Chairperson's Final Report - MPCC-2005-024 Concerning the Conduct of Military Police Members of CFNIS, Western Region

National Defence Act - Part IV
Section 250.53

FINAL REPORT

Following a Public Interest Hearing
Pursuant to
Subsection 250.38(1) of the National Defence Act
With Respect to a Complaint
Concerning the Conduct of Military Police Members
of CFNIS,
Western Region

File: MPCC 2005-024
Ottawa, December 19, 2007

Mr. Peter A. Tinsley
Chair

CAVEAT
Portions of this document have been edited pursuant to
the Privacy Act.

TABLE OF CONTENTS

  1. INTRODUCTION AND OVERVIEW
    1. Introduction
    2. Participants in the Hearing
    3. The Hearing Process
    4. Structure of the Report
    5. Overview of Findings and Recommendations
  2. CHRONOLOGY OF EVENTS
  3. THE INVESTIGATION
    1. Introduction
    2. Preparation by Cpl Dyck and Review of Previous Investigative Work
    3. Briefings on the Investigative Progress of the File
    4. Diligence and Completeness of the CFNIS Investigation
    5. Reliance on the Identification Evidence
    6. Assessment of the Victim's Credibility and/or Reliability
    7. Presence of Tunnel Vision
    8. Accuracy of the CFNIS Reports
    9. Security and Military Police Information System (SAMPIS)
    10. SAMPIS Role Codes
    11. Notification to the Complainant that her Son would not be Charged
    12. Findings and Recommendations
  4. THE INTERVEW/INTERROGATION
    1. Introduction
    2. Preparation for the Interview/Interrogation
    3. Interview Techniques
      1. 3.1 The Law
      2. 3.2 Arranging the Interview/Interrogation
      3. 3.3 Pre-Interview Conversations at RCMP Detachment
      4. 3.4 Overstating the Evidence
      5. 3.5 Conclusion regarding Interview Techniques
    4. Rights and Cautions
    5. Invoking the Right to Counsel
    6. Corporal Dyck
    7. Conclusions
    8. Findings and Recommendations
  5. THE CROWN BRIEF
    1. Introduction
    2. Review of the Evidence at the Hearing
      1. 2.1 Corporal Drake Dyck
      2. 2.2 Sergeant Eric Niclaes
      3. 2.3 Warrant Officer James Bergin
      4. 2.4 Master Warrant Officer Barry Watson
      5. 2.5 Major Robert Bell
    3. Analysis
      1. 3.1 General
      2. 3.2 Direction, Policy or Training regarding Crown Briefs
      3. 3.3 Narrative/Synopsis of the Crown Brief
    4. Accuracy, Appropriateness and Completeness of the Crown Brief
    5. Finding and Recommendations
  6. SUPERVISION AND MANAGEMENT
    1. Introduction
    2. Overall Management and Supervision of the CFNIS Investigation
    3. Assignment of the Investigation
    4. Tasking of an Investigator without Appropriate Linguistic Skills
    5. Supervision and Review of the Crown Brief
    6. The Complainant's Telephone Conversation with MWO Watson
    7. The DPM PS Directions and CFNIS CR Review
    8. Finding and Recommendations
  7. TRAINING
    1. Introduction
    2. General Standards Pre-posting to the NIS
    3. MP Criminal Investigator Course
    4. The Internship Programme
    5. Frailties of Eyewitness Identification and Identification Procedures
    6. Ongoing Training and Professional Development
    7. Findings & Recommendations
  8. CONCLUSION
  9. ANNEX
    Summary of the Commission's Findings and Recommendations; CFPM's Notations and Commentary in his Notice of Action and Final Comments by the Commission

I INTRODUCTION AND OVERVIEW

1. INTRODUCTION

1. The Military Police Complaints Commission (MPCC or the Commission) is a permanent, independent quasi-judicial agency established under Part IV of the National Defence Act, Revised Statutes of Canada, 1985, Chapter N-5. The Commission was established, in part, to investigate complaints regarding the conduct of military police personnel, including by means of a hearing process when deemed to be in the public interest to do so. On the completion of such an inquiry process, the role of the Commission is to make relevant findings as well as recommendations, both individual and system focused.

2. This inquiry was undertaken for the purposes of examining a complaint concerning the conduct of certain members of the Canadian Forces National Investigation Service (CFNIS), Western Region (WR), a specialized investigative unit of the Canadian Forces Military Police. The complaint concerned the manner of investigation of a sexual assault allegation against a cadet who was attending the cadet camp at Vernon, British Columbia during the summer of 2004. The complaint, dated October 9, 2004, was lodged with the CFNIS by the cadet's mother on behalf of her minor son.

2. PARTICIPANTS IN THE HEARING

3. More specifically, the complaint concerned the methods and procedures utilized by the military police members who investigated and interviewed the complainant's son. The first instance investigation of the complaint conducted by the Deputy Provost Marshal Professional Standards (DPM PS) identified nine specific allegations against the two investigators, which included: making arrangements to interview the young person without contacting the parent; implying that the presence of a lawyer was not necessary; failing to concede to a request to stop the interview for the purpose of seeking legal advice; and, using improper questioning tactics. In her report, the DPM PS found four of the nine allegations to be supported. The supported allegations included findings that the investigators: failed to interview important witnesses; failed to retrieve important documentary evidence in the case; failed to follow proper procedures when providing cautions and rights to a minor; and, lacked objectivity in their investigation. In addition, the DPM PS found that the subject military police members possessed important evidence that could exonerate the complainant's son yet they disregarded this exculpatory evidence and failed to provide it to the Crown Attorney when submitting charges for approval. As a result of these findings, the DPM PS, acting as the Canadian Forces Provost Marshal's (CFPM) delegate, directed that the two military police members be counseled and receive refresher training. It is to be noted that, during the course of the Commission's inquiry, it was revealed that there was an apparent lack of acceptance of the DPM PS findings and directions by some CFNIS authorities. In fact, the remedial action directed was not acted upon until shortly after the conclusion of the MPCC hearing. Further comment in this matter is contained later in this report.

4. Upon reviewing the DPM PS' report, and in consideration of the seriousness of allegations and findings, on June 15, 2005, the then interim Chair of the MPCC deemed it to be advisable in the public interest, pursuant to subsection 250.38(1) of the National Defence Act, to cause the Commission to hold a hearing into the original complaint. It was particularly noted that in the course of the Professional Standards investigation, the two military police members did not refute or provide any rationale for their alleged conduct as both declined, as they were entitled, to meet with the Professional Standards investigators for an interview. However, in the face of this refusal the DPM PS concluded that she was forestalled from making findings on several important issues, including whether there was an element of bad faith on the part of the investigators. The MPCC hearing process would allow for these individuals to be subpoenaed and would provide them with the normal protections available to a subpoenaed witness.

5. Having identified the purpose of this inquiry, but given certain final submissions made by counsel on behalf of some of the parties, it is equally necessary to define what it was not intended to do. Several closing submissions were received regarding the nature and quality of the investigation and report by the DPM PS. While the record of that Professional Standards investigation process and report were before the Commission as a matter of contextual fact, the Commission was not in receipt of a complaint nor was the hearing intended to address the issues now raised regarding the nature and quality of the Professional Standards process. As was observed in the submissions of certain counsel, if it had been intended to scrutinize the Professional Standards work product or, for that matter, rely upon it, other evidence, including testimony from involved Professional Standards personnel, should have been called. Such evidence was not before the Commission. Again, while some reference to the Professional Standards process will be logically necessary in this report, the purpose of this Commission's inquiry was an independent examination of the criminal investigation addressed in the original complaint.

6. It will be seen that the events and circumstances of this complaint involve a number of young persons whose specific identities serve no useful purpose for this report and should be protected. In fact, at the outset of the hearing, an order banning the publication of those identities was issued by the Commission. For the purposes of this report, the complainant will simply be identified as “C”, her minor son as “CS” and any other relevant minors as Cadet (Cdt) followed by [redacted text] letter [redacted text].

7. The Commission's work in this inquiry process was greatly assisted by the co-operation of the parties and the able assistance of their counsel, all of which was very much appreciated. I would also like to express appreciation for the valuable assistance of the CFPM's staff, as well as the support of the staff of the MPCC, in particular Commission Counsel Mr. (now The Honorable Mr. Justice) Guy Cournoyer and Ms. Julianne Dunbar.

8. Finally, I must observe that this public interest hearing process leading to the issuance of this report has taken somewhat longer than anticipated. In addition to necessary procedural delays, the production of this report was heavily impacted by a number of competing demands on the limited resources of the Commission. Any inconvenience caused by this delay is very much regretted.

9. While the original complaint, narrowly interpreted, was addressed at the conduct of two front line investigators, it became apparent, early in the inquiry process, that other military police personnel bore various responsibilities in respect to the execution of the military police investigation and, accordingly, they had a direct and substantial interest in this public interest hearing. Ultimately, in addition to the complainant and her son, the following military police personnel participated in the hearing and/or were represented therein by counsel with full opportunity to present evidence, to cross-examine witnesses and to make representations:

10. The CFPM was given standing and was represented by counsel throughout the hearing given his clear interest, as the head of the Military Police Branch, in the broad issues of this inquiry. It is to be noted, however, that while the CFPM was represented by counsel at the hearing he was not a subject of the complaint nor did he appear as a witness before the Commission. Accordingly, the Interim Report was forwarded to the CFPM in the normal fashion pursuant to subsection 250.49(1) of the National Defence Act for a review and production of a Notice of Action pursuant to subsection 250.51.

3. THE HEARING PROCESS

11. While the events of this public inquiry are well-known to the parties, it is appropriate to re-state them herein for the record.

12. On January 31, 2006, Notices of Time, Date and Place of Hearing were sent, pursuant to section 250.43 of the National Defence Act to the complainant, the subject military police members and witnesses, as well as certain officials of the Department of National Defence. The Notices prescribed that the hearing was to be held in Ottawa from March 23 through 31, 2006. These dates were set following consultation with the complainant, Cpl Dyck, Sgt Niclaes, WO Bergin, MWO Watson and Maj Bell.

13. From February 15 through 17, 2006, individual pre-hearing interviews were conducted with the complainant, her son, Cpl Dyck, Sgt Niclaes, WO Bergin, MWO Watson and Maj Bell.

14. Summons to Appear dated March 8, 2006 were served on C, CS, Cpl Dyck, Sgt Niclaes, WO Bergin, MWO Watson and Maj Bell requiring them to testify at the hearing. Later on March 8, 2006, counsel for the Complaints Commission was advised by Maj Bell that a formal request for legal representation had been made on the part of Cpl Dyck, Sgt Niclaes, WO Bergin, MWO Watson and himself.

15. In light of these requests for legal representation, it became apparent that these individuals would not be in a position to proceed with the substance of the hearing on March 23, 2006. As such, on March 17, 2006, an order was issued which required C, Cpl Dyck, Sgt Niclaes, WO Bergin, MWO Watson and Maj Bell to attend the hearing on March 23, 2006 via telephone conference. The order outlined that the matters to be dealt with at that time would be the setting of the date to commence the receipt of evidence and to hear any motions for standing by interested persons, and any other preliminary matters.

16. On March 23, 2006, the hearing commenced via telephone conference to deal with the aforementioned matters. Further to Commission Counsel's motion, an order was made for an interim publication ban which was later served on all the parties. Still unrepresented, the five military police members outlined the steps taken to retain counsel. The hearing was adjourned until May 4, 2006, to set a date for the commencement of the receipt of evidence and to hear any other preliminary matters.

17. On April 26, 2006, the Commission was advised that all administrative issues surrounding the military police members' requests for legal representation had been resolved. The Commission was further advised that Cpl Dyck, Sgt Niclaes, WO Bergin, MWO Watson and Maj Bell had all retained counsel. It is noted that C did participate throughout the inquiry process, unrepresented.

18. On May 1, 2006, Commission Counsel applied in writing to the Commission for an order to adjourn the May 4, 2006 proceeding given that, having just been retained, counsel for the parties would not be prepared to proceed. The motion requested that the matter be adjourned to September 18, 2006, in Ottawa, to commence the receipt of evidence and an order requiring that any motions for intervention or other preliminary motions be filed in writing on or before June 1, 2006. The motion was uncontested.

19. On May 3, 2006, an order was issued to adjourn the May 4, 2006 proceeding to September 18, 2006 continuing, as necessary, through September 22, 2006. The order further directed how motions to intervene and any other preliminary motions were to be submitted in writing. (Note: only C and the MP members who were the “subjects” of the complaint had a statutory right to standing).

20. On May 5, 2006, the Attorney General of Canada through counsel filed a Notice of Motion for standing on behalf of, amongst others, the CFPM. On May 12, 2006, MWO Watson through counsel filed a Notice of Motion for standing followed by Maj Bell on May 17, 2006 and WO Bergin on May 26, 2006.

21. On June 12, 2006, Commission Counsel conducted a pre-hearing conference with counsel for Cpl Dyck, Sgt Niclaes, WO Bergin and MWO Watson in Edmonton and later, on June 16, 2006, in Ottawa with counsel for Maj Bell to discuss various issues in relation to the hearing. In correspondence dated July 5, 2006, an offer was made to counsel for the Canadian Forces Provost Marshal to meet to discuss procedural issues.

22. On June 29, 2006, an order was issued granting standing to WO Bergin, MWO Watson, Maj Bell and the CFPM on the basis that they had a substantial and direct interest in the hearing.

23. On August 9 and 14, 2006, Notices of Motion for a change of venue for the hearing from Ottawa to Edmonton were received from Sgt Niclaes, MWO Watson and Cpl Dyck. On August 21, 2006, an order was issued denying the three motions; written reasons followed the order on August 28, 2006.

24. The public hearing commenced on Monday, September 18, 2006 and continued through Friday, September 22, 2006.

25. At the conclusion of the public hearing, counsel for all of the parties indicated a preference for filing written submissions following receipt of the hearing transcript, as opposed to making immediate oral submissions. Accordingly, an order was issued allowing the parties 45 days following receipt of the transcript to provide their written submissions to the Commission and to the other parties. A further period of seven days was allowed for the filing of reply submissions in response to the submissions of other parties. This process was completed on November 20, 2006.

26. The Interim Report was completed on August 31, 2007 and pursuant to the National Defence Act, the Complaints Commission forwarded the report to the Canadian Forces Provost Marshal for preparation of his Notice of Action along with copies to the Minister of National Defence, the Chief of the Defence Staff and the Judge Advocate General.

27. On November 29, 2007, the Complaints Commission received the CFPM's Notice of Action (dated November 27, 2007) in response to the Interim Report dated August 31, 2007.

28. In conformity with the NDA section 250.51(1), I prepared this Final Report after having considered the CFPM's Notice of Action. In the Notice of Action, the CFPM is required to notify the Minister and the Chair of any action that has been or will be taken with respect to the complaint.

29. The CFPM's Notice of Action is communicated in this report at the end of each section. His acknowledgement and comments, where provided, have been added following each related finding and/or recommendation.

30. This Final Report is thereby comprised of the full Interim Report with the addition of the CFPM's response and notations with respect to Commission's findings and recommendations, as well as any final comments by the Commission.

4. STRUCTURE OF THE REPORT

31. The analysis of complaints regarding police performance by an oversight agency can be a complex matter. The process can be simplified if the investigative body confines its inquiries within the four corners of the complaint; that is, addressing only those issues specifically raised by the complainant. However attractive the simplicity of this approach might be, it is bound to leave the oversight function incomplete, addressing only the symptoms and not the root cause of any inadequate performance. A complainant's perspective is normally informed solely by the offending contact with frontline police personnel. However, the conduct complained of is seldom attributable to those police members alone, without the contributing effect of systemic factors. Accordingly, the first step in any oversight review is to analyze and interpret the complaint to ensure that issues arising from the conduct which immediately impacted the complainant are addressed, as are issues associated with any other causative factors.

32. That analytical approach was utilized in this public interest hearing process with the result that underlying issues beyond those matters specified in the complaint were identified and addressed at the hearing. Following a chronology of facts and events as found by the Commission, those closely associated but discrete areas of inquiry have been examined in the next five parts of the report. In each part, the evidence relevant to those particular issues will be highlighted with appropriate findings and recommendations following as well as the response of the CFPM in his Notice of Action. Only the first two of those five parts relate to matters specifically raised by C, all going to the quality of the investigation and to the interview of CS. The next part relates to the quality of the Crown Brief, a document which, while prepared by the lead investigator, was unknown to C. The fourth of the five parts relates to supervisory responsibilities, in respect of the management of the investigation, including the preparation of the Crown Brief. And finally the last part has been reserved for issues related to training, a matter which impacted all of the foregoing subjects.

5. OVERVIEW OF FINDINGS AND RECOMMENDATIONS

33. Based upon all of the evidence received by the Commission in the course of this public interest hearing, I have concluded that the CFNIS WR investigation of the sexual assault allegations made at the Vernon Cadet Camp on or about August 16, 2004, was neither diligently nor competently carried out. This conclusion extends to the preparation of the Crown Brief forwarded to the Crown Attorney's Office for consideration of charges. I have also concluded that the interview, which was the principle focus of the original complaint, was organized and conducted based upon flawed and incomplete preparation and understanding of legal principles, as well as with an investigative perspective which was tainted by what has been called “tunnel vision”, a matter that will be fully explored in Part III, Section 7.

34. Despite the negative conclusions reached concerning the quality of the investigation, it is to be noted that the Commission did not find any evidence upon which it could be reasonably concluded that the investigators were motivated by malice or that they in any way intended to mislead or deceive their superiors or the Crown Attorney as to the nature of the investigative product. On the contrary, but equally disturbing, it is my conclusion that the failings associated with this investigation and the conduct of the investigators were largely attributable to profound systemic failings in matters related to staffing, training, operating procedures and, most particularly, supervision.

35. A most troubling observation, which was made largely in the initial stages of the hearing process, was that there existed what might be called a culture of denial of either responsibility or criticism on the part of certain members of the CFNIS. This attitude was reflected, in part, by the initial disdainful treatment of the Professional Standards Report. However, I am pleased to have been able to ultimately conclude that, if that mindset ever did actually exist amongst senior military police officers, it markedly changed as the evidence was revealed in the course of the hearing. This was reflected in the apology offered to C and CS by the Officer Commanding of CFNIS WR in the course of his testimony; an expression of regret which was reaffirmed by counsel for the Attorney General of Canada on behalf of the CFPM in his written submissions. This acceptance of responsibility was highly commendable and opened the door to further remedial action. The Commission was, both in testimony and submissions, told of changes to procedures and training now made or contemplated, and other very constructive recommendations for further improvements. Informed of and by these submissions, recommendations have been made in this report concerning each of the identified causes of staffing, training, operating procedures and, most particularly, supervision.

II CHRONOLOGY OF EVENTS

Below is a listing of significant events found by the Commission in the course of its inquiry. This is provided to assist the reader to understand the sequence and context of these events as further elaborated in the subsequent sections.

III THE INVESTIGATION

1. INTRODUCTION

1. This section of the report will deal with the more general aspects of the investigation. The subject matter will include the questions: was the investigation diligently and competently carried out by the investigators; was all relevant evidence gathered; were preparatory work and briefings of the file appropriate; and were the CFNIS reports accurate and complete. Certain portions of this section will be dealt with in an overview fashion; most notably, those which will be examined in greater detail in subsequent sections of the report.

2. By way of general theme, and subject to the more specific comments below, the thrust of the observations, comments and findings in this section will be largely negative. That is, the investigation was neither diligently nor competently carried out. An examination of the specific issues led to the conclusion that this lack of diligence and competence was largely a result of systemic failings in training, operating procedures and, most particularly, supervision.

2. PREPARATION BY CPL DYCK AND REVIEW OF PREVIOUS INVESTIGATIVE WORK

3. Cpl Dyck was, at the time of the events in question, a junior and relatively inexperienced investigator on “intern” statusFootnote 1. He was assigned a case which presented several difficult issues, all of which were somewhat, if not entirely, new to him. Such issues included the involvement of young persons, both as suspect and victim; the nature of the alleged offence, a sexual assault; the matter of identification of the suspect; and, the fact that a number of other persons, both military police and otherwise, had been involved in the taking of the original complaint and the investigative process to date. Any or all of these factors or issues should have caused very careful preparation on the part of the newly assigned investigator, including a complete in-depth review of any materials collected to date and discussions with previously assigned investigators and, as necessary, supervisors. This did not occur.

4. Cpl Dyck described his preparatory file review as having only included the reports contained in the Security and Military Police Information System (SAMPIS) and speaking to Sgt Niclaes, his coach for the investigation, who had also participated in earlier interviews. He also briefly spoke to two of the previously assigned lead investigators, Cpl Lambert and Cpl BonneteauFootnote 2. Cpl Dyck testified that he did not review the tapes or transcripts of interviews conducted by Cpls Lambert or Kulbisky stating that this was not a standard or common practice in the unit.Footnote 3 Cpl Dyck defended this manner of preparation by saying that he trusted his partner, Sgt Niclaes, when he told him what was in SAMPIS was accurateFootnote 4. It is further noted that Cpl Dyck never communicated directly with Cpl Kulbisky, the first investigating MP who took the original complaint, and he only spoke very briefly with Cpl Lambert due to language difficulties. Cpl Dyck did assert that he spoke to Cpl Bonneteau to obtain any potential details that were not contained in the report.Footnote 5 By implication, this clearly demonstrates that Cpl Dyck realized that additional “details” or perspectives outside what was contained in the SAMPIS report potentially existed. However, Cpl Dyck still failed to review the evidence in its original and full format. It is also noteworthy that Cpl Dyck did not make any notations about his verbal briefings with the past investigators as he indicated “generally it was a confirmatory nature of what was in here and what was in his notes.Footnote 6

5. By adopting this approach to preparation, Cpl Dyck, at the very least, limited himself to the interpretation of others regarding the evidence collected to date. It is also noteworthy that at least some materials, such as Cdt B's (victim of the alleged sexual assault) note to Capt Law providing a description of the assailant, were not contained in SAMPIS in any form. This highlights the danger of merely relying on a review of the SAMPIS materials to prepare for the continuation of the investigation. By relying on others to inform him of the evidence collected to date, Cpl Dyck unwittingly left himself unable to assess any errors or omissions in the preceding lead investigators' interpretations of the evidence or to sensitize himself to subtleties in the evidence going to extremely important matters such as credibility and reliability. This was a dangerous approach to investigative preparation, one which arguably bordered on negligence. The fact that, based on Cpl Dyck's testimony, this was a standard approach approved by supervisors is an indicator of supervisory failings which will be explored further in Part VI of this report. In the alternative, even if a supervisor such as WO Bergin was simply not aware that Cpl Dyck had not conducted a complete review, it would still be an indicator of supervisory failings and would challenge WO Bergin's many assertions that he was completely aware of what was going on in this investigation. That is, the amount of time that would have been necessary for Cpl Dyck to have reviewed all of the tapes and file materials would surely had been noticed by an attentive supervisor.

3. BRIEFINGS ON THE INVESTIGATIVE PROGRESS OF THE FILE

6. The collective evidence of the witnesses indicated that briefings (i.e. oral presentations of investigation results and discussion thereof) to NIS Western Region authorities above WO Bergin did not occur. In his testimony, MWO Watson specifically disavowed this personal nature of involvement in the investigative process. Both he and Maj Bell were clearly oriented to “bottom-line” results (not how those results or conclusions were arrived at) and the form of presentation of the final investigative product. It is noteworthy that their evidence regarding their involvement in the investigative process was entirely related to the reviewing of documents contained in SAMPIS or, in the instance of such matters as the Crown Brief, the hard copy file as presented. Even when informed of C's complaint, their reaction was to review only the videotape of the interview. There was no mention in their evidence that they received a personal briefing from the investigator or made inquiries of him.

7. While WO Bergin asserted that he knew what was going on and pointed to the fact that he worked in the same room as the investigatorsFootnote 7, there was no documentary evidence presented or oral testimony heard to the effect that he received file briefings from the investigators on a regular basis, whether referable to a specific day of the week or at points in the development of each investigation. At most, it was established that ad hoc reporting took place, such as the investigators phoning in before returning to Edmonton following completion of the interview of CS. It would seem clear that such communication did not afford the opportunity for any in-depth discussion of the results of the interview; rather, it was more related to logistical arrangements and the overall progression of the investigation.

8. This pattern of limited and superficial supervisory involvement resulted in an inexperienced investigator with intern status being left largely to his own devices without any substantive or meaningful guidance. WO Bergin did, of course, assert that he relied on Sgt Niclaes to provide Cpl Dyck with the necessary ongoing supervision.Footnote 8 However Sgt Niclaes held an entirely different and extremely restricted view of his responsibilities stating that he was only to be involved in specific events (i.e. the monitoring of certain interviews). The fact that this escaped WO Bergin's attention is another indicator of the flaws in the supervisory function.Footnote 9

9. It is important to note, to his credit, that Maj Bell, as a result of the issues raised regarding file management and supervision, implemented a direction at NIS WR regarding file handover. More specifically, in the event of a file handover, a complete review of all investigative materials is to be conducted and a new investigative plan is to be compiled and submitted for approval before any further activity is done.Footnote 10 If such a practice had been in place at the time of the incident, the events in question may not have occurred.

4. DILIGENCE AND COMPLETENESS OF THE CFNIS INVESTIGATION

10. The already observed lack of diligence in respect of Cpl Dyck's preparations continued into the execution phase. As such, I conclude that the CFNIS investigation was neither diligently carried out nor was it complete in terms of the collection of evidence.

11. All of those persons initially involved with taking Cdt B's complaint as well as those dealing with that complaint and anyone having an opportunity to make direct observations of the alleged events should have been thoroughly interviewed (e.g. Lt Flowers regarding the “identification” process). Again the key issue is the individual and collective consideration given to the product of those interviews. Because of several changes of the lead investigator, Cpl Dyck's failure to review the statements in full form, preferring instead to rely upon the interpretations and summaries of others was, arguably, the most serious shortcoming in the investigation because it resulted in a flawed foundation for the rest of the investigation. Moreover, Cpl Dyck restricted his evidentiary considerations to witnesses who actually reported direct observations of the alleged events. This approach was particularly evident in the analysis that Cpl Dyck applied in determining that the evidence of Cdt J was not noteworthyFootnote 11, notwithstanding that he had reported that he was awake at the time of the incident and that no one came near Cdt B's bed space.

12. While Cpl Dyck did interview Cdt H as a result of CS having mentioned his nameFootnote 12, it is clear from a review of the videotape interview of Cdt H that this was a perfunctory interview for file maintenance. When one compares the videotaped interviews of Cdt H and CS it is clear from the different approach utilized by Cpl Dyck that Cdt H was interviewed as a witness while CS was considered a suspect. It is further noted that Cpl Dyck discounted Cdt H as a suspect because he did not look like CS – without questioning the original identification of CS. Such reasoning is seriously flawed, in that Cpl Dyck began using CS's actual description as the point of reference instead of using the description provided by the alleged victim of the assault.

13. Following the identification of CS, he was called into the office of Capt Thoms who asked him if he was part of a sexual assault. Denying any involvement, CS hand wrote a statement which he dated and signedFootnote 13 to the effect that he was not part of a sexual assault. There was no evidence presented during the hearing to suggest that any attempt to collect this handwritten statement was made by the NIS investigators.

14. CS recounted that after being questioned by Capt Thoms, he returned to his barracks and told a friend about the conversation he had just had. This person was never identified or interviewed as a witness by Cpl Dyck. Such an interview could have been revealing in terms of what was said and, at the least, in respect of CS's demeanor, possibly telling of his credibility.

15. A similarly restrictive approach was taken to the search and collection of other potential evidence. This was particularly exemplified by the failure to visit the cadet camp for direct observation or to attempt to obtain more information about the scene of the alleged assault;Footnote 14 evidence that could have been helpful in determining, for example, the opportunity for the complainant to observe the suspect after the alleged assault and the physical circumstances of the identification of CS by Cdt B (noting that at the time of the alleged assault Cdt B was awakened from a sleep in a darkened barrack room at 3:30 a.m.). Cpl Dyck's only reason for not visiting the cadet camp was that he had been to Camp Vernon when in the Reserves back in 1992-93 and he did not believe that much could have changed.Footnote 15

16. Sgt Niclaes similarly testified that he did not deem it necessary to visit the camp as he too had visited the camp previously and knew the layout of the barrack bunks.Footnote 16 Sgt Niclaes did state that if he was the lead investigator on the file he would have likely contacted Cdt J to see if he could contribute in any way to the investigation.Footnote 17 Yet, Sgt Niclaes did not pass this suggestion or guidance along to Cpl Dyck.

17. Cpl Dyck also failed to retrieve a written statement by Cdt B to Capt Law in which he noted the assailant to have light brown hair and be 6'1" in height, a different description than was later provided to the base military police member, Cpl Kulbinsky, who took his first statement to the police. Rather, this was retrieved by the Professional Standards investigator in the course of the Professional Standards investigation into C's complaint.

18. Even though Cpl Dyck possessed the knowledge that Cdt B stated that he kicked the assailant in the face and then the next morning he saw blood on the floor, Cpl Dyck conceded that he did not attempt any verification of whether anyone visited the infirmary nor did he check the medical records of CS who he considered to be the suspect.Footnote 18 Cpl Dyck also conceded that he did not make any inquiries with Lt Flower or Capt Thoms, who had visual contact with CS soon after the incident, as to whether they had observed any injuries on him.Footnote 19

19. In retrospect, WO Bergin, during his testimony at the hearing, did note some investigative avenues that he thought should have been explored, such as an on-site review, a sketch of the scene, and possibly photos of the actual set up.Footnote 20

5. RELIANCE ON THE IDENTIFICATION EVIDENCE

20. Based on the hearing evidence, Cpl Dyck never questioned the initial identification of CS to Lt Flower at the cadet band practice, although he testified that he would not have conducted an identification in that manner.Footnote 21 The identification took place from a distance amidst approximately 1,000 cadets sitting in a grassy area where all the cadets were sitting in rows. CS was wearing the same issued clothing items as all the other cadets; namely, a grey t-shirt, grey shorts, wool socks, running shoes and a tilley hat, the entire outfit being called “gumbies”. Footnote 22 Cpl Dyck testified that this identification was a significant factor in zeroing in on CS as the suspect even though Cdt H was absent from the band practice.Footnote 23

21. When questioned by Commission Counsel, Cpl Dyck, further to his testimony that he had not reviewed any of the interviews in full form, admitted that he never tracked or listed all of the different versions of the assailant's identification provided by Cdt BFootnote 24. That is, Cpl Dyck, who described the different versions of identification provided by Cdt B as “slightly different” and “generally consistent”, had reached this conclusion without ever having in any way formally analyzed the variances.Footnote 25 Cpl Dyck simply insisted that at the time of the investigation he did not view them as major differences. He noted “again, those details, I still felt, while they were different, I didn't feel they were unexplainable by the circumstances.Footnote 26 A simple detailing of the various descriptions, such as in the chart found at the conclusion of this Part, would have made plain the frailty of this premise.

