Final Report – MPCC 2008-18

National Defence Act - Part IV

Final Report

Following a Public Interest Investigation
Pursuant to Subsection 250.38(1) of the National Defence Act
With Respect to a Complaint
Concerning the Conduct of Sgt. James Steward and Cpl. Christina Victoria Kenny
Military Police at CFB Borden in Ontario, Canada

File: MPCC 2008-18
Ottawa, February 9, 2009

Mr. Glenn Stannard, Commission Member
Mr. Roy Berlinquette, Commission Member

Table of Contents

I. Summary of the Incident

1. The Complainant is a member of the Canadian Forces with 28 years of service. She suffers from Post Traumatic Stress Disorder (“PTSD”) and major depression. As a result, she was receiving help from the Mental Health Services Unit, and was followed on a regular basis by a psychiatrist, Dr. David Ewing, and a social worker, Ms. Barbara Cohlmeyer.

2. On May 16th 2008, around 0800 hrs, the Complainant, in a state of emotional crisis, sent an e-mail message addressed to Ms. Cohlmeyer and Dr. Ewing. The Complainant’s message stated that she was tired and depressed and that she “has had enough”. As a result, Ms. Cohlmeyer communicated with the Complainant and made arrangements to meet with her at 1000 hrs for a crisis appointment at the Medical Inspection Room (“MIR”).

3. During their meeting, the Complainant’s representations gave rise to concerns about whether she might harm herself or attempt suicide. Dr. Ewing was informed of the situation by telephone. He in turn contacted the duty doctor, Capt. Catherine Bass. Dr. Ewing informed Dr. Bass about the risk for suicide by the Complainant and she agreed to execute a Form 1 under subsection 15(1) of the Ontario Mental Health Act (“MHA”). This would allow Dr. Bass to send the Complainant to the Royal Victoria Hospital (“RVH”) for a 72 hour psychiatric assessment. Dr. Ewing also explained that the Complainant was not willing to go voluntarily to the RVH and he was afraid that she would try to leave the building.

4. Capt. Bass executed a Form 1 under the MHA, ensured that the Complainant was under close watch at all times and arranged for MP dispatch to be called to assist in transport of the Complainant to the RVH.

5. Sgt. James Gordon Steward (who is a subject of the complaint) responded to the MIR. Sgt. Steward received some information about the situation from the personnel at the MIR, and called Cpl. Christina Victoria Kenny (who is a subject of the complaint) to assist when he learned that the Complainant was a female.

6. On the day in question Sgt. Steward was the shift NCO in charge of the A Team shift patrol, and Cpl. Kenny was a member of that team. Sgt. Steward made the decision to have the Complainant searched and handcuffed by Cpl. Kenny prior to transport to RVH. He based his decision on officer safety and standard operating procedure for transport of persons in custody. Following a “pat down” search and handcuffing by Cpl. Kenny, in the presence of a female nurse, the Complainant was transported in a marked vehicle to RVH in the company of Cpl. Kenny, Cpl. MacDonald (a student MP) and one Pte. Gerrard Barclay (a medical technician).

7. At some point during or shortly after admission to the RVH the handcuffs were removed and custody of the Complainant was transferred to security personnel at the RVH.

8. On May 18th the Complainant was released from the RVH, 24 hrs before the expiration of the 72 hour assessment period.

9. At some point between May 20th and May 28th, 2008 the Complainant called MCpl. Raymond Quesnel of the Military Police (“MP”) to inquire as to normal procedure with respect to handcuffing of persons who are detained for mental health reasons (whom we will now refer to as “mental health detainees”), and to inquire as to the retention and distribution of information obtained by the MP during such an incident.

10. On May 26th or 27th 2008, the Complainant contacted a peer support person, Jim Woodley to discuss the incident and the manner in which she was treated by the Health Services staff and the MP members. Mr. Woodley asked her to send him an e-mail message, which he forwarded to the proper authorities.

11. On May 28th 2008, the Complainant lodged a complaint to the Military Police Complaints Commission (“MPCC” and “the Commission”).

II. The Nature of the Complaint

12. The Complainant objects to the manner in which she was treated by MP personnel when she was a patient seeking mental health services. The Commission assesses the complaints to be as follows:

  1. The Complainant was handcuffed and treated in a manner which ignored her right, as a patient seeking mental health services, to be dealt with in a manner using the lowest level of restraint possible.
  2. MP personnel did not respect her privacy as they carried out their actions in detaining, handcuffing and transporting her in full view of patients and staff in the MIR and the RVH, thus adding to her humiliation.
  3. During the body search prior to transport, the Complainant says that Cpl. Kenny was treating her like a prisoner or criminal and said words which impliedly made reference to places where criminals conceal contraband which must be checked during a search.
  4. MP personnel composed a report which contains information concerning the Complainant’s referral for a mental health assessment; this report in turn is given to the base Commanding Officer. The Complainant contends that this violates her privacy rights as it involves the disclosure of confidential medical information by the MP.

III. Methodology of the Complaints Commission’s Investigation

13. The Complainant was clear her objections to her treatment were directed as much towards the apparent standard procedures and policies informing the conduct of MP’s in the context of mental health detention and transport as toward the conduct of the individual MP personnel in her particular case.

14. In light of this, and in light of the broader policy issues surrounding treatment of Canadian Forces personnel who are seeking mental health assistance, the Chairperson of the Commission, on July 4, 2008, declared this complaint to be one of public interest pursuant to s.250.38(3) of the National Defence Act. It was seen as an opportunity to conduct a “best practices” review of the MP and other police services, and to make a set of “best practices” recommendations for the treatment of mental health detainees.

15. In the course of this investigation, the Commission reviewed an extensive body of factual documentation, conducted a large number of witness interviews, solicited and reviewed extensive policy and procedural documents, and solicited legal research in relation both to the individual complaints and in relation to the “best practices” review. A comprehensive list of the materials reviewed and persons interviewed is attached as Appendix A to this report.

16. On January 27, 2009, the Complaints Commission received the CFPM’s Notice of Action (dated January 19, 2009) in response to the Commission’s Interim Report dated December 29, 2008.

17. In conformity with NDA section 250.53(1), the Members have 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 Chairperson of any action that has been or will be taken with respect to the complaint.

18. The Members are pleased to note that the CFPM has accepted all of the Complaints Commission’s findings and recommendations in relation to this complaint and has tasked the DPM Police to conduct the required study and modifications.

IV. “Best Practices” Review – Issues Identified and Considered

19. During the course of this investigation, the Commission has identified the following areas of interest for the “best practices” review concerning escort and transport of mental health detainees:

  1. General protocols for escort and transport of mental health detainees;
  2. Jurisdictional protocols for MP’s concerning each of the federal, provincial and territorial jurisdictions in which they conduct their duties in order to clarify the legal authority and jurisdiction of MP’s, and to examine the prospect of integration of MP and local resources;
  3. Consideration of a protocol directing MPs to advise mental health detainees of their rights under the Canadian Charter of Rights and Freedoms.
  4. Consideration of the training, resource and implementation issues surrounding the implementation of any such protocols.

V. Analysis – Individual Complaints

(i) Treatment of the Complainant by Sgt. Steward and Cpl. Kenny – Use of Handcuffs

20. Cpl. Nathalie Pagé, a medical technician at the MIR, called the MP detachment at CFB Borden to request the presence of two MP members “STAT” meaning “immediately” or “now” regarding a mental health patient. She spoke to Ms. Joanne Hutchinson, the dispatcher on duty at the time.

21. Ms. Hutchison related that once she receives information such as the identity of the subject of the dispatch, her practice is to conduct background checks on her computer systems. She is fairly certain she did these checks on the Complainant on that day. She said she would normally run a CPIC check to find out if the Complainant had been involved in any prior incidents involving the police. There is no indication in the General Occurrence (GO) or in the MP members’ notes indicating any such background information was received, or that they had any concern in this regard.

22. Sgt. Steward, a 37 year veteran, was in charge of the patrol shift on May 16th and was the first one at the scene. When he arrived at the mental health department of the MIR, he met with John Rankin, a social worker. Mr. Rankin was asked by Dr. David Ewing, the psychiatrist who had requested the Complainant be assessed under section 15 of the MHA (but not the physician who executed the Form 1), to keep an eye on Ms. Cohlmeyer’s office as they were going to “Form 1” a patient. Dr. Ewing and Ms. Cohlmeyer were not sure how the Complainant was going to react. Dr. Ewing indicated that he wanted to be sure that Ms. Cohlmeyer was going to be safe, and he was also concerned that the Complainant may try to leave the MIR.

23. Mr. Rankin informed Sgt. Steward that the Complainant was in Ms. Cohlmeyer’s office and the situation appeared to be under control. Sgt. Steward told Mr. Rankin he would like to check on the Complainant himself to assess the situation.

24. Capt. Catherine Bass, Nurse Lori Mellett and WO Helen Pellerin (Clinic Warrant Officer) arrived at the mental health area of the MIR. Capt. Bass had been briefed by Dr. Ewing and had prepared a Form 1. Capt. Bass and Nurse Mellett entered Ms. Cohlmeyer’s office and as the door opened, Sgt. Steward stated he did a cursory check to make sure the situation was under control. Sgt. Steward recalls that the Complainant was up-tight and very tense. Sensing her tension, Sgt. Steward indicates he felt that she may lose control and there was a risk of violent behaviour.

25. WO Pellerin said she spoke to Sgt. Steward, who explained to her the procedure he intended to follow. He told WO Pellerin why he felt that the handcuffs were required. WO Pellerin advised the Commission that Capt. Bass had expressed to Sgt. Steward and Cpl. Kenny that she would have preferred they not use handcuffs. It was the MP members who decided otherwise. WO Pellerin then left.

26. Ms. Cohlmeyer came out of her office to speak to Sgt. Steward in the office across the hall. According to Sgt. Steward, Ms. Cohlmeyer then informed him about the condition of the Complainant. Sgt. Steward said he tried to get as much information as he could. He said the information he obtained was the Complainant came in for an appointment and during this time, she threatened to harm herself and refused to go to the RVH. He related he was told that the Complainant was suffering from PTSD as a result of her experience in the Golan Heights. Sgt. Steward said he understood that the Complainant had been the victim of sexual assault or harassment while she was in the Golan Heights. Nurse Mellett joined them at some point and was a participant in this conversation.

