Chairperson's Final Report - MPCC-2002-020 and MPCC-2002-028 - M. Hamm / T. Hamm Matter

National Defence Act - Part IV

Section 250.53

CHAIRPERSON'S FINAL REPORT

Following a Public Interest Investigation
Pursuant to
Section 250.38(1) of the National Defence Act
With Respect to the Complaints of
Warrant Officer Michael E. Hamm
and Corporal Timothy C. Hamm

Files: MPCC-2002-020
MPCC-2002-028
Ottawa, July 14, 2004

Investigated by Commission Members:
Peter Seheult
Odilon Emond
Delegated pursuant to subsection 250.11(3) of the National Defence Act

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

Table des matières

Volume I: Interim Report

  1. Introduction
  2. Military Police Complaints Commission

    1. Scope of the Public Interest Investigation
    2. Methodology
      1. Document Review
      2. Designated Members
      3. Persons Interviewed
      4. Assisting the Complaints Commission
      5. Legal Framework of the Public Interest Investigation
      6. Burden of Proof and Jurisdiction
  3. Summary of the Incident, Complaints and Investigations

    1. Background to Corporal Hamm's Arrest
    2. Warrant Officer Rice Telephones Corporal Hamm to Notify him to Prepare to Deploy to Inuvik
    3. Warrant Officer Rice Instructs Military Police Members to Attend Corporal Hamm's Residence and the Subsequent Arrest of Corporal Hamm
    4. Events at the 4 Wing, Cold Lake Guardhouse After Corporal Hamm's Arrest
    5. Warrant Officer Hamm's Complaint
    6. Tasking of Investigations of the Complaint and Notification of Subject Members
    7. Verbal Warning Administered of the Corporal Hamm
    8. The Canadian Forces National Investigation Service Investigation Report and its Aftermath
    9. Professional Standards Investigation Report
    10. Deputy Provost Marshal Professional Standards' Letters of Final Disposition
    11. Actions Taken Against Warrant Officer Hamm and Corporal Hamm
    12. Warrant Officer Hamm's Request for Review and Corporal Hamm's Complaints in the First Instance
  4. Commission Members' Findings and Recommendations Subsequent to the Public Interest Investigation

    1. Issues 1 and 2: Was the Order to Arrest Corporal Hamm Issued by
      Warrant Officer Rice Proper and Lawful? Was the Subsequent Arrest by Master Corporal Paul and Corporal Murray Proper and Lawful?


      1. Background of Corporal Hamm's Arrest on December 12, 2002

        1. Events Preceding the Arrest
        2. Warrant Officer Rice's Telephone Call to Corporal Hamm December 12, 2004
        3. Warrant Officer Rice Instructs Master Corporal Paul and Corporal Murray
        4. Events at Corporal Hamm's Residence
        5. Return to the Guardhouse
        6. Events in Guardhouse Interview Room
      2. Commission Members' Findings: Issues 1& 2

        1. Knowledge of the Reasons for Corporal Hamm's Sick Leave
        2. The Decision to Task Corporal Hamm to Deploy to Inuvik on December 26, 2000
        3. Assessments of Credibility of Warrant Officer Rice and Corporal Hamm
        4. Use of Profanity by Warrant Officer Rice
        5. Warrant Officer Rice's Rationale for Summoning Corporal Hamm of Attend his Office
        6. Whether Requiring Corporal Hamm to Attend the Military Police Detachment Was a Recall to Duty
        7. The Source of Warrant Officer Rice's Authority to Arrest Corporal Hamm
        8. Was Corporal Hamm's Arrest Necessary?
        9. Exercise of the Discretion to Arrest
        10. Duty of Master Corporal Paul and Corporal Murray to Carry out Warrant Officer Rice's Instruction
        11. Failure to Disclose Reason for the Arrest to the Arresting Officers
        12. The Effect on the Arresting Officers'Understanding
        13. Effect on What Corporal Hamm Was Told
        14. Duty of Master Corporal Paul and Corporal Murray to Clarify Warrant Officer Rice's Instructions
        15. A Section 9 Charter Analysis: Arbitrary Detention
        16. The Charter Right to be Informed Promptly of the Reasons for Arrest
        17. Necessity for Corporal Hamm to be Told Why Warrant Officer Rice Wanted to See Him
        18. Deputy Provost Marshal Professional Standards' Finding that Warrant Officer Rice Acted Within his Authority and Responsibilities
        19. Master Corporal Paul's Note-Taking
      3. Commission Members' Recommendations: Issues 1& 2
    2. Issue 3 : Was the Release from Arrest by Chief Warrant Officer Pierre Gauvin Proper and Lawful?