22. At other points in his testimony, Cpl Dyck made every possible allowance to support the validity of Cdt B's identification without seeming to have given any consideration to challenging it, as would be reasonably expected of an investigator.Footnote 27 Cpl Dyck did not take any steps to ensure that Cdt B and Lt Flower were indeed identifying the same person, as Cdt B provided location indicators to Lt Flower to identify his assailant and then walked away prior to Lt Flower approaching the cadet to obtain his name. Rather, Cpl Dyck notes his reliance on the previous investigator's telephone interview of Lt Flower, despite the fact that the identification details were not discussed in any meaningful way.Footnote 28

23. Sgt Niclaes, who conducted the bulk of the interview of Cdt B, also never questioned if Cdt B had the time or opportunity to confirm to Lt Flower that she had the person he identified.Footnote 29 Sgt Niclaes stated that he did not have any concern about how CS was identified at the band concert because he relied on the fact that Cdt H was not present and that CS was a large individual.Footnote 30 Although Sgt Niclaes did note that there are better ways of conducting an identification, he stated that he did not possess the skills to do a proper line-up himself. He had only conducted one photo line-up in his career and he had to self teach the techniques as he had not received training in relation to identification procedures.Footnote 31 Sgt Niclaes testified that from all his courses (QL3, QL5 and the MP Criminal Investigators course) he had not been provided with sufficient information to know how to conduct a proper police lineup and this area was never made an important part of any course he had taken.Footnote 32

24. Sgt Niclaes admitted that he did not compare all the features of the assailant that were outlined by Cdt B against what he could see of Cdt H.Footnote 33 Rather, he used a process of comparing CS to Cdt H . Sgt Niclaes admitted that even though he had probably read of the detail that the assailant had a birth mark the size of a dime below his eye, he somehow missed this key detail.Footnote 34

25. WO Bergin also thought it was reasonable to act on the identification of CS even though he never questioned whether Lt Flower had correctly identified the person that Cdt B pointed out to her. Nor was WO Bergin concerned that CS was a number of inches off in height from the description provided.Footnote 35 While WO Bergin did note his concern about the lack of reliance on the birth mark in relation to the identification, he was not concerned about the lack of training that Cpl Dyck and Sgt Niclaes spoke of in relation to identification procedures and the frailties of identification. WO Bergin stated that if they ran into problems they could have turned to him for assistance. Yet, even though WO Bergin is an experienced MP with a significant amount of police training who stated that he is well aware of the difficulties with eye witness identification, he does not recall ever making an effort to transmit his knowledge to his subordinates within NIS nor did he verify that they were proceeding properlyFootnote 36.

26. Some further comments are germane at this stage with regard to some of the apparent dissimilarities between the description provided to the authorities by Cdt B concerning his alleged assailant and the characteristics of the one suspect that the NIS WR investigators focused on during their investigation, CS. When a situation arises that there are dissimilarities in the descriptors provided by eye-witnesses to those of a suspect, the “Rule in Chartier” [1979] 2 S.C.R. 474, Supreme Court of Canada, must be considered. The Chartier decision arose out of a Quebec civil dispute with respect to a “road-rage” incident. There were dissimilarities between the description of the suspect's hair colour and the extent of his baldness provided to the police by the eye-witnesses and the physical features of Mr. Chartier upon arrest. Mr. Justice Pigeon stated at page 494:

Regardless of the number of similar characteristics, if there is one dissimilar feature there is no identification. According to the witness Holland, appellant did not have the assailant's grey hair. This witness, therefore, did not identify him; he merely noted a resemblance. ... p. 499: For a police officer to have reasonable and probable grounds for believing in someone's guilt, his belief must take into account all the information available to him. He is entitled to disregard only what he has good reason for believing not reliable. (Emphasis added)

27. This passage was followed by Mr. Justice Rosenberg of the Ontario Court of Appeal in Regina v. Boucher (2000), 146 C.C.C. (3d) 52, a case involving a bank robbery in Timmins, Ontario. There was a discrepancy between the type of pants that the accused was seen wearing by witnesses who saw him running from the scene of the hold-up and the pants described by an eye-witness inside the bank. The Court referred to the above passages from Chartier with approval, stating at p. 58:

...the principles set out in these passages apply in this case. In view of the dissimilar feature of the pants, there was no identification, merely a resemblance. In the absence of some other inculpatory evidence, a resemblance is no evidence. ...Since there was no other evidence, the dissimilarity at worst renders the resemblance of no probative value and possibly stands as an exculpatory feature. (Emphasis added)

28. One may pause at this juncture to comment that the NIS investigators would be presumed to be aware of the above law with respect to eye-witness identification. Chartier is a seminal case with regard to eye-witness identification and was decided 25 years before the investigation of CS. Boucher is also a well-recognized decision and that decision had been handed down four years before this investigation. It is suggested that police investigators should not be assigned to a case involving eye-witness identification without it first being determined by their superiors that they have a good understanding of this important area of the law. The potential for injustice is compounded when one considers the evidence with respect to this investigation that the superiors of Cpl Dyck – i.e. Sgt Niclaes and MWO Watson - were themselves largely unfamiliar with the law on eye-witness identification. While WO Bergin claimed familiarity with eyewitness identification, he did not engage the investigators with his knowledge and left it to them to come for help.

29. Numerous cases have been brought to the attention of the Appellate Courts in Canada on the subject of eye-witness identification and its frailties. Quoting from the Chartier decision and referring to the Report of the Sophonow Inquiry, the Ontario Court of Appeal in Regina v. Dimitrov (2003), 181 C.C.C. (3d) 554 stated at page 564 with respect to a homicide investigation:

The frailties of eye-witness identification evidence are well known. A warning is customarily given to jurors to educate them that the certainty and conviction with which a purported identification is made cannot be equated with the reliability of the evidence. This warning is designed as a protection against wrongful conviction.

30. Similarly, in Regina v. Bennett (2003), 179 C.C.C. (3d) 244, the Ontario Court of Appeal referred with approval to Chartier and Boucher with regard to dissimilarities in the descriptions of a suspect by eye-witnesses, stating at p. 274-275:

This Court in R. v. Boucher .....applied Chartier to conclude that a notable dissimilarity in identification evidence, absent some other inculpatory evidence, renders the identification evidence of a resemblance of no probative value.....In my view, the trial judge erred in leaving it open for the jury to conclude that the appellant was the person Morningstar saw across the street the day before Jennifer was killed. ..... Accordingly, the trial judge ought to have instructed the jury that Morningstar's identification of the appellant was worthless, not that it was “worth very, very little”.

31. Applying these principles to the investigation of CS, it is apparent that the description presented to the police investigators by Cdt B of his alleged assailant contained some notable dissimilarities with respect to the size of the assailant when compared to that of CS, the lack of any injury on the facial area of CS and the issue of the facial birth-mark. These discrepancies in the description ought to have triggered a very careful approach by the investigators before they relied on the eye-witness identification purportedly made by Cdt B and most certainly have caused them to proceed with caution and discretion when they suspected CS and asked for an interview with him. Had Cpl Dyck been versed in the above legal principles, hopefully he might well have proceeded much differently with the interrogation of CS and not have outright accused him of committing the alleged offence on such frail evidence, arguably no evidence or, at least, no identification.

6. ASSESSMENT OF THE VICTIM'S CREDIBILITY AND/OR RELIABILITY

32. There was no evidence presented in the course of the hearing or otherwise available to the Commission that would seriously bring into question Cdt B's “credibility”, in other words if he was telling the truth or not about the incident in question. By all appearances Cdt B believed what he was saying to be true, when he said it. Equally important, however, is the necessary assessment of his “reliability” in making the statements that he did, as the variances contained in his accounts clearly raise reliability issues. For example, Cdt B described the length of the entire incident as 15 minutes, 13 to 14 minutes of which he stated that he was asleep. And again, there is the issue of the several varying descriptions provided by Cdt B. These matters should have, at the very least, given Cpl Dyck cause for concern, if not to question the reliability of Cdt B's statement.

33. Through the aforementioned failings in diligence in respect of file review and preparation, the interviewing of witnesses and the examination/collection of other evidence, Cpl Dyck put himself at a severe disadvantage, if not in an impossible situation, to make any assessment on the reliability of Cdt B's allegation. Cpl Dyck did not possess sufficient facts, even simply the contradictions or changes in Cdt B's accounts alone, to make any informed assessment in respect of Cdt B's reliability. What is even more troubling is the fact that Cpl Dyck and Sgt Niclaes seemed to be either totally unaware that it was absolutely necessary to make such an assessment, or they simply chose not to do so.

7. PRESENCE OF TUNNEL VISION

34. It became evident to me as I listened to the testimony presented at the hearing that the NIS investigators suffered from “tunnel vision” during the entire course of their investigation into the complaint of Cdt B. This did not come as a total surprise because in my experience even the most experienced and seasoned of police investigators have succumbed to this phenomenon. In fact, tunnel vision with respect to investigators was of such a concern to the Federal Department of Justice that a chapter of a report entitled “Report of the Working Group on the Prevention of Miscarriages of Justice” (2004) was devoted to this issue. The Report defined tunnel vision in this way:

Tunnel vision has been defined as “the single minded and overly narrow focus on an investigation or prosecutorial theory so as to unreasonably colour the evaluation of information received and one's conduct in response to the information”. Tunnel vision, and its perverse by-product, “noble cause corruption” are the antithesis of the proper roles of the police and Crown Attorney. Yet tunnel vision has been identified as a leading cause of wrongful convictions in Canada and elsewhere. Footnote 37

35. The above report continued to indicate that three Canadian Inquiries into wrongful convictions have commented on the perils of tunnel vision. The Royal Commission into the Donald Marshall Jr. Prosecution pointed out the need for a separation between the roles of police and Crown. Tunnel vision was also an important topic during the Inquiry Regarding Thomas Sophonow. It was recommended in the Report of the Sophonow Inquiry that all police officers attend annually at a lecture or course on the subject of tunnel vision.Footnote 38 Mr. Justice Cory in his Report of the Inquiry at page 37 stated:

Tunnel vision is insidious. It can affect an officer or, indeed, anyone involved in the administration of justice with sometimes tragic results. It results in the officer becoming so focused upon an individual or incident that no other person or incident registers in the officer's thoughts. Thus, tunnel vision can result in the elimination of other suspects who should be investigated. Equally, events which could lead to other suspects are eliminated from the officer's thinking. Anyone, police officer, counsel or judge can become infected by this virus.Footnote 39

36. Additionally, the Commission on the Proceedings Involving Guy Paul Morin recommended in its report “...educational programming for police and Crown Counsel...Footnote 40 to identify and avoid tunnel vision.

37. The Report of the Working Group on the Prevention of Miscarriages of Justice also referred with approval to a paper presented by Bruce MacFarlane, Q.C., in which he dealt with the concept of tunnel vision. He stated:

Tunnel vision sometimes sets in. The investigative team focuses prematurely, resulting in the arrest and prosecution of a suspect against whom there is some evidence, while other leads and potential lines of investigation go unexplored. It is now clear that that is precisely what occurred in the cases of Morin and Sophonow.Footnote 41

Mr. MacFarlane emphasized that raising awareness of the existence of tunnel vision is critical. He recommended that seminars for police and prosecutors should be held, allowing for frank discussion of tunnel vision and added that the police should continue to pursue all reasonable lines of inquiry even where a viable suspect has been identified.Footnote 42

38. Keith Findley, Co-Director of the Wisconsin Innocence Project, wrote in his paper entitled “The Problem of Tunnel Vision in Criminal Justice”:

One commonality in almost all of the cases (of wrongful conviction), however, is that they feature some form of tunnel vision. Tunnel vision is a natural human tendency with particularly pernicious effects in the criminal justice system. Tunnel vision is the process that leads investigators, prosecutors, judges, and defense lawyers alike to focus on a particular outcome, and then to filter all evidence in a case through the lens provided by that outcome. Through that filter, all information that supports the adopted outcome is elevated in significance, viewed as consistent with the other evidence, and deemed relevant and probative, while evidence inconsistent with the chosen theory is easily overlooked or dismissed as irrelevant, incredible, or unreliable.

Tunnel vision both affects, and is affected by, other flawed procedures in the criminal justice system. Mistaken eyewitness identifications, for example-the most frequent single cause of wrongful convictions-can convince investigators early in a case that a particular individual is the perpetrator...

Tunnel vision typically begins in the initial stages of criminal cases-during the police investigation. But tunnel vision is in fact more pervasive than that; it infects all phases of criminal proceedings, beginning with the investigation of cases, but then proceeding also through the prosecution, trial or plea-bargaining, appeal, and post-conviction stages.

Tunnel vision is a well-recognized phenomenon in the criminal justice system. Most of the official inquiries into specific wrongful convictions have noted the role that tunnel vision played in those individual cases of injustice...

In some ways the criminal justice system demands or teaches tunnel vision overtly. For example, police are widely taught that, once they believe a suspect is guilty, they should interrogate the suspect by shutting down all denials of guilt and employing psychological tactics designed to achieve a single goal: a confession.Footnote 43

39. In a Canadian Police College, Council of Investigative Excellence, Discussion Paper entitled “Achieving Investigative Excellence”, under the heading “What are the biggest problems facing criminal investigations? Why do these problems occur?” it is stated:

Wrongful arrests, wrongful convictions and false prosecutions are among the most serious problems facing police investigations in Canada. Public inquiries and the CIE have found that a combination of factors lead to these mistakes. They include:

40. Tunnel vision in respect of concluding that CS was the only suspect was clearly exhibited in how Cpl Dyck rationalized significant differences in description of the suspect to CS. For example, Cpl Dyck testified that the victim may have erred with respect of the birth mark due to the possibility of a shadow in the dark barracks, or with respect to height differences because the victim may not be good at estimating heights. A further explanation is provided by the Corporal in saying that Cdt B's perception of height was distorted given that he was lying in his bed. He also testified that the discrepancy in relation to the time of rubbing of the victim's penis could be explained by embarrassment on the part of the victim that he let it go on this long or how it may appear that he was enjoying it. As such, Cpl Dyck concluded that the discrepancies were all explainable.Footnote 45

41. Another noteworthy fact in relation to tunnel vision is how Cpl Dyck concluded when he met Cdt H that he was not the perpetrator because he did not resemble CS. The appropriate reference point for comparison of persons is to the description provided by the victim and not to a suspect.Footnote 46

42. I also found other incidents that are, in my view, indicative of a tendency toward tunnel vision. Cpl Dyck testified that he was aware that CS provided a short statement at an early opportunity after the alleged incident but he did not make a concerted effort to attempt to obtain this statement. He testified that he did not try to get more specific information because he didn't know of what evidentiary value it would be, nor did he know the appropriate way to try and get something that someone in his chain of command had basically told CS to write. He continued to testify that he knew somebody had spoken to CS and he expected that, if it was appropriate, Cpl Kulbisky, who was there, would have gathered appropriate documents that were available. Cpl Dyck concluded this topic by stating: “I didn't consider it further from there” (Emphasis added).Footnote 47

43. Another instance of potential tunnel vision is to be found in the manner in which Cpl Dyck treated the information and statement provided by Cdt H as discussed earlier in this Part at paragraph 12. In addition, the Corporal did not consider Cdt J to be a witness because the cadet advised that he did not see anything during the alleged event. He discounted Cdt J as a witness and did not include his name or evidence in the Crown Brief. Footnote 48

44. Unfortunately, Cpl Dyck's slide into tunnel vision was not checked in any way by critical thinking supplied by Sgt. Niclaes or any of his other supervisors.

8. ACCURACY OF THE CFNIS REPORTS

45. Even though all prior written reports on the file noted that Cdt B kicked the assailant, Cpl Dyck maintained during his testimony that there was some doubt about whether contact was made with the assailant. Cpl Dyck was specifically referred to Cpl Lambert's notation regarding Cdt B's interview where he (Lambert) wrote:

Cadet B reacted by kicking the individual face with his left foot, which caused the individual to turn his back to Cadet B, and subsequently fell to the floor...Cadet B stated after he kicked the individual... he decided to follow him to see where his Barrack Block was.Footnote 49

46. Cpl Dyck agreed that he found the issue about the kick important enough to raise with CS during their interview as he noted it in his interview plan. Yet, at page 79 of the Case Summary Report, in summarizing Cpl Lambert's interview with Cdt B, Cpl Dyck wrote “Cdt B stated that when he became aware of what was happening, he attempted to kick the unknown person, however, he is unsure if he made contact.Footnote 50

47. Even though Cpl Lambert's notation was categoric that there was a kick and no documentation could be found to indicate that there was any doubt whatsoever regarding whether or not a kick with contact took place, Cpl Dyck remained firm that he had received this information from talking to someone although he could not say who nor did he make any note about it.

48. Cpl Dyck agreed that he would have read Cpl Lambert's report entry that:

When asked about witnesses, Cdt B indicated that Cdt A, the one below him, never heard anything and Cdt J, who apparently was awake at the time of the incident, related to Cdt B that nobody attended his bed during that night.Footnote 51

49. Yet, Cpl Dyck wrote in his report entry that “Cdt B was unable to identify any witness to the incident.Footnote 52 In defending this report entry, Cpl Dyck testified that this was accurate as Cdt J and Cdt A did not see the individual in question; therefore, he felt they were not witnesses. I find Cpl Dyck's reasoning to be flawed in this regard and that Cdt A should have been interviewed as a witness in this investigation.

50. WO Bergin testified that he did not give any specific instructions to his subordinates regarding note taking of “off” tape conversations. WO Bergin stated his view that unless something was relevant, there was no need to take notes. More specifically, WO Bergin found it entirely acceptable that Cpl Dyck did not take notes of the conversation he had with C just after she entered the Fox Creek detachment.Footnote 53 I do not agree. The importance of police note taking should not be underestimated. This case serves as a good example of this. Had Cpl Dyck made notes of his preliminary conversation with the complainant, it would have served, in the face of her complaint, as an extremely helpful record of what transpired. More important, if charges had been laid and the statement became an issue at trial, complete notes regarding the circumstances surrounding the taking of the statement would have been critical.

9. SECURITY AND MILITARY POLICE INFORMATION SYSTEM (SAMPIS)

51. The Commission heard that SAMPIS is the electronic system in which all file entries are made in relation to an investigation. SAMPIS entries can be made and modified by various people including co-investigators and supervisors alike. The evidence revealed that, while it is possible to track who made a modification to one of the entries, there is no way to trace what changes were made.Footnote 54

52. WO Bergin noted that it was common for him to modify the final reports (e.g. changes to the case summary, initial complaint or conclusion boxes) in SAMPIS, although he would not change the meaning; rather, only make the reports more presentable.Footnote 55 Although he could not recall if he made any changes to SAMPIS entries in this particular case, WO Bergin stated that it was conceivable that he made substantial changes without taking away the meaning of what was written.Footnote 56

53. This type of practice is certainly of concern, and problematic to say the least, in any judicial proceeding. The investigating officer testifying in a court proceeding would not be able to confirm exactly what modifications were made to a report where he is listed as the author. This would clearly create serious issues of reliability on any such report and could potentially impact the outcome of the trial. Despite WO Bergin not being able to see the problems this scenario might causeFootnote 57 , MWO Watson and Maj Bell alike understood the concerns raised. Maj Bell held the view that, if you are called to testify as to the authorship of a document that has your signature and someone else has edited or drafted that document, it would be difficult to confirm the author. Maj Bell even referenced this as being a concern in past court cases. In order to mitigate some of the concerns raised during the hearing, Maj Bell indicated that he would be taking some preliminary steps. He stated that he would be recommending that the originating author's document be retained as a pristine version. Any vetting that is done would be cut and pasted into a separate document and saved under that person's name as a different version. This will enable the reader to see the changes from the original document.Footnote 58

10. SAMPIS ROLE CODES

54. In advancing her complaint, one of C's main concerns was the continued listing of her son as a suspect in the SAMPIS system and the potential future use of that information.Footnote 59

55. As elaborated in the statutory declaration of the DPM Police, LCol Lander, access to SAMPIS is generally limited to MP members who are employed in a MP unit that has an active law enforcement mandate. Moreover, according to LCol Lander, access to such information is limited by the Privacy Act, the Access to Information Act, and the Youth Criminal Justice Act which protects the identity of minors. Various role codes exist in SAMPIS such as “young person suspect”, “young person witness” and “young person subject”. The system and the policy in relation to SAMPIS use require periodic updates to the classifications and codes for individuals as the file progresses. LCol Lander notes that this process is sometimes overlooked. LCol Lander's evidence indicated that he was attempting to address these problems by improvements to their advanced SAMPIS training course and by more effectively communicating the new policy and the reasons for it (i.e. to create a more consistent application of the role codes).

56. As indicated, LCol Lander noted an occasional overlooking of updating of role codes as mandated by policy. However, Maj Bell testified that the current practice is not to change the status of a person in SAMPIS if the suspect is never charged.Footnote 60 Maj Bell further stated that there is no guidance provided on when to change it.Footnote 61 This would seem to confirm LCol Lander's assessment of a need for improved training and communication of policy. Furthermore, Maj Bell also stated that he expected that access to SAMPIS records was available for screening for Canadian Forces enrolment or application for other federal government employment.Footnote 62

57. In reviewing how the RCMP deals with the use of role codes and downgrading of someone's status, RCMP Superintendent Charles Walker noted in his affidavit that the user note of “subject of complaint” is intended to be non-accusatory in nature. Other codes of “suspect” and “suspect chargeable” exist. In the cases where no charges are laid and the review at file conclusion reveals that there are insufficient grounds to sustain the suspect code, the file is amended to reflect a status change to “subject of complaint”.

58. The fact is that, given the failure to confirm Lt Flower's selection of CS from the crowd of cadets as the person Cdt B intended to point out, there is no certainty whatsoever that CS was even the actual “subject” of the complaint.

11. NOTIFICATION TO THE COMPLAINANT THAT HER SON WOULD NOT BE CHARGED

59. On November 24, 2004 when Cpl Dyck called C, he was unaware of her previous instructions to the chain of command that she no longer wanted contact with him.Footnote 63 Cpl Dyck denied having told C that he did not need her permission to contact her son directly. Cpl Dyck testified that he told her that he was still conducting the investigation and that he needed to talk to her son.Footnote 64

60. When asked if he contacted the complainant or her son to advise them that no charge would be laid, Cpl Dyck responded that he believed the complainant had been so advised. In relation to CS, Cpl Dyck testified that it was clear to him that he was not to contact CS further based on his telephone conversation of November 24, 2004 with C. It did not seemingly occur to Cpl Dyck to send a letter; rather, he referred the matter up his chain of command and he took for granted that someone else up the chain of command would contact C to advise her. The fact that C was in the process of filing a complaint also concerned Cpl Dyck to the point that he did not want to further upset her. As such, Cpl Dyck left it to his chain of command to advise her.Footnote 65 It did not occur to Cpl Dyck to try and locate the number of C's lawyer nor did he make any inquiries if anyone else had the number.

61. MWO Watson stated that the “best practice then and now” would be to notify the suspect if charges are not being laid. If the suspect was military personnel, the norm would be to advise the member through his chain of command.Footnote 66

62. To his credit, in what he described as a shortfall in the investigation, WO Bergin apologized for not informing C that no charge would be laid against her son.Footnote 67 Maj Bell, taking ultimate responsibility for ensuring that notification to the subject is made and acknowledging that it should have been done in this case, noted the lack of policy direction in this regard.Footnote 68

Cdt B's Descriptions of Assailant
Handwritten Note to Capt Law from Cdt B
August 16, 2004
Cdt B's Verbal Statement to Cpl Kulbisky
August 19, 2004 at 14:43
Cdt B's Written Statement to Cpl Kulbisky
August 19, 2004 at 15:47
Cdt B's Verbal Statement to Cpl Lambert and Sgt Niclaes (CFNIS WR)
September 8, 2004
Actual Description of CS as Provided by CS to Cpl Dyck
October 8, 2004
A. “6'1" A. A. “Seem to be 5'6" to 5'7" A. “5'5", 5'6" A. “Approximately 6 feet.
B. “Light blond hair B. B. B. “Short hair...like a buzz cut...longer on top, but not too long, and then it was really short...on the side. B. “Hair colour is dark brown.
C. “Wearing combat T-shirt and gumbie pants. C. C. “Wearing combat shirt with gumbie pants/shorts. C. “Dressed in his gumbies...in grey shorts...green shirt...grey/black kind of shoes. C.
D. D. Birthmark was the size of his eye socket under his eye but above the cheekbone. D. “Seem that he had a birthmark on his left or right eye...under his eye but almost above the cheekbone and the colour of the birthmark was light brown. D. “Birthmark under his eye, I think the left eye. D. Note: CS has no facial birthmark.
E. E. E. “Had a big gut, look like he had boobs. E. “Really chubby. It looked like he had boobs. E. “280 pounds.
F. F. F. “Had a chubbie face. F. “Chubby cheeks. F.
G. G. G. G. G. “One blue eye (right) and one green eye (left).

12. FINDINGS AND RECOMMENDATIONS

Finding # 1:

The Chair finds that the CFNIS investigation was neither diligently carried out nor was it complete in terms of the collection of evidence. This finding of fault is attributed to the investigators and superiors alike in this investigation.

  • CFPM agreed with this finding.

Finding # 2:

The Chair finds that on assignment of the file, Cpl Dyck failed to thoroughly review previous investigative work and to obtain meaningful briefings on the investigative progress of the file. This failing is mitigated, in part, by his level of training and experience and certain failings in the supervisory chain.

  • CFPM agreed with this finding.

Finding # 3:

The Chair finds that certain CFNIS reports were incomplete and/or inaccurate.

  • In noting his acceptance of this finding, the CFPM wrote: “I agree with the essence of this finding. The use of the term ‘reports’, however, is unclear. The intent appears to be to make a finding that ‘certain CFNIS entries in SAMPIS relating to this investigation were incomplete or inaccurate or both.’”
  • The reports or entries, if preferred, are those mentioned in section 8 of the section titled “Accuracy of CFNIS reports.” More specifically, reference was made to page 79 of the Case Summary Report and a further report entry. In addition, I observed that no notes were taken of “off” tape conversations with C and CS resulting in an incomplete entry with respect to those encounters.

Finding # 4:

The Chair finds the reliance on the flawed identification was a serious failing in this investigation and one that is to be attributed to the investigators and superiors alike.

  • CFPM agreed with this finding.

Finding # 5:

The Chair finds that Cpl Dyck and, arguably, Sgt Niclaes fell prey to “tunnel vision” which could have been avoided with proper supervision.

  • CFPM agreed with this finding.

Finding # 6:

The Chair finds the complainant ought to have been notified that her son would not be charged and as the investigator assigned to the file, Cpl Dyck should have verified that this had been done. The responsibility for the failure to notify is also attributed to the superiors.

  • CFPM agreed with this finding.

Recommendation # 1:

The Chair recommends that NIS develop a comprehensive policy for the handover of investigations in progress. Such a policy should include clear direction that the investigator taking over the investigation conduct a complete review of all investigative product accumulated to date, including the transcripts or tapes of interviews, and, as possible, be briefed by all other investigators who participated in any aspect of the investigation. Based upon this complete and detailed review, a new investigation plan should be prepared for supervisory review and approval.

  • In his acceptance of this recommendation, the CFPM noted: “The revised CFNIS SOP 201 - Investigations-General, has redressed this issue. Since investigations are also done by other elements of the military police, the lesson is being carried further into our Military Police Policies and Technical Procedures as well.

Recommendation # 2:

The Chair recommends that Military Police policies (DPM Police Advisory 09/07, Chapter 7, Annex N) or Standard Operating Procedures be reviewed regarding eye-witness identification in order to ensure appropriate caution with regards to the reliance on eye-witness identification is signaled to investigators and the best practices for conducting identifications are clearly outlined for both photographic and in person identifications.

  • In his acceptance of this recommendation, the CFPM noted: “MPPTP Ch.7, Annex N refers. Caution regarding eyewitness identification is stressed. Best practices for photo identification are set out. Work remains to be done with respect to ‘in-person’ identification procedures.

Recommendation # 3:

The Chair recommends that the importance of note taking be reinforced in policy and training. It is also recommended that the MP policies be reviewed to ensure that they contain clear direction on the importance of accurately and diligently noting any “off tape” conversations to ensure the integrity of the investigation.

  • In noting his acceptance of this recommendation, the CFPM noted: “CFNIS SOP 203 and MPPTP Chapter 7, Annex A, now cover this.

Recommendation # 4:

The Chair recommends that directions be put in place which require that transcripts of all audio or video recorded interviews be uploaded into SAMPIS.

  • In his acceptance of this recommendation, the CFPM noted: “This is certainly desired. If technically possible and cost effective, this will be pursued further.
  • By way of final comment, I accept and understand that implementation of this recommendation is subject to technical limitations and cost factors.

Recommendation # 5:

The Chair recommends that the SAMPIS system be modified so that a record is retained of both the identity of anyone altering a document and exactly what alterations were made.