27. Sgt. Steward said he was told that the patient had tried to harm herself. Sgt. Steward relayed this information to Cpl. Kenny in a manner which lead her to believe the Complainant had been violent and she didn’t want to go to the RVH. Sgt. Steward said that this information came from the staff who were involved with the Complainant and had verbalized some of her thoughts. Sgt. Steward related that when he was in the room getting the information from the social worker, the Complainant was in the office with Capt. Bass and Nurse Mellett. He said that he could hear the Complainant raising her voice. It should be noted that all other witnesses, Ms. Cohlmeyer, Capt. Bass, WO Pellerin, John Rankin, Nurse Mellett and Cpl. Kenny, stated that the Complainant did not raise her voice at any time.

28. Cpl. Kenny said she arrived at the hospital and met with Sgt. Steward, who was standing in the doorway of the office across from Ms. Cohlmeyer’s office. She said that at that time the Complainant was still in the office with the nurse and the social worker.

29. Sgt. Steward informed Cpl. Kenny that the doctor was definitely going to “Form 1” the Complainant and she would have to be escorted to the hospital. Cpl. Kenny related that the nurse and the social worker informed them the Complainant had suffered severe trauma and she was very distraught. Cpl. Kenny contends they further said the Complainant had been violent towards the medical staff (nurse and social worker) but they didn’t know in what capacity and for what reasons. The nurse and the social worker also asked them to be delicate with the Complainant as she had suffered severe trauma. She believes it was the social worker who relayed the information to Sgt. Steward and herself.

30. All the medical staff interviewed during this investigation, Dr. Ewing, Capt. Bass, Nurse Mellett and Ms. Cohlmeyer stated the Complainant had not been aggressive towards the staff on that day, or at any other time. They all denied relaying contrary information to the MP members. All witnesses, including the MP members, were consistent in their evidence that the Complainant did not display any signs of aggressive behaviour in their presence on May 16th 2008.

31. Cpl. Kenny said either Ms. Cohlmeyer or Mrs. Mellett conveyed information that lead her to note that “during her morning appointment [the Complainant] stated to the hospital staff that she would kill herself by slicing her wrist”. Cpl. Kenny explained this was conveyed by a motion or a gesture. Cpl. Kenny doesn’t recall if it was Ms. Cohlmeyer or Mrs. Mellett who relayed this information through a gesture.

32. Cpl. Kenny related when the social worker came out of the room, she was quite jumpy. Cpl. Kenny said that judging by Ms. Cohlmeyer’s behaviour; she believes whatever happened in that room appeared to have been pretty hostile. However, Cpl. Kenny said she did not witness any sort of violent behaviour from the Complainant and she did not hear any yelling or anything else coming out of the room.

33. In Cpl. Kenny’s personal notes, she wrote the following comment: “borderline aggressive”. In the text box of the GO, Cpl. Kenny wrote: “Hospital staff also pointed out that [the Complainant] has been depressed and on medication for an extended period of time, was becoming aggressive towards the staff and in their opinion was displaying borderline personality disorder behaviour.

34. Ms. Cohlmeyer stated that she never said to the MP members or to any other members of the medical staff that the Complainant had borderline personality disorder. She communicated that the Complainant had experienced trauma in the past.

35. Capt. Bass stated she did not tell the MP members that the Complainant had been aggressive towards the staff because she hadn’t been. When asked if she would have told the MP members that the Complainant had a borderline personality disorder, Capt. Bass said she wouldn’t disclose this personal information. Capt. Bass indicates she told the MP’s that the Complainant was a risk to herself and needed to go to the hospital. She also said there was also the risk that the Complainant might leave.

36. Mrs. Mellett told the Commission she was not aware of any threats made to the medical staff by the Complainant, and she denies saying the Complainant had been aggressive toward the medical staff. She also indicates she did not divulge that the Complainant had borderline personality disorder. In her view, it was not necessary for the MP to know this kind of information, and in order to protect the privacy of the patient she would not disclose it unless necessary.

37. Sgt. Steward told the Commission’s investigators he made the decision to handcuff the Complainant. It appears he made this decision when he first saw the Complainant when she was sitting in Ms. Cohlmeyer’s office. Sgt. Steward stated he told WO Pellerin that the Complainant would be handcuffed. Sgt. Steward told WO Pellerin very clearly: “You called us to request our assistance and we are going to follow our procedure as I am not going to compromise my officers’ safety”.

38. Sgt. Steward, as a veteran MP member, was able to articulate his grounds to back up his decision to handcuff the Complainant by citing the following policies:

  1. A departmental general policy. This was a policy regarding the use of handcuffs which states: “As per departmental policy supported by case law R. vs. Cunningham, with the standard issues being (point 3: When reasonable grounds exist that the suspect may attempt to injure himself or others)”.
  2. A policy from the Academy which states: “Always handcuff the hands in the rear position unless given special directions, i.e. Justice of peace or hospital. There are three types of subjects that you will handcuff and one of them is described as potentially un-cooperative (influence of alcohol and of drugs/ experienced criminal / mentally and/or emotionally unstable)”.
  3. Military Police policies A-SJ-100-004/AG-000. This policy is about the National Use of Force Framework which is based on assessment of the subject’s behaviour and situational factors. This framework has been approved by the Canadian Association of Chiefs of Police and adopted by the MP. This framework models the concept of a continuously revolving inner-circle of potential threat of violence, and helps to explain how a behaviour (and response action) can jump from co-operative to assaultive (or communication to lethal force) in a split second without necessarily passing through all other behaviours, or force option levels. According to this framework, the process of assessing a situation involves analyzing three sets of factors, one of them being the “Subject behavioural factors”, which are related to the individual(s) with whom the MP is interacting, i.e. emotional state, etc.

39. The Commission reviewed the policy CFAO 22-8 dealing with prisoner escorts. Paragraph 22 states that handcuffs shall be used at the discretion of the escort. This gives the MP members discretion on the use of handcuffs. It states that their use should be considered when it is expected an attempt to escape will be made; the prisoner is violent; it is believed an attempt will be made by others to release the prisoner; or in other circumstances when, in the opinion of the escort, mechanical restraints are necessary. This could include situations where reasonable grounds exist that the subject may attempt to injure himself/herself or others and is emotionally unstable.

40. In this case, the probability of the Complainant escaping was very low despite the fact that she did not want to go to the RVH. At the MIR, she was guarded by two MP members, Sgt. Steward and Cpl. Kenny, and one MP student, Cpl. MacDonald. She was also surrounded by four members of the medical staff: Capt. Bass, Ms. Cohlmeyer, Nurse Mellett and Pte. Barclay.

41. In the police vehicle and at the RVH, the Complainant was escorted by Cpl. Kenny in the back of a cruiser. The doors of the cruiser cannot be opened from inside and it is equipped with a “silent partner” or barrier between the front and rear passenger areas. At the hospital, once again, she was at all relevant time in the close company of Cpl. Kenny, Cpl. MacDonald and Pte. Barclay. At no time did the Complainant engage in any physical resistance to being taken from the MIR to the emergency department of RVH.

42. The investigation revealed the Complainant did not display any signs of aggressive behavior prior to the attendance of the MP members. The Complainant has no history of violence. Sgt. Steward felt upon initial contact that she was tense and that the potential for violence was present. Sgt. Steward said the Complainant raised her voice, but this was denied by the other witnesses. Sgt. Steward’s notes from his duty notebook indicate that the Complainant was “calm, somewhat stressed (tight body language)”, but discloses no record of a raised voice. Cpl. Kenny’s notes similarly disclose nothing in the nature of a raised voice. In fact, Cpl. Kenny’s entry on the GO indicates that prior to MP arrival the Complainant verbally agreed to attend RVH. The only verbalization of resistance was noted in Cpl. Kenny’s GO entry later, where she indicates that the Complainant refused to answer medical questions and indicated she would not stay at the RVHno matter what”; the Complainant is also described at this juncture as otherwise polite and compliant.

43. Most witnesses said that at most the Complainant was “passive-aggressive” in her behavior, essentially verbalizing her objection to being taken to RVH, while not manifesting any physical resistance.

44. The Commission concludes the Complainant, while objecting, was at all times compliant with the requirements of the medical and MP members who were dealing with her. The Commission concludes the Complainant did not raise her voice or exhibit any signs of violence or resistance. The Commission concludes the risk for violence from the Complainant was very low and that it was a mere possibility at its highest.

45. The Commission concludes there was little or no flight risk apparent in this case. At all times when the Complainant was engaged with MP’s she was compliant, albeit under protest, with the requirement she go to RVH under the authority of the Form 1.

46. In this case, Dr. Ewing and Ms. Cohlmeyer both stated that the Complainant was not a danger to others. The Commission concludes there was little risk the Complainant could be a danger to herself and/or others in this situation. She was surrounded by MP members and medical staff. She was not at the time under the influence of drugs or alcohol and prior to being handcuffed she was searched for weapons by Cpl. Kenny.

47. Furthermore, the Military Police Academy (“MPA”) training materials outline some exceptions exist for the use of handcuffs. One of these exceptions is the overwhelming presence of MP members. As mentioned previously, prior to or at the time of the Complainant being handcuffed there were several staff members present, at least one regular MP member, one student MP and one medical technician. They surrounded the Complainant at all times in controlled areas (MIR, back of police cruiser and the paramedic entrance to the emergency department of the RVH).

48. There was conflicting evidence before the Commission as to whether handcuffs are, as a matter of routine, always or nearly always utilized by MP’s who are transporting mental health detainees. Nurse Mellett, Dr. Ewing, Capt. Bass and Dr. Onlock all stated in their personal experience the MP members and the Barrie Police Service officers always handcuff their Mental Heath patients for transport. Capt. Bass felt there was a discretion but that it was always exercised in favour of the use of handcuffs. Major Klaus Schneider, the Provost Marshal, and Lieutenant Joseph Daniel Eric Bossé, the Deputy Provost Marshal of CFB Borden, both stated that all MP members have discretion with respect to the use of handcuffs. If, however, the MP are called to the MIR at 31 Health Services for an individual that has been formed involuntarily and the Medical Officers feel there is a threat to the individual or others, it would probably give the MP sufficient grounds to use handcuffs. Lt. Bossé further stated the MP does have discretion as to handcuffing the individual but it is theirs to make and they “must live with the consequences”. Master Corporal Raymond Jean-Luc Quesnel, who was normally Cpl. Kenny’s supervisor on A Team and who is an instructor at the MPA, felt there was a discretion to not handcuff, and he himself had been involved in an escort without handcuffs on one occasion, likely subsequent to the complaint in this matter being filed. Ms. Jessica Ekstein, a nurse at 31 Health Services, indicated that she had witnessed approximately 20 MP transports of mental health patients, and that handcuffs were used on only 4 of those occasions. She thus was of the view that discretion was exercised in their use.