      1. Commission Members' Finding and Recommendations: Issue 3
    3. Issue 4: Did Chief Warrant Officer Gauvin Attempt to Deter Corporal Hamm, in his Office on December 12, 2000, through the Use of Intimidation or Otherwise, from Making a Complaint in Regards to his Arrest?

      1. Commission Members' Findings and Recommendations: Issue 4
    4. Issue 5: Are the Rights of Complaints Being Negated Due to a Lack of Adherence to Part IV of the National Defence Act, through the Internal Classification of Complaints?

      1. Commission Members' Finding and Recommendations: Issue 5

        1. The “Internal” Classification of Warrant Officer Hamm's Complaint
        2. Potential Effects of the Internal Designation on the Rights of Complaints and Subjects of Complaints
    5. Issue 6: Did the Deputy Provost Marshal Professional Standards Properly Handle Warrant Officer Hamm's Complaint?

      Were Corporal Hamm and Warrant Officer Hamm Treated fairly After The Latter Filed his Complaint?


      1. Commission Members' Finding and Recommendations: Issue 6

        1. The Investigation by the Canadian Forces National Investigation Service
        2. The Professional Standards Investigation
        3. The Deputy Provost Marshal Professional Standards' Handling of Warrant Officer Hamm's Complaint: The Investigation Process
        4. The Deputy Provost Marshal Professional Standards' Handling of Warrant Officer Hamm's Complaint; the Deputy Provost Marshal Professional Standards' Findings

          1. Commission of Service Offence by Corporal Hamm
          2. Allegation that Corporal Hamm Misled Warrant Officer Hamm
        5. Was Warrant Officer Hamm Treated Fairly After He Filed His Complaint?

          1. Conditions for Filing and Duty to Complain
          2. Disclosure by Warrant Officer Hamm of his Concerns to the Chain of Command
          3. Warrant Officer Hamm's Counselling
        6. Was Corporal Hamm Treated Fairly After Warrant Officer Hamm Filed His Complaint?

          1. Reason for Corporal Hamm's Suspension
          2. Identification of Contradictory Reason for the Suspension of Corporal Hamm's Credentials
  5. Summary of the Commission Members' Interim Findings
  6. Summary of the Commission Members' Interim Recommendations
  7. Interim Report Conclusion

Volume II: Canadian Forces Provost Marshal's Notice of Action

Volume III: Final Report

  1. Final Executive Summary
    1. Background
    2. The Complaints
    3. Issues
    4. The Public Interest Investigation and Report
    5. Summary of the Commission Members' Final Findings
    6. Summary of the Commission Members' Final Recommendations
  2. Review of Chairperson's Interim Report
  3. Commission Members' Findings and Recommendations Having Considered the Notice of Action from the Provost Marshal