  • In a his acceptance of this recommendation, the CFPM noted: “The software does not have a ‘track changes’ and identifier feature. Nevertheless both original and changed documents can be retained, thus allowing one to note the changes. Identity of the altering person cannot be noted by way of software, but SAMPIS entry procedure might be amended so that it is possible to determine by other means the person who made the change. Changes to procedure to allow this will have to be promulgated in MPPTP, but it is a challenge to identify the most workable approach. Thus while SAMPIS itself cannot be readily modified, the way it is used and additional procedure should suffice to implement this recommendation.
  • I am satisfied with the CFPM's approach to implementing this recommendation.

Recommendation # 6:

The Chair recommends that the SAMPIS role codes be reviewed with a view to confirming that there is a sufficient selection of codes, including those of a clearly non-accusatory nature, to accommodate all situations. Furthermore, it is recommended that guidance in the form of policy direction and training be developed or reinforced, as the case may be, to ensure that a person's status is properly identified on an ongoing basis in the course of and at the conclusion of an investigation.

  • In his acceptance of this recommendation, the CFPM noted: “SAMPIS does provide a sufficient selection of role codes. A workable policy will be developed and promulgated to reinforce the accuracy of a person's role assignment, and timeliness of any changes to that role assignment.
  • I am satisfied with the CFPM's undertaking in relation to this recommendation.

Recommendation # 7:

The Chair recommends that the CFPM direct that the role code of “suspect” in this case be changed on SAMPIS to one of a clearly non-accusatory nature and reflecting the fact that there is effectively no evidence to support any such accusation.

  • Recommendation accepted by the CFPM.

Recommendation # 8:

The Chair recommends that a clear direction be given to MP personnel that all complainants and subjects are to be contacted and advised of the results of the investigation in a timely manner, unless operational exigencies' dictate otherwise, and that such contacts are noted on the file with documented support of the supervisor.

  • In his acceptance of this recommendation, the CFPM noted: “Subject to a clarification of ‘results of the investigation’ and ‘operational exigencies.MPPTP Ch. 7 deals with victims and complainants, as does CFNIS SOP 204, which stipulates that victims and complainants must be notified every two weeks. The issue of advising subjects, however, requires further consideration. All contacts with complainants and subjects should be documented in the manner recommended.
  • By way of clarification, the key element in this recommendation is to communicate the “results of the investigation” to a person who is aware that he is a subject of an investigation by simply advising him that the case is concluded and he will not be charged criminally. It was not intended to imply that a detailed explanation (e.g. a review of the evidence) be provided. A caveat of “operational exigencies” (meant in the police investigation context) was placed on this recommendation to allow for cases where an investigation can not be closed or by way of another example, a criminal drug conspiracy wherein it would not be prudent to advise the subject that he/she is or was a subject of an investigation. When these “operational exigencies” dictate otherwise from the norm, the rationale should be clearly documented on the file by the investigator and supported by the supervisor. In conclusion, I am satisfied with the CFPM's response in relation to this recommendation.

IV THE INTERVIEW / INTERROGATION

1. INTRODUCTION

1. This part of the Report will deal with the focal point of the complaint, the interview and interrogation of CS by Cpl Dyck, monitored by Sgt Niclaes, on Friday, October 8, 2004 at the RCMP Detachment at Fox Creek, Alberta. The preparation for the interview, the techniques used, the state of the evidence known to the investigators at the time, compliance with the Charter of Rights and Freedoms and the method of questioning will be examined.

2. By way of general introductory comment it is observed that the interview was arranged in a manner that was calculated to get the suspect, CS, to voluntarily attend and submit to questioning. The technique of “overstating the evidence” was used and the interview was also conducted in a way that was calculated to “keep the suspect talking”. Clearly, some of the techniques applied in arranging and conducting the interview were standard criminal investigative practice designed to advance the investigation by, for example, minimizing the amount of information provided to the suspect when arranging the interview so as not to scare him off from attending. While these techniques are not necessarily legally improper, in all of the circumstances of this case and taken cumulatively, they at the very least compromised CS's ability to exercise his Charter rights, and, in result, potentially compromised the investigation. Moreover, as already observed in respect of the investigation generally, the investigators approached the interview based upon flawed and incomplete investigative preparation which resulted in tunnel vision. The “technique” driven interview/interrogation in these circumstances was, at the very least, grossly unfair to the teenaged suspect.

2. PREPARATION FOR THE INTERVIEW / INTERROGATION

3. In the preceding part of this report, under the heading “Preparation by Cpl Dyck and Review of Previous Investigative Work” reference has been made to the preparation by Cpl Dyck when he was about to embark on the investigation. It is apparent that the preparation by the Corporal was perfunctory and inadequate and this was equally so with regard to readiness for the important task of interviewing CS. Cpl Dyck considered CS his prime and only suspect and he was going to confront CS during the interview with his suspicions and make accusations against CS. One would think that, with this mindset, the Corporal would have taken extra care in preparing for the interview in order to ensure that the evidence that had been gathered to that point in time did, in fact, point only in the direction of CS. As will be seen, this was not the case, and the potential for a grave injustice was present, both during the interview and thereafter.

4. As noted earlier, Cpl Dyck was questioned at the hearing with respect to the material that he reviewed in preparation for the interview with CS on October 8, 2004. He replied that Sgt Niclaes provided him information; however, he did not make any notes of the specific information provided by the Sergeant. The briefings were verbal in nature and it was an ongoing process. It was not a single meeting; that is, he consulted with Sgt Niclaes throughout the investigation.Footnote 69 His plan for the interview was filed at the hearingFootnote 70 and the Corporal testified that he had typed this plan himself, but discussed its contents with other investigators in his office.Footnote 71 He added that it was his habit to review any files before he went to an interview.Footnote 72 He stated that he consulted his interview plan and checked the file on SAMPIS to see if anybody else had added anything new, but, there was no new information to review.Footnote 73

5. The list is longer for the items that Cpl Dyck did not review or research in preparation for the October 8, 2004, interview. He advised the Commission that he did not watch the tapes of the previous interviews of the complainant or other witnesses.Footnote 74 He did not track or analyse all the different versions of identification provided by Cdt B. He indicated that he had read the different descriptions but had no detailed listing of differences. He added that he was aware that there was more than one description of the assailant provided by Cdt B, but he was not aware of any major differences, feeling at the time that the differences were explainable by the circumstances.Footnote 75 It was suggested at the hearing that he didn't pay much attention to the different descriptions given by Cdt B and he stated that he did not identify them as large differences. He didn't pay much attention to these differences but did agree that “identity” is an important issue because, if you don't have identity, you don't have your suspect.Footnote 76

6. He was aware that CS had written a note for Capt Thoms at the cadet camp but Cpl Dyck did not make efforts to retrieve the note, saying that he did not have access to it.Footnote 77 Had he pursued this, he would have learned that CS at the earliest opportunity denied any knowledge of the sexual assault incident. He ought to have known that this exculpatory statement was in existence and ought to have made efforts to retrieve it. Further, the Corporal stated in evidence that CS was the prime suspect. There was none other.Footnote 78 Other than Cdt B, there were no other witnesses to the alleged assault and no other incriminating witness statements.Footnote 79

7. Cpl Dyck was asked at the hearing if he considered that the identification procedure, whereby Cdt B purportedly identified CS, was appropriate and he stated that it was not and that it did not follow standard procedures. Notwithstanding that opinion, he did not have any discussion formally with Sgt Niclaes with respect to attempting further identification initiatives with the complainant preparatory to the interview.Footnote 80 He was aware that the observations of his assailant by Cdt B were made in the dark and that the complainant had indicated in one statement that the suspect had a birthmark on his face.Footnote 81 These did not give the Corporal any cause for concern with regard to testing Cdt B's ability to observe.Footnote 82 They should have.

8. As stated above, many of the comments in the previous section dealing with the investigation in general apply to the Corporal's preparation for the interview of CS. Suffice it to say that the interrogation of the prime suspect in a criminal investigation is usually one of the last steps in the investigation and often can make or break a criminal prosecution. If at all possible, it should not be undertaken until most of the other investigative work has been finalized so that the investigator will be in possession of the bulk of the evidence that is available in order to question the suspect about it. Normally, it would be expected that a great deal of preparation would be undertaken before engaging in this penultimate and critical investigative event. However, the preparation for the interview of CS was much less than adequate.

3. INTERVIEW TECHNIQUES

9. This portion of the report deals with the interview techniques with which Cpl Dyck and Sgt Niclaes were familiar and how these methods were utilized during the interview of CS. In addition, it is important to understand what the mind-set of the investigators was as they approached the interview with regard to what techniques they apparently believed were legally permissible. In particular, this report will examine whether inappropriate interview/interrogation techniques were used with the complainant's son in overstating the incriminating evidence available to the authorities.

3.1 THE LAW

10. The Courts in Canada have regularly considered the techniques used by investigators during the taking of statements from suspects and much judicial opinion has been forthcoming on the issues of the police use of stratagems, tricks, lies, exaggerating the quality of the evidence and referring to inadmissible evidence.

11. It is considered worthwhile to refer to some of the leading case-law on the subject before examining the evidence before the hearing of September 2006. In R. v. Oickle, (2000) 147 C.C.C. (3d) 321, S.C.C., Iaccobucci, J. stated:

[Para. 40, page 343] A third kind of false confession is the non-coerced persuaded confession. In this scenario, police tactics cause the innocent person to “become confused, doubt his memory, be temporarily persuaded of his guilt and confess to a crime he did not commit”....The use of fabricated evidence can also help convince an innocent suspect of his or her own guilt.

[Para. 43, page 344] Another theme is the danger of using non-existent evidence. Presenting a suspect with entirely fabricated evidence has the potential either to persuade the susceptible suspect that he did indeed commit the crime, or at least to convince the suspect that any protestations of innocence are futile.

[Para. 61, page 351] A final possible source of oppressive conditions is the police use of non-existent evidence. As the discussion of false confessions supra revealed, this ploy is very dangerous. ...The use of false evidence is often crucial in convincing the suspect that protestations of innocence, even if true, are futile. I do not mean to suggest in any way that, standing alone, confronting the suspect with inadmissible or even fabricated evidence is necessarily grounds for excluding a statement. However, when combined with other factors, it is certainly a relevant consideration in determining on voir dire whether a confession was voluntary.

[Para. 67, page 353] There may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community.

[Para. 90, page 361]... As noted at para. 159 of Hill, J.'s lucid reasons in [R. v. Alexis, (1994) 35 C.R. (4TH) 117, Ont. Ct. (Gen.Div.] “...confrontation of a suspect with polygraph test results, in such circumstances, is not qualitatively dissimilar from such permissible techniques of persuasion as the police showing a detained suspect a co-accused's confession inadmissible in evidence against a suspect, or police trickery, for example, the ruse of relating to the suspect that his or her fingerprint has been discovered at the scene of a crime.” On this view, police trickery or the use of inadmissible evidence is not necessarily grounds for exclusion.

[Para. 91, page 361] ...the use of deception is a relevant factor in the overall voluntariness analysis. At this stage, the approach is similar to the one used with fabricated evidence...though, of course, the use of inadmissible evidence is inherently less problematic than fabricated evidence...

[Para. 100, page 365]... Simply confronting the suspect with adverse evidence, like a polygraph test, is not grounds for exclusion...This holds true even for inadmissible evidence. ...Nor does the fact that the police exaggerate the evidence's reliability or importance necessarily render a confession inadmissible. Eyewitness accounts are by no means infallible...In short, merely confronting a suspect with adverse evidence - even exaggerating its accuracy and reliability - will not, standing alone, render a confession involuntary.

12. In Youth Criminal Justice Law by Nicholas Bala, he discussed the Oickle case in relation to youth suspects in Chapter 4, titled “Arrest, Police Questioning, and Pre-trial Detention”. He stated at pages 202-204 that:

While the Supreme Court does not give a clear idea of what type of police conduct is unacceptable, the decision in Oickle indicates that, with an adult suspect, there is significant scope for psychological inducements to the making of a statement without rendering a statement inadmissible... The Court indicated, however, that police trickery could be a ground for ruling a statement inadmissible. Justice Iacobucci noted that the issue of police trickery was related to but distinct from concerns about the “voluntariness” of a statement made to the police concluding: “There may be situations in which police trickery, although neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community.

The implication of the statements of Lamer J. in RothmanFootnote 83 [who remarked that the authorities in dealing with sophisticated criminals must at times resort to tricks and other forms of deceit] and Iacobucci J. in Oickleis that, when police are questioning naïve and unsophisticated youths who may be easily misled, there should be less judicial tolerance for any forms of police trickery or deception than when they are questioning more mature or sophisticated adults. The relative immaturity and lack of sophistication of most adolescents suggest that the courts should exercise greater scrutiny when considering police inducements or trickery that may have induced a confession. (Emphasis added)

13. In the “community shock” test, judges apply an objective test by judging police actions using community standards of decency or fairness. As such, a statement found to be made voluntarily, may nonetheless be excluded, if as a result of what was said or done by the police in eliciting the statement would bring the administration of justice into disrepute.Footnote 84

14. In discussing the Reid TechniqueFootnote 85 of questioning, which is a process of interrogation designed to assist the investigator obtain a confession, the Ontario Superior Court of Justice in R. v. F.(L.)Footnote 86 stated:

The Reid technique of questioning is not inherently objectionable. The police must be afforded the necessary latitude to perform their responsibilities to society. Inflexible rules must not be allowed to straitjacket their legitimate pursuits. Questioning suspects and witnesses to a crime is an essential and often the most effective investigative tool the police possess. However, the protection of the Charter rights of accused persons to fair treatment during investigations, including, for example, the right to be secure against unreasonable search and seizure or to have used against them only confessions that are voluntarily given to the police, and many others, must be assiduously protected. The court's function is to find the fair and appropriate balance between these competing interests.

15. In Regina v. J.T.J., (1991) 59 C.C.C. (3d) 1, the Supreme Court of Canada held that Section 56 of the Young Offenders Act (now section 146 of the Youth Criminal Justice Act) is to protect all young people and thus the requirements of this section must be complied with no matter how street smart or worldly wise the young person may appear. Where the statutory conditions have not been complied with, the statement is inadmissible. Cory, J. stated at page 25:

...it must be remembered that the section (s. 56, YOA) is to protect all young people of 17 years or less. A young person is usually far more easily impressed and influenced by authoritarian figures. No matter what the bravado and braggadocio that young people may display, it is unlikely that they will appreciate their legal rights in a general sense or the consequences of oral statements made to persons in authority; certainly they would not be able to appreciate the nature of their rights to the same extent as would most adults. Teenagers may also be more susceptible to subtle threats arising from their surroundings and the presence of persons in authority. A young person may be more inclined to make a statement, even though it is false, in order to please an authoritarian figure....

16. It is stated in an article, The Admissibility of Young People's Statements Under the Proposed Youth Criminal Justice Act, (2002) 39 Alta. L.Rev. 771-87, Anand and Robb: (para. 2):

...there is also abundant evidence suggesting that young people need enhanced protection when they are being questioned by police. Current research warns that delinquent adolescents are more likely to implicate themselves (sometimes falsely) and waive their due process rights when they are given the same type of warnings and assistance as are given to adult accused...

17. Further paragraph 12 of the said article reads:

It is sometimes forgotten that, even before the enactment of the YOA, a notion of enhanced procedural protection was part of the common law with respect to the admissibility of young offender statements...Additionally, if there is a purported waiver, the officer must be in a position to demonstrate that the child understood the caution “as a result of careful explanation” and that “the consequences that may flow from the making the statement” should be pointed out to the child.

18. The aforementioned article (as noted in paragraph 16) also made reference to the case of R.(A)(Re), [1990] Y. J. no. 97 (Youth Court), where the court highlighted the need for caution when dealing with young persons. After “referring to the cases on voluntariness and young offenders, the Court articulated further reasons for demanding a stringent onus on the Crown to establish voluntariness, including: 1. the reduced capacity of young people to understand rights, 2. the reduced capacity of youths to protect themselves in the adult world, and 3. the increased disposition of young people to answer all questions posed by authorities.

19. The above case law and referenced articles stress the need for police to exercise extreme caution when questioning young persons, including care in the use of specialized interview techniques.

3.2. ARRANGING THE INTERVIEW / INTERROGATION

20. On October 4, 2004, Cpl Dyck contacted CS to ask him if he would agree to be interviewed. He subsequently spoke by telephone to C. There is considerable discrepancy between the evidence of the Corporal and that of C and her son as to the nature and quality of the information provided in the course of these communications and otherwise before the commencement of the interview tape. For reasons explained below, where there is conflict, the Commission has chosen to accept the evidence of C and CS. In sum, the totality of the evidence revealed that the method used to persuade CS to be interviewed was both deceptive and insensitive. Knowing that the NIS had a very weak case and that CS was the only suspect, their goal was to obtain a confession. The investigators failed to sufficiently inform CS and his mother of CS' jeopardy prior to his interview on October 8, 2004.

21. Credibility and reliability are most important issues in this part of the report, especially since, as said, the evidence of conversations between the investigators and C and CS before the interview commenced diverges greatly. With respect to both the issues of credibility and reliability, the presence or absence of notes or reports prepared by the parties to the conversations while the communication is still fresh in their mind that contain the substance of the pre-interview communications is crucial. The Commission learned from Cpl Dyck that he made absolutely no notes of the substance of his conversations with C or CS. Accordingly, in giving testimony, Cpl Dyck was attempting to recall by memory conversations that took place nearly two years previously without the aid of any written material. He admitted several times when he testified that he did not know the exact wording of what he said to C or CS. C, on the other hand, shortly after the interrogation of October 8, made a lengthy memo of what had occurred and what was said by the parties. Her evidence before the hearing was in conformity with, and consistent with, her notes in her memo and her written complaint.

22. CS, age 19 and a high school graduate at the time of the hearing, testified that he was home from school and received a telephone call from an MP asking if he could come to Fox Creek to answer some questions about an incident at the Vernon Camp. CS stated that: “originally I thought that it was about a harassment case with one of the cadets in my platoon.

23. He said that there was no other incident that came to mind.Footnote 87 CS believes he asked if the MP could tell him what it was about and that he was told by the MP that he could not. CS was advised he could bring a parent to which he responded he would like his mother to attend but would have to speak with her. CS could not recall if the MP mentioned if he could bring a lawyer. When discussing the request with his mother, he advised her that he thought they wanted to meet him about a harassment issue with one of the cadets at camp.Footnote 88

24. Cpl Dyck testified that he phoned CS's residence, but he did not remember the date. He stated in evidence:

...I think I gave him (CS) an approximate date (of the alleged offence), the end of August, where he was involved and it was of a sexual nature, and I asked if he knew what I was referring to...So, by telling me, yes, that he understood that, or understood what I was referring to, I left that part at that...I then informed him that he was going to be interviewed regarding this, that he would be provided with all his rights. He was allowed to have a lawyer, a parent, his mother if he wished. I mentioned her specifically because he had mentioned that he wanted her present during the interview...I provided him with my phone number.Footnote 89

25. C gave evidence before the Commission and stated that on October 4, 2004 she received a phone call from her son during his lunch hour.

He told me that the MP had called him and that they wanted to have a meeting with him in Fox Creek on Wednesday, which would have been the 6th of October. I asked him if he knew what it was about and he said he didn't know what it was about, but he wondered if it was about Cdt H, that one of the cadets that he knew at camp had been harassed...He did say that he would like me to be at the meeting and I had basically told him that he wouldn't be going to the meeting without me.Footnote 90

26. On October 5, 2004 C spoke with an MP and the date for the meeting was changed to October 8, 2004 at 11:00 a.m. She didn't know who the MP person was. C testified that on October 5, 2004 the MP did not divulge any further information to her as to the purpose of the interview other than they wanted to ask her son some questions about camp.Footnote 91 The idea to have a lawyer attend the interview never crossed her mind.Footnote 92

27. Cpl Dyck gave testimony as per his recollection of his telephone conversation with C on October 5, 2004:

...we discussed when (her son) would be available for an interview. I told her that it would be regarding I think I said an incident of a sexual nature that he was being investigated for, and that we would like to speak to him. Again, I would have said that he can have whoever he wants present, an adult, herself or her lawyer... For a sexual incident... I don't remember the exact wording. I don't believe I said outright that he was the suspect but I said that he was being investigated for it and that he would have the opportunity to contact his lawyer, have her present or anyone else, and that I could provide further details if they were wishing to come down.Footnote 93

28. He was questioned further on this:

Q. What you say you told (C) was that her son was investigated for an incident of a sexual nature? A. That's correct. ... Right. I didn't want to go any further than that because.....that should be enough that if it's who they say they are, they will understand; they will be able to hopefully talk about it between themselves but they will know what the situation is. And when they come down, I'll make sure again we go through all their rights and that they know before we start, as I did through here...they will know before we start exactly what it is about. Q. But, your testimony is that both (CS) and his mother knew that there was an investigation of a sexual nature in which (CS) was involved? A. Yes. Q. You're certain that you provided that information? A. For CS for sure. For her, I don't remember the exact wording, but that was very much what I meant to leave her with and I hope she took from there. Like I say, I don't know the exact wording that I used with her. ... I'm not 100 per cent sure. I know that was what I wanted to get across. With him there's no doubt in my mind that he was told those things.Footnote 94

29. Finally, Cpl Dyck was asked if he made any notes of the information he provided to CS over the phone. He responded:

Specifics on the information, doubtful. I generally will record things like the time I call someone to set up an interview, but I don't record exactly everything I say.Footnote 95

30. Sgt Niclaes confirmed the technique when he testified at the hearing of telling the person you want to talk to that there's an “interview” that the police wish to conduct, as opposed to an interrogation, presumably. Part of the reason for using that terminology is that you do not want to scare the person away, whether it is a witness or accused. Once the investigators sit down with the person to talk then the police can become more focused on the purpose of the discussion.Footnote 96 With respect to contacting CS to request an “interviewSgt Niclaes stated that he was not present for any phone call that Cpl Dyck had with C. He did not have any discussion with the Corporal as to how he was to contact CS to set up an interview and Cpl Dyck did not provide him with any information as to how he did that.Footnote 97

31. WO Bergin added weight to the use of the technique of keeping the future interviewee in the dark with regard to the real nature of the “interview”. The WO stated that, in the telephone call to arrange an interview, he would not get too in depth over the phone about the investigation. He was asked if it would be his practice in this type of case to reveal that it involved a sexual assault at the cadet camp. He answered “no” and continued:

My practice, I wouldn't bring up the fact about the sexual assault or the specifics about the investigation until we're in the interview room.Footnote 98

32. This practice was applied by Cpl Dyck when he contacted CS and C to arrange the interview. Despite Cpl Dyck's testimony, which was based on memory alone, that he advised C and CS that he was investigating a matter of a sexual nature, I cannot accept his testimony in this regard. The lack of information provided to C and her son lulled them into a false sense of security, not realizing that CS was in serious jeopardy with regard to being charged with the offence of sexual assault on a male. The failure to provide information about the true purpose of the interview meant that CS did not make arrangements to obtain legal advice before the interview and, by the time that the interrogation was about to commence, it was too late to have counsel present.

33. In the Commission's view, the tactic of providing little information to a person that the police want to interview may be suitable when they are dealing with a criminal seasoned in the ways of the criminal justice system. However, it is questionable when making arrangements with a seventeen year old high school student and his mother who knew nothing about the reasons for the interview. By failing to fully inform CS and his mother of the true reason for the interview and the jeopardy the cadet was facing, Cpl Dyck imperilled the admissibility of any confession that the investigators might manage to obtain because CS and his mother were lulled into believing that the matter was just a routine investigation and that CS was not a suspect. They did not consider seeking legal advice before they went to the Detachment at Fox Creek on October 8, 2004 which they most certainly would have entertained if they had known that CS was a suspect in an alleged sexual assault offence. While it is acknowledged that most police investigators will provide only as much information as necessary when arranging an interview with a suspect or witness and having chosen this approach, once CS and C arrived at the Fox Creek Detachment to be interviewed on October 8, 2004, Cpl Dyck and Sgt Niclaes should have advised C of the reason for her son's interview.

3.3. PRE-INTERVIEW CONVERSATIONS AT RCMP DETACHMENT

34. CS testified that, on Friday, October 8, 2004, the day of the interview, he had gone to school in the morning and then he and his mother made their way to the RCMP Detachment at Fox Creek for their appointment with the NIS investigators at 11:00 a.m. CS arrived for the interview wearing his cadet uniform. C and CS were allowed into the Detachment and Cpl Dyck and Sgt Niclaes came and talked to C for a minute. C left CS and she and the Corporal went to the other side of the building and talked for a couple of minutes. CS was left standing alone and did not have any discussions during that period of time. He was unable to hear what Cpl Dyck and his mother were saying. Cpl Dyck then took CS into the interrogation room and his mother went to the video monitoring room with Sgt Niclaes.Footnote 99

35. CS does not think that Cpl Dyck asked him any questions prior to entering the interrogation room, nor does he think that he had any discussion with his mother before heading into the room. He thinks that the Corporal did ask him if he wanted his mother present in the interrogation room and he replied in the negative. This was asked just before they entered the room.Footnote 100

36. C gave evidence at the hearing that was very much consistent with the testimony of her son. She stated that when she arrived at the Fox Creek RCMP Detachment she was met by the Detachment Commander, RCMP Sgt Topham who was standing there with two gentlemen. “They sort of just, you know, ushered us in. There wasn't a lot of talk, but they were friendly and ushered us into sort of the next part of the Detachment.” The two gentlemen introduced themselves to C and CS. Cpl Dyck took C aside. C elaborated:

....and he just explained that the first thing they were going to do was to ask (my son) if he would like me to come into the interview with him and, if I did, then I was supposed to sit in a fashion that I wouldn't be prompting (CS) or answering questions for (CS). But if (CS) said that he didn't want me to be in the interview, then he kind of pointed off to the corner there, and there was a little room there and he said they would be taping and audio taping and videotaping the interview and I would sit there with Sgt Niclaes.

Then he spoke for a few minutes about a lawyer, but it was very...I thought it was very innocuous. It didn't sound to me like I had to run out and get a lawyer right away because at this point I still didn't know what I was doing there. So I wasn't thinking that we needed a lawyer.Footnote 101

Secondly, there is no lawyers in Fox Creek, so it is not like you can just run downtown and get a lawyer...There might be a lawyer in Whitecourt, but that's an hour away and you have to make arrangements for it. ...So, he said, you know, if we wanted to have a lawyer that we could have a lawyer, but it would slow things down. The investigation would go ahead with or without a lawyer. So, I was sort of, you know, under the impression that it really wasn't required at this point and I didn't want to slow things down. If we were here to talk about whatever Cdt H and this business of harassment, then let's just do it and be done with it.Footnote 102

That whole conversation was not overly long. I mean, it was mostly just Cpl Dyck giving me instructions... Then while we were still standing there that was sort of the end of it. Then he just kind of signalled to (CS) and Sgt Niclaes. So they kind of came up off my left and, as they were walking by me, (CS) just stopped me and whispered, you know, to me that did I know what we were here for, because he was under the assumption that's what Cpl Dyck was telling me was what we were here for. I said, “No, I don't know what we are here for.” So he said “Okay.Footnote 103

Q. So, Cpl Dyck, I understand that he didn't tell you the purpose of the interview, the subject matter? A. No Q. Did you specifically ask him about the subject matter of the interview? No. Q. When the discussion was taking place with you and Cpl Dyck about a lawyer, did you ever ask the question about why would I need a lawyer or why would he need a lawyer? A. No... I don't believe that I did, because I was thinking about what (CS) thought this was of and what I had been led to believe by (CS) assumption...Footnote 104

37. Cpl Dyck testified about meeting C and CS upon their arrival at the Detachment, although his evidence differed in many respects. He stated that he took C aside to talk to her in private just to let her know what would be going on because “...I wanted to keep her informed so she wasn't surprised as to what was going to happen with her son...Footnote 105 He was questioned about why he did not tell CS of his rights in the presence of C. He replied “I was talking to her son as the defendant who wanted to be interviewed and making sure he knew everything.Footnote 106 Cpl Dyck didn't want one interrupting the other, he didn't want confusion or arguments between them and didn't want them to influence the other. Counsel put to him his use of the word “Defendant” when referring to CS and he advised the Commission that he misused the word “Defendant”.

He was the subject of the investigation. ... Q. He was the prime suspect. ... The only one? A. At that point, yes. Q. There was none other? A. Not at that point.Footnote 107

38. It is his recollection that he told C the investigation was in relation to a sexual assault.

...we would be taking him to the other room, reading him all his rights, providing him the opportunity to have a lawyer, herself or another adult of her choosing present, that I would give him the option of having her present in the room if he wished...She indicated that was fine. I basically told the same thing to (CS).Footnote 108

...As we were walking back to ...the interview room, I told him (CS) that we were going to be interviewing him regarding the allegations of a sexual assault. (that was in the corridor)...I didn't want him to be surprised when we came in because if he was going to tell me, no, he's changed his mind, I would rather that before we go through all the reading his rights...And shutting it down then. I would rather have it right at the beginning.Footnote 109

39. Cpl Dyck was asked at the hearing what he would have done if, while in the corridor, CS had refused to be interviewed. The Corporal said he would have asked CS to express his refusal on tape and that would have ended it.Footnote 110 Cpl Dyck was pressed in questioning about what he had said to CS in the corridor before the interview and he stated that he told him that this was about:

Either a sexual assault or of a sexual nature, and I told him that I would be reading him all his rights, we would go through anything and any questions he had I would explain them. Then I told him that I would be telling him once we were in there his rights, that he could have his mother, another parent or legal counsel, lawyer present. Before we went in there, I just wanted to know which way he wanted to go.Footnote 111

40. Cpl Dyck was asked during the hearing:

Did you at any point whatsoever have the sense that (C) did not appreciate the subject matter of the reason for why there was an interview? Was there any sense at some point on your part that she was confused about something?” The Corporal answered: “I think there was some question when she first got to the RCMP station, and that's when I explained it more fully. I don't know if she appreciated what was discussed before but, again, that's when I gave her a little more information, that it was a sexual assault. I made sure that she understood it. I think prior to that she may have been confused.Footnote 112

41. Cpl Dyck agreed that neither he nor Sgt Niclaes made notes with respect to what he told C or CS at any point in time.Footnote 113

42. With respect to C's assertion that Cpl Dyck told her a lawyer would slow down the process, Cpl Dyck testified:

I didn't get into whether or not it was a good idea. I did advise her (before the interview) that it was an option (to have a lawyer present). I advised them both. ...I don't believe I actually said it (obtaining counsel) would delay (the investigation). I believe what I said was that the investigation will carry on regardless of whether they have a lawyer or not.