49. The Commission concludes that Sgt. Steward and Cpl. Kenny retained a discretion whether to use or to refrain from using handcuffs in the particular circumstances of this case. This discretion was to be exercised diligently with attention to the particular facts, policy directives, and officer safety issues, rather than applied automatically in favour of the use of handcuffs.

50. The Commission wishes to emphasize that in the context of a mental health detention, it is essential to keep in mind the fact that the subject of the detention is in a far different position than someone who is alleged to have committed a criminal act. It is thus vital to maintain a principle of caution with respect to the degree of restraint force used on the subjects of such detentions. We take guidance in this regard from section 1 the MHA itself, which defines “restrain” in the context of a s.15 assessment as follows:

to place under control when necessary to prevent serious bodily harm to the patient or to another person by the minimal use of such force, mechanical means or chemicals as is reasonable having regard to the physical and mental condition of the patient.

51. The Commission notes the language of the MHA suggests that this power to “restrain” actually rests with the receiving psychiatric facility for the purpose of conducting the assessment, under s.15(5)(b) of the MHA. The relevant portions of section 15 reads as follows:

Application for psychiatric assessment

15. (1) Where a physician examines a person and has reasonable cause to believe that the person,

  1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
  2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
  3. has shown or is showing a lack of competence to care for himself or herself, and if in addition the physician is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
  4. serious bodily harm to the person;
  5. serious bodily harm to another person; or
  6. serious physical impairment of the person,

the physician may make application in the prescribed form for a psychiatric assessment of the person. R.S.O. 1990, c. M.7, s. 15 (1); 2000, c. 9, s. 3 (1).

[…]

Authority of application

(5) An application under subsection (1) or (1.1) is sufficient authority for seven days from and including the day on which it is signed by the physician,

  1. to any person to take the person who is the subject of the application in custody to a psychiatric facility forthwith; and
  2. to detain the person who is the subject of the application in a psychiatric facility and to restrain, observe and examine him or her in the facility for not more than 72 hours. R.S.O. 1990, c. M.7, s. 15 (5); 2000, c. 9, s. 3 (6).

52. The MP members in this case are dealing with a subject prior to their delivery to a psychiatric facility. The subsection which deals with transport to the psychiatric facility, s.15(5)(a), authorizes (upon execution of a Form 1 by a physician) “any person” to take the subject of the Form 1 “in custody” to a psychiatric facility.

53. The Commission concludes that in the case of transport of persons detained under the Ontario MHA, a principle of minimum force appropriate to the circumstances ought to be followed by MP members. This is, in the view of the Commission, consistent with the overall scheme of the MHA, with existing Military Police policies on use of handcuffs, and with the National Use of Force Framework adopted by the MP. The proper application of these principles makes the ultimate decision on the use of handcuffs a discretionary one resting with the MP members who are dealing with the particular situation. In this case, that discretion clearly resided with Cpl. Kenny and Sgt. Steward.

54. Essential to the proper exercise of discretion in the use of handcuffs is a proper assessment of the facts, and understanding of the legal authority and applicable policies underlying the decision to use handcuffs. During interviews concerning the administration of rights to counsel (an issue which is further dealt with below), Sgt. Steward contended the Complainant was never arrested, apprehended or detained by MP members. In his view, the Complainant was merely “escorted” as she was “formed” involuntarily under the MHA. He also contended there was no statutory power whatsoever that could be exercised by MP members under the Ontario MHA, and what he and Cpl. Kenny were doing on the date in question was simply acting as agent and facilitator for the mental health professionals, because MP members have the training and equipment to deal with people who are disturbed and possibly violent.

55. Major Douglas Boot, the Commandant of the MPA at CFB Borden, took a slightly more nuanced view of the situation. Maj. Boot’s view was that whether or not the escort of a subject under the MHA was a “detention” in law, the subject could perceive it to be a detention since they have no right to leave. In his view, the “detention” is done by the hospital or physician, but he agreed that the MP members, in the course of their escort, were putting that detention into effect for a period of time and were restricting the person’s right of movement in so doing. He described MP members in this situation as a symbol of the authority to detain the person.

56. The Commission notes the concept of “detention” has received extensive treatment in law, and while we are mindful of the caution that must be exercised in applying concepts of law from the criminal context in the sphere of mental health, we take guidance from the decision of the Supreme Court of Canada in R. v. Therens, [1985] 1 S.C.R. 640 when considering whether the Complainant was detained by the MP members or not. We feel this issue must be addressed in this case as a response to the apparent contention of Sgt. Steward and Cpl. Kenny that they were handcuffing the Complainant for transport, over her objections, to the RVH, while at the same time they were not detaining her or arresting her.

57. The Commission concludes by restricting the liberty of the Complainant, Cpl. Kenny and Sgt. Steward were thereby detaining the Complainant. By Sgt. Steward’s own analysis, he was engaged in a “use of force” assessment to control the Complainant in light of the risks he perceived to exist. It may not be the case that the MP members initiated the detention of the Complainant; that process was initiated by Capt. Bass acting under the authority of the MHA. Nonetheless, their acts were a continuation of the initial detention. Moreover, their acts were more than mere agency on behalf of the medical staff who had requested their assistance; the medical staff in fact requested that handcuffs not be used on the Complainant, so the decision to handcuff could not have been exercised as agent on their behalf, but must have constituted the independent exercise of a discretionary authority by Sgt. Steward and Cpl. Kenny.

58. In light of the conclusion that the decision to handcuff constituted an independent exercise of discretionary authority, some attention must be paid to the source of that authority. As noted above, s.15(5)(a) of the Ontario MHA authorizes “any person” to take the subject of a Form 1 assessment application “in custody” to a psychiatric facility. This power, unlike the apprehension powers found elsewhere in the statute, is not restricted to peace officers, but is a power given to any person. The Commission thus concludes that the MP members had the lawful authority under the MHA to take the Complainant into custody for the purpose of taking her to a psychiatric facility, even if they were not acting as “peace officers” for the purpose of the MHA.

59. Having concluded that the MP members had a lawful authority to take the Complainant into custody for the purpose of transport, it was incumbent on the MP members to exercise that authority in a manner consistent with the policies and law governing the use of this authority, including the principle of minimal use of force necessary to effect their purpose and the Community Policing philosophy of the MP, including the use of the “CAPRA” analysis model.

60. The CAPRA analysis model can be seen as a tool for police to invoke to meet the needs of the community. It has specifically been adopted by the MP as part of their Community Policing policy. It can be described briefly as follows:

  1. Client – identify clients and their needs/problems
  2. Analysis – identify various strategies, prioritize
  3. Partnerships – available resources to support strategies/plans
  4. Response – inputs – from all sources as to the effectiveness of implemented strategies/plans
  5. Assessments – analyzing performance/results and implementing improvements

61. The investigation revealed there was a serious problem of communication between the MP members and the medical staff which may have affected the decision to handcuff the Complainant. It appears the information relayed by the medical staff was misinterpreted and/or poorly documented by the MP members. Sgt. Steward and Cpl. Kenney appear to have prematurely concluded that the Complainant had been violent or had a significant potential for violence. A gesture used to explain that the Complainant had suggested she had expressed some intention to cut her wrists was interpreted to signify that she had already attempted to commit suicide. Verbal objection to being assessed and refusal to voluntarily go to the RVH was interpreted as aggression and flight risk, with Sgt. Steward’s notes going so far as to indicate the patient was “out of control”, and Cpl. Kenny’s describing her as “borderline aggressive?”, “violent” and “combative”. Notes were lacking in detail with respect to the precise nature and source of information conveyed to the MP members, and thus the Commission is in the difficult position of assessing this evidence based on the totality of interviews with the medical staff and the MP members involved.

62. The preponderance of evidence simply does not support the descriptions as noted in the MP members’ reports and notes. Thus, the Commission concludes these descriptions were conclusory interpretations of the MP members rather than accurate descriptions of the state of the Complainant at the time in question.

63. The Commission wishes to stress that the facts in each situation must be pre-eminent in guiding the decision whether to handcuff a mental health detainee. The CAPRA model for analysis stresses identification of needs/problems and identification of various strategies. MP members must be careful to actually analyze the needs and problems, and identify strategies which follow from them, rather than pre-judge the situation and engage in a strategy based on this preliminary assessment. In this case, the Commission is concerned that the CAPRA analytic model was not followed in assessing the needs of the MIR, and the needs of the Complainant, and thus in determining the appropriate course of conduct.

64. Consistent with this principle is the requirement that MP members follow the principle of least restraint appropriate to the actual circumstances and needs of the client. Unnecessary or excessive use of restraint force could exacerbate an already acute trauma which is being experienced by a mental health patient. It is thus vital that MP members properly inform themselves of and confirm the factual situation they are facing, rather than risk acting upon a misapprehension or misinterpretation of facts.

65. The Commission must also at this point comment on the paucity of the notes taken by Cpl. Kenny, Sgt. Steward and Cpl. MacDonald with respect to the factual underpinnings informing the decision on handcuffing the Complainant. The notes were lacking in detail, failed to thoroughly record all relevant information, failed to disclose sources of information, and were below the standards of record-keeping expected of MP members.

66. The Commission concludes that Sgt. Steward failed to apply the CAPRA analytic model to the circumstances he faced, and instead he rushed to conclusions concerning the level of risk faced in the transport of the Complainant. He did so based on a set of poorly communicated, or misinterpreted, facts which he took insufficient steps to verify and clarify. He made an initial decision to handcuff based in large part on a procedural model which assumes the worst in terms of officer safety risks. He did not carefully listen to and review the background information and advice being given him by the medical personnel; he failed in this regard to apply the CAPRA model to his analysis of the risk and needs he was facing. Sgt. Steward remained fixed on what was, in his view, standard practice.

67. Cpl. Kenny’s conclusions of fact concerning the risk presented by the Complainant were similarly prematurely arrived at and ill-supported. Cpl. Kenny did not apply a CAPRA analysis to the situation she was facing, instead she followed the lead of Sgt. Steward and handcuffed the Complainant based on inaccurate and unverified factual assumptions about the level of risk she was facing. However, Cpl. Kenny was not the one who made the decision to handcuff the Complainant, Sgt. Steward was responsible for that decision. Given he was her supervisor, and given that she shared an inflated view of the risk factors exhibited by the Complainant, it is not surprising she concurred in the decision to handcuff the Complainant and undertook to do so.

