Chairperson's Final Report - MPCC-2006-029 regarding a complaint from the Chief of the Defence Staff

National Defence Act - Part IV
Section 250.53

FINAL REPORT

Following an Investigation
Pursuant to
Section 250.38(1) of the National Defence Act
Of the Complaint from the Chief of the Defence Staff
Concerning the conduct of
Warrant Officer Richard Molloy,
Canadian Forces National Investigation Service

File: MPCC-2006-029
Ottawa, February 23, 2007

Mr. Peter A. Tinsley
Chair

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

TABLE OF CONTENTS

  1. Summary of the Incident
  2. Conduct Complaint
  3. Methodology of the Complaints Commission's Investigation
    1. The Decision to Call a Public Interest Investigation
    2. Documentation Review
    3. Interviews
    4. Consideration of the Canadian Forces Provost Marshal's Notice of Action
  4. The Chair's Analysis and Findings
  5. Summary of Findings

I SUMMARY OF THE INCIDENT

1. This complaint originates with a corporal's allegations of mistreatment at the hands of members of the training staff at the Canadian Forces (CF) Military Police Academy at Canadian Forces Base (CFB) Borden, Ontario. Both incidents occurred in the fall of 2002 when the member was taking his initial training to be a military police (MP) member, and both involved the actions of the same MP sergeant who was then an instructor at the MP Academy.

2. In the first incident, which took place during a training exercise in October 2002, where students were to experience being exposed to pepper spray, the corporal alleged that the sergeant deliberately sprayed him in the eyes, contrary to the rules for the exercise. In the second incident, which occurred on December 13, 2002, the corporal alleged that the sergeant had clipped him on the back of the head while he was exchanging greetings with other staff at the MP Academy Christmas mess dinner.

3. Both allegations originally formed part of a harassment complaint filed by the corporal in June 2003, following his removal from the military police training course. The corporal had also submitted a grievance regarding the termination of his military police training. However, the two allegations described above were singled out by the Academy Commandant (the initial authority for both the grievance and the harassment complaint) for a police investigation as they involved the possible commission of an offence (assault). As the subject of the allegations was a military police member, the two assault allegations were referred to the Canadian Forces National Investigation Service (CFNIS).

4. The CFNIS investigation into the two alleged assaults commenced on July 30, 2003 and concluded on March 22, 2004. The case was originally assigned to another MP officer; however, it was reassigned to Warrant Officer (WO) R. Molloy in January 2004.

5. At the end of the investigation, WO Molloy concluded that there was no evidence to support a service offence and that no charges would be laid in the matter. At this point, the administrative processes associated with the corporal's grievance and harassment complaint resumed.

6. Eventually, the corporal's grievance reached the Chief of the Defence Staff (CDS), the highest level in the CF grievance process. In his July 6, 2006 grievance decision, the CDS decided that the appropriate disposition of the corporal's grievance required a proper determination of his related harassment complaint. In this connection, the CDS found that one of the two assault allegations which formed part of the harassment complaint (the Christmas dinner incident) had not been fully investigated by the CFNIS. While the CFNIS investigation report reached a clear and supported conclusion regarding the pepper spray incident, the CDS found that the Christmas dinner incident was not adequately addressed.

7. As a result, on July 26, 2006, the CDS had the Christmas dinner incident referred to the Military Police Complaints Commission for an investigation as a military police conduct complaint under section 250.18 of the National Defence Act.

II CONDUCT COMPLAINT

8. The CDS's July 6, 2006 grievance decision expressed concern that an allegation of assault by a military police member and training instructor was not properly addressed by the CFNIS investigation, which was conducted by WO Molloy. Specifically, the CDS's grievance decision noted the lack of an express finding regarding the Christmas dinner incident of December 2002, as well as the failure to interview a key witness who was directly in front of the corporal when the alleged assault took place. It appeared to the CDS that the CFNIS investigator had simply relied on the denial by the sergeant who was the subject of the allegation. The CDS, therefore, concluded that “this allegation was not properly and thoroughly investigated.

III METHODOLOGY OF THE COMPLAINTS COMMISSION'S INVESTIGATION

a)  The Decision to Call a Public Interest Investigation

9. On August 16, 2006, the Chair of the Complaints Commission gave notice that he had decided to launch an immediate investigation of this complaint in the public interest as permitted by section 250.38 of the National Defence Act. The Chair's decision was the result of a number of considerations.

10. First, as the complainant (the CDS) himself pointed out in his letter, a seemingly unresolved allegation of assault in respect of a student on the part of a military police non-commissioned officer employed on the training staff of the MP Academy is, in itself, a serious matter. There is, moreover, the CDS's finding, in the context of the grievance determination, that the CFNIS failed to conduct a proper investigation into service offence allegations against a fellow military police member.