43. He was then asked:

Q. Did you have any discussion about whether or not having a lawyer would have the effect of delaying the interrogation or something of that nature? A: No.Footnote 114

44. Sgt Niclaes was questioned during the hearing about the conversations that took place before CS was led into the interrogation room. He was asked if he remembers anything that was said by Cpl Dyck to C and her son and he answered:

No. ... I remained in the vicinity of Drake, just because we're partners. ... Q: “Did Cpl Dyck explain, in your presence, to either CS or C the purpose of the meeting?” A: “I'm sure he did. ...I'm sure he explained the process of the interview. Verbatim, word by word or, I can't...” Q: Was there any discussion in front of you with respect to the nature of the crime for which there was an interview? A: No. The only reason I say No is because of what happened later in the monitoring room.Footnote 115

45. Sgt Niclaes was referring to C's “shock” that he testified that he had witnessed when she heard the words “sexual assault,” whilst with him in the monitoring room. It was clear, in Sgt Niclaes' opinion, that C was hearing this for the first time.Footnote 116 This would seem to belie Cpl Dyck's evidence that he had provided a complete explanation to C and CS.

46. WO Bergin was asked at the hearing about the note-taking practice at the NIS, with emphasis on his practice or instructions with respect to the investigators taking notes of “off-tape conversations” between investigators or between the investigators and a witness, for example, corridor conversations. Startlingly, the Warrant Officer testified that there are no specific instructions adding “the investigators are well aware that, if there's anything pertaining to the case, make sure that it's written down or something along that line.

47. He was questioned whether, in this particular case, he would have expected the two investigators to have noted conversations that they had in the corridor with C, for example. He responded:

If it's relevant...It wouldn't surprise me one way or the other to tell you the truth. I myself in my own investigations have done the same thing what Cpl Dyck had done. I don't recall writing those instances in my notebook.

48. It was suggested to the Warrant Officer: “So it's acceptable to you that he didn't make notes of that conversation?” He answered “That's right.” He did concede that it seems reasonable to expect that notes would have been made with respect to comments made to the investigators during those periods of time where the interview was stopped.Footnote 117

49. I conclude that the conversations held in the corridor before CS was taken into the interrogation room at the RCMP Detachment were very important. It has been mentioned above that, where there is a divergence between the version of the complainant and that of the NIS investigators, I accept the testimony and the recollection of the complainant and her son as being more accurate. As such, I conclude that C and CS were not aware of the reason for CS' interview until Cpl Dyck announced as part of the taped interview on October 8, 2004 that the investigation pertained to a sexual assault. Further support for this conclusion is found in the testimony that relates to the events that occurred in the interrogation room and the surprise and shock that C and CS expressed when they finally learned the true nature and purpose of the interview and the gravity of the accusation that was being levelled at CS. This was further demonstrated in the October 8 interview where it was clear that CS initially thought the sexual assault allegation was in relation to a female, and not a male cadet.Footnote 118 CS' thinking in this regard was confirmed in his testimony at the hearing.Footnote 119 In addition, Cpl Dyck's comment at the outset of the interview to CS wherein he stated: “I'll let you know exactly what is going on here. I don't know exactly how much you know about why you are here...Footnote 120 also implied that the reason for the interview had not been previously explained.

50. The investigators did not place significant emphasis on the necessity to accurately record these “corridor” communications and this is exemplified by their lack of notes of the discussions. Had charges been approved by the Crown and this matter had gone to trial, the investigators would have realized in no uncertain terms, in the event of a voir dire going to the issue of voluntariness with respect to the admissibility of the taped interrogation, the requirement for taking full and accurate notes of any and all pre-statement communications with the youth, and his mother. Furthermore, I conclude that the investigators should have, at the very latest, upon C and CS' arrival at the Fox Creek Detachment on October 8, 2004, provided C and CS with information about the reason for the interview. The failure to do so deprived them of being able to make an informed choice about whether they wished to consult counsel prior to the interview commencing.

3.4 OVERSTATING THE EVIDENCE

51. The Commission has considered, in the light of the statements of law referenced in section 3.1, the evidence that Cpl Dyck advised CS during the interview of October 8, 2004 that there were several witnesses against him. In addition, CS was led to believe that the police had done a thorough investigation and that they had excluded all other suspects. CS was not aware of the weaknesses of the visual identification evidence. CS was also not aware that there was no forensic evidence and no hope of obtaining any. On the contrary, Cpl Dyck inferred that DNA evidence and the like was being sought. As will be seen these are but a few examples of the techniques employed during the interview and interrogation which will be explored in greater detail below.

52. Cpl Dyck was examined during the hearing about a question he posed to CS during his interview:Footnote 121

But I really want to know what really happened here, so we can get the full story, because from what other information we have, there is no doubt that you were in the room and that you touched this person -- this other cadet.

53. During the hearing, the Corporal was asked what other information he had beyond the statement of Cdt B. He replied that:

We had (Cdt B) identifying him...That was the main thing we were relying on there. The other information, I wanted the full story, I was saying, because the other information we have, (Cdt B), and there was nothing indicating different from any other source. Q. Weren't you conveying to (CS) that you had other information beyond the statement of the complainant? A. That was probably implied in there, but that was never said. I didn't tell him that we had other...Q. It was something that was implied, but that was not true? A. There was other information. The statement was the other information. If he wants to imply, believe more beyond that himself...Q. You were happy with that? A. Sure.Footnote 122

54. Cpl Dyck was asked about his remark to CS at page 43-44 of the statement transcript where he said “...there's a whole variety of things that I've heard...” Later at page 46 of the transcript, Cpl Dyck goes on to tell CS “There is no reason for me - - from all the other evidence and statements out there, there is no reason for me to believe that you haven't.Footnote 123

55. The Corporal agreed that he only had the evidence, as questionable as it might be, that CS had been picked out at band practice by Cdt B and the location of his bunk in the barrack room in relation to what was described. He admitted in his testimony he was using general and vague references and that he was doing so purposely as part of the techniques to lead a suspect to think there is more evidence against him in order to obtain a confession. He agreed that perhaps he worded that remark to CS poorly, that he was referring to the word “statements” in an inaccurate context there and perhaps, again, he was stretching the evidence.Footnote 124

56. Cpl Dyck was then questioned at the hearing about what he said to CS at page 49, line 23 of the interview transcript when he stated “And there were statements taken from a number of people, and what we have identified is that you have been physically seen --you were identified--.” He admitted that there was only one person who visually identified CS as the assailant and that was Cdt B, but at the same time, Cpl Dyck was not unhappy about leaving the impression with CS that there were more people who identified him. He disagreed with the terminology “overstating the evidence”, but Cpl Dyck did agree that he had been “implying there's possibilities and more out there than what he's aware of”.Footnote 125

57. During cross-examination, Cpl Dyck was asked about questions being posed to CS in a repetitive fashion and he stated that he was looking for discrepancies in CS's answers. He believed that, if he did not question CS in this manner, he would not be doing his job. “I don't think you can ask somebody a question once and accept the first answer at face value without further substantiation.Footnote 126 It was then suggested:

Q. You would agree with me in the course of conducting your police duties, while interviewing and interrogating you also on occasion mislead? A. Yes. Q. You also on occasion lie? A. Yes. Q. All of which is acceptable? A. Yes. Q. All of which you've been taught to do? A. Yes. Q. All of which has been accepted and approved by your supervisors? A. Yes.Footnote 127

58. For his part, Sgt Niclaes testified before the Commission that he knew Cpl Dyck was aware of the Reid nine steps for interviews, so Niclaes: “... didn't want to challenge him on his knowledge of doing that ... and ... didn't go through his strategy”. Sgt Niclaes just made sure that Cpl Dyck was ready for the interview.Footnote 128

59. In addition, the Sergeant referred to another technique utilized by the NIS investigators: using vague terms in which the suspect would possibly believe that more evidence existed than there was. Sgt Niclaes testified that he considered this to be an appropriate technique.Footnote 129 In a similar vein, Sgt Niclaes stated that NIS investigators use a technique of asserting to the interviewee/suspect that they know that the suspect committed the crime; a technique used particularly when shifting from an interview to an interrogation. He added:

We would probably start our interrogation process when I would say there's no doubt in my mind that you've done this offence. Then our process of interrogation would change and we would use techniques for that.

60. This would also be used when the interview, as opposed to the interrogation, format is not working.Footnote 130

61. The Sergeant was asked at the hearing about the technique of referring to DNA during an interview with a suspect. He indicated:

DNA. We would certainly approach the person to invade his space, go with, you know, it's okay, you've done it, I understand, but tell me why. I don't need to know how, we know how, but tell me why you've done it. So these are techniques to approach him.

62. He added that using all of these techniques is how he has been trained and what he has learned from the courses he has taken, and experience. This is standard police practice, according to Sgt Niclaes.Footnote 131

3.5 CONCLUSION REGARDING INTERVIEW TECHNIQUES

63. In conclusion, based on the relevant case law and publications as referenced in section 3.1, I am of the view that while the use of such techniques may have a place in some interrogations, the techniques of overstating the evidence, not providing too much information about the investigation and referring to DNA evidence chosen by Cpl Dyck to use during his interview with CS, and supported by Sgt Niclaes, were ill-advised and inappropriate in these circumstances in light of the lack of evidence (most notably the frailties in relation to the eye-witness identification, the inconsistent descriptions provided of the assailant, and the overall lack of evidence). It is the totality of the circumstances of this case that make the use of such techniques inappropriate. Therefore, while the use of such techniques are not in and of themselves improper, in my view, their application in this case offends the basic notion of fairness and were inappropriate to use on a 17 year old youth with no prior experience in the criminal justice system.Footnote 132

4. RIGHTS AND CAUTIONS

64. The courts in Canada have stressed how important it is that a young person about to be interviewed by the authorities be made aware in clear terms the jeopardy they are in should they decide to give a statement. As an example, in Regina v. T.(E), (1994) 86 C.C.C. (3d) 289 at page 299, Sopinka J. stated that:

The right of the accused to know the extent of his or her jeopardy in the context of the s.10(b) right to counsel was discussed by this court in R. v. Smith, (1991) 63 C.C..C. 3d 313,... a case in which the police had failed to advise the accused that his shooting victim had died. McLachlin J. ...summarized the law in this area as follows at page 322:...We take the view that the accused's understanding of his situation is relevant to whether he has made a valid and informed waiver...It is exemplified by three related concepts: (1) the “tainting” of a warning as to the right to counsel by a lack of information; (2) the idea that one is entitled to know the “extent of one's jeopardy”, and (3) the concept of “awareness of consequences” developed in the context of waiver...Thus (the accused) was possessed of sufficient information as to make a valid decision whether or not to exercise his right to counsel.

65. In Regina v. M. (S) et al, (1996) 106 C.C.C. (3d) 289, (Ont. C.A.), Brooke J.A., quoting from the cases of E.T. and Smith stated:

In my opinion, because of the requirements of the Charter and s. 3 and 56 of the YOA, an understanding by the young person of the potential jeopardy flowing from his or her actions is a requirement of a valid waiver and of voluntariness for purposes of determining the admissibility of statements made by a young person to persons in authority...Nor do I think that a formula for complying with s. 56 (now YCJA s.146) should be generally prescribed. Rather, each case depends on its own circumstances and, as Sopinka, J. put it, quoting McLachlin J., the significant factor is not what the person in authority says to the young offender but the young person's actual awareness of the consequences of his or her action....What is necessary will depend on all the circumstances including the young offender's age, level of understanding and degree of sophistication. ...” I am of the opinion that the trial judge had assured herself of the fairness of the police conduct, which she evidenced in part by referring to the judgment of the Chief Justice in R. v. D.A.Z. (1992), 76 C.C.C. (3d) 97.

Further it has been stated that the young person must be advised that he may consult both with counsel and with a parent and is entitled to a reasonable opportunity to consult with both and that they may have counsel present, with or without a parent, when giving the statement. Regina v. C.M.D. (1996) 113 C.C.C. 3d 56 (B.C.C.A.) (Emphasis added)

66. CS testified that he was taken into the interrogation room by Cpl Dyck. The only thing that was said to him by Cpl Dyck before the interview commenced was if he wanted to take his cadet uniform tunic off. The Corporal advised CS that the door was unlocked and he could leave at any time. He told CS that he could stop the interview at any time and he could just get up and walk out. He said this more than once.Footnote 133 At the hearing, CS was asked about the period of time before the tape got rolling: “...Was there any issue or mention about whether or not you would like to have a lawyer present?” His answer was “I don't think so.” CS did not ask questions about why he was there. He testified, “No, I just waited until the interview started.... I just felt relaxed. I wasn't quite sure what was going on. I thought it was still the harassment case at camp.Footnote 134 After the Corporal made his introductory remarks that are recorded on the video tape, CS stated in his testimony during the hearing:

Then he told me why I was there... He said that I was a suspect in a sexual assault case and that he would then be reading off my rights. Q. At that moment, what were you thinking of? A. Shocked again... It was in the back of my head (the Cdt B complaint) but it wasn't at the point where I knew that was what he was talking about...It was lingering in the back of my head because something similar happened at camp, but at camp I didn't know any of the details, so I wasn't sure if it was the same thing or it was something else.Footnote 135

67. CS was referring to his conversation at camp with Capt Thoms wherein he denied any involvement in the alleged offence. CS agreed that the Corporal read his rights to him and that he understood what the investigator was saying to him:

A: I did understand... Q. When he (Cpl Dyck) started at the outset of the interview saying you were a suspect in a sexual assault incident, did you desire to stop the interview at that point in time? A: No, because I was a suspect and it wasn't like the finger was pointing at me, but it could have been at two other people and ...they were just trying to narrow it down to eliminate someone... So, at that time I didn't want to stop the interview because he was just going to ask me a few questions.Footnote 136

68. At that point in time he did not think he was the only suspect. It was at this stage of the interview that CS started to become concerned. He testified that he ...“was not as relaxed as before. I was tensing up and just trying to think of anything that could help the investigation.Footnote 137

69. Moreover, it is also noted that, at the outset of the interview, at page 2 of the interview transcript, Cpl Dyck referred to the provisions of the Charter of Rights and the Common Law with regard to the admissibility of statements in this manner: “I am going to go through a bunch of formalities first.” The disdain for rights and due process reflected in this statement clearly coloured the whole event.

70. The Corporal then continued later on in the interview with another unfortunate turn of phrase: “So now I've got to read you a few things and see if you understand everything”, which might well be taken as an attempt to under emphasize the importance of the Charter Rights and the Caution.

71. It is also regrettable that the Supplementary Caution, as prescribed by Military Police Policies and Technical Procedures,Footnote 138 Chapter 7, Annex E, Appendix 6, paragraph 4 was not read to CS because he had already been interviewed by a person in authority concerning the alleged offence while he was at the cadet camp.

72. However, Cpl Dyck then proceeded to correctly deal with CS's right to consult with counsel, but, as mentioned above, it was a bit late for any exercising of these rights when, at the commencement of the interview, CS clearly did not know the extent of his jeopardy and the nearest lawyer may have been located an hour away.

73. C testified at length at the hearing about the events in the interrogation room after the video recording equipment was activated. She stated in evidence:

As we were getting sort of further into this thing and it seemed like more of a mystery almost...like I was beginning to wonder when am I going to know what it is that we're here for. ...But I don't really know what I'm here for yet. So, I was starting to become more anxious than when I had first arrived. ....He again looked fairly relaxed to me in the videotape...(My son) is not a chatterbox.... I wasn't expecting him to sort of be talking a lot. He would answer direct questions. ...I thought he was cooperative and listening. I think he was listening, but I am not sure he understood. ... Footnote 139

...When he (Dyck) was reading, which I know now are your rights, I didn't understand that to be his rights. If he would have said “Now, (CS), I'm going to read you your rights”, I would have known what that meant and that probably would have been the end of the interventions for the whole day right there. But I didn't get (it)... I just thought it was a formality that they had to go through before they asked (my son) all these questions. ...

I was sitting kind of thinking in my mind “What is going on in there?” But I wasn't overly concerned because, again, I didn't quite know what we were going to talk about. But the minute he said the words “sexual assault”, well, that changed the whole tone of everything. I obviously understood what that was, and that put me on the edge of my seat immediately. I mean, I clued into that very quickly. I still didn't understand that that was the reading his rights. Even after I heard what we were there for, I didn't connect those two. That didn't come until probably much later because I had to sort of digest that. ....

(My son) has never been in the court system. I have never been in the court system with [redacted text] my children. To me, that's all very foreign; ... I didn't understand what we were going to be talking about. I just understood the term “sexual assault”. When I heard that, I knew that this was not Cdt H and his harassment. This had nothing to do with that. At that point, I kind of wondered why I didn't know about that before hand. I certainly never would have showed up there by myself or not (my son) and I by ourselves. Something like that, you definitely want to have legal counsel with you, I think.Footnote 140

Q: At what point did you understand that he was there as a suspect? A: When Cpl Dyck said that, when he used those words, that “You're a suspect in the sexual assault that happened at the Vernon Camp” or whatever his language was. ...I mean the language was very clear that (my son) was the one that they thought had done this.Footnote 141 (Emphasis added)

74. The evidence demonstrates that Cpl Dyck viewed CS as a suspect, if not the prime or only suspect in his investigation of the complaint of Cdt B. An important issue is whether CS knew he was a suspect and when he first realized that he bore this designation. Cpl Dyck was questioned at the hearing on this subject.

My understanding was that (CS) knew that from our discussion earlier...Q. What led you to believe that he knew he was a suspect? A. From my discussion with him the day before, and from the fact that he had already been talked to by someone in cadet camp and written a statement regarding a sexual assault.Footnote 142

75. However, referring to the transcript of the video-interview of CSFootnote 143 where Cpl Dyck is quoted as saying to CS “I'll let you know exactly what is going on here. I don't know exactly how much you know about why you are here”, the Corporal was asked by Commission Counsel:

Q. Can you reconcile this with what you have just told the Chairman? Why are you wondering on October the 8th how much (CS) knows about the reason why he is here if you have already told him that he's investigated for and incident of a sexual nature? A. Because he's a young person. I'm giving him every opportunity to make sure he understands it, not that we talked about it once on the phone, but that there's no doubt that it wasn't another incident he's thinking of, that it was this incident. I'm trying to make sure that he understands which incident in case there is any confusion in his mind.

Q. What confusion could there be? A. Personally, I don't know if this is the only incident he may have been involved in. I don't know that he hasn't done this before, again, since, but I want to bring him back to this one incident. So, when I said on the phone “an incident”, I want to try and focus on it a little bit more to make sure there's no doubt which one it was.

... In fact, this is giving him the opportunity, the interview, to tell me about it. He might not know anything about it if he truly was innocent. Therefore, that would come out during did (sic-the) interview and he would be confused about it. So, I don't know how much he knows until we get through it. ...but if he really was innocent, then what we're saying is I'm assuming he's guilty and I'm not doing that. I'm here to interview him to find out for sure. I have a witness who says this is him. I believe that witness. However, I am open to the possibility that there was another option that he doesn't know about because he wasn't involved, and I hope the interview will clear that up one way or the other.Footnote 144

76. Commission Counsel pressed this point:

Q. Therefore, you do disagree with the potential interpretation of that passage, which would stand for the fact that if you are wondering on October 8th how much he knows is because you haven't told him yet why he's there? A. Yes, I disagree on that. I frequently start with something like that, 'I'm not sure how much you know', I'm (sic) don't know how much you remember. When I interview people I frequently do that, just sort of to ease them into it and to make sure we come back to that so that I have on the record him knowing exactly what we are talking about and we don't just start assuming it...I want to know that he knows what we are there for.Footnote 145

77. Sgt Niclaes also testified about the beginning of the interview with CS but from the perspective of the video monitoring room where he was watching with C the interview on video. He stated in evidence:

Once Drake read the jeopardy, CS's jeopardy, C made either a comment or I heard, because she was behind me, being shocked and surprised of the allegations that Drake had mentioned. ...She had made comments...she was shocked and she had made comments. I didn't make notes. ...I know she was shocked and I think she went and stopped the interview.Footnote 146 (Emphasis added)

78. The passage from CS's interview transcript, referred to aboveFootnote 147, was put to Sgt Niclaes and he responded:

That's a jeopardy, yes. Q. So C was surprised? A. Yes. She was shocked and I can't remember the words she used. ...Whatever was said behind me, her face, expression, I don't know. ..I wasn't focusing on that. We allowed her to watch the interview and that's it. Q. From your observations did you conclude that she was reacting like a person hearing this for the first time? A. Yes.Footnote 148

Q. You answered to the Chairman that it was obvious when sexual assault was mentioned that she wasn't aware that the interview had been set up for about an incident relating to a sexual assault? A. That's right. Q. That you are sure? A. Oh yeah. Q. There's no doubt in your mind? A. No, it's just the way she responded behind my back. Q. And that was your impression back then? A. Yes. Q. As soon as she reacted, you understood that she wasn't aware of the true nature of the interview? A. That's right.Footnote 149

Q. Isn't it a police practice not to betray too much about an investigation so as to not scare off...A. It is a police practice not to go in a broader sense when we want to interview somebody, yes. Q. So, in a sense, that's why I was suggesting to you the fact that she would not have known the nature of the interview is not surprising, given that practice that we have alluded to? A. That's right. Q: She had the reaction. What happened? A. I think subsequently she wanted to go and talk to her son.Footnote 150 (Emphasis added)

79. C also gave lengthy evidence at the hearing with respect to how she felt compelled to intervene during the interview, especially before the real questioning had begun. She was asked, as has been seen above, at what point she understood that her son was there as a suspect. She answered:

When Cpl Dyck said that, when he used those words, that “You're a suspect in the sexual assault that happened at the Vernon Camp” or whatever his language was. ...I mean the language was very clear that (my son) was the one that they thought had done this.. Q. Did you make any comment at that point in time to Sgt Niclaes? A. No, no, I don't think so. It was a few minutes after that--I didn't really have a lot of chitchat with Sgt Niclaes. Just when I wanted to ask (my son) myself whether he had done this sexual assault or he knew anything about this sexual assault, then I just asked Sgt Niclaes, I just told him that I wanted to speak to (my son). He was writing in another notebook and I think he said to me that he would have to shut everything down, but he would go tell Cpl Dyck first that I wanted to speak to (my son).Footnote 151

I wasn't angry. I think I was, if anything, I was shocked. ...It was just “I want to speak to (my son)” and that was it. ...I was sitting down but I was on the edge of my seat...(Niclaes)...closed his little notebook and he walked down to that hallway and I think he rapped on the door.Footnote 152

80. C spoke with her son in the interview room and he told her of his conversation at the camp with Capt Thoms and that he wrote a statement for the Captain. She continued during her testimony to state that she asked her son:

Did you do this?” and he said “No, I never did. I never left my barracks. I don't know what they are talking about. I never had anything to do with it.” He was a bit tearful at that point. ...I said (in the interview room) “...well, look, this is no small thing. This is in fact a huge thing that can follow you for the rest of your life and we need to be very careful about this and how we are going to handle it. So, do you think that ...we should contact a lawyer now or what do you think we should do?” We sort of chatted about that for a minute or two. He said that he just wanted to answer the questions. He didn't feel that he had anything to hide...that he didn't feel that he needed a lawyer at this point. ...So, he would just see how it went...

At this point I was sort of more concerned about having him regain his composure and did he think he could go on ...I wanted to know in my own mind ...that he recognized what this was and that I needed to know whether he had been involved with it. He was very forthright and said that he hadn't. ...Again, he said “I didn't have anything to do with it, I don't know anything about it.” We'll just answer a few more questions, see how it goes, and then maybe that's going to be the end of it. That was it.

Q. Were you comfortable at that point or satisfied that he could continue on with the interview? A. Yes, I was because the real sort of questions hadn't even started at that point. Cpl Dyck had barely just said what it was he was there for. So I thought (my son) would be able to answer the questions. He was at the camp. He would know what went on and we would see. ...I didn't feel that they were going to handcuff him and drag him away that afternoon. You know, that would have frightened me into doing something different. But, still, at that moment, I thought we were just answering questions.Footnote 153

Q...it was clear to you at that stage that your son was being considered a suspect in the sexual assault? A. Well, a suspect, but the tone changed later on. At that point it was just “We have some questions.” It was very low key, I thought. But, later, after that intervention, when we got going again, and it went from “You are a suspect” to “We know you did it!” that was a total change.Footnote 154

81. Upon resuming the interview after C's first intervention and after obtaining some preliminary information, Cpl Dyck started asking questions about CS's sojourn at the cadet camp.Footnote 155 When broaching the subject of the sexual assault on Cdt B, the Corporal is met with a series of emphatic denials from CS.Footnote 156 Undaunted, the Corporal presses on with the questioning until there is another knock on the interrogation room door and C intervenes for a second time.Footnote 157

82. C explained why she intervened for the second time when the tone and line of questioning changed:

So, you know, time was ticking along, and then the tone changed, as I mentioned. So it was no longer that you're a suspect, which to me is, you know, you're a suspect, well, maybe there's three other people that are suspects. I mean, at that early stage I don't know how many people are involved in this thing. I don't know anything about the victim, I don't know anything about where it happened on the base some place or on the camp. But I don't really have any details and (my son) has asked for this information as we're going along, and none of it is being provided to him.

So, when it changed from you are a suspect to we know you did it and we have a witness who saw you and we have proof that you did it, then that entirely changed the entire interview. I thought at that point we are way over our heads and I thought we definitely better have a lawyer at this time. This is definitely time to have a lawyer.

So, I said to Sgt Niclaes that I wanted to speak to (my son) again. At the second intervention, I had the impression that he was much slower at reacting. Now, that could be my own anxiety now, but it seemed to take forever to close that little book and to put our pen down and to stand up and to push our chair in. I was, like, seeing every minute detail, and walking down that hallway, knocking on the door, and then chitchat with Cpl Dyck. I mean, I can't hear that from where I am. And then come up the hallway again and tell me that he's going to shut everything down and slowly turn that knob and turn this other thing.Footnote 158

By this time I was standing up because I just couldn't sit any longer to wait. So I was standing up. Cpl Dyck came out and he was standing by that counter, and I went to him first and I said, the tone of the interview has changed and I'm not happy with it, that we came in here freely to answer questions. We didn't know what we were here for, but we found out after what we were brought here for, and (my son) has gone from a suspect to now you have proof that he did it. But you're not giving us any information, but you're saying this over and over, so the tone has absolutely changed. We're going to now get a lawyer.

He (Cpl Dyck) said, (CS) will have to say that he wants a lawyer. I said, okay, fine. So I went down to the room and (my son) was still sitting there in the same chair. I just said to him, you know, (CS) things have changed. Have you noticed that things have changed? He said, yes. I said, you've gone from being a suspect to now we have proof that you've done it and, you know, this is turning into hard ball now and I really think that we should have a lawyer. What do you think about that? And he said I agree, I think we better have a lawyer.Footnote 159

83. When she emerged from the interrogation room, after having spoken to her son, C spoke to the two NIS investigators and advised them that they would like to have a lawyer. The Corporal said that he would confirm that with CS. C went into more detail of her conversation with Cpl Dyck during the second intervention.

I told him (Cpl Dyck) flat out that the tone had changed, that the questioning had changed, that the purpose of us being here had changed, that he had clearly gone from being a suspect to now being '(CS) had done it', and in the light of that, we needed to have a lawyer, this is as far as we are prepared to go.Footnote 160

84. Cpl Dyck then advised C that he would confirm with CS on tape his desire to speak with a lawyer.

85. Cpl Dyck testified at the hearing with respect to the second interruption by C. The reason for this intervention was that “...She said she wasn't happy with the interview, words to that effect, and that she thought (her son) should talk to his lawyer or that he wanted his lawyer.” The Corporal was asked why he did not stop the interview there and his response was because he wanted to go into the interrogation room and confirm that that was what CS indeed wanted.Footnote 161

86. In conclusion, based upon a review of the evidence, it is very clear that, when CS was taken into the interview room by Cpl Dyck and his mother ushered to the monitoring room, neither had knowledge about the true purpose of the interview or of the true nature of the allegation and accusation that the Corporal was going to make against CS. The evidence of C and her son is quite consistent in this regard and very credible. The evidence of Cpl Dyck, when he attempted to explain the apparent confusion by CS and his mother concerning the reason for the interview, was ambiguous and patently improvised in recollection without the benefit of any notes. As discussed earlier, the legal effect of the tactic or, euphemistically, “technique”, employed by the Corporal to have CS attend the interview was to effectively downplay the jeopardy that the youth was in during the interrogation process, lull him and his mother into a false sense of security and persuade them not to seek advice from counsel before attending the RCMP Detachment. As such, neither C nor CS were clearly aware of CS' jeopardy until the interview commenced. The true reason for the interview should have been clearly explained to C and CS, at the very latest, at the outset of them arriving at the Fox Creek Detachment on October 8, 2004. This conduct was deliberate, seriously misguided, and, may arguably have had the impact of breaching the Charter rights of CS. It also had the potential of imperilling the admissibility of any statement that may have been of value to the prosecution.