68. The Commission concludes that had the two MP members carefully taken into consideration all the actual risk factors outlined in their use of force and handcuffing policies, and applied the CAPRA analytic model when deciding whether or not to use handcuffs in this case, rather than acting on ill-supported factual conclusions, the decision whether to handcuff the Complainant might have been different. The Commission concludes, based on the evidence available from the attending medical staff, that all of the risk factors in this case were very low. That evidence was available to both Sgt. Steward and Cpl. Kenny had they undertaken a more thorough factual analysis rather than acting on their initial disposition.

69. However, the Commission can not say that Sgt. Steward or Cpl. Kenny exceeded their authority or violated any standard of conduct by the use of handcuffs in this instance. The use of handcuffs was a discretionary matter for the MP members to determine based on the facts of the situation as they understood them at the time. Background information was either misinterpreted or miscommunicated such that the level of risk perceived by the MP members was far higher than actually existed. The MP members concluded that their handcuffing policy mandated the use of handcuffs on these facts. Due to this misinterpretation or miscommunication of facts and misapplication of policy attendant thereto, the two MP members perceived the Complainant to present a risk which could, if accurate, justify the exercise of discretion to use handcuffs. Thus, on the facts as assessed by them at the time, the Commission concludes that the MP members were acting within their lawful authority to exercise their discretion to use handcuffs on the Complainant.

70. If there is proper communication and information sharing between the MP members and the health personnel involved, mental health detainees can be treated with the minimal restraint necessary while taking in account the member’s safety. It is suggested that the MP members should also conduct background checks on SAMPIS and CPIC to determine if the mental health detainee has any prior history of violence before making their decision to handcuff or not.

Finding #1:

The Commission finds that Sgt. Steward and Cpl. Kenny acted on a misapprehension of facts due to either a miscommunication of or misinterpretation of background facts relevant to the decision to handcuff the Complainant. The Commission finds that Sgt. Steward and Cpl. Kenny could have exercised their discretion not to handcuff the Complainant in this case. However, in light of the fact that they acted under a misapprehension of fact, the Commission does not find that Sgt. Steward and Cpl. Kenny breached any section of the Military Police Code of Conduct by placing the Complainant in handcuffs while transporting her. (ACCEPTED)

Recommendation #1

The Commission recommends that the CFPM ensure that the standard MP requirement for full and accurate note taking be supervised and reinforced in order to encourage proper factual analysis during escorts and to allow for proper review after the fact. (ACCEPTED)

  • In accepting this recommendation, the CFPM stated that the “DPM Police will review current MPPTP on MP note taking in response to this recommendation”.  

(ii) Treatment of the Complainant During Detention and Transport – Privacy Complaints

71. The Complainant alleges that Sgt. Steward and Cpl. Kenny failed to properly respect her privacy interests by the manner of their treatment of her during their detention and transport of her from MIR to RVH. She complains of the fact that uniformed officers were escorting her in plain view of other patients and hospital staff, handcuffed her and left the handcuffs uncovered, visibly stood by her and held her in the presence of other persons at both MIR and RVH, and she complains that she was asked questions in public by the triage nurse at RVH.

72. The Commission notes it has no jurisdiction over the conduct of RVH staff, and thus with respect to the last allegation in this section must limit itself to consideration of whether the conduct of any MP member contributed to any infringement of the Complainant’s privacy.

73. As previously stated, the initial call for MP assistance indicated that the need was “stat”, or urgent. The MP unit was understaffed at the time, having only two full members on duty when the minimum should be three. A student MP, Cpl. MacDonald, was also present for “on the job training”. Cpl. MacDonald ended up driving the transport vehicle. All three MP personnel were in their respective uniforms at the time of the call.

74. According to Sgt. Steward, a patrol car was used for transport rather than an ambulance because he may have needed Cpl. Kenny to return to base for urgent calls should the situation arise, and this would not be possible if she was in an ambulance. An unmarked vehicle was not considered because it lacks the barrier between the front and rear seat which Sgt. Steward felt was necessary for safety reasons.

75. The investigation of this matter included a review of the layout of the MIR and the locations therein where the Complainant was dealt with. The Mental Health Services area is relatively removed from the busier parts of the clinic. The examination room where the Complainant was searched was perhaps 15 feet from the room in which she was initially located when the MP members arrived to transport her. This examination room is adjacent to the exit doors where the Complainant was taken to the police vehicle for transport.

76. The search of the Complainant was conducted by Cpl. Kenny in the closed examination room in the presence of one other person, Nurse Mellett.

77. The MP members waited for the lunch hour, when the MIR is not as busy, to move the Complainant from Ms. Cohlmeyer’s office to the examination room to be searched. Sgt. Steward made the decision to handcuff the Complainant with her hands to the front, rather than to the rear. He also made the decision to have the police vehicle pick up the Complainant at the nearby exit door, rather than walk the Complainant through the busier waiting area to get to the main doors. Although the Complainant says the handcuffs were visible, several witnesses indicated that when concerns were raised about the handcuffs being seen, the MP members had a coat draped over the Complainant’s shoulders in a manner which hid the handcuffs.

78. At the RVH, the usual examination room was not available, so the Complainant was taken to a secondary intake area used by paramedics. This area was not in direct view of the emergency patients at the RVH, and in any case it was a matter to be determined by the RVH, not by the the MP members as they have no control over availability of the hospital’s examination rooms.

Finding #2

The Commission finds that the allegation that the Military Police failed to properly respect the Complainant’s privacy is not substantiated. The Commission finds that the MP members did the best they could under the circumstances to respect the Complainant’s privacy. (ACCEPTED)

(iii) Conduct of Cpl. Kenny during the search of the Complainant

79. The investigation revealed that on May 16th 2008, the Complainant was not feeling well physically and mentally and that she was not in good shape. This was confirmed by Dr. Ewing and Capt. Bass. She was tired, sleepy, depressed and in a state of emotional crisis. Dr. Ewing’s professional opinion is that the Complainant has extreme personality traits. At the time when the body search was conducted she was angry about the fact that she had to go to the RVH. The Complainant became more shut down and displayed avoidance behavior.

80. The Complainant alleges that Cpl. Kenny conducted her search in an unprofessional manner and said words to the effect that “they like to hide stuff” in places (this being a comment in reference to her search). She complains that she felt she was being treated like a criminal, not like a patient who had been seeking treatment.

81. Cpl. Kenny and Nurse Mellett both denied the fact Cpl. Kenny made inappropriate comments during the time she conducted the body search. Cpl. Kenny stated that she explained everything she was going to do to the Complainant during the search. This was also corroborated by Nurse Mellett. Mrs. Mellett has seen other MP members conduct body searches and she feels that Cpl. Kenny was very compassionate and kind to the Complainant. In fact, she said that she was about to write a letter of recommendation on the way Cpl. Kenny conducted the search. She commented that Cpl. Kenny was very cautious and very professional with the Complainant. Capt. Bass also gave positive feedback on the professional conduct of Cpl. Kenny, and several witnesses commented that Cpl. Kenny appeared to be very conscientious in her communicating the steps which would be taken in searching the Complainant, and in treating her with respect.

82. As a result of the information obtained from the witnesses who corroborated the professionalism of Cpl. Kenny during the search, the Commission concludes that this allegation made by the Complainant is not substantiated.

Finding #3

The Commission finds that the allegation that Cpl. Kenny conducted her search of the Complainant in a less-than-professional manner and made untoward comments during that search is unsubstantiated. (ACCEPTED)

(iv) Violation of privacy rights through dissemination of information contained in police reports

83. The Complainant related the morning that she was interviewed by the MPCC investigator on June 4th 2008, her supervisor, Master Warrant Officer G. Chiasson (“MWO”), came into her office and told her that he had heard some rumours about the weekend she was at the hospital. She asked him what sort of rumours he had heard and he said: “they put you in handcuffs”. The Complainant wonders how her supervisor learned about this, since the incident was a medical matter, and she was also concerned that they must think that she has done something wrong since she was in handcuffs.

84. The Complainant said she felt that the MP violated her privacy rights when they advised the Commanding Officer (“CO”) of the Base that she had been assessed pursuant to a Form 1. She said her understanding is that when somebody is detained by the MP, an MP report is sent to the CO of the base to advise him of what happened to one of his personnel. Reflecting on the content of the police report concerning the events of May 16, 2008, the Complainant was concerned that her CO will now be aware of her mental health assessment and will thus know about her private medical issues which he otherwise would not be privy to. These medical issues have now become a police issue, and thus subject to distribution to the CO, and she feels that this is a violation of her privacy rights. The Complainant notes the CO could not obtain this information independently from the base medical facility.

85. The Complainant received information from MWO Chiasson which suggested the CO was aware of the fact that the Complainant had been taken in handcuffs by MP members. She was concerned the CO might not know all details about the incident or may think she had done something wrong.

86. The Commission examined this allegation by investigating the source of verbal communications as well as whether or not any MP report was transmitted to the CO or his representative.

87. MWO Chiasson was contacted by the Commission who advised that he was told on the morning of June 4, 2008 by CPO1 Gerald Westlake that the Complainant had been taken to the RVH in handcuffs.

88. Commission investigator contacted CPO1 Westlake who advised that he was never contacted by the MP members. He believes that he learned about the incident through Major Jacques Bouchard, Deputy Administrative Officer, CFB Borden.

89. Major Jacques Bouchard was also contacted by the Commission who advised that on May 20, 2008 he was acting Administrative Officer. He related that Major Schneider reports to the Administrative Officer of the Base. As such, it is normal practice for Major Schneider to call the Administrative Officer in the morning to advise him of any incidents on the Base from the previous weekend. This is done to advise the Base Commanding Officer of any incident which may require follow up administrative measures, disciplinary measures or any required service to members.

90. Major Bouchard cannot recall if he was advised of the Complainant’s incident at that moment by Major Schneider but he believes so.

91. However, Major Bouchard advised the Commission that on May 21, 2008, the Complainant came to see him and informed him of her dissatisfaction about the way she was treated at the Base Hospital and by the MP who handcuffed her. The Complainant advised Major Bouchard that she was going to action her complaints.

92. CWO Fernand Baillargeon, Base Chief, was also contacted by the Commission. CWO Baillargeon explained that part of his duties included overseeing disciplinary matters on Base. He advised that he was never contacted or informed by the MP members about the Complainant. He advised he would speak with other Branch Chiefs about their respective cases and he believes he may have briefly discussed the matter involving the Complainant with MWO Westlake but not in any detail.