    1. Civilian Oversight and the Purpose of the Notice of Action
    2. Background of Complaints
    3. Powers of Arrest under the National Defence Act and the Jurisdiction of the Complaints Commission in this case
    4. Public Interest Component
    5. Hearing versus Investigation
    6. Refusal by Witnesses to be Interviewed and Treatment of Witnesses
    7. Provost Marshal's Allegation that the Complaints Commission Refused to Provide Witness Statements
    8. Credibility Findings Challenged by the Provost Marshal
    9. Insubordination
    10. Recall to Duty
    11. Section 10(a) of the Charter and Corporal Hamm's Right to be Informed of the Reason for his Arrest
    12. Superior Orders and the Arrest of Corporal Hamm
    13. Abuse of Authority
    14. Privacy Act comments by the Provost Marshal
    15. Master Corporal Paul's notes
    16. Findings surrounding Chief Warrant Officer Gauvin
    17. Right of Complainants and Subject Members Concerning Classification of Complaints
    18. Warrant Officer Hamm and Corporal Hamm as Subjects of Complaints
    19. Deputy Provost Marshal Professional Standards' Conclusions
    20. Warrant Officer Hamm's treatment by the Deputy Provost Marshal Professional Standards
    21. Corporal Hamm's treatment by the Deputy Provost Marshal Professional Standards & Review of Police Credentials
    22. Misleading the Investigator
    23. Recommendations
  4. Commission Members' Conclusion
  5. Summary of Commission Members' Final Findings
  6. Summary of Commission Members' Final Recommendations

Acronyms

Acronymes Value

BGen Brigadier-General
CAD PM: Canadian Air Division Provost Marshal
Capt: Captain
Cdr: Commander
CDS: Chief of the Defence Staff
CF: Canadian Forces
CFNIS: Canadian Forces National Investigation Service
CFPM: Canadian Forces Provost Marshal
CO: Commanding Officer
Cpl: Corporal
CWO: Chief Warrant Officer
DND: Department of National Defence
DPM: Deputy Provost Marshal
DPM NIS: Deputy Provost Marshal Canadian Forces National Investigation Service
DPM PS: Deputy Provost Marshal Professional Standards
Insp: Inspector
JAG: Judge Advocate General
LCol: Lieutenant-Colonel
Lt: Lieutenant
Maj: Major
MCpl: Master Corporal
MP: Military Police
MPCRB: Military Police Credentials Review Board
MWO: Master Warrant Officer
NCO: Non-Commissioned Officer
NDA: National Defence Act
NDHQ: National Defence Headquarters
OC CFNIS SI: Officer Commanding of the Canadian Forces National Investigation Service Sensitive Investigation Detachment
PO2: Petty Officer Second Class
PT: Physical Training
QR&O: Queen's Regulations and Orders for the Canadian Forces
RCMP: Royal Canadian Mounted Police
RPT: Remedial Physical Training
SAMP: Security and Military Police
Sgt: Sergeant
Sqn: Squadron
Supt: Superintendent
VCDS: Vice-Chief of the Defence Staff
WCWO: Wing Chief Warrant Officer
WSAMP: Wing Security and Military Police
WO: Warrant Officer