5. INVOKING THE RIGHT TO COUNSEL

87. The law in Canada with respect to a suspect being interviewed by the authorities and who states that he or she wishes to exercise their right to consult with counsel has been clear for twenty years. In Regina v. Manninen, (1987) 34 C.C.C. (3d) 385, (S.C.C.), Lamer J. stated at page 391-393:

In my view, s. 10(b) imposes at least two duties on the police in addition to the duty to inform him of his rights. First the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. ...Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel....Immediately after the respondent's clear assertion of his right to remain silent and his desire to consult his lawyer, the police investigators commenced his questioning as if the respondent had expressed no such desire. ...While a person may implicitly waive his rights under s. 10(b) the standard will be very high.

88. In Regina v. Hebert, (1990) 57 C.C.C. (3d) 1 (S.C.C.), Justice McLachlin stated at page 36:

The guarantee of the right to counsel in the Charter suggests that the suspect must have the right to choose whether to speak to the police or not, but it equally suggests that the test for whether that choice has been violated is essentially objective. Was the suspect accorded his or her right to consult counsel? By extension, was there other police conduct which effectively deprived the suspect of the right to choose to remain silent, thus negating the purpose of the right to counsel?

89. McLachlin J. continued at page 37:

The state has the power to intrude on the individual's physical freedom by detaining him or her. The individual cannot walk away. This physical intrusion on the individual's mental liberty in turn may enable the state to infringe the individual's mental liberty by techniques made possible by its superior resources and power. (Emphasis added)

90. And at page 38:

The right to silence conferred by s. 7 reflects these values. The suspect, although placed in the superior power of the state upon detention, retains the right to choose whether or not he will make a statement to the police. To this end, the Charter requires that the suspect be informed of his or her right to counsel and be permitted to consult counsel without delay. If the suspect chooses to make a statement, the suspect may do so. But, if the suspect chooses not to, the state is not entitled to use its superior power to override the suspect's will and negate his or her choice. (Emphasis added)

91. Further, at page 39 it is stated: (Once it is established that the suspect possesses an operating mind):

...the focus under the Charter shifts to the conduct of the authorities vis a vis the suspect. Was the suspect accorded the right to consult counsel? Was there other police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not? (Emphasis added)

92. Finally, at page 41 it was said:

When the police use subterfuge to interrogate an accused after he has advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence: the suspect's rights are breached because he has been deprived of his choice.

93. Because youths have less knowledge and sophistication than adults, they are less likely to appreciate the consequences of making a statement to the police. Section 146 of the Youth Criminal Justice ActFootnote 162 governs police questioning of young persons and sets very high standards for a waiver of rights to take place.

94. The videotape and the transcript of the interview of October 8, 2004 disclosed that Cpl Dyck referred to the opportunity that CS had to speak to his mother during the second intervention and added:

I know that she isn't happy with the way things are going. We are trying to get as much information as we can here in the investigation. From you, I want to know now if we can continue this, if you would like to see a lawyer. ...CS: I would like to see a lawyer. Cpl. Dyck: If you want to talk to a lawyer, you can do that. Just so you know, we are going to continue our investigation. All right? The outcome of it is still up in the air. Whether you provide a statement through your lawyer or not, that won't change the fact that the investigation is going to be continued until we determine whether it is worth pursuing charges or laying charges. CS: Okay, that's fine. Cpl Dyck: All right? Do you have something else that you want to add? CS: Yeah. This is not fair. You are accusing me. Cpl Dyck: Okay. I'm trying to find out what's going on. CS: I told you everything I know.Footnote 163 (Emphasis added)

95. C then informed the Commission of what transpired after CS told Cpl Dyck on tape that he wanted to see a lawyer:

Then I sort of thought, okay, that's going to be it. But it wasn't. I mean, he hunkered down for the afternoon and even Sgt Niclaes seemed to be fairly comfortable. He was back in his chair, up against with his little book open like they were going to carry on.

I kind of thought, okay, you know, it kind of took me by surprise. And I thought, okay, well, where are we going to go with this thing? As I'm watching this, I'm waiting and I'm waiting and waiting for this to finish, but, you know, he's saying something and (my son) is responding, and he's saying something and he asks a question and (my son) responds and they just keep on going, and the ball gets volleyed back and forth. It was like, yes, I confirmed that you want a lawyer but so what, I'm not stopping this thing, I'm just going to carry on doing what I want to do.Footnote 164 (Emphasis added)

96. C indicated to the Commission how she then put an abrupt end to the interrogation:

I just stood up and I walked down that hall and I pushed open the door. As you can see from the video, that door had a problem. It was scraping and all kinds of problems and I actually had to push on it to get it open. Probably Cpl Dyck thought I was coming after him or something, but anyhow, I had to push on it to get it open and I just said, (my son), you're coming with me, we're finished, we've answered all the questions and everything for today and let's go. (My son) walked out with me.Footnote 165

Sgt Niclaes was still sitting at the video thing because, I mean, it was fast. Once I decided this wasn't ending, it didn't take me long to get down to the that hall and get (my son) and get out. I mean, the whole thing was probably not even a minute. So he was still in there. Maybe he thought I was still sitting there, I have no idea. When I came in there, I said, this is not a Nazi regime. I mean, I'm not proud of saying that, but that's what I said. And I took my glasses and my car keys and I left.Footnote 166

97. CS explained in his testimony why he remained in the interrogation room after he had requested to speak to a lawyer:

Then he (Cpl Dyck) asked if I had anything else to add... and then I said it wasn't fair because he was accusing me of something that I didn't do. And it just went on.Footnote 167 (Emphasis added)

98. CS explained that he was angry at this point. He was asked if he wanted to answer Cpl Dyck's questions, to which he responded:

...he asked me if I had anything else to add and then after that I was explaining why I thought it wasn't fair. So, in a way, it was yes, because I was explaining myself why I thought that the interview wasn't fair because that he was accusing me.Footnote 168

99. From the time CS advised Cpl Dyck that he wanted to speak to a lawyer to the end of the interrogation, approximately 18 minutes had elapsed and approximately 40 questions were asked of CS. In these final 18 minutes, CS was thinking that he just wanted to go home. He knew the door was unlocked,

...but in a way it felt that I couldn't leave because I still wanted to defend myself, and when Cpl Dyck was saying that we know it's you and we have proof that it's you ...then I felt that I had to defend myself. Q. Did you feel obliged to answer the questions? A. In the purpose of defending myself, yes. ...He (Dyck) kept repeating himself that he knew that I did it. It felt like he was fishing for me to finally just break and say, 'fine, I did it' or something like that. Q. Did you feel intimidated by Cpl Dyck? A: Not really. Footnote 169 (Emphasis added)

100. He concluded by saying that it was his decision to stand up and leave. He was asked why he did not do that before and his response was:

Because before I was defending myself. That's what I do. When people start accusing me of something, then I get defensive and then I just stay. Q. ...are you saying that you felt that you had something that you needed to say? A. To an extent, yes.Footnote 170

101. Referring to the words of Cpl Dyck as recorded on the video tape of the interrogation, he was asked: “...There is no reason for me to believe that you haven't (committed the offence). And that's what I'm looking for here right now” asked CS his reaction on hearing those words. CS answered: “It felt that everything that I had said to him (Dyck) went through one ear and out the other...Footnote 171 (Emphasis added)

102. Under cross-examination, CS confirmed that Cpl Dyck did not force him to remain in the interrogation room but due to the nature of Cpl Dyck's questions, he felt he had to respond. CS explained:

He didn't force me. He wasn't holding me down or anything, but when I get accused of something, then I get very defensive about how I feel and something like that. So, if he kept asking me questions, then I felt that I had to stay in the room and answer his questions because that's just how I get when I get defensive.Footnote 172

103. Cpl Dyck was questioned at the hearing about why he did not terminate the interrogation immediately upon CS invoking his right to counsel.

Q. But when he answered you at line 22 “I would like to see a lawyer”, why did you carry on? A. Because I wanted to make sure that that's what he had to say and not what his mother told him to say, that's what he really wanted. ... I believe at that point I stopped to wait to see if he was going to leave and he didn't leave. So, I talked some more. And he stayed to listen and continued on. Q. And this is a technique that police investigators are taught. ...? A. That's correct. Q. What's the purpose or what's the theme underlying this attitude during the interrogation? A. This allows him the option to go, but it also allows him to stay and talk if he's unsure whether he wants to leave or not. Q. Was he unsure when he said “I would like to see a lawyer”? How clear can that be? A. He stayed and he talked some more. So, in my opinion, he apparently was unsure that he wanted a lawyer. He was offered an opportunity. I did nothing to prevent him.Footnote 173

104. Cpl Dyck was pressed by Commission Counsel to explain what he was trying to accomplish by continuing to question CS after he so clearly expressed a wish to consult with counsel. Counsel suggested that the Corporal was attempting to forestall the inevitable end of the interview. The Corporal answered:

I was trying to learn the entire details of the incident, yes. Q. Despite the fact that he had cued you on the fact that he wanted to see a lawyer? A. That's right. He did say that he wanted to see a lawyer. And when I again told him that he could go see a lawyer, he didn't leave. Q. Did the fact that he was 17 have any bearing from your point of view of how you were going to handle such a situation? A. He seemed very knowledgeable and understanding. I believe he's even testified that he's taken classes in law. ...he seemed very intelligent to me. ...I wasn't concerned that he didn't know he could go see his lawyer. In fact, I repeated he could. ...That was some of my training during my MP trainings.Footnote 174 (Emphasis added)

105. Cpl Dyck clearly chose to ignore that he was dealing with a 17 year old high school student and failed to pay special heed to the cautions required when dealing with young persons.

106. Sgt Niclaes also testified about the time during the interrogation, after CS expressed a desire to speak with a lawyer and eventually got up to leave. He was questioned:

Q. ...but at some point do you remember that Cpl Dyck was using vague terms that would bring CS maybe to believe that there was more evidence than you actually had? A. Yes. Q. Did you consider this to be appropriate or inappropriate? A. Yes, appropriate... It's another technique to make at least the suspect talk, just to bring his attention. Whether CS was already standing up to leave the room or sitting down, we will have to watch the video, but by saying that, he stopped at the door to listen. Obviously we brought him his attention as to what Drake had mentioned. It's another technique to bring back your suspect to the table to be able to talk to him and to continue the interview.Footnote 175

107. The Sergeant was even more candid in describing what he has been trained to do once a suspect at an interrogation requests to speak to counsel:

Q. You had testified that when a person wants to leave or indicates they want to leave or when they say they want a lawyer, that one of the investigation techniques you're taught is to keep talking? A. That's right. Q. If the person says they want a lawyer and they keep talking, I take it you understand that what they say may not be admissible in a court of law? A. No, in my mind if I want to speak and he wants to keep talking, then he has something to say to me. Q. Do you understand from that point on what he says may be in jeopardy as far as using it in court, that you may not be able to use it in court? A. Perhaps, yes. It may not be used in court, but my way of seeing is if you want to speak to a lawyer all you have to do is get out and get up and leave. Q. What the person says from that point on, even if it can't be used in court may be valuable to your investigation? A. Yes. Q. And that's how you have been trained? A. Yes. If he wants to keep talking for me, it would be information I can obtain from him. (Emphasis added)

108. In failing to recognize a distinction between someone who invokes the right to counsel who has already consulted counsel and someone who has not, Sgt Niclaes' candour continued:

Q. When it gets to a point where they say I want to speak to my lawyer, have you ever been told there's a distinction between the person who has already spoken to counsel and one who hasn't? A. The distinction would be for me that I would still keep talking to him. Q. So there is no distinction? A. No. My only distinction would be that I would know from subject A that he had spoken to his lawyer, and subject B, he didn't speak to his lawyer but he was free to go. Q. You took courses on the Charter? A. Yes. It's been taught through our courses, yes.

Is the phrase “the duty to hold off eliciting information from a subject when he says he wants to speak to his lawyer,” is that a phrase that you've heard before, the duty of police to hold off? A. I've heard the phrase before, yes. Q. In what context? What does it mean to you or what did it mean to you back then? A. That means that I should stop and let him make his phone call and let him contact his lawyer.

Q. You understood that concept that you've just related to us at the time that you interviewed CS? A. Yes, I understood that concept. Like I said before, he kept talking, and to me it was just a tactic to just we gave him the chance to talk to his lawyer and after that he started defending himself. So to me it was acceptable for Drake to keep on talking to him. I think CS was old enough to say I don't want to talk to you any more, I'm getting up and leaving. Q. He was old enough. What do you mean by that? A. Seventeen years old. I think he's capable to understand. Footnote 176 (Emphasis added)

109. This same mindset was held by the superior to Cpl Dyck and Sgt Niclaes, WO Bergin. When pressed, he stated that he did not see any problem with what occurred with regard to CS after he requested to speak to a lawyer, as CS, in his view, stayed in the interview room on his own accord.Footnote 177

110. However, MWO Watson seems to have been more familiar with the law and the requirements on this subject of a suspect invoking the right to consult with counsel. He was questioned with respect to the policy of the Military Police Policies and Technical Procedures, Chapter 7, Annex E, Appendix 2 - Investigation Aid: Caution and Charter of Rights and Freedoms, paragraph 6 (found in exhibit P-35), which reads:

It is mandatory that the MP member immediately respects an arrested detained or suspected person's right to exercise their right to speak to counsel. No questioning of such persons shall take place subsequent to that person stating they do not wish to speak.Footnote 178 (Emphasis added)

111. MWO Watson testified that he did not see a conflict between that policy and what he saw of the CS interview when he first reviewed the tape. In hindsight, he noted that the best practice would have been to stop the interview. MWO Watson did note what he considered to be some ambiguity in relation to the policy as it applies to CS' interview in that CS never said he did not wish to speak with Cpl Dyck.Footnote 179

112. The last word on this subject of a suspect invoking his or her right to consult with counsel was had by Maj Bell, the Commanding Officer of NIS WR. He testified:

The substance of the specific complaint that he had not ceased the interview when the young person had asked to contact counsel, was also I observed that as well...Q. It is your opinion that it should have? A. It was and is. Q. And it was then? A. Yes, sir. Q. When you say that it's your opinion that it should have ceased, it was at the time when CS stated that he wanted to see a lawyer? A. Yes, sir. ...Q. Did you think that anything that you saw on that interview was putting into jeopardy the potential use of that interview by the prosecution? A. Absolutely. I thought after the young person had requested counsel any material obtained after that would be rendered less voluntary and quite likely would not be usable in a prosecution.Footnote 180

113. In considering whether CS was detained for the purposes of s. 10(b) of the Charter, the court in Regina v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.) and Regina v. Voss (1989), 50 C.C.C. (3d) 58 (Ont. C.A.) held that in determining whether a person who subsequently is an accused was detained at the time he was questioned at a police station by the police, the following factors are relevant:

  1. The precise language used by the officer in requesting the person to come to the station and whether the person was given a choice or expressed a preference that the interview be conducted in the station rather than in the home.
  2. Whether the accused was escorted to the station by an officer or came himself in response to a request.
  3. Whether the accused left at the conclusion of the interview or was arrested.
  4. The stage of the investigation: whether the questioning was part of the general investigation of the crime or whether the police had already decided that a crime had been committed and that the accused was the perpetrator or was involved in its commission and the questioning was conducted for the purpose of obtaining an incriminating statement.
  5. Whether the police had reasonable and probably grounds to believe the accused committed the offence.
  6. The nature of the questions: whether they were questions of a general nature designed to obtain information or whether the accused was confronted with evidence pointing to his guilt.
  7. The subjective belief of an accused that he was detained although relevant is not decisive because the issue is whether he reasonably believed that he was detained. Personal circumstances relating to the accused such as low intelligence, emotional disturbance, youth, and lack of sophistication are circumstances to be considered in determining whether he had a subjective belief that he was detained. (Emphasis added).

114. The case law indicates that this list is not intended to be exhaustive and the absence of any one factor is not determinative in a particular case.

115. As it pertains to the case of CS, it could be argued that he was under detention by the fact of his personal circumstances (he was a minor cadet of 17 years of age with no previous criminal or court experience; that he was in an RCMP station for questioning by MPs, who are authority figures in the military; and, that he arrived at the interview with his cadet uniform, a significant indicator of submissiveness on CS' partFootnote 181), the nature of the questions asked of him and the stage of the investigation in that the investigators were convinced that he was the perpetrator of the crime at the time of his questioning. If in fact CS was detained, his section 10(b) Charter right would clearly be invoked. However, for the purposes of this inquiry, I do not find it necessary to make a definitive finding in this respect. The simple fact that such an argument could be made successfully if the matter had proceeded to trial should be enough to caution against such similar conduct.

116. It could also be argued as per Justice Wilson of the Supreme Court of Canada in the Hebert case, that the right to silence could well predate detention and extend to the police interrogation of a mere suspect, thereby invoking CS' section 7 Charter right which embodies the right against self-incrimination. While I again do not find it necessary to make a definitive finding on whether the Charter rights of CS were breached for the purposes of this inquiry, it is important to note that the police conduct in this case could amount to a Charter breach.

117. I will say with certainty that Cpl Dyck, by continuing to question CS after he requested to speak to counsel to the degree of asking approximately 40 questions of CS over approximately 18 minutes after he requested to speak to counsel, was inherently unfair and in clear contravention of the Military Police Policies and Technical ProceduresFootnote 182 which makes it mandatory for MPs to cease questioning after an arrested, detained or suspected person exercises his right to speak to counsel. (Emphasis added) The Military Police Policies and Technical Procedures outlines policies and established standards to be followed by military police members. Such standards outlined in these policies are intended to meet or exceed current legal requirements and must be considered as obligations as asserted in the final submissions by counsel for the Attorney General on behalf of the CFPM. Suffice it to say, had this matter proceeded to trial, the admissibility of CS' statement would certainly be called into question.

6. CORPORAL DYCK

118. I listened intently to the testimony of Cpl Dyck at the hearing and closely observed his demeanor and attitude while giving evidence. I gave his testimony close attention, in particular because of his central role as the lead investigator, as well as the specific allegations and issues which arose in the course of this inquiry and which were directly attributed to him, such as:

119. I was also cognizant of the fact that Cpl Dyck had been sent on the MP Investigators Course shortly after he concluded the investigation, that his internship had been extended beyond the normal length, that he had ultimately been counselled in respect of this investigation and that, at the time of the hearing, he had been seconded to an RCMP investigation unit for almost one year. I was especially interested in the reaction of Cpl Dyck to some of the questions put to him by Commission Counsel and some of the suggestions made to him with respect to his investigation and interrogation of CS being deficient. I was expecting to hear from him that he was now much more attuned to proper investigation procedures and the law of evidence.

120. Regrettably, my observations during his testimony, and upon the conclusion of his evidence as he was leaving the witness stand, were that Cpl Dyck still seemed to be totally unaware of the effect of his acts or omissions during the investigation. It was apparent to me that the adverse comments or suggestions being made concerning all of the issues described in the previous paragraph seemed to have little impact on the Corporal. In colloquial terms, I could only conclude that Cpl Dyck “just didn't get it”, even at the end of his lengthy evidence. Amongst all of the MP witnesses he was singularly steadfast in his defence of the correctness of all of his actions, resorting in many cases to rationalizations which defied logic and common sense. His attitude throughout betrayed no room for thoughtful reflection or concern. He did not seem to realize or care how close his errors or omissions came to causing a serious injustice to CS and his family. He still appeared to be indifferent to the alarm and concern that he caused to CS and his mother and that they were put through this ordeal on very weak evidence, arguably no evidence at all.

121. These comments are made without prejudice to my conclusions that, at the time of the investigation, Cpl Dyck was not well supported in terms of training or supervision and his errors or omissions at that time are, in my view, somewhat mitigated by that fact. They may, perhaps, be considered by some to be overly harsh; but, I am compelled to share them out of a concern that Cpl Dyck's training and experience gained since the events in question, even the experience of this inquiry process, would not seem to have had much in the way of remedial affect on him. I have not been left with an abiding assurance and confidence that Cpl Dyck may not make some or all of the same fundamental errors in the course of future investigations. This causes me great concern. Cpl Dyck would be well advised to carefully read and heed the recommendations contained in this report.

7. CONCLUSIONS

122. In addition to Charter rights, common law principles and best police practices, the case law speaks of a broader requirement of “fairness” towards, among others, suspects in the criminal justice system. As such, the conduct of the NIS members must be considered in light of the concept of fairness. Was the treatment of CS and C fair in all of the circumstances? It is undeniable, in my view, that the requirements of fairness towards C and CS were not met.

123. What is even more troubling is the overall acceptance of the manner in which Cpl Dyck conducted the interview/interrogation of CS. All the witnesses who provided testimony during the hearing were asked about the quality of the interview and whether there were any shortcomings, particularly with Cpl Dyck continuing the questioning of a young person after he has asked to speak to counsel. The Corporal himself was asked:

Q. ...Is there anything you would do different today than you did over the course of the past two and a half years? A. I would keep better records of everything I have done. I know there's a number of instances where I have been asked about specifics and couldn't recall. I would try and look for more details, but I can't point to any one thing I would have done differently.Footnote 183 (Emphasis added)

124. Sgt Niclaes was questioned concerning his views of the interview of CS:

What was your sense of how it had gone in terms of respecting or not respecting the appropriate practices with respect to the right to counsel and all of that? A. I think all the rights, cautions were read properly. He had the right paperwork. Again, if he would have gone out of line in any way, I would have stepped in, and I felt throughout the interview that he stayed focused with the interview, that he never went out of line and I have no problem and no reason to step in and either take over or remind him that, hey, change your attitude or whatever. Q. So all in all, everything that went on during that interview from your perspective was appropriate? A. Yes. Q. That was your opinion then. Is it still your opinion now? A. Yes.Footnote 184

125. WO Bergin viewed the video tape of the interview conducted by Cpl Dyck with CS and testified that:

...it was choppy, but, for the most part, no, I didn't have any major concerns. He was satisfied that the types of questions and questioning tactics that were used were appropriate. He added that he viewed the tape with MWO Watson and stated “...I believe we were both on the same page that the interview was somewhat choppy; but, for the most part, there was nothing wrong with the interview”.Footnote 185 (Emphasis added)

126. When his turn came to comment on the quality of the interview conducted by Cpl Dyck with CS, MWO Watson testified that, at the time he viewed the tape of the interrogation, apart from concluding the interview was clumsy, he:

...did not find anything previously wrong with what had occurred. Did I find any gray areas? I don't recall thinking I saw gray areas and I don't recall seeing anything that would make me withdraw the submission made to the Crown.Footnote 186

127. In hindsight, of course, MWO Watson acknowledges that the interrogation should have terminated once CS requested to speak to a lawyer.

128. The last witness at the hearing to comment on the quality of the interview of CS was Maj Bell. He remarked that there was room for improvement on pretty much every level, and added:

I thought the interview was awkward. It was, in my estimation, an inexperienced investigator in over his head. Even little things like how he introduced the Charter issues and the young offender cautions and things like that, while within the scope of our policy I thought it was just not pretty to watch. It was awkward.Footnote 187

129. As previously noted, Maj Bell also testified that Cpl Dyck should have concluded the interview upon CS' request to speak to counsel.

130. In finding serious errors and omissions on the part of the military police members involved, I conclude it necessary to address the issue of compensation.

131. As a result of what was to C and CS a threatening and upsetting incident, following the interview/interrogation of CS on October 8, 2004, C retained counsel for her son which involved travel to and from Edmonton to her residence, a three hour drive each way. C further testified in relation to setting up the “safety plan” for her son that she insisted that he not work his part-time job during that period so as to ensure that he would have a responsible adult with him when he was to be charged criminally.Footnote 188 As a result, CS missed six to eight shifts during the two weeks that his mother was away from home for her work [redacted text]. Moreover, C reported that she had cancelled a three week contract to accommodate the originally scheduled hearing dates in March 2006; a contract which could not be re-instated when the hearing was adjourned at the request of the other parties. The September hearing dates again resulted in C having to forego a four week contract assignment. CS also had to take seven days off from his employment, without pay, for the March and September hearing dates.

132. It is evident that C and CS suffered financial consequences as a result of these events; most notably, in having to retain counsel and lost wages. As described in this Report and as found by this Commission, this is not a case of simple, minor errors in proper police procedure or a legitimate exercise of police discretion with which, at the end of the day, a court differs in its view of the evidence. While malice of any sort has not been found, the errors and omissions on the part of the involved military police personnel were egregious and, as allowed by several of the senior military police witnesses, but for the pre-charge screening process CS would have been charged. Fortunately, as identified by the Crown Attorney, there was no evidence to support such process to conviction. However, once done, certain consequences are inevitable and irreversible, particularly in the instance of a stigma laden charge such as sexual assault. C and her son had every reason to be concerned and react as they did, including retaining counsel. In all of these circumstances, the Commission is of the view that it is entirely reasonable and appropriate for C and CS to be compensated for any lost wages and out of pocket expenses; to do otherwise would be to continue to deny their status as victims. Moreover, particularly given the systemic reticence to accept and address the findings of the first instance investigation of C's complaint, such compensation should include consideration of expenses incurred by C and CS for this Commission's inquiry.

8. FINDINGS AND RECOMMENDATIONS

Finding # 7:

The Chair finds that the complainant and her son were not adequately informed of the reason for the CFNIS interview and as such the complainant's son was improperly influenced not to call a lawyer prior to questioning. The NIS investigators did not inform the complainant or her son of the real reason for the interview, nor that he was a suspect, thereby lulling them into a false sense of security and causing them to believe that legal advice was unnecessary. At a minimum, the reason for the interview should have been carefully explained to C and CS upon their arrival at the Fox Creek Detachment on October 8, 2004.

  • CFPM agreed with this finding.

Finding # 8:

The Chair finds that Cpl Dyck used inappropriate techniques in CS' interview/interrogation. The tactics or techniques that were used, while possibly acceptable for an experienced adult offender, were inappropriate for a seventeen year old high school student with no previous experience with the police or criminal justice system and in a case where the evidence was extremely weak. These techniques were highly “unfair” and would have potentially led to the exclusion of the statement in a court proceeding.

  • CFPM agreed with this finding.

Finding # 9:

The Chair finds that there was a failure to respond appropriately to the complainant's request to stop the interview with her son. This is the most serious deficiency in the interview process. Upon CS' request to speak to counsel, the investigators should have immediately terminated questioning of CS and ceased any attempts to elicit further information from him until such time as he has spoken with a lawyer. Their failing to terminate the questioning was in clear breach of Military Police Policies and Technical Procedures and arguably in breach of section 7 and 10(b) of the Charter and applicable common law principles.

  • CFPM agreed with this finding.

Finding # 10:

The Chair finds, based on his testimony at the hearing, that Cpl Dyck is still unaware of the import and consequences of his actions or omissions during the investigation.

  • In response, the CFPM noted: “Following counselling sessions in September 2006, the Detachment Commander advised that MCpl Dyck seemed to have an appreciation (1) that he had made a number of errors, (2) that he did not do a good review of the file before conducting interviews (especially regarding description), and (3) that the rights and protections afforded young persons under the YCJA must be clearly respected. It may be that any defensiveness shown during the public interest hearing was due in part to inexperience and a misperception that he was under attack.
  • This finding was based on my observations during the hearing. I acknowledge and accept the CFPM's statement that Cpl Dyck, who was counselled shortly after the hearing concluded in September 2006, displayed to his Detachment Commander an appreciation of his errors.

Recommendation # 9:

The Chair recommends that Cpl Dyck be counselled and provided refresher training on the techniques to be used in interview/interrogations, Charter rights and the special cautions required when questioning young persons.

  • In noting his acceptance of this recommendation, the CFPM further noted it has been actioned: “As indicated in the response to Finding 10, MCpl Dyck was counselled. Further, he underwent the General Investigation Techniques course and OJT with RCMP K Division, all of which together covered the recommended areas.

Recommendation # 10:

The Chair recommends in light of the apparent confusion regarding the interpretation and application of the policy regarding the conduct of a witness interview where a witness has invoked the right to counsel as set out in paragraph 6, Annex E to Appendix 2 of Chapter 7 of the Military Police Policy and Technical Procedures, that further direction be provided to all military police members to reinforce that there are limits on the application of interview techniques when faced with a request from a witness to consult with counsel. The distinction between a suspect who has already consulted counsel prior to the interview and one who has not ought to be reinforced.

  • In noting his acceptance of this recommendation, the CFPM wrote: “The required additions to the MPPTP will require extreme care in drafting, in order to be clear and comprehensive, yet not overly long and technical.

Recommendation # 11:

The Chair recommends that consideration be given to providing the complainant and her son, at the very least, compensation for lost wages and any out-of-pocket expenses so as to ensure that she is not financially disadvantaged as a result of the errors and omissions of the military police in this case.

  • In his Notice of Action, the CFPM wrote: “The CFPM, VCDS and CDS do not have the ability to settle claims on either a legal basis or ex gratia. Use of the passive voice in the recommendation does not indicate by whom the consideration should be given. The Director of Claims and Civil Litigation at DND/CFLA would be in a position to receive such a claim by the complainant and her son, along with any particulars as to lost wages and out-of-pocket expenses. Alternatively, the Assistant Judge Advocate General at Edmonton Garrison (closest to the complainant's ordinary residence) would be in a position to receive and determine legal claims to a limit of $25,000 on a legal liability basis, and $2,000 on an ex gratia basis. In accordance with DAOD 7004-1, we are apprising DND/CFLA of a potential claim against the crown.
  • While it is understood that the CFPM, VCDS and CDS does not have the authority to settle claims, the ability to support a potential claim as an appropriate gesture in the circumstances is distinct. As such, the Commission hopes that such support from the CFPM and the chain of command will be forthcoming if and when the complainant lodges a claim.

V THE CROWN BRIEF

1. INTRODUCTION

1. This section of the report will address the issues pertaining to the quality of the Crown Brief. More specifically, whether an appropriate, complete and accurate Crown Brief was prepared; whether the exculpatory evidence was appropriately documented in the Crown Brief; and whether the CFNIS investigators failed to disclose exculpatory evidence to the Crown through the Crown Brief.