93. As such, it would appear that MWO Chiasson became aware of the May 16, 2008 incident on June 4, 2008 indirectly through the Complainant herself who related the incident to Major Bouchard on May 21, 2008. Even if Major Schneider had advised Major Bouchard on May 20, 2008, this would have been part of his usual briefing to the Administrative Officer to whom he reports as part of his regular duties.

94. In relation to the alleged transmittal of the Complainant’s private information in an MP report, the Commission’s investigation revealed that the original dispatcher, Joanne Hutchison, opened a GO for this incident. It is possible she opened a GO in error as this should have been recorded as a street checkFootnote 1. Regardless, the GO was completed by Cpl. Kenny and forwarded on May 18th to MP member Sgt. Daniel Paul Juteau. Sgt. Juteau checked the report and forwarded same to Sgt. Steward. The latter approved the report on May 29th 2008 and he subsequently forwarded the occurrence to WO Scandrett in charge of the patrol unit. WO Scandrett reviewed the GO and approved it on June 17th 2008, almost 3 weeks after the Complainant lodged her complaint.

95. Normally WO Scandrett would call the CWO or the WO of the concerned unit in order to advise them that one of their members has been involved in an occurrence. In this case, WO Scandrett indicates he does not recall calling the MWO and there is no text box in the GO indicating that he did. The MPCC investigators met with the Complainant on June 4th 2008, almost 2 weeks before WO Scandrett reviewed the GO. On the morning of June 4th MWO Chiasson was already aware that the Complainant had been escorted by the MP members and placed in handcuffs.

96. Lt. Bossé and Maj. Schneider both stated that the GO was never concluded and never turned into a street check as it might have been. They both said that no copy of the report was forwarded to the CO of the Complainant or the Base Chief. The significance of turning the report into a street check is that a street check, unlike a GO, is NOT routinely disclosed to the Base Chief or CO.

97. As a result of the investigation, the Commission concludes that the normal procedure would have required WO Scandrett to contact the Complainant’s supervisor to advise him about the GO. However, in this case, it appears that the MP members did not send any report to her CO or to the Base Chief.

98. WO Scandrett indicated to the Commission investigator that since the time that the complaint was lodged by the Complainant, his detachment has implemented a new Standard Operating Procedure. He explained that in cases of assistance to the MIR with regard to the escort and transportation of mentally disturbed patients, they will leave it to the MIR to notify the patient’s unit if they see fit. Furthermore, no copy of the report will be forwarded from their office to the CO of the unit.

99. The Commission notes that the Complainant did send a brief resume of her complaint to Jim Woodley, the national coordinator of Operational Stress Injuries Support System (OSISS). On May 27th 2008, Mr. Woodley then sent a message to LCol. Blais in Ottawa to ask him to look into the complaint. He also said that LCol. Grenier was also involved in the matter.

100. The investigation did not reveal if the MIR did contact the Complainant’s unit but it does not appear to be the case. The Commission concludes that the Complainant’s unit most likely first became aware of the incident indirectly through the Complainant herself through conversation with Major Bouchard. Even if Major Bouchard learned of the incident a day prior through Major Schneider, he would have been reporting on matters as part of his expected duties to ensure that appropriate follow up and assistance is provided to members. As a result, the Commission concludes that the allegation that the MP improperly disseminated private medical information about the Complainant is not substantiated.

Finding #4

The Commission finds that the allegation that the Military Police improperly disclosed private medical information about the Complainant is not substantiated. (ACCEPTED)

VI. Analysis – Best Practices Review

(i) General protocols for escort and transport of persons detained for mental health reasons

101. It was the Commission’s view that this case raised questions about the protocols in place with the Military Police concerning the issue of escort and transport of mental health detainees. For this reason, the Commission undertook a “best practices review” of police services in various Canadian jurisdictions with a view to making recommendations to the CFPM. It is clear from the facts of this case that there are differing views within the CF as to whether handcuffs, to use one example, ought to routinely be used during the transport of mental health detainees. It is the Commission’s view that clarification of or development of specific protocols would help to ensure fair and proper treatment of persons under the control of the MP who are being detained, escorted or transported for mental health purposes.

102. The Commission received information concerning practices in this area from several external police agencies – the RCMP, the Ontario Provincial Police (OPP), Barrie Police Service (BPS), Kingston Police (KP), Hamilton Police Service and the Crisis Outreach and Support Team (COAST), and Windsor Police Service. In addition, the Commission solicited information on best practices from MP personnel at CFB Borden and medical staff at CFB Borden – Maj. Klaus Schneider, Lt. Eric Bossé, Maj. Douglas Boot, MCpl. Raymond Quesnel, Ms. Jessica Eckstein – as well RVH staff [redacted text]. The Commission also considered the background materials and information provided by the witnesses directly involved in the incident relating to this complaint, and requested additional input from the Complainant, Sgt. Steward, Cpl. Kenny and Major Boot on the Charter rights issue. Finally, the Commission was provided with guidance and information concerning the relevant law and policy by Commission counsel.

103. The Commission wishes again to emphasize that in the context of a mental health detention, it is essential to keep in mind the fact that the subject of the detention is in a far different position than someone who is alleged to have committed a criminal act. A person facing a mental health detention is typically experiencing a psychological crisis, and as a patient they are entitled to be treated with dignity, respect, and courtesy, and with a view to facilitating their obtaining the care that they require in the circumstance. The Complainant in this case indicated that she felt humiliated, powerless, and that she was being treated like a criminal, except with fewer rights. It is the Commission’s view that a “best practice” protocol should attempt, insofar as practicable, to minimize these negative effects.

104. The Commission also wishes to emphasize that the development of a protocol has become more urgent since the deployment of the Canadian Forces to significant combat engagement in Afghanistan. According to reports obtained from Veterans Affairs and published by The Canadian Press, the number of members with PTSD has tripled since Afghanistan deployment. It is not only former soldiers, but currently serving members who are experiencing a significant number of mental health issues. According to published reports, as many as 28% of troops return from armed combat with one or more mental health issues. The need for protocols for dealing with such soldiers when they are in crisis grows more urgent.

The Current MP Protocols

105. The Commission notes that there is some confusion and disagreement even among CF personnel concerning their authority and the interpretation of the applicable protocols for “use of force” and for use of handcuffs when transporting persons for mental health purposes. There is uncertainty about their legal authority, and disagreement about standard practices, and the Commission is of the view this is no doubt due to the fact that there are currently no comprehensive protocols for MPs in the area of mental health issues. The MP was the only police agency canvassed by the Commission which had no such protocols. It was also the only agency which had neither integrated any recognized mental health programs/services into their agenda, nor received any assistance with mental health issues from any outside mental health agency.

106. MP members from CFB Borden were canvassed on their views concerning the protocols for transport of mental health detainees. Maj. Schneider was of the view that MPs are called for transport of Form 1 patients only when the person in question poses a threat to themselves or others; if the person does not pose such a threat, other transport arrangements are made. He clarified that MP members will currently transport people who will voluntarily attend RVH, but will call the OPP to arrest those who do not go voluntarily because MP members have no standing to arrest under the Ontario MHA. By this Maj. Schneider meant that MPs have no power to directly resort to the detention powers in s.17 of the MHA. Once formally arrested by OPP under s.17 of the MHA, MP members will then transport mental health detainees. In Maj. Schneider’s view, recognizing MPs as “peace officers” under provincial legislation would improve this ponderous process. Lt. Bossé was of a similar view, and further stated that the decision whether to use an ambulance service, taxi, or MP for transport rests with MIR. Lt. Bossé was of the view that MP members have no authority to arrest persons under s.17 of the Ontario MHA; in his view, MP members escort said persons only because they are members of the CF and are considered a threat. On October 10, 2008 he issued a directive to MP members under his command indicating that pending receipt of a Standard Operating Procedure, “as you know, in Ontario, we are not able to form someone under the Mental Health Act. If you have to form someone under the Mental Health Act for his safety, you shall ... call OPP to do on your behalf (same as ADLS). Transport of the subject will be done by MP.

107. In his directive Lt. Bossé does not appear to make reference to the distinction between the authority of police officers to take someone into custody under section 16 (order in Form 2 upon application to a justice), and 17 (independent authority for police officers to take a disorderly person for an examination by a physician) of the Ontario MHA, and the authority granted to any person under section 15(5) as noted above.

108. Sections 16 and 17 read as follows:

16. (1) Where information upon oath is brought before a justice of the peace that a person within the limits of the jurisdiction of the justice,

  1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
  2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
  3. has shown or is showing a lack of competence to care for himself or herself,
    and in addition based upon the information before him or her the justice of the peace has reasonable cause to believe that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
  4. serious bodily harm to the person;
  5. serious bodily harm to another person; or
  6. serious physical impairment of the person,
    the justice of the peace may issue an order in the prescribed form for the examination of the person by a physician. R.S.O. 1990, c. M.7, s. 16 (1); 2000, c. 9, s. 4 (1).

[...]

(2) An order under this section may be directed to all or any police officers of the locality within which the justice has jurisdiction and shall name or otherwise describe the person with respect to whom the order has been made. R.S.O. 1990, c. M.7, s. 16 (2); 2000, c. 9, s. 4 (3).

Authority of order

(3) An order under this section shall direct, and, for a period not to exceed seven days from and including the day that it is made, is sufficient authority for any police officer to whom it is addressed to take the person named or described therein in custody forthwith to an appropriate place where he or she may be detained for examination by a physician. R.S.O. 1990, c. M.7, s. 16 (3); 2000, c. 9, s. 4 (4).

Action by police officer

17. Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

  1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
  2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
  3. has shown or is showing a lack of competence to care for himself or herself,
    and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
  4. serious bodily harm to the person;
  5. serious bodily harm to another person; or
  6. serious physical impairment of the person,
    and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician. 2000, c. 9, s. 5.

109. These two sections’ custodial powers are specifically directed to “police officers” whereas, as the Commission has noted previously, the power to take someone into custody under the authority of s.15 rests with “any person”. There appears to this Commission to be no need to call the OPP or other civilian police service if a Form 1 has been executed.

110. The Commission notes that every involuntary assessment under s.15(1)(a) or (b) of the MHA entails a finding by a physician that the subject poses a threat to themselves or to others, yet clearly not every such subject is transported by MP personnel. Furthermore according to medical personnel who are witness to such transport, and according to some MP members themselves, not every such subject is handcuffed when they are transported by MP members. In addition, as we have noted, s. 15(5) of the MHA explicitly empowers not only peace officers, but any person to transport someone who is to be assessed pursuant to a Form 1, and permits them to place the person in custody to do so. The potential for confusion about MP powers and jurisdiction under this statute reinforces the need for clear protocols and guidance from the CFPM.