11. Second, given the passage of time since the incident in question, an immediate investigation by the Complaints Commission was deemed more consistent with a timely resolution of the matter. In this respect, the Chair gave considerable weight to the CDS's acknowledgment that considerable time had already elapsed since the incident in question, as well as his decision to refer the matter to the Commission itself, rather than the Canadian Forces Provost Marshal (CFPM), who would normally be responsible for the initial investigation of a military police conduct complaint.

12. Moreover, given the CDS's recognition that almost three years had then elapsed since the incident in question, along with his determination that the matter nonetheless merited investigation by the Complaints Commission, the Chair considers the CDS's July 6, 2006 decision letter referring this matter to the Complaints Commission as implicitly including a request for an extension of the time in which to file a complaint. The Chair further deems that his letter of August 16, 2006 declaring a public interest investigation implicitly granted the necessary extension of time to file the complaint, effective from that date, in accordance with section 250.2 of the National Defence Act.

b)  Documentation Review

13. In response to its request of August 22, 2006, on October 5 and 27, 2006, the Complaints Commission received disclosure of the materials and documents relevant to the investigation of the Christmas dinner incident described above, namely, the contents of military police General Occurrence (GO) file number 2003-20279, as well as recordings of interviews conducted by CFNIS personnel and the relevant investigator notebook entries. These materials, along with the CDS's grievance decision letter of July 6, 2006, were reviewed by the Complaints Commission as the first step in its investigation of this complaint.

c)  Interviews

14. In addition to a review of relevant documents and materials, the Commission conducted in person interviews with: the military police officer then serving with the CFNIS who was first assigned the investigation of the assault allegations in July 2003 (hereinafter referred to as the initial CFNIS investigator), on December 11, 2006; and the military police member deemed to be the subject of the complaint, WO R. Molloy, on December 21, 2006. The Commission also conducted an interview by telephone with the witness to the assault identified in the CDS's grievance decision (hereinafter referred to as the master corporal), on November 23, 2006. Although he declined to be interviewed, the corporal who originally made the assault allegations did provide the Commission with written answers to questions.

d)  Consideration of the Canadian Forces Provost Marshal's Notice of Action

15. On February 20, 2007, the Complaints Commission received the CFPM's Notice of Action (dated February 15, 2007) in response to the Chair's Interim Report dated February 5, 2007.

16. In conformity with NDA section 250.51(1), the Chair has 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.

17. The Chair is pleased to note that the CFPM has accepted the Complaints Commission's findings in relation to this complaint.

IV THE CHAIR'S ANALYSIS AND FINDINGS

18. The Commission's review of the CFNIS investigation file (GO 2003-20279) revealed that the investigation started out with the intention of investigating both assault allegations contained in the corporal's harassment complaint, that is, the pepper spray incident as well as the Christmas dinner incident. This is apparent from the investigation plan prepared by the initial CFNIS investigator, as well as a review of the video tape of the interviews with the first three witnesses, which were conducted on September 3, 2003. This was also confirmed by the initial CFNIS investigator in her interview with the Commission.

19. The initial witness interviews conducted by the CFNIS were with the corporal and two other students who were present at the 2002 Christmas dinner. These interviews were conducted professionally and the Christmas dinner allegation was probed to an adequate degree in the circumstances.

20. During his interview with the initial CFNIS investigator, the corporal made the statement that he probably would not consider the Christmas dinner incident to be an assault. Through its investigation, the Commission has determined that this statement significantly influenced the subsequent course of the CFNIS investigation with respect to that incident.

21. At some point in January 2004, as the file was being transferred to WO Molloy, the focus of the CFNIS investigation was shifted to the pepper spray incident exclusively. This is evidenced by the fact that the summary of the interview with the corporal, which was posted to the Security and Military Police Information System (SAMPIS) on January 13, 2004, includes coverage of the Christmas dinner incident; whereas the summaries of the other two September interviews, which were posted on January 20, did not cover this issue, even though it was touched on in both interviews.

22. When witness interviews resumed in later January 2004, after the transfer of the file to WO Molloy, it became apparent that the Christmas dinner incident was no longer part of the investigation.

23. On January 22, 2004, WO Molloy re-interviewed one of the students, who was at the 2002 Christmas dinner and who had been previously interviewed on September 3, 2003. In this interview, it is the witness, and not WO Molloy or the other military police member assisting with the interview, who brings up the Christmas dinner incident. In response to the issue being raised, WO Molloy states “Basically he [meaning the corporal] mentioned that but apparently he did not consider that was an assault,” and later says “...my understanding is that he [the corporal] is not making an issue of that, just the pepper spray issue.

24. Again, in the interview of the sergeant (who is the subject of both assault allegations) on February 16, 2004, it is the sergeant, and not WO Molloy, who brings up the Christmas dinner incident about four minutes from the end of the fifty minute interview. Once again, WO Molloy refers to the fact that the corporal does not consider the incident to be an assault and is not “making an issue of [it].” When a summary of this interview is placed on SAMPIS later that day, there is no mention of the incident.