2. With the above in mind, a question that must be confronted is: what are the required elements of a thorough, professional and complete Crown Brief? This issue was before The Martin Commission, headed by Mr. Justice Arthur Martin in 1993. The Report of the Commission is entitled “Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions”. It remains a leading authority on the issue in question and, while its immediate context is the post charge screening province of Ontario, its principles apply equally in a pre-charge screening jurisdiction such as British Columbia. Under the headline “Information required by the Crown for Charge Screening”, one reads at page 131:

The issue of what should be provided to Crown Counsel by investigators for purposes of charge screening is, of course, very closely related to the issue of what should be in the Crown Brief. The Committee has considered and rejected any sort of province-wide regulation fixing the required contents of a Crown Brief. ... In the Committee's view, a regulation on brief preparation could never adequately capture all that is necessary in every type of case, for a number of reasons.... Ultimately it is the Committee's view that the proper content of a brief is not a matter for a written regulation. Rather, it is a matter of education, judgment, and experience. The Committee's recommendation on what information Crown counsel should have in order to conduct charge screening reflects this conclusion, in that it requires not a specified list of items, but rather all the information necessary to accomplish the screening objectives, which, of course, will vary from case to case.Footnote 189 (Emphasis added)

In most cases, the information necessary to assess the desirability of a prosecution will exist in the police file. Thus, the screening process will simply be a matter of reviewing the relevant witness statements, occurrence reports...etc.Footnote 190

Crown counsel's duty to be duly diligent in obtaining information for charge screening must take account of the present nature of the relationship between the Crown and the police. Accordingly, Crown counsel is...required at the outset to review the material provided to him or her by the investigators. There is no initial duty to go behind the contents of these materials. Crown counsel is entitled to rely on the skill and judgment of police investigators to ensure that all relevant material is brought forward.Footnote 191 (Emphasis added)

Having made the inquiries that are necessary based on a knowledgeable review of the materials, and having been told by the police that all that is relevant has been provided, Crown counsel has discharged his or her duty. Any relevant material not brought to the attention of Crown counsel following (a request for further material) is a failing on the part of the police.... In essence, Crown counsel is required to review the materials carefully, rather than certify their completeness, and the completeness of the investigation. Ensuring that there is sufficient material to properly screen a case, and properly provide for disclosure, is, therefore, a matter of existing reasonable care and attention in the context of the working relationship that presently exists between the Crown and the police.... Further, expressing the duty in these terms recognizes the parallel obligations...placed upon the police to make full disclosure to Crown counsel.Footnote 192 (Emphasis added)

3. The approach advanced in the Report placing responsibility on the police to make full disclosure is supported by the simple logic that the Crown prosecutor is in no position to know what is in the hands of the police in respect of any particular file.

2. REVIEW OF THE EVIDENCE AT THE HEARING

4. The following is a summary review of the evidence that was taken at the Commission hearing that is relevant to the issue of the Crown Brief which was submitted to the British Columbia Crown prosecutor so that he could discharge his pre-charge screening function.

2.1 CORPORAL DRAKE DYCK

5. The first witness to testify on the issue of the Crown Brief was the author of the Brief, the lead investigator, Cpl Dyck. During examination by Commission Counsel, the Corporal identified a copy of the Brief as found in exhibit P-30 (which contains the complete CFNIS file as found in SAMPIS), commencing at page 58. He added:

This is the first Crown brief I had ever done for B.C. It was the first one I had been...since I had been at NIS...I had done different versions of Crown briefs (in the past). In preparation, I had the opportunity to go over the Crown brief, discussed it with, not specifically what I was putting in there, but generally what needed to go into it with Corporal Bonneteau, who was at the time the senior Corporal in our section and quite knowledgeable on these areas. So that I understood what content should go in there. Footnote 193

6. The Corporal was referred again to exhibit P-30 and testified that the actual Brief that he sent to the Crown is found at pages 58 to 62. The template for the Brief is the specific one for the British Columbia Crown and is the one that the Crown requires. However, this was not the only documentation that was sent to the Crown. Cpl Dyck spoke with an unnamed female Crown in British Columbia who described what material they would require. Cpl Dyck testified “...I included everything that the Crown had specifically asked for in that Crown brief.Footnote 194 It was suggested to the Corporal:

Q. Is it fair to say that you are in no position today to tell us what went to B.C. beyond those pages that we have in SAMPIS? A. Right. I don't recall exactly. I prepared it immediately after getting off the phone with her, and put it all together. It was whatever the Crown had wished. Q. And it's not documented anywhere what it is that---(was sent to the Crown)? A. I didn't have a copy of that. Once the Brief was put together, it eventually I believe was sent off by our evidence custodian. I don't know what kind of documentation he would have had on it specifically. Footnote 195 (Emphasis added)

7. Therefore, complicating the issue surrounding the Crown Brief is the ambiguity surrounding what documents, if any, were forwarded to the Crown together with the five (5) page Crown Brief. No clear evidence, such as a file or registrar copy, exists in the record in order to state with certainty exactly what was sent to the Crown's office.

8. When questioned on how the Crown Brief was “submitted to be forwarded” to the B.C. Crown prosecutor's office on November 30, 2004, indicated at page 113 of exhibit P-30, Cpl Dyck responded:

Right. Normally everything is vetted and goes through the Warrant (WO Bergin). So, I believe that's what happened in this case. He would have reviewed it, and from him I don't know if he gave it back to me to hand to...one of the staff. ...That's where I would have submitted it to make sure it was all vetted and complete and then taken it. You see, I don't know myself if it was the Warrant or myself that had dropped it off at the front to be mailed out.Footnote 196

9. With respect to the synopsis that was included in the Brief for the Crown, Cpl Dyck admitted to the authorship of this document, but, in preparing it, he also said that he would have consulted with Cpl Bonneteau and Sgt Niclaes, and WO Bergin would have been involved in the vetting.Footnote 197

10. With regard to the issue of what was included in and with the Brief that was sent to the B.C. Crown, the Corporal received some assistance from exhibit P-30 at page 61 where some boxes are checked off with respect to some items.

Q. There is information there that may help you (Dyck) ascertain the kind of documentation that may have been attached to the Brief. Those are the square boxes that we see out there. A. Yes. Some of the things that were included are indicated on here and they are accurate. I did include statements made by all the witnesses, copies of those...and they were attached to the file as well and sent with that. ... I included all the written statements I had.Footnote 198

11. Cpl Dyck believes that he sent a copy of the statements of Cdt B and Cdt H, but he is not sure if he attached a copy of the video statement of CS. He is also not sure if he sent a copy of the video tapes of the interviews to the Crown prosecutor. “... It was through consultation with them (Crown) what they expected to see in it (the Brief). So I gave them exactly what they were asking for.Footnote 199

12. Commission Counsel questioned Cpl Dyck further as to whether he included in his Brief for the Crown the various discrepancies with respect to the descriptions given to the NIS investigators by Cdt B with regard to the perpetrator. The Corporal was referred at the hearing to the list of inclusions in the Brief that have been checked off on page 61 of exhibit P-30, and asked particularly if the narrative of the case provided by him to the Crown would have included the various observations of the height of the assailant given by Cdt B. Cpl Dyck had to agree that there is nothing in the narrative/synopsis of the Brief with regard to the descriptor of height, but he added that would have been apparent if the Crown read the witness statements which would have included a reference to the assailant's height.Footnote 200

Q. But my point being there is nothing in the documentation that we see there cuing the Crown on the differences with respect to the height? A. On page 62, no, there is nothing on that that I can recall. ... The boxes were checked here to indicate that I included the statements, and when I include statements I include that first page that has all their details on it. Q. But that doesn't tell us whether or not such a page about CS was there? A. I would have included it under the broad category of witness statements...all copies of written statements made by the witnesses. I would have included his... Footnote 201

13. One of the most important exhibits was referred to at this juncture in the hearing; namely, exhibit P-31 entitled “Video/Audio Interview Checklist”. Cpl Dyck agreed that he completed this form at the beginning of the interrogation of CS, he was then asked:

Q. When we look at page 61, this information would have been provided in the broad category that we have in the right column or the right side of the Crown Brief boxes of information that this would have been provided? A. Right. I believe this was provided. ...I'm certain I would have included this.Footnote 202

14. With respect to the Synopsis in the Crown Brief, exhibit P-30, page 62, the Corporal agreed that he did not include in his narrative the descriptor that Cdt B provided that the perpetrator had a birth mark on his face.Footnote 203 The Corporal was asked by Commission Counsel:

Q. In your sense was the Crown Brief that you provided alerting the Crown to the kind of challenges that there was in this case with respect to identification? A. I don't know if he would have been alerted from this alone. Again, with the other information that was included in there, the copies of the statements that were provided by the victim and reading this, if you read it in totality, I think you would have been able to pick up on some of that. Q. Didn't you think it was your responsibility...to go further and alert the Crown that it was a live issue, that the circumstances of the identification were unsatisfying? A. ...my understanding was that what was in here was appropriate, the information they needed combined with the other notes that were included..Footnote 204

15. In a further attempt to grasp the elusive issue of what Cpl Dyck had included in the Crown Brief, he was asked later in the hearing:

[Re. The Crown Brief, P 2, Tab 47 - he had provided this material to the Commission's investigator previously] Q. Do you recall if this was what you felt constituted the Crown Brief that was actually sent to the Crown's Office? A. This is what I could find that was related to it. I believe that I indicated at the time to them (Commission investigators) that I was unsure exactly what the Crown had wanted, that I talked to the Crown on the phone and got precisely what he wanted, but I couldn't recall and this is what I could provide them at the time, that I was certain that at least this went. I did know more went (to the Crown in the Brief), however, I couldn't say what that was without having Crown confirm what they had asked for.Footnote 205 (Emphasis added)

16. During cross-examination at the hearing, Cpl Dyck was again questioned as to the information that the Crown was notified in the Brief at exhibit P-2, tab 47, the copy provided to the Commission investigator. .His attention was drawn to page 5 of the exhibit, the page where there are boxes to check off. He replied that when he checked off the box(es) that refer to written witness statements, this means that “...all copies of written statements made by the witnesses attached.” He also checked off the box “Did the Acc. make a statement (audio/video only)Cpl Dyck testified that he typed these latter words, thereby “...informing the prosecutor that way that this evidence existed.Footnote 206 The hearing evidence continued:

Q. So you had provided in this report the B.C. Prosecutor certainly with the information that CS had been interviewed, it was videotaped and that he had denied the sexual assault? A: Yes, that's correct. [Referring to Exhibit P-31 - the video/audio interview checklist that Cpl Dyck filled out for the CS's interview] “I don't believe I would have sent the front page of the audio interview checklist [to the B.C. Prosecutor]. However, everything starting on the written statement page where it marks off his description and that along with his rights, they all would have been sent.” Q. Referring again to Exhibit P-2, tab 47, which is the Crown Brief, that's what was forwarded to the B.C. Crown? A. Yes, this and any other additional information that they had requested. Q. Do you recall the date that was forwarded? A. No, I don't.Footnote 207

17. During further cross-examination on the subject of what information was brought to the attention of the B.C. Crown and referring to exhibit P-2, tab 47, page 5 where it is stated “CS continued to talk and stated that he felt another cadet, Cdt H, may have been mistaken for himself, and been the individual who sexually assaulted Cdt B”, the Corporal testified that he brought that to the Crown's attention.Footnote 208

18. The Corporal also gave evidence that he did not see any evidentiary value to the information provided by Cdt J that nobody attended at his (Cdt B's) bed the night of the alleged assault on Cdt B and, therefore, the Corporal did not include Cdt J in the Crown Brief as a witness.Footnote 209 When asked:

Q. ...Do I have you correctly, that if you have an individual who is placed such that they could have been expected to have seen or heard certain events and, simply because they didn't, they're not a witness? A. Right... [H]e wasn't the one who was directly beside him (Cdt B's bunk). He was located in another place in the room. He said he was awake at the time, but I don't think he was awake all night and at that time in the morning, we can't be certain he was awake. So, I didn't give it any more weight than that, that he probably missed him. I mean, my understanding of the Crown Brief of B.C. is that they review all the evidence we provide...and if they felt there was anything else in there, such as this, we would have been notified...

Q. But I note that Cdt J's name does not appear in the Summary that you provided to the Crown. A. No. Q. So, the Crown wouldn't be aware...A. On that point, no, not unless they had the entire report. At the time I prepared the Crown Brief, I had forgotten about him. I just assumed earlier that we would send the whole report, but when that's not what they asked for I had totally forgot about it and it slipped my mind.

Q. Just to be certain, because of this chain of events, the Crown wouldn't be aware, whether you believed Cdt J or not, that there was a potential witness that could come and assert 'I was awake'. A. Right. ...It was my understanding initially that I would send the full report and I didn't know until speaking with the Crown I wouldn't, and by that point, I had already discounted him and it slipped my mind to add him (Cdt J)...Footnote 210

2.2 SERGEANT ERIC NICLAES

19. Sgt Niclaes, on his part, disavowed any involvement in the preparation of the Crown Brief, he never saw it, nor, despite Cpl Dyck's evidence, was he consulted about the content Footnote 211

2.3 WARRANT OFFICER JAMES BERGIN

20. WO Bergin was asked at the hearing what role he played in the preparation of the Crown Brief; in being so asked he was referred to exhibit P-30, pages 58 and onward. He replied:

My role in the Crown Brief would be to vet it, check to ensure that it's complete, and then forward it on to MWO Watson. ...According to the front page of this report it says the officer who approved the report was myself, so I'm assuming that I did it. Footnote 212

21. He was questioned further about the material that accompanies the Brief to the Crown:

Q. What's normally sent, then, in your experience? Are statements attached or A. We usually send the report or the Crown brief report. We'll attach copies of any written statements from anybody that was involved to the prosecutor, and depending if the prosecutor wishes it or some prosecutors ask for transcripts, some ask for different tapes or so and so forth. For the most part, most civilian prosecutors that I have run into only ask for the hard copies. They don't ask for the video/audio tapes.

Q. You indicated you don't recall actually specifically reviewing this Crown brief. Is that what I understood? A. That's correct. Q. If you had seen any concerns in the Crown brief, would you have forwarded it up the chain to the Crown's office, if you saw something that caused you concern? A. Absolutely not. Q. So is it fair to say that there wasn't anything in here at the time that caused you concern? A. That's correct. Q. After the knowledge of disclosure in this case and after having throughout this hearing, is there anything in this Crown brief today that would cause you concern? A. Nothing that glares out at me, but if you actually ask me a specific question, I might be able to be more accurate.

Q. Do you find it acceptable that any discrepancies in the description provided by Cdt B regarding CS's description were not noted, such as the birth mark? A. Correct. Q. Do you agree that was an important detail that should have been included in the Crown brief? A. Yes Q. Do you agree that the omission, then, in the summary, in the Crown synopsis which we're looking here at page 62, do you feel the birth mark is something that should have been included in this synopsis? A. Yes, I would consider it relevant.Footnote 213

22. When asked how the Warrant Officer vets the Brief, he replied:

I checked the Crown brief, sir, to ensure that it's written so I believe that the prosecutor will understand what we're getting at. I check it to make sure that the elements of the offence are present. It may not be strong, but at least that they've been covered off, and that it's presented well. ... Q. And the brief otherwise appeared to be complete, the likelihood is that it would be missed? A. Yes sir, that's absolutely right.Footnote 214

23. Pointed questions were then asked of WO Bergin concerning the identification by Cdt B of CS and what references were made in the Crown Brief to notify the Crown of this crucial area of evidence.

Q. Just going back to page 62 on the synopsis, today would you think that it's important to put the discrepancies of height in this? Would you agree that those types of details should have been noted in the synopsis as well? A. Yes, I would. Q. What about more details on how precisely the identification took place in the first instance? ...A. I agree that it could have been more detailed. However, from my experience, that if a prosecutor has any questions, they will contact the investigator and ask those questions before they make up their final decision. I don't believe that was the case in this matter.Footnote 215 (Emphasis added)

Q. So, are you satisfied that with the level of detail that was put in here in this synopsis in respect of Lieutenant Flower conducting the identification? A. Yes, I am. Q. And how it was done? A. Yes, I am. Q. Knowing what you know about the proper procedures to be followed? A. Yes. From reading this, I think it's very clear to the prosecutor that we didn't formulate the identification parade, that it was done by Lieutenant Flower. So, we're being forthright in there on how the identity was done and I believe that, yes, I agree that it could have been more elaborate and explained to her, but the purpose of this is, as you're probably well aware, is just to inform the prosecutor that Lieutenant Flower, in this case, formulated her own identification parade, so to speak.Footnote 216 (Emphasis added)

Q. And the fact that Cdt B left before confirming with Lieutenant Flower that she approached the proper individual that he was pointing to is not a detail that you would say should be included in here? A. Oh, I agree that again, I agree that there should have been more detail in that portion of the file. Q. But you would agree that that is almost a key factor in the identification? A. I would say it's important, yes.Footnote 217 (Emphasis added)

24. Given concern about the investigators' knowledge that there were witnesses near the bunk of Cdt B during the alleged sexual assault, WO Bergin was asked whether the B.C. Crown was advised of the presence of these other cadets at the time of the events in question.

THE CHAIRMAN: The existence of the witness such as Cdt J who apparently was prepared to say that he was awake and that no one approached the complainant's bed, is that something in your opinion that the Crown should have been made specifically aware of in the summary? A. Yes, sir, I believe so.Footnote 218

2.4 MASTER WARRANT OFFICER BARRY WATSON

25. MWO Watson testified at the hearing that he was involved in the Crown Brief which was sent to him by WO Bergin to review. MWO Watson, in turn, sent the Brief on to Maj Bell so that the Major could affix his signature to the covering letter that would accompany the Brief to the B.C. Crown.Footnote 219 He was asked by Commission Counsel to describe the nature of his review that was expected of him at this stage of the progress of the Brief.

What is the nature of the review expected of you at that stage? A. When I review a Crown brief or an RMP brief, I'm looking to make sure it reads well, to make sure all the elements of the defence (sic) are met and there's no glaring errors or omissions that I can tell from reading it. If I am satisfied with that, I will pass it on to Major Bell for signature. Q. You would not be expected to go more in depth and check the Crown brief against the information that is contained in SAMPIS or check whether or not it is in sync with any statements that would be attached? A. No, I do not. I'm not expected to do that. I read what's put in front of me or what's sent to me for review, but I do not verify and pull up SAMPIS and go through SAMPIS, each text box of SAMPIS to make sure everything is correct in the Crown brief. That's what the lead investigator and the case manager are for.

THE CHAIRMAN: So it's a review of form, not substance? A. Form, yes, sir, but there also has to be some review of substance as well to make sure what's written in there to the Crown, the elements of the offence at least are there.Footnote 220

26. The Master Warrant Officer was referred to the synopsis at page 62 of the Brief, exhibit P-30 and he was asked if he had any recollection of having any concerns with regard to the narrative of the case. He replied that he did not recall observing anything that caused him concern as he read the Brief. He confessed, however, that he did not have an “intimate knowledge of all the workings of the file”, nor would that be expected of him.Footnote 221

27. Of further concern is the fact that MWO Watson testified that he was not able to advise what was provided to him with the Brief. In other words, apart from the Narrative/Synopsis whether there was any other documentation given to him along with the Brief. He stated in evidence:

I cannot tell you exactly what was provided to me, but what I can tell you is I've never received a Crown brief where it's just this form (the synopsis and checklist). By looking at this Crown brief it's checked off that witness statements are attached. So, I will have to tell you that witness statements would have been attached to this because it would never have gotten past Major Bell if I would have sent that up, a document without witness statements. Q. So you have to assume that witness statements are attached? A. Yes, sir. Q. Are you in any position today to tell us what statements were attached to this Crown Brief? A. No, I'm not. I can't recall what statements would have been attached. All I can assume is all the statements of the personnel mentioned within that case summary would have been attached if they exist.Footnote 222

28. MWO Watson agreed that he was aware of the extensive efforts that had been made in preparation for the Commission hearing to determine what documentation accompanied the Synopsis when it was sent to the Crown prosecutor. He agreed that this has been a “difficult endeavour”.Footnote 223 He confessed that he attempted to clarify this issue (but was unable to do so) by going to SAMPIS, hoping to find that “...the whole document would have been scanned in with exactly what was sent to the Crown. That wasn't the case.Footnote 224 It was suggested to the Master Warrant Officer at the hearing:

Today, testifying before this Commission, you are in no position to tell us what were the attachments that you saw when the Crown brief was presented to you? A. I cannot tell you 100 per cent what was attached, no, I cannot.Footnote 225

29. MWO Watson described some of the housekeeping issues with respect to Crown Briefs that are about to be sent to the Crown prosecutors' office. He explained that, once he reviews a Crown Brief, he passes it on to Maj Bell, perhaps the day before the Major signs the covering letter to the Crown. In this case, the letter to the Crown was signed on November 30, 2004. MWO Watson stated to the hearing that he never thought of entering the contents of the Crown Brief on SAMPIS. The reason the Brief passes through so many hands before being transmitted to the Crown is because of “quality control, quality assurance to make sure the proper product is being forwarded up.Footnote 226 He concluded this aspect of his testimony regarding the transmission of the Crown Brief by adding “Normally any document leaving a DND establishment or a unit would be signed by the officer commanding.Footnote 227

30. One aspect of examination of MWO Watson dealt with the absence of material in the Brief that went to the Crown with respect to the pre-interrogation conversations between the NIS investigators, C and CS. It was suggested to MWO Watson that these important conversations, that could well have affected the admissibility of any statement from CS, should have been included in the Crown Brief as they could not have been determined from the video tape of the interrogation.Footnote 228 The examination continued:

Q. Was there an issue in you not doing anything beyond reviewing the videotape that has anything to do with the respective responsibilities between you and Warrant Officer Bergin? In other words, this letter is not directed to you. If you had found things that caused you concern, would it have been appropriate for you to intervene? A. If something would have been detailed or if I would have received information that would have caused me concern regarding the investigation and the submission to be made to the Crown that would put either our professionalism as a unit in jeopardy or the process itself, the legal process itself, as it refers to CS in jeopardy, I would have had to have taken action, absolutely. Q. So it's not something that you could say, no, no, this is the responsibility solely of Warrant Officer Bergin? A. No, absolutely not.Footnote 229 (Emphasis added)

2.5 MAJOR ROBERT BELL

31. Important evidence on the subject of the Crown Brief and supporting material that was sent to the Crown prosecutor is to be found in the testimony of Maj Bell, the Officer Commanding NIS WR. He was questioned at length by Commission Counsel and by the Chairman on this subject and he commenced by informing the hearing about his responsibility with respect to reviewing Briefs that are destined for the Crown prosecutors. He stated:

I think as a matter of practice and tradition, any documentation that leaves my office for an external agency goes out under my authority and, therefore, it goes out under a covering letter signed by me. So that is the essence of this covering letter. Q. So, all Crown briefs are sent under your signature? A. Yes. ...My responsibility is to ensure that the package (Crown Brief) is of a standard that I will sign my name to. So, it's my responsibility to review the package and make sure that it's a fulsome and complete package and that it's accurate in context and if I'm satisfied with it, I put my name on it and send it.Footnote 230 (Emphasis added)

32. The thorny question of the documentation and material that may have been attached to the Brief that was sent to the Crown was broached with Maj Bell. With respect to the Brief relating to the offence alleged against CS, he is not able to assist with exactly what material accompanied the Crown Brief. He was able to advise the hearing of the usual practice with respect to enclosures destined for the Crown:

(I can) ... relate what my common experience is with reviewing these packages, and that I would never receive a document like this by itself. It would be either in a binder or in a package with tabbed enclosures or attachments with all of the statements, SAMPIS entries, photocopied notebooks and that type of thing would be together in one package with the covering letter on top. Usually they're in a small binder that's all tabbed. Q. Is it reasonable to say that still today you have not been able to ascertain with a level of certainty what was joined to this Crown brief? A. No, I can't say what specifically was adjoined to it, other than to say that it would not be alone. Q. And you agree with other people's testimony that we may gain some potential information from the boxes that are crossed at page 61 (Exhibit P-30), but it is not a full description of what would have been attached. Do you agree with that? A. That's correct, yes, I agree with that. Footnote 231

33. The questioning of the Major continued with regard to the lack of a record of what material was sent to the Crown's office and where that information should have been recorded. He was asked:

Q. From a broader perspective, where would that information where should it have been recorded? I mean, normally you would expect that, I mean, this type of information is important enough that you would want to know what was sent. Where should it have been recorded? A. In general, there's a subsystem in SAMPIS that would record the entire court docket which would include all of the prosecutor's information and all of the paperwork related to that. So that's why it should be all retained within our records management system. But since this I have also provided some instruction that file copies be retained of any Crown briefs that leave the office. Q. It is your understanding that at the time no copy had been made? A. Generally on the covering letter there would be an indication if there's a file copy.Footnote 232

34. Attention was then directed toward what material, relating to the Crown Brief, would have been scanned into SAMPIS in order to preserve a record of the documentation transmitted to the prosecutor's office:

Q. ...We do know that it has been scanned at some point, but the only document that seems to have been scanned is the Crown brief itself, but not the supporting documentation? A. Generally the supporting documentation, the stuff generated by SAMPIS doesn't have to be scanned. So, in the prosecution subsystem, you would choose the text, the boxes that you would want to be included in that docket, and it would automatically import them. The only ones that would be scanned would be things like the statements, notebooks, documents that were created outside of SAMPIS.Footnote 233

35. With regard to recording what documentation was sent to the Crown prosecutor, the Major was asked:

Q. Now what would be expected to happen would be that a box detailing everything that was attached to the brief, that it would be recorded? A. Yes. Q. Plus a physical copy of what was actually sent? A. Yes, that's correct. Q. That physical copy would be filed where? A. Retained in the records at the detachment level.Footnote 234

36. The Chairman inquired of Maj Bell if there was a difference between the Crown Brief package that was sent to the prosecutor for the purpose of pre-charge screening and approval of charges and the package that would be presented to the Crown after the Information has been sworn and the charge has been laid.

Q. I believe we heard yesterday that there is a distinction between the Crown brief package that would be sent in the instance of pre charge screening as opposed to post swearing of an information when it in fact is a disclosure package going to the Crown. Is that right from your point of view? A. The disclosure package would be a fulsome package. It would be all of the material that we had accumulated on that file to date. So it would be all the tapes, interviews, relevant supporting statute information especially if it's an NDA offence. So it would be a much more detailed package. Q. In a screening package, the Crown would be deprived of perhaps statements, some statements that the investigator had determined to be irrelevant to supporting the case? A. It would really depend on the jurisdiction, sir. Because we operate from Ontario to B.C., there is a lot of communication with what that specific prosecutor in that jurisdiction would like to see for that specific file. I think it's probably the best practice or otherwise we would constantly be in conflict with whatever prosecution service we were using.Footnote 235 (Emphasis added)

37. The final matter to be addressed on the subject of the Crown Brief and package was whether copies of this material were kept. The Major was asked: “How did you give instructions for physical copies of what the brief that was sent be kept?” He responded:

I believe I told MWO Watson to make sure it would get done. I think the mechanism for that was that WO Bergin sent out an e mail saying we were to keep a (copy)...Footnote 236

38. Maj Bell was cross-examined at the hearing further in respect to the package of material that is sent to the Crown prosecutor in pre-charge screening regimes. The Major advised that, as a matter of course, the Crown is not sent a copy of the tapes of video or audio interviews with the first package.

39. Maj Bell was also questioned in cross-examination regarding standards of belief:

Q. When you turn over a package to the Crown in B.C. my understanding is that essentially what the investigator is saying is I have reasonable and probable grounds to believe? A. Yes. Q. You understand that the Crown brings to bear, as he referred to in his letter, the concept of reasonable prospective (sic - prospect of a) conviction? A. Yes. Q. You understand the distinction between those two in terms of the level of belief? A. Yes, I do. Q. For the sake of completeness if it's not obvious to everybody in the room, which is the lower standard? A. Reasonable and probable grounds.Footnote 237

40. Cross-examination of the Major concluded with counsel eliciting that, in Maj Bell's estimation, the NIS investigators did not do anything unethical. Nor was the Major of the view that “...they did anything intentionally deceptive of the Crown or any aspect of the system.Footnote 238

41. Maj Bell noted that the contents of the Crown Brief may vary from one jurisdiction to another and is largely dependent on the wishes of the specific prosecutor. He also noted that a more detailed package is prepared including all material accumulated on the file when it is in a post-swearing of the information stage.

42. Maj Bell testified that as a result of this case certain changes have been made. One of these changes is that the MPs now provide transcription of all key interviews along with the Crown Brief in Crown screening provinces such as B.C. This was not the practice at the time of the investigation in question.Footnote 239 In addition, instructions have been provided to retain a file copy of the complete Crown Brief sent to the Crown prosecutor.Footnote 240

3. ANALYSIS

3.1 GENERAL

43. A significant impediment or obstacle to the examination of matters related to the Crown Brief is presented by the fact that there is no clear record or listing of the material that was provided to the Crown. Even the Crown Brief form is not entirely helpful. At page 4 of the form, exhibit P-30, the left hand boxes would appear to indicate that the accused, CS, did make a statement but it was an audio/video statement only. The “No” response to the following question: “Are all oral statements set out below and are copies of all written statements attached?” would seem to indicate that CS's video-tape statement, which was the only one that he made to the military police, was not sent to the Crown's office. In contrast, the right hand boxes, comprised of two sets of check boxes for one question, indicates that “copies of all written statements made by the witnesses” are attached. It is further noted that Cdt B's statement of August 19, 2004 and Cdt H's statement of November 23, 2004 were attached to a copy of the Crown Brief provided by Cpl Dyck to an MPCC investigator on February 15, 2006.