111. Maj. Boot felt that the MP did have protocols in place for the transport of mental health detainees. The current Use of Force protocols would encompass dealing with mental health situations because they require MP members to treat every person with respect and dignity during the application of force. MP members receive sensitivity training, and during Use of Force protocol training, they are taught to take into account all factors. Major Boot indicated that MPA does not have a specific class geared to training in mental health issues.

112. The Commission notes that there are some Canadian Forces Administrative Orders pertaining to the general issue of suicide prevention, and dealing with members who may have mental disorders, and there are specific MP training protocols invoking the philosophy of community policing and the CAPRA analytic tool. The question is whether the existing protocols are sufficiently comprehensive and informative to allow MP members to effectively and professionally deal with mental health detainees.

Insights from External Agencies

113. Information from external sources provides some insight into the varying approaches to the transport of mental health detainees. With respect to handcuffing, actual practices vary, but every agency canvassed by the Commission ultimately leaves the decision to the discretion of the attending officers. Frequency of handcuffing varied widely, from it being typical or routine in some cases to less than 10% of the time in others.

114. Several police services work closely with mental health agencies to create a responsive set of protocols suited to the geographic and demographic needs of the local jurisdiction. For example, the COAST program in Hamilton involves an integrated response utilizing specially trained members of the Hamilton Police Service who work in conjunction with nurses, social workers and youth workers when called upon. The COAST program has a Mobile Crisis Team which uses plainclothes officers in an unmarked cruiser to respond to mental health crisis situations. Perhaps not surprisingly, this integrated response team approach appears to result in the lowest incidence of use of handcuffs for transport of mental health detainees.

115. Another issue which commonly arises is the choice between uniformed and plainclothes officers, and marked, unmarked or civilian vehicles to transport mental health detainees. Sgt. Steward noted the resource limitations his team faced on the night of the Complainant’s transport – he had only uniformed officers (fewer than were supposed to be working), and he needed them to use an MP vehicle in case they were urgently required to return to base. It is clear that any protocols which are implemented must be mindful of the resource limitations facing MP members when they are undertaking their duties.

116. A theme common to all agencies who had specific protocols for dealing with mental health detentions and transport was an emphasis on reassurance of the subject, properly informing them of the processes and powers that were to be exercised, making clear the distinction between criminal detention and mental health detention, and reinforcing respect for the dignity of the detained subject. In many instances, for example, special measures were taken (as they were in this case) to avoid undue public display of the detained person. Reassurances are often given that support is available, that the person is not criminally charged or under arrest, and that no arrest or criminal record will be generated from the incident in question.

117. The Commission notes that in this case, a General Occurrence was initially generated, which would normally result in disclosure to the Base Chief and/or CO; however, the GO was never finalized and forwarded, and a policy has subsequently been implemented whereby such escorts at CFB Borden now generate a “street check” rather than a GO. A “street check” report is not forwarded to the CO or Base Chief. The Commission supports this change of procedure.

118. Another area of significant concern which the Commission suggests should be addressed by the CFPM is a reinforcement of the importance of proper factual analysis by members in each instance where they are requested to assist in mental health escorts. The CFPM and MPA are in a better position than the Commission to determine whether more training in this regard is required, or whether better reinforcement of existing protocols (such as the CAPRA concept, the requirement for proper note-taking, and the reinforcement of good basic investigative practices) is called for. This area is, to a certain extent, addressed in Recommendation #1 above. The importance of proper factual analysis when those facts inform the exercise of a discretion to use force cannot be overstressed.

Recommentation #2

The Commission recommends that the CFPM, with the assistance of the Military Police Academy and any appropriate outside agencies, develop specific protocols for MP members in their dealings with mental health detainees. These protocols should include a requirement that MP members specifically direct their mind to the proper exercise of their discretion whether to handcuff a mental health detainee or not, and should include direction on how MP members are to assess and record the factors which inform their exercise of that discretion. In addition, in developing these protocols, it is recommended that consideration be given to the use of plain clothed officers and unmarked cruisers. The Commission recognizes this would need to be balanced with the available resources. (ACCEPTED)

  • In accepting this recommendation, the CFPM responded: “DPM Police has been tasked to study this recommendation, develop appropriate MPPTP and recommend an appropriate training strategy for the MP Branch”.
Recommendation #3

The Commission recommends that the CFPM consider implementation of a protocol for all Military Police as noted is the practice at CFB Borden in generating street checks rather than General Occurrence Files. (ACCEPTED)

  • In his acceptance of this recommendation, the CFPM noted: “DPM Police will review and amend MPPTP as necessary in support of this recommendation”.

(ii) Jurisdictional protocols for MP members concerning each of the federal, provincial and territorial jurisdictions in which they conduct their duties in order to clarify the legal authority and jurisdiction of MP members and to examine the prospect of integration of MP and local resources;

119. Of significance in drafting a protocol or policy in this area, as for many areas of MP operation, is the multi-jurisdictional nature of their operations. The complaint which lead to this investigation involved a CF member who was stationed at CFB Borden, in the Province of Ontario. Her physicians exercised their authority under the Ontario MHA, s.15, to compel the Complainant to attend an assessment at a psychiatric facility. The MP members involved claimed they were without the powers of a peace officer under the Ontario legislation. However, as we have noted above, the Ontario legislation empowers and authorizes “any person” to transport “in custody” a person who is required under section 15 to undergo an assessment. MP members may be assigned to work in any jurisdiction in the country and to act, where they have the legal authority to do so, under the legislation of the federal government, ten provinces, and three territories. The Commission is of the view that the CFPM and MPA are in the best position to assess the particular needs of the various jurisdictions in which MPs work, and thus to develop protocols which are suitable to any or all of those jurisdictions in which MP members may face the issues addressed in this report.

120. The multi-jurisdictional challenges which the MP faces are similar to those faced by the RCMP. The Commission notes that the RCMP were, at the time of the “best practices” investigation, in the process of developing specific protocols for dealing with “Emotionally Disturbed Persons”, defined as a person who, on reasonable grounds, is believed to be mentally unstable and who poses a threat to him/herself or others. This protocol was drafted with a view to clarifying operational conduct when RCMP officers are dealing with “Emotionally Disturbed Persons”. It is designed to be consistent with legal schemes and protocols in any jurisdiction where the RCMP operate.

121. The Commission notes that in addition to a cross-jurisdictional general policy, the RCMP have developed local protocols and cooperative operational frameworks which are responsive to local needs. For example, the RCMP in BC’s Lower Mainland District have community partnerships such as a Mobile Crisis Response Team comprised of one officer and one nurse in Surrey, BC, and a Crisis Intervention Team partnership which integrates the resources of various police, medical, social service, probation and parole, and other agencies. Community based training is offered to all of these agencies’ front line workers. In Prince Edward Island, the local RCMP have a less structured but no less meaningful and responsive arrangement with a local program organized by the Canadian Mental Health Association.

122. Whether any specific model of community integration is necessary or appropriate in the MP context is for CFPM to determine. This Commission is of the view that the development of protocols as outlined in Recommendation #2 entails that attention be paid to jurisdictional variations in legislation, in MP status as “peace officers”, community needs and resources, and practices by other agencies within those jurisdictions.

123. It is the Commission’s view that much valuable groundwork for a jurisdictional policy and protocol review by the CFPM has already been done by the various police agencies we have dealt with, and by this Commission itself. The Commission recognizes that the lack of coherent protocols and agreements between MP and provincial authorities concerning matters of jurisdiction results in frustration and some degree of confusion at the detachment level, and thus encourages the CFPM and MPA to establish clear working guidelines and, where possible, co-operative protocols with the relevant governments, agencies and local authorities to ensure fair and effective engagement with mental health detainees, and to ensure clarity at the operational level for MPs engaged in these duties. The Commission would encourage the CFPM and the MPA to solicit relevant materials from this Commission and from any other appropriate agencies to assist them in developing protocols for the handling of mental health detainees which are responsive to regional variations in law, practice, and resources.

124. The Commission notes that it is also important to define protocols outside of Canada during deployments. As the Commission is recommending reviewing protocols within the Canadian context, it is equally important to review and/or define protocols abroad, where there would be the added factor of operational exigencies.

Recommendation #4

The Commission recommends that in reviewing its protocols for handling mental health detainees, the CFPM reviews regional and jurisdictional legislation, resources and practices with a view to making those protocols responsive to local law, conditions, and client requirements in addition to consideration of these important issues abroad. (ACCEPTED)

  • In noting his acceptance of this recommendation, the CFPM wrote: “This recommendation will be incorporated into the study being conducted by DPM Police as per recommendation 2”.

(iii) Consideration of a protocol directing MPs to advise mental health detainees of their rights under the Canadian Charter of Rights and Freedoms

125. The Complainant in this matter did not specifically raise any objection concerning her Charter rights. The Commission, however, identified an area of concern based on the Complainant’s concerns about her treatment during her detention. In her interview, the Complainant indicates that after being referred for an assessment, and in particular when she was being searched, handcuffed, and escorted by MP’s, she felt like she was being treated like a criminal, that she had no rights, and she said words to the effect that a criminal had more rights than she did in the circumstances.

126. The Commission is concerned that mental health detainees should not, to the degree reasonably possible, be made to feel that they have “no rights” when they are under MP escort. As a result, the Commission has solicited further input from the Complainant, and from Sgt. Steward, Cpl. Kenny, and Major Boot, as well as legal opinions from Commission counsel, concerning the issue of the Complainant’s, and by implication any mental health detainee’s, Charter rights, and in particular, their rights pursuant to section 10 of the Charter.

127. Section 10 of the Charter reads:

10. Everyone has the right on arrest or detention

  1. to be informed promptly of the reasons therefore;
  2. to retain and instruct counsel without delay and to be informed of that right
  3. to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful

128. The jurisprudence under section 10 of the Charter is mainly determined in the context of criminal trials. The cases are instructive with respect to understanding the nature and scope of the rights of the detainee and corresponding duties of state agents when section 10 is engaged.

129. The jurisprudence clearly indicates that the right to be informed of the reasons for detention (section 10(a)) is to be afforded promptly on detention. This is primarily so that the person who is subject of the detention can make a reasonable decision about how to respond to the detention, including the choice to consult with counsel. What is important, according to the Supreme Court of Canada, is the substance of what the detainee can reasonably be supposed to have understood, rather than the formalism of the precise words used. (R. v. Evans, [1991] 1 S.C.R. 869).