Chronology of Events

1999
November 2 Corporal Hamm fails his Express Test (physical fitness test).
November 9 Warrant Officer Lewis (then Sergeant) assigns Sergeant Smith (then Master Corporal) to advise Corporal Hamm that the Wing Security and Military Police Officer ordered him to attend the Fitness Development Program and to sign the register.
November 15-19 Corporal Hamm attends the Interview/Interrogation Techniques Course.
End of November Corporal Hamm signs as having read 1180-1, Wing Security and Military Police Weekly meeting minutes dated 17 Nov 99 paragraph 22 - Remedial Physical Training required “mandatory” for all those who failed the Express Test.
December 13-17 Corporal Hamm attends the Investigator's Course Level 1.
2000
January 18 Warrant Officer Lewis has Corporal Hamm and Sergeant Smith in her office. Warrant Officer Lewis claims she told Corporal Hamm that he was ordered to do Remedial Physical Training three (3) times per week and went into details about signing the register. Warrant Officer Lewis makes a written note regarding this meeting.
March 13-April 14 Corporal Hamm attends an Investigator's Course in Borden.
April 10 Corporal Hamm receives a very positive personal evaluation report.
April 15-May 2 Corporal Hamm takes Annual Leave.
May 3 Corporal Hamm asks if he could return to normal working hours. He adds that the change was not accomplishing anything because he had to get up early anyway to do his Remedial Physical Training. Corporal Hamm's request is approved.
May 25 Warrant Officer Lewis calls Lori Watts (Fitness Coordinator) to verify Corporal Hamm's attendance at Remedial Physical Training for the period of November 1999 - May 2000.
May 29 Warrant Officer Lewis receives an e-mail from Lori Watts indicating that Corporal Hamm only attended three (3) classes (February 1, 7 and 10, 2000). Warrant Officer Lewis tells Sergeant Smith of her findings and asks Sergeant Smith to look into it.
June 01 Sergeant Smith informs Warrant Officer Lewis that Corporal Hamm indicated that he had been attending Remedial Physical Training.
June 03 Warrant Officer Lewis calls Lori Watts and asks her to check Corporal Hamm's attendance again for the week of May 30 - June 2, 2000. She receives a reply stating that Corporal Hamm is still not attending the classes. When Warrant Officer Lewis checks with Sergeant Smith he says that there was a mistake because he saw Corporal Hamm on May 30, 2000 in the weight room on a stationary bike, at which time he approached him and asked him why he wasn't with the rest of the class. Corporal Hamm said that they were doing a test and the instructor sent him upstairs.
June 03 Accompanied by Sergeant Smith, Warrant Officer Lewis attends the Recreational Center where she meets Lori Watts (Fitness Coordinator). Lori Watts introduces them to Diane Chinner (an instructor). Diane Chinner indicates that the name of Corporal Timothy Hamm did not sound familiar and that she usually knows everyone who attends her classes frequently. She adds that the attendance is taken by roll-call at the end of the class. The names are called out and the instructor initials beside the names. Sergeant Smith asks Diane Chinner if she sent someone upstairs to do Physical Training on their own (while the rest of the class was being tested) on May 30, 2000. She replies no and that she would never do that because it would not constitute a “supervising” class.

Lori Watts brings two other instructors, Tania Taschuk and Renee Nuttall, into the room. They state that Corporal Hamm was not a name that they recognized. Warrant Officer Lewis physically describes Corporal Hamm and they reply that they do not think that they saw him in their classes. They indicate that if they saw a picture it would help them refresh their memory.
June 05 Lori Watts e-mails Warrant Officer Lewis stating that they have no record of Corporal Hamm attending Remedial Physical Training except for the three (3) days mentioned.
June 06 Corporal Hamm signs a form indicating his Physical Training test is scheduled for July 6, 2000. The form also indicates that he was ordered to attend Remedial Physical Training five (5) times per week.
June 20 Corporal Hamm attends medical office and is granted one (1) day Excused duty; seven (7) days Light Duty; Physical Training own pace.
June 26 Corporal Hamm is charged under s. 129 of the National Defence Act for neglect to the prejudice of good order and discipline in relation to failing to sign-in for Remedial Physical Training three (3) times per week between January 18 and May 29, 2000.
July 06 Express Test is scheduled for this date. However, Corporal Hamm is medically exempt for one (1) month and Physical Training at his own pace.
July 25 Dr. McNally excuses Corporal Hamm from Physical Training until physiotherapy is completed (open-ended medical chit).
August 09 Express Test is scheduled for this date; however, it does not occur due to Corporal Hamm's medical status.
August 16 Express Test is scheduled for this date; however, it does not occur due to Corporal Hamm's medical exemption open-ended chit obtained July 25, 2000.
September 20 Corporal Hamm is convicted at a summary trial and receives a caution (lowest sanction) for failing to sign-in for Remedial Physical Training.
October 10 Corporal Hamm requests a review of his summary trial decision.
October 30 Reviewing Officer quashes the finding and sentence and refers the matter for a new trial.
November 23 Corporal Hamm is advised of new summary trial.
December 05 Corporal Hamm has his second summary trial, is convicted and receives a fine (higher penalty than the 1st time).
December 06 Corporal Hamm requests a day off from Warrant Officer Rice (then Sergeant). Warrant Officer Rice refuses stating that Corporal Hamm needs to train Master Corporal Paul (then Corporal).
December 07 Corporal Hamm goes to see Dr. Burke who gives him sick leave for [redacted text] from December 7-13, 2000. Corporal Hamm informs Chief Warrant Officer Gauvin and Warrant Officer Rice of the sick leave, but not the reason for it.
December 7-13 Corporal Hamm is on sick leave.
December 12 Corporal Hamm is arrested at his residence.
December 12 While under arrest, Corporal Hamm calls his brother in Trenton, Ontario. Warrant Officer Hamm calls Chief Warrant Officer Stopford, Cold Lake, Alberta, regarding the matter after he conferred with his superior. Warrrant Officer Hamm calls Chief Warrant Officer Galway at 20.00 hours.
December 13 Warrant Officer Hamm e-mails the details to Chief Warrant Officer Galway to lay a formal complaint. Chief Warrant Officer Galway calls Lieutenant-Colonel Carey (then Major), Deputy Provost Marshal Professional Standards, at 09.15 hours to advise her of the arrest and complaint.
December 14-January 12 Dr. Burke signs a sick leave pass for Corporal Hamm during this period.
December 14 Telephone conversation takes place between Lieutenant-Colonel Carey, Deputy Provost Marshal Professional Standards, and Capt Morrison (then Lieutenant), Acting/Wing Security and Military Police Officer in Cold Lake, Alberta.