44. Unfortunately, as may be seen in the foregoing summary of the evidence received at the hearing, the testimony of witnesses did not clarify exactly what was sent to the Crown's office with the five (5) page Crown Brief form. While Cpl Dyck testified that he prepared the package in accordance with telephone instructions received from the Crown, he had no specific memory of what had been sent.Footnote 241 Sgt Niclaes testified that he had no involvement whatsoever in the preparation of the Crown Brief. WO Bergin testified that he had no specific recollection as he did not even recall this file being sent to the Crown prosecutor and could only testify as to the normal practice of attaching written statements. He further added that only if the prosecutor asked for transcripts or video/audio tapes would they include those.Footnote 242 Similarly, MWO Watson had no specific recollection and could only testify to the normal practice that witness statements were generally attached.Footnote 243 Maj Bell was also only able to testify as to standard practice, but he was adamant that he never received a Crown Brief as a stand-alone document and that such practice involved him receiving a set of file documents “either in a binder or in a package with tab enclosures or attachments with all of the statements, SAMPIS entries, photocopied notebooks and that type of thing...”.Footnote 244 Given the fact that none of the other witnesses mentioned a binder or tabbing of documents, I conclude that Maj Bell was likely mistaken in this regard, possibly confused with the post-charge disclosure process.

45. The question of what was sent as part of the Crown Brief to the Crown's office is clearly important to the issue of thoroughness and completeness of the CFNIS investigation as it is significant in terms of the responsibility of the Crown to review in detail all of the documentation submitted. The Crown Brief is the basis on which the Crown prosecutor must make a decision as to whether or not charges are to be laid. Accordingly, as accuracy and detail are important in all documentation of an investigator's work, it is of the utmost importance in the task of preparing the Crown Brief.

46. Based upon all the evidence received, I conclude on a balance of probabilities that the Crown received a Crown Brief package in the nature of the documents received by the MPCC investigator from Cpl Dyck; namely, the five (5) page Crown Brief form along with Cdt B's four (4) page handwritten statement and cover page dated August 19, 2004, as well as Cdt H's three (3) page written statement dated November 23, 2004 including the video interview preamble form.Footnote 245

47. Consistent with the Martin Report there is no question in the view of the Commission that there is a responsibility on the Crown prosecutor to review in detail all the documentation submitted by the police and, if any information is apparently missing, there is also an obligation on the Crown to request additional information from the police. However, while I agree that the Crown does bear a responsibility to review all of the submitted documents, I also am of the view that this does not diminish the concomitant responsibility of the police to ensure completeness and accuracy in every individual part of the Crown Brief, most particularly the “narrative summary”, which is the focal point of the Crown Brief. These issues were prominently and persuasively addressed by the Commission chaired by Mr. Justice Martin and referred to above.

3.2 DIRECTION, POLICY OR TRAINING REGARDING CROWN BRIEFS

48. As noted by Maj Bell, Western Region NIS operates from Ontario to British Columbia and within the jurisdiction various provincial Crown systems exist. Maj Bell further explained that there is a lot of communication with the provincial prosecutor in a specific jurisdiction to ascertain what he or she would like to review as part of the Crown Brief in the context of a particular case. Maj Bell opined that this is likely the best practice or otherwise they would constantly be in conflict with the prosecution service they were using at that time. Footnote 246 While Maj Bell may be correct as to the need to adapt to the practice of the prosecution service in a particular jurisdiction, such a best practice should also include the requirement that the communications and instructions from the Crown's office be recorded for subsequent reference by the investigators and supervisors, as well as a complete duplicate record retained of what was sent to the Crown's office for review, none of which appears to have been done in this case. Moreover, and notwithstanding the jurisdiction specific Crown Brief requirements in respect of form and substance, based upon the evidence there does not appear to be any real direction, other than policyFootnote 247 which gives very general guidance on what to include as a minimum, with regards to the specific requirements for any Crown Brief, particularly those in respect of the inclusion of all relevant evidence (both exculpatory and inculpatory), and the highlighting of any particular points which may present issues for the prosecution.

49. As testified by Cpl Dyck, the investigators seem to be more or less left to their own devices,Footnote 248 which in my view is a particularly dangerous situation when, as will be discussed under the heading of “supervision”, it is clear that in the system of review the supervisors appear to have been focused almost entirely on matters of form as opposed to substance.

3.3 NARRATIVE/SYNOPSIS OF THE CROWN BRIEF

50. As stated above, it is reasonable to expect that Crown Counsel will review all materials in detail rather than relying entirely on a provided synopsis. That said, it is significant to note that the British Columbia Crown Brief form appears to contemplate the attachment of written statements only. WO Bergin testified that “for the most part, most civilian prosecutors that I have run into only ask for the hard copies. They don't ask for the video/audio tapes.Footnote 249

51. Such a practice seemingly runs counter to the judicially mandated increasing use of video/audio-taped statements versus the historical use of hand written statements. Moreover, based on the testimony of all of the supervisor witnesses (WO Bergin, MWO Watson, and Maj Bell) it would appear that their review of the Crown Brief was restricted to the form and the accompanying documents. This last fact begs the question of why anyone would expect the Crown to go further and thereby minimize the singular significance of the narrative summary prepared by the investigator. In my view, all of the foregoing considerations serve to underline the importance of the narrative summary being complete, accurate and objective.

4. ACCURACY, APPROPRIATENESS AND COMPLETENESS OF THE CROWN BRIEF

52. I conclude that the Crown Brief proposing the charge of sexual assault against CS was not appropriate, complete or accurate, in part, because certain exculpatory evidence was not documented in the Crown Brief form nor was it otherwise disclosed to the Crown by attachment. I note the following examples in no particular order of significance: the discrepancies in the descriptors provided by Cdt B of his assailant (birth mark, height); the weaknesses in the eye-witness identification generally; the absence of any photo-lineup or physical lineup procedures; the failure to include the statements of Cdt J and Cdt A; the exculpatory statement given by CS to Capt Thoms shortly after the incident in circumstances which might negate fabrication; and, the failure to highlight for the Crown that the video-taped statement of CS was exculpatory in nature and replete with adamant denials.

53. Cdt B, was questioned twice by the MP, the first time on August 19, 2004 by Cpl Kulbisky and a second time on September 8, 2004 by Cpl Lambert and Sgt Niclaes. Both of the interviews were audio/video recorded; however, a written statement was only taken in the first interview. Accordingly, as best can be determined, only that one handwritten statement, was forwarded to the Crown prosecutor and the Crown had to otherwise rely on the summary of the interviews provided by Cpl Dyck.

54. It is noted that in neither of the summaries is it mentioned that the complainant consistently described his assailant as having a large “dime size” birth mark under his eye. While the birth mark is noted in the written statement submitted to the Crown, no where in the narrative synopsis, including the summary of CS's interview, is it mentioned that CS does not have such a birth mark nor is it explained why the investigator discounted this significant element of the description.Footnote 250

55. Further as detailed on page 5 of 5 of the Crown Brief, Cpl Dyck, in summarizing Cdt B's August 19, 2004 interview, notes Cdt B as having described his assailant as wearing “shorts or pants with ‘Gumby’ on them”. Subsequently, in the summary, it is stated that the assailant cadet was wearing the same clothing at the time he was identified as he had been when he committed the assault. The implication of these two statements is clearly intended to confirm or give weight to the identification. The fact is that the clothing of the assailant at the time of the alleged assault was only described in Cdt B's written statement of August 19, 2004 and in that statement it was described as “wearing combat shirt and gumbie pants/shorts”. In addition to the clear mis-description of the pants, it was never noted to the civilian Crown prosecutor that these items of clothing comprised a type of cadet uniform, which would have been worn by all the cadets in the camp.

56. Furthermore, following a statement by statement approach in summarizing the evidence, the investigator simply failed to mention in the synopsis the efforts that Cdt B said that he made to immediately report the assault to the MPs, and it is to be noted that the failure to make an immediate complaint was one of the weaknesses in the case identified by the Crown.

57. Finally, in his second statement to the NIS, Cdt B indicated that a cadet (Cdt J), whose bed was across from his in the barracks, had stated to him that he had been awake and that no one was in the barracks near the complainant's bed. The investigator apparently accepted the complainant's assessment that Cdt J was less than credible as he neither interviewed him nor made reference to him in the Crown Brief summary.

5. FINDING AND RECOMMENDATIONS

Finding # 11:

The Chair finds that the author of the Crown Brief, Cpl Dyck, failed to produce an accurate, complete and appropriate Crown Brief, and specifically failed to disclose exculpatory evidence to the Crown in the Crown Brief. However, notwithstanding the noted deficiencies in the Crown Brief, I find that there is a no evidence to support the conclusion that the Crown Brief was constructed with the intention to deceive or mislead the Crown prosecutor in the review process. Rather, I conclude that any omissions or errors in the Crown Brief were a result of a lack of supervisory guidance and systemic failings in respect of training and policy direction.

  • In noting his agreement with this finding, the CFPM noted: “I agree that the details surrounding the creation of the Crown Brief indicate that it would have been inaccurate and incomplete (specifically, lacking in exculpatory information). The main failing appears to be in viewing the case as even meeting the threshold for submission of a Crown Brief.

Recommendation # 12:

The Chair recommends that Cpl Dyck be counseled with regards to the importance of an accurate, objective and complete Crown Brief.

  • In noting his acceptance to this recommendation, the CFPM noted: “See response to Recommendation # 9.” In Recommendation #9, the CFPM noted that Cpl Dyck has been counseled and therefore the matter has been actioned.

Recommendation # 13:

The Chair recommends that the existing policy in respect of the completion of Crown BriefsFootnote 251 be reviewed for sufficiency with a view to establishing additional guidance and procedures for the creation of such briefs including the requirement for documenting communications with the Crown's office as well as the necessity to keep a duplicate record of the documentation and materials transmitted to the Crown Attorney for review.Footnote 252.

  • In noting his acceptance to this recommendation, the CFPM stated: “See response to Recommendation # 10,” wherein he noted that: “The required additions to the MPPTP will require extreme care in drafting, in order to be clear and comprehensive, yet not overly long and technical.

VI SUPERVISION AND MANAGEMENT

1. INTRODUCTION

1. This part of the report will address issues pertaining to the supervision and management of this investigation; more specifically, whether the overall management and supervision of the CFNIS investigation was appropriate; whether the assignment of the file, including the tasking of an investigator with limited second language skills was appropriate; and whether the supervision and review of the Crown Brief to ensure completeness and accuracy was appropriate.

2. OVERALL MANAGEMENT AND SUPERVISION OF THE CFNIS INVESTIGATION

2. The evidence received by the Commission at the public hearing revealed that there was a lack of meaningful management, supervision or guidance in this investigation. More specifically, Maj Bell and MWO Watson seemingly placed complete reliance on a ‘bottom up’ system which required them to review only that which was placed in front of them. Moreover, the evidence revealed that such a review was primarily for matters of form as opposed to substance. MWO Watson was particularly outspoken in this regard when he effectively disavowed having any file ‘management’ responsibility. Instead, he defined his ‘oversight’ role as requiring him to be knowledgeable of the number of files, the types of files and the status of those files on-going at any time. He also testified that he had a ‘quality assurance’ role;Footnote 253 however, it is difficult to conceive how any such role could be performed on the basis of the stated minimal involvement with the files. On the other hand, Maj Bell did take full responsibility for what he signed. However, while he testified that he subsequently recognized that the evidence regarding the identity of the accused was not strong, he also stated:

As a general rule, though, I would be reluctant to second guess the charge laying decision and the grounds of the investigator. So, unless something was brought to me with a specific reason why this charge or recommendation for a charge should not go forward, then I would likely not resist sending that to the Crown.Footnote 254

3. This statement is difficult to rationalize with the fact that Maj Bell was possessed of significant investigative training and experience while the investigator in this case was an intern without even the benefit of the MP Criminal Investigator Course. It is also unfortunate to note that the most involved Maj Bell or MWO Watson became in respect of this investigation was to review the interview tape following C's complaint. Even upon this review, they failed to recognize the breach of MP directives regarding termination of the interview when the request for a lawyer was made. Operating as they apparently did, it is difficult to see how either MWO Watson or Maj Bell contributed anything of substance to the investigative process.

4. In a similar fashion and notwithstanding his admitted role as the file or case manager, WO Bergin was equally quick to place his reliance on Sgt Niclaes for the substantive guidance of the investigation. In that regard, I note particularly WO Bergin's testimony where he says, in part:

...to this day I'm satisfied that the continuity of that investigation was carried by Sergeant Niclaes and it was. Sergeant Niclaes did an admirable job as far as I'm concerned in maintaining the credibility of that investigation.Footnote 255

5. This was said despite the fact that WO Bergin also specifically noted that the ‘coach’ or second investigator was not in fact assigned to the file but only to certain events such as monitoring specific interviews. Moreover, nowhere in his testimony did WO Bergin suggest that he had ever reviewed or discussed the file material in detail. WO Bergin testified that he was required to do periodic checks on various files, but this did not involve reviewing every interview tape. Essentially, WO Bergin relied on a weekly review of the SAMPIS entries to monitor the file.Footnote 256

6. It is to be noted that Sgt Niclaes, in his evidence, took a somewhat different and far more restrictive view of the scope of his responsibilities for supervision. Sgt Niclaes' view was, in fact, far more consistent with Cpl Dyck's apparent understanding that Sgt Niclaes was only to be involved in specific events to prevent major blunders. In the face of contradictory evidence on the role of Sgt Niclaes in this sexual assault investigation, I conclude on a balance of probabilities Sgt Niclaes' testimony to be more credible in that his role was limited primarily to the subject and victim interviews.

7. Moreover, Cpl Dyck, like Sgt Niclaes, persisted in the egalitarian view of all investigators being equal and did not apparently see the rank of sergeant to be of any particular significance. In articulating this view, Sgt Niclaes failed to recognize that he was the senior investigator and therefore one would expect him to provide guidance to intern Cpl Dyck.

8. As a matter of general context, there was of course the factor referred to by all of the NIS witnesses concerning staff turnover and shortages, particularly of trained, experienced investigators, during the summer and fall when the investigation took place. WO Bergin described the relevant period in 2004 as representative of the “largest influx or change over of personnel in my seven years that I spent with the NIS.Footnote 257 This was a result of a variety of factors, such as promotions and deployments, which contributed to a large number of interns in NIS during this period. This clearly was a factor which impacted significantly on Western Region NIS; however, far from being justification or mitigation for any supervisory failure, it, in my view, makes the supervisory failure more egregious. That is, all of the supervisory level personnel recognized the problem but none of them apparently did anything about it, including becoming more personally involved in the investigative process to ensure that quality was maintained or, at least, that events such as those in question did not take place when the risk of same was greatest.

9. This was most evident when MWO Watson testified that beyond watching the videotape he took no further steps upon receiving C's complaint other than forwarding the matter to the DPM PS. MWO Watson claimed that this was the normal practice when a complaint was received.Footnote 258 MWO Watson's assessment, which he shared with Major Bell after having watched CS's interview, was that the interview was clumsy and it did not flow well, but there were no significant errors committed. WO Bergin noted the same opinion. Major Bell and MWO Watson agreed at the time that Cpl Dyck would soon be going on his MP Criminal Investigator Course at which time some of those deficiencies would be rectified.Footnote 259 In addition to this, MWO Watson spoke of the NIS policy with respect to sexual assault investigation training for all NIS personnel, but he did not relate this policy to Cpl Dyck either before or as a result of the events in question.Footnote 260 And, the investigation continued with Cpl Dyck in the lead role, largely unassisted.

10. WO Bergin testified that, in retrospect, he would have ensured that the crime scene was visited by his members, that a sketch of the scene was completed, that proper measurements of the scene were done, that any medical records were retrieved and verifications were done regarding injuries.Footnote 261 Despite these identified shortcomings, WO Bergin adamantly stood by his decision to assign interns, even one with linguistic challengesFootnote 262, to a sexual assault file involving youths. As well, he continued to express his view that Sgt Niclaes had maintained the credibility of the investigation.

11. In retrospect, MWO Watson expressed his view that more action could have been taken with respect to identification in this case. He noted that best practice would have been to go to the scene, to verify the physical description, and to ensure that Lt Flower picked the right person. However, he also held the view that doing an identification parade or photo line up after the fact, after the victim had already pointed someone out, would not have been an effective tool.Footnote 263

12. In acknowledging that some effort could have been made to mitigate the bad identification, such as a scene e12amination and a photo parade, Maj Bell also held the view that it was not a realistic proposition at that point in time as the damage had been done.Footnote 264 Maj Bell recalls being advised of C's complaint by MWO Watson who offered his opinion that the interview of CS was rough and that there was room for improvement. After being advised of the complaint, Maj Bell reviewed the videotaped interview himself and concluded that there was room for improvement in that the interview was “awkward” and an “inexperienced investigator was in over his head.Maj Bell also held the view then, and still does, that the interview should have ceased when CS advised that he wanted to contact counsel. Maj Bell opined that any material obtained after CS requested counsel would quite likely not be admissible in a court proceeding.Footnote 265

13. Maj Bell recalls telling MWO Watson that he wanted Cpl Dyck to attend the first available MP Criminal Investigator Course because Maj Bell's global understanding of CS' interview was that it was an inexperienced attempt at a cautioned interview.Footnote 266

14. Maj Bell does not recall discussing the interview with WO Bergin nor did he discuss with Cpl Dyck or Sgt Niclaes. Other than reviewing the videotaped interview, Maj Bell did not take any other action to gain further knowledge about the investigation after C made her complaint.Footnote 267

15. Maj Bell recalls that in mid-December 2004 he received a call from his superior in Ottawa asking how the identification of the suspect in this case was made. This call spurred Maj Bell to review the SAMPIS reports and it was at this time he came to the conclusion that the identification evidence of the accused was questionable.

16. Maj Bell testified that as a result of this case, specific direction has been given that, in the event of a file handover, a complete review of all investigative materials be conducted and a new investigation plan be compiled and submitted for approval prior to any further investigative activity being conducted.Footnote 268

17. It is also noteworthy and commendable that Maj Bell and MWO Watson made pro-active efforts with respect to sexual assault occurrences at cadet camps. They took the first step in conducting a research study and also commenced briefings with cadet camps in an attempt to lower the incidents of sexual assaults. Such initiatives were later picked up by other NIS regions.Footnote 269

18. That said, it is revealing that at several points in the evidence various supervisors stated they did not do things or take steps of one sort or another so as not to be “micro-managing”, a term that was used with obvious distaste. Unfortunately, this apparent quest to avoid being perceived to micro-manage contributed in part to forestalling supervisors from engaging in effective management at the level which was, in fact, necessary and appropriate, in all of the circumstances.

19. Best practice for supervision of investigations would logically require supervisors to have a reasonably in-depth knowledge of the facts, often gained through briefings, in order to fulfill the basic supervisory functions of lending of their knowledge and experience and performing a challenge function. On the facts of this case, one is left to wonder what was meant by the term “quality control” which was used a number of times by MWO Watson, unless it is restricted entirely to matters of form and not substance. This situation is regrettable in that the supervisors in question clearly possess knowledge and experience which could have benefited Cpl Dyck if the supervisors had been engaged.

20. Furthermore, while it is acknowledged that the DPM PS is an appropriate body to receive complaints about the conduct of MP personnel, this does not abrogate the responsibility of management to conduct an assessment of a complaint, especially in a situation in which the police action, in this case an investigation, is ongoing. At a minimum, management ought to have reviewed the file in sufficient detail to ensure that it was appropriate to keep the investigator(s) assigned to the file and/or whether there was any merit to the complaint of a nature that would affect the integrity of the investigative process.

3. ASSIGNMENT OF THE INVESTIGATION

21. On August 23, 2004, WO Bergin assigned this investigation to Cpl Lambert, following which he re-assigned it to Cpl Bonneateau on September 10, 2004. Nineteen days later, on September 29, 2004, WO Bergin re-assigned the file again to Cpl Kemplay. Ultimately on September 30, 2004, Cpl Dyck was assigned the file. In acknowledging that there were four lead investigators assigned to this file within a five week period, WO Bergin clarified that in reality there were three investigators, as Cpl Kemplay never actually assumed control of the file.

22. Cpl Dyck explained that an intern may be assigned a file as the lead investigator and that a second investigator would then be assigned in a supportive role, to provide advice to the intern and to ensure that the intern was on the correct path vis-à-vis the investigation and its progression.Footnote 270

23. When assigned the file on September 30, 2004, Cpl Dyck was told that he would be the lead investigator on the file, would be working with Sgt Niclaes and that there was already a file on SAMPIS that he could review.Footnote 271 He recalls being told to review the file.Footnote 272 When asked what he had been advised in relation to Sgt Niclaes' role, Cpl Dyck stated that when he first arrived in NIS all the interns were told that they would be partnered with experienced investigators who have passed their internship and that they (the interns) should seek guidance from them.Footnote 273 WO Bergin confirmed that upon assigning the file to Cpl Dyck, he advised him to review the investigation and to update the file and the investigation plan.Footnote 274

24. WO Bergin further elaborated on his expectations that an investigator taking over an investigation would be thoroughly up to date on that file so that when asked a detail in relation to the investigation, he would be able to answer the question. WO Bergin noted that at times it would suffice for the investigator not to review the video or audio statements. When asked if he would typically ask his investigators to review all the interview tapes, WO Bergin responded that his tendency is “not to micro manage”.Footnote 275 In fact, WO Bergin stated that if he had been the investigator reassigned to the file, he would not have necessarily reviewed the audio and video cassettes that were already completed on this file.Footnote 276

25. Cpl Dyck admitted that he did not have a great deal of experience conducting interviews prior to his arrival at NIS in Edmonton. He noted that he had only conducted a “handful, only a small number” of interviews.Footnote 277 Cpl Dyck explained that his prior experience consisted of working on shadow files which involved collecting information from other sources, but not actively participating in the interviews. Cpl Dyck also noted that his prior experience included taking notes in some interviews and interrogations in a relatively small number of cases.Footnote 278 More specifically, Cpl Dyck testified that he could not remember having conducted any interrogations or interviews involving a young person prior to his interview on October 8, 2004 with CS.Footnote 279 In relation to experience and/or training on sexual assault cases, Cpl Dyck indicated that the investigation under examination was the first sexual assault case in which he was the lead investigator. In relation to sexual assault investigation training, Cpl Dyck, who at the time of CS's interview had not yet completed the MP Criminal Investigator Course, noted that the topic of sexual assault was “briefly mentioned” on the QL3 and QL5 courses.Footnote 280

26. When asked about how the assignment of several investigators to the file impacted the investigative management of the file, WO Bergin again stated that he was satisfied that the continuity of the investigation was carried by Sgt Niclaes. As noted earlier, WO Bergin testified that “Sergeant Niclaes did an admirable job as far as I'm concerned in maintaining the credibility of that investigation.Footnote 281

27. I view this last to be a remarkable statement given that Sgt Niclaes' role was limited to monitoring specific interviews, and supported by Sgt Niclaes' testimony at the hearing as to his interpretation and performance of that limited role, testimony of which WO Bergin was fully aware.

28. It is noteworthy that MWO Watson did ultimately agree that the file passed through too many hands and that the initial tasking of Cpl Lambert was inappropriate given his linguistic capabilities.Footnote 282

29. I believe that it is entirely reasonable to conclude that the multiple re-assignment of the investigation without careful definition of the responsibilities of newly assigned investigators or protocols for the transfer of files represents another systemic failing of management which inevitably contributed to the poor quality of the investigation.

4. TASKING OF AN INVESTIGATOR WITHOUT APPROPRIATE LINGUISTIC SKILLS

30. The evidence in this public hearing clearly revealed that an investigator without the requisite language abilities was assigned to this investigation. This was both unfair to the investigator and prejudicial to the investigation.

31. Cpl Lambert was described variously as “having difficulties with some words”, having a strong accent, and someone who struggled with the English language.Footnote 283 Sgt Niclaes noted that Cpl Lambert struggled a lot with English. Sgt Niclaes described Cpl Lambert's approach to drafting interview questions as one involving reviewing old cases on SAMPIS to assist him with the appropriate terms and having to constantly use a dictionary to devise his questions. Sgt Niclaes testified that Cpl Lambert stopped the interview with Cdt B early on because he was struggling to conduct the interview in English. As such, Sgt Niclaes took over the interview. Sgt Niclaes further testified that he was the one who prepared the interview summary after the interview of Cdt B, which he then provided to Cpl Lambert to enter into SAMPIS under his name.

32. While there clearly was a systemic failure either in regards to setting the language profile for Cpl Lambert's position or in posting Cpl Lambert to a position for which he did not appear to meet the profile, this is somewhat of a side issue. That is, the specific issue herein is whether there was a management failure in assigning an investigator without the required language skills to the investigation. In that last regard, responsibility falls largely on WO Bergin and the situation is made plain in WO Bergin's testimony. In the course of his answers, Warrant Officer Bergin first admitted that Cpl Lambert “...had difficulty speaking the English languageFootnote 284, but then once again placed reliance on Sgt Niclaes, despite the fact that Sgt Niclaes had raised his own concerns about this very issue in that it would entail double the work for himFootnote 285. WO Bergin made the following statement in relation to my question of his impressions of whether or not there were occasions that Cpl Lambert did not understand oral communications in English:

I made a point of speaking at a clearer level to Corporal Lambert. Example, I wouldn't use English slang or anything along that matter. I spoke to the level of his understanding ability. So that's the way I operated with him. There were times, yes, sir that I could tell that he did not understand me just by his mannerism, at which time I would rephrase what I said and then he would obviously understand.Footnote 286

33. Nonetheless, WO Bergin stands by his decision to assign Cpl Lambert to the investigation and to conduct the interview with Cdt B stating that he had to assess Cpl Lambert to determine his capabilities, although he stated that he would not have allowed Cpl Lambert to conduct a subject interview until he was fully satisfied with his linguistic abilities.Footnote 287 Again, WO Bergin relied on the fact that when he assigned Cpl Lambert, he also assigned Sgt Niclaes, who he described as a “seasoned Sergeant who I trusted and still do trust,Footnote 288 to assist. When Cpl Lambert was initially assigned the file, WO Bergin expected that Cpl Lambert would have enough time to complete the investigation before he left the unit for training purposes; presumably this would not have included the “subject” interview of CS.Footnote 289

34. Major Bell testified that the language profile for Cpl Lambert's position was ABA.Footnote 290 While he was reluctant to comment upon policy regarding the assignment of profiles, he did allow that ABA is “fairly low” and that he would like to see “a much stronger language capability to function in an English only environment”. Maj Bell also testified that after having viewed the interview conducted by Cpl Lambert, he formed the opinion that Cpl Lambert was not properly assigned to that interview.Footnote 291

35. In my view, it is impossible to rationalize the clearly apparent limits of Cpl Lambert's ability in English, as described by WO Bergin himself, and his assignment to conduct any interview in English, let alone the interview of a teenaged complainant in a sensitive sexual assault investigation. This is said without any criticism of Cpl Lambert whatsoever; as revealed in the evidence, his efforts to cope were admirable.

5. SUPERVISION AND REVIEW OF THE CROWN BRIEF

36. The same systemic management issues which impacted the investigation generally had a similar impact on the quality of the Crown Brief. As noted earlier, based upon the evidence, the supervisory input of WO Bergin, MWO Watson and Maj Bell was largely restricted to a review of form and did not touch upon substance in any meaningful way. Sgt Niclaes, on the other hand, had no input whatsoever as the Crown Brief was not included in his assignment. In the result, this situation underlines the fact that supervisors in the chain of command cannot possibly fulfil any of their admitted responsibilities, whether those responsibilities are referred to as management, oversight or quality assurance, if they are not prepared to personally engage with the front line investigators and the investigative process.

37. WO Bergin stated that if he had encountered any concerns in the Crown Brief he would not have forwarded it up to his chain of command. However, even after taking the time to review the Crown Brief while testifying, he could not point out anything that caused him concern. Only after being directly asked if the facts concerning the birth mark and the discrepancies in height of the perpetrator as described by the complainant, as well as the existence of Cdt J as a witness should have been mentioned in the Crown synopsis, he conceded that they should have. Moreover, he candidly stated that, as a matter of practice, in reviewing such things as a Crown Brief he relied solely on the materials presented to him, admitting that if a brief otherwise appeared on its face to be complete he would not be aware if something in the file that had simply been left out.Footnote 292

38. Even though the issue of the birth mark was raised by the Professional Standards investigator during a meeting with MWO Watson, he does not recall passing along that information to Maj Bell or looking into the issue further.Footnote 293

39. Maj Bell testified in relation to the Crown Brief:

My responsibility is to ensure that the package is of a standard that I will sign my name to. So, it's my responsibility to review the package and make sure that it's a fulsome and complete package and that it's accurate in context and if I'm satisfied with it, I put my name on it and send it.Footnote 294

40. As noted earlier, Maj Bell testified that when he reviewed the letter from the Crown indicating that no charge would be laid, he was not surprised as in his estimation the identification evidence was weak. As noted earlier, although he admitted that he could have intervened by choosing not to submit the Crown Brief, Maj Bell stated that he is generally reluctant to second guess the charge laying decision and the grounds of the investigator. However, he also observed that there is a certain comfort gained from knowing that the Crown will review the file and conduct a more rigorous screening. Maj Bell did agree that, as a police superior, it is within his prerogative to order, for a bona fide reason, that a charge not be laid. Maj Bell also conceded that had the event taken place in Alberta a charge would have likely been laid.Footnote 295

6. THE COMPLAINANT'S TELEPHONE CONVERSATION WITH MWO WATSON

41. Immediately after the interview on October 8, 2004, C went home and phoned WO Bergin to complain about the treatment of her son. When they spoke later on that day, WO Bergin assured C that he would review the videotape of the interview and would call her back on Tuesday. WO Bergin explained to C that a report would be written and forwarded to the Crown Counsel in Vernon and they would decide if a charge was to be laid. WO Bergin noted that if charges were going to be laid, C would be notified. Footnote 296 C testified that she never heard back from WO Bergin nor did she follow-up with him, other than to confirm her complaint in a letter dated October 9, 2004. Footnote 297 The complainant described WO Bergin as professional and polite in his dealings with her.

42. When C received a call from Cpl Dyck on November 24, 2004, she was upset that Cpl Dyck stated he could contact her son at any time. C told Cpl Dyck that she had advised in her letter of October 9, 2004 to WO Bergin that her son should not be contacted directly, rather they should contact her first.Footnote 298 Cpl Dyck testified that when he called the complainant's residence on November 24, 2004, he was unaware of her previous request to WO Bergin that she did not want her son contacted directly. From the evidence during the hearing, it would appear that there was a failure by management to pass along those instructions to Cpl Dyck.