130. In the present case, there is little doubt that the Complainant was told and understood why she was detained both by MIR staff and why the MP members continued that detention. This will no doubt be true in most cases, and it is clearly the best practice to ensure, as best can be done in the circumstances, that detainees know why they are being detained.

131. Section10(b) also imposes a duty to inform a detainee that he or she has the right to retain and instruct counsel. There is a further duty beyond the informational component to implement the section 10(b) right by giving the detainee a reasonable opportunity to exercise their right to consult with a lawyer.

132. The Commission notes, as indicated above, that it is clear that a person who is to be taken “in custody” to a psychiatric facility is detained. In the Commission’s view, that detention triggers the subject’s section 10 Charter rights. The Commission is guided in this regard by the decision of the Court of Appeal for Ontario in C.B. v. Sawadsky (2006), 216 O.A.C. 105. While the Court does not provide specific guidance on the requirements for proper administering of the informational and implementational components of these rights to the patient, it is clear from the decision that those rights do arise in the context of a detention under the MHA.

133. Unlike the court in Sawadsky, the Commission is not in this case determining whether there has been a breach of the Complainant’s s.10 Charter rights. This Commission is making a recommendation as to the best practices for the MP to implement with respect to administering these rights in a mental health context. This Commission is thus not adjudicating what the minimum requirements are in this regard; rather we are suggesting what the ideal practice should be.

134. The Commission wishes to be clear that it is not making a recommendation concerning the implementational component of a mental health detainee’s section 10(b) rights. As the court notes in Sawadsky, this responsibility will likely lie with the receiving institution (although it is conceivable that MP’s may face situations where a detainee in a remote geographic location must be held for a substantial time before being taken to a psychiatric facility; in such cases, it may be appropriate for MP’s to implement the right to counsel by the usual means such as providing access to a telephone). Implementation of the section 10(b) right usually will occur after the involvement of the MP has ceased. In exceptional circumstances where there are significant delays in getting a mental health detainee to a psychiatric facility, the MP members involved will use their best judgment, perhaps in consultation with their superiors, to determine the best course of action.

135. The Commission does take the view that a best practice recommendation should be made to the CFPM with respect to the informational component of a mental health detainee’s section 10 rights. In other words, the Commission is making “best practices” recommendations with respect to informing the detainee of the reasons for his or her detention, and informing the detainee of the existence of their right to retain and instruct counsel; it is not making any recommendation at this time with respect to implementation of those rights.

Facts in this Case

136. In this case, at no time did Sgt. Steward or Cpl. Kenny advise the Complainant of her rights under section 10(b) of the Charter. When asked why, Sgt. Steward indicated that in his view the Complainant was “detained” by the physician, not by MP members, and they were merely escorting her. He denies that MP conduct constituted a detention or apprehension, much less an arrest. As there was no apprehension, detention or arrest, in his view there was no need to inform her of her rights under section 10(b) of the Charter. The role of MP members was simply to provide assistance, security and escort services to the MIR. In his view, he merely acted as the agent and facilitator for mental health professionals.

137. Sgt. Steward goes even further to assert that it would not have been appropriate or of any assistance to the Complainant for her to be informed of, much less permitted to implement, her rights to counsel, because she was not fully competent as judged by the mental health professionals who issued the Form 1.

138. Cpl. Kenny indicated that she did not inform the Complainant of her s.10 Charter rights because she was neither apprehending nor arresting her. She noted that it was the attending physician who had issued the Form 1; in her view, the physician “detained” the Complainant by so doing, and Cpl. Kenny’s role was merely to provide security. For this reason, she did not feel it would have been appropriate to inform the Complainant of her right to counsel. She asserted that MP members have no authority to enforce the Ontario MHA and there was nothing to be gained by informing her of her rights under s.10 of the Charter because the Complainant had already been informed of the reason for her detention, and she was given a form (which would be a Form 42 under the MHA) at the RVH outlining her rights.

139. Cpl. Kenny also informed the Commission investigators that the MP have issued a new Standard Operating Procedure directing MPs not to do anything in regard to involuntary escort under the Ontario MHA other than to call the OPP. She believes this is due to the issue of MP’s not having “peace officer” status under the provincial legislation.

140. The Commission reiterates its view that the Complainant, and any mental health detainee who is acting under legal compulsion, is “detained” in the relevant sense. While it is true that the initial detention may be said to stem from the physician who signs a Form 1 (in Ontario), the MP continues that detention where they take the person into their control. This view is consistent with the Therens and Sawadsky cases cited above, and is consistent with any common sense view of the notion of “detention”.

141. It is puzzling to the Commission how Sgt. Steward and Cpl. Kenny could consider that a person who is handcuffed by them is not thereby in a state of detention for which they are the responsible authority. This view is inconsistent with the prevailing jurisprudence on the meaning of “detention” for Charter purposes. The Commission concludes that the Complainant in this case was detained by or under State authority, and her s.10 Charter rights were thereby engaged. The Commission is of the view that this would be true of any mental health detainee in the custody of the MP.

142. One concern the Commission had was whether administering the informational component of the right to counsel might lead a mental health detainee to feel even more like they were treated as if they were a criminal. The Commission sought the Complainant’s view on this point. While her experience may not be of universal application, the Commission found her views instructive on this point.

143. The Complainant indicated that once the Form 1 was signed, she believed she truly had no rights. The Complainant feels that if she had been informed of her rights to counsel, she would potentially have felt more empowered and respected. She accepts that she was not in the best frame of mind to understand the right to counsel when it was provided to her in the Form 42, and the Commission recognizes that it may be difficult or impossible to have mental health detainees, who are in a state of crisis, understand their rights. However, one must distinguish informing someone of their rights from ensuring that they understand their rights. We take guidance from the Ontario MHA section 1, where it states in relation to the obligations of a “rights adviser” to “explain” certain things to a patient:

A rights adviser or other person whom this Act requires to explain a matter satisfies that requirement by explaining the matter to the best of his or her ability and in a manner that addresses the special needs of the person receiving the explanation, whether that person understands it or not.

144. The Commission notes that nobody verbally explained the Complainant’s rights to counsel to her; she was given a Form 42 in writing and left with it. The Commission is of the view that mental health detainees deserve a better level of communication in this area. The Lower Mainland RCMP officer who was consulted on handcuffing issues emphasized the importance of explaining the status of the detainee to him or her (i.e. that they were handcuffed only for safety and that they were not criminals) in order to provide them with support and reassurance. In a similar vein, a detainee may be reassured by the fact that they are informed that they do have rights which they will, at some appropriate juncture, be entitled to exercise.

145. The Commission is troubled by Sgt. Steward’s contention that the Complainant’s Charter rights ought not be read to her because the Complainant was “not fully competent”. There is no doubt that the Complainant was lucid and competent enough to understand and follow the directions of the MP members when she was asked to relocate, to comply with a search, and to otherwise co-operate. The Complainant was not detained due to incompetence, she was detained because she posed, in the view of the medical staff, some significant risk of harm to herself. The Commission notes that MP members must be mindful to not conflate the grounds for mental health detention with mental incapacity. Many people with mental health issues such as PTSD or depression will be sufficiently lucid, competent, and capable of understanding their rights if informed of them that advising them of their rights will be a meaningful exercise. The exaggerated view of the Complainant’s incapacity expressed by Sgt. Steward in this regard are consistent with his tendency to over-estimate the risk factors disclosed by the Complainant’s conduct prior to his attendance, and attract our disagreement in a similar fashion.

146. Maj. Boot was consulted on the issue of advising mental health detainees of their right to counsel. He very pragmatically indicated that whether or not it was a formal requirement at the point of detention by MP personnel, there is no harm that can be done by providing the mental health detainee with information concerning their rights. Moreover, he correctly points out that it would be wise for MP members to protect themselves and their institution by thoroughly communicating to mental health detainees both the reasons and the circumstances of their detention, and their Charter right to consult with counsel.

147. The Commission recognizes, as do the courts, that there may be exigent or extreme circumstances where it is impracticable to advise a mental health detainee of their rights pursuant to section 10 of the Charter. In some rare instances, a mental health detainee may be violent or psychotic and the exigencies of the circumstances may dictate that recitation of Charter rights is either untenable or pointless. However, this does not detract from the Commission’s view that it would be the best practice to presumptively advise all mental health detainees of their rights under s.10 of the Charter.

148. The Commission is supported in this view by the RCMP’s draft revised policies on handling Emotionally Disturbed Persons. That draft policy explicitly states “If an Emotionally Disturbed Person is detained they must be advised of their rights under the Charter of Rights and Freedoms.” There is no reason apparent to the Commission which would suggest that standard practice should be any different for the MP.

Recommendation #5

The Commission recommends that the CFPM adopt a protocol whereby MP members are directed to advise mental health detainees who come into their custody of their rights pursuant to section 10 of the Canadian Charter of Rights and Freedoms. (ACCEPTED)

  • In accepting this recommendation, the CFPM stated that “This recommendation will be incorporated into any MPPTP changes resulting from the study conducted by DPM Police as per recommendations 2 and 4”.

(iv) Consideration of the training, resource and implementation issues surrounding the implementation of any such protocols.

149. The Commission is cognizant of the difficult task the CFPM faces with respect to training, resources and implementation of any new protocols which we recommend. It is difficult if not impossible for the Commission to assess, for example, whether more training is needed for better factual analysis to be done by MP members, or whether the training is sufficient but the reinforcement and supervision of the implementation of this training is lacking. It is equally difficult if not impossible for the Commission to assess the particular jurisdictional and geographic considerations that may affect the implementation of any protocols. It is the Commission’s view that the CFPM is in the best position to assess the particulars of how to properly develop and implement any protocols with respect to treatment of mental health detainees by MP members. Community resources may be available in one jurisdiction but not another. Personnel issues may be more acute in some locations. Training may be necessary for some elements of the protocols, or it may be that minor modifications to existing training programs is all that is needed. It is the CFPM who must balance the resource issues, their human resources, the geographic challenges, and who must ultimately bear responsibility for the implementation of proper protocols after due consideration of the issues we have raised. We are confident, since it is in the interests of the CFPM, MP members, and all members of the Canadian Forces, that the CFPM will duly consider our recommendations and will take the appropriate measures to ensure that Canadian Forces members with mental health issues are fairly and properly dealt with by MP members.

VII. Conclusion

150. The Commission has found that there have been no violations of the Military Police Code of Conduct by either Sgt. Steward or Cpl. Kenny. We have been somewhat critical of their conduct, but the Commission recognizes that they were acting in an area which has no specific protocols, and which falls into an area of cross-jurisdictional complexity. We hope that our critique is accepted in the constructive manner in which it was intended, with a view to improving their ability, and the ability of all MP members, to properly respond to such cases when the need arises. We are pleased to note that the CFPM has undertaken to study, clarify and improve the process both for the benefit of MP members who are entrusted with these duties, and for the benefit of the detained persons who are subject to the procedures. While we dismissed the Complainant’s particular allegations concerning the conduct of the MP members, we are mindful of and very sympathetic to her for the difficult and potentially traumatic circumstances she found herself in on May 16, 2008. We appreciate that it was largely with a view to systemic concerns that she initiated her complaint, and we are confident that there have been, and will continue to be, some positive systemic change in the handling of mental health detainees as a result of her coming forward.

VIII. Summary of Findings and Recommendation

Finding #1:

The Commission finds that Sgt. Steward and Cpl. Kenny acted on a misapprehension of facts due to either a miscommunication of or misinterpretation of background facts relevant to the decision to handcuff the Complainant. The Commission finds that Sgt. Steward and Cpl. Kenny could have exercised their discretion not to handcuff the Complainant in this case. However, in light of the fact that they acted under a misapprehension of fact, the Commission does not find that Sgt. Steward and Cpl. Kenny breached any section of the Military Police Code of Conduct by placing the Complainant in handcuffs while transporting her. (ACCEPTED)

Finding #2

The Commission finds that the allegation that the Military Police failed to properly respect the Complainant’s privacy is not substantiated. The Commission finds that the MP members did the best they could under the circumstances to respect the Complainant’s privacy. (ACCEPTED)

Finding #3

The Commission finds that the allegation that Cpl. Kenny conducted her search of the Complainant in a less-than-professional manner and made untoward comments during that search is unsubstantiated. (ACCEPTED)

Finding #4

The Commission finds that the allegation that the Military Police improperly disclosed private medical information about the Complainant is not substantiated. (ACCEPTED)

Recommendation #1

The Commission recommends that the CFPM ensure that the standard MP requirement for full and accurate note taking be supervised and reinforced in order to encourage proper factual analysis during escorts and to allow for proper review after the fact. (ACCEPTED)

Recommendation #2

The Commission recommends that the CFPM, with the assistance of the Military Police Academy and any appropriate outside agencies, develop specific protocols for MP members in their dealings with mental health detainees. These protocols should include a requirement that MP members specifically direct their mind to the proper exercise of their discretion whether to handcuff a mental health detainee or not, and should include direction on how MP members are to assess and record the factors which inform their exercise of that discretion. In addition, in developing these protocols, it is recommended that consideration be given to the use of plain clothed officers and unmarked cruisers. The Commission recognizes this would need to be balanced with the available resources. (ACCEPTED)

Recommendation #3

The Commission recommends that the CFPM consider implementation of a protocol for all Military Police as noted is the practice at CFB Borden in generating street checks rather than General Occurrence Files. (ACCEPTED)

Recommendation #4

The Commission recommends that in reviewing its protocols for handling mental health detainees, the CFPM reviews regional and jurisdictional legislation, resources and practices with a view to making those protocols responsive to local law, conditions, and client requirements in addition to consideration of these important issues abroad. (ACCEPTED)

Recommendation #5

The Commission recommends that the CFPM adopt a protocol whereby MP members are directed to advise mental health detainees who come into their custody of their rights pursuant to section 10 of the Canadian Charter of Rights and Freedoms. (ACCEPTED)

Ottawa, February 9, 2009

 

Glenn Stannard
Commission Member

 

Roy Berlinquette
Commission Member

Appendix A – Materials reviewed

  1. Complaint lodged by the Complainant via an e-mail message, on May 22, 2008
  2. Email message sent by the Complainant to Jim Woodley of DND-OSISS
  3. Audio recording of the Complainant interview on June 4, 2008
  4. Disclosure package received from Professional Standards (PS) with GO # 2008-12674
  5. Request sent on August 5, 2008 to PS to request more items pertaining to the issue
  6. Summary of all CF and MP policies prepared by MPCC Legal Counsel
  7. National Use of Force Framework
  8. Mental Health Act, R.S.O. 1990, c. M.7
  9. Policing Standard Manual (2000) Section 29
  10. Interview summary of the Complainant
    10(a) Questions for the interview of the Complainant
  11. Medical Release signed by the Complainant
  12. Nurse Lori Mellett (Witness)
    12 (a) Questions for the interview of Nurse Mellett
  13. Floor Plan of the Medical Inspection Room (MIR)
  14. Interview summary of Pte. Gerrard Barclay (Witness)
    14(a) Questions for interview of Pte. Barclay
  15. Statement of Lt. Eric Bossé Deputy Base Provost Marshal, CFB Borden
  16. Cpl. Brent MacDonald (Witness)
    16(a) Questions for interview of Cpl. MacDonald
  17. Interview summary of Dr. David Ewing (Witness)
    17(a) Questions for the interview of Dr. Ewing
    17(b) Joint policy on inter agencies agreement from England for Mental Health patients
    17(c) Mental Health Act
    17(d) Consultation report dated May 6th 2008
    17(e) Consultation report dated May 9th 2008
    17(f) Consultation report dated May 13th 2008
    17(g) Consultation report dated May 21st 2008
    17(h) Consultant clinical report dated May 21st 2008
    17(i) Consultation report dated May 23rd 2008
    17(j) Consultation reports from RVH 5 pages
  18. Interview summary of Ms. Barbara Cohlmeyer (Witness)
    18(a) Questions for the interview of Ms. Cohlmeyer
    18(b) Authorization for exchange of personal information signed by the Complainant
    18(c) Progress report dated May 16th 2008
    18(d) Ongoing progress recording dated May 16th 2008
    18(e) E-mails messages 6 pages
  19. Interview summary of Cpl. Nathalie Pagé (Witness)
    19(a) Question for the interview of Cpl. Pagé
    19(b) Transcript of conversation between Cpl. Pagé and dispatcher Ms. Hutchison
  20. Interview summary of RVH security officer [redacted text] (Witness)
  21. Interview summary of Nurse [redacted text] (Witness)
    21(a) Questions for interview of [redacted text] (Intake nurse)
  22. Floor plan of the RVH emergency department
  23. Interview summary of RVH security officer [redacted text] (Witness)
  24. Interview summary of Capt. Catherine Bass (Witness)
    24(a) Questions for interview of Capt. Bass
    24(b) E-mail message from Capt. Bass responding to questions from the investigator
  25. Interview summary of Sgt. James Gordon Steward (Subject of complaint)
    25(a) Questions for interview of Sgt. Steward
    25(b) Lesson plan A from the CFMP Academy regarding handcuffing
    25(c) Lesson plan B from the CFMP Academy regarding handcuffing technique
    25(d) CF policy A-SJ-100-004/AG-000 National Use of Force model
  26. Interview summary of Cpl. Christina Victoria Kenny (Subject of complaint)
    26(a) Questions for interview of Cpl. Kenny
    26(b) Standing Operative Procedure 5 – CFSTG Military Police Section, CFB Borden
    26(c) Rough floor plans drew by Cpl. Kenny
  27. Interview summary of Ms. Joanne Hutchison (Witness)
    27(a) Questions for interview of Ms. Hutchison (dispatcher)
  28. Statement of Maj. Klaus Schneider, PM of CFSTG Military Police Section, CFB Borden
    28(a) E-mail messages to Maj. D.J. Newham, Base Surgeon
    28(b) Lesson plan from the CFMP Academy
  29. Interview summary of WO Helen Pellerin (Witness)
  30. Interview summary of John Rankin (Witness)
  31. Statement of Ms. Jessica Eckstein – Best Practices
  32. Interview summary of Dr. Stephen Onlock, emergency department RVH (Witness)
  33. Interview summary of MCpl. Raymond Jean-Luc Quesnel (Witness)
  34. Interview summary of WO Donald M. Scandrett (Witness)
  35. Response from Heather L. MacDonald, RCMP analyst & national policy
  36. E-mail message from RCMP analyst MacDonald with response from divisions
  37. Response from RCMP Cst. Lara Davidson of “E” Division
  38. Response from OPP Staff Sergeant Roger Kelly
  39. Statement of A/Sgt. Keira Brooks, Barrie Police Service – Best Practices
    39(a) Procedure #21 dealing with responses to mentally ill or disturbed persons
    39(b) Procedure #129 Prisoner transport
    39(c) Procedure #125 Arrest
    39(d) Procedure #127 Prisoner care and Control
    39(e) Procedure #56 Use of force
  40. Statement of AD/C Brian Cookman of Kingston Police – Best practices
    40(a) Police response to person mentally ill or disturbed persons Volume I-B-42
    40(b) Use of Force – Volume I-A-24R4
    40(c) Prisoner Transportation – Volume I-B-64
  41. Interview summary of Hamilton Police and COAST – Best practices
    41(a) COAST monthly summary statistics
    41(b) Mental health information card
    41(c) COAST programs and services pamphlet
    41(d) COAST intake/Prevention Alert form
    41(e) a submission to HPS titles Police and Mental Health: One problem- two solutions
  42. Statement of Insp. George MacPhee, Windsor Police Service – Best practices
    42(a) Mentally Ill Persons #793-07
    42(b) Prisoners Admitted To Hospital #732-02
    42(c) Prisoner Transportation #733
    42(d) Handcuffing & Leg Restraints #734-01
    42(e) Prisoner Care & Control #731-01
    42(f) Detention Centre #731-03
    42(g) Use of Force Reporting #711-01
    42(h) Search Of Persons #871-01
  43. Statement of Maj. Douglas Boot – Commandant, Military Police Academy – Best practices
  44. Statement of [redacted text], RVH Director of Security – Best practices
  45. Responses from [redacted text], manager of RVH emergency department
  46. MPCC Investigators’ Report
  47. Follow-up interview of the Complainant re: Charter issues
  48. Follow-up interview of Cpl. Christina Victoria Kenny re: Charter issues
  49. Follow-up interview of Sgt. James Gordon Steward re: Charter issues
  50. Follow-up interview of Maj. Douglas Boot re: Charter issues
  51. Follow-up consultation with Maj. Klaus Schneider re: operational protocols
  52. Telephone inquiry with MWO Gaétan Chiasson
  53. Telephone inquiry with CPO1 Gerald Westlake
  54. Telephone inquiry Major Jacques Bouchard, Deputy Administrative Officer, CFB Borden
  55. Telephone inquiry CWO Fernand Baillargeon, Base Chief
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