25. Later the same day (February 16, 2004), WO Molloy interviewed the master corporal whose hand the corporal was shaking when the incident is alleged to have taken place. Yet the interview covered only the pepper spray incident. Footnote 1 WO Molloy's last interview on the file took place on February 24, 2004; however, it had no relevance to the Christmas dinner incident.

26. Finally, at the end of the investigation, the “Concluding Remarks” entered in the GO file on SAMPIS on March 22, 2004 refer only to the pepper spray incident.

27. Through its interview with WO Molloy, the Commission has confirmed that after he took over the file and reviewed the investigation to that point, WO Molloy decided to focus the investigation solely on the pepper spray incident. His rationale was that it seemed that the corporal did not see the Christmas dinner incident as an assault. The initial CFNIS investigator indicated to the Commission that she had reached a similar conclusion, although WO Molloy stated that he would have reached his own conclusion anyway. As the ultimate lead investigator on the file, WO Molloy made it clear that he took full responsibility for any deficiencies in the investigation.

28. WO Molloy's view of the Christmas incident was reaffirmed when he briefly spoke with the corporal on January 22, 2004 and was told the he (the corporal) was “not worried about” that incident.

29. While the victim's characterization of the impugned conduct will not always be a decisive factor in guiding an investigation, it can in some cases be an appropriate consideration in the exercise of policing discretion with respect to the conduct of an investigation. In this case, given the relatively minor nature of the alleged physical contact, and the ambiguous nature of the alleged act (was it to get his intention, or was it just a joke?), it was, in my view, an entirely reasonable exercise of judgement for WO Molloy to take the victim's perceptions of the incident into account when deciding the future course of the investigation.

30. In light of the foregoing, I would conclude that the CFNIS investigation of the alleged assault incidents, including the Christmas dinner incident of December 13, 2002, was full and appropriate in the circumstances.

Finding # 1:

The Chair finds that the Canadian Forces National Investigation Service fully and appropriately investigated both potential assault allegations referred to them from the corporal's June 2003 harassment complaint.

31. The only flaw in the CFNIS investigation into this matter was that the decision to no longer pursue the investigation with respect to the Christmas dinner incident was not clearly documented on the file. At a minimum, one would expect to see an updated investigation plan prepared which reflected the change in focus. The investigator's conclusion with respect to the Christmas dinner allegation could also have been usefully noted in the “Concluding Remarks” section of the investigation report.

32. Both the initial CFNIS investigator and WO Molloy conceded to the Commission that in retrospect, the decision with regard to the Christmas dinner incident should probably have been documented in the file. WO Molloy indicated that, at the time, the SAMPIS system was relatively new to him. He further indicated that now he does update his investigation plans and accepts that it would have been the proper thing to do in this case.

33. CFNIS Standard Operating Procedure (SOP) # 201 states (at paragraph 7): “As the investigation progresses, investigative plans must be continuously reviewed and updated to ensure the ‘elements of the offence’ are identified and all attempts are made to prove those ‘elements’.” This SOP (dated April 2001) was in force at the time of the CFNIS investigation in this case.

34. Had such steps been taken in this case, it seems likely that the CDS would have had available a full explanation of the decision making process when considering the grievance.

Finding # 2:

The Chair finds that Warrant Officer Molloy should have ensured that an updated investigation plan was prepared in this matter or that his decision not to pursue the investigation with respect to the Christmas dinner incident was otherwise documented in the investigation file.

35. I note that WO Molloy is about to retire from the CF. Moreover, both the initial CFNIS investigator and WO Molloy acknowledged during the Complaints Commission's investigation of this matter that the investigation plan should have been updated regarding the Christmas dinner allegation. WO Molloy further states that this is his current practice. Furthermore, as noted above, the CFNIS SOPs already require appropriate review and update of investigation plans. Additionally, the Military Police Polices and Technical Procedures already provide that a decision to discontinue an investigation of an offence allegation must be “overt, transparent and defensible,Footnote 2 and further, that such a decision “must be recorded in writing,” with the rationale “included in the record and the complainant appropriately informed.Footnote 3 It should go without saying that these practices would apply equally to each allegation forming the basis of the investigation.

36. In light of the foregoing, I believe it is unnecessary to make any recommendations in respect of this complaint.

V SUMMARY OF FINDINGS

Finding # 1:

The Chair finds that the Canadian Forces National Investigation Service fully and appropriately investigated both potential assault allegations referred to them from the corporal's June 2003 harassment complaint. (ACCEPTED)

Finding # 2:

The Chair finds that Warrant Officer Molloy should have ensured that an updated investigation plan was prepared in this matter or that his decision not to pursue the investigation with respect to the Christmas dinner incident was otherwise documented in the investigation file. (ACCEPTED)

Ottawa, February 23, 2007

Peter A. Tinsley
Chair

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