43. Immediately after this conversation with Cpl Dyck, C contacted MWO Watson by phone. C testified that MWO Watson “very quickly and very shortly said, we're going to be laying charges. I was not prepared for that.Footnote 299 C was admittedly upset and angry by the tone and content of the conversation. MWO Watson told her “that charges would be laid against CS in the next ten days.Footnote 300 According to C, MWO Watson further advised that he would be making that decision.Footnote 301 Due to the fact that C was scheduled to go out of town for work related purposes, she put a type of safety plan in place for her son to ensure that he would not be left alone when the MPs came and arrested him. C made arrangements for her son to stay with family friends and also notified the school and local RCMP.Footnote 302

44. MWO Watson admitted to advising C that they would be proceeding with charges. He stated that he intended to communicate that a Crown Brief would be prepared and forwarded to the Crown for decision. Following this conversation, MWO Watson was concerned that he may not have been clear or that C may not have understood what he meant.Footnote 303 He went so far as saying that there was probably no doubt that she thought they were laying charges against her son. If this was the case, it is unclear why MWO Watson did not take the necessary steps to ensure a proper understanding either through an additional conversation with C or a letter clarifying the situation. MWO Watson admitted that this was a mistake in judgement on his part.Footnote 304 I cannot but agree.

45. There is no question that dealing with the public can be trying, particularly in emotionally charged circumstances. That said, an immediate correction of a miscommunication of this nature, which was bound to cause considerable upset, was, in my view, an entirely reasonable expectation of a police professional.

7. THE DPM PS DIRECTIONS AND CFNIS CR REVIEW

46. The evidence revealed that following the Professional Standards investigation of C's complaint, the DPM PS forwarded her Report of Findings and Actions to the DPM NIS, Col Dixon. Deciding not to immediately forward the DPM PS Report of Findings and Actions, Col Dixon assigned two Central Region NIS investigators to conduct a review of the situation, including management issues. This was prompted by a letter dated April 25, 2005 from the DPM PS to Col Dixon outlining her concerns arising from the Professional Standards investigation and in relation to the supervision of the file which fell outside the defined scope of the Professional Standards investigation. In her letter the DPM PS directed the DPM NIS to have “the entire matter reviewed and that the appropriate action be taken regarding any discrepancies, shortcomings and/or offences that may become known.” After having CFNIS CR conduct such a review, on October 7, 2005, Col Dixon forwarded the DPM PS Report of Findings and Actions and directed Maj Bell to conduct formal counselling and remedial training with Cpl Dyck and Sgt Niclaes. Footnote 305

47. Instead of taking action on Col Dixon's direction, in correspondence to Col Dixon dated November 1, 2005, Maj Bell raised concerns about the DPM PS Report of Findings and Actions and made a request that Professional Standards review their file and investigative findings. Maj Bell testified that he “...was hoping that the letter from Professional Standards may have resubmitted in a more constructive fashionFootnote 306 No response was received in reply to Maj Bell's request.

48. Maj Bell also explained that when he received the DPM PS Letter of Final Disposition, he did not provide copies to Cpl Dyck and Sgt Niclaes because he had raised concerns about the DPM PS Report and expected a response. Even though he considered it a direction from Col Dixon to implement, he was of the view that there was still flexibility to ask for clarification and for further discussion. Maj Bell further explained that he did not direct the remedial measures because his understanding was that Cpl Dyck had been provided with appropriate training that covered all of those core issues very shortly after the incident that precipitated the requirement for training. His rationale with respect to Sgt Niclaes was that he had been moved to a position where he was no longer conducting investigations, so it was a moot issue.Footnote 307 Also, Maj Bell testified that due to the announcement of this public interest hearing process in June 2005, no further action was deemed appropriate in light of the on-going MPCC inquiry.Footnote 308

49. MWO Watson also acknowledged that it was both his and Major Bell's responsibility to implement corrective measures as per the DPM PS directions and subsequently those of the CO CFNIS after the review conducted by CFNIS CR. While he noted that these directions must be followed, he also believed that certain flexibility existed allowing for the raising of concerns about the recommendations. MWO Watson confirmed that he did not, at any time, review with Cpl Dyck and Sgt Niclaes the potential or perceived shortcomings in the investigation, or the interview/interrogation of CS.Footnote 309

50. The Commission was advised by letter on September 29, 2006 that Cpl Dyck had been counseled and had attended investigator training since the incident. Subsequently, the Commission received a statutory declaration dated November 1, 2006 from LCol Bud Garrick, Commanding Officer of CFNIS, stating that on September 25, 2006 (the business day following the conclusion of the hearing evidence) he directed the Officer Commanding of CFNIS, WR, Maj Jim MacEachern to counsel Cpl Dyck with respect to his actions in this investigation. On September 27, 2006 this was carried out.

51. The sequence of events briefly summarized above, commencing with Maj Bell's delay in acting upon the directions pending a response to his concerns, reflects an unfortunate pattern of resistance to professional criticism and disdain for the work of Professional Standards as the internal oversight mechanism of the military police. Although the act of “standing up”, as appropriate, for one's subordinates is inherent to good leadership and very often commendable, this case clearly exemplifies leaders reacting defensively without having scrutinized the actions of their subordinates and, in fact, attempting to defend the indefensible. This sort of attitude does not bode well for the maintenance and development of high professional standards.

52. Moreover, it is acknowledged that when a conduct complaint is received about a military police member, the complaint should be forwarded to the DPM PS or the MPCC to be dealt with according to Part IV of the National Defence Act. The mechanism to forward the complaint to Professional Standards does not then “wash the hands” of the superiors from any further responsibility in relation to that member. Rather, the superiors must review the incident with a view to determining if immediate action is required, such as the reassignment of the file (when the superiors determine that the investigator is no longer capable of carrying out the investigation in an impartial manner) or immediate guidance and supervision is required on that particular investigation and perhaps others that the investigator is conducting.

8. FINDING AND RECOMMENDATIONS

53. In sum, the deficiencies observed in respect of the performance of senior leadership in the management and supervision of this investigation clearly contributed, one might even say led, to the ultimate flawed result. Once again it is noted that a particularly troubling aspect of this case is that had these events taken place in Alberta or any other post charge screening province, as opposed to British Columbia with its pre-charge screening system, CS would have in all likelihood been charged.Footnote 310 Fortunately, this was not the case.

54. While it is true that Crown Counsel may have very well withdrawn the charge prior to going to trial, this would not have abated the unnecessary embarrassment and trauma which would have been experienced by the youth CS and his mother as a result of being charged and having to appear in a criminal court and the more damaging record of having been charged. This should serve as an important wake up call to the senior leadership of the military police as to the importance of meaningful supervision and management of investigations.

Finding # 12:

The Chair finds that there was an overall lack of appropriate and effective supervision or management of the CFNIS investigation on the part of WO Bergin, MWO Watson and Major Bell. Symptomatic of this lack of leadership attention were:

  1. The multiple reassignment of the lead investigator role without clear direction being provided as to how a file in progress was to be transferred or assumed;
  2. The assignment of a lead investigator who lacked the required English language capability;
  3. The assignment of a lead investigator who lacked the required training and experience as an investigator and without provision of adequate mentorship, i.e. both in terms of extent of the mentor's participation and clear direction as to the mentor's role;
  4. The absence of an ongoing systematic approach for engaging supervisors in in-depth file reviews so that meaningful supervision and direction could be provided throughout the course of the investigation;
  5. The approval of a Crown Brief which was neither complete nor accurate in all detail;
  6. The approval of a Crown Brief recommending a charge where the evidence was weak and without further inquiry concerning the exact nature and quality of the evidence;
  7. The failure to react proactively and effectively to a complaint received concerning an investigation in progress;
  8. The failure to treat professionally with a member of the public, particularly in respect of the correction of misinformation and notification concerning the final disposition of the investigation;
  9. The failure to ensure appropriate action was taken to update in SAMPIS the role code assigned to CS;
  10. The failure to fully examine or de-brief the file for lessons learned following notification by the Crown that a charge was not approved; and,
  11. The failure to react to the constructive criticism and direction provided by superior headquarters.
  • In noting his agreement with this finding, except in respect of item 12.i, the CFPM noted: “The deficiency is attributable more to MP policy re use of SAMPIS in place at the time, a policy to which these three members were subject.
  • I take this as an acceptance of this finding and given the commitment of the CFPM to develop a workable policy to reinforce the accuracy of a person's role assignment, and timeliness of any changes to that assignment, I am satisfied with the resolution of this matter.

Recommendation # 14:

The Chair recommends that the relevant training and policies are reinforced or developed, as the case may be, requiring the fully informed engagement of supervisors in investigations and making clear that this is not “micro-management”, but an essential check and balance or quality control mechanism for the investigative process.

  • In stating his acceptance of this recommendation, the CFPM noted: “Accepted to the extent that existing policiesFootnote 311 appear to address adequately the issue, while further emphasis upon and training in these policies is required.
  • I am satisfied with the implementation of this recommendation as noted by the CFPM.

Recommendation # 15:

The Chair recommends that the language profiles of all NIS investigator positions be reviewed to confirm that they are appropriate to the work to be assigned and further that supervisors be reminded that it is ultimately their responsibility to ensure that work is assigned in accordance with linguistic capability.

  • In his acceptance of this recommendation, the CFPM noted: “Further co-operation between CFNIS and the MP/MPO career manager is required in this regard, in consultation with DPM RM and in light of ongoing changes to the CF Official Languages policy.

Recommendation # 16:

The Chair recommends that CFNIS implement a policy whereby all investigations in which charges are recommended (i.e. in pre-charge screening jurisdictions) or laid, but not proceeded with to prosecution, be subjected to a detailed examination for lessons learned.

  • In stating his acceptance of this recommendation, the CFPM noted: “The recommendation is applicable not just to the CFNIS, but to the other charge-laying elements of the military police as well. At the same time, the ‘lessons learned’ process consumes time and labour. Some, all or more of this may be recouped if the lessons learned are valuable. Yet not all crown decisions to not proceed with or approve charges are attributable to police failings. There may be a number of situations where the police have developed a case with a reasonable prospect of conviction, yet with time and reflection the crown decides it would not be in the public interest to proceed. Each crown rejection of charges laid or recommended by police should be screened to determine whether a further analysis is warranted from a professional standards perspective. This case, for example, would pass such a screening.
  • I am satisfied with this approach which is effectively a refinement of the recommendation.

Recommendation # 17:

The Chair recommends that supervising military police personnel be reminded that the reporting requirements regarding complaints as provided for in section 250.21 of the National Defence Act do not relieve them of the responsibility to review the complaint and to take appropriate action, if any, in respect of ongoing matters to which the complaint may pertain.

  • In his acceptance of this recommendation, the CFPM noted: “The reminder will take the form of a PPA.” (Police Policy Advisory)

VII TRAINING

1. INTRODUCTION

1. The issues addressed in this section are ones of a systemic nature and beyond the individual control of any of the parties involved in this inquiry process, except perhaps the CFPM, who, in personality, was not the CFPM at the time relevant to the events in question. These systemic training issues are closely related to broader issues of the availability and management of human resources, also matters beyond the control of the parties. In fact, it should be noted that some of the issues discussed in this section, both individually and collectively, mitigate in part what might otherwise be considered to be failings on the part of certain parties.

2. In the analysis of these training/human resources issues it must be expressly noted, as did several of the witnesses, that 'this is not a perfect world'. While that truism will logically justify some deviation from perfection in result, it can not be allowed to provide a total defence in the face of systemic failures which must, accordingly, be the subject of adverse comment. This is particularly so when, notwithstanding the lack of empowerment on the part of the parties to correct the systemic failures, better management practices could have lessened the impact of some of the recognized weaknesses.

2. GENERAL STANDARDS PRE-POSTING TO THE NIS

3. The evidence heard by the Commission indicated that the basic and essential training requirements for NIS employment were and are the 'MP Criminal Investigator Course' delivered at the MP Academy and the ‘internship programme’ run internally by the NIS over a period of approximately one year on joining the unit. These training requirements apply to all members of the unit without exception. The evidence also revealed that at the time of the events in question (summer and fall of 2004) the personnel in the Edmonton office of Western Region NIS who did not have the required training included the MWO, one of the two WOs and over 50% of the available Cpl/MCpl investigators. This situation was attributed to an abnormally high level of posting activity during the 2004 season; as stated by MWO Watson, there was a 60% turnover of personnel. Footnote 312

4. Whatever the reason for the state of training of the Western Region NIS, Edmonton office personnel, it clearly presented an untenable situation for the professional performance of any investigative organization. Parenthetically, one might wonder if any other branch of the Canadian Forces might be expected to engage in operations with such a state of training - it could only be hoped not.

5. The situation in respect of the front-line investigators was compounded by the state of training of supervisory personnel, most particularly the MWO who was, as noted earlier, said to have responsibility for case oversight and quality assurance. This logically begs the question of how that individual was to carry out those responsibilities before having completed the requisite training, or whether it was contemplated that there simply be no oversight or quality assurance.

3. MP CRIMINAL INVESTIGATOR COURSE

6. It was not the purpose of this public inquiry to look into matters such as the course content of what is known as the MP Criminal Investigator Course delivered at the MP Academy. However, in light of the evidence heard regarding the professional significance attached to this course for NIS employment and the conclusions reached herein regarding systemic failures related to training, at least some consideration of the course content is necessary. Suffice it to say that, whatever the course does supply or add to the qualifications of MP investigators, witness after witness made it absolutely clear that the course does nothing to inform investigators about proper identification procedures such as the steps to conduct a proper line-up nor did they receive such training on any other standard MP course. Even more basic, several investigator witnesses were by and large totally unaware of the reasons for having proper identification procedures; that is, because of the great frailties associated with eyewitness evidence.

7. Cpl Dyck, who graduated from the MP Criminal Investigator Course on November 10, 2004, stated that the course was approximately three weeks in duration and noted that part of the course covered “basic” interview and interrogation techniques similar to what he learned on the QL3 and QL5 courses.Footnote 313 Cpl Dyck testified that all of his training in relation to interviews and interrogations was confined to these three courses (QL3, QL5 and MP Criminal Investigator Course). The only supplement to this was his on-the-job experience and working with and observing other investigators.Footnote 314 He further noted that when there are changes to legislation such as the young offenders' legislation, there is no mandatory upgrading or refresher training.

8. Sgt Niclaes gave evidence that he had never been taught the Reid techniques of interrogations, although he did do some self-initiated reading on the subject.Footnote 315 Beyond the MP Criminal Investigator Course, Sgt Niclaes did not take any other courses dealing with interviews and interrogations.

4. THE INTERNSHIP PROGRAMME

9. The Internship ProgrammeFootnote 316 utilized by the NIS to provide supervised practical experience to presumably course qualified investigators appears, at least on its face, to be an effective model or approach to professional development. However, much was left to be desired in the execution of this program as it relates to this case.

10. Firstly, the evidence made it clear that there existed varying views between supervisors such as WO Bergin and participants such as Sgt Niclaes and Cpl Dyck, as to the role of 'coach/mentor investigators' and, indeed, the extent of the support and guidance that was to be provided to new investigators in the Internship Programme.

11. Cpl Dyck stated that while he did not have one mentor assigned to him for the entire year, he always worked with someone who was a qualified coach (meaning someone who had had completed both the MP Criminal Investigator Course and the one-year Internship Programme) for each investigation. Cpl Dyck noted that ultimately WO Bergin was responsible for supervising his Internship Programme.Footnote 317 WO Bergin extended Cpl Dyck's Internship Programme beyond the standard one year period. According to Cpl Dyck, WO Bergin did not specify why his internship was extended, simply that he needed some more time to complete everything. Cpl Dyck stated that “at the end of it I was told that I did a good job, it was complete and that was it.Footnote 318 Cpl Dyck testified that he felt there should be more supervision of the individual during this internship year. Footnote 319

12. WO Bergin noted that Cpl Dyck's Internship Programme was extended beyond the normal one year period for reasons of motivation such as readiness to deploy and putting in the extra mile, and not for anything associated with this investigation or his investigative skills.Footnote 320

13. As mentioned previously, contrary to the views of WO Bergin, Sgt Niclaes testified that he was never specifically assigned to the sexual assault investigation in question; rather, he was assigned to monitor the victim interview with Cpl Lambert and the subject interview with Cpl Dyck. Sgt Niclaes noted that he was not assigned as a partner to the investigation and did not consider his role to be one of managing the file. He considered his role to be a limited one of participating in certain interviews and answering any questions of the investigators assigned to the file.Footnote 321 Beyond reading the questions that Cpl Dyck had prepared, Sgt Niclaes testified that he reviewed the steps of an interview with Cpl Dyck during the car drive to the subject interview. Sgt Niclaes knew that Cpl Dyck was aware of the Reid “nine steps” for interviews so he did not review this with him.Footnote 322

14. WO Bergin described the Internship Programme variously as a process wherein the “duties of a coach officer are to take a new investigator basically by the hand, so to speak, and walk through our procedures, the NIS administrative requirements, everythingFootnote 323 to the other extreme wherein the coach was not assigned to the file at all and participated only in certain events such as a particular interviewFootnote 324. Most specifically, WO Bergin candidly stated: “In a perfect world, it would be nice to take, okay, a brand new person that comes in and give them a seasoned investigator and that person is with them for the whole year, but unfortunately that's not the way it works. We have to work with what we have.Footnote 325

15. All of this evidence signalled a lack of a systematized approach in the conduct of the Internship Programme wherein both roles and performance objectives were clearly defined. The result was an investigator, who had neither of the two required training qualifications (the MP Criminal Investigators Course and the completed Internship Programme), navigating his way with sporadic supervision or guidance through an investigation which presented a number of difficult issues (e.g. young persons, identification evidence, sexual assault) and which had the potential to have lifelong effect on the parties. While again acknowledging that it is seldom a perfect world and that often times one must make due, it is hard to rationalize how this justifies the adoption of a model which sees untrained investigators being employed on difficult and sensitive matters with minimal assistance. Overwhelming logic and common sense suggest that the best practice or model is one wherein new investigators are never employed in a ‘lead’ role until they are fully trained (which commonly involves a form of apprenticeship assisting an experienced investigator), and even then, they are employed in a lead role only on cases that are commensurate with their proven ability and experience. At a time when the issue of the civil liability of the police for “negligent investigation” is being closely scrutinized by the courts, this would seem to be an essential risk management strategy.

5. FRAILTIES OF EYEWITNESS IDENTIFICATION AND IDENTIFICATION PROCEDURES

16. As noted earlier, Cpl Dyck disavowed any knowledge or training in respect of identification procedures or the frailties of eyewitness testimony Footnote 326. Nor could Cpl Dyck recall any training in respect of lessons learned arising out of recommendations such as those contained in the Sophonow Inquiry, including the dangers of tunnel vision. Footnote 327 This is a matter of great concern.

17. Similarly, Sgt Niclaes candidly stated that he did not possess the proper skills to conduct a proper line up and when he did need to do a photo line up in one of his other cases, he had to self-teach the procedures. While Sgt Niclaes noted that during his MP training courses there may have been mention of identification procedures, he was never trained in the subject.Footnote 328

18. WO Bergin testified that he has never attended any in-house seminars on identification procedures or formal training in identification procedures such as photo line-ups.Footnote 329

19. Only during his general MP Criminal Investigator Course does MWO Watson recall receiving some training about the frailties surrounding identification evidence.Footnote 330 Curiously, this was the same course attended by Cpl Dyck.

20. Even the letter from the Crown, wherein the Sophonow Inquiry was cited, failed to spark any discussions or additional training amongst the management or investigators of WR NIS in relation to the eyewitness identification.Footnote 331

21. Maj Bell indicated that he was well aware of the Sophonow Inquiry and noted his awareness of issues surrounding eyewitness identification through his experience as a police officer and through the Sophonow Inquiry. Maj Bell believed that during one of his courses he had a case study on the Sophonow case. Maj Bell stated that he was surprised on hearing the testimony of his subordinates to learn that they did not possess a sufficient understanding of the issue. Maj Bell also made reference to the removal of “identification protocol” from the MP manual which caused him concern and which he felt was deserving of re-examination in relation to reinserting it into the policy manual.Footnote 332

22. In considering the foregoing matters in respect of a lack of training, knowledge and protocols in regards to identification evidence the Commission was struck by their significance, in that identification is an element of every offence and potentially a live issue in every investigation and/or trial process which must be treated extremely carefully. Clearly the investigators in the instant case were not in a position to do so.

6. ONGOING TRAINING AND PROFESSIONAL DEVELOPMENT

23. It is trite to observe that the development of the law and such matters as best investigative practices consistent with the law is continuous, sometimes moving at a rapid pace. New developments that must be known to investigators in a timely fashion do not await the next career course. Again in respect of eyewitness testimony and procedures for obtaining identification evidence, the testimony received at the hearing revealed that not only did NIS investigators not have the benefit of historical learning, they similarly did not have more recent lessons learned. For example, only one investigator witness recalled hearing of the Sophonow Inquiry Report which, it may be noted, was released in 2001. When asked if any of his courses included discussion or training in respect of false accusations, Cpl Dyck noted that there was merely a brief mention of it but nothing in respect of training. Footnote 333

24. WO Bergin testified that approximately four times per year they would have training sessions to discuss a variety of legal issues with the military prosecutor.Footnote 334 Apart from this, it became clear that there was no regular, ongoing and authoritative mechanism within NIS, and perhaps the MP trade generally, to continuously update professional learning and development in a timely fashion. This is unfortunate for all concerned - for the police as a matter of maintaining the highest professional standards and avoiding exposure to liability - for the public as a matter of potential consequences, as in the case herein.

7. FINDINGS AND RECOMMENDATIONS

Finding # 13:

The Chair finds that there was an organisational failure which resulted in a reduced level of training within the ranks and leadership of NIS WR during the summer and fall of 2004 which contributed to the errors committed in the course of this investigation.

  • In stating his agreement with this finding, the CFPM noted: “This reflects a common problem within the CF experienced during the Active Posting Season (APS).

Finding # 14:

The Chair finds that the same personnel situation and reduced level of training during the summer and fall of 2004 prohibited the proper and effective function of the “internship programme”.

  • CFPM agreed with this finding.

Finding # 15:

The Chair finds that there was a particularly critical systemic failing in the training of military police personnel in matters related to eyewitness identification evidence, both in regards to proper investigative procedures and the inherent frailties of such evidence, especially if not collected properly.

  • In noting his agreement with this finding, the CFPM stated: “This matter is being addressed through improved training.

Recommendation # 18:

The Chair recommends that the Canadian Forces Provost Marshal, and other Canadian Forces authorities as appropriate, revisit recommendation 12 Footnote 335 of the Special Advisory Group on Military Justice and Military Police Investigation Services (the Dixon Report) with a view to enabling the CFNIS to select, train and retain a suitable cadre of military police personnel and to thereby fulfill that important recommendation. One approach to meeting this goal, of which the Commission heard and consideration of which is recommended, would be to identify CFNIS as a military sub-occupation with the purpose of identifying a suitable number of military police personnel at the required rank levels who would have advanced or specialized skill sets and training.

  • In his acceptance of this recommendation, the CFPM wrote: “There have been significant improvements made in the personnel policies to address a number of issues surrounding postings of CFNIS members. That being said, further research is required and is underway.

Recommendation # 19:

The Chair recommends that appropriate precautionary measures be put into place to ensure avoidance of a reoccurrence of the high ratio of untrained versus trained military police personnel as was experienced in NIS WR in 2004.

  • In his acceptance of this recommendation, the CFPM wrote: “There is a trial underway with the MP Branch directly involved in the management of CFNIS positions. There is a challenge, however, in managing the positions when promotions occur and there are not an adequate number of positions at that rank to accommodate someone to stay within the CFNIS. More research is required and is underway.

Recommendation # 20:

The Chair recommends that military police personnel, with particular emphasis on NIS investigators, be provided with enhanced training regarding eyewitness identification evidence, including the frailties thereof as well as the associated procedures and best practices.

  • Recommendation accepted by the CFPM.

Recommendation # 21:

The Chair recommends that military police investigator training incorporate learning in respect of critical thinking by investigators, including references to the dangers of “tunnel vision” and other lessons learned from the Sophonow Inquiry and other such reports.

  • In noting his acceptance of this recommendation, the CFPM wrote: “These subjects have now been included in the lecture series at the CFNIS Indoctrination course. They were also the subjects of discussion amongst the MP Branch leadership at the 2007 CFPM Symposium. The CFNIS has also conducted lectures on these subjects to the CFNIS Dets on their training days. What remains to be done is to develop a more disciplined and clear treatment of the subjects at the Canadian Forces Military Police Academy.

Recommendation # 22:

The Chair recommends that the Canadian Forces Provost Marshal makes the MP Criminal Investigator Course a prerequisite to being employed as lead investigator in NIS.

  • Recommendation accepted by the CFPM.

Recommendation # 23:

The Chair recommends that the Internship Programme be reviewed with a view to changing to a model wherein new investigators are provided with greater opportunity for mentorship and learning by assisting experienced investigators, and are not employed in a ‘lead’ role until they are adequately trained.

  • In his acceptance of this recommendation, the CFPM noted: “The CFNIS SOP 111- Internship was recently rewritten to reflect this recommendation.

Recommendation # 24:

The Chair recommends that the Canadian Forces Provost Marshal create or augment the use of a system, such as an electronic newsletter, to regularly provide military police personnel with continuing education in the form of updates on legal matters and other events which impact police operations.

  • In noting his acceptance of this recommendation, the CFPM wrote: “The CFPM website has recently been updated to include an electronic newsletter. In addition, the use of electronic Police Policy Advisory documents will be enhanced.

VIII CONCLUSION

This public interest hearing process resulted in findings and recommendations concerning the performance of certain military police members which gave rise to the complaint before the Commission. These determinations of individual responsibility were significant and necessary in order to address the complainant's concerns. However, of far greater importance were the systemic failings revealed in the course of the inquiry; matters which shaped and informed the deficiencies in individual performance. The Commission recognizes with appreciation the very positive and constructive reaction of the Canadian Forces Provost Marshal to all of the findings and recommendations raised to his attention and is thereby confident that changes and improvements of a lasting and broad based effect will result. It is hoped that the complainant and her son are similarly satisfied, with particular recognition of the early apology from the Provost Marshal during the hearing process.

By way of final commentary, it is noted that this public interest hearing process, including the preparatory phase and post hearing consideration of the interim report, extended over a considerable period of time and the stress and anxiety borne by the participants throughout is not underestimated. The Commission thanks all concerned for their patience and cooperation.

ANNEX - SUMMARY OF THE COMMISSION'S FINDINGS AND RECOMMENDATIONS; CFPM'S NOTATIONS AND COMMENTARY IN HIS NOTICE OF ACTION AND FINAL COMMENTS BY THE COMMISSION

THE INVESTIGATION

Finding # 1:

The Chair finds that the CFNIS investigation was neither diligently carried out nor was it complete in terms of the collection of evidence. This finding of fault is attributed to the investigators and superiors alike in this investigation.

  • CFPM agreed with this finding.

Finding # 2:

The Chair finds that on assignment of the file, Cpl Dyck failed to thoroughly review previous investigative work and to obtain meaningful briefings on the investigative progress of the file. This failing is mitigated, in part, by his level of training and experience and certain failings in the supervisory chain.

  • CFPM agreed with this finding

Finding # 3:

The Chair finds that certain CFNIS reports were incomplete and/or inaccurate.

  • In noting his acceptance of this finding, the CFPM wrote: “I agree with the essence of this finding. The use of the term ‘reports’, however, is unclear. The intent appears to be to make a finding that ‘certain CFNIS entries in SAMPIS relating to this investigation were incomplete or inaccurate or both.’”
  • The reports or entries, if preferred, are those mentioned in section 8 of the section titled “Accuracy of CFNIS reports.” More specifically, reference was made to page 79 of the Case Summary Report and a further report entry. In addition, I observed that no notes were taken of “off” tape conversations with C and CS resulting in an incomplete entry with respect to those encounters.

Finding # 4:

The Chair finds the reliance on the flawed identification was a serious failing in this investigation and one that is to be attributed to the investigators and superiors alike.

  • CFPM agreed with this finding.

Finding # 5:

The Chair finds that Cpl Dyck and, arguably, Sgt Niclaes fell prey to “tunnel vision” which could have been avoided with proper supervision

.

  • CFPM agreed with this finding.

Finding # 6:

The Chair finds the complainant ought to have been notified that her son would not be charged and as the investigator assigned to the file, Cpl Dyck should have verified that this had been done. The responsibility for the failure to notify is also attributed to the superiors.

  • CFPM agreed with this finding.

Recommendation # 1:

The Chair recommends that NIS develop a comprehensive policy for the handover of investigations in progress. Such a policy should include clear direction that the investigator taking over the investigation conduct a complete review of all investigative product accumulated to date, including the transcripts or tapes of interviews, and, as possible, be briefed by all other investigators who participated in any aspect of the investigation. Based upon this complete and detailed review, a new investigation plan should be prepared for supervisory review and approval.

  • In his acceptance of this recommendation, the CFPM noted: “The revised CFNIS SOP 201 - Investigations-General, has redressed this issue. Since investigations are also done by other elements of the military police, the lesson is being carried further into our Military Police Policies and Technical Procedures as well.

Recommendation # 2:

The Chair recommends that Military Police policies (DPM Police Advisory 09/07, Chapter 7, Annex N) or Standard Operating Procedures be reviewed regarding eye-witness identification in order to ensure appropriate caution with regards to the reliance on eye-witness identification is signaled to investigators and the best practices for conducting identifications are clearly outlined for both photographic and in person identifications.

  • In his acceptance of this recommendation, the CFPM noted: “MPPTP Ch.7, Annex N refers. Caution regarding eyewitness identification is stressed. Best practices for photo identification are set out. Work remains to be done with respect to ‘in-person’ identification procedures.
Date modified: