system and/or to develop policies and procedures to minimize the possibility of inadvertent incomplete disclosure of a GO file. The systems or policies developed should provide:
    1. each printout of a GO file that is disclosed includes all documents on the file, with any redacted pages or entries being identified, and the total number of pages for all information available in the file being disclosed;
    2. each printout of a GO file that is disclosed includes a notation of the date when each entry was created, as recorded in the system.
  8. The CFPM direct MP participation in collaboration between Versaterm and other police clients, including joining user groups and advisory committees, in order to help guide the development of future SAMPIS product enhancements to meet developing needs and trends in policing and public safety.

XII. MP Use of Canadian Armed Forces Investigations

The Canadian Armed Forces (CAF) conducts its own administrative investigative proceedings in connection with sudden deaths, suicides and attempted suicides of its members. Use by MP investigators of materials from such administrative proceedings carries with it serious risks for MP investigations.

The Commission recommends:

  1. The CFPM direct policy guidance and training for MP investigators on the challenges and pitfalls of utilizing any materials from CAF investigations, including Boards of Inquiry (BOI) and Summary Investigations (SI).
  2. The CFPM direct that such training and guidance:
    1. alerts MP investigators to the risks of reviewing statements previously obtained under compulsion, including the risk that any statements subsequently obtained by the MP may be found inadmissible in eventual prosecutions;
    2. reminds MP investigators that facts uncovered in CAF investigations can never form the basis for an investigative assessment and that investigative assessments must be based either on the facts alleged by complainants or on the facts uncovered by the MP through preliminary investigation or prior related MP investigations;
    3. caution MP investigators that where materials or conclusions from CAF investigations have been reviewed, MP conclusions must nevertheless be based on their own investigation of the case.

XIII. Media Relations Matters Affecting Both CAF and MP

Police independence in a CAF context requires not only MP independence in fact, but also public perception of such independence. Public relations and media communications initiatives where both CAF and MP are involved present challenges for which clearer policies and procedures are necessary.

The Commission recommends:

  1. The CFPM direct policy guidance be provided for MP members with respect to media and public relations practices, to safeguard both the fact and the perception of police independence.
  2. The CFPM direct such policy guidance be based on the following principles:
    1. all MP contact with the media, formulation of media lines and release of public statements are to be separate from CAF public releases and formulation of media lines;
    2. MP personnel are not to participate in joint statements or media lines with the CAF;
    3. MP media lines or public statements are not to include CAF messages;
    4. where MP personnel are present during media conferences or similar public events, questions regarding MP matters must be answered only by MP representatives.
  3. The CFPM direct discussions with appropriate CAF officials, aimed at establishing a framework protocol for media and public relations on topics where both MP and CAF are involved.
  4. The CFPM direct the framework protocol include the following principles:
    1. only the MP has authority for release of information about its activities and investigations;
    2. all media questions regarding MP matters raised during CAF media events are to be referred to MP representatives and vice versa;
    3. MP messages are not to be included in CAF media lines or public statements and vice versa;
    4. consultations between CAF and MP on a media relations matters are to occur between the CFPM and Vice Chief of Defence Staff or their direct delegates.

XIV. The ATIP Process

Lack of clarity regarding roles and responsibilities in the Access to Information and Privacy (ATIP) request process, as generally governed by the Access to Information ActFootnote 5285 and the Privacy Act,Footnote 5286 may have a negative impact on the perception of police independence in terms of release of information connected with MP investigations. It may also impact the MP’s ability to protect the integrity of its investigations.

The Commission recommends:

  1. The CFPM enter into immediate discussions with the Minister of National Defence and other appropriate DND and/or CAF officials to ensure the MP receive full delegation of ATIP powers, duties or functions over MP documents and information in order to have final decision-making authority to refuse the release of information that may impact on ongoing investigations or police methods as well as final decision-making authority to release information according to legislation.
  2. The CFPM direct training for all MP members regarding the ATIP process as it relates to MP-generated information or documents.

XV. Independent Counsel for Subjects at PIH Proceedings

The experience at this PIH confirms the Commission’s experience in previous PIH proceedings that the joint representation by Government counsel of the subjects of a complaint along with numerous other individuals and institutions connected with the CAF and with Government, is problematic. It creates issues from a practical/logistical point of view, in terms of an appearance of fairness and in terms of protecting public confidence in the integrity of the PIH process. The interests of the subjects will not necessarily be aligned or be perceived to be aligned with the interests of the CAF, Government and military witnesses or institutional Government clients also being represented by Department of Justice (DOJ) lawyers.

The Commission recommends:

  1. The CFPM direct negotiations be entered into with appropriate Government officials, including the Treasury Board of Canada and, if appropriate, the DOJ, to allow the subject(s) of a complaint to be indemnified for reasonable legal fees incurred in retaining independent (private) legal counsel for PIH proceedings.

XVI. Waiver of Privilege

The Commission recognizes the common law privilege with respect to non-disclosure of solicitor-client communications is nearly absolute. However, the Commission is also aware that this privilege may be waived by a client. The position of the Government of Canada is that only the Minister of National Defence is the “client” with respect to all information and communications with a legal component exchanged by or with members of the MP and the CAF and that only the Minister can claim or waive privilege. Especially where a blanket claim of privilege is asserted, this can block access by the Commission to material that was or ought to have been before the MP or the CFNIS as part of their investigations and thus can compromise the Commission’s ability to exercise its statutory oversight mandate.

The Commission recommends:

  1. The CFPM recommend to the Minister of National Defence, where claims of solicitor-client privilege are made over communications relevant to the subject matter of a PIH, to enter into an arrangement with the Commission to allow the Commission to access and review the materials, while otherwise keeping them confidential, in order to allow the Commission to discharge its oversight mandate. Such agreement could include, where appropriate, the hearing of evidence relevant to matters covered by the privilege claim in in camera proceedings.
  2. The CFPM recommend to the Minister of National Defence:
    1. to consider potential claims of solicitor-client privilege on a case-by-case basis;
    2. to consider waiving privilege over communications relevant to the subject matter of a PIH, except where the privilege relates to the legal interests of the subjects of the complaint;
    3. where the privilege relates to the legal interests of the subjects of the complaint, to delegate the decision to claim or to waive privilege to the subjects of the complaint.

VII. The Military Police Response

7.0 The Military Police Response

1. The Military Police has provided a 90-page Notice of Action in response to the Commission’s Interim Report. The Interim Report had been issued on May 1, 2014. The Notice of Action was received more than seven months later, on December 16, 2014.

2. In September 2014, the Commission was advised the Notice of Action was ready. However, the Military Police delayed issuing it because it wished to provide a briefing to the Senior Chain of Command of the Canadian Armed Forces (CAF) about it contents prior to its distribution.Footnote 5287 In December 2014, the Military Police suggested delaying the Notice of Action further, this time in order to brief the Minister.Footnote 5288 The Commission expressed its strong objection to this further delay.Footnote 5289 The Notice of Action was eventually issued shortly after.

3. Soon after the Notice of Action was issued, the Commission was advised the Military Police would not allow it to be included in the Commission’s Final Report or otherwise published.Footnote 5290 The Military Police indicated the Notice of Action was to remain designated as “Protected B” and could not be disclosed to the public along with the Commission’s Final Report.Footnote 5291 Despite the Commission’s strong objection and its attempt to seek clarification of the reasons for this unprecedented position, the Military Police remained steadfast in its refusal to permit publication of the Notice of Action.Footnote 5292 As a result, very little can be said here about the contents of the Notice of Action. The purpose of the statutory requirement for the Military Police to provide the Notice of Action therefore cannot be achieved.

4. The Notice of Action is part of a broader statutory scheme creating independent civilian oversight for the Military Police. Rather than mandating the Military Police to follow binding recommendations, this scheme operates by imposing an obligation on the Military Police to explain to the parties in the case, to the Commission, to the Minister and, in the case of a Public Interest Hearing, to the public, what actions it will take to address the issues and the reasons for failing or refusing to take action, should it choose not to act on any of the Commission’s findings or recommendations. This obligation is meant to achieve the twin goals of accountability and transparency, which are essential for meaningful independent oversight.Footnote 5293 The Notice of Action is the means by which the Military Police has to answer to the Commission, to the parties, and to elected officials for its decisions. In a public interest case, it is also the means by which the public can be reassured that the oversight regime operates as it is meant to, and that any concerns are being appropriately addressed, or at least that it can be informed as to what is or is not being done and why.

5. The decision to prevent the publication of the Notice of Action in this case frustrates the fundamental goals of independent civilian oversight. The actual content of the Notice of Action, which the Commission has reviewed, is also not consistent with the purpose of oversight, as the Notice of Action largely fails to provide meaningful responses to the Commission’s findings and recommendations and, in many cases, provides no response at all.

6. Because the Commission cannot reproduce the text of the Notice of Action, it is not possible to elaborate on the numerous issues it raises, both in terms of the few substantive responses it provides and in terms of the apparent refusal to provide responses. For this reason, the Commission has taken the necessary legal action to ensure the Notice of Action can eventually be made public. Once the Court delivers its final decision, the Commission will publish, in a manner and to an extent consistent with the Court’s reasons, a more detailed chapter outlining the specific concerns raised by the text of the Notice of Action. In the meantime, the Commission can only publish the following general comments.

The Notice of Action

7. The Notice of Action rejects some 70% of the Commission’s recommendations. A small number of the responses, amounting to less than 20% of the total, do so directly, by taking issue with the substance of the recommendations and indicating, albeit not always clearly or directly, that the recommendations will not be implemented.Footnote 5294 The recommendations that are rejected in this manner are:

8. Many of the reasons provided for rejecting these recommendations, where reasons are provided at all, raise their own substantive concerns in terms of an apparent lack of understanding or acknowledgement of the findings made and underlying issues identified in the recommendations. However, these concerns cannot be discussed without a more detailed review of the actual text of the responses. Since the Commission cannot engage in this discussion here, it can only state that it does not accept the reasons provided for rejecting many of its most important substantive recommendations.

9. Approximately 30% of the responses in the Notice of Action accept the Commission’s recommendations. However, this acceptance is not always complete or unqualified, and many of these “positive” responses raise serious concerns in their failure to acknowledge the substantive deficiencies identified in the findings. Again, because the text of the Notice of Action cannot be published, these concerns cannot be discussed further here.

10. Of the recommendations that are fully accepted without qualification and without raising further issues, one relates to a very general principle that is being agreed to without an accompanying commitment in other responses to concrete actions by which this principle will be put into effect. The others relate to more minor or technical issues. The fully accepted recommendations are:

11. In addition, the more substantive recommendation related to the ATIP process and the Military Police’s authority to make decisions about the disclosure of its informationFootnote 5308 also appears to be accepted, at least in principle, but the language used in the Notice of Action remains somewhat non-committal.

12. All other responses in the Notice of Action provide no answer as to whether the recommendations will be implemented. More than half of the total number of responses to the recommendations amount to no more than a statement that the Military Police will research the issues and/or consider the recommendations. This failure to provide any information as to what will be done about the recommendations can only be taken as a rejection of those recommendations, since no commitment at all is provided to implementing them. If these responses were not taken as rejections, then there would be no obligation for the Military Police to explain the failure to implement the recommendations, and they would disappear from the oversight regime created by the National Defence Act.

13. Even the few responses that otherwise reject the recommendations more directly also often fail to provide meaningful answers. Those responses often sidestep some of the most important issues raised by the Commission or fail to provide information about what it is the Military Police plans to do instead of implementing the recommendations. Many are also expressed in language that avoids stating the rejection in clear and direct terms.

14. The responses to the Commission’s findings also generally provide no indication as to the position of the Military Police with respect to the findings, or as to whether the deficiencies identified in the Interim Report are acknowledged as deficiencies. Out of 39 responses, only one, the response to the finding that the CFNIS members failed to complete the 2009 and 2010 investigations within a reasonable time,Footnote 5309 fully acknowledges the deficiencies and discusses measures taken to address them. The other responses do not indicate either agreement or disagreement with the findings. In a few cases, this is not problematic given that the underlying allegations were unsubstantiated and no further comment was required.Footnote 5310 In most cases, however, this non-committal approach is highly problematic, as a response to the findings was required, and the comments included in the Notice of Action fall short of providing one. In response to many of the findings related to deficiencies in the investigations, the Military Police proposes to have the investigations assessed by another police force. In other responses, the Notice of Action includes comments that tend to indicate the deficiencies identified by the Commission have not been recognized or understood by the Military Police, or that raise their own substantive concerns. Because the text of the Notice of Action cannot be published, these concerns cannot be discussed here.

15. A review of the responses to the recommendations and findings found in the Notice of Action leaves open to question whether the Military Police in fact sees there was anything seriously wrong in the investigations and events under review. Instead, the Commission is left with many of the same concerns expressed in the Interim Report to begin with and, in some cases, these concerns are even magnified. However, without the ability to publish the Notice of Action and to discuss its contents in detail, the Commission is prevented for elaborating further on these serious concerns.

16. On the whole, the Notice of Action is, for the most part, not in fact a response to the Interim Report. Contrary to s. 250.51 of the National Defence Act,Footnote 5311 which sets out the information to be included in the Notice of Action, the Notice of Action provided in this case does not notify the Commission or the Minister of the “action that has been or will be taken with respect to the complaint”, except perhaps to indicate that very little action has been taken, and that it is not known what additional action will or will not be taken.

A Rejection of Oversight

17. Independent civilian oversight of the police and properly administered systems for the review of complaints about police conduct serve many important purposes. They assist the police in identifying and correcting deficiencies in practices and procedures; they promote public confidence and trust in the police; they ensure police accountability; and, provided they can operate in a sufficiently transparent manner, they safeguard public confidence in the legitimacy of the process for regulating and overseeing the conduct of the police.Footnote 5312

18. The regime of independent civilian oversight established for the Military Police in the National Defence Act operates by imposing an obligation on the Military Police to subject its decisions about what actions it will take in response to complaints, and the reasons for those decisions, to scrutiny by the public and elected officials. The National Defence Act does not grant the Commission the power to make binding recommendations or to order the Military Police to make changes or to take action. Instead, the Commission’s Interim Report setting out its findings and recommendations about the complaint is transmitted to the Minister of National Defence, the Chief of the Defence Staff, the Judge Advocate General and the Canadian Forces Provost Marshal (CFPM).Footnote 5313 The CFPM, who is the head of the Military Police, then has the obligation to review the complaint in light of the Commission’s findings and recommendationsFootnote 5314 and to provide a Notice of Action to the Minister of National Defence and to the Commission setting out “any action that has been or will be taken with respect to the complaint.”Footnote 5315 Once the Notice of Action has been received and considered, the Commission prepares its Final Report and provides it to the Minister, the Deputy Minister, the Chief of the Defence Staff, the Judge Advocate General, the CFPM, the complainants, the subjects of the complaint and, in the case of a Public Interest Hearing, the public.Footnote 5316

19. The Act specifically stipulates that, where the CFPM decides not to act on any of the findings or recommendations included in the Commission’s Interim Report, the Notice of Action must set out the reasons for not so acting.Footnote 5317 Hence, while the statute leaves the ultimate decision as to the actions to be taken in the hands of the Military Police, it also imposes a mechanism by which the Military Police must answer for its decisions, actions, or lack of action, to the Minister, to the Commission, and ultimately to the parties involved and to the public. This accountability is achieved by imposing an obligation on the Military Police to state what it will do and to explain why. Accountability cannot be achieved where what is being done is not revealed.

20. In that sense, the refusal to publish the Notice of Action can be seen as a rejection of the very principles of independent civilian oversight and as an attempt by the Military Police to avoid accountability and excuse itself from having to explain to anyone, except perhaps the military itself, whether it recognizes the failures identified in this Hearing and what, if anything, it plans to do to address their underlying causes.

21. The content of the Notice of Action itself also has the effect of circumventing the operation of the oversight regime, even for those – like the Commission and the Minister – who did receive the text of the Notice of Action.

22. The majority of the responses to the Commission’s recommendations essentially state the Military Police will consider the recommendations. One would expect the Military Police would in every case consider all the recommendations arising from a Public Interest Hearing. The purpose of a Notice of Action is to report on the result of the recommendations and the findings having been considered, not to state that they will be considered at some indefinite future date.

23. In the present case, the Notice of Action generally does not provide any indication of the Military Police’s position on the recommendations, even on more general principles, let alone any intent to follow them. It is not the case that the Military Police provides substantive information about its views, but leaves the more detailed aspects to be determined after further research and consideration. There is for the most part simply no information. By not saying what will be done about practically all of the findings and most of the recommendations, the Military Police is failing to provide the basic information meant to be included in the Notice of Action.

24. The responses in the Notice of Action essentially push back the time when decisions will be made about the recommendations and, in that way, remove these decisions from the accountability provided for in the oversight regime. By not providing a clear answer one way or the other as to whether the recommendations and findings are accepted and what will be done about them, the Military Police is also effectively extracting itself from the obligation to provide explanations for not acting on the findings or recommendations. If and when the Military Police does make decisions about policies and training with respect to the matters raised in the Commission’s recommendations and findings, there will be no process and certainly no requirement for the Commission or the Minister to be informed. There will be no requirement for the Military Police to provide explanations if some of the recommendations are not implemented or if some of the findings are not acted on. This is clearly contrary to the statute that created this oversight regime. The Military Police’s decisions cannot be assessed by the Commission or the Minister because they are for the most part not revealed, and as a result not explained or justified.

25. The decisions clearly cannot be assessed at all by the complainants, the subjects of the complaint or the public, because the Military Police’s position opposing the publication of the Notice of Action means the parties and the public are not even provided with a copy of the incomplete and unsatisfactory responses found in the Notice. The decision to prevent the publication of the Notice of Action effectively ensures that the complainants and the public will never be informed at all as to what will or will not be done. By definition, they are hence not being provided with any explanation or justification for the decisions made, as they are not even being told in any way what those decisions are. They are also prevented from being shown and from being able to assess how the words used in the Notice of Action amount to a rejection of oversight by the Military Police.

26. The responses in the Notice of Action indicating another police force will be consulted to assess the investigations operate in a similar manner to subvert the purpose of oversight. They transform what is meant to be an exercise of public accountability into a private consultation. The Military Police is in effect looking for a second opinion as to whether there were any deficiencies in its investigations. There is no plan to disclose this second opinion or to provide any further information about what may in fact be done with respect to the Commission’s findings, not even to the Commission itself or to the Minister, let alone to the parties or the public. As a result, no response is provided about the findings, and both the parties and the public (as well as, of course, the Commission) will be kept in the dark and will have no means of assessing what, if anything, may eventually be done about any of the deficiencies.

27. The lack of substantive answers in the Notice of Action is particularly disconcerting in light of the time it took to provide it. It is difficult to understand why, after taking more than seven months to review the Commission’s Interim Report and to prepare its Notice of Action, the Military Police largely cannot provide answers beyond stating that it will consider the recommendations. The Military Police delayed issuing of the Notice of Action in order to brief the Senior Chain of Command of the CAF.Footnote 5318 Three full months elapsed between the time when the Military Police first advised the Commission the Notice of Action was ready and the time when it was finally provided.Footnote 5319 Yet, the Military Police apparently did not use this time to consider and to come to conclusions about the recommendations so as to provide meaningful answers.

28. This is particularly shocking when it comes to the responses to the policy recommendations relating to the disclosure of suicide notes. According to the public statements made when the failure to disclose Cpl Langridge’s suicide note was discovered, and to the testimony heard about this issue during the Hearing, the CFNIS began working on revising its procedures for the disclosure of suicide notes in June 2009.Footnote 5320 Yet, in December 2014, the Military Police was still not able to tell the Commission what those policies and procedures will be.Footnote 5321

29. Many of the others recommendations and findings for which the Military Police provides no answer also relate to areas where, in the Commission’s view, the deficiencies were serious, obvious and inexcusable. The Commission identified clear, often egregious deficiencies in the interactions by the Military Police with the Fynes throughout the investigations under review, including: the repeated failure to provide them with substantive information and answers to their legitimate questions;Footnote 5322 the failure to fulfill commitments made to them;Footnote 5323 the failure to provide appropriate explanations and apologies once the failure to disclose the suicide note was discovered;Footnote 5324 and the failure to take steps to return exhibits because there were no processes in place to deal with them.Footnote 5325 Yet, years after the events and over seven months after receiving the Commission’s Interim Report, the Military Police still cannot provide any information about what it plans to do about these issues, and has still yet to respond even to simple recommendations like providing substantive information during family briefings,Footnote 5326 or putting in place the necessary processes and resources at CFNIS Detachments to attend to the return of exhibits.Footnote 5327 There is still no response in the Notice of Action to some of the most serious factual findings on these matters.Footnote 5328 In particular, the Military Police provides no acknowledgement or answer to the serious finding of lack of professionalism on the part of those in supervisory and leadership positions who did not step forward, take responsibility, provide adequate explanations and apologies, or correct what needed to be corrected.Footnote 5329

A Failure to Learn Lessons

30. Throughout the events under review, the Commission often observed instances where the Military Police and its members had apparent difficulty in recognizing their own shortcomings and deficiencies and were unable to take timely action to address them. Seemingly set on justifying their actions or to preserve a positive image in the eyes of the complainants or of the public at large, MP members often proceeded to make matters worse by failing to provide timely, accurate and straightforward answers to the family and to the public, and by failing or refusing to modify a misguided approach.Footnote 5330 The Military Police often made statements that appeared to respond to the concerns, while taking few if any steps to actually address them. This was especially true in the official response to the suicide note issue, where the organization promised to take remedial steps but then proceeded to devote very little attention to the matter, either in terms of the revision of internal procedures or in terms of the explanations and any apologies provided to the complainants and to the public.Footnote 5331 Indeed, this pattern can be seen in substantially all of the interactions between the Military Police and the Fynes. The Military Police repeatedly sought to appease the Fynes by making what turned out to be empty promises and gestures and by providing vague explanations, but failed to take substantive steps to address the concerns.Footnote 5332

31. The response to this report can be seen in the same light. The Military Police flatly refuses to allow the Fynes or the public at large to even see the response. The response itself says very little of substance about the actual issues identified. Even as it rejects the vast majority of the recommendations, the rejection is couched in language that avoids meeting the issues head on or providing direct answers. Responses may on the surface give an impression that issues are taken seriously and will be addressed, but they stop short of acknowledging the deficiencies identified in the Interim Report or of agreeing to specific remedial action capable of repairing the deficiencies.

32. Overall, the Military Police response demonstrates an unwillingness or inability by the Military Police to recognize and address its own shortcomings. If any further proof were necessary of the need for independent oversight, it would be provided by the apparent inability of the Military Police to deal effectively with its own shortcomings, both during the underlying events and in its response to the Commission’s findings and recommendations arising from those events. This makes the Military Police’s apparent reluctance substantively to accept external oversight all the more troubling.

7.1 The Notice of Action

Introduction

1. The text of the Notice of Action raises a number of concerns.  In the limited number of instances where direct responses are given and reasons are provided for rejecting recommendations, the reasons suggest a failure to recognize the seriousness of the deficiencies identified in the Interim Report or a failure to understand the very nature of the issues to be addressed.  Many of the responses nominally accepting the recommendations, as well as the few substantive comments made about the Commission’s findings, further confirm a general failure to acknowledge or even recognize what went wrong in this case.

2. The responses included in the Notice of Action often fail to address the issues.  They avoid providing direct or clearly discernable answers.  The numerous non-committal responses to both the recommendations and the findings provide no information about whether and how the issues will be addressed.  Even responses directly rejecting the recommendations generally provide little information about anything the Military Police might do instead to address the issues.  The Notice of Action includes various statements indicating issues raised in the Report are being taken seriously and will be addressed, while at the same time providing practically no commitment to any meaningful substantive action to address them.

3. On the whole, the Notice of Action provided by the Military Police leaves the Commission and the Minister of National Defence (MND), as well as the parties and the public (assuming they are eventually allowed to see the Notice of Action), largely without meaningful answers.  Instead, the Commission is left with many of the same concerns expressed in the Interim Report and, in some cases, with even greater concerns.

The Rejected Recommendations

4. The Notice of Action reproduces each of the Commission’s 46 recommendations, and adds the Military Police’s response to each.  None of these responses indicate directly whether the recommendation is “accepted” or “rejected.”Footnote 5333  The majority of the responses reject the recommendations indirectly, by indicating they will be considered but not stating what will be done about them.Footnote 5334  A few of the responses express this rejection in more or less direct terms by taking issue with the substance of the recommendations and indicating, albeit generally without using the actual words, that the recommendations will not be implemented.Footnote 5335  These more direct rejections relate to many of the Commission’s most important substantive recommendations and to all but one of the recommendations related to police independence.Footnote 5336

5. The reasons provided for these rejections raise a number of concerns.  They either ignore the factual issues that made the recommendations necessary in the first place, or display a lack of concern or understanding for those issues.

Acquiring Sufficient Experience to Conduct Sudden Death Investigations

6. The Commission found numerous serious deficiencies in the conduct of the 2008 sudden death investigation in this case.  There were serious flaws in the investigation from the very beginning, when the scene of Cpl Langridge’s death was processed with no clear understanding of the evidence to be gathered, right to the end, when reaching what can only be described as obvious conclusions was greatly and unnecessarily delayed because of an inadequate understanding of what was necessary to rule out foul play.Footnote 5337

7. There were serious problems at every intervening step.  The investigation lacked a coherent plan and was poorly supervised.  The requirements for conducting warrantless searches and seizures were not understood.  Important witnesses were not interviewed.  Cpl Langridge’s suicide note was not disclosed and was eventually forgotten.  There was no information provided to the family about the investigation, and no steps were taken to return the exhibits seized until the Detachment was contacted by a third party months after the file was closed.Footnote 5338

8. The Commission concluded these deficiencies were largely due to the lack of adequate experience of the CFNIS in the conduct of domestic sudden death investigations.Footnote 5339

9. As a result, the Commission recommended sudden death investigations on defence property be led by experienced civilian police investigators until CFNIS members acquire sufficient field experience through secondments with civilian police forces.Footnote 5340  The Commission’s recommendations specified that acquiring sufficient field experience would require active and significant involvement in a minimum of 15 sudden death investigations.Footnote 5341  The Commission did not make these recommendations lightly.  The Commission was aware these steps were significant, and would require significant adjustments on the part of the Military Police.  However, based on the evidence, the Commission concluded these steps were the only reasonable way to address the issues and prevent a recurrence of the deficiencies observed in the 2008 investigation.

10. In the Notice of Action, the Military Police rejects all of the Commission’s recommendations on the conduct of sudden death investigations.  The Notice of Action states clearly the Military Police will continue to conduct sudden investigations on defence property.Footnote 5342  The Military Police indicates it will amend policies and “where required” will put in place protocols to allow the involvement of civilian police investigators in support of sudden death investigations on defence property.  However, and crucially, contrary to what was recommended by the Commission, the involvement contemplated will not permit their assignment as lead investigators in those cases.Footnote 5343  In terms of the secondments recommended by the Commission so as to allow CFNIS members to gain the necessary field experience, the Notice of Action does indicate agreement, in general terms, to seek more positions to allow secondment to civilian police forces.Footnote 5344  However, the Military Police does not appear to recognize such secondments as necessary for its members to gain sufficient experience in the conduct of sudden death investigations.  Instead, it commits to carrying out consultations and leveraging partnerships with other forces “to determine what additional opportunities may be available for CFNIS investigators to gain sufficient experience in sudden death investigations to qualify as lead investigators.”Footnote 5345

11. The Military Police also rejects the Commission’s recommendation as to what constitutes sufficient field experience to qualify as a lead investigator in sudden death cases, instead indicating it will determine and implement “best practices with respect to necessary qualifications […], subject to the exigencies of the service, to ensure that policing duties and functions are performed that meet the standards required of policing in Canada.”Footnote 5346 The Notice of Action does not even provide a general commitment to seek assistance from other police forces in sudden death cases, indicating only that assistance from experienced civilian police investigators, including the Military Police’s embedded RCMP Inspector, will be sought “where required if sufficiently experienced [MP] investigators are unavailable.”Footnote 5347

12. There is only one reason given for rejecting the recommendations.  It is listed several times in the Notice of Action, both in response to the factual findings of deficiencies in the sudden death investigation and in response to the recommendations themselves.  In response to the findings, the Military Police indicates it acknowledges the “relative inexperience” of the members who conducted and supervised the investigation in this case, but adds: “However, since 2008, the CFNIS has gained considerable experience with investigating sudden deaths with 173 investigations done by MP including 74 overseas.”Footnote 5348 In the response to Recommendation 3, the Notice of Action in essence repeats this formula, but with an unexplained difference in the statistics cited, stating: “Since 2008, MP have gained significant experience through the investigation of 178 sudden deaths occurring within their jurisdiction.”Footnote 5349

13. As the Military Police considers the CFNIS’ sudden death investigation experience to be sufficient at this time, it sees no need to implement immediate measures to increase this experience, and will not allow investigators from other police forces to act as lead investigators for the sudden death investigations within its jurisdiction.  No specific reasons are provided for rejecting the Commission’s recommendation as to the experience necessary for CFNIS members to qualify as lead investigators in sudden death cases.

14. The additional experience gained since 2008, which the Notice of Action describes as “considerable”Footnote 5350 and “significant”Footnote 5351, does nothing to allay the concerns that made the Commission’s recommendations necessary in the first place. The actual experience the Military Police is said to have gained in the interim period, on examination, proves to be extremely limited in real terms.  It cannot be sufficient to provide any assurances the MP members have sufficient field experience to qualify as lead investigators in sudden death cases.  In fact, the experience the Military Police states it has gained amounts to the equivalent of less than two weeks of work by the section of the Edmonton Police Service (EPS) in charge of investigating sudden deaths, performed each year by all CFNIS Detachments across Canada combined.

15. According to the Notice of Action, of the 173 sudden death investigations conducted by the CFNIS since 2008, only 99 were not overseas.Footnote 5352 Experience conducting investigations into battlefield deaths is significantly different from, and does not constitute adequate preparation for, the conduct of domestic sudden death investigations.Footnote 5353 The total experience gained by the CFNIS in the conduct of domestic sudden death investigations over six years therefore amounts to less than 17 cases per year, divided across the different detachments.  By comparison, the evidence before the Commission has shown the EPS alone investigates one to two sudden deaths each day.Footnote 5354  In one week alone, the EPS would often investigate nearly as many sudden deaths as all of the CFNIS detachments in Canada combined would investigate in one year.  Therefore, any one of the roughly 120 CFNIS investigatorsFootnote 5355 would be in the exceptional minority should he or she investigate even one sudden death case per year.  At this rate, it will still be many years before most CFNIS investigators gain the active and significant experience in 15 sudden death investigations recommended by the Commission as the minimum requirement,Footnote 5356 and many decades before they gain experience equivalent to that of even fairly junior investigators from civilian police forces working in large urban centers.  As such, it is difficult to understand how the limited additional experience acquired by the Military Police since 2008 could be viewed as sufficient reason for rejecting the Commission’s recommendations.

16. Based on the evidence heard in this Hearing, there are serious reasons to doubt any additional experience gained by the Military Police has as yet had an impact in terms of identifying the deficiencies noted in the conduct of the 2008 sudden death investigation or of preventing their recurrence.  Despite any additional experience gained in the interim, the CFNIS witnesses who testified at the Hearing in 2012 were still in the dark about the most important problems with the 2008 sudden death investigation.Footnote 5357  Instead, they agreed with the conclusion reached following a 2009 Quality Assurance review that the investigation was “technically sound.”Footnote 5358  It is clear from the testimony of the CFNIS witnesses, including those in supervisory and leadership positions, that the glaring deficiencies in the 2008 sudden death investigation conducted in this case had not been recognized by the CFNIS, its members or its chain of command by the time this Hearing was held in 2012.Footnote 5359  The limited additional experience gained within the organization by 2012 was not sufficient to allow its members to recognize and address the issues.  It is doubtful two more years of experience, amounting to a little over 30 cases divided among all Detachments and members, would make a significant difference in this respect, when the previous four years, involving a little under 70 cases conducted, did not.

17. The Notice of Action provides no indication the deficiencies in the investigation have been recognized or specifically addressed.  The responses to the findings do acknowledge the Commission’s conclusion that the serious deficiencies in the investigation mostly resulted from the lack of experience of the members who conducted and supervised it.Footnote 5360  However, the responses fall short of acknowledging the actual deficiencies identified, or the more generalized failure of the CFNIS as an organization to recognize and address those deficiencies prior to the date of the Hearing being held.Footnote 5361

18. The responses display a reluctance on the part of the Military Police to seek assistance from other police forces.  Having indicated clearly that civilian police investigators will not be called on to lead sudden death investigations on defence establishment property under any circumstances, the Notice of Action goes on to stress that even when it comes to seeking assistance from civilian police, the Military Police will retain for itself the discretion as to when to seek support and from whom.  In the response to Recommendation 3, the Military Police states “experienced federal, provincial or municipal police investigators, including our embedded RCMP Inspector, will be consulted where required if sufficiently experienced investigators are unavailable.”Footnote 5362  In rejecting the recommendation to put in place protocols to have civilian police lead sudden death investigations until the CFNIS acquires sufficient experience, the Military Police does agree to pursue protocols to secure the agreement of civilian police forces to “provide support to MP for the investigation of sudden deaths,” but specifies these protocols will only be sought, “where required.”Footnote 5363

19. The fact that there are cases where sufficiently experienced Military Police members will not be available, and that in such cases the Military Police still intends to have these members lead the investigation, albeit with the assistance of civilian police, is extremely concerning.  The Commission’s recommendation to have civilian police investigators lead the investigations until the Military Police gains sufficient experience was rejected based on a claim that the experience has now been gained.  No explanation is provided in the Notice of Action as to why, in cases where such experience is not present, the Military Police will only agree to seek assistance and not to allow other, more experienced police members to lead the investigation.  The apparent intention to continue conducting sudden death investigations even where sufficiently experienced MP investigators are not available, seems the ultimate demonstration of lack of recognition by the Military Police of the Commission’s findings about what can (and did) happen when inexperienced investigators and supervisors are put in charge of a complex investigation.

20. The insistence on not seeking assistance in all cases is also surprising.  Whatever view one may take as to the sufficiency of the experience acquired by the Military Police, it is clear that in all but the rarest of circumstances, civilian police agencies would have far more experience.  As such, it is difficult to understand why the Military Police would not wish to ensure its members are able to benefit from this assistance and mentorship in as many cases as possible.  Instead, the Military Police indicates assistance will be sought only in cases where sufficiently experienced Military Police investigators are not available.Footnote 5364  The manner in which the sufficiency of the experience will be determined is not revealed in the Notice of Action, as it is stated it will be determined based on future research into best practices and policing standards.Footnote 5365

21. Relying on Military Police members who may themselves lack sufficient experience to determine whether and when to seek assistance is also problematic.  In this case, the CFNIS had available an embedded RCMP Inspector at the time of the sudden death investigation.  Significantly, he was not consulted by any of the investigators or their superiors.Footnote 5366 Not surprisingly, those who lacked the experience to conduct the investigation also lacked the ability to recognize their own need for guidance.  Indeed, as the Commission has found in this Report, it is not reasonable to expect inexperienced members to be able to recognize their own shortcomings or needs.Footnote 5367 Yet, based on the responses in the Notice of Action, it appears this is precisely what the Military Police intends to do, leaving it yet again in the hands of members with limited experience to determine whether and when it will be advisable or necessary to seek guidance from outside investigators with more experience.

22. On the whole, the evident unwillingness to seek meaningful assistance and involvement from other police forces that do have the necessary substantive experience can be seen to indicate a disregard for the seriousness of the issues observed in this case.  Similarly, the rejection of the Commission’s recommendations on the basis that sufficient experience now exists, when the additional experience is very limited, leaves open the question whether the Military Police in fact understands or appreciates the nature and seriousness of the deficiencies identified during this Hearing.

Maintaining Separation between the CAF and the MP in Media Relations Matters

23. The Notice of Action rejects the Commission’s findings and recommendations on media relations matters affecting both the Canadian Armed Forces and the Military Police.Footnote 5368

24. The first recommendation on this issue appears, to a certain extent, to be accepted in principle.  The Commission recommended providing policy guidance to MP members with respect to media and public relations practices, in order to safeguard both the fact and the perception of police independence.Footnote 5369  In the response, the Notice of Action states as part of the ongoing review of MP policies, the relevant order will be reviewed, and the Military Police will then “consider the wording and spirit of the Commission’s recommendation in order to safeguard both the fact and the perception of police independence.”Footnote 5370  Since the recommendation was general in nature, and simply called for policy guidance to be provided, it may appear it was accepted: the Military Police does have an Order related to these matters and plans to review it, keeping in mind the principles mentioned in the Commission’s recommendation.

25. However, the earlier text in the same response, referring to the coordination of media relations matters and citing a number of existing policies that do not address the Commission’s concerns,Footnote 5371 appears to indicate that, despite the expression of agreement in principle, the Military Police does not in fact accept or share the Commission’s concerns about the impact of media relations practices on police independence. These are the very concerns that brought about this recommendation.  Further, in other responses, the Military Police rejects all of the recommendations about specific content to be included in the policies and protocols on media relations.Footnote 5372  As such, the totality of the responses in the Notice of Action show that both the text and the intent or “spirit” of the Commission’s recommendations on this topic are being directly rejected by the Military Police.  Only the principle that policy guidance should be provided appears to be accepted, but the substantive reasons why the policy guidance is thought to be necessary, and the substantive content of what that guidance should be, are clearly rejected.

26. The reasons provided for this rejection raise several concerns.  Taken together, they lead to the conclusion the Military Police either misunderstands the requirements for police independence or does not fully appreciate the importance of taking all steps necessary to protect and demonstrate its independence.

27. The responses draw a distinction between the Military Police’s independence when it comes to the conduct of investigations, and the Military Police’s status as just another unit of the CAF for all other matters.Footnote 5373 The Notice of Action states:

The CFNIS conducts its policing duties and functions independent of the Chain of Command with its own integral CF PAFFO [Public Affairs Officer] support that releases police information on the sole authority of the CFPM.  It must be noted however, that the CFMP Gp is organized as a unit of the wider Canadian Armed Forces and not a police force governed by its own Police Act.  It is subject to the same policies and administrative procedures as any other unit in the CAF and therefore all non-police related comments and communications approaches must be processed in coordination with the wider CAF.Footnote 5374 [Emphasis added]

28. The responses also refer to a list of existing policies provided to all Military Police members on the issue of media and public relations practices.Footnote 5375  The list specifically refers to a CAF Order stating Public Affairs is a responsibility of the CAF and DND Chain of Command.Footnote 5376

29. This approach fails to recognize the independence issues that arise when a police force is seen to deliver messages in common with the entity it is charged to investigate.Footnote 5377  It was precisely these issues that were discussed in the Commission’s Interim Report and that the recommendations sought to address.

30. The Notice of Action repeatedly insists on the fact the Military Police is solely responsible for preparing its own public affairs documents.Footnote 5378   Based on the responses, it appears the Military Police considers this to be sufficient to address any issues related to police independence.  However, as the Notice of Action itself makes clear, this arrangement still leaves open the possibility that the Military Police’s messages will end up merged with CAF messages;Footnote 5379 will be delivered by the CAF;Footnote 5380 will contain CAF messages;Footnote 5381 or will be prepared following consultation and coordination with the CAF – all of which will take place in a non-transparent way and without clear lines of authority.Footnote 5382  The Commission has found all of these eventualities raise concerns in terms of fostering confidence in Military Police independence and hinder the Military Police’s ability to maintain and demonstrate its independence.Footnote 5383 Nevertheless, the Notice of Action expressly refuses to provide any commitment to avoid those practices.

31. The Notice of Action does not commit to the Military Police refraining from preparing joint media response lines with the CAF.Footnote 5384 It does not commit to any measures to ensure Military Police messages and information are communicated only by Military Police representatives and not by the CAF.Footnote 5385  It specifically states CAF messages can and will at times be included in MP statementsFootnote 5386 and that the Military Police at times will participate in joint statements with the CAF.Footnote 5387  Although the Notice of Action does indicate the CFPM is “steadfast on the question and maintenance of police independence with respect to information relating to police investigations,”Footnote 5388 the response does not commit to the Military Police in principle refraining from participating in joint statements with the CAF about a specific investigation, but only states the CFPM will “not normally” participate in such statements.Footnote 5389

32. All of these responses amount to a rejection of any need for institutional separation of messages between the Military Police and the Canadian Armed Forces. The Military Police does not appear to understand the risks involved in failing to maintain such a separation and has made it clear it is not willing to take steps to address such risks.

33. The responses in the Notice of Action regarding issues of coordinated messaging raise similar concerns. They tend to indicate that when it comes to media relations, the goal of ensuring coherence of CAF-wide messages takes precedence over the goal of demonstrating Military Police independence. The Notice of Action repeatedly refers to the “close coordination” conducted with the CAF in media relations matters and, in particular, to the participation of the Military Police PAOs in daily CAF-wide coordination meetings, as a reason for rejecting the recommendations to establish policies and protocols to protect Military Police independence in media relations matters.Footnote 5390 The fact all the PAOs would have the same awareness as a result of their coordination is not an answer to the issues raised regarding independence.  To the contrary, it is precisely the sort of informal coordination cited with apparent approval in the Notice of Action that puts Military Police independence at risk.Footnote 5391

34. In this case, the Commission has found extensive consultation and coordination occurred at the PAO level.Footnote 5392 Although in practice other CAF organizations tended in most cases to defer to the Military Police’s decisions about the release of its information, there was no official policy or framework formalizing this arrangement.  This meant the ability of the Military Police to make decisions about its messages was not protected.Footnote 5393  The existing informal process for consultation and coordination and its lack of transparency and official framework thus risked creating the impression the CAF was in control of the Military Police’s messages.Footnote 5394  The Notice of Action does not refer to any formal policies, frameworks or protocols protecting the Military Police’s ability to make decisions about the release of its information.  The list and the description of existing policies provided does not point to any policy formalizing the authority of the Military Police to make final decisions about its messages and public statements.Footnote 5395  Instead, the list includes reference to a policy indicating Public Affairs are the responsibility of the CAF and DND Chain of Command.Footnote 5396  Nevertheless, the Military Police rejects the Commission’s recommendation to establish protocols for consultation at a higher level and in a more transparent manner, citing the “robust media relations procedures already in place.”Footnote 5397

Providing Separate Legal Representation for Subjects of a Complaint

35. The Notice of Action directly rejects the recommendation to enter into negotiations with appropriate Government officials to ensure Military Police members who are the subject of a complaint can be compensated for the cost of retaining independent legal counsel to represent them in Public Interest Hearings.Footnote 5398

36. This recommendation was made because of the issues that can arise when Government counsel jointly represent the subjects of the complaint and numerous other individuals and institutions connected with the CAF and with Government.  The Commission has found this is problematic not only from a practical point of view, but equally from the perspective of protecting public confidence in the integrity of the PIH process by preserving the fairness and the appearance of fairness of the process, and by avoiding the appearance of conflicts of interest.Footnote 5399

37. In rejecting the recommendation, the Notice of Action simply states the Military Police is satisfied the current government policy meets its needs and notes the existing policy already features a process allowing private counsel to be requested and appointed “where warranted.”Footnote 5400  This response fails to address the Commission’s concerns.  Those concerns are precisely related to the operation of the existing policy, which requires the subjects of the complaint to either accept representation by DOJ counsel paid for by the Government, or object and go through a long and arduous process for obtaining independent representation, with the final decision as to whether the cost will be covered remaining in the hands of the Government.Footnote 5401  As such, the reasons provided for rejecting the recommendation are not satisfactory and fail entirely to address the concerns about the impact of the existing policies on the PIH process and on the subjects of complaints.

Waiving Solicitor-Client Privilege

38. The Notice of Action rejects all of the Commission’s recommendations related to the waiver of solicitor-client privilege in cases where privilege claims can compromise the Commission’s access to relevant information and its ability to exercise its statutory oversight mandate.Footnote 5402  Also rejected is the recommendation to delegate to the subjects of complaints the decision as to whether to waive or to claim privilege in instances where the privilege invoked relates to their own legal interests.Footnote 5403

39. The Commission recommended first that the Military Police support the establishment of an arrangement allowing the Commission to review potentially privileged materials while keeping them confidential, in order to allow the Commission to discharge its oversight mandate.  In rejecting this recommendation, the Military Police refers to the National Defence Act provisions stipulating the Commission may not accept or receive evidence or information that would be inadmissible in a court of law by reason of any privilege under the law of evidence.Footnote 5404 This rationale misses the point entirely.  If there is a waiver of privilege, then by definition the evidence or information is no longer inadmissible by reason of privilege.

40. The Commission also recommended the Military Police make specific recommendations to the Minister of National Defence that, rather than invoking privilege on a blanket basis, the Minister consider potential claims of solicitor-client privilege related to information relevant to a PIH, on a case-by-case basis; that the Minister consider waiving privilege with respect to communications relevant to the subject matter of a PIH; and that the decision to claim or waive privilege, where the privilege relates to the legal interests of the subjects of a complaint, be delegated to the subjects.  In rejecting all of these recommendations, the Military Police simply states “the Commission is always able to make a request for waiver of solicitor client privilege to the Minister of National Defence on a case-by-case basis.”Footnote 5405

41. The Commission’s recommendations were made to address the concerns that arose in this case as a result of the broad and categorical claims of privilege made with regard to materials clearly relevant to the PIH process, including in respect of advice received by the Military Police during the investigations at issue, as well as information available to the Military Police during the investigations about the advice received by the members whose conduct the Military Police was investigating.Footnote 5406  The Commission noted, in particular, the subjects of complaints may themselves wish to waive privilege in order to explain their actions, particularly where the claims relate to advice they received during the investigations.Footnote 5407  This would put Government counsel simultaneously representing the subjects as well as the CAF and the Minister in a difficult position.Footnote 5408  Having requested a limited waiver from the Minister of some of the privilege claims, and having had this request categorically denied, the Commission therefore made recommendations to address these issues by encouraging a more specific, case-by-case consideration of privilege claims, rather than have the Minister continue to advance the sorts of blanket claims that were made in this case.Footnote 5409

42. The Military Police response to these recommendations does not address or acknowledge any of these concerns.  Based on the responses in the Notice of Action, it does not appear the Military Police understands or is sensitive to the consequences of an unnecessary invocation of solicitor-client privilege on the ability of the Commission to discharge its mandate or to the fact that, in some cases, such claims of privilege will prejudice the interests of its own members who are the subjects of complaints.

43. In rejecting the recommendations relating to separate representation and waiver of solicitor-client privilege, the Military Police also appears to reject the need for additional safeguards to ensure the broader interests of the CAF or DND do not take precedence over the interests of its individual MP members.  This, like the rejection of the recommendations related to media relations and to the use of CAF administrative investigations by the MP,Footnote 5410 raises concerns about the Military Police’s understanding of the importance of fostering confidence in its independence and about its willingness to take steps to achieve this.

Investigating Negligence-Related Issues Separately

44. Another rejected recommendation – although the rejection is less directly stated – relates to the creation, in cases of sudden death, of a separate investigative file to investigate the possibility of criminal or service charges, particularly those related to negligence, where circumstances surrounding the death give rise to the possibility of such charges.Footnote 5411

45. The Commission made this recommendation because of the failure to separate the sudden death investigation from the investigation of possible criminal or service offences, which may have been a factor that contributed to the confusion and inadequacy of the limited investigation conducted into the suicide watch issue during the 2008 sudden death investigation.Footnote 5412  This recommendation was also inspired by the testimony of the Military Police members themselves.  All of the MP witnesses who discussed this issue, including two former and one current (at the time of testimony) CFNIS Commanding Officers, unanimously testified it would have been the “best practice” or at least preferable to investigate potential service or other offences separately from the sudden death investigation itself and that a separate General Occurrence (GO) file should have been opened to investigate the suicide watch issue, had an investigation of the issue been deemed necessary.Footnote 5413

46. In light of this evidence, the response included in the Notice of Action is surprising.  It states where circumstances surrounding a sudden death give rise to the possibility of criminal or service charges, “such matters are generally investigated together under one GO file.”Footnote 5414  It then adds the Military Police will liaise with civilian police to develop an order “that is reflective of best practice” in this respect.Footnote 5415  The Notice of Action contains no information explaining why the general practice described is different from what CFNIS witnesses described, during their testimony before the Commission in 2012, as the preferable or best practice.  There is also no information about any inquiries made into what the “best practice” actually is, and whether it differs from what the Military Police witnesses stated it is when they testified in 2012.

Confirming Allegations with Complainants

47. A further recommendation directly rejected in the Notice of Action relates to the importance of ensuring allegations are properly understood.Footnote 5416  The Commission recommended the CFPM direct complex allegations or complaints be specifically reviewed with the complainant by the MP investigator, and that the investigator verify with the complainant whether a complaint is being made and what it is about.  In rejecting this recommendation, the Notice of Action states the CFPM is satisfied this is already covered as part of the basic investigator training.Footnote 5417  The response adds MP members “are aware that complex allegations must be understood in order to adequately investigate complaints made to police.”Footnote 5418  While it is to be hoped this is indeed the case, the response fails to acknowledge or recognize the Commission’s findings about the serious issues that arose in this case precisely as a result of a failure to understand allegations.

48. The Commission has found the MP members involved in the 2009 investigation failed to investigate the central issue requiring investigation because they did not properly identify and understand the allegations.Footnote 5419  This led to numerous deficiencies in the investigation and to an ultimate failure to answer the actual question brought to the Military Police for investigation.Footnote 5420  The Notice of Action contains no indication these deficiencies are acknowledged,Footnote 5421 and the response to the Commission’s recommendation for a specific direction to be given about this matter provides no explanation as to why, if this is already well understood by all MP members, the unfortunate failures observed in the 2009 investigation could nevertheless occur without any of the investigators or supervisors involved taking steps to clarify the allegations.

Recommendations Nominally Accepted

49. While the Notice of Action does not clearly state whether each recommendation is accepted or rejected, the comments included appear to indicate that approximately 30% of the recommendations are in fact being accepted.  However, it is notable that only half of the responses appearing to accept the recommendations do so without qualification and without raising additional issues.  The recommendations accepted without apparent qualification generally relate to minor, technical or obvious steps.Footnote 5422  Only one refers to a general principle, indicating agreement with the idea that the revision of suicide note policies should include a focus on any apparent wishes of the deceased that may need to be disclosed to the family or other appropriate persons before the funeral.Footnote 5423  However, even this is only a commitment to consider the principle as part of the ongoing review of policies, and it is not accompanied by any commitment in the other responses as to specific steps, even very basic ones, to be taken to put the principle into effect.  The Notice of Action does not indicate whether the Military Police agrees with any of the recommendations made by the Commission about the content of the suicide notes policies,Footnote 5424 even such basic recommendations as adopting policies favouring early disclosure of the contents of suicide notes unless a compelling reason not to do so exists.Footnote 5425

50. This leaves only one positive response on a point of substance.  The recommendation to enter into immediate discussions to ensure the Military Police assumes responsibility to make decisions about the disclosure of its information pursuant to the ATIP process appears to be accepted at least in principle, albeit the response remains somewhat non-committal, stating the Military Police will “explore the feasibility” of obtaining these delegated powers.Footnote 5426

51. The other responses nominally accepting the recommendations raise concerns, in some cases quite serious ones, in that they point to a failure to acknowledge the deficiencies identified in the findings, or they fail to provide an unqualified, complete or clear answer.

Failure to Acknowledge Deficiencies

52. Many of the responses nominally accepting the Commission’s recommendations state that policies, training or practices recommended by the Commission were already in place and will continue to be appliedFootnote 5427 or, even more problematically, that it is already the policy to take the recommended action “where appropriate.”Footnote 5428  No explanation is provided as to why or how the serious failures observed in this case could still have occurred, if it were indeed the case the recommended remedial policies, training or practices were already in place, nor is there any indication of any additional measures intended to be put in place to prevent recurrence.

53. In some cases, these troubling responses relate to particularly egregious failures, such as the failure to provide updates and information to the Fynes during the 2009 and 2010 investigations.  The Commission found the MP members involved in these investigations and, in particular, the Officer Commanding the CFNIS Detachment, failed to provide the basic updates and information the Fynes were entitled to receive, instead leaving the Fynes without contact or information for weeks and months at a time, with no reasonable explanation or justification being provided for this failure.Footnote 5429 The Commission thus recommended that, in addition to the briefings specifically provided for in the Sudden Death SOP, the CFNIS provide ongoing contact, information and services for the family of the deceased in death investigations and for complainants in other investigations, and that contact and services be at least at the same level as services provided to victims pursuant to applicable victim services policies.Footnote 5430

54. In response to this recommendation, the Notice of Action states “it will remain CFNIS policy that, where appropriate, the CFNIS will provide ongoing contact, information and services for the family of the deceased in death investigations and for complainants in other investigations pursuant to applicable victim services policies.”Footnote 5431  The response contains no acknowledgement of the fact this policy was not followed at all in this case.  The response to the related finding also contains no such acknowledgment.Footnote 5432  By indicating the ongoing information and contact are provided “where appropriate”, and by not commenting on what happened in this case, the response to the recommendation leaves a troubling uncertainty as to whether the CFNIS’ interactions with the Fynes in this case were in fact considered “appropriate”.  If this was not the message the Military Police intended to convey, and if the response to the Commission’s findings and recommendations on this important issue was simply meant to indicate no change in policy is necessary because the appropriate policies are already in place, the response should also, at a minimum, have contained an acknowledgment that the interactions with the Fynes in this case do not represent the conduct expected of MP members.

55. Similarly, the response to the Commission’s recommendations about training to ensure the required knowledge on the part of MP members about the law of search and seizure, and especially about the need to obtain search warrants, was surprising in light of the evidence in this case.  The Commission has found the members involved in the 2008 investigation demonstrated a flagrant lack of understanding of the most basic legal requirements pertaining to search and seizure.Footnote 5433  Alarmed by this clear evidence of incomplete or defective understanding of the law of search and seizure, the Commission recommended mandatory training for MP members with respect to police powers of search and seizure and, in particular, the circumstances when warrantless searches can be conducted.  In response to all of these recommendations, the Notice of Action states the CFPM is “satisfied that all MP trained at the Academy already receive this training.”Footnote 5434  This response does not address the serious failures observed in this case.    The response also adds that MP members “have access to legal advice in the field with respect to police powers of search and seizure.”Footnote 5435  Since the MP members involved in this case did not seek legal advice as they apparently did not recognize it would have been needed, this also does nothing to address the issues outlined in the Commission’s Report.

56. The deficiencies observed in this case cast doubt on whether the existing search and seizure training is adequate, or at a minimum indicate a serious need for refresher training.  In light of the evidence clearly showing some members were unfamiliar with even basic requirements for conducting police searches, it is surprising there does not appear to be any great concern on the part of the Military Police leadership and that the Notice of Action does not provide any explanation of what action, if any, will be taken to address such deficiencies.  The apparent lack of urgency about this matter does nothing to lessen the Commission’s alarm.

Qualified and Incomplete Responses

57. A few of the responses in the Notice of Action appear to accept the recommendations, but other responses show their substance is in fact rejected or accepted only in a limited or qualified manner.  Hence, the first recommendation related to media relations matters appears, on its face, to be accepted, since the Military Police agrees to provide policy guidance in line with the principles in the Commission’s recommendation.Footnote 5436  However, the remainder of the text in the response,Footnote 5437 and the other responses on the same topic,Footnote 5438 show this “acceptance” is more akin to a rejection, in that all of the specific recommendations about the content of the policy guidance are being directly rejected, and the very principles on which the Commission’s recommendations are based are directly challenged.Footnote 5439

58. Similarly, the responses to the Commission’s recommendations on the use of CAF administrative investigations by the Military Police purport to accept a general principle, but subsequent responses cast doubt on whether it is in fact accepted or, at a minimum, show that any acceptance is heavily qualified.  In Recommendation 36, the Commission recommended policy guidance and training be provided to MP investigators on the challenges and pitfalls of utilizing materials from CAF administrative investigations.  In response, the Notice of Action states that as part of the review of all MP policies carried out for the purpose of converting them into MP Orders, the Military Police will develop an order “to address the use of material from a concurrent administrative investigation.”Footnote 5440  While the response does not address at all the recommendation to provide training on this topic,Footnote 5441 the recommendation to provide policy guidance does appear to be accepted in principle.  However, in subsequent responses, the Notice of Action rejects all recommendations on the specific content of the policy guidance to be provided, stating instead the Military Police will “consider best practices and the wording and spirit of the Commission’s recommendation” in devising its policies.Footnote 5442  Further, the subsequent responses add an important qualification to the apparent commitment in the response to Recommendation 36 to develop an order on this topic, in that they state such an order or policy will be developed only if required.Footnote 5443

59. The response to Recommendation 7d is also incomplete.  There, the Commission recommended putting into effect policies on supervision that would require supervisors to record in the investigative file any directions given with respect to the conduct of an investigation, including the reasons for those directions.  The response states a new order will be developed and “will include a requirement that any directions given as oversight or supervision will be entered in SAMPIS.”Footnote 5444  As such, the response clearly accepts one aspect of the recommendation. Notably, however, the response is silent as to whether the reasons for the directions will also be recorded in the file.

Comments on the Findings

60. The responses to the Commission’s findings included in the Notice of Action generally indicate simply that each finding is “noted”, and do not state whether or not the finding is agreed with, nor what action will be taken about it.Footnote 5445

61. These responses add up to nothing more than an acknowledgment of receipt and as such are utterly devoid of content.  Only one of the responses acknowledges the deficiencies identified and discusses measures taken to address them.  In response to the finding that the CFNIS members failed to complete the 2009 and 2010 investigations within a reasonable time, the Notice of Action states: “the CFPM recognizes the importance of timely investigations.  He has addressed timeliness of investigations in Commander’s O-Groups and will continue to do so.”Footnote 5446

62. Most of the other responses either include no comments on the substance of the finding,Footnote 5447 or no comments at all beyond indicating the finding is noted.Footnote 5448  A few of the responses include comments that address matters generally related to the topic at hand, but do not address the actual finding.  A few other responses include comments that are more directly related to the finding, sometimes appearing to acknowledge some of the issues and other times appearing to debate the merits of the finding.  These somewhat more substantive responses generally show the issues raised in the Commission’s Report are still not understood, and even deficiencies that purport to be acknowledged have not in fact been addressed or even fully recognized.

Sidestepping the Issues

63. In response to the finding of serious deficiencies in the 2009 investigation, including the “fundamental flaw” of failing to seek legal advice, the Notice of Action indicates it should be noted “the CFNIS has an embedded Legal Adviser and investigators are and will continue to be encouraged to seek legal advice where required.”Footnote 5449  This response does nothing to address the finding that in the course of the events under review, and in particular during the 2009 investigation, regardless of their potential access to legal advice, the investigators and supervisors failed to seek such advice, since they were apparently unable to recognize issues or situations where it was obviously required.Footnote 5450

64. In another instance, the Commission found there was no evidence the Fynes were offered a common briefing about the CFNIS investigations and the BOI.  However, the Commission noted this impression may have resulted from the fact the CFNIS agreed to communicate information to the Fynes through a member of the CAF, who was also providing information about other CAF processes and communicating the CAF’s positions on other issues.  This multiplicity of sources for the messages being communicated might have led to confusion about the specific role of the Military Police, a result that was problematic in terms of maintaining confidence in Military Police independence.Footnote 5451  In response to this finding, the Notice of Action states: “The only source of information about CFNIS investigations is the CFNIS.”Footnote 5452  It then adds the CFNIS conducts its policing duties independently of the CAF Chain of Command and “all future family briefings will be conducted solely by MP.”Footnote 5453  This response articulates an appropriate principle, but it does not address the issues discussed in the finding.  The family briefing in this case was in fact always intended to be conducted solely by the Military Police.Footnote 5454  However, the CFNIS was not the only source of information about its investigations, since it agreed to communicate this information to the Fynes through a CAF member.Footnote 5455  If the response included in the Notice of Action is meant to indicate such communication with complainants through the CAF will not happen again in the future, this is a welcome development.  However, as formulated, the response does not indicate any recognition that what actually happened constituted a misguided approach, nor does it directly address the matters discussed in the finding.

65. Similarly, in response to the Commission’s finding that the unqualified statement in the written briefing provided to the Fynes indicating the National Defence Act trumps all provincial law was inaccurate and that a legal opinion would have been necessary to clarify the situation, the Notice of Action states Military Police members “are trained at the MP Academy to recognize the interaction between federal and provincial laws,” and adds the members “are and will continue to be encouraged to seek legal advice where required.”Footnote 5456  This response again does not address the actual finding.  If anything, it tends to indicate the deficiencies identified have not been acknowledged or perhaps have not been understood.  If Military Police members are indeed trained to recognize the interaction between provincial and federal laws, the training has obviously proven to be inadequate in this case.  It is of little comfort to learn MP members have access to legal advice where required, where the events in this case have demonstrated they may not be able to recognize when such advice is in fact required.

Failing to Acknowledge or Understand the Deficiencies

66. The response to the finding about the shocking deficiencies in the way the suicide note was handled is a prime example of a response indicating the underlying issues are still not understood.  In response to the Commission’s finding about the failure to disclose the suicide note and about the inadequate manner in which the matter was subsequently handled, the Notice of Action provides an acknowledgment of sorts with respect to at least some of the issues, indicating “the CFPM recognizes the importance of providing the suicide note to the family.”Footnote 5457  However, the response then proceeds to refer back to the responses to the recommendations related to the return of exhibits, which simply state the recommendations will be considered.Footnote 5458  It contains no comments or acknowledgment whatsoever about the deficiencies specifically identified in the finding as to how the suicide note issue was handled after the initial failure to disclose the note was discovered.

67. In a subsequent response, the Notice of Action states policies related to suicide notes will be revised and “will provide greater clarity for distribution of suicide notes in non-criminal cases.”Footnote 5459  This qualifier is troubling in the extreme.  Many of the issues underlying the disastrous way the suicide note was handled in this case are rooted precisely in the investigators’ and their superiors’ difficulty in recognizing what constitutes a non-criminal case, and in the unwarranted invocation, both at the time and subsequently, of a rigid and blinkered definition of the requirements for classifying a case as non-criminal, as a justification for delaying disclosure of the suicide note.Footnote 5460  In the result, this response negates the purported acknowledgment of the deficiencies, as it tends to indicate the issues are not understood, particularly since the Notice of Action provides no response to any of the Commission’s specific recommendations about the content of the policy guidance to be provided on suicide notes or the manner in which the appropriate time for disclosing suicide notes should be determined.Footnote 5461

68. The responses to the findings related to the conduct of the sudden death investigation raise similar concerns.  In response to the Commission’s finding about the lack of experience of the MP members involved, the Notice of Action does state the CFPM “acknowledges the relative inexperience of the members who conducted and supervised these investigations.”Footnote 5462  However, the specific deficiencies in the investigation identified in the findings and in the Report are nowhere acknowledged in the Notice of Action.Footnote 5463  Instead, the Military Police relies on what the Commission regards as clearly insufficient experience acquired since the events, as a basis to reject the recommendations to ensure properly experienced investigators are available to conduct such investigations, while promising to have the RCMP assess the investigation.Footnote 5464

69. The Military Police plan to have the RCMP review and re-do the investigations as necessary raises obvious issues in terms of accountability and transparency.Footnote 5465 Of particular relevance to the present discussion, it also leaves many of the findings relating to the serious deficiencies in the investigations entirely unaddressed, particularly in relation to the sudden death investigation.  While the Commission found there were serious problems with the manner in which this investigation was conducted, it also found that in this case, the ultimate conclusion reached – that Cpl Langridge died as a result of suicide and that no foul play was involved – was correct.Footnote 5466  Nevertheless, in other cases, the deficiencies observed in the way this sudden death investigation was conducted, could lead to incorrect conclusions or to the contamination of evidence.Footnote 5467  A review by the RCMP focused on verifying whether any aspects of the investigation need to be re-investigated would not address any deficiencies in the conduct of the investigation that did not impact on the conclusions reached.  As such, a referral to the RCMP is of little utility in addressing the procedural and methodological issues identified by the Commission in the way the 2008 investigation into Cpl Langridge’s sudden death was conducted.

70. Other responses to the Commission’s findings appear to debate rather than to acknowledge the merits of the findings in question, but their substantive content still raises questions as to whether the issues have been understood.       

71. In one instance, the Commission found the Concluding Remarks for the 2008 investigation contained information that was inaccurate or not supported by the evidence uncovered during the investigation.Footnote 5468  The Commission also noted the CFNIS eventually modified the Remarks, but only because of the distress the Remarks caused to the Fynes and not because of any recognition they were inaccurate or unsupported.Footnote 5469  In response, the Military Police states CFNIS members “strive for accuracy and completeness in documentation following investigations.”Footnote 5470  It adds there are several layers of review, and that review by the MP Chain of Command will continue.Footnote 5471  It then states:

It must be noted, however, that the reports generated by the CFNIS document investigations carried out for the purpose of determining whether any crimes or breaches of the Code of Discipline have been committed and whether charges ought to be laid as a result.  These reports are not prepared for the purposes of informing complainants of the outcome of any investigation.Footnote 5472 [Emphasis added]

72. This comment is perplexing.  The Commission found precisely that the Concluding Remarks included in the investigative file were inadequate from an investigative perspective, as they did not reflect the evidence uncovered.  The fact the Remarks also caused distress to the Fynes was the reason invoked by the CFNIS to change them, not the reason the Commission found them problematic (although, considering the Remarks were otherwise inadequate, this aspect is not irrelevant in the Commission’s view).  Judging from the response, it appears unlikely the deficiency identified by the Commission has been understood.  On the contrary, the response appears to indicate the original Remarks are still considered substantively appropriate by the Military Police.  The Notice of Action misses the point entirely in maintaining that the impact of the Remarks on the Fynes should not be relevant.

73. In another instance, the Commission concluded the 2008 investigation was not, as had been alleged, overly intrusive in obtaining Cpl Langridge’s medical records.Footnote 5473  Instead, the Commission noted medical records were relevant, especially to the aspects of the investigation related to negligence-based possible service offences. Indeed, the Commission noted insufficient records were in fact obtained for these purposes.Footnote 5474  In response, the Military Police notes the finding, but adds: “As is the case for all evidence, medical records are obtained where necessary for the purposes of determining any indication on which to form a belief that there were reasonable and probable grounds to investigate any potential breaches of the Code of Service Discipline or potential criminal acts.”Footnote 5475  The Commission found in its Report that, on the basis of the information available, the negligence-related questions did need to be investigated in this case, and that in order to determine whether the materials could provide the necessary indications of potential offences having been committed, medical records and information needed first to be obtained and investigated.Footnote 5476  It appears the Military Police either rejects these conclusions or has not understood their implications.

74. The response to the Commission’s finding related to public affairs coordination also appears similarly to debate the merits, while – like other responses in the Notice of Action – at the same time showing  that the need for separation of messages between the CAF and the MP is neither accepted nor understood by the Military Police.Footnote 5477

Non-Committal Responses

75. More than half of the responses to the Commission’s recommendations provide no indication as to whether the recommendations will be implemented or not.Footnote 5478  These responses generally state the Military Police will consider the “wording and spirit” of the Commission’s recommendations as it reviews its policies and procedures.Footnote 5479  In some cases, the responses state instead that the Military Police will consider best practices.Footnote 5480  In other cases, they state the Military Police will consider both best practices and the Commission’s recommendations.Footnote 5481  In a number of  cases, the Notice of Action states policies will in fact be developed or amended, but does not indicate what the content of these policies will be.Footnote 5482  In yet other cases, the responses indicate policies will be developed or added only “if required”.Footnote 5483

76. As for responses to the Commission’s findings, most contain no comment on the substance of the finding.  As such, they provide no indication as to the position of the Military Police with respect to the finding.  One repeated variant of this type of non-response to the Commission’s findings, is for the text of the Notice of Action to refer back to the unresponsive answers provided in connection with the Commission’s recommendations on related topics.Footnote 5484  Another variant is to indicate an intention to consult the RCMP and to have the investigations “reviewed or redone at their discretion,” or to state inquiries will be made about best practices to adopt in such cases, without venturing any comment about what actually happened in this case.Footnote 5485  In other cases, the responses only state the finding is “noted” without adding any further comments.Footnote 5486

77. The Commission considers these non-committal responses to constitute a rejection of the findings and recommendations, and to amount to a rejection of the principles of accountability and transparency that are central to the operation of the oversight regime in place for the Military Police.Footnote 5487  This rejection is also manifest in the myriad ways in which the Notice of Action fails to provide information about what will be done to address the issues uncovered in this case, even where substantive responses appear to be provided, as well as in the way in which the comments that are included avoid addressing the actual issues.  The text of the Notice of Action, and the choices made about what responses are provided and not provided, are also a manifestation of this rejection.  The formulation of many of the responses gives the impression the Military Police is avoiding to the extent possible, having to state its rejection of the findings and recommendations directly, and is seeking to appear to agree with as many general principles as possible, without being willing to commit to any measures to implement these principles.

Failing to Say What Will Be Done

78. By definition, the responses indicating recommendations will be considered, do not provide any information about what will be done with respect to those recommendations.Footnote 5488  The non-committal responses to the findings similarly give no information about any measures to be taken to address the deficiencies.  This is hardly surprising, since these responses do not even indicate whether the deficiencies are recognized as such, let alone whether the Military Police intends to take any steps to address them.  This is also and perhaps especially true for the responses indicating the investigations will be reviewed by the RCMP and redone as necessary.  These responses provide no comment about the deficiencies in the investigations identified in the Commission’s findings.  It is not the case that the Military Police recognizes there were deficiencies and is proposing to have aspects that were improperly investigated re-investigated by the RCMP.  Rather, the Notice of Action provides no information about whether any deficiencies are acknowledged, and proposes to have the RCMP conduct its own assessment, in effect seeking a second opinion about whether there were any deficiencies in the investigations.  Only then, presumably, would it become relevant whether any action needs to be taken as a result. 

79. The responses that reject the recommendations directly most often similarly fail to provide information about what the Military Police plans to do, in this case, instead of following the Commission’s recommendations.  Having rejected the recommendations about the experience necessary to conduct sudden death investigations, the Notice of Action specifically fails to provide information about what experience is or will be considered sufficient for the MP members to qualify as lead investigators, instead indicating only that best practices in this respect will be “determined and implemented” in due course.Footnote 5489  The Notice of Action similarly fails to indicate under what circumstances experienced civilian police investigators will be consulted, instead stating only that this assistance will be sought “where required.”Footnote 5490  In the same vein, despite appearing to agree in principle to take measures to allow for more secondments to civilian police agencies, the Notice of Action does not even indicate whether such secondments will in fact be pursued to ensure MP members gain sufficient experience in sudden death investigations, instead indicating that the Military Police will engage in consultations to determine “what additional opportunities may be available” to gain this experience.Footnote 5491

80. In rejecting the Commission’s recommendation that MP personnel refrain from participating in joint statements or media lines with the CAF, the Notice of Action indicates clearly the Military Police intends to participate in joint statements relating to broader CAF/DND issues.Footnote 5492  With respect to statements about specific investigations, the Notice of Action states only that the CFPM will not “normally” participate in joint statements on such matters,Footnote 5493 but specifically fails to indicate under what circumstances the Military Police would participate, or to provide any information about how such decisions will be made.  The response provides no information about what will be done concerning joint media lines or about keeping contact with media separate, only stating the Military Police will “consider the wording and spirit of the Commission’s recommendation in order to safeguard both the fact and the perception of police independence.”Footnote 5494  In rejecting the recommendation that questions regarding Military Police matters asked during public events be answered only by MP representatives, the Notice of Action provides no concrete information about what will be done.  Instead, it states that according to CAF orders, “all CAF members may agree to be interviewed by the media in their official capacity provided it is to speak about what they do,” and adds media requests about Military Police work “must be carefully considered before being accepted,” going on to state that MP personnel must seek advice from their Chain of Command and from CAF Public Affairs Officers at the Base or Wing level.Footnote 5495  These are, perhaps, interesting facts about current policy, but they provide no information about what will actually be done to avoid a perception the Military Police lacks independence. This makes it difficult to come to conclusions about the adequacy of the Military Police response, even in cases where substantive responses to the recommendations purport to be provided.

Avoiding Direct Answers

81. In order for the Commission, the Parties and, ultimately the public to be able to assess the Military Police response to the events, it is necessary that they be able to discern what the response actually is.  To achieve this, the Military Police positions about the findings and recommendations must be stated clearly and directly.  The Notice of Action in this case does the opposite in practically all responses.

82. The lack of clear and direct responses is made apparent first by the fact that a careful reading and a detailed analysis of the text of the Notice of Action are required even to understand which findings and recommendations are accepted and which are rejected.

83. Most of the responses are expressed in language that avoids stating rejection of findings and recommendations in clear and direct terms.  Rather than indicating recommendations are rejected, the Notice of Action states they will be considered.  Rather than stating findings will not be acted on, the Notice of Action states they are “noted” and says nothing more, or refers to the answers indicating related recommendations will be considered.

84. Even where the substance of the recommendations is being rejected more directly, as is the case for the recommendations about the conduct of sudden death investigations, the language used often avoids expressing this rejection clearly.  A cursory review of the responses to Recommendations 2 and 4 could easily leave some readers with the impression the recommendations are generally being agreed with, when in fact they are not.Footnote 5496  In response to the recommendations to permit civilian police to act as lead investigators in sudden death cases on defence property and to establish the necessary protocols to put this arrangement into effect, the Notice of Action does not state the recommendations are rejected.  Instead, it reproduces verbatim the language of the recommendations, but substitutes the words in support for the recommended as lead investigators.”Footnote 5497  This two-word difference makes it clear the essence of the recommendations is being rejected, but this could easily be missed on a first reading.

85. Rejection of findings and recommendations is also not articulated directly where responses sidestep the issue, as is the case for those responses to the findings that contain comments generally related to the topic but that fail to address the actual finding.Footnote 5498  A similar failure to address the issue can be observed in the responses to the recommendations.  Many fail to address the concerns that made the recommendations necessary, but never do state clearly the Commission’s concerns are not being accepted or agreed with, nor explain why it is not felt necessary to take additional measures to address the identified concerns.Footnote 5499

86. The repeated acknowledgements of general principles, unaccompanied by any real engagement with the issues or commitment to take measures to address them are also examples of failure to provide direct responses.  Rather than stating the Commission’s findings, recommendations or concerns are not accepted, or are not seen as warranting taking the remedial steps recommended (or any steps at all), the Notice of Action sometimes purports to acknowledge the issues in broad terms, but then rejects or fails to respond to the recommendations, and/or fails to address the findings.

87. The Notice of Action contains several statements indicating “the CFPM recognizes the importance of providing the suicide note to the family,”Footnote 5500 but the recommendations about the policies to be put in place to ensure suicide notes are disclosed in a timely manner do not receive a response.Footnote 5501  The Notice of Action similarly indicates agreement with the general principle that the revision of suicide note policies should include a focus on apparent wishes of the deceased that need to be disclosed to the family before the funeral, but only commits to consider this principle in revising its policies, with no accompanying commitment to any specific steps to put the principle into effect.Footnote 5502

88. Similarly, the Notice of Action contains several statements purporting to recognize the importance of police independence.  It states the CFPM “is steadfast on the question and maintenance of police independence” when it comes to information about police investigations.Footnote 5503  It goes on to indicate the Military Police will consider some of the media relations recommendations “in order to safeguard both the fact and the perception of police independence.”Footnote 5504  Nevertheless, all but one of the specific recommendations related to police independence are rejected – often directly – with the Notice of Action also specifically failing to address the findings related to independence.Footnote 5505

89. The Notice of Action contains several statements indicating the CFPM “acknowledges the relative inexperience” of the members involved in the sudden death investigation,Footnote 5506 but fails to address the findings on the deficiencies in the investigation and rejects or fails to respond to the recommendations meant to address those deficiencies.Footnote 5507

90. In other cases, disagreement with the Commission’s findings or recommendations appears to be hinted at in the Notice of Action without being stated directly.  This tendency can be observed in the comments about the findings that appear to debate their merits without directly rejecting them.Footnote 5508  It can similarly be observed in the responses to the recommendations.

91. There is no discernible explanation in the Notice of Action as to why responses could be provided for some of the simple policy recommendations,Footnote 5509 but not for other, equally simple ones.Footnote 5510  It is difficult to understand, for instance, why the Military Police is able to tell the Commission it accepts the recommendation to prohibit the practice of making unattributed or misattributed modifications to GO file entries,Footnote 5511 but cannot say whether or not it accepts the recommendation to put into effect a policy directing senior MP advisors be alert to gaps in the experience of the personnel involved in complex investigations and manage resources accordingly,Footnote 5512 or whether or not it accepts the recommendation that its policies require Investigation Plans to set out the steps necessary to determine each of the issues requiring investigation and the link between the steps and the issues.Footnote 5513  If this is to be taken as indicating the Military Police disagrees with the recommendations it chose not to answer, that is never directly stated.

92. In some cases, the language in the Notice of Action appears to hint the Military Police in fact disagrees with some of the recommendations.  For example, there are instances that indicate the Military Police intends to inquire into best practices, but there is no statement of any intent to consider the recommendation.Footnote 5514  In other responses, there are statements reflecting the Military Police’s perception of the law or facts that appear to challenge the recommendations.Footnote 5515 This is particularly evident with respect to the return of seized exhibits or original suicide notes to the family, which the Notice of Action states is governed by inheritance law and CAF processes put in place to dispose of the personal belongings of deceased members.Footnote 5516  Because the responses fall short of indicating what will actually be done about the recommendations, these hints of disagreement remain at the level of nuance and are not amenable to meaningful substantive assessment.

Conclusion

93. The responses in the Notice of Action fail to acknowledge or recognize the serious deficiencies revealed through this Hearing or their underlying causes.  This failure to acknowledge or, in some cases, even understand the deficiencies is apparent in the non-committal responses in the Notice of Action.  It is evident in the problematic reasons provided for directly rejecting recommendations, and it is to be seen as well in the responses nominally accepting recommendations while insisting appropriate policies or training are already in place. There is no indication in the Notice of Action that the Military Police regrets any of the egregious deficiencies observed in this case, particularly in the interactions with the Fynes and the mishandling of the suicide note.  There is no indication as to whether the issues are even seen as serious failures, and certainly no indication as to how, if at all, they will be addressed.

94. In some cases, the responses in the Notice of Action raise more concerns than may have existed when the Interim Report was prepared. In particular, the responses raise new concerns about the Military Police’s understanding of the requirements of police independence and about its willingness to take the steps necessary to fully assert and demonstrate that independence.  The Commission’s Interim Report found practically all of the allegations of bias and lack of independence in this case to be unsubstantiated.Footnote 5517  Nevertheless, the Commission saw a potential risk to independence in some of the practices and procedures currently in place and accordingly recommended measures to provide greater protection for Military Police independence.  The Notice of Action rejects, directly or indirectly, all of these findings and recommendations, with the exception of one recommendation relating to the ATIP process.  In many cases, the rejection of the relevant recommendations is expressed in direct terms, and reliance is placed on CAF-wide processes.  This puts in question the Military Police’s appreciation of the importance of being seen to be independent and of fostering confidence in that independence.

95. On the whole, the Notice of Action fails to provide a meaningful response to the findings and recommendations.  Perhaps most troubling, the Military Police’s response to the Commission’s Report resembles its response at the time, to many of the events under review.  It creates an appearance of something being done without actually committing to doing anything of substance.Footnote 5518  The Notice of Action in substance rejects the majority of the Commission’s findings and recommendations, but avoids doing so directly and specifically fails to address the issues themselves.  In some instances, the responses given accept the more inconsequential aspects of the recommendations while rejecting their basic premise, as with the responses on matters dealing with sudden death investigations or media relations.  In other cases, the responses acknowledge broad principles while refusing to commit to making substantive changes in order to achieve these principles, except for superficial or technical matters.  The responses stating an intention to have the RCMP review the investigations may on the surface give an impression that issues are taken seriously and will be addressed but, like most of the other responses, they stop short of acknowledging  the deficiencies or of committing to take any specific step to address them.

SIGNED at Ottawa, Ontario.

(Original document signed by)
Glenn M. Stannard, O.O.M.
Chairperson

Appendix 1. Glossary of Terms / Acronyms used throughout this Report

Acronym Full Title
1 CMBG 1 Canadian Mechanized Brigade Group
2iC Second in Command
2Lt Second Lieutenant
AA Alcoholics Anonymous
Adj, Adjt Adjutant
AHE Alberta Hospital at Edmonton
AISC Administrative Investigation Support Centre
AJAG Assistant Judge Advocate General
AO Assisting Officer
ASU Area Support Unit
ATIP, ATI Access to Information and Privacy, Access to Information
AWOL Absent without leave
BAC Base Addictions Counsellor
BGen Brigadier-General
BOI Board of Inquiry
Capt Captain
Cdr Commander
CDS Chief of the Defence Staff
CDU Care Delivery Unit
CEA Canada Evidence Act
CF Canadian Forces
CAF Canadian Armed Forces (as of April 1, 2012)
CFAO Canadian Forces Administrative Orders
CFB Canadian Forces Base

CFLA

Canadian Forces Legal Advisor
CFNIS Canadian Forces National Investigation Service
CFPM Canadian Forces Provost Marshal
CLS Chief Land Staff
CO Commanding Officer
CoC Chain of Command
CO CFNIS, CO NIS Commanding Officer of the CF National Investigation Service
Col Colonel
CPIC Canadian Police Information Centre
CPKN Canadian Police Knowledge Network
Cpl Corporal
CWO Chief Warrant Officer
DAIP Director Access to Information and Privacy
DAOD Defence Administrative Orders and Directives
DCDS Deputy Chief of the Defence Staff
DAPA Director of Army Public Affairs
DCO Deputy Commanding Officer
DComd CF MP Gp Deputy Commander Canadian Forces Military Police Group
DDCS Director Defence Counsel Services
Det. Cdr Detachment Commander
Det. Insp. Detective Inspector
DMP Director Military Prosecution
DNA Deoxyribonucleic acid
DND Department of National Defence
DOJ Department of Justice
DPAO Director Public Affairs Operations
DPM Deputy Provost Marshal
Dr. Doctor
DSM Diagnostic and Statistical Manual of Mental Disorders
EGFS Edmonton Garrison Fire Service
EPS Edmonton Police Service
FCC Federal Court of Canada
GIS General Investigation Section
GO General Occurrence
HQ Headquarters
IAW In accordance with
ID, Ident Identification
Insp. Inspector
IP Investigation Plan
JAG Judge Advocate General
LCdr Lieutenant-Commander
LCol Lieutenant-Colonel
LDSH, LdSH Lord Strathcona’s Horse
LDSH (RC) Lord Strathcona’s Horse (Royal Canadians)
LEGAD Legal Advisor
LFPM Land Force Provost Marshal
LFWA Land Force Western Area
LGen Lieutenant-General
Maj Major
MCM Major Case Management
MCpl Master Corporal
ME Medical Examiner
MEL Medical employment limitations
MGen Major-General
MND Minister of National Defence
MP Military Police
MPCC Military Police Complaints Commission
MP HQ Military Police Headquarters
MPIR Military Police Investigation Report
MPPCC Military Police Professional Code of Conduct
MPPTP Military Police Policies and Technical Procedures
MPRR Member’s Personnel Record Resume
MRL Media response lines
MS Master Seaman
MWO Master Warrant Officer
NCO Non-commissioned officer
NDA National Defence Act
NDHQ National Defence Headquarters
NIS National Investigation Service
NOK Next of kin
OC Officer Commanding
OPP Ontario Provincial Police
OST Out of Service Training
PAI Personality Assessment Inventory
PAO Public Affairs Officer
PEN Personal Emergency Notification
PIH Public Interest Hearing
PLQ Primary Leadership Qualification
PNOK Primary next of kin
PO2 Petty Officer, 2nd Class
PPCLI Princess Patricia’s Canadian Light Infantry
Pte Private
PTSD Post-traumatic Stress Disorder
QA Quality Assurance
QL3/5/6A/6B Qualifying Level 3/5/6A/6B
QR&O Queen’s Regulations and Orders for the Canadian Forces
RAH Royal Alexandra Hospital
RCMP Royal Canadian Mounted Police
Ret’d Retired
RSM Regimental Sergeant-Major
SA Situational awareness
SAMPIS Security and Military Police Information System
SCC Supreme Court of Canada
SDB Supplementary Death Benefits
Sgt Sergeant
SI Summary Investigation
SNOK Secondary Next of Kin
SOP Standard Operation Procedure
S/Sgt Staff Sergeant
TCAT Temporary Category
UMS Unit Medical Station
VAC Victims Assistance Coordinator
VCDS Vice Chief of the Defence Staff
WO Warrant Officer
WR Western Region Detachment
WRT With respect to

Appendix 2. Decision to Conduct a Public Interest Investigation – April 29, 2011

April 29, 2011

Distribution List

Our File: MPCC-2011-004 (Fynes)

In accordance with the provisions of subsection 250.38(3) of the National Defence Act (NDA), this letter will serve as notice of my decision to cause the Military Police Complaints Commission to conduct a public interest investigation into the above complaint.

This complaint relates to three investigations conducted by the Canadian Forces National Investigation Service (CFNIS) after the complainants’ son, Corporal (Cpl) Stuart Langridge, committed suicide on March 15th, 2008.

The complainants allege that the first CFNIS investigation into their son’s death (the Sudden Death investigation) was not conducted in an impartial way, and that it tarnished their son’s reputation in an attempt to protect his Canadian Forces Chain of Command. They explain that their son, who had served in Bosnia and Afghanistan, was suffering from Post Traumatic Stress Disorder and depression, and committed suicide shortly after being ordered out of a psychiatric facility, when he had commented that he would rather kill himself than return to his Unit, and when the complainants had been told that he was under a suicide watch at his Unit. They allege that the CFNIS investigator made an incorrect finding about their son’s alcohol and drug addiction which was prejudicial to their son’s memory. They further allege that the finding in the CFNIS report that the military had made several attempts to help their son in dealing with his problems was incorrect and irrelevant to the investigation, and that it was intended to absolve their son’s Chain of Command of any liability. The complainants express concern that CFNIS did not possess the necessary independence to uncover and reveal information prejudicial to the Canadian Forces.

The complainants make other allegations about the conduct of the Sudden Death investigation. In particular, they complain about a failure by CFNIS to disclose the existence of a suicide note from their son and to provide a copy of the note for over a year after their son’s death; a failure to return their son’s personal property seized as exhibits for over a year after the investigation was concluded; erroneous indications provided to the Alberta Medical Examiner that their son was facing disciplinary issues; and a failure to show respect to their son’s body during the initial hours of the investigation. Further, the complainants were dissatisfied with the extent of the information that was redacted out of the copy of the investigation report they were provided, and they raised concerns about the justification for not providing them with more information about the investigation.

The complainants also take issue with two other CFNIS investigations. The first one (the 2009 investigation) was opened in November 2009, when the office of the Canadian Forces Ombudsman raised the possibility that there may have been a neglect of duty on the part of at least one CF member in representing the complainants’ son’s former common law spouse as his primary next of kin, despite knowledge that the relationship had ended prior to Cpl. Langridge’s death. The complainants indicate they have a direct interest in this investigation, since the designation of their son’s ex-girlfriend as primary next of kin has prevented them from making funeral arrangements for their son, and has required that they take court action to have records corrected. The second investigation (the 2010 investigation) was opened in April 2010, when the complainants formally requested that CFNIS investigate any criminal negligence committed by members of their son’s Regiment in ordering their son to leave the psychiatric facility shortly before his death, in imposing restrictive conditions on him in order to obtain further care, in ignoring his suicide risk which had been assessed as high, and in not conducting or not properly conducting a suicide watch to prevent their son’s death.

With respect to the 2009 and 2010 investigations, Mr. and Mrs. Fynes complain that they have not been kept updated on the progress of the investigations, and that a significant time period has elapsed with no apparent result. They raise issues about the CFNIS’ ability to conduct these investigations, and about its independence, in light of information they received indicating that updates on the NIS investigations would be incorporated into a CF debriefing on other matters. They further allege that, when they were advised that the investigations had been completed, the CFNIS inappropriately cancelled a briefing its members were supposed to provide on the investigations because the complainants requested that their lawyer be present. A written briefing was to be provided instead, and the complainants have recently been advised that it is currently being sent to them. However, they raise concerns about the delay in providing this briefing.

The conduct that is the subject of the complaint occurred during the period of March 2008 to the present. The complainants have already sought, and been granted, an extension of the time period in which to file their complaint in accordance with section 250.2 of the NDA.

In considering the public interest in conducting an investigation pursuant to subsection 250.38(1) of the NDA, I have noted the seriousness of the allegations made by the complainants, as well as the gravity of the underlying events. One of the primary functions of the Military Police is to ensure that members of the Canadian Forces act in accordance with the law and the military Code of Service Discipline. The allegations in this complaint, if true, raise issues about the MP’s ability to investigate and report on any misconduct by CF members with impartiality and independence. The possibility that a bias may exist – leading MPs to favour the CF Chain of Command in the conduct of their investigations or to feel in any way prevented from exposing information detrimental to the CF – goes to the core of military policing and of the MP’s ability to perform its important role. Even a perception that the MP lacks the necessary objectivity or independence to investigate the CF Chain of Command could negatively impact on public confidence in the MP. The possibility that this alleged lack of independence and impartiality could lead to delay in investigations and to an inability to keep complainants and individuals directly affected informed also raises important issues in terms of the MPs’ ability to fulfill their duties.

The allegations in this complaint, if true, may raise systemic issues relating to processes, policies or training, and the complainants have specifically requested that any such issues be examined by this Commission.

It is also a significant public interest consideration that this Commission’s conduct of an immediate, first instance investigation of this complaint will contribute to engender confidence in the process for the complainants. The events which gave rise to this complaint began over three years ago. Since then, Mr. and Mrs. Fynes have complained about the delay and difficulty in obtaining information about the investigations. More importantly, throughout their interaction with Military Police authorities and with the Canadian Forces more generally, and in part as a result of the conduct they complain about in this case, the complainants have indicated that they have lost faith in the Military Police and do not trust them. In their words, they feel that they have been “frustrated by a continuous campaign of obfuscation and ongoing indifference.” In terms of their overall interaction with the Canadian Forces, the Ombudsman reported that the complainants felt that they were being ignored and even silenced by the CF. They have indicated that they felt they had been deceived, misled and intentionally marginalized in their dealings with DND and the CF, and as a result had lost faith in the system. Under the circumstances, referring the matter back to the Canadian Forces Provost Marshal for an internal investigation to be conducted prior to affording the complainants an opportunity to request a review by this Commission would risk compounding the complainants’ distrust in military and MP authorities, and possibly delaying the resolution of their complaint. The complainants have expressed their wish to have this Commission conduct a public interest investigation, and I have taken those wishes into consideration as well.

For all of these reasons, I consider it advisable in the public interest, pursuant to subsection 250.38(1) of the NDA to cause this Commission to conduct an investigation into this complaint and, if warranted, to hold a hearing.

The complainants have not specifically identified the subjects of their complaint. They raise issues with the conduct of the investigators involved in all three of the investigations at issue, all conducted by CFNIS Western Region. This Commission will proceed with the identification and notification of the subjects once disclosure of the investigative files has been received and reviewed, and after an initial interview with the complainants has been conducted in order to clarify all of their allegations.

Yours truly,

(Original document signed by)
Glenn Stannard
Chair

Distribution List:

The Honourable Peter Mackay, P.C., M.P.
Minister of National Defence
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, Ontario – K1A 0K2

General W.J. Natynczyk, CMM, MSC, CD
Chief of the Defence Staff
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, Ontario – K1A 0K2

Brigadier-General Blaise Cathcart, OMM, CD, QC
Judge Advocate General
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, ON 
K1A 0K2

Colonel T.D. Grubb
Canadian Forces Provost Marshal
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, Ontario – K1A 0K2

Lieutenant-Colonel Robert Delaney
Commanding Officer, NIS
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, Ontario K1A 0K2

Major Daniel Dandurand
Commanding Officer
NIS Western Region
PO Box 10500, Station Forces
Edmonton, AB T5J 4J5

Mr. Shaun Fynes
Mrs. Sheila Fynes

Appendix 3. Decision to Hold a Public Interest Hearing – September 6, 2011

September 6, 2011

Distribution List

Our File: MPCC-2011-004 (Fynes)

In accordance with the provisions of subsection 250.4(1)(b) of the National Defence Act (NDA), this letter will serve as notice of my decision to cause the Military Police Complaints Commission to hold a public interest hearing into the above complaint.

The complainants’ son, Corporal (Cpl) Stuart Langridge, committed suicide at Canadian Forces Base/Area Support Unit (CFB/ASU) Edmonton on March 15, 2008. Mr. and Mrs. Fynes are complaining about the police investigations conducted by the Canadian Forces National Investigation Service (CFNIS) after their son’s death and about the conduct of CFNIS members in their interactions with them. Their allegations include:

On April 29, 2011, I made a decision to conduct a public interest investigation into this complaint. This decision was based on the nature and seriousness of the allegations, as well as on the loss of confidence in internal CF processes by the complainants.

Based on a preliminary review of the investigative files and on an interview with the complainants to clarify their allegations, the Commission has identified the 13 subjects of this complaint and provided them with notification. The enclosed list of allegations was prepared on the basis of the information received from the complainants and was provided to the subjects of the complaint.

This preliminary review of the documentary materials and interview with the complainants has led me to conclude that the nature of the issues raised in this complaint makes the holding of a public hearing not only warranted in the public interest, but necessary in order properly to dispose of this complaint.

The allegations in this complaint put into question the very ability of the Military Police (MP) to conduct independent investigations into the behaviour of members of the CF, particularly when decisions made by the Chain of Command are involved. If these allegations are substantiated the implications are of profound significance. One of the MP’s central functions is to enforce criminal and military law within the CF. For this purpose, the MP investigates and reports on misconduct by CF members, thereby ensuring that members of the CF act in accordance with the law and the military Code of Service Discipline. If, as alleged in this complaint, a bias did exist that prevented CFNIS from uncovering and exposing information detrimental to the Canadian Forces, then the ability of the MP to carry out this important function would be significantly impaired. Similarly, and perhaps even more importantly, if the CFNIS did not possess the required degree of independence to make decisions about what issues to investigate, how to investigate these issues, and what information to provide to complainants without being influenced by the interests of other elements of the CF, or if the CFNIS improperly failed to exercise this independence, then it would be difficult if not impossible for the Military Police to carry out its core functions.

The allegations in this complaint strike at the very core of how the Military Police performs its role.  Independent oversight is meant to ensure that the MP can perform its functions with a high degree of professionalism and that public confidence in the police is maintained.  Because the allegations here raise the possibility that the Military Police is unable to perform some of its most basic duties in support of the military justice system and the rule of law, they must be examined to the fullest, and this examination must take place in an open, public and transparent setting.  Ensuring that independent police investigations are conducted into potential criminal or service offences committed by members of the military is in the interest of the public as a whole. 

Openness is particularly important in light of the fact that these allegations themselves raise issues about transparency. Allegations that a failure to provide information was influenced by other CF interests or motivated by litigation concerns, and that MP members participated in efforts to justify CF actions instead of investigating them, by definition raise concerns about a possible lack of transparency in MP processes. As a result, the process used to shed light on this matter and determine whether these allegations are well founded should itself be open and transparent.

The allegations in this complaint have significance and implications beyond the specific facts and the specific parties in this case. They potentially raise complex issues about the policies, practices and organization of the Military Police. These issues will be better addressed in the context of a public hearing where evidence relevant to this complaint can be examined in depth through an open process, and where all parties can be provided with a full opportunity to present their views and to bring or challenge evidence.

The holding of public hearings is the most appropriate process to provide the necessary level of accountability and transparency in this case. The public’s interest to be informed of, and to come to an understanding about, these important issues will be supported by the Commission receiving evidence to support or refute these allegations in a public hearing.

For all these reasons, I consider that it is warranted in the public interest to hold a hearing into this complaint. I have not come to this decision lightly, considering the significant investment in time and in resources involved in the holding of a hearing, particularly in this time of necessary fiscal restraint. However, because of the nature of the allegations, holding a public interest hearing is the only appropriate manner to dispose of this complaint.

The Commission will make every effort to proceed as expeditiously as possible in order to minimize the time required to resolve this complaint. The hearing process will commence with a case conference on October 13, 2011. By that time, the Commission will expect the parties to have retained counsel, if they wish, and to be in a position to advise the Commission of any preliminary issues and of their views on scheduling so that a date can be set for the beginning of the hearing of evidence.

Yours truly,

(Original document signed by)
Glenn M. Stannard
Chairperson

Enclosures: Decision letter of April 29, 2011

List of allegations

Distribution List:

The Honourable Peter Mackay, P.C., M.P.
Minister of National Defence
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, Ontario K1A 0K2

General W.J. Natynczyk, CMM, MSC, CD
Chief of the Defence Staff
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, Ontario K1A 0K2

Brigadier-General Blaise Cathcart, CD
Judge Advocate General
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, Ontario K1A 0K2

Colonel T.D. Grubb
Canadian Forces Provost Marshal
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, Ontario K1A 0K2

Mr. Shaun Fynes
Mrs. Sheila Fynes

Sergeant Jon Bigelow
Canadian Forces National Investigations Services
National Defence Headquarters
2200 Walkley Road
Ottawa, Ontario K1A 0K2

Warrant Officer Sean Der Bonneteau

Master Warrant Officer Ross Tourout
PO Box 17000, Station Forces
Oromocto, NB E2V 4J5

Lieutenant-Colonel (ret’d) William H. Garrick

Lieutenant-Colonel Gilles Sansterre
Deputy Commander
Canadian Forces Military Police Group / PS
National Defence Headquarters
2200 Walkley Road
Ottawa, Ontario K1A 0K2

Warrant Officer Blair Hart
Canadian Forces National Investigation Service
Atlantic Region Detachment
PO Box 99000, Station Forces
Halifax, NS B3K 5X5

Petty Officer, 2nd Class Eric McLaughlin
PO Box 10500, Station Forces
Edmonton, AB T5J 4J5

Sergeant David Mitchell
PO Box 10500, Station Forces
Edmonton, AB T5J 4J5

Major Brian Frei

Sergeant Matthew Alan Ritco
PO Box 10500, Station Forces
Edmonton, AB T5J 4J5

Major Daniel Dandurand
CFB Borden
PO Box 1000, Station Main
Borden, Ontario L0M 1C0

Sergeant Scott Shannon
PO Box 10500, Station Forces
Edmonton, AB T5J 4J5

Chief Warrant Officer (ret’d) Barry Watson

Appendix 4. Decision to Recommend Funding for Legal Representation for the Complainants – October 26, 2011

MILITARY POLICE COMPLAINTS COMMISSION

IN THE MATTER of a conduct complaint under section 250.18 of the National
Defence Act by Mr. Shaun Fynes and Mrs. Sheila Fynes.

Decision to Recommend Funding for Legal Representation for the Complainants, Mr Shaun Fynes and Mrs Sheila Fynes

MPCC 2011-004 (Fynes) Public Interest Hearing pursuant to
Section 250.38(1) of the National Defence Act

Introduction

On September 26, 2011, the complainants, Shaun and Sheila Fynes, filed a Motion requesting that this Commission recommend that public funding be provided for their legal representation during the Public Interest Hearing to be held into their complaint. Affidavits from the complainants were filed in support of the Motion, and an additional affidavit was filed on October 17, 2011, providing details about the complainants’ financial situation.

On October 5, 2011, Department of Justice counsel Mr. Alain Prefontaine filed written Submissions in response to the Motion on behalf of the Government of Canada.

At the Case Conference held on October 19, 2011, the complainants’ counsel, Col (ret’d) Michel Drapeau, presented oral submissions in support of the Motion. Counsel for the subjects of the complaint, Department of Justice counsel Ms. Elizabeth Richards, took no position on the Motion. Counsel for the Government of Canada, Mr. Prefontaine, advised the Commission in advance that he would not be presenting oral submissions to supplement his written submissions, and he did not attend the Case Conference. His written Submissions were read into the record.

Decision

Having considered the oral and written submissions presented by the Parties and by the Government of Canada, as well as the written evidence filed in support of the Motion, I have made a decision to recommend that the Government of Canada provide funding for the legal representation of the complainants, in order to enable them to participate fully in this Hearing.

1) Authority to Issue a Funding Recommendation

For the reasons set out by the Federal Court in Jones v. Canada (Royal Canadian Mounted Police Public Complaints Commission)Footnote 5519 and by this Commission in its decision to recommend funding in the Afghanistan Public Interest Hearings,Footnote 5520 it has been established that this Commission has a discretion to recommend funding for legal representation for a Party to its Hearings. As stated by Justice Reed in Jones, a decision to recommend funding is a matter within the Commission’s “complete discretion,” and the factors relevant to this decision are for the Commission to determine.Footnote 5521

The governing principle is that where the factors to be considered in reaching a discretionary decision are not set out in the legislation, the decision-maker can determine the appropriate factors, in light of the purpose and object of the applicable statute:

In Electric Power & Telephone Act (P.E.I.), ReFootnote 5522 the Prince Edward Island Court of Appeal held that where legislation is silent as to the factors which an administrative decision-maker must take into consideration, the decision-maker has the discretion to determine the appropriate factors. Those factors, however, must be related to the purpose and object of the statute conferring the discretion.Footnote 5523

2) Relevant Factors And Their Application In This Case

Justice Reed’s reasons in the Jones case provide useful guidance as to the factors relevant to the exercise of the Commission’s discretion regarding a funding recommendation.

a) The Quality of the Hearing Process

One of the factors that Justice Reed suggested would be “crucial for the Commission” was “whether legal representation of the complainants would improve the quality of the proceedings before it.Footnote 5524 I agree that ensuring the proper conduct of the Hearing is a crucial factor. Like the hearings at issue in the Jones case, this Hearing is expected to last for many weeks, to involve a large amount of evidence, both documentary and oral, and to address complex issues.Footnote 5525 For these reasons, and as was the case in Jones, it would be difficult if not impossible for unrepresented complainants to deal with these proceedings. Providing legal representation for the complainants will contribute to the proper conduct of the Hearing and will improve its quality.

b) Statutory Right of Participation

Pursuant to s. 250.44 of the National Defence Act,Footnote 5526 the complainants are entitled to be afforded a “full and ample opportunity, in person or by counsel, to present evidence, to cross-examine witnesses and to make representations at the hearing.

In the Jones case, a section of the RCMP ActFootnote 5527 on which s. 250.44 was modeled and which is, in all respects relevant here, identical to s. 250.44, was considered. Justice Reed wrote:

The Commission has an obligation under subsection 45.45(5) to ensure that “the parties [which includes a complainant] and any other person” are afforded “a full and ample opportunity” to present evidence, to cross-examine witnesses and to make representations. If the Commission considers that for the purposes of the present inquiry, “a full and ample opportunity” can best be achieved by the complainants having counsel, then it is open to the Commission to recommend that the state fund counsel.Footnote 5528 [emphasis added]

In the present case, I am convinced that the “full and ample opportunity” to participate to which the complainants are entitled pursuant to the National Defence Act can only be achieved through legal representation. In light of the complexity of the issues, the anticipated volume of the documentary disclosure, and the anticipated number of witnesses, the complainants would simply not be able to exercise their statutory right to cross-examine, to present relevant evidence and to make meaningful representations to the Commission without the assistance of counsel.

The affidavit evidence before me, which was not challenged by any of the Parties or by counsel for the Government of Canada, convinces me that Mr. and Mrs. Fynes would not be able to pay for their legal representation without funding from the Government. Their income is moderate; they have no significant assets or investments; and they have children, including one son who is autistic and whom they help financially. The overall cost for their legal representation at the Hearing, even at the reduced rates which their counsel propose to charge, would range somewhere between $125,000 and $200,000. I am satisfied that, without public funding, the Fynes would not be able to afford this expense and could not be represented. Because of the anticipated length of the proceedings, it is not realistic to expect that the complainants will be able to find counsel who would be willing or able to represent them pro bono.

On the other hand, and even in these times of necessary fiscal restraint, the scale of this expense from a governmental perspective is not excessive. Indeed, it would in fact appear to be a relatively small price to pay to ensure that this Public Interest Hearing can proceed properly; that the statutory rights of the complainants can be exercised and that fairness and its appearance can be preserved.Footnote 5529

In his Submissions, Mr. Prefontaine cautions against the adoption of a “circuitous logic” that would lead to a conclusion that, because of the participatory rights enacted in s. 250.44 of the National Defence Act, recommendations for public funding would always have to be issued for all Parties and “everyone else enjoying the same participatory right.Footnote 5530

I am of the view that s. 250.44 does not determine how the discretion to recommend public funding ought to be exercised. Rather, as found by Justice Reed in the Jones decision, a statutory right to participate as set out in s. 250.44 is a factor relevant to the exercise of the discretion to make a funding recommendation.Footnote 5531 This does not mean that taking into account the statutory right to participate will lead to an automatic funding recommendation for all individuals with participatory rights. On the contrary, in order for a recommendation to be warranted, there must be a demonstration that, in the context of a particular hearing, the participatory right cannot be exercised properly without legal representation, and that the individuals requesting the recommendation for public funding cannot otherwise afford the cost of their own legal representation. As set out above, all these matters have been demonstrated in the present case.

c) Fairness and Equality of Representation

An additional factor that needs to be considered in the context of a decision as to whether to recommend funding is fairness.

In order for a hearing to be able to fulfill its purpose to further the public interest, fairness at the hearing is paramount. In the context of Hearings such as the present one, fairness may require equality of representation. In Jones, Justice Reed observed, “[t]here is considerable support for the proposition, however, that without state-funded legal representation the complainants/applicants will be at a great disadvantage – there will not be a level playing field.Footnote 5532 [emphasis added]

She went on to remark:

My observation is that when decision-makers have before them one party who is represented by conscientious, experienced and highly competent counsel, a description that we all know from experience applies to Mr. Whitehall, they prefer that the opposite party be on a similar footing. They prefer that one party not be unrepresented. An equality in representation usually makes for easier and better decision-making.Footnote 5533 [emphasis added]

The same considerations apply in the present case. Ms. Richards, Department of Justice counsel who at the Case Conference was able to confirm that she now acts for all the subjects of the complaint, previously advised the Commission in her request for an adjournment of the Case Conference, that, as present or former members of the Canadian Forces, all the subjects were entitled to seek legal representation at public expense in accordance with the applicable Treasury Board policy, which may entitle them to representation by the Department of Justice or by outside counsel.

Justice Reed’s comment about “conscientious, experienced and highly competent counsel” applies fully to Ms. Richards, who has appeared before this Commission in the past and who will be representing the subjects here. Without public funding, the complainants will have no choice but to appear unrepresented. The apparent unfairness that would result from a situation where one party is represented by highly qualified counsel at public expense and the other party, despite having expressed the desire to be represented, is left without legal representation because of lack of public funding, would negatively impact on the hearing process and on public confidence in this Commission’s independent oversight role.

Mr. Prefontaine has argued that equality in representation is already achieved in this case. He cites the role of Commission counsel and the fact that “the representational model at play in an adversary proceeding, like a trial, does not apply to the inquisitorial hearing conducted by the Commission to investigate a conduct complaint.Footnote 5534

I agree that this Commission’s proceedings are investigative rather than adjudicative. However, for the purposes of the present Motion, this is not a reason to refrain from recommending funding for counsel.

In Jones, Justice Reed was also dealing with an investigative or “inquisitorial” rather than an adjudicative or “adversarial” proceeding. She found that such categorizations do not diminish the importance to the proceedings of legal representation for the Parties:

[20] Another argument made by counsel for the R.C.M.P., as support for the proposition that the Commission lacks authority to make a recommendation of the type in question, is based on the nature of the inquiry proceedings. It is argued that: the proceedings are not adversarial in nature; the complainants initiate the process but then have no direct interest that is affected thereby; the named R.C.M.P. members are the ones who are at risk; the Commission counsel presents the evidence to the Commission, essentially acting as a prosecutor.

[21] I do not find that description to be complete. […] While the proceedings are theoretically not adversarial, there is much about them that engenders all the trappings of such a process, e.g., the right of all to cross-examine, the definition of complainants as “parties”, the fact that the Commission cannot ban all lawyers from the room (one of the applicants' suggestions) or prevent cross-examination of the witnesses (another of the applicants' suggestions). […]

[22] The inquiry is public; it has many of the trappings of an adversarial proceeding; the Commission cannot turn it into a purely investigative type of proceeding; the Commission cannot prevent the presence of counsel acting on behalf of individuals who appear before the Commission; it cannot prevent the cross-examination of witnesses. I am not persuaded that the nature of the proceeding leads to a conclusion that independent legal representation of the complainants is a matter about which the Commission should not be concerned.Footnote 5535 [emphasis added]

Even taking into account the nature of the proceedings, which are dictated by the statute itself, Parliament has seen fit to provide for a statutory right of participation for the Parties in s. 250.44. The complainant and the subject of the complaint are the only two parties specifically designated as Parties by the statute.Footnote 5536 From this legislative scheme, it is clear that they are both equally deemed to have a substantial and direct interest in a hearing.

In this context, to appear to equate the interests of the complainants with those of the Commission and to argue that the role of Commission counsel is to further their right to participate, is as misguided as it would be to propose to equate the interests of the subjects of the complaint with those of the Commission and to suggest that their participatory rights can be furthered by Commission counsel. As the title makes clear, Commission counsel is counsel for the Commission. As my counsel, Commission counsel’s role is to present as much information as possible to the Commission and to test its accuracy in order to ensure that findings and recommendations can be made on the basis of information that is complete and accurate. The complainants and the subjects each have their own distinct interests in the proceedings and Parliament has recognized these interests as requiring specific and equal rights of participation.

Further, as pointed out by Col Drapeau in his oral submissions at the Case Conference, the legislation and applicable regulations assign an important role for all the Parties in the hearing process and provide for “full, complete and meaningful participation.Footnote 5537 Pursuant to the National Defence Act, Parties can present evidence, both documentary and viva voce, cross-examine witnesses, and make representations.Footnote 5538 The Rules of Procedure for Hearings before the Military Police Complaints CommissionFootnote 5539 further provide that Parties can file documents, present motions, participate in pre-hearing conferences, and request the issuance of summons.

For all these reasons, I agree with Justice Reed that the Commission has a legitimate interest in the issue of the complainants’ legal representation

3) The Caron Case

Mr. Prefontaine also argues that the factors to be considered in determining whether to issue a recommendation for public funding in proceedings like this Hearing are those set out in the Supreme Court of Canada decision in R. v. Caron.Footnote 5540 He goes on to submit that the factors enumerated in Caron suggest that the Commission ought not to recommend funding for counsel for the complainants.

In the first place, and as argued by Col Drapeau in his oral submissions,Footnote 5541 I find that the Caron case has no direct application to the present situation. Caron dealt with the limited circumstances of litigation in which the interests of justice require a court to issue an order to compel Government to provide funding, as opposed to the situation here where the Commission is being asked to make a recommendation for funding. Unlike in Caron, this is not a situation where an intrusion into matters generally determined by the legislative or executive branches of Government is being contemplated.Footnote 5542 This Commission can only recommend that funding be granted. The Government will then have to assess this recommendation and come to its own determination.

Further, however, it is my view that even if the test set out by the Supreme Court of Canada in Caron were applicable, a recommendation for funding would still be warranted here. Indeed, to the extent that the factors adopted in Caron could serve as a guide to this Commission in the exercise of its discretion, I find that they support issuing a funding recommendation in this case.

On the first factor listed in Caron,Footnote 5543 of a genuine inability to fund their own counsel and a lack of other realistic options for bringing the issues to trial, I find that the complainants “genuinely cannot afford” to cover the cost of their representation. Further, I am of the view that no other realistic options exist for bringing the complainants’ issues and perspective to a hearing. As indicated above, the Parties’ interests are not represented by Commission counsel; their participation is essential to the process; and the extent of their participation is not as limited as Mr. Prefontaine suggests.

On the second Caron factor – that the “claim” be prima facie meritorious and “at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial meansFootnote 5544 – I find that the complainants’ interests here fulfill this requirement. It is not known at this time what findings or recommendations may ultimately be made about the allegations in the complaint. That is a determination that will be made on the basis of the evidence presented at the Hearing. However, it has already been determined that the issues raised in the complaint are sufficiently serious to warrant calling a Hearing in the public interest.Footnote 5545 The complainants clearly have a direct interest in the issues raised, as the investigations in question related to the death of their son and to the manner in which the complainants themselves were treated by the Canadian Forces. The National Defence Act recognizes their right to participate in the process. It would, in the circumstances, be contrary to the interests of justice if they were unable to participate simply because they lack the financial means to retain counsel.

The third Caron factor is that the issues transcend individual interests, be of public importance, and have not been resolved in previous cases.Footnote 5546 In this connection, I find that the issues here are of public interest beyond the complainants’ individual interests.Footnote 5547 I find further that the complainants’ full participation is also in itself in the public interest so as to ensure that the Public Interest Hearing proceeds properly and that all issues are fully brought to light before the Commission. I also find that many of the issues raised by this complaint, in particular with respect to the independence and impartiality of the Military Police, have not been examined in previous cases.

Finally, the Caron decision suggests that public funding should only be granted where its absence “would work a serious injustice to the public interest.Footnote 5548 [emphasis in original] That is the case here. The independent oversight regime put in place by Part IV of the National Defence Act is meant to foster public confidence in the Military Police and as such this regime furthers the public interest. By definition, Public Interest Hearings are called because it is in the public interest to address the issues raised through this process.Footnote 5549 Public confidence in the process, and thus the ability of the process to fulfill its purpose, will in turn be dependent on the Parties’ ability to act on their statutory right to participate in the proceedings. If the process cannot function properly because one of the Parties is unable to exercise this right to participate because of lack of access to legal representation that would otherwise be necessary, the public interest that warranted calling the Hearing in the first place is affected.

The words of Justice Reed find application here:

While the complainant may initiate the proceeding, he or she, in a case such as the present, acts as a representative of the public interest - the public interest in ensuring that the police do not overstep the bounds of what is proper conduct. The public interest is as important as the R.C.M.P. members” private interests in their jobs and reputations.Footnote 5550

I find accordingly that the general Caron requirement that the absence of funding work “a serious injustice to the public interest” is also met and that providing funding for legal representation for the complainants in this matter is in the public interest.

Recommendation

For all these reasons, I have decided to issue a recommendation to the Government of Canada to grant funding for the complainants’ legal representation. I recommend that this funding be granted at the reduced hourly rates suggested in the Motion: $175 for Col Drapeau and $100 for Mr. Juneau. I recommend that funding be granted for each counsel for the requested 40 hours of preparation, as well as for the time spent attending the Hearing, with two additional hours of preparation for each day of Hearing. Considering the volume of materials involved, I consider that the amount of hours requested is reasonable, and that providing funding at this level is necessary to allow the complainants to participate in this Public Interest Hearing into the investigations related to their son’s death.

In correspondence addressed to the Commission, Mr. Prefontaine, as counsel for the Government of Canada, indicated that the Government “will consider the recommendation of the Commission, if the Commission decides to make one.” I accept at face value Mr. Prefontaine’s assurance that this Commission’s recommendation will be considered, notwithstanding the position he took in his Submissions.

IT IS HEREBY RECOMMENDED that the Government of Canada provide funding to the complainants for their legal representation at this Hearing, in accordance with the rates and for the number of hours outlined in these reasons.

DATED at Ottawa, Ontario this 26th day of October, 2011.



[original signed by]
Glenn M. Stannard, O.O.M.
Chair

Appendix 5. Publication Ban Order – May 17, 2012

MILITARY POLICE COMPLAINTS COMMISSION

IN THE MATTER of a conduct complaint under section 250.18 of the National
Defence Act by Mr. Shaun Fynes and Mrs. Sheila Fynes.

PUBLICATION BAN ORDER

MPCC 2011-004 (Fynes) Public Interest Hearings pursuant to
Section 250.38(1) of the National Defence Act

On April 17, 2012, Col (ret'd) Michel Drapeau, counsel for the complainants, requested that excerpts of the video recording made of the scene of Cpl Stuart Langridge’s suicide on  March 15, 2008, be exhibited at the Hearing on April 19, 2012.  The request was made in order to provide information about the scene of the suicide and the conduct of the investigators. Elizabeth Richards, counsel for the subjects of the complaint, submitted that it was not in the public interest to view such a private and graphic video recording publicly but added that, if it was deemed necessary to view the video recording publicly, then she would request that the Commission exhibit the entire video recording, up to the point where the body is removed from the room and the inventory of the deceased’s personal effects commences, in order to ensure that all relevant details were presented in their full and fair context.  Ms. Richards further added that if a decision was made to play the video it would be most appropriate to do so when the Military Police investigator who prepared the videotape testifies.  Commission Counsel took no position as to the request to exhibit the video publicly.

I determined that I would make an order regarding the request to view the video recording publicly after hearing submissions concerning the publication ban.

On April 19, 2012, Commission Counsel applied for a permanent order restricting the publication or broadcast of the images or audio contained in the video recording made of Cpl Stuart Langridge’s body by CFNIS investigators at the scene of his suicide March 15, 2008, owing to the sensitive and graphic nature of these records.  The application preceded the testimony of Mr. Dennis Caufield, Investigator for the Chief Medical Examiner of Alberta.  He attended the scene of the suicide on March 15, 2008, and the video was viewed at the Hearing in part to refresh his recollection of the scene that day. 

Prior to the viewing, Col (ret’d) Drapeau advised that his clients supported the application for the publication ban and that they have a significant privacy interest that would be severely injured should the graphic recordings enter into the public domain for unrestricted broadcast.  Ms. Richards also advised that she did  not oppose a publication ban on the video recording in question.

Significantly, there were also no objections to the requested publication ban from any members of the media.

Having heard and considered the submissions of counsel, I ordered that the video would be viewed publicly at the Hearing on April 19, 2012, and that the video would be played continuously up to the point at which the body is removed from the room and the investigators begin to inventory the personal effects in the room.

I then made an order granting the publication ban on the morning of April 19, 2012, with written reasons being reserved.  These reasons are as follows.

First, section 250.15 of the National Defence ActFootnote 5551 authorizes me to make rules respecting the conduct of matters and business before the Commission, including the conduct of Commission investigations and hearings.  Similarly, rule 6 of the Rules of Procedure for Hearings before the Military Police Complaints CommissionFootnote 5552 authorizes me to take the steps deemed necessary to deal with a question that is not provided in those Rules.  The courts have also repeatedly affirmed that statutory bodies, such as this Commission, are deemed to have such implied powers as are necessary for the achievement of their purposes, including the power to control their own proceedings.

With specific regard to the power of statutory bodies to order publication bans, I note that in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy),Footnote 5553 Cory J. (writing a separate concurring judgment for himself and two other justices) concluded that the implied powers of such statutory bodies must be interpreted broadly in order that they might protect the rights and interests of individuals implicated in their proceedings and, specifically, that such implied powers would include the power to order a publication ban.  The majority did not consider this question.

The imposition of a publication ban requires a careful balancing of interests.  In Dagenais v. Canadian Broadcasting Corporation,Footnote 5554 and R. v. Mentuck,Footnote 5555 it was determined that a publication ban shall only be ordered where such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk, and the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression.

This brings us to the specific interests at stake.  It has been recognized, in cases such as Canadian Broadcasting Corporation v. New Brunswick (Attorney General),Footnote 5556 that the privacy interests of witnesses and victims can be the basis of reasonable limitations on certain rights, including freedom of expression and freedom of the press as guaranteed in section 2(b) of the Canadian Charter of Rights and Freedoms.  Additionally, it has been held in cases such as R. v. Dagenais,Footnote 5557 R. v. Glowatski,Footnote 5558 and R. v. BernardoFootnote 5559 that, in certain circumstances, the privacy interests of the family of a deceased person will take precedence over the right to freedom of expression and freedom of the press as guaranteed in section 2(b) of the Canadian Charter of Rights and Freedoms.Footnote 5560 As noted above, the complainants assert a significant privacy interest that would be severely injured by the publication of the video recording.

Section 250.42 of the National Defence Act has mandated that a public interest hearing is to be held in public, although the Complaints Commission is expressly authorized by paragraph 250.42(c) of the National Defence Act to exclude the public from any hearing under section 250.38 of that Act where information affecting individual privacy or personal security is expected to be disclosed and where the affected privacy or security interest outweighs the public’s interest in the information.  In order to ensure that this Hearing be as open as possible, members of the public and the media were permitted to attend the viewing of the video recording in question, notwithstanding its sensitive nature and the complainants’ privacy interest.

In light of the above, I have concluded that a ban on the publication of these recordings and images is necessary to protect the affected privacy interests. I am satisfied that the privacy interests of the late Cpl Langridge’s family outweighs the media’s interest in publishing or broadcasting images of the circumstances of his suicide so as to inform the public, specifically the graphic contents of the video recordings made on March 15, 2008.

Finally, I have also concluded that such a publication ban constitutes the least possible restriction on the freedom of expression and of the press as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms, consistent with the protection of the aforementioned privacy interests, particularly because members of the media were present during the public viewing of the video and thus are able to describe and report on its contents.

IT IS HEREBY ORDERED that any recorded sounds or images captured at the scene of Cpl Langridge’s suicide shall not be published or broadcast in any way.  As directed in my verbal reasons of April 19, 2012, the exhibit shall be sealed now that the video recording has been publicly viewed in these proceedings.

For clarity, this order will remain in effect until such time as it is overturned by this Commission or a reviewing court.

DATED at Ottawa, Ontario on this 17th day of May, 2012.

(Original document signed by)
Glenn M. Stannard, O.O.M.
Chairperson

Appendix 6. Ruling on Motion by Complainants to Issue Summons to Appear – June 14, 2012

MILITARY POLICE COMPLAINTS COMMISSION

IN THE MATTER of a conduct complaint under section 250.18 of the National Defence Act by Mr. Shaun Fynes and Mrs. Sheila Fynes.

RULING ON MOTION BY COMPLAINANTS TO SUMMON PATRICK MARTEL TO ATTEND AND GIVE EVIDENCE

MPCC 2011-004 (Fynes) Public Interest Hearings pursuant to
Section 250.38(1) of the National Defence Act

Background

On May 25, 2012, counsel for the complainants wrote to Commission counsel to convey a request, pursuant to subsection 33(1) of the Rules of Procedure for Hearings Before the Military Police Complaints Commission, that the Commission call Mr. Patrick Martel, an investigator with the Department of National Defence and Canadian Forces Ombudsman (hereinafter, the Ombudsman), to testify in this proceeding.  In this letter, Col (ret’d) Drapeau described the need for Mr. Martel, who had already executed an affidavit for Commission counsel on March 22, 2012, to appear as a witness in the following terms:

Mr. Martel was assigned to investigate the complaint made by Mr. and Mrs. Fynes to the DND/CF Ombudsman.  His Affidavit dated March 22, 2012 addresses his communications with the NIS with regards to matters outside the mandate of the DND/CF Ombudsman.  This Affidavit is silent on matters within the said mandate and which were investigated by the Office of the DND/CF Ombudsman.  This Affidavit is also silent on why the said DND/CF Ombudsman investigation was inexplicably ceased.

After having been advised that the Ombudsman intended to oppose his motion to call Mr. Martel, on May 31, 2012, Col (ret’d) Drapeau again wrote to the Commission regarding this matter.  Having been advised that counsel for the Ombudsman would be arguing that Mr. Martel’s evidence would be covered by a privilege under the law of evidence, Col (ret’d) Drapeau provided some legal reasons as to why Mr. Martel should be considered to be a compellable witness in this proceeding.

Arguments

In his May 31, 2012 letter, Col (ret’d) Drapeau noted that the previous Ombudsman had publicly recommended in a 1999 Special Report that the Ombudsman and his staff be given statutory immunity from criminal or civil responsibility for their good faith actions in performing their duties, and that they should also generally be exempt from being compelled to testify or to produce documents in judicial, quasi-judicial or administrative proceedings.  However, as Col (ret’d) Drapeau pointed out, these recommendations were never acted upon by the Minister of National Defence or Parliament. 

In his letter, Col (ret’d) Drapeau also dismissed the idea that there could be an applicable public interest privilege under section 37 of the Canada Evidence Act.  He pointed out that, as these hearings have been called in the public interest, it is difficult to maintain that there is a public interest in non-disclosure of information within the knowledge of the proposed witness.

Col (ret’d) Drapeau concluded his letter by listing additional reasons why Mr. Martel should be compelled to testify, which included: the fact that the Ombudsman investigated matters related to this complaint on behalf of the Fynes; the Ombudsman investigators became privy to extensive personal information disclosed by the Fynes relative to their complaint; Ombudsman investigators established contact with the CFNIS; the Fynes have never made any claim of privilege or privacy to information under the control of the Ombudsman pertaining to their complaint; it is in the public interest that the Commission have access to all available information; and it would be a “denial of justice” to deny the Commission access to relevant information under the control of the Ombudsman.

On the evening of June 5, 2012, the evening before the argument of this motion, Mr. Paul Déry-Goldberg, counsel for the Ombudsman sent a letter to the Commission outlining his legal arguments for opposing the complainants’ motion to call Mr. Martel.

In this letter, counsel for the Ombudsman drew the Commission’s attention to certain provisions of the August 29, 2001 Ministerial Directive Respecting the Ombudsman for the Department of National Defence and the Canadian Forces, promulgated as Annex A to Defence Administrative Order and Directive (DAOD) 5047-1.  The provisions in question include those which describe the mandate of the Ombudsman and also others which emphasize the importance of confidentiality to the work of the Ombudsman.

On the basis of the Ombudsman’s mandate and the various terms of the Ministerial Directive dealing with confidentiality, the Ombudsman takes that position that information provided by “constituents” of the Ombudsman – a term which refers to relevant personnel within the Department and the CF chain of command and, at least in some instances, their families – should be considered confidential and exempt from disclosure in a public hearing such as this.

The Ombudsman went on to argue that the confidentiality of communications with the Ombudsman is further protected as an evidentiary privilege at common law.  The Ombudsman argued that communications with the Ombudsman meet the common law test for privilege, known as the “Wigmore test”, and recognized by the Supreme Court of Canada in Slavutych v. Baker et al., [1976] 1 S.C.R. 254.  There are four elements to this test for communications to be legally privileged:

  1. The communications must originate in confi­dence that they will not be disclosed.
  2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
  3. The relation must be one which in the opinion of the community ought to be sedulously fostered.
  4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

The Ombudsman’s position was that communications with the Ombudsman by members of its ‘constituency’ in the discharge of that office’s mandate meet all four elements of this test and are therefore legally privileged from disclosure under the law of evidence.  While the Commission is subject to more relaxed rules of evidence than the courts (per NDA paragraph 250.41(1)(c)), its enabling legislation does, in NDA paragraph 250.41(2)(a), preclude the receipt or acceptance of “any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence”.

On June 6, 2012, the complainants’ motion was argued before me in open session of this public interest hearing.

Col (ret’d) Drapeau, for the complainants, in argument on his motion, read into the record his letter of May 31, 2012.  He also made the further point that, while this Commission, its mandate, and in particular, its power to compel witness testimony under oath, are set in statute, all matters pertaining to the role and mandate of the Ombudsman are found only in the Ministerial Directive or the relevant DAOD.  On the question of relevance, Col (ret’d) Drapeau added that “the Ombudsman has played a large role in initiating some of the very police investigations which are currently being examined by this Commission,” and, “[i]n so doing, their actions are intrinsically linked with the very purpose of this Commission.”

Mr. Déry-Goldberg, for the Ombudsman, placed considerable emphasis on his assessment that there was very little relevant evidence which Mr. Martel could provide that was not already contained in his affidavit.  In counsel’s view, Mr. Martel’s testimony could only be relevant to the issue of the timeliness of the CFNIS investigation into next of kin designation in respect of Cpl Langridge.  Mr. Déry-Goldberg also emphasized what he termed the “unprecedented” nature of an Ombudsman investigator providing evidence by way of affidavit – evidence which counsel claims has not been contradicted by other witnesses – let alone actually being called upon to testify in a proceeding.  He also noted that, at the time Mr. Martel’s affidavit for the Commission was executed, Commission counsel signed a document recognizing the swearing of the affidavit did not constitute a waiver of any privilege not to testify.

Mr. Déry-Goldberg also drew attention to the fact that the testimony of Mr. Martel, beyond what has been provided in his affidavit, has not been sought by Commission counsel, but rather, counsel to the complainants.

Counsel for the Ombudsman then went on to note Col (ret’d) Drapeau was representing someone in a grievance against the Ombudsman and that, in that connection and in that capacity, Col (ret’d) Drapeau had very recently written to the Ombudsman.  Counsel for the Ombudsman went on to argue that, in the circumstances, Col (ret’d) Drapeau has “competing interests” which he ought to have divulged to the Commission in seeking what the Ombudsman considers to be an exceptional order to compel the testimony of an employee of the Ombudsman.  Mr. Déry-Goldberg added:

I hope in this particular case the reason why Mr. Martel is asked to come and testify before this Commission isn’t because someone wants to embark on a fishing expedition to gain points before another particular case that he hasn’t disclosed to this Commission.

Ms. McLaine, for the respondents, tended to agree with the Ombudsman as to the limited relevance of Mr. Martel’s testimony, but disagreed the Office of the Ombudsman was in a privileged position vis-à-vis the Commission’s authority to compel testimony.

With reference to the Ombudsman’s 1999 Special Report recommendations regarding immunity and privilege for Ombudsmen personnel, Ms. McLaine noted that they are no more than recommendations and have never been implemented.

Ms. McLaine also differed from Mr. Déry-Goldberg’s assessment that Mr. Martel’s affidavit evidence has not been contradicted by other witnesses, and in this connection, she cited the evidence of LCol King.  Ultimately, Ms. McLaine took the position Mr. Martel could and should be called to testify on the “narrow scope” of the communications and interactions between Mr. Martel and the CFNIS members.

Ms. Coutlée, for the Commission, took no position on the complainants’ motion to call Mr. Martel or on the merits of the Ombudsman’s claim of privilege.  Commission counsel disagreed with the Ombudsman’s assessment as to the limited range of relevant matters to which Mr. Martel could potentially speak in testimony.  She also disagreed with Mr. Déry-Goldberg’s assertion that Mr. Martel’s affidavit evidence was uncontradicted. 

In conclusion, Ms. Coutlée noted the only issue raised by the complainants’ motion was whether a summons should issue for Mr. Martel to attend to testify in these proceedings.  As such, she argued, should the motion be granted, any potential objections to evidence being sought from the witness, would best be addressed at the time of questioning and not determined at this preliminary stage, in the abstract. 

In reply, Col (ret’d) Drapeau argued that he did not share the Ombudsman’s assessment of the limited relevance of Mr. Martel’s evidence, but indicated the only way to know for sure will be to have him testify.  He also took the view any privilege attaching to communications with the Ombudsman in this case would belong to the Fynes and not to the Ombudsman, and that the Fynes have waived any privilege.  Col (ret’d) Drapeau also vehemently disputed the suggestion he had any competing interest in calling Mr. Martel to testify in this matter.

In response to questioning from the Chair, Mr. Déry-Goldberg for the Ombudsman disagreed with the notion that the attitude of the complainants regarding the confidentiality of their dealings with the Ombudsman would affect the privileged nature of the Ombudsman’s information.  He stated: “[t]he privilege we are talking about is the privilege of the Office, not just the privilege of the Fynes.”

Analysis & Decision

Col (ret’d) Drapeau, for the complainants, has made a motion in accordance with subsection 33(1) of the Rules of Procedure for Hearings Before the Military Police Complaints Commission to call Mr. Patrick Martel, an investigator with the Office of the Department of National Defence and Canadian Forces Ombudsman, to testify in this public interest hearing.

I shall deal first with the question of the potential relevance of the witness.

Contrary to the suggestion of counsel for the Ombudsman, I find it of no consequence, for the purposes of this motion, that this request comes from a party other than Commission counsel.  The relevant rule of our Rules of Procedure expressly contemplate witnesses may be called by any party with full standing before the Commission at the hearing, as well as by Commission counsel.  Moreover, NDA section 250.44 requires the Commission “afford a full and ample opportunity…to present evidence… at the hearing” to complainants, respondents and anyone else who satisfies the Commission of a “substantial and direct interest in the hearing”.

As such, the failure of Commission counsel to call a witness, in and of itself, cannot fairly be used to infer a lack of relevance to the proposed testimony.

At the present stage, that is the stage of considering the mere compellability of a witness, the requisite degree and likelihood of relevance must necessarily be set at a very low threshold.  The fact counsel for the Commission and the for the respondents, as well as counsel for the complainants, disagree with counsel for the Ombudsman’s assessment of the limited relevance of the witness is sufficient, in my view, to dispose of the objections to compellability of the witness on grounds of relevance.

It remains then to address the claim of privilege raised by the Ombudsman to the calling of this witness. 

It would be open to the Ombudsman to raise objections, on a case-by-case basis, to specific questions posed to this witness during his examination by counsel.  But in arguing against the motion to call Mr. Martel as a witness, the Ombudsman must be taken to be asserting the existence of a class privilege in respect of communications between the Ombudsman and his constituents.

I see no basis for the recognition of such a privilege in respect of ombudsman communications at common law.  As the Supreme Court of Canada has recently emphasized, there is only a very limited category of class privileges and that category is unlikely to grow (National Post v. Canada (Attorney General) (2010), 254 C.C.C. (3d) 469, 318 D.L.R. (4th) 1.).

Nor is there any legislative basis for class privilege treatment of communications with this Ombudsman.  By the very terms of the Ministerial Directive establishing the Office of the DND and CF Ombudsman, the Ombudsman’s confidentiality obligations yield to the legal authorities and mandate of bodies such as this Commission.  I extract below the subsection 27(2) of the Ministerial Directive, cited by the Ombudsman in its argument (the text of relevance to my point has been italicized):

27(2) Except as otherwise authorized by law,
a) no communication to the Ombudsman or information provided to the Ombudsman in any form shall be disclosed by the Ombudsman, except where it is, subject to these directives, necessary for an investigation, report or other authorized purpose; and
b) communications between the Ombudsman and any person in relation to the duties and functions of the Ombudsman are private and confidential.

As the Ministerial Directive has been incorporated into a DAOD and its terms are made an enforceable order to CF members, and a binding directive to departmental employees, it is in my view, equivalent to a regulation.  As such, while the duty of confidentiality imposed on the Ombudsman may have legislative, if not statutory, form, so too do its limitations and exceptions.

In my view, the Ministerial Directives, as incorporated in DAOD 5047-1, by their own terms, preclude the possibility of the Ombudsman’s obligations of confidentiality achieving the status of an evidentiary class privilege.

Second, even if I am wrong in the foregoing analysis, the Wigmore test is not met in this particular case.  According to the submissions of complainants’ counsel, which were uncontradicted on this point by the Ombudsman, the Fynes did not have an expectation of, or desire for, the confidential treatment of what they were communicating to the Ombudsman. This being the case, it is difficult to see how the first, fourth, and possibly also the second, prongs of the Wigmore test could be met in this case.

Third, even if I am wrong in this assessment, and the test for privilege could be satisfied in this case, it would have been waived through various statements and actions of complainants’ counsel, not least of which being the very presentation of this motion.

While I do not hear Mr. Déry-Goldberg to suggest that the Fynes are not holders of the privilege in question, he disputes that they are the only holders of the privilege in respect of their case with the Ombudsman.  In counsel for the Ombudsman’s view, the other privilege-holder is the Ombudsman himself.  In his view, the Ombudsman must seek to protect the confidentiality of communications with his office by his constituents, even where the constituent in question seeks disclosure of the information.

With respect, such a conception of confidentiality privilege makes no sense.  By this argument, clients and patients could not consent to the release of confidential information without the independent consent of, respectively, their lawyers or physicians.  Yet, this of course is not the case.  Confidentiality privileges (with the notable exception of police informer privilege) always operate for the sole benefit of the person confiding in the relevant professional or institution, and not for the professional or institution being confided in.

Finally, I will touch upon counsel for the Ombudsman’s submission regarding an alleged competing interest on the part of counsel for the complainants and the possibility that he might thereby be tempted to use the appearance of Mr. Martel to advance another matter in which Col (ret’d) Drapeau is acting, but which is unrelated to the present matter.

In my view, this submission is entirely without merit.  No conflict-of-interest was demonstrated and, indeed, counsel for the Ombudsman expressly refrained from alleging any conflict-of-interest.  He instead spoke of a “competing interest”.  But I am unaware of any such legal or ethical limitations on counsel, or of any legal or ethical duty to disclose the fact that counsel is acting, in another case, against the employer of a witness, in the present case. 

Absent evidence to the contrary, I would assume that any officer of the court appearing before me is acting in the interests of their clients and in keeping with their ethical obligations, including those to the tribunal.  Such duties would naturally include refraining from abusing one’s rights and privileges in this proceeding to advance the interests of another client in an unrelated matter.

No such contrary evidence was presented.  Counsel for the Ombudsman did not even suggest that Mr. Martel, as opposed to any other employee of the Ombudsman, had some particular significance to this other matter.  Moreover, counsel for the Ombudsman conceded he had “no evidence” as to any ulterior purpose on Col (ret’d) Drapeau’s part in calling for Mr. Martel to testify.

In short, I can see no basis in law or in fact for Mr. Déry-Goldberg’s submissions on this point and, indeed, they strike me as improper.

IT IS HEREBY ORDERED that the motion for a summons to be issued to Mr. Patrick Martel, requiring him to appear before this Commission to give evidence in his matter, is granted.

DATED at Ottawa, Ontario this 14th day of June, 2012.

(Original document signed by)
Glenn M. Stannard, O.O.M.
Chairperson

Appendix 7. Decision to Recommend Funding for Legal Counsel for the Complainants to Prepare Closing Submissions – October 30, 2012

Military Police Complaints Commission

In the matter of a conduct complaint under section 250.18 of the National Defence Act by Mr. Shaun Fynes and Mrs. Sheila Fynes.

Decision to Recommend Funding for Legal Counsel to Prepare Closing Submissions for the Complainants, Mr Shaun Fynes and Mrs Sheila Fynes

MPCC 2011-004 (Fynes) Public Interest Hearing pursuant to
Section 250.38(1) of the National Defence Act

On September 26, 2011, the complainants, Shaun and Sheila Fynes, filed a Motion requesting that this Commission recommend that public funding be provided for their legal representation during the Public Interest Hearing to be held into their complaint. A Case Conference was held on October 19, 2011, where the complainants’ counsel, Col (ret’d) Michel Drapeau, presented oral submissions in support of the Motion. Counsel for the subjects of the complaint, Department of Justice counsel Ms. Elizabeth Richards, took no position on the Motion. Counsel for the Government of Canada, Mr. Alain Préfontaine, provided written submissions that were read into the record.

On October 26, 2011, I issued a recommendation that the Government of Canada provide public funding for legal representation for the complainants. On March 16, 2012, the Honourable Peter MacKay, Minister of National Defence, informed the Commission that the Government of Canada would implement the Commission's recommendation and provide funding for legal representation for the complainants on compassionate grounds.

The public funding provided for legal representation for the complainants was capped at 424 hours for Col (ret’d) Drapeau, at a reduced rate of $175.00 per hour, and 424 hours for Mr. Joshua Juneau, at a reduced rate of $100.00 per hour. This was intended to provide each lawyer with 40 hours of preparation time prior to the commencement of the hearings and, during the anticipated 12 weeks of testimony, six hours per day of attendance at the hearings, and two hours per day for preparation. An additional amount was allocated for reasonable disbursements and costs for additional days of hearings.

On October 19, 2012, Col (ret’d) Drapeau filed a Motion seeking this Commission's recommendation that additional public funding be provided by the Government of Canada for the preparation of closing submissions on behalf of the complainants.

In the Motion, Col (ret’d) Drapeau noted that closing arguments for the Commission's benefit and consideration could extend to 100 pages of written submissions from each of the Parties, with three hours allocated to each Party for oral submissions, and the opportunity to make written reply submissions of up to 30 pages. Col (ret’d) Drapeau expected that preparing these submissions would require a considerable investment of time. He emphasized that Mr. and Mrs. Fynes were not in a financial position to pay for the legal representation required, as was previously established by affidavit evidence received during the initial request for public funding for legal representation.

Col (ret’d) Drapeau estimated that $3500.00 remained from the public funding previously granted by the Government of Canada. He requested that this Commission recommend that additional public funding be allotted to provide for 100 hours of preparation each for himself and Mr. Juneau, at the reduced hourly rates of $175.00 per hour and $100.00 per hour respectively.

On October 24, 2012, Department of Justice counsel Mr. Alain Préfontaine provided a brief response to the Motion on behalf of the Government of Canada. He stated that the Government of Canada relied on the submissions that were provided in response to the complainants' original funding request. Mr. Préfontaine advised that, should this Commission decide to recommend supplemental funding, the Government of Canada would consider that recommendation.

In essence, Mr. Préfontaine's submissions continue to be as follows. First, that the decision of the Federal Court in Jones v. Canada (Royal Canadian Mounted Police Public Complaints Commission)Footnote 5561 spoke to the existence of the Commission's discretion to recommend public funding, but that there was no mechanism to address how the discretion ought to be exercised. He emphasized that section 250.44 of the National Defence Act, which provides that parties to a Hearing are entitled to be afforded a “full and ample opportunity, in person or by counsel, to present evidence, to cross-examine witnesses and to make representations at the hearingFootnote 5562 does not guarantee the right to legal representation, but merely permits it.

Mr. Préfontaine's submissions also stated that, while the Federal Court observed in Jones v Canada that decision-makers prefer to achieve equality of legal representation for parties, this equality of representation could be accomplished through the efforts of Commission counsel.

Relying on the criteria as to when and why to recommend public interest funding articulated in the decision of the Supreme Court of Canada in R. v. Caron,Footnote 5563 Mr. Préfontaine also argued that this case did not warrant a recommendation for public funding. He submitted that other realistic options existed for bringing the issues to a hearing. However, Mr. Préfontaine also stated, as he did in his response to the present Motion, that the Government of Canada would consider the recommendation of the Commission, should the Commission decide to make one.

No submissions were received from Ms. Richards on behalf of the subjects of the complaint. As noted above, she took no position on the original funding motion, and I take the lack of further submissions to mean that this remains the case.

Decision

Having considered the written submissions presented by Col (ret’d) Drapeau for the complainants, and by Mr. Préfontaine for the Government of Canada, I have made the decision to recommend that the Government of Canada provide supplementary funding for the legal representation of the complainants, in order to enable them to continue to participate fully in this Hearing.

For the reasons set out in my October 26, 2012 decision to recommend funding for the complainants’ legal representation, I remain convinced that the “full and ample opportunity” to participate to which the complainants are entitled pursuant to the National Defence ActFootnote 5564 can only be achieved through continued legal representation, including during the closing submissions phase.

The enormous collection of documents spanning many thousands of pages amassed and entered into evidence, along with the testimony of 91 witnesses over the course of six months, amply illustrates the depth and complexity of this matter. At the conclusion of the hearing phase of a Public Interest Hearing that has amassed such extensive evidence on such a large and complex array of issues, it would be difficult if not impossible for the complainants to articulate, draft, and deliver closing submissions that fully and meaningfully represented their concerns and interests.

It would be equally unrealistic to expect an unrepresented party to face the daunting task of drafting reply submissions after receiving and reviewing closing submissions prepared by the team of able counsel representing the subjects of the complaint.

Col (ret’d) Drapeau grounded the October 19, 2012 Motion on the fact that that Mr. and Mrs. Fynes' financial circumstances remain as indicated in the oral submissions and affidavit evidence provided in support of the original funding motion. I remain satisfied that, without public funding, the Fynes would not be able to afford the expense of legal representation for the purpose of preparing and delivering closing and reply submissions. As I previously noted, even in these times of necessary fiscal restraint, the scale of this expense from a governmental perspective was, and continues to be, a relatively small price to pay to ensure that the statutory rights of the complainants can continue to be exercised and that fairness and its appearance continue to be preserved.

While it is unfortunate that this request for funding for the preparation of closing submissions was not made within the initial funding motion or at an earlier time in the course of the Public Interest Hearing, I have concluded that it is necessary to grant the request and to issue the recommendation, in order to ensure that the integrity and fairness of these proceedings are preserved.

Recommendation

For all these reasons, I have decided to issue a recommendation to the Government of Canada to grant additional funding for the complainants’ legal representation. I recommend that this funding be granted at the reduced hourly rates suggested in the Motion: $175 for Col (ret’d) Drapeau and $100 for Mr. Juneau, and that any amount remaining from the funding previously granted be applied towards the additional hours necessary. I recommend that funding be granted for each counsel for the requested 100 hours each to prepare written closing submissions, prepare for and deliver oral submissions, and prepare written reply submissions. Considering the volume of evidence heard in the course of the Public Interest Hearing, and the length and complexity of the submissions anticipated, I consider that the amount of hours requested is reasonable, and that providing funding at this level is necessary to allow the complainants to continue to participate meaningfully in this Public Interest Hearing.

It is hereby recommended that the Government of Canada provide supplementary funding to the complainants for the preparation of closing submissions and reply submissions and legal representation at this Hearing, in accordance with the rates and for the number of hours outlined in these reasons.

Dated at Ottawa, Ontario this 30th day of October, 2012.

(Original document signed by)
Glenn M. Stannard, O.O.M.
Chair

Appendix 8. Ruling on Request to Comment on the Interim Report – November 29, 2012

Military Police Complaints Commission

In the matter of a conduct complaint under section 250.18 of the National Defence Act by Mr. Shaun Fynes and Mrs. Sheila Fynes.

Ruling on Request to Comment on the Interim Report

MPCC 2011-004 (Fynes) Public Interest Hearings pursuant to
Section 250.38(1) of the National Defence Act

On November 5, 2012, the Commission received a request from Col (ret’d) Michel Drapeau, counsel for the complainants, asking that the Commission provide a copy of its Interim Report to the complainants “in the same time and manner” that it will be provided to the Minister, the Chief of the Defence Staff or the Deputy Minister and the JAG and the Canadian Forces Provost Marshal pursuant to section 250.48 of the National Defence Act.Footnote 5565 Col (ret’d) Drapeau also requested that the complainants be provided with a copy of the Notice of Action that must be issued to the Commission by the Canadian Forces Provost Marshal, the Chief of the Defence Staff or the Deputy Minister of National Defence after receipt and review of the Interim Report pursuant to section 250.51 of the NDA. In addition, he requested that the complainants be permitted to provide comments on the Interim Report and the Notice of Action, and that these comments be taken into consideration by the Commission in the drafting of the Final Report.

In his request, Col (ret’d) Drapeau discussed the legislative framework governing the Interim Report, the Notice of Action, and the Final Report. He characterized the Notice of Action as an “exclusive right to make representations on the MPCC Interim Report,” and argued that this legislative framework violates and disregards the common law principles of both procedural fairness and natural justice. He added that the procedure set out by the NDA amounted to a “unilateral and ex parte privilege granted to DND/CF” that would result in the Parties being accorded unequal procedural rights.

Col (ret’d) Drapeau argued that procedural fairness is a principle of fundamental justice entrenched within s. 7 of the Canadian Charter of Rights and FreedomsFootnote 5566 as well as section 2(e) of the Canadian Bill of Rights.Footnote 5567 He added that procedural fairness in “this constitutional dimension has primacy over all legislation, including the National Defence Act, which is the enabling legislation mandating the MPCC to investigate conduct complaints against the military police.” For that reason, he submitted that the Commission “is vested with the duty to treat any unconstitutional provision as having no force or effect, negating its effect to the extent of the inconsistency.” In the event that it was determined that the Commission's mandate did not extend to rulings on the constitutional validity of the provisions of the NDA, Col (ret’d) Drapeau requested that the Commission read s. 250.48 of the NDA as giving both Parties equal participation concerning the Interim Report and Final Report.

On November 16, 2012, Department of Justice counsel Mr. Alain Préfontaine provided a written response expressing his opposition to the complainants’ request. It is not clear whether these submissions were provided on behalf of the subjects of the complaint, the Canadian Forces Provost Marshal, the Department of National Defence, the Government of Canada, or all or some of them. In the past, Mr. Préfontaine has presented submissions in these proceedings on behalf of the Government of Canada, and has also appeared on behalf of the subjects of the complaint during the testimony of one witness before the Commission.Footnote 5568 No submissions were received specifically on behalf of the subjects of the complaint.

In his submissions, Mr. Préfontaine argued that the Commission's mandate does not extend to adjudicating claims or disputes between parties; instead, the Commission was created to investigate complaints concerning the conduct of members of the Military Police and to make findings and recommendations concerning the complaints. As a consequence, he submitted, the Commission lacks the jurisdiction required to review the constitutional validity of s. 250.48 of the NDA.

Mr. Préfontaine argued that Parliament intended that the Parties and the institutional representatives (the Department of National Defence, the Canadian Forces, and the military police) be treated differently, and that their rights and obligations therefore be different. During the Hearing stage, he noted, parties possess participatory rights by the operation of s. 250.44 of the NDA. Conversely, the institutional representatives do not have such participatory rights. At the end of the Hearing, however, the roles change and the institutional representatives are charged with responding to the findings and recommendations presented in the Interim Report, pursuant to s. 250.48 of the NDA. In addition, Mr. Préfontaine asserted, the fact that the Parties are designated as recipients only of the Final Report pursuant to s. 250.53(2) of the NDA – and not of the Interim Report pursuant to s. 250.48 – makes it clear that Parliament consciously excluded them from the Interim Report phase. By necessary implication, Mr. Préfontaine argued, this exclusion means that any participatory rights of the Parties during the Interim Report phase were purposively overridden by statute. For these reasons, he submitted that there is “no legal basis to grant the request [the complainants] now make.

Decision

I note first that this decision is confined to the request to comment on the Interim Report and to receive and comment on the Notice of Action.

I have considered the submissions made by Col (ret’d) Drapeau on behalf of the complainants in support of the request, and those of Mr. Préfontaine in opposition. I have concluded that there is no right, constitutional or otherwise, for a Party to comment on an Interim Report or a Notice of Action under the NDA.

Col (ret’d) Drapeau cited the decision of the Newfoundland Supreme Court, Trial Division, in Woolworth Canada v. Newfoundland (Human Rights Commission)Footnote 5569 in support of his argument that both parties must have the same right to see and comment upon the Interim Report. Central to the complaint of bias in that case was the fact that the Human Rights Commission had given one party the investigator's report and the opportunity to make submissions as to whether or not that commission should appoint a board of inquiry in the matter. In other words, the Human Rights Commission made a decision to invoke the adjudication of a board to hear the complaint, a decision affecting the rights of all parties, while having invited only one of those parties to make submissions in advance of that decision.

That decision was found, in the circumstances, to give rise to a reasonable apprehension of bias. It should be noted, however, that the procedure respecting the Interim Report is markedly different in purpose, substance and effect.

The Commission does not provide the Interim Report to any of the Parties to the Hearing in order to solicit comments and submissions about the substance of the findings and recommendations. Instead, the Commission is required by statute to provide its findings and recommendations to certain Military Police and Department of National Defence officials in order for them to consider the actions to be taken in response to those findings and recommendations. The Notice of Action is not a means of providing editorial comment that could modify or influence the Commission’s decisions. Rather, it is a means of providing information to the Commission about the actions that will or will not be taken in response to the Commission’s findings and recommendations, and the reasons for any decision not to take action. The Commission can then comment on the intended actions or inaction in its Final Report.

Neither the complainants nor the subjects of the complaint have a statutory or constitutional right of comment on the Interim Report or on the Notice of Action. It is therefore not the case, as argued in support of this request, that one side possesses a right that the other does not. As argued by Department of Justice counsel, the Interim Report and the Notice of Action engage the “institutional representatives” rather than the Parties. The broader institutions must determine what actions to take, if any, in response to the findings and recommendations that I will make – and if no action is to be taken, those institutions must explain why not. There is no statutory provision for any other parties to be involved at this stage.

In this case, the subjects of the complaint, the Canadian Forces Provost Marshal and the Department of National Defence have all been represented by the same team of Department of Justice and other Government counsel before this Hearing. This may be a cause of some concern for the complainants, and it may create an unfortunate appearance that the Interim Report is being provided to one Party and not to the other. It should therefore be noted that the multiple representation by the Department of Justice must not give rise to a situation where the subjects of the complaint have access to this Commission’s report before the complainants do. The multiple representation is also not to be used to provide any opportunity for the subjects of the complaint to have input as to the contents of the Notice of Action. Department of Justice counsel involved in this matter must take all necessary measures to ensure that no such improprieties occur. That having been said, however, the multiple representation alone does not constitute sufficient grounds to conclude that the complainants must be granted a right to comment on the Interim Report and Notice of Action.

With respect to the constitutional arguments raised by the complainants, it was argued that procedural fairness and equal treatment are principles of fundamental justice protected by the Charter. On that basis, Col (ret’d) Drapeau invited me to find that the impugned provisions of the NDA were of no force or effect to the extent of the inconsistency with those principles. This submission was strongly opposed by Mr. Préfontaine, who denied that the Commission had any jurisdiction to make such determinations.

Section 7 of the Charter reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.Footnote 5570

As stated by Lamer C.J. (as he then was) in Re B.C. Motor Vehicle Act, “[t]he principles of fundamental justice [...] are not a protected interest, but rather a qualifier of the right not to be deprived of life, liberty and security of the person.”Footnote 5571 The principles of fundamental justice, informed in part by natural justice and procedural fairness, are not themselves constitutional rights. The constitutional right guaranteed by section 7 only arises in circumstances where there has been or is threatened to be, a deprivation of life, liberty or security of the person. In this case, it is difficult to see how the interests of Parties before a Public Interest Hearing can be thought to involve such an actual or threatened deprivation, so as to allow them to invoke that Charter guarantee.

Section 2(e) of the Canadian Bill of Rights is also inapplicable in this situation. The guarantee to a fair hearing in this section applies where the hearing in question involves a determination of the individual's rights and obligations.Footnote 5572 This Commission has no mandate to find criminal or civil liability and cannot make any order affecting the legal rights and obligations of the Parties. The Commission’s only mandate is to make recommendations, and therefore, as with section 7 of the Charter, the threshold to trigger the right protected by section 2(e) of the Canadian Bill of Rights is not met.

As for procedural rights themselves, including the right to fairness, principles of fairness have been applied throughout the proceedings to ensure that the Parties’ statutory right to participate could be fully exercised. Each Party was granted the opportunity to bring evidence, cross-examine witnesses and make representations. The Commission’s findings and recommendations will be based on the evidence heard in the Public Interest Hearing where both Parties participated fully. The process by which governmental authorities advise the Commission of their intended response to the findings and recommendations through the Notice of Action is a different process that does not engage the same participatory rights for the Parties.

I find that no violation of the requirements of natural justice or procedural fairness results from allowing only the institutional recipients of the Interim Report to comment on the findings and recommendations through the Notice of Action. Similarly, no violation occurs by not permitting the Parties before the Hearing to receive or comment on the Notice of Action. This process does not unfairly deprive anyone of a fundamental right guaranteed by the Charter, by the Canadian Bill of Rights or by the general principles of administrative law. It is therefore unnecessary to discuss in further detail the constitutional and jurisdictional arguments made by Col (ret’d) Drapeau and Mr. Préfontaine.

For all of these reasons, I have concluded that neither the law nor the constitution provide for the requested right to comment on the Interim Report and to receive and comment on the Notice of Action.

It is hereby ordered that the complainants’ request to be given the right to comment on the Commission's Interim Report, and to receive and comment upon the Notice of Action, is denied.

Dated at Ottawa, Ontario this 29th day of November, 2012.

(Original document signed by)
Glenn M. Stannard, O.O.M.
Chair

Appendix 9. Notice of Action and related correspondence

Undesignated as of June 23, 2015
under the authority of
Colonel Robert P. Delaney, OMM, CD
Canadian Forces Provost Marshal

2120-20-2-3/2011-019 (CF MP Gp PS)

15 December 2014

Chair
Military Police Complaints Commission
270 Albert Street, 10th Floor
Ottawa, ON K1P 5G8

Dear Mr. Stannard:

Pursuant to section 250.51 of the National Defence Act, I am enclosing my Notice of Action with respect to your Interim Report MPCC-2011-004 (Fynes) concerning the Public Interest Hearing.

I trust that the enclosed document will be of assistance to you in the preparation of your Final Report. Should you have any questions, do not hesitate to contact me at 613-949-1000.

Yours truly,

(Original document signed by)
R.P. Delaney
Colonel

Enclosure: 1

c.c. Minister of National Defence
Chief of the Defence Staff (thru Vice Chief of the Defence Staff)
Judge Advocate General

Protected B

Undesignated as of June 23, 2015
under the authority of
Colonel Robert P. Delaney, OMM, CD
Canadian Forces Provost Marshal

RECEIVED
Dec 16 2014
Military Police Complaints Commission
Commission d’examen des plaintes concernant la police militaire



Protected B

Undesignated as of March 10, 2015
under the authority of
Colonel Robert P. Delaney, OMM, CD
Canadian Forces Provost Marshal

COMMANDER
CANADIAN FORCES MILITARY POLICE GROUP
NOTICE OF ACTION

WITH RESPECT TO THE
MILITARY POLICE COMPLAINTS COMMISSION'S
INTERIM REPORT IN ITS PUBLIC INTEREST HEARING
RELATING TO A COMPLAINT BY
MR. AND MRS. FYNES
REGARDING THE CONDUCT OF MEMBERS OF
THE CANADIAN FORCES NATIONAL INVESTIGATION SERVICE

File: MPCC-2011-004

December 2014

Protected B

RECEIVED
Dec 16 2014
Military Police Complaints Commission
Commission d’examen des plaintes concernant la police militaire


2120-20-2-4/2011-019
03 December 2014

A. CANADIAN FORCES PROVOST MARSHAL REVIEW OF THE COMMISSION CHAIR'S FINDING

Finding Number Allegation MPCC Finding CFPM COMMENTS

ALLEGATIONS RELATING TO INDEPENDENCE AND IMPARTIALITY

1

The NIS investigations were not conducted in an independent and impartial manner. NIS lacks the independence, on a structural level, to conduct such investigations.

UNSUBSTANTIATED

The Commission saw no evidence supporting this allegation. The Commission has identified deficiencies in all three investigations conducted in this case. However, there is no evidence any of these deficiencies were the result of lack of independence or bias on the part of the CFNIS members involved or the CFNIS as an institution. Rather, the deficiencies largely resulted from inexperience, faulty assumptions and inadequate supervision.

The evidence provides no indication of any interference or attempt by the CF members to dictate or influence the conduct of the three CFNIS investigations or their ultimate conclusions. There is also no evidence of any bias or desire to protect CF interests having influenced the conduct of the investigations or the conclusions reached.

The Commission has noted some of the events in this case did raise concerns about maintaining confidence in the CFNIS' independence. In particular, the failure of the CFNIS members involved in the 2009 and 2010 investigations to conduct more extensive investigations, after they had obtained and reviewed the CF's internal investigations into the same matters, could impact on the CFNIS' ability to demonstrate its independence. However, the evidence did not demonstrate the review of the CF investigations actually impacted the conduct of the investigations or the conclusions reached.

There was no evidence indicating the CFNIS, as an institution, lacked the independence to conduct the investigations. However, some of the policies and processes in place give rise to concerns about the CFNIS' ability to maintain its independence. In particular, it was found the CFNIS does not have final decision-making authority to refuse to release information, which might impact on ongoing investigations or police methods. However, there is no evidence information that could compromise CFNIS investigations or methods was in fact released despite the CFNIS' objection. As such, there is no evidence the policies and processes impacted on CFNIS independence in practice.

Noted.

Notwithstanding that this allegation was found to be unsubstantiated, deficiency comments made by the Commission will be addressed in the responses to recommendations 1-4 and 38-42 which fall out of this finding.

2

The 2008, 2009 and 2010 investigations were aimed at exonerating the Lord Strathcona's Horse (Royal Canadians) regiment (LDSH) Chain of Command and the Canadian Forces (CF) more generally of any responsibility for their failure to prevent Cpl Langridge's death and for the manner in which the complainants were subsequently treated.

UNSUBSTANTIATED

There is no question all three investigations were incomplete and left many questions unanswered. However, there is no evidence these deficiencies were caused by any bias on the part of the members involved, nor that the investigations were aimed at exonerating anyone. In order to reach a contrary conclusion, the Commission would be required to find there was a conspiracy commencing with the front line investigators up to the highest ranking CFNIS members. Such planning and thought process were not presented in any fashion in this case.

On the contrary, the evidence shows the CFNIS members all sought to complete their tasks to the best of their ability. There is no evidence indicating any dishonesty or inappropriate motivations on the part of any of the CFNIS members involved in the investigations. Further, the evidence reveals many of the events that led the complainants to believe the investigations were biased, did not, in fact, happen as the complainants believed they had.

Noted.

Consultations will take place with the RCMP to have the investigation reviewed or redone at their discretion.

3

The 2008 Sudden Death investigation report contained findings that were inaccurate, that the investigator was not qualified to make, and that were aimed at attacking Cpl Langdrige's character and exonerating CF members of any wrongdoing or liability.

SUBSTANTIATED IN PART

The Commission finds the Concluding Remarks for the 2008 investigation contained information that was inaccurate or not supported by the evidence uncovered during the investigation. They contained a statement indicating Cpl Langridge's addiction issues had caused him to suffer from mental health issues, which the investigator was not qualified to make, and which was not supported by the evidence. The revised Concluding Remarks authored by the supervisors for the 2008 investigation continued to include information not supported by the evidence about Cpl Langridge's mental health and addiction issues. The Concluding Remarks also included a comment indicating Cpl Langridge's death occurred despite the structure and support provided by his Unit. The conclusion was not supported by the evidence and may well have been inaccurate.

However, there is no evidence the statements were aimed at attacking Cpl Langridge's character or at exonerating CF members. On the contrary, the evidence indicates the CFNIS members involved had no improper motivations or bias and no intent to attack Cpl Langridge's character or exonerate the CF.

The Commission notes the Concluding Remarks were modified in 2010 following the Fynes' complaints during meetings with CFNIS members. In recognition of the great distress these Concluding Remarks caused the complainants, all objectionable statements were removed. However, there was no recognition by the CFNIS or its members that the original Remarks were inaccurate or unsupported by the evidence.

The members of the CFNIS strive for accuracy and completeness in documentation following investigations. There are several layers of review followed by a signature of the Officer Commanding the detachment before files are considered closed. The MP Chain of Command will continue to review conclusions drawn by investigators.

It must be noted however, that the reports generated by the CFNIS document investigations carried out for the purpose of determining whether any crimes or breaches of the Code of Discipline have been committed and whether charges ought to be laid as a result. These reports are not prepared for the purposes of informing complainants of the outcome of any investigation.

4

The 2008 Sudden Death investigation was overly intrusive in light of its initial aim of determining the cause of death. Obtaining and including in the file Cpl Langridge's medical records was unnecessary for this purpose.

UNSUBSTANTIATED

The Commission is satisfied it was both relevant and necessary for the purposes of this investigation to obtain Cpl Langridge's medical records.

Those records had relevance to the sudden death investigation. They could be used to confirm suicide as the most likely cause of death because they contained information about Cpl Langridge's mental health issues and past suicide attempts.

The records were especially relevant to the investigation of potential negligence, which was also one of the stated goals set out in the investigation plan for the 2008 investigation. In this respect, the Commission has, however, found the investigation conducted into potential negligence was incomplete, and the medical records obtained were insufficient. The CFNIS members cannot be faulted both for doing too much and for not doing enough. The Commission has found more should have been done to investigate negligence but finds there is no support for the allegation the investigation was overly intrusive.

Noted.

As is the case for all evidence, medical records are obtained where necessary for the purposes of determining any indication on which to form a belief that there were reasonable and probable grounds to investigate any potential breaches of the Code of Service Discipline or potential criminal acts.

5

When they did start to examine the issue of underlying causes of Cpl Langridge's suicide in the 2008 investigation, NIS investigators failed to pursue this examination in a complete and unbiased manner. The investigators were selective in the information they obtained and included, and their selection was not objective or impartial. The conclusions drawn by the investigators were based on incomplete facts which contained numerous contradictions and discrepancies.

SUBSTANTIATED IN PART

The Commission has found there was no bias on the part of the CFNIS members involved in the investigation. There is no evidence they selected information in a manner that was not objective or impartial.

However, the evidence does reveal many aspects of the investigation were incomplete. Both in terms of investigating the cause of death and investigating potential negligence, the evidence reveals many obvious investigative steps were not taken and many clearly relevant documents were not obtained. Hence, Cpl Langridge's parents and common-law spouse were never interviewed; Cpl Langridge's medical records from civilian hospitals were never obtained; medical personnel from civilian hospitals and key care providers from the military medical community were not interviewed; members of Cpl Langridge's CoC were not interviewed; the activities and whereabouts of Cpl Langridge during the days immediately preceding his death were not ascertained; and, the authenticity of his suicide note was never confirmed or investigated. Other steps directly relevant to ruling out foul play, including such obvious matters as confirming the lack of access to Cpl Langridge's room by a third person, were also not pursued.

These deficiencies were the result of poor planning and poor execution of the investigation as well as inadequate supervision. The Investigation Plan, in particular, was especially inadequate, and there was no intervention by supervisors to correct the situation.

In terms of the conclusions drawn, there was sufficient evidence to support ruling out foul play at an early point in the sudden death investigation. As such, despite other deficiencies in this aspect of the 2008 investigation, it cannot be found the conclusions were based on incomplete facts. However, the contradictions and discrepancies in the facts relevant to potential negligence were not sufficiently investigated. Insofar as there were conclusions drawn in this regard, they were based on incomplete facts.

Noted.

Consultations will take place with the RCMP to have the investigation reviewed or redone at their discretion.

6

The NIS investigators in the 2008 Sudden Death investigation met with CF members from the LDSH regiment prior to attending the scene. They were influenced by these meetings and discussions and this tainted the remainder of their investigation.

UNSUBTANTIATED

There is no evidence whatsoever to support his allegation. On the contrary, the evidence reveals the CFNIS investigators did not meet with members of the LDSH Regiment prior to attending the scene. Their investigation was not ''tainted" by any such meeting or by any other event or discussions.

When the CFNIS investigators arrived at the Base, they attended the MP guardhouse. There, they met with local MP members and, subsequently, with the ME investigator. At the scene, they also interacted with first responders including MP members and Base Firefighters. They met with LDSH members only after attending at and processing the scene and only for the legitimate purpose of conducting interviews in support of their investigation or discussing administrative matters related to Cpl Langridge's property.

As can be expected during the initial phases of any investigation, the CFNIS investigator encountered rumours and other unconfirmed information about Cpl Langridge and his last days in the course of their interactions with MP members and witnesses at the scene. However, it is clear they recognized the speculative and fragmentary nature of such statements, and attempted, albeit without great success, to discern what, if any, truth lay behind them.

Noted.

7

NIS members involved in the conduct of the 2008 Sudden Death investigation provided inaccurate information to the Alberta Medical Examiner (ME) about whether Cpl Langridge was the subject of disciplinary action in the CF. This resulted in an inaccurate mention on the ME certificate that Cpl Langridge had "disciplinary issues". NIS refused to make any attempt to have this inaccuracy corrected.

UNSUBSTANTIATED

The evidence before the Commission has revealed the CFNIS investigators were not, in fact, responsible for the comment included in the ME Certificate. The information they provided to the ME investigator was accurate. When they provided preliminary or unconfirmed information, they specified the information had not been verified, and they offered further clarification when they obtained additional information.

The mention of disciplinary issues included in the ME certificates was the result of the ME Investigator's own interpretation and not of statements made by the CFNIS members. As such, the CFNIS cannot be faulted for not volunteering to provide assistance to the complainants in having the Certificate corrected. The complainants should have pursued this issue directly with the Office of the Alberta Medical Examiner.

Noted.

8

The NIS and its members made inaccurate statements about where Cpl Langridge was residing immediately prior to his death. Those statements were aimed at exonerating the LDSH Chain of command of any responsibility and were examples of NIS participation in broader efforts by the CF to exonerate themselves from any responsibility.

UNSUBSTANTIATED

The evidence reveals, during an interview with the complainants, one CFNIS member did discuss his belief - based on initial review of the materials - Cpl Langridge did not reside in the Defaulters' room at the time of his death. This information was not accurate. However, it is clear the statements were based on an honest misunderstanding, and the member made it clear he intended to verify the information.

There were also inaccuracies in some of the notations about Cpl Langridge's address included in the 2008 investigative file. The evidence shows these statements were in the nature of clerical errors.

None of the statements made were aimed at exonerating the Regiment of responsibility, nor were they examples of CFNIS participation in any efforts to exonerate the CF from responsibility. In fact, the Commission has found no evidence of participation by the CFNIS in any such efforts.

 Noted.

9

NIS members commented, during a meeting with the complainants, that a statement made by their Assisting Officer indicating that the complainants were "deceived, misled and intentionally marginalized in their dealings with DND and the CF" was likely the result of Stockholm syndrome. This demonstrated a previously-held view by NIS members that any views critical of the CF must be wrong. Such views prevented NIS members from conducting independent investigations into the actions of CF members.

UNSUBSTANTIATED

The CFNIS members adamantly denied making any comment related to "Stockholm syndrome". The evidence before this Commission provides no confirmation of any such comment having been made. The recording for the meeting when the comment was alleged to have been made contains no trace of it. The recording was submitted to expert analysis by the Commission as a result of allegations by the complainants that the recording had been altered. That analysis confirms the recording was not altered.

 Noted.

10

NIS agreed to participate in an intended briefing that was offered to the complainants by the CF and that was to include information about the CF Board of Inquiry, as well as about the CFNIS Investigations. NIS failed to preserve its independence by failing to ensure that its police investigations were kept separate and distinct from other internal CF processes.

UNSUBSTANTIATED

The Commission found no evidence a common briefing about the CFNIS investigations and the CF's BOI was ever planned or offered to the complainants. The evidence reveals the only briefing offered to the complainants by the CFNIS related solely to the CFNIS' own investigations.

It appears the complainants' impression there was a plan to provide a common briefing may have arisen as a result of their communications with Col Blais, who had been named as the point of contact to answer their questions on behalf of the CF. These communications included several discussions relating to the briefings or updates to be provided about the BOI and the CFNIS investigations. As the issues were discussed together, it may have appeared to the complainants the briefings would also be joined.

Although the Commission has found there was no plan to provide a joint briefing, it also finds the communications with Col Blais about CFNIS issues opened the door to creating confusion about the CFNIS' role and were problematic in terms of maintaining confidence in CFNIS independence.

 Noted.

The only source of information about CFNIS investigations is the CFNIS. The CFNIS conducts its policing duties and functions independent of the Chain of Command. All future family briefings will be conducted solely by MP.

11

NIS participated in broader CF efforts to provide explanations and justifications in response to the complainants' concerns, instead of conducting independent investigations in response to those concerns.

UNSUBSTANTIATED

This allegation related to the complainant's concerns about CFNIS participation in public affairs coordination with the CF. The evidence does not support a conclusion the CFNIS participated in efforts to present the CF's perspective to the public. There is no evidence the CF exerted control or influence over the CFNIS' public message, nor is there any evidence the CFNIS modified its messages about its investigations to serve the CF's interests or public relations strategy. In addition, the evidence indicates the CFNIS did not participate in a CF-wide Task Force constituted to advance the CF's interests in civil litigation or to present the CF's positions to the public.

However, the CFNIS did participate in extensive public relations coordination involving other CF organizations. While the CFNIS generally retained control over the information released about its investigations and activities, the evidence reveals there were no formal policies or processes in place to protect the CFNIS' independence in terms of authority over the release of its information. This gives rise to concrete concerns about maintaining confidence in CFNIS independence. The Commission has noted that having clear policies governing such matters, rather than relying on a general practice which may or may not be known or adhered to by all CF PAOs, would provide effective safeguards.

The evidence also reveals the CFNIS, in this case, often participated in preparing joint media response lines or public statements with other CF organizations. This was done because the case raised issues of concern to many different CF organizations. CFNIS messages were, at times, delivered by CF spokespersons, and messages related to the CF's interests were, at time, included in the CFNIS own media lines. This risked creating confusion and impacted the CFNIS's ability to demonstrate independence.

When the CF high command commented on the matter while it was still under investigation, because the CFNIS had not been careful to keep its public messages separate from those of the broader CF, there was a risk of creating an impression the CFNIS might be influenced by the positions taken by members of the CF CoC. The Commission has found the CFNIS does not have authority to prevent comment by the CF about matters it is investigating. However, the CFNIS can contribute to fostering greater confidence by keeping its own messages separate, not speaking on behalf of the CF, and not allowing the CF to speak on its behalf.

 Noted.

The CFNIS conducts its policing duties and functions independent of the Chain of Command with its own integral CF PAFFO support that releases police information on the sole authority of the CFPM. It must be noted however, that the CFMP Gp is organized as a unit of the wider Canadian Armed Forces and not a police force governed by its own Police Act. It is subject to the same policies and administrative procedures as any other unit in the CAF and therefore all non-police related comments and communications approaches must be processed in coordination with the wider CAF.

Comments made by the Commission concerning public affairs and their impact on MP independence will be addressed in recommendations 38-41 which fall out of this finding.

12

Concerns raised by the complainants in discussions with CFNIS members (particularly, concerns about damages to Cpl Langridge's vehicle while in CF custody) were discussed by NIS members with non-MP members of the CF (in particular, Land Forces Western Area). This was done for the purpose of participating in CF efforts to explain and justify their actions and not for the purpose of conducting an independent investigation.

UNSUBSTANTIATED

The evidence before the Commission shows no inappropriate discussions took place between the CFNIS members and the LFWA CoC. The discussions that did take place were limited to legitimate information-sharing, and no details about the CFNIS investigation were provided.

There was no impropriety in discussing the complainants' administrative concerns with the LFWA CoC. These concerns were unrelated to the CFNIS investigation or mandate and were brought to the CF's attention in an effort to assist the complainants. When they initially learned about these efforts, the complainants were grateful and did not express any concerns about lack of CFNIS independence or improper contacts with the CF. There is no evidence the discussions about these matters involved any attempt by the LFWA CoC to influence or interfere with the CFNIS investigation, let alone that this was the result.

There is also no evidence the discussions were related to CFNIS participation in any CF efforts to explain or justify the CF's actions. The LFWA CoC's concern to ensure the CDS was aware of all ongoing investigations prior to issuing public comments was legitimate. The CFNIS Detachment OC's own individual concern about the same issue was unrelated to the interests of the police investigation, but the evidence reveals it had no impact on the conduct of the investigations or the conclusions reached.

 Noted.

13(a)

NIS and its members failed to provide adequate and timely information to the complainants. NIS participated in broader Canadian Forces efforts to withhold information from the complainants. NIS members allowed non-MP members of the CF, including CF legal advisers, to influence or dictate their decisions about the type of information provided to the complainants and the manner in which this information would be provided. NIS members allowed a broader CF concern over potential litigation between the complainants and the CF to dictate or influence their decisions about the information to be provided to the complainants and the manner in which that information would be provided. In particular:

a) NIS improperly withheld information from the complainants about its 2008 Sudden Death investigation by providing a copy of the report which contained numerous redactions having no justification in law or privacy protection. The complainants were provided with an incomplete file with no specific or satisfactory explanation for withholding information.

SUBSTANTIATED IN PART

The evidence has revealed many of the redactions applied to the copies of the 2008 investigation report provided to the complainants were difficult to understand or justify. The complainants were not provided with satisfactory explanations for the redactions. Many of the redactions were applied by a separate DND organization, the DAIP, while others resulted from the MP's own failure to include certain information when compiling the file.

The redactions applied are of concem, and what the evidence has revealed about the process in place for the release of CFNIS information also raises concerns. In particular, the fact the CFNIS does not have final decision-making authority to refuse to release information which may compromise its ongoing investigations or disclose police methods, can have an impact on the CFNIS' ability to maintain and protect its independence. While this has not happened in practice, the existing process is of concern. In addition, delegating decisions about redactions to be applied to CFNIS information also raises concerns in terms of maintaining confidence in the CFNIS' independence.

However, the evidence does not support a conclusion the redactions were an attempt by the CFNIS or its members to withhold information from the complainants. There is also no evidence of CFNIS participation in broader CF efforts to withhold information from the complainants in connection with the release of this report, nor of any concerns about the CF's litigation interests having influenced decisions about the information released. While the CFNIS did allow non-MP members of the DND, namely the office of the DAIP, to make decisions about the release of the information contained in its investigative file, this was done pursuant to the process in place for the release of information and not with any improper intent or motivation.

 Noted.

Comments made by the Commission concerning DAIP authority to release information and its potential effect on police independence will be addressed in recommendations 42-43 which fall out of this finding.

13(b)

b) NIS members failed to provide regular updates to the complainants as promised. Communication was irregular and contained unexplained gaps of many months.

SUBSTANTIATED

The evidence reveals the CFNIS members involved failed to provide timely and adequate information to the complainants throughout the course of all three investigations conducted. The complainants were never updated or briefed about the 2008 investigation until over a year after it was concluded. They were never provided with an explanation of the reasons for the CFNIS' failure to disclose Cpl Langridge's suicide note to them in a timely manner.

When they did receive a briefing about the 2008 investigation, the complainants were provided general information and justifications but no specific information answering their questions. Commitments to provide information at a later date were not honored.

During the 2009 and 2010 investigations, the complainants were not provided with the regular updates they had specifically promised by the CFNIS members. A limited number of updates were initially provided, but then a period of five months elapsed without any update or contact. Even when they did receive updates, the complainants were given no substantive information about the investigations. In particular, the CFNIS members made numerous promises and commitments to the complainants about how the investigations would be conducted. The investigations were not conducted as promised, and the CFNIS members never advised the complainants about the changes in approach.

The Commission finds there was no acceptable justification for the failure to provide regular updates and substantive information to the complainants. The Detachment OC assumed responsibility for providing updates and information in connection with the 2009 and 20120 investigations but did not ensure they were, in fact, provided.

 Noted.

Deficiency comments made by the Commission will be addressed in the responses to recommendations 14-21 which fall out of this finding.

13(c)

c) NIS acquiesced and participated in an effort by the CF to prevent the complainants from communicating with CF members. The complainants received a letter advising them that, in light of anticipated litigation, they were not to communicate directly with any member of the CF. No exception was made to allow the complainants to communicate with the NIS members investigating their complaints and NIS members in fact did not contact the complainants during this period.

UNSUBSTANTIATED

While the CFNIS' failure to maintain contact with the complainants and provide them with information was serious, the Commission has found no evidence it was the result of influence by CF members or legal advisors. As well, the Commission has found it was not motivated by concern over the CF's litigation interests. There is also no evidence the CFNIS participated in any CF efforts to withhold information from the complainant or to prevent the complainants from communications with the CF.

The evidence reveals the "no contact" letter sent by CF legal representatives in September 2010 had no impact on the CFNIS' interactions with the complainants. The CFNIS was not involved in the decision to send this letter, nor were they consulted about it or even aware of it. Had they known about the letter, the evidence indicates the CFNIS members would not have viewed it as precluding them from contacting the complainants. On its face, it is also doubtful the CF's correspondence could fairly be interpreted as seeking to limit or limiting the complainants' contact with the CFNIS.

 Noted.

13(d)

d) NIS cancelled a planned verbal briefing on the 2009 and 2010 investigations that was to be provided to the complainants. This decision was made because the complainants requested that their lawyer attend the briefing as an observer. In cancelling a briefing about the police investigations because of potential litigation between the complainants and the CF, the NIS failed to act independently.

SUBSTANTIATED IN PART

The Commission finds the CFNIS did cancel a verbal briefing initially offered to the complainants because they requested their lawyer be present as an observer. This decision was made by the CFNIS DCO, but two of the subjects of the complaint, the CFNIS CO and the Detachment OC, participated in the decision.

The Commission finds the decision to cancel the briefing was not appropriate. The CFNIS members had obligations to provide information to the complainants, particularly in light of the commitments they had made to them and the CFNIS' poor track record for maintaining contact during the investigations. Their desire not to become involved in the civil litigation process, while understandable, was not a sufficient or acceptable reason to fail to honor their obligations and commitments to the complainants in this case.

There is no evidence the decision to cancel the briefing was influenced or dictated by non-MP CF members. Because of solicitor-client privilege, it cannot be known what advice, if any, was obtained from CF legal advisors when the decision was made. However, the evidence indicates no concerns arise in this respect as the CFNIS generally obtains advice only from members of the military prosecution service, and this does not raise police independence concerns.

The evidence before the Commission does not conclusively refute the possibility that concern over the CF's litigation interests may have influenced the decision to cancel the briefing. The evidence is not conclusive as to whether consideration of the specific fact the CF was involved in the litigation played a part in the decision, although the testimony of at least one of the subjects of the complaint did indicate the CF's litigation interests may have been a factor considered in the decision. While this is not sufficient to conclude the CFNIS failed to act independently, it does raise concerns about its ability to maintain confidence in its independence.

 Noted.

The CFPM will liaise with civilian policing partners to determine a balanced approach with respect to communications with complainants in the face of ongoing litigation that is reflective of best practice.

13(e)

e) The written briefing provided to the complainants by NIS in May 2011 in replacement for the planned verbal briefing did not contain sufficient information to answer the complainant's questions.

SUBSTANTIATED

The evidence reveals the information contained in the written briefing provided to the complainants was inadequate and insufficient to answer the complainants' questions.

The decision to provide a letter instead of a verbal briefing was, by its very nature, bound to result in the complainants receiving less information. Further, the letter, as drafted, provided no information about the rationale for the conclusions reached in the two investigations. The letter failed to honour the commitment made by the CFNIS members to the complainants that full justification would be provided if a decision was made not to proceed with charges. The letter also contained no information about the investigative steps taken in the 2009 and 2010 investigations and, as such, failed to inform the complainants the investigations did not proceed as earlier promised by the CFNIS members. Some of the information contained in the letter was inaccurate and some of the characterization of the nature and scope of the activity undertaken were potentially misleading.

Noted.

Deficiency comments made by the Commission will be addressed in the responses to recommendations 14-21 which fall out of this finding.

ALLEGATIONS RELATING TO INSUFFICENT INVESTIGATION OR FAILURE TO INVESTIGATE

14

The investigations conducted by CFNIS were inadequate. The investigations failed to properly address the issues to be investigated. NIS members failed to investigate other issues, and failed to provide an appropriate response to the complainants with respect to the concerns they specifically brought to their attention.

SUBSTANTIATED

The Commission has identified significant deficiencies in all three investigations conducted. In each case, the CFNIS members failed to identify and/or investigate significant issues properly or at all. Irrelevant investigative avenues or steps were pursued while relevant ones were not. Supervisors failed to intervene to correct misconceptions or inadequate approaches taken by the investigators. Instead, at times, they directed relevant investigative steps not be taken.

Noted.

Consultations will take place with the RCMP to have the investigation reviewed or redone at their discretion.

15

NIS failed to properly investigate in a timely manner the potential criminal or service offences committed by members of the LDSH Chain of Command and other CF members prior to Cpl Langridge's death. Conduct requiring further investigation, follow-up and analysis was uncovered during the 2008 investigation and was specifically brought to the attention of the NIS by the complainants. This conduct was not adequately investigated.

SUBSTANTIATED

During the 2008 investigation, the CFNIS investigators obtained or had the means of obtaining information regarding Cpl Langridge's last weeks including the regimental response to his distress and the medical treatment he received. This information suggested an investigation was required to determine whether there were instances of negligence, which could have contributed to Cpl Langridge's death.

The CFNIS members involved in the 2008 investigation did not consider any potential offences beyond the possibility Cpl Langridge might have been under a defective suicide watch when he died. They failed to investigate even this question adequately, and they failed to recognize and therefore failed to investigate all other relevant negligence-related issues. They failed to interview many important witnesses and also failed to obtain relevant records and evidence. As a result, key questions were never investigated, and easily accessible evidence was never gathered.

In 2010, the complainants specifically requested an investigation be conducted into alleged criminal negligence in relation to Cpl Langridge's death. Despite assurances made to them theses allegations would result in an extensive investigation, the CFNIS members involved in the 2010 investigation did not gather any new evidence or undertake any investigative steps. Instead, the preliminary assessment they conducted relied largely on the flawed and inadequate 2008 investigation despite the concerns specifically brought to the CFNIS' attention by the complainants about that investigation.

The Commission finds the CFNIS failed to investigate the negligence-related issues adequately both in 2008 and 2010 and failed to conduce the follow-up investigation and inquiries, which would have been necessary as a result of the information uncovered during the 2008 investigation and the allegations brought forward by the complainants.

Noted.

Consultations will take place with the RCMP to have the investigation reviewed or redone at their discretion.

16

NIS failed to investigate the potential service offences committed by CF members in the application of (or failure to apply) suicide prevention policies in Cpl Langridge's case. NIS failed to investigate what policies were applicable and whether they were followed. In particular, NIS failed to investigate whether a requirement existed for the CF to conduct a Summary Investigation for each instance of attempted suicide by a member and whether this was in fact done in Cpl Langridge's case.

SUBSTANTIATED

Although the evidence is clear Cpl Langridge's suicidal ideation was known by the base medical community and the LDSH CoC prior to his death, at no point did any of the subjects of the complaint investigate the existence or application of suicide prevention policies with respect to Cpl Landridge.

Relevant policies or orders directed base commanders and COs to develop and implement intervention plans to provide for a rapid, coordinated and effective response to reports of suicidal behaviour. The CFNIS members involved in the 2008 and 2010 investigations did not investigate whether this imposed a duty to develop and implement such a plan, nor whether the LDSH had developed the necessary interventions plans. The CFNIS members also did not investigate whether any offences could result from the failure to conduct an SI after each of Cpl Langridge's suicide attempts, despite CF orders requiring this to be done and despite evidence the LDSH CoC and the base medical community were aware of at least two suicide attempts for which no SI was conducted.

Noted.

Consultations will take place with the RCMP to have the investigation reviewed or redone at their discretion.

17

In the conduct of the 2008 Sudden Death investigation and the subsequent 2010 Criminal Negligence investigation, NIS members failed to conduct the necessary follow-up and analysis to resolve conflicts and discrepancies in the information obtained, including in relation to the alleged "suicide watch" (or lack thereof) conducted prior to Cpl Langridge's death.

SUBSTANTIATED

In the course of the 2008 investigation, the CFNIS members received contradictory information about a potential suicide watch having been planned or conducted for Cpl Langridge. They also received conflicting information about the purpose of the conditions imposed on Cpl Langridge and whether they constituted a suicide watch.

The Commission finds the inquiries made by the CFNIS members about this Issue were not focused or adequate. Many critical questions ware left unanswered or were not thoroughly addressed. Contradictions in the evidence arose, and the CFNIS members failed to probe the witnesses critically, assess the evidence, and conduct the necessary follow-up inquiries. As a result, relevant evidence was never obtained, and relevant questions were never answered.

The CFNIS members conducting and supervising the 2010 investigation similarly failed to conduct the necessary follow up and analysis. Because they conducted no investigation at all, they did not gather any evidence or information that might have assisted in resolving the contradictions and discrepancies in the information available. The limited analysis conducted did not address the relevant issues or answer the relevant questions.

Noted.

Consultations will take place with the RCMP to have the investigation reviewed or redone at their discretion.

18

The activity undertaken by the NIS investigators in the 2008 Sudden Death investigation had no clearly defined and understood purpose. NIS investigators failed to produce a report that provided a satisfactory explanation for the issues they undertook to investigate. NIS failed to provide clarity for its own personnel and for the complainants about what those issues were.

SUBSTANTIATED IN PART

The CFNIS members who conducted and supervised the 2008 investigation did not exhibit a strong working understanding of the basic purpose of process for conducting a sudden death investigation. They did not have an adequate understanding of the role of the ME and how it related to their own role.

The investigators understood the ultimate goal of the investigation was to rule out foul play. However, they did not appear to have a clear understanding of what was required to achieve this goal.

The CFNIS members failed to assess the death scene and the evidence critically, and they failed to adjust their approach based on what the evidence revealed. They did not appreciate or assess the abundant evidence indicating Cpl Langridge's death was the result of suicide, and they did not take into consideration the opinion of the ME Investigator at the scene. They failed to make note of significant information available at the scene and they failed to gather, preserve, and protect from contamination evidence that would have been significant and even essential if the possibility of foul play became a realistic suspicion.

By March 19, 2008, it would have been appropriate, in view of the evidence gathered, to determine Cpl Langridge had not died as the result of homicide. Instead, the CFNIS members placed undue emphasis on the need to "keep an open mind" throughout the entirety of the investigation. As a result, the determination there was no foulplay involved in the death was unnecessarily delayed.

While generally complete, the police notes and SAMPIS entries made in the course of the 2008 investigation did not provide sufficient information about important decisions made and did not provide a clear picture of the issues under investigation or the conclusions reached regarding each of these issues.

Noted.

Deficiency comments made by the Commission will be addressed in the responses to recommendations 1-13 which fall out of this finding.

The CFPM acknowledges the relative inexperience of the members who conducted and supervised these investigations. However, since 2008, the CFNIS has gained considerable experience with investigating sudden deaths with 173 investigations done by MP including 74 overseas.

19

NIS failed to properly investigate in a timely manner the potential service offences committed by members of the CF in designating Cpl Langridge's former partner as next-of-kin. Facts requiring further investigation, follow- up and analysis were specifically brought to the attention of the NIS by the complainants and were not adequately investigated, including facts relating to CF interactions with the funeral director and with the complainants about the Registration of Death documents and facts relating to Cpl Langridge's missing paperwork located after his death.

SUBSTANTIATED

The evidence reveals numerous serious deficiencies in the 2009 investigation conducted by the CFNIS.

The investigation largely proceeded on the basis of faulty and untested assumptions. The allegations were never properly identified nor understood. Relevant questions were not asked or answered in the investigation. No conclusions were reached about who made the PNOK decision and on what basis. Other relevant issues related to the role of the executor, the registration of death, the misplaced paperwork and the involvement of a JAG officer in the PNOK decision-making process were never explored.

A fundamental flaw in the investigation was the total failure to seek legal advice. The issues raised in addressing the PNOK allegations were numerous and of considerable complexity encompassing questions of military, provincial and case law. The conclusions reached were based on the lead investigator's own understanding of legal norms and principles. The investigator involved had no legal training and did not have the expertise necessary to be able to draw legal conclusions with respect to the investigation. It should have been apparent to all CFNIS. members involved that legal advice was required.

The investigation into the facts of the complaint also suffered from other shortcomings. Sources of evidence were unduly limited by the failure to conduct interviews with fact witnesses. Assumptions were made which were not supportable on the actual facts. Members of the Regiment CoC involved in the PNOK decision were never interviewed. The issues of Cpl Langridge's martial status and the complainants' input into the funeral arrangements were not adequately investigated.

Throughout the investigation, supervisors were not sufficiently informed or aware of the issues being investigated. They provided limited input and did not intervene to correct the investigators' faulty assumptions or ensure a legal opinion was obtained before leaal conclusions were drawn.

Noted.

Consultations will take place with the RCMP to have the investigation reviewed or redone at their discretion.

It must also be noted that the CFNIS has an embedded Legal Adviser and investigators are and will continue to be encouraged to seek legal advice where required.

20

In the conduct of the 2009 PNOK investigation, NIS members failed to investigate the actual issue that they had been asked to investigate: whether service offences were committed in appointing Cpl Langridge's former common law partner as next-of-kin for purposes of arranging the funeral. By focusing only on whether or not Cpl Langridge's former partner still qualified as his common law spouse under CF policies, NIS members failed to answer the actual question brought to them for investigation.

SUBSTANTIATED

The Commission finds the CFNIS members failed to identify the central issue of the complaint. Because the lead investigator involved focused his investigation very narrowly only on the issue of whether Ms. A was Cpl Langridge's common-law spouse at the time of his death, the entitlements associated with being recognized as NOK, particularly in relation to funeral planning,were not investigated.

Although the complaint lacked clarity, and although it was, in part, based on faulty assumptions as well, the complainants were ultimately concerned the role of planning the funeral had been given to someone who was not entitled. The CFNIS failed to investigate this issue.

Although not noted in the investigation plan, an allegation about funeral planning was considered. However, the investigation of this allegation focused only on the complainants' participation in funeral planning and still missed the central issue of who should have been entitled to plan the funeral.

As a result, the CFNIS failed to answer the actual question brought to them for investigation.

Noted.

Consultations will take place with the RCMP to have the investigation reviewed or redone at their discretion.

21

NIS failed to investigate or refer to the police of competent jurisdiction for investigation the potential criminal or service offences committed by Cpl Langridge's former partner and the two CF members who accompanied her during her visit to the funeral director. Conduct which required further investigation, follow-up and analysis (including conduct which may have amounted to fraud in the provision of false information for the purpose of obtaining benefits) was specifically brought to the attention of the NIS by the complainants and was not adequately investigated.

SUBSTANTIATED IN PART

The CFNIS did not conduct an investigation into the attendance at the funeral home by CF members or Ms. A. The Commission finds, while reasons of jurisdiction justify not investigating Ms. A's involvement, it is not clear there would have been a jurisdictional bar to investigating the actions of the CF members who attended at the funeral home.

In addition, the Commission finds it would have been a best practice to advise the complainants the CFNIS did not intend to investigate some of their allegations or refer them to other law enforcement agencies. The CFNIS should then have provided the complainants with information about other agencies that may have been able to investigate their complaints.

Noted.

Comments made by the Commission concerning provision of information to complainants will be addressed in recommendation 20 which falls out of this finding.

22

NIS failed to investigate, follow-up, or provide a response to the complainants with respect to the concerns they raised about how Cpl Langridge's vehicle was damaged while in CF custody.

This allegation was withdrawn by the complainants during the hearing.

Noted.

23

NIS failed to investigate, follow-up or provide a response to the complainants with respect to the concerns they raised about damage done to Cpl Langridge's blackberry and computer while in the NIS and CF custody.

This allegation was withdrawn by the complainants during the hearing.

Noted.

24

NIS failed to investigate, follow-up or provide a response to the complainants with respect to the concerns they raised about the information they obtained from Rogers telephone indicating that someone was accessing the internet from Cpl Langridge's blackberry after his death.

This allegation was withdrawn by the complainants during the hearing.

Noted.

ALLEGATIONS RELATING TO PROFESSIONALISM AND COMPETENCE

25

The CFNIS members involved in the investigations lacked the necessary skills, professionalism and competence to conduct these investigations and to resolve the issues brought to their attention by the complainants.

SUBSTANTIATED

The evidence reveals the CFNIS WR Detachment members involved in the investigations, including those involved in providing supervision and oversight for the investigations, did lack the necessary skills and, at times, the competence to carry out their duties. The evidence shows this was mostly due to lack of adequate experience, particularly with respect to the conduct of sudden death investigations.

Some of the deficiencies in the investigations were sufficiently egregious to put in question the skills and professionalism of the members involved. Examples of this type of conduct include: the supervisor's direction not to interview Cpl Langridge's parents and common-law spouse in the 2008 investigation; the failure of the members involved to understand the legal requirements applicable for conducting searches and seizures; the failure to disclose the suicide note; the failure to seek legal advice in the 2009 investigation; and the inordinate amount of time taken to complete the 2009 and 2010 investigations.

The evidence also reveals numerous instances of lack of professionalism on the part of the CFNIS members. The failure to take steps to ensure Cpl Langridge's suicide note was provided to the complainants when its existence was revealed to the BOI; the failure to provide an immediate and unqualified apology to the complainants; the failure to provide the complainants with an explanation regarding the reasons for the late disclosure; and the failure to put in place clearly understood processes and policies for the timely disclosure of suicide notes in the future; were prime examples. The general conduct of the CFNIS members in interacting with the complainants, including the failure to fulfill commitments and the failure to provide timely and accurate information, also constitutes a deficiency of professionalism.

While many of the deficiencies observed in the conduct of the CFNIS members were the result of inexperience and honest mistakes or misunderstandings, there was a lack of professionalism displayed in the failure of the CFNIS members involved, particularly those in leadership or supervisory positions, to step forward, take responsibility, and appropriately correct the situation when serious mistakes were revealed.

Noted.

Comments made by the Commission will be addressed in recommendations 1-4 and 8-15 which fall out of this finding.

The CFPM acknowledges the relative inexperience of the members who conducted and supervised these investigations. However, since 2008, the CFNIS has gained considerable experience with investigating sudden deaths with 173 investigations done by MP including 74 overseas.

Consultations will take place and partnerships with our civilian policing partners, through new or existing MOUs, will be leveraged to determine what opportunities may be available for CFNIS investigators to gain field experience in sudden death investigations. Best practices with respect to necessary qualifications will be determined and implemented, subject to the exigencies, of the service to ensure that policing duties and functions are performed that reflect the standards required of policing in Canada.

26

NIS failed to advise the complainants of the existence of a suicide note left for them by Cpl Langridge and failed to provide the note until many months after Cpl Langridge's death and after the investigation was concluded. NIS never came forward to reveal the existence of the note, which was learned by the complainants through other means. Once the complainants were advised, NIS failed to send the original note until the complainants made a specific request.

SUBSTANTIATED

The evidence confirms the CFNIS failed to disclose Cpl Langridge's suicide note to the complainants at any time during the 2008 investigation. There is no evidence early disclosure of the existence and content of the note and, in particular, of the funeral wishes it contained could have caused any jeopardy to the investigation. In fact, in the early days of the investigation and well before Cpl Langridge's funeral, sufficient evidence had already been gathered as a practical matter to rule out foul play.

It is clear there were never any reasons to suspect foul play in this case. The conduct of the investigation reveals the CFNIS members were not actively investigating suspicions of foul play but were simply refraining from drawing a final conclusion until confirmation was obtained from the ME as to the cause of death. This was not sufficient reason to withhold disclosure of the information contained in the suicide note to Cpl Langridge's family. Moreover, the evidence has revealed there was no basis for reasonable suspicion about the authenticity of the note and, indeed, no steps were taken to confirm it.

The evidence also confirms the CFNIS did not come forward to reveal the existence of the suicide note at any time after the investigation was concluded. When the BOI inquired about the existence of a suicide note, the CFNIS members took no steps to ensure it was disclosed to the family. When the BOI disclosed the existence of the note to the complainants, the CFNIS initially resisted their request to obtain the original suicide note. There was no rational justification for this response, which only increased the distress caused to the complainants as a result of the failure to disclose their son's suicide note to them.

The Commission finds the failure to disclose the suicide note for over 14 months after the death shocking and beyond comprehension.

Once the failure was discovered, the evidence reveals the CFNIS members failed to provide an immediate and unqualified apology to the complainants. The CFNIS members also failed to make the necessary inquiries to discover the actual reasons the note had not been disclosed. As a result, they were unable to provide the complainants with a real explanation, and some of the information they provided to the complainants, the public and other members of the CF, was not entirely accurate.

The CFNIS members failed to put in place sufficient measures to ensure this type of failure does not happen again. The modification of written policies and procedures took an excessively long time to complete, and current policies are insufficient to address the issue and, in particular, to ensure funeral wishes are disclosed to families in a timely manner. While CFNIS leadership did provide verbal directives and conduct case-by-case monitoring in an effort to avoid similar incidents, the CFNIS members failed to develop and disseminate within the organization an appropriate understanding of the criteria to be used to determine when suicide notes should be disclosed and released.

Noted.

The CFPM recognizes the importance of providing the suicide note to the family.

Comments made by the Commission will be addressed in recommendations 8-10 which fall out of this finding.

27

NIS members failed to promptly cut down Cpl Langridge and show respect for his body once they arrived at the scene.

UNSUBSTANTIATED

The evidence demonstrates the CFNIS members present at the death scene showed no disrespect to Cpl Langridge's body. The expert evidence heard by the Commission confirms police attending at a death scene should not move or disturb the body unless absolutely necessary. The evidence also establishes the sole authority to move or remove Cpl Langridge's body belonged to the Alberta Medical Examiner. The practice of the Alberta ME's office was not to lower a body until they were ready to remove it from the scene. The expert evidence also shows it would have been improper to attempt to cover the body in any way prior to the removal. There is no evidence Cpl Langridge's body was made into a spectacle. To the contrary, appropriate steps were taken·to ensure the body could not be viewed by passersby.

The Commission cannot conclude the time that elapsed between the discovery of Cpl Langridge's body and the removal of his body from the scene was unreasonable. The evidence establishes the time taken was not outside the reasonable range even if some of the steps taken by the CFNIS investigators to document the scene prior to the removal of the body were not strictly necessary. The investigators were inexperienced and this caused some delay, but they acted in good faith to do what they believed was necessary in order to preserve potential evidence. The ME Investigator agreed, in the spirit of cooperation, to wait until the CFNIS investigators had documented the scene before moving Cpl Langridge's body but could have hastened the removal if it had been necessary.

Noted.

28

NIS failed to dispose of the seized exhibits when closing the Sudden Death investigation in July 2008 and failed to have the items returned to the complainants in a timely manner.

SUBSTANTIATED

The evidence shows the CFNIS members took no steps to have the seized exhibits disposed of at the conclusion of the investigation. Because there were no adequate processes in place at the Detachment, disposal of exhibits did not generally proceed in a timely manner and was, in fact, often delayed for years. In this case, it was only because the lead investigator received a request from the Director of Estates in October 2008 that steps were eventually taken to return the exhibits. A letter requesting authority for disposal was then promptly sent to the Regiment CO, but almost three more months elapsed before a response was received. Once it was, the items were promptly returned to the Regiment. Additional delays in having the items returned to the complainants by the Regiment related to communications between the Regiment and the complainants and were unrelated to any action by the CFNIS members.

Based on the policies in place at the time, it was reasonable for the CFNIS members involved to send a request for disposal authority. However, the Commission notes the policies were confusing and difficult to understand, and clarification would be appropriate in this respect. In particular, where items are no longer needed for an investigation or, at the latest, when a death investigation is concluded and no charges are anticipated, items should be returned immediately.

Noted.

Comments made by the Commission will be addressed in recommendations 8-10 which fall out of this finding.

29

NIS members failed to complete the 2009 PNOK and the 2010 Criminal Negligence investigations within a reasonable time.

SUBSTANTIATED

The specific allegations forming the basis of the 2009 investigation were unusual, and the members had to contend with changes of personnel during the investigation due to deployment or reassignment. However, 535 days to complete the investigation is simply not reasonable. There were long periods of delay in which nothing was accomplished and the investigation seemed to stagnate. It was the responsibility of the supervisors to ensure the investigation continued to move forward and was completed in a reasonable time. In this investigation, this responsibility fell particularly on the shoulders of the OC, who led the file at its outset and was ultimately responsible for the conduct of the file. While personal circumstances may have prevented him from being able to fully engage in the latter stages of the investigation, this does not excuse the inordinate amount of time it took to complete the investigation.

The time taken to complete the 2010 is similarly unreasonable. In fact, throughout most of the period when the investigation remained open, absolutely nothing was done to investigate the allegations, review the materials available or perform any analysis. The evidence indicates a decision had been made to conclude the 2010 investigation as early as August 2010. The decision to keep the investigation open in case new information came to light in the 2009 investigation or in order to provide a common briefing to the complainants was simply not reasonable. The two investigations were not factually related. As such, there was no reason to expect relevant evidence could be uncovered during the 2009 investigation. Further, the conclusion of the 2010 investigation should not have been delayed for the sole purpose of providing a common briefing to the complainants, especially considering the briefing, in fact, never took place.

Noted.

The CFPM recognizes the importance of timely investigations. He has addressed timeliness of investigations in Commander's O-Groups and will continue to do so.

30

NIS members failed to provide their written briefing within a reasonable time after the verbal briefing on the 2009 and 2010 investigations was cancelled in February 2011.

SUBSTANTIATED

After the CFNIS made the decision to cancel the verbal briefing initially offered to the complainants, a delay of over two months elapsed before they were provided with the written briefing promised in replacement. The evidence reveals no acceptable justification for this delay. The draft briefing was prepared and approved by CFNIS HQ in early March 2011, but the letter was not signed and sent by the OC until late April 2011. While this may, in part, be explained by some personal issues impacting on the availability of the OC, the Commission has heard not evidence to explain why other members of the Detachment could not have attended to this matter.

Noted.

Deficiency comments made by the Commission will be addressed in the responses to recommendations 14-21 which fall out of this finding.

31

The NIS members involved in the investigations lacked the experience and training necessary to perform those investigations. They did not appear to have knowledge of the appropriate steps to take and appeared paralysed in any ability to take initiative.

SUBSTANTIATED

The evidence reveals the CFNIS members involved in the investigations had only limited field experience related to the investigation of sudden deaths in a domestic context.

The lack of experience of the members involved in the 2008 Sudden Death investigation was particularly striking. The lead investigator had never previously conducted a death investigation or attended a death scene. His immediate supervisor had also never been involved in conducting or supervising a death investigation. The other members of the investigative team had limited experience with death investigations in a domestic context.

Many of the deficiencies observed in the 2008 investigation were a direct result of the lack of experience of the members involved. From the outset, the investigation lacked focus, clear objectives, or a meaningful plan. In the name of keeping an open mind, the members did not form or test hypotheses and lacked the flexibility and judgment to respond appropriately to new information or address, in a critical fashion, ambiguity and contradictions in the evidence. The members did not appear to understand how to properly handle seized items, including the suicide note. The supervisors failed to provide appropriate supervision and guidance to the investigators.

Neither the very serious deficiencies in the sudden death investigation identified by the Commission, nor the lack of experience which led to them, were recognized as problems by the CFNIS witnesses, including members of the CoC who testified before the Commission. There is no evidence these problems have been addressed by the CFNIS.

The evidence shows the problems encountered were not the result of lack of training. The CFNIS members received appropriate formal training to conduct criminal investigations, including training relevant to the processing of death scenes.

With respect to the 2009 and 2010 investigations, because the nature of the allegations and the investigations to be conducted were common or usual, it is not surprising most of the members had limited experience in conducting similar investigations. Unlike the situation for the 2008 Investigation, however, it cannot be concluded the deficiencies in these two investigations were caused by lack of experience.

Noted.

Consultations will take place with the RCMP to have the investigation reviewed or redone at their discretion.

CFPM acknowledges the relative inexperience of the members who conducted and supervised these investigations. However, since 2008, the CFNIS has gained considerable experience with investigating sudden deaths with 173 investigations done by MP including 74 overseas.

Corrments made by the Commission will be addressed in recommendations 1-4 which fall out of this finding.

32(a)

NIS reports contained inaccurate factual statements. In particular:

a) The 2008 investigation report contained incorrect facts, including an account of a suicide attempt and hospitalization of Cpl Langridge, whereas hospital records show he was not hospitalized during this period and the MP making the statement took no notes about the incident. The inaccurate factual statements were not re-examined by NIS members when the complainants brought new facts to their attention.

SUBSTANTIATED IN PART

Many of the statements contained in the 2008 report simply recorded the information received by the investigators. While this information was not always accurate, the CFNIS members cannot be faulted for reporting what they learned. On the contrary, this is a necessary part of police work. The example listed in this allegation refers to information provided to the CFNIS by Sgt Murrin of the local MP. The Commission finds this information was accurately reported by the investigators. While some aspects of it may have been incorrect or questionable, it is clear the suicide attempt referred to did, in fact; occur. This information was not an example of inaccurate information included in the report by the CFNIS members.

However, the Commission finds the report did contain other information that was inaccurate because it was not adequately recorded by the investigators. In particular, some of the interview summaries prepared by the CFNIS members did not accurately reflect the information received, including inaccurate notations indicating Cpl Langridge attempted suicide in 2003, and indicating Sgt Hiscock had stated there was no suicide watch for Cpl Langridge. While these were clearly the result of unintentional errors, poor recordkeeping could be observed in many instances, and this had an impact on the information available to supervisors reviewing the entries as well as on the information ultimately provided to the CF CoC when the investigation was concluded.

Noted.

Deficiency comments made by the Commission will be addressed in the responses to recommendations 28-42 which fall out of this finding.

32(b)

b) The written briefing for the 2009 and 2010 investigations had been opened at the request of the complainants.

UNSUBSTANTIATED

The information contained in the written briefing was not inaccurate. The evidence reveals there was a lack of clarity as to the identity of the complainant within the 2009 investigative file. However, the evidence also reveals the CFNIS members involved in the investigation generally viewed by Fynes as the true complainants while they viewed the Ombudsman's investigator as a ''third party complainant" or a conduit for the Fynes' complaint. The Commission finds this approach was reasonable.

Noted.

32(c)

c) The statement in the 2009 investigation written briefing that the NOA trumps all provincial law was inaccurate.

SUBSTANTIATED

The Commission finds the unqualified statement included in the written briefing was inaccurate in the context of this investigation. Whether federal law (in this case the National Defence Act) will prevail over provincial law in specific circumstances depends on a number of factors, which were not considered by the CFNIS members. Provincial law should not have been dismissed out of hand in this case, and it may well have been relevant to answer some of the questions under investigation. In order to clarify the situation, a legal opinion was necessary.

However, the Commission notes the statement included in the briefing was not intended to mislead the complainants. It accurately reported the legal theory adopted during the investigation. It was inaccurate because of a failure in the legal analysis, not because of a failure to provide information to the complainants.

Noted.

MP are trained at the MP Academy to recognize the interaction between federal and provincial laws. They are and will continue to be encouraged to seek legal advice where required.

33(a)

Inaccurate rationales were provided by NIS members to explain or justify the actions taken by NIS. In particular:

a) NIS members, during a meeting with the complainants, justified the NIS decision not to provide the suicide note sooner on the basis that it had to be kept in case of appeals.

UNSUBSTANTIATED

The Commission has reviewed the transcripts for the three CFNIS interviews with the complainants and has heard evidence from the members involved in the meetings. The Commission finds there was no discussion related to the possibility of appeals during any of the meetings. While the CFNIS members did, at times, take the position it was legitimate not to disclose the existence of the suicide note to the complainants early in the investigation, and, in particular, prior to the funeral, there is no evidence they ever referred to the possibility of appeals to justify the failure to disclose the note for 14 months.

In a response provided to the Fynes through Col Blais, the CFNIS members did refer to a policy providing for the retention of exhibits to provide for an appear period. However, this reference was not included in the response directly addressing the failure to disclose the suicide note.

Noted.

33(b)

b) NIS members inaccurately stated that the responsibility for failing to promptly cut down Cpl Langridge's body rested with the Alberta Medical Examiner.

UNSUBSTANTIATED

The Commission finds the CFNIS members accurately described the legal authority to make decisions for the removal of Cpl Langridge's body. In this respect, they correctly stated the authority rested solely with the Alberta ME. However, the Commission has also noted the responses provided to the complainants about this issue were not entirely accurate. By focusing solely on the legal authority to make the decision, the responses implied the CFNIS investigators played no part in delaying the removal of Cpl Langridge's body. This was not consistent with the facts. While the CFNIS did not have authority to make the decision, the evidence has revealed it was because of a request by the CFNIS investigator that the ME investigator waited a longer period prior to removing Cpl Langridge's body.

Noted.

33(c)

c) NIS members took the position that it was not their responsibility if the ME overheard things during the processing of the scene and made his inaccurate comment about the disciplinary issues on that basis.

UNSUBSTANTIATED

The evidence reveals the CFNIS investigators were not, in fact, responsible for the comment included in the ME Certificate. The statements made by the CFNIS members about this issue were accurate.

Noted.

33(d)

d) NIS members advised the complainants that, under MP policies, they were allowed to retain the exhibits for a period of one year to provide for an appeal period.

SUBSTANTIATED IN PART

In a response provided to the complainants to explain the failure to return the exhibits in a timely manner after the 2008 investigation, the CFNIS members did make reference to a policy providing for a retention period for the time during which an appeal may be launched. Like many of the other policies referred to in the response, this policy had no application to this case as no charges had been brought.

The response provided no explanation about the reasons for not returning the exhibits earlier. By referring to all the policies related to the return of exhibits, including the one about the appeal period, the response implied these policies were the reason the exhibits were not returned immediately upon the conclusion of the investigation. This was not an accurate explanation.

Noted.

The CFPM recognizes the importance of providing the suicide note to the family.

As a part of the ongoing review of policies, directives, orders and SOPs, the order dealing with suicide notes found at the death scene or in the course of a sudden death investigation will be revised, considering protocols for ensuring the apparent wishes of the deceased soldier be brought to the attention of the family or other most appropriate person prior to the soldier's funeral. The new order will provide clarity for distribution of suicide notes in non-criminal cases.

B. CANADIAN FORCES PROVOST MARSHAL RESPONSES TO THE COMMISSION CHAIR'S RECOMMENDATIONS

Recommendation Number MPCC Recommendation CFPM Response

INVESTIGATIVE DEPLOYMENTS FOR SUDDEN DEATH

There is no substitute for experience in the conduct of sudden death investigations. The evidence before the Commission suggests a lack of relevant domestic experience for the Canadian Forces National Investigation Service ("CFNIS") in the investigation of sudden deaths. In order to alow the CFNIS to gain the requisite domestic experience, while ensuring that in the interim, investigations of sudden deaths on Defence Establishment property are conducted under the direction of appropriately experienced lead investigators, the Commission recommends:

1

The Canadian Forces Provost Marshal (CFPM) direct appropriate protocols be entered into with federal, provincial or municipal police agencies, to ensure ongoing opportunities for CFNIS investigators to gain sufficient field experience in sudden death investigations to qualify as lead investigators for CFNIS sudden death investigations, such experience consisting of active and significant involvement in a minimum of 15 sudden death investigations.

The CFPM will seek substantive positions to allow secondment to civilian police agencies. Current secondments exist but with no provisions for backfill to cover the shortfall. Consultations will take place and partnerships with our civilian policing partners, through new or existing MOUs, will be leveraged to determine what additional opportunities may be available for CFNIS investigators to gain sufficient field experience in sudden death investigations to qualify as lead investigators.

Best practices with respect to necessary qualifications required will be determined and implemented, subject to the exigencies of the service, to ensure that policing duties and functions are performed that meet the standards required of policing in Canada.

2

The CFPM direct the existing Military Police Policy and Technical Procedure (MPPTP) Chapter 7, Annex I (or corresponding MP Order) dealing with sudden death investigations, be amended to permit the assignment of federal, provincial or municipal police investigators as lead investigators for sudden death investigations occurring on Defence Establishment property.

The MPPTPs are currently being reviewed in their entirety and converted to MP Orders. The order dealing with sudden death investigations will be amended to permit the involvement of federal, provincial or municipal police investigators in support of sudden death investigations occurring on Defence Establishment property.

3

The CFPM direct all sudden death investigations on Defence Establishment property to be led by experienced federal, provincial or municipal police investigators until such time as sufficient numbers of CFNIS investigators possess the necessary field experience in sudden death investigations to qualify as lead investigators.

Jurisdiction in respect of sudden death investigations on Defence. Establishment property will be exercised by Military Police. Since 2008, MP have gained significant experience through the investigation of 178 sudden deaths occurring within their jurisdiction. Experienced federal, provincial or municipal police investigators, including our embedded RCMP Inspector, will be consulted where required if sufficiently experienced investigators are unavailable.

4

The CFPM direct protocols and agreements be established with the federal, provincial or municipal police agencies to secure their agreement to provide lead investigators for the investigation of sudden deaths on Defence Establishment property.

Protocols will be sought, where required, with federal, provincial or municipal police partners to formalize their agreement to provide support to MP for the investigation of sudden deaths on Defence Establishment property.

POLICIES, ORDERS AND DIRECTIVES: DOCUMENTATION REVIEWS

Expert evidence from federal, provincial and municipal officers before this Commission demonstrates that many of the CFNIS policies, orders and directives currently in place are inadequate to deal with issues arising from sudden deaths. Some are inconsistent with one another, others are insufficiently detailed or explicit; and other still do not represent best practices. The Commission recommends:

5(a)

With respect to policies, orders and directives in general,

a) the CFPM direct all existing Military Police (MP) and CFNIS policies, orders, directives and Standard Operation Procedures (SOPs) related, directly or indirectly, to sudden death investigations, be reviewed for consistency and compatibility with other existing orders, policies, directions and SOPs, and necessary adjustments be made to ensure such consistency;

As part of the CFMP Gp reorganization, the Deputy Provost Marshal Policy and Plans (DPM Policy and Plans) was identified to review all existing Military Police (MP) orders, directives and Standard Operation Procedures (SOPs) and convert them to MP Orders where required. As part of that process, any related, directly or indirectly, to sudden death Investigations, will be reviewed for consistency and compatibility with other existing orders, policies, directions and SOPs, and necessary adjustments will be made to ensure such consistency.

5(b)

b) the CFPM direct that all new MP and CFNIS policies, directives, orders and SOPs be the subject of a similar review for consistency before adoption;

DPM Policy and Plans is in the process of reviewing all new MP policies, directives and orders for consistency before adoption. CFNIS will ensure a similar review for consistency. SOPs are subject to regular audits for consistency.

5(c)

c) the CFPM direct ongoing review of MP and CFNIS orders, policies, directives and SOPs related to sudden death investigations, including comparison to best practices by other Canadian police services, to ensure continuing consistency with recognized best practices.

This ongoing review is already being carried out by DPM Policy and Plans.

6(a)

With respect to specific policies, orders and directives:

a) the CFPM direct deletion from MPPTP Chapter 7, Annex I, section, "Death", paragraph 1 (or corresponding MP Order) of the following sentence:

  1. All deaths will be handled IAW (in accordance with) the same stringent standards as homicide.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will carefully consider the wording and spirit of the Commission's recommendation.

6(b)

b) the CFPM direct replacement of the deleted extract with a provision stating:

  1. all instances of sudden or unexplained death or of human remains being found on Defence Establishment property be approached initially as potential homicides until reasonably determined otherwise:
  2. for deaths for which foul play has not been reasonably ruled out, and for deaths determined in fact to be homicide, stringent procedures designed to collect and safeguard evidence to preserve its integrity and continuity continue to be applied;
  3. for deaths reasonable determined not to be potential homicides, different investigative procedures, including turning over various investigative responsibilities to provincial coroners or medical examiner (ME), will be appropriate.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will carefully consider the wording and spirit of the Commission's recommendation.

6(c)

c) the CFPM direct the addition of the above provision in CFNIS SOP 237.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will carefully consider the wording and spirit of the Commission's recommendation.

6(d)

d) the CFPM direct deletion of the portion of MPPTP Chapter 7, Annex I, section, "Suicide and Attempted Suicide" (or corresponding MP Order), stating:

Administrative details (previous attempts, possible causes, marital status, alcohol or drug dependencies, etc.) need not be actively pursued and should only be reported if they are offered unsolicited to MP. It must be recognized that a Board of lnquiry or Summary Investigation designed to determine the administrative details will be initiated and will report relevant facts to the appropriate departmental authority.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will carefully consider the wording and spirit of the Commission's recommendation.

6(e)

e) the CFPM direct replacement of the deleted extract, consistent with CFNIS SOP 237, with a provision instructing investigators to:

gain a comprehensive understanding of the background of the deceased, including medical and psychological state, (medication or alcohol consumption)

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will carefully consider the wording and spirit of the Commission's recommendation.

6(f)

f) the CFPM direct deletion in clause 3 of the "General Statement' section of CFNIS SOP 237, of the following:

Do not make assumptions or lose evidence based on misconceptions or inexperience.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will carefully consider the wording and spirit of the Commission's recommendation.

6(g)

g) the CFPM direct replacement of the deleted extract with a new section:

  1. cautioning investigators against making hasty assumptions;
  2. affirming the investigative propriety of formulating hypotheses to be tested against the facts and evidence as discovered;
  3. cautioning investigators to bear in mind at all times the need to preserve the integrity and continuity of evidence until its potential relevance has been reasonably ruled out.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will carefully consider the wording and spirit of the Commission's recommendation.

6(h)

h) the CFPM direct deletion from clause 11 in the "Action" section of CFNIS SOP 237, of the following extract:

When there is no suspicion of foul play, you are generally permitted to act under the authority of the respective Province's Coroners Act. The relevant act will typically authorize the investigator to exercise any power of the Coroner, including possession of the body, entering and inspecting any place where the body is or from which it was removed. Investigators under this authority are generally permitted access to the location the deceased was prior to death, to inspect and extract information from any record or writing relating to the deceased, or seize anything that you have reasonable grounds to believe is material to the investigation.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will carefully consider the wording and spirit of the Commission's recommendation.

6(i)

i) the CFPM direct replacement of the deleted extract with a provision consistent with the law and jurisprudence in each province setting out the powers, if any, for MP to act under the authority of that jurisdiction's Coroners Act or equivalent.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will carefully consider the wording and spirit of the Commission's recommendation.

SUPERVISION

The evidence before this Commission demonstrates inconsistent and in some cases inadequate supervision. Meaningful supervision requires an informed understanding of the issues under investigation in order to provide meaningful feedback to the investigators, as well as diligent supervisory follow-up on issues of concern to ensure allegations have been properly and fully investigated. The Commission recommends:

7(a)

The CFPM direct policies and practices with respect to supervision be put into effect stating:

a) investigations involving complex facts or allegations require active, informed and involved supervision;

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will develop a detailed order with respect to case management. As part of that development, DPM Policy and Plans will consider the wording and spirit of the Commission’s recommendation.

7(b)

b) where an investigation is led by an investigator with limited experience in the specific type of investigation being undertaken, the Case Manager must have significant experience in such investigations;

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will develop a detailed order with respect to case management. As part of that development, DPM Policy and Plans will consider the wording and spirit of the Commission’s recommendation.

7(c)

c) in all cases involving complex facts or allegations, Senior MP advisors must be alert to possible gaps in experience by investigators or Case Managers and must manage resources, including human resources, accordingly;

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will develop a detailed order with respect to case management. As part of that development, DPM Policy and Plans will consider the wording and spirit of the Commission’s recommendation.

7(d)

d) supervisors are to record in the General Occurrence (GO) file any directions given with respect to the conduct of an investigation, including the reasons for those directions.

The order will include a requirement that any directions given as oversight or supervision will be entered in SAMPIS.

RETURN OF PROPERTY AND EVIDENCE

The evidence before this Commission demonstrates there was no well understood process in place at CFNIS WR Detachment for the return of property and evidence, and that policies dealing with these matters were incoherent and lacking in clarity, with the result that return of property and evidence was delayed beyond what was reasonably necessary. The Commission recommends:

8(a)

The CFPM direct that seized property and evidence no longer required for investigations be returned to the rightful owners and/or disposed of in a timely manner, pursuant to the following principles:

a) property or evidence is to be returned to its rightful owner or otherwise disposed of when it is no longer needed for investigative purposes;

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will develop a detailed order with respect to the return of property and evidence that is reflective of best practice. As part of that development, DPM Policy and Plans will consider the wording and spirit of the Commission's recommendation.

It must be noted that the return of the deceased's personal property is a civil matter governed by inheritance law. Following the death of a service person, the CAF always appoints a Committee of Adjustment that is specifically mandated to collect and to prepare an inventory of the deceased member's personal belongings found in the care or custody of service authorities. Once approved by the Director of Estates, the Committee of Adjustment disposes of the personal belongings of the service estate. When the member dies having made a valid will, the personal belongings are forwarded as directed by the legal representative of the member's estate.

8(b)

b) in sudden death investigations, property or evidence is no longer needed for investigative purposes when the death is reasonably determined not to have been a homicide, and/or there is no reasonable prospect of a criminal or service charge being laid;

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will develop a detailed order with respect to the return of property and evidence. As part of that development, DPM Policy and Plans will consider the wording and spirit of the Commission's recommendation.

8(c)

c) in sudden death investigations, property or evidence is no longer needed for investigative purposes at the latest at the conclusion of the investigation, where a determination has been made that no criminal or service charges will be laid in connection with the death;

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will develop a detailed order with respect to the return of property and evidence that is reflective of best practice. As part of that development, DPM Policy and Plans will consider the wording and spirit of the Commission's recommendation.

8(d)

d) in cases where a determination has been made that no charges will be laid in connection with the death, property and evidence no longer needed for investigative purposes in relation to a sudden death is to be returned immediately with no waiting period and with no disposal authority needing to be sought;

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will develop a detailed order with respect to the return of property and evidence that is reflective of best practice. As part of that development, DPM Policy and Plans will consider the wording and spirit of the Commission's recommendation, subject to the legal obligations respecting the return of a deceased service member's personal property discussed above.

8(e)

e) the policy with respect to return of suicide notes should be in accordance with recommendations 11 to 13.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will develop a detailed order with respect to the return of property and evidence that is reflective of best practice. As part of that development, DPM Policy and Plans will consider the wording and spirit of the Commission's recommendation.

9

The Commission recommends the CFPM direct amendment of the applicable portions of MPPTP Chapter 7 and Chapter 7, Annex C (or corresponding MP Order(s), CFNIS SOP 208, CFNIS SIP 237 and CF MP Gp Order 2-391 and its relevant annexes, in accordance with the principles set out in this recommendation.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will develop a detailed order with respect to the return of property and evidence that is reflective of best practice. As part of that development, DPM Policy and Plans will consider the wording and spirit of the Commission's recommendation, subject to the legal obligations respecting the return of a deceased service member's personal property discussed above.

10

The Commission recommends the CFPM direct every CFNIS Detachment establish clear processes and allocate the necessary resources for the timely return of exhibits by ensuring investigators are responsible to make notations in the file once exhibits are no longer required for the investigation, and that a designated person is responsible for ensuring the exhibits are then returned immediately, with clear timelines established and supervisors monitoring the process.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will develop a detailed order with respect to the return of property and evidence that is reflective of best practice. As part of that development, DPM Policy and Plans will consider the wording and spirit of the Commission's recommendation, including the requirement to ensure the timely release of exhibits, subject to the legal obligations respecting the return of a deceased service member's personal property discussed above.

SUICIDE NOTES

A prominent place in the PIH hearings was occupied by the issue of the failure by the CFNIS to ensure timely disclosure of the existence of a suicide note in this case and to provide it to the family. The evidence discloses serious efforts have been made to improve policy and practice on this topic, but further policy clarity and practical guidance are still needed. The Commission recommends:

11

The CFPM direct the review and revision of Clause 21 of CFNIS SOP 237 dealing with Sudden Death, by including a revision within the SOP that provides for a stand-alone clause ensuring there is greater clarity relative to the release of suicide notes found at the scene of a suicide or in the course of a sudden death investigation.

As a part of the ongoing review of·policies, directives, orders and SOPs, CFNIS will add a stand-alone clause considering the wording and spirit of the Commission's recommendation.

12

The CFPM direct the section dealing with suicide notes found at the death scene or in the course of a sudden death investigation be revised, the revision to be focused on protocols for ensuring the apparent wishes of the deceased soldier be brought to the attention of the family or other most appropriate person prior to the soldier's funeral.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans, and the CFNIS will consider the wording and spirit of the Commission's recommendation with focus on any apparent wishes of the deceased person that may need to be brought to the attention of the family or other most appropriate person prior to the deceased person's funeral.

13(a)

The CFPM direct that, in drafting the new provision, the following principles are to be reflected:

a) the default position should always favour early disclosure of the existence and contents of suicide notes. Disclosure should only be delayed where there is a compelling reason to do so, based on concrete facts and evidence and not on abstract possibilities.

In drafting the new provision, DPM Policy and Plans, and the CFNIS will consider the wording and spirit of the Commission's recommendation.

13(b)

b) the criteria for determining the timing of disclosure should not be whether it has been determined the death was suicide. Instead, the question should be whether there is any actual, realistic reason to suspect foul place or to have doubts about the authenticity of the note.

In drafting the new provision, DPM Policy and Plans, and the CFNIS will consider the wording and spirit of the Commission's recommendation.

13(c)

c) where there ls a realistic suspicion of foul play, the criterion for determining whether the suicide note can be disclosed should be whether disclosure could harm the investigation. If a realistic harm cannot be identified, the suicide note should be disclosed.

In drafting the new provision, DPM Policy and Plans, and the CFNIS will consider the wording and spirit of the Commission's recommendation.

13(d)

d) where questions about authenticity of the suicide note are invoked as a reason to delay disclosure, testing must be conducted to confirm authenticity.

In drafting the new provision, DPM Policy and Plans, and the CFNIS will consider the wording and spirit of the Commission's recommendation.

13(e)

e) where funeral wishes or other time-sensitive information is contained in the suicide note, this should be taken into account in the determination. In such cases, if suspicion does exist and disclosure is delayed as a result, all available measures should be taken to conduct testing of the suicide note immediately. While it may not be possible to obtain absolute confirmation of the suicide note's authenticity prior to the funeral, preliminary testing such as handwriting comparison cold provide at least the necessary indications to determine whether the level of suspicion is sufficient to deprive a family of the opportunity to fulfill what may well be their loved one's last wishes.

In drafting the new provision, DPM Policy and Plans, and the CFNIS will consider the wording and spirit of the Commission's recommendation.

13(f)

f) a desire to protect the family from potential "harm" that could result from early disclosure of a suicide note, if it was later discovered the suicide note was not authentic, is not sufficient reason to delay disclosure. If no realistic harm to the investigation could result from disclosure, the proper procedure will be to disclose the existence and contents of the suicide note to the family, and to advise them final confirmation of the cause of death or authenticity of the suicide note has not yet been obtained. Under such circumstances, families should be allowed to make their own decisions about whether to honour any wishes contained in the suicide note.

In drafting the new provision, DPM Policy and Plans, and the CFNIS will consider the wording and spirit of the Commission's recommendation.

13(g)

g) once the family has received a copy of the suicide note, the CFNIS may need to retain the original for a certain period of time. The level of suspicion required to justify retaining the original will not be as great as what would be required to justify not telling the family about the suicide note at all. If releasing the original could hinder the investigation - including by making it unavailable for testing or use as evidence if subsequent information revealed this was necessary - there will be justification for not proceeding immediately.

In drafting the new provision, DPM Policy and Plans, and the CFNIS will consider the wording and spirit of the Commission's recommendation.

13(h)

h) in all cases, the original suicide note should be returned to the family at the end of the investigation, unless court proceedings justify retaining it longer.

In drafting the new provision, DPM Policy and Plans, and the CFNIS will consider the wording and spirit of the Commission's recommendation. It must be noted that the return of the deceased's personal property is a civil matter governed by inheritance law. Following the death of a service person, the CAF always appoints a Committee of Adjustment that is specifically mandated to collect and to prepare an inventory of the deceased member's personal belongings found in the care or custody of service authorities. Once approved by the Director of Estates, the Committee of Adjustment disposes of the personal belongings of the service estate. When the member dies having made a valid will, the personal belongings are forwarded as directed by the legal representative of the member's estate.

INTERACTIONS WITH COMPLAINANTS AND FAMILIES

Briefings to complainants or families should always be conducted with a view to addressing the needs of the complainants or of the families of deceased soldiers who are the subject of sudden death investigations. The Commission recommends:

14

The CFPM direct briefings to families at the end of a sudden death investigation contain meaningful, substantive information that addresses the main points covered in the investigation and answers the family's questions. Where questions cannot be addressed immediately, there must be follow-up to provide substantive responses.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans and the CFNIS will review the material with respect to the family briefings. They will liaise with our civilian policing partners to develop a policy that is reflective of best practice. As part of that development, they will consider the wording and spirit of the Commission's recommendation.

15

The CFPM direct family briefing presentations be conducted, not by means of PowerPoint presentations or similar formal formats, but rather in an interactive, less formal manner that addresses the facts and findings from the point of view of the family and is geared to its perspective.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans and CFNIS will review the material with respect to the family briefings. They will liaise with our civilian policing partners to develop a policy that is reflective of best practice. As part of that development, they will consider the wording and spirit of the Commission's recommendation.

16

The CFPM direct the portion of the CFNIS SOP 237 dealing with Sudden Death - Next of Kin Briefings, be amended to specify that the lead investigator, or a person involved in the investigation having full knowledge of all aspects of the investigation, must attend at a family briefing along with the other designated personnel.

As a part of the ongoing review of policies, directives, orders and SOPs, CFNIS will review the material with respect to the family briefings. They will liaise with our civilian policing partners to develop a policy that is reflective of best practice. As part of that development, they will consider the wording and spirit of the Commission's recommendation.

17

The CFPM direct the portion of CFNIS SOP 237 dealing with Sudden Death - Next of Kin Briefings, be amended to delete the provision requiring the Assisting Officer (AO) to attend at family briefings, and to replace it with a provision providing the family with a choice as to whether the AO will attend.

As a part of the ongoing review of policies, directives, orders and SOPs, CFNIS will review the material with respect to the family briefings. As part of that review, they will consider the wording and spirit of the Commission's recommendation.

18

The CFPM direct these procedures for briefings with respect to sudden death investigations also be followed for briefings to victims or complainants in relation to any other CFNIS investigation, where briefings are provided.

As a part of the ongoing review of policies, directives, orders and SOPs, CFNIS will review the material with respect to the family briefings for consistency with briefings to victims or complainants in relation to any other CFNIS Investigation, where briefings are provided.

19

The CFPM direct that, in addition to the two briefings provided for in the Sudden Death SOP, the CFNIS provide ongoing contact, information and services for the family of the deceased in death investigations and for complainants in other investigations. Contact and services should be at least at the same level as services provided to victims pursuant to applicable victim services policies (i.e. MPPTP Chapter 5, Annex F (and corresponding MP Orders); CFNIS SOP 204; and CF MP Gp Order 2-915 and its relevant annexes).

It will remain CFNIS policy that, where appropriate, the CFNIS will provide ongoing contact, information and services for the family of the deceased in death investigations and for complainants in other investigations pursuant to applicable victim services policies.

20

The CFPM direct that, in cases where MP decides not to investigate complaints (or ancillary complaints), the complainant must be informed promptly of the decision not to investigate, as well as of any other methods for potential recourse (such as contacting civilian law enforcement authorities) so as to allow the complainant to pursue such alternatives in a timely manner.

It will remain CFNIS policy that, where appropriate, in cases where MP decide not to investigate complaints, the complainant will be informed promptly of the decision not to investigate, as well as of any other methods known to MP for potential recourse.

21

The CFPM direct that MP investigators not make commitments or specific representations to complainants as to the approach or steps to be taken in an investigation. Where, however, such commitments or representations are made, the complainants must be advised of any change in the actual approach or steps taken.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will review the order with respect to investigations. As part of that review, DPM Policy and Plans will consider the wording and spirit of the Commission's recommendation.

INVESTIGATIVE PLANS

The evidence before this Commission suggests Investigation Plan (IP) are vital both as a planning tool for investigators and as a means to provide information on ongoing Investigations to supervisors and the chain of command. The Commission recommends:

22(a)

The CFPM direct the establishment of a policy, directive or order with respect to Investigative Plan (IP):

a) to require the IP to set out the investigative steps necessary to determine each of the issues requiring investigation, as well as the link between the proposed steps and relevant issues;

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans and the CFNIS will develop an order specifically addressing investigative plans. They will liaise with our civilian policing partners to develop an order that is reflective of best practice. As part of that development, they will consider the wording and spirit of the Commission's recommendation.

 22(b)

b) to require all allegations that investigators believe merit investigation be specifically identified in the IP:

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans and CFNIS will develop an order specifically addressing investigative plans. They will liaise with our civilian policing partners to develop an order that is reflective of best practice. As part of that development, they will consider the wording and spirit of the Commission's recommendation.

 22(c)

c) to specify the notation "completed" in the IP should be used only to indicate the relevant question has been answered; and

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans and CFNIS will develop an order specifically addressing investigative plans. They will liaise with our civilian policing partners to develop an order that is reflective of best practice. As part of that development, they will consider the wording and spirit of the Commission's recommendation.

 22(d)

d) to specify where the evidence relevant to an investigative step is inconclusive a notation is to be made as to whether the issue will be pursued further along with an indication of the reasons for the decision.

As a part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans and CFNIS will develop an order specifically addressing investigative plans. They will liaise with our civilian policing partners to develop an order that is reflective of best practice. As part of that development, they will consider the wording and spirit of the Commission's recommendation.

INTERVIEWS WITH WITNESSES AND COMPLAINANTS

Interviews with witnesses or complainants must be meticulously documented to avoid subsequent possible controversy or confusion. The Commission recommends:

23

The CFPM direct that, where feasible, all CFNIS interviews with witnesses or potential complainants be recorded in full by audio or audio-visual means.

In accordance with best practices, where possible, all CFNIS interviews with witnesses or potential complainants are and will continue to be recorded in full by audio or audio-visual means.

24

The CFPM direct complex allegations or complaints made to MP investigators be specifically reviewed with the complainants in order to ensure the essence of the allegation is understood, with the investigator verifying with the complainant whether a complaint Is being made and what it is about.

I am satisfied that this material is covered as part of the basic investigators course at the MP Academy. MP are aware that complex allegations or complaints must be understood in order to adequately investigate complaints made to police.

SEARCH WARRANTS

The Commission is alarmed by the evidence of incomplete or defective understanding of the law of search and seizure applicable to MP that emerged through testimony. The Commission recommends:

25

The CFPM direct a review of training offered and demonstrated knowledge required for MP personnel with respect to the law of search and seizure related to police powers.

The Directorate of Selection and Training continually reviews all training provided to Military Police. Training with respect to search and seizure is provided at the Academy in Borden and is part of that review.

26(a)

The CFPM direct mandatory training with respect to police powers of search and seizure including:

a) the information required to obtain judicial search warrants;

I am satisfied that all MP trained at the Academy already receive this training.

It must also be noted that all MP have access to legal advice in the field with respect to police powers of search and seizure.

26(b)

b) powers of consensual search;

I am satisfied that all MP trained at the Academy already receive this training.

26(c)

c) powers of warrantless search and the circumstances when such powers can be exercised;

I am satisfied that all MP trained at the Academy already receive this training.

26(d)

d) powers of search and seizure under Provincial legislation related to sudden death investigation, including under Coroners Acts or the Code of Discipline.

I am satisfied that all MP trained at the Academy already receive this training.

26(e)

e) powers of search and seizure under the National Defence Act, including powers of a Commanding Officer to issue warrants in connection with the Code of Discipline.

I am satisfied that all MP trained at the Academy already receive this training.

INVESTIGATOR CONTINUITY DURING INVESTIGATIONS

Lack of continuity in complex investigations poses significant challenges to effective and timely investigation. The Commission recommends:

27(a)

The CFPM direct that where a new MP Investigator assumes responsibility for an ongoing investigation:

a) a full face-to-face briefing be conducted with the investigator by the departing investigator;

Where possible, and subject to the exigencies of the service, a new MP Investigator who assumes responsibility for an ongoing investigation will receive a full face-to-face briefing by the departing investigator.

27(b)

b) prior to such briefing, the departing investigator conduct a detailed file review to ensure all documentation the new investigator may reasonably be expected to require is readily accessible;

Where possible, and subject to the exigencies of the service, the departing investigator will conduct a detailed file review to ensure all documentation the new investigator may reasonably be expected to require is readily accessible.

27(c)

c) where special circumstances make the departing investigator unavailable, the briefing and/or file review be conducted by the departing investigator's direct supervisor.

Where possible, and subject to the exigencies of the service, where circumstances make the departing investigator unavailable, the briefing and/or file review will be conducted by the departing investigator's direct supervisor.

RECORDKEEPING: GENERAL OCCURENCE FILES AND SAMPIS

Investigations depend on meticulous and accurate recordkeeping, both for the integrity of the investigation itself and for possible use of evidence and information for various judicial and/or regulatory purposes. The Commission recommends:

28(a)

The CFPM direct the CFNIS to ensure all significant investigative steps be accurately recorded in the GO file, including but not limited to:

a) all documents obtained in the course of the investigation, as well as the source of the documents;

As part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will review the order with respect to investigations and ensure that it Is clearly articulated that all documents obtained in the course of the investigation, as well as the sources of the documents, must be accurately recorded in SAMPIS. DPM Policy and Plans will liaise with our civilian policing partners to develop an order that is reflective of best practice.

28(b)

b) a list of any documents related to the law reviewed by investigators, including, CF policy documents, orders, legislation or case law, as wellas copies of such documents;

DPM Policy and Plans will liaise with our civilian policing partners to develop an order that is reflective of best practice.

28(c)

c) any evaluation or summary of the documents prepared by investigators;

DPM Policy and Plans will liaise with our civilian policing partners to develop an order that is reflective of best practice.

28(d)

d) a notation of any documents of particular relevance or importance to the investigation;

As part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will review the order with respect to investigations and ensure that it Is clearly articulated that all documents obtained in the course of the investigation, as well as the sources of the documents, must be accurately recorded in SAMPIS. DPM Policy and Plans will liaise with our civilian policing partners to develop an order that is reflective of best practice.

28(e)

e) a summary of any command team briefings and briefing material, including PowerPoint presentations used in the meeting;

As part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will review the order with respect to investigations and ensure that it Is clearly articulated that all documents obtained in the course of the investigation, as well as the sources of the documents, must be accurately recorded in SAMPIS. DPM Policy and Plans will liaise with our civilian policing partners to develop an order that is reflective of best practice.

28(f)

f) a notation of any decisions or conclusion that were reached based on the meeting;

As part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will review the order with respect to investigations and ensure that it Is clearly articulated that all documents obtained in the course of the investigation, as well as the sources of the documents, must be accurately recorded in SAMPIS. DPM Policy and Plans will liaise with our civilian policing partners to develop an order that is reflective of best practice.

28(g)

g) a notation of any direction that was given as a result of the meeting.

As part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will review the order with respect to investigations and ensure that it Is clearly articulated that all documents obtained in the course of the investigation, as well as the sources of the documents, must be accurately recorded in SAMPIS. DPM Policy and Plans will liaise with our civilian policing partners to develop an order that is reflective of best practice.

29

The Commission recommends the CFPM direct that complainants in an investigation be clearly Identified in SAMPIS from the outset of the investigation.

The policy will remain that, where possible, complainants in an investigation are clearly identified in SAMPIS from the outset of the investigation.

30

The CFPM direct where circumstances surrounding a sudden death give rise to the possibility of criminal charges or charges under the Code of Service Discipline, including charges arising from negligence, that such matters be investigated separately and a separate GO file be created for investigative purposes.

Where circumstances surrounding a sudden death give rise to the possibility of criminal charges or charges under the Code of Service Discipline, such matters are generally investigated together under one GO file. CFPM will liaise with our civilian policing partners to develop an order that is reflective of best practice.

31

In order to ensure investigative assessments (also known as "preliminary investigations") are detailed and comprehensive, the CFPM direct the amendment of MPPTP Chapter 2, Annex H (and corresponding MP Orders) and SOP 238 to require investigators to record in detail the steps taken in reaching a conclusion about whether a complaint requires further investigation, the facts considered in reaching the conclusion, and the sources for those facts.

As part of the ongoing review of orders the investigative assessment issue will be considered. DPM Policy and Plans will liaise with our civilian policing partners to develop an order that is reflective of best practice. As part of that development, they will consider the wording included in the Commission's recommendation.

32

The CFPM prohibit the practice of making unattributed or misattributed modifications to GO file entries, and prohibit in particular the existing practice of supervisors amending and/or altering GO file documents created by subordinates without notation in the file indicating the change in authorship of the document.

This issue has been addressed and will be further addressed during the Orders review process. Where supervisors amend and/or alter GO file documents created by subordinates, a notation in the file indicating the change in authorship of the document will be made.

33

The CFPM direct engagement by the MP with SAMPIS software vendor, Versaterm, to design and implement a version control/revision control system by which SAMPIS preserves the original version of all entries made in a GO file and tracks and logs detail in any and all changes made to each entry.

There is an on-going process where the CFMP Gp is consulting with Versaterm. This process is complex and involves entities in addition to the CFMP Gp and the company, such as various levels of other government departments and other police organizations. The recommended changes will be discussed and requested but this is a long-term commitment with no set end-date.

34(a)

The CFPM direct engagement by the MP with Versaterm to customize the SAMPIS system and/or to develop policies and procedures to minimize the possibility of inadvertent incomplete disclosure of a GO file. The systems or policies developed should provide:

a) each printout of a GO file that is disclosed includes all documents on the file, with any redacted pages or entries being identified, and the total number of pages for all information available in the file being disclosed;

This process is complex and involves entities in addition to the CFMP Gp and the company, such as various levels of other government departments and other police organizations. The recommended changes will be discussed and requested but this is a long-term commitment with no set end-date.

The CFMP Gp follows the disclosure and release of information law and policy that is applicable to every CAF organization. This includes the Access to Information Act, the Privacy Act and the specific DAODs on Access to Information. Policies for disclosure of police information are in place but these will be reviewed to ensure completeness.

34(b)

b) each printout of a GO file that is disclosed includes a notation of the date when each entry was created, as recorded in the system.

This process is complex and involves entities in addition to the CFMP Gp and the company, such as various levels of other government departments and other police organizations. The recommended changes will be discussed and requested but this is a long-term commitment with no set end-date.

35

The CFPM direct MP participation in collaboration between Versaterm and other police clients, including joining user groups and advisory committees, in order to help guide the development of future SAMPIS product enhancements to meet developing needs and trends in policing and public safety.

Members of CFMP Gp are part of the Versaterm Users Group and attend annual events sponsored by Versaterm in support of product enhancement.

MP USE OF CANADIAN ARMED FORCES INVESTIGATIONS

The Canadian Armed Forces (CAF) conducts its own administrative investigative proceedings in connection with sudden deaths, suicides and attempted suicides of its members. Use by MP investigators of materials from such administrative proceedings carries with it serious risks for MP investigations. The Commission recommends:

36

The CFPM direct policy guidance and training for MP investigators on the challenges and pitfalls of utilizing any materials from CAF investigations, including Board of Inquiry (BOI) and Summary Investigations (SI).

As part of the CFMP Gp reorganization, DPM Policy and Plans will review all existing Military Police (MP) orders, directives and Standard Operation Procedures (SOPs) and convert them to MP Orders where required. As part of that process, an order will be developed to address the use of material from a concurrent administrative investigation.

37(a)

The CFPM direct that such training and guidance:

a) alerts MP investigators to the risks of reviewing statements previously obtained under compulsion, including the risk that any statements subsequently obtained by the MP may be found inadmissible in eventual prosecutions;

As part of the CFMP Gp reorganization, DPM Policy and Plans will review all existing Military Police (MP) orders, directives and Standard Operation Procedures (SOPs) and convert them to MP Orders where required. If required, an order or policy will be developed to address the use of material compiled as part of a concurrent administrative investigation. As part of that development, DPM Policy and plans wil consider best practices and the wording and spirit of the Commission's recommendation.

37(b)

b) reminds MP investigators that facts uncovered in CAF investigations can never form the basis for an investigative assessment and that investigative assessments must be based either on the facts alleged by complainants or on the facts uncovered by the MP through preliminary investigation or prior related MP investigation;

As part of the CFMP Gp reorganization, DPM Policy and Plans will review all existing Military Police (MP) orders, directives and Standard Operation Procedures (SOPs) and convert them to MP Orders where required. If required, an order or policy will be developed to address the use of material compiled as part of a concurrent administrative investigation. As part of that development, DPM Policy and plans will consider best practices and the wording and spirit of the Commission's recommendation.

37(c)

c) caution MP investigators that where materials or conclusions from CAF investigations have been reviewed, MP conclusions must nevertheless be based on their own investigation of the case.

As part of the CFMP Gp reorganization, DPM Policy and Plans will review all existing Military Police (MP) orders, directives and Standard Operation Procedures (SOPs) and convert them to MP Orders where required. If required, an order or policy will be developed to address the use of material compiled as part of a concurrent administrative investigation. As part of that development, DPM Policy and plans will consider best practices and the wording and spirit of the Commission's recommendation.

MEDIA RELATIONS MATTERS AFFECTING BOTH CAF AND MP

Police independence in a CAF context requires not only MP independence in fact, but also public perception of such independence. Public relations and media communications initiatives where both CAF and MP are involved present challenges for which clearer policies and procedures are necessary. The Commission recommends:

38

The CFPM direct policy guidance be provided for MP members with respect to media and public relations practices, to safeguard both the fact and the perception of police independence.

All Media relations concerning police matters are coordinated through the CFPM PAO on the authority of the CFPM. There are currently a number of existing policies in place provided to all MP members with respect to media and public relations practices.

Defence Administrative Orders and Directives 2008 series - Public Affairs Policy: These are orders that apply to members of the Canadian Armed Forces and directives that apply to employees of the Department of National Defence. Public Affairs is a responsibility of the Canadian Armed Forces and the Department of National Defence chain of command, and must be adequately resourced and fully integrated into the decision-making process for policy development, program, design, service delivery, and military operations. (promulgated in 1998)

Public Affairs Guidance: Civilian and military charges and ongoing investigation: This document is intended to provide public affairs officers, military police personnel and commanders with a basic understanding of jurisdiction and the types of charges, and recommend PA strategies for dealing with investigations and charges within the civilian and military justice systems. (promulgated in 2010, updated version currently awaiting approval)

CFNIS Public Affairs Policy: The aim of this standard operating procedure is to promulgate CFNIS media policy and to provide direction to CFNIS members in developing case-specific public affairs plans to support serious and sensitive investigations and effectively handle media queries. (promulgated, revised in August 2003)

CF MP Gp Orders 1-510 Public Affairs: The aim of this order is to outline the policy and proper procedure to be followed by MP personnel in their interactions with Base/Wing Public Affairs Officers and the media. (not yet promulgated, draft under review)

As part of the ongoing review of policies, directives, orders and SOPs, DPM Policy and Plans will review the order with respect to media and public relations practices, and will consider the wording and spirit of the Commission's recommendation in order to safeguard both the fact and the perception of police independence.

39(a)

The CFPM direct such policy guidance be based on the following principles:

a) all MP contact with the media, formulation of media lines and release of public statements are to be separate from CAF public releases and formulation of media lines;

The CF MP Gp PAO is responsible to the CFPM for all public affairs activities, media relations and related management issues. All MP-related public affairs documents are produced by the CF MP Gp PAOs only and approved by the CF MP Gp chain of command prior to release.

As part of the ongoing review of MP policies, directives, orders and SOPs, DPM Policy and Plans will review the CF MP Gp order with respect to media and public relations practices, and will consider the wording and spirit of the Commission's recommendation in order to safeguard both the fact and the perception of police independence.

39(b)

b) MP personnel are not to participate in joint statements or media lines with the CAF;

There will be times where the CFPM participation in response to or in support of a broader CAF/DND matter will be required. Nonetheless, the CFPM is steadfast on the question and maintenance of police independence with respect to information relating to police investigations. The CFPM will not normally participate in any joint statement with respect to a specific investigation.

39(c)

c) MP media lines or public statements are not to include CAF messages;

Although the CFPM is independent with respect to MP investigations, the CF MP Gp Is still a unit of the CAF responsible to the VCDS.

As part of a broader response to address CAF/DND matters such as security issues, it is likely and possible that CAF media lines will be required to help clarify the situation. In that regard, close coordination is conducted among concerned CAF/DND accounts to facilitate the release of clear, precise and coherent information readily accessible to the news media or the public.

It is important to reiterate that all MP-related public affairs documents, including media lines or public statements, are produced by the CF MP Gp PAOs and approved by the CF MP Gp chain of command.

39(d)

d) where MP personnel are present during media conference or similar public events, questions regarding MP matters must be answered only by MP representatives.

MP personnel, like all other CAF personnel, must follow the Public Affairs Policy DAOD 2008 series, including DAOD 2008-2 Media Relations and Public Announcements. In accordance with those references, all CAF members may agree to be interviewed by the media in their official capacity provided it is to speak about what they do. However, because of the nature of MP work, media requests must be carefully considered before being accepted. Advice must be sought by MP personnel through their chain of command and from Base/Wing PAOs.

40

The Commission recommends the CFPM direct discussions with appropriate CAF officials, aimed at establishing a framework protocol for media and public relations on topics where both MP and CAF are involved.

I am satisfied that the existing media and public relations protocol framework meets the needs of the CAF and CF MP Gp concerning matters requiring both CAF and MP involvement. Consequently, I am of the view that a new framework protocol is not required and as such, will not direct that such discussions ensue. CF MP Gp PAOs are responsible to the CFPM tor all MP-related public affairs activities, media relations and related management issues. They actively participate in daily, CAF departmental communications meetings for situational awareness and co-ordination purposes.

It is important to reiterate that all MP-related public affairs documents are produced by the CF MP Gp PAOs only and are approved by the CF MP Gp chain of command prior to release.

41(a)

The Commission recommends the CFPM direct the framework protocol include the following principles:

a) only the MP has authority for release of information about its activities and investigations;

As referenced above, I am satisfied with the existing media and public relations framework protocol for the CAF and CF MP Gp. The CF MP Gp PAO is responsible to the CFPM for all MP-related public affairs activities, media relations and related management issues. All MP-related public affairs documents are produced bv the CF MP Gp PAOs only and are approved by the CF MP Gp chain of command prior to release.

41(b)

b) all media questions regarding MP matters raised during CAF media events are to be referred to MP representatives and vice versa;

CF MP Gp PAOs actively participate in daily CAF departmental communications meetings for situational awareness and co-ordination purposes, as noted in my response to recommendation 40.

41(c)

c) MP messages are not to be included in CAF media lines or public statements and vice versa;

As part of a broader response to address CAF/DND matters such as security issues, it is likely and possible that CAF media lines will be required to help clarify the situation. In that regard, close coordination is conducted among concerned CAF/DND stakeholders to facilitate the release of clear, precise and coherent information readily accessible to the news media or the public.

It is important to reiterate that all MP-related public affairs documents, including media lines or public statements, are produced by the CF MP Gp PAOs only and are approved by the CF MP Gp chain of command prior to release.

41(d)

d) consultations between CAF and MP on media relations matters are to occur between the CFPM and the Vice Chief of Defence Staff or their direct delegates.

There are robust media relations procedures already in place that encourage this type of consultation as explained at recommendations 40, 41(a) and 41(b).

THE ATIP PROCESS

Lack of clarity regarding roles and responsibilities in the Access to Information and Privacy (ATIP) request process, as generally governed by the Access to Information Act and the Privacy Act, may have a negative impact on the perception of police independence in terms of release of information connect with MP investigations. It may also impact the MP's ability to protect the integrity of its investigations. The Commission recommends:

42

The CFPM enter into immediate discussions with the Minister of National Defence and other appropriate DND and/or CAF officials to ensure the MP receive full delegation of ATIP powers, duties or functions of MP documents and information that may impact on ongoing investigations or police methods as well as final decision-making authority to release information according to legislation.

The CFPM will explore the feasibility of receiving delegated powers from the MND.

43

The CFPM direct training for all MP members regarding the ATIP process as it relates to MP-generated information or documents.

As part of the CFMP Gp reorganization, DPM Policy and Plans will review all existing Military Police (MP) orders, directives and Standard Operation Procedures (SOPs) and convert them to MP Orders where required. As part of that process, the ATIP order will be reviewed to confirm the ATIP and Disclosure process. This information is also part of the basic police training at the MP Academy.

INDEPENDENT COUNSEL FOR SUBJECTS AT PIH PROCEEDINGS

The experience at the PIH confirms the Commission's experience in previous PIH proceedings that the joint representation by Government Counsel of the subjects of a complaint along with numerous other individuals and institutions connected with the CAF and with Government, is problematic. It creates issues from a practical/logistical point of view, in terms of an appearance of fairness and in terms of protecting public confidence in the integrity of the PIH process. The interests of the subjects will not necessarily be aligned or be perceived to be aligned with the interests of the CAF, Government and military witnesses or institutional Government clients also being represented by Department of Justice (DOJ) lawyers. The Commission recommends:

44

The CFPM direct negotiations be entered into with appropriate Government officials, including the Treasury Board of Canada and, if appropriate, the DOJ, to allow the subject(s) of a complaint to be indemnified for reasonable legal fees incurred in retaining independent (private) legal counsel for PIH proceedings.

The TB Policy on Legal Assistance and Indemnification already allows for private counsel to be requested. The policy on Legal Assistance and Indemnification is issued by the Treasury Board Secretariat pursuant to s. 7 of the Financial Administration Act, and applicable to all Departments as defined in s. 2 of the FAA except where otherwise excluded by statute. The CFPM, the Canadian Forces and the Department of National Defence do not exercise any control or authority over that policy.

The current policy allows for the provision of private legal counsel where warranted. In fact, in the two previous Public Interest Hearings before the Commission MPs were represented by independent private legal counsel. I am satisfied that the current government policy meets the needs of the Military Police.

WAIVER OF PRIVILEGE

The Commission recognizes the common law privilege with respect to non-disclosure of solicitor-client communications is nearty absolute. However, the Commission is also aware that this privilege may be waived by a client. The position of the Government of Canada is that only the Minister of National Defence is the "client" with respect to all information and communications with a legal component exchanged by or with members of the MP and the CAF and that only the Minister can claim or waive privilege. Especially where a blanket claim of privilege is asserted, this can block access by the Commission to material that was or ought to have been before the MP or the CFNIS as part of their investigations and thus can compromise the Commission's ability to exercise its statutory oversight mandate. The Commission recommends:

45

The CFPM recommend to the Minister of National Defence, where claims of solicitor-client privilege are made over communications relevant to the subject matter of a PIH, to enter into an arrangement with the Commission to allow the Commission to access and review the materials, while otherwise keeping them confidential, in order to allow the Commission to discharge its oversight mandate. Such agreement could include, where appropriate, the hearing of evidence relevant to matters covered by the privilege claim in in camera proceedings.

The National Defence Act does not permit the Commission, an investigative body, to accept or receive any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence. This prohibition includes solicitor client privileged information. During the Second Independent Review of a portion of the National Defence Act, Justice LeSage considered a request by the Commission to recommend an amendment to the legislation to allow the Commission to receive and consider solicitor client privileged information. He rejected this request and reiterated the legal principle that solicitor client privilege should remain as close to absolute as possible.

Despite this legislated restriction, the Commission is able to make a request for waiver of solicitor client privilege to the Minister of National Defence on a case-by-case basis.

46(a)

The CFPM recommend to the Minister of National Defence:

a) to consider potential claims of solicitor-client privilege on a case-by-case basis;

The Commission is always able to make a request for waiver of solicitor client privilege to the Minister of National Defence on a case-by-case basis.

46(b)

b) to consider waiving privilege over communications relevant to the subject matter of a PIH, except where the privilege relates to the legal interests of the subjects of the complaint;

The Commission is able to make a request for waiver of solicitor client privilege to the Minister of National Defence on a case-by-case basis.

46(c)

c) where the privilege relates to the legal interests of the subjects of the complaint, to delegate the decision to claim or to waive privilege to the subjects of the complaint.

The Commission is able to make a request for waiver of solicitor client privilege to the Minister of National Defence on a case-by-case basis.

December 22, 2014

Colonel R.P. Delaney, CD, OMM
Canadian Forces Provost Marshal
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, ON K1A 0K2

Re: MPCC 2011-004 (Fynes)

Colonel Delaney:

Thank you for your Notice of Action dated December 3, 2014 and received December 16, 2014, in response to the Commission’s Interim Report MPCC 2011-004 concerning the Fynes Public Interest Hearing.

We are in the process of preparing the Final Report which will be distributed to the complainants, the subject Military Police members, as well as departmental officials. As per the practice of the Commission in public interest cases, the Final Report will be made public through posting on the Commission’s website.

As you may be aware, it is the Commission’s practice to include the response from the Notice of Action in our Final Report. I note you have classified your Notice of Action as “Protected B”. We respectfully request that you remove the classification so that the Notice of Action may be included in the public Final Report.

Should you wish to discuss this matter further, feel free to contact me at (613) 947-5686, or a staff member from your office may contact my General Counsel, Ms. Julianne Dunbar at (613) 943-5592.

Thank you for your attention in this matter.

Sincerely,

(Original document signed by)
Glenn M. Stannard, O.O.M.
Chairperson



Protected B

Undesignated as of June 23, 2015
under the authority of
Colonel Robert P. Delaney, OMM, CD
Canadian Forces Provost Marshal

2120-20-2-3/2011-019 (Designation of NOA)(COS CF MP Gp)

12 January 2015

Chair
Military Police Complaints Commission
270 Albert Street, 10th Floor
Ottawa ON K1P 5G8

Your File: 2120-20-2-3/2011-004 (Fynes) - Public Interest Hearing

Mr. Stannard:

Further to your correspondence of 22 December 2014 regarding the "PROTECTED B" designation of the CFPM's Notice of Action, it is our view that the Notice of Action should remain so designated and should not be added to your Final Report.

Although it may have been the Commission's practice to include the Notice of Action in its Final Report in Public Interest Hearings, as there have not been many Public Interest Hearings in the past, it is felt best to cease that practice. Article 250.53 of the NDA states that once the Chair has received and considered the Notice, he will prepare his final report in writing, setting out his findings and recommendations with respect to the complaint.

As such, in order for the Chair to prepare his Final Report, the CFPM is authorizing the Commission to use the "PROTECTED B" information from the Notice of Action and to include it within the UNCLASSIFIED Final Report; however, the Notice of Action itself is a transitory record, as is the Commission's Interim Report, and must remain designated and not be included or annexed to the Final Report and be further provided to the public or be posted on the Commission's website.

I trust that this decision meets the Commission's requirement to provide the public with as much information as possible.

Yours truly,

(Original document signed by)
D.W. Shuster
Lieutenant-Colonel
Chief of Staff
Canadian Forces Military Police Group

Protected B

Undesignated as of June 23, 2015
under the authority of
Colonel Robert P. Delaney, OMM, CD
Canadian Forces Provost Marshal

RECEIVED
Jan 15 2015
Military Police Complaints Commission
Commission d’examen des plaintes concernant la police militaire



January 22, 2015

Lieutenant-Colonel D.W. Shuster
Chief of Staff
Canadian Forces Military Police Group
2200 Walkley Road
Ottawa, ON K1A 0K2

Our File: MPCC 2011-004 (Fynes) – Public Interest Hearing

Lieutenant-Colonel Shuster:

I acknowledge receipt of your correspondence dated January 12, 2015 and received January 15, 2015, instructing the Commission not to provide the Notice of Action to the public on the basis of a continuing “Protected B” designation for that document. Your letter is also marked “Protected B”, thereby presumably preventing the Commission from making it public as well.

This unprecedented position raises serious concerns. It does not meet the Commission’s requirement for transparency, nor does it serve the rights of the complainants, the subjects of the complaint and the public, to be provided with as full information as possible with respect to the disposition of the complaint, including the CFPM’s response to the Commission’s findings and recommendations.

The Commission cannot accept that either the Notice of Action itself, or your letter about this matter, can properly be designated as “Protected B”. Neither document contains information that would merit this designation. In particular, neither the Notice of Action nor your letter contains any personal information at all, nor does either contain any information that could reasonably be thought might result in grave injury to any private interest of any individual or organization if released.

Further, insofar as it may be thought to apply to the matter, the Commission believes that contrary to what is said in your letter, there is no basis for the contention that the Notice of Action, or the Commission’s Interim Report, are transitory records.

The Commission therefore requests that the issue of the ”Protected B” designation for the Notice of Action and your letter be referred to the CFPM for a formal decision, with reasons. In that connection, the Commission urges the CFPM to remove the “Protected B” designation from the Notice of Action, as has always been done in the past, as well as from your letter.

In order to proceed as quickly as possible with the preparation of the Final Report, including incorporating the Notice of Action and its contents, the Commission requests an early response to the present request. The Commission asks that the CFPM provide his decision by January 30, 2015.

Sincerely,

(Original document signed by)
Glenn M. Stannard, O.O.M.
Chairperson

c.c.: Canadian Forces Provost Marshal



Protected B

Undesignated as of June 23, 2015
under the authority of
Colonel Robert P. Delaney, OMM, CD
Canadian Forces Provost Marshal

2120-20-2-3/2011-019 (Admin Ltr to MPCC)(COS CF MP Gp)

29 January 2015

Chair
Military Police Complaints Commission
270 Albert Street, 10th Floor
Ottawa, ON K1P 5G8

Your File: 2120-20-2-3/2011-004 (Fynes) - Public Interest Hearing

Mr. Stannard:

Further to your correspondence of 22 January 2015 wherein you raised concerns with our position regarding the PROTECTED B designation of the CFPM's Notice of Action, be advised that in an effort to expedite the process, the CFPM Legal Advisor will be contacting Mrs. Dunbar directly, by telephone, to discuss this matter.

Upon reaching an agreement between your General Counsel and the CFPM Legal Advisor, a formal written response will then be provided to the Commission.

Yours truly,

(Original document signed by)
D.W. Shuster
Lieutenant-Colonel
Chief of Staff
Canadian Forces Military Police Group

Protected B

Undesignated as of June 23, 2015
under the authority of
Colonel Robert P. Delaney, OMM, CD
Canadian Forces Provost Marshal

RECEIVED
Jan 30 2015
Military Police Complaints Commission
Commission d’examen des plaintes concernant la police militaire



Via E-Mail

February 4, 2015

Colonel R.P. Delaney, CD, OMM
Canadian Forces Provost Marshal
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, ON K1A 0K2

Re: MPCC 2011-004 (Fynes) – Public Interest Hearing

Colonel Delaney:

I refer to my letter to LCol Shuster dated January 22, 2015 requesting you provide, no later than January 30, 2015, a formal decision with reasons with respect to the instruction in LCol Shuster’s prior correspondence of January 12, 2015 that the Commission should not publish the Notice of Action in this matter.

In correspondence dated January 29, 2015 and received January 30, 2015, LCol Shuster advised that your Legal Advisor would be contacting my counsel directly to discuss the matter and a formal written response would then be provided to the Commission.

Following telephone and email discussions with your office, the Commission has been given to understand the position remains as set out in LCol Shuster’s January 12, 2015 letter and no further written decision or reasons are intended to be issued.

This is not a satisfactory way to resolve the extremely serious issues arising from the unprecedented position taken in LCol Shuster’s letter.

In order to allow the Commission to assess its options in this matter, the Commission is entitled to a written explanation of the basis for the position, underlying LCol Shuster’s letter, that the CFPM may impose conditions on how the Commission uses the Notice of Action that the National Defence Act requires the CFPM to provide to the Commission. Specifically the Commission is entitled to a written explanation for the CFPM’s purported entitlement to instruct the Commission not to publish this document.

As set out in my letter of January 22, 2015, the Commission sees no proper basis for the Notice of Action to continue to be designated as “Protected B”.

The Commission requests you please provide a response in writing by end of day Friday, February 6, 2015, failing which the Commission will take Major Moore’s email correspondence of yesterday (enclosed) as the CFPM’s official response to the request for written reasons.

Yours truly,

(Original document signed by)
Glenn M. Stannard, O.O.M.
Chairperson

Encl.: E-mail correspondence dated February 3, 2015, from Major G.R. Cory Moore, CFPM Legal Advisor, to Ms. Genevieve Coutlee, Legal Counsel for the Commission

c.c.: LCol D.W. Shuster
Maj G.R. Cory Moore



2120-20-2-3/2011-019 (CF MP Gp PS)

6 February 2015

Chair
Military Police Complaints Commission
270 Albert Street, 10th Floor
Ottawa, ON K1P 5G8

MPCC 2011-004 (FYNES) –
PUBLIC INTEREST HEARING

Dear Mr. Stannard:

Upon receipt of your request to remove the Protected B designation from our original Notice of Action, dated 22 January 2015, I have conducted a review of the continued validity of keeping this designation on our original response. In discussions that occurred between our Legal Advisor and your Counsel, we understood that an e-mail response was required from our Legal Advisor to Ms. Coutlée and you would then be able to document and close this portion of the process. I understand from your most recent correspondence, dated 4 February, that this was not in fact your expectations, and you require a formal response.

You can expect a formal response following proper consideration of this important issue, no later than 11 February 2015.

Should you have any questions, do not hesitate to contact Lieutenant-Colonel Shuster at 613-949-1216.

Yours truly,

(Original document signed by)
R.P. Delaney
Colonel

c.c. COS CF MP Gp/LCol D.W. Shuster
CF MP GpLegAd/Maj G.R.C. Moore

RECEIVED
Feb 06 2015
Military Police Complaints Commission
Commission d’examen des plaintes concernant la police militaire



2120-20-2-3/2011-019 (CF MP Gp PS)

11 February 2015

Chair
Military Police Complaints Commission
270 Albert Street, 10th Floor
Ottawa, ON K1P 5G8

MPCC 2011-004 (FYNES) –
PUBLIC INTEREST HEARING

Dear Mr. Stannard:

Upon receipt of your 4 February 2015 correspondence, I have conducted a review of the continued validity of keeping the Protected B designation on our original Notice of Action (NoA) in the above-noted matter, dated 22 December 2014.

In accordance with section 250.53 of the National Defence Act (NDA), I appreciate your requirement to consider and incorporate information we provided as part of our NoA into the Final Report. The designation of this information was applied to protect the integrity of the ongoing investigative process and the persons named therein. That said, I am willing to provide an undesignated version of the NoA. However, in order to protect the investigative and consultative process, I request that you provide assurances that the undesignated NoA will not simply be appended to the Final Report. I believe that doing so would be contrary to accepted practices for transitory documents and will only serve to stifle an open and frank exchange of opinions in the resolution of future complaints. Pending your concurrence, I will forward an undesignated version without further delay.

Should you require further clarification regarding my position, do not hesitate to contact Lieutenant-Colonel Shuster at 613-949-1216.

Yours truly,

(Original document signed by)
R.P. Delaney
Colonel

c.c. COS CF MP Gp/LCol D.W. Shuster
CF MP GpLegAd/Maj G.R.C. Moore

RECEIVED
Feb 11 2015
Military Police Complaints Commission
Commission d’examen des plaintes concernant la police militaire



February 12, 2015

Colonel R.P. Delaney, CD, OMM
Canadian Forces Provost Marshal
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, ON K1A 0K2

Re: MPCC 2011-004 (Fynes) – Public Interest Hearing

Colonel Delaney:

In your correspondence dated February 11, 2015, you indicate you will provide an undesignated version of the Notice of Action in this matter if I agree to provide assurances that the Notice of Action will not be appended to the Commission’s Final Report.

I am writing to advise you that the Commission cannot accept these conditions and cannot provide the requested assurances.

The Commission considers the policy to prevent publication of the Notice of Action as an appendix to the Final Report to be wrong both in principle and in law. As such, the Commission will not undertake to refrain from appending the Notice of Action to the Final Report if an undesignated copy is provided.

The Commission will therefore prepare its Final Report on the basis that the “Protected B” designation has not been removed and that publication of the Notice of Action has been prohibited.

Yours truly,

(Original document signed by)
Glenn M. Stannard, O.O.M.
Chairperson

c.c.: LCol D.W. Shuster
Maj G.R. Cory Moore


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