Tasking Instructions for Professional Standards Internal Investigation (2120-2-2-2/TD 088-00) is signed-off by Master Warrant Officer Rutter.
December 14 Warrant Officer Hamm formalizes his concerns/complaint in a letter.
December 15 Dr. Skanes decides to override Dr. Burke's decision. Dr. Skanes does so after a telephone conversation with one of Corporal Hamm's superiors.
December 20 Canadian Forces National Investigation Service plan to investigate alleged breaches of service discipline by Chief Warrant Officer Gauvin, Warrant Officer Rice, Corporal Murray and Master Corporal Paul is signed.
2001
January 3 Deputy Provost Marshal Professional Standards, Lieutenant-Colonel Carey, signs a note to Warrant Officer Bureau to task this investigation which is being held in abeyance. She states that “this is an internal dealing”.
January 22 Corporal Hamm is given a verbal warning (reduced to writing) by Chief Warrant Officer Gauvin for being insubordinate on the phone with Warrant Officer Rice, for disobeying a lawful command when he refused to attend Warrant Officer Rice's office and for again being insubordinate in Warrant Officer Rice's office when asked to stand at attention on December 12, 2000.
February 19 Edmonton Sun article is published.
February 27 Express Test is scheduled; however, it does not take place as Corporal Hamm is excused from duty one (1) day; fourteen (14) days Light Duty.
Prior to 20 March Warrant Officer Rice signs notification that Corporal Hamm is scheduled for his Express Test on March 20, 2001 with a note that if Corporal Hamm feels that he is medically unfit to take the test that he “shall” report to Warrant Officer Rice, Warrant Officer Spek, or Chief Warrant Officer Gauvin prior to attending the medical office.
March 20 Express Test is scheduled for this day; however, it is rebooked for March 29th at Corporal Hamm's request as he is on annual leave.
March 29 Express Test is scheduled for this day; however, Corporal Hamm provides medical chit for Light Duty thirty (30) days.
April 30 Dr. McNally signs sick leave card for thirty (30) days stating that Corporal Hamm is unfit for the Express Test.
May 16 Telex requesting that Corporal Hamm be posted early (June 18, 2001) to Ottawa in the Canadian Forces National Investigation Service is received at Cold Lake, Alberta.
June 05 Corporal Hamm receives copy of telex from Chief Warrant Officer Gauvin advising that he must commence at the Canadian Forces National Investigation Service on June 18, 2001.
July 08 Captain Pineau signs Canadian Forces National Investigation Service Investigation Report. Subject members: Warrant Officer Rice, Master Corporal Paul, Chief Warrant Officer Gauvin, Corporal Murray. Allegations of unlawful arrest and witness tampering. Investigation concludes that: Master Corporal Paul and Corporal Murray had reasonable and probable grounds to believe that a service offence had been committed when Corporal Hamm refused to accompany them pursuant to Warrant Officer Rice's order and that they were acting in good faith; Warrant Officer Rice recalled Corporal Hamm to duty contrary to the Queen's Regulations and Orders for the Canadian Forces section 16.01 and will be charged with s.129 of the National Defence Act; no evidence to support witness tampering by Chief Warrant Officer Gauvin.
July 11 Warrant Officer Rice is charged under s. 129 of the National Defence Act.
August 04 Major Thobo-Carlsen makes a formal request for Canadian Forces National Investigation Service investigation against Corporal Hamm for insubordination, disobeying a lawful command in the December 12, 2000 incident.
August 9 Warrant Officer Rice's summary trial for alleged s. 129 of the National Defence Act violation. He is found not guilty.
August 29 Inspector Russ Grabb (Officer Commanding Canadian Forces National Investigation Service) refuses to investigate Corporal Hamm as per Major Thobo-Carlsen's request.
August 30 Inspector Russ Grabb writes to the Chairperson asking for complete review of the complaint, investigation and issues as he finds the actions of Military Police Commanders at Cold Lake troubling. This is the first time the Complaints Commission was advised of this complaint.
November 09 Chairperson requests answers from the Deputy Provost Marshal Professional Standards (Lieutenant-Colonel Carey) as to why the matter was classified as an “internal” investigation and why the Complaints Commission was not advised earlier.
November 14 Deputy Provost Marshal Professional Standards (Lieutenant-Colonel Carey) writes note to Master Warrant Officer to draft letter to Military Police Complaints Commission stating “that in error the MPCC was omitted from that letter. Leave it at that.
November 15 Deputy Provost Marshal Professional Standards (Lieutenant-Colonel Carey) writes to the Chairperson explaining that the “internal” classification was an oversight.
2002
January 10 Deputy Provost Marshal Professional Standards (Lieutenant-Colonel Carey) writes to Chairperson explaining that the “Internal Investigation” caption was done in error and has since been rectified.
February 21 Professional Standards Investigation by Sergeant Dussault is completed. Allegations against Warrant Officer Rice, Corporal Murray, Master Corporal Paul and Chief Warrant Officer Gauvin were all unsupported.
April 05 Deputy Provost Marshal Professional Standards (Lieutenant-Colonel Carey) forwards Letters of Final Disposition to those involved advising of her decision in this case indicating that the allegations against Warrant Officer Rice, Corporal Murray, Master Corporal Paul and Chief Warrant Officer Gauvin are unsupported.
April 15 Deputy Provost Marshal Professional Standards (Lieutenant-Colonel Carey) sends telex instructing that Corporal Hamm's credentials be suspended.
April 18 Captain Chiasson e-mails Commander Moore requesting that the decision to suspend Corporal Hamm's credentials be revisited.
April 22 Acting Deputy Provost Marshal Professional Standards (Major Pumphrey) responds that they will uphold the decision of Lieutenant-Colonel Carey as there is no reason to reverse it.
April 23 Captain Chiasson further expresses his concerns to Commander Moore, which are communicated to Major Pumphrey. Major Pumphrey responds that the decision will not be revisited.
April 23 Telex is sent from Captain Chiasson to the Deputy Provost Marshal Professional Standards advising that Corporal Hamm's credentials were suspended as directed.
April 23 Captain Chiasson signs a very positive personal evaluation report for Corporal Hamm.
April 30 Warrant Officer Hamm requests a review by the Complaints Commission of the Deputy Provost Marshal Professional Standards' decision and investigation.
May 02 Acting Deputy Provost Marshal Professional Standards (Major Pumphrey) signs a second set of Letters of Final Disposition which indicate that Warrant Officer Rice, Corporal Murray, Master Corporal Paul and Chief Warrant Officer Gauvin did not breach the Military Police Professional Code of Conduct; however, did state that Warrrant Officer Rice ought to be counselled for [redacted text] ; that Warrant Officer Hamm acted on incomplete information and was premature in submitting his complaint and that he be counselled to ensure that he understands the situation; that Chief Warrant Officer Gauvin should not have released Corporal Hamm from arrest as he had no authority as per the Queen's Regulations and Orders for the Canadian Forces section 105.12 and Chief Warrant Officer Gauvin is to be advised as such; and that Corporal Hamm misled his brother and manipulated the situation.
May 15 Corporal Hamm makes a complaint in the first instance to the Complaints Commission.
July Warrant Officer Hamm is counselled by Lieutenant-Colonel Dixon, 1 Canadian Air Division Provost Marshal, as per the Deputy Provost Marshal Professional Standards' instructions.

EXECUTIVE SUMMARY

Table of Contents

(a) Background

On December 12, 2000, Corporal (Cpl) Timothy Hamm, a Military Police member, was serving with the Military Police Detachment at 4 Wing, Cold Lake, Alberta. On that day, Cpl Hamm was at home, having received a seven (7) day sick leave pass for [redacted text] on December 7, 2000. At about 10.00 hours, Cpl Hamm received a telephone call from his supervisor, Warrant Officer (WO) Stephen Rice (then at the rank of Sergeant), during which WO Rice notified Cpl Hamm to begin preparations to deploy to Inuvik on December 26, 2000. The conversation became heated and ended with Cpl Hamm abruptly hanging up the telephone. WO Rice was left with the impression that Cpl Hamm had refused to accept the deployment tasking and had been insubordinate.

WO Rice called in two (2) Military Police members working at the Detachment, Master Corporal (MCpl) David Paul (then at the rank of Cpl) and Cpl Pierre Murray. He ordered them to go to Cpl Hamm's residence and order Cpl Hamm to attend the guardhouse. If he refused, they were to arrest Cpl Hamm and bring him to WO Rice.

The two (2) members attended Cpl Hamm's residence and told Cpl Hamm of WO Rice's order. Cpl Hamm called his doctor, Captain (Capt) Paul Burke, and was advised that he was not required to go in to work while on sick leave. MCpl Paul also spoke to Capt Burke and was advised the same. MCpl Paul told Capt Burke that unless he could provide him with a specific authority for Cpl Hamm refusing to accompany them, he would carry out the arrest. Cpl Hamm told the two (2) members that he would follow his doctor's advice. The two (2) members then arrested Cpl Hamm. MCpl Paul read him his Canadian Charter of Rights and Freedoms (Charter) Footnote 1 rights. Cpl Hamm claimed that, at his residence, he asked the arresting members on a number of occasions why he was being arrested and he was not given a reason. Cpl Hamm was then transported to the guardhouse.

At the guardhouse, Cpl Hamm was brought before WO Rice. This short meeting became heated. WO Rice more than once ordered Cpl Hamm to come to attention. Cpl Hamm refused, claiming he was under arrest and wanted to speak to counsel. Cpl Hamm abruptly left the meeting and went to the guardhouse interview room. He remained there, under guard, for approximately two (2) hours.

While in the interview room, Cpl Hamm unsuccessfully tried to contact Duty Counsel. He then called his brother, WO Michael Hamm, who is also a member of the Military Police and was posted to the Military Police Detachment at 8 Wing, Trenton, Ontario. Cpl Hamm advised his brother of his arrest and suggested he was arrested for no reason. During this conversation, WO Hamm also spoke to the arresting officer, MCpl Paul, who told him, among other things, that the situation had gotten “way out of hand” and agreed with WO Hamm's suggestion that the arrest was unlawful.

At some point while Cpl Hamm was in the interview room, Cpl Hamm's doctor spoke to WO Rice by telephone and advised WO Rice that Cpl Hamm's sick leave was given for [redacted text] . At about 13.00 hours, WO Rice briefed his superior, Chief Warrant Officer (CWO) Pierre Gauvin who had been away during the morning and was unable to be contacted about the situation. After being briefed, CWO Gauvin had Cpl Hamm brought to his office. CWO Gauvin claimed at this meeting, with WO Rice present, that he attempted to diffuse the situation. Cpl Hamm alleged that CWO Gauvin made certain statements that led him to feel intimidated and suggested to him that he should not complain further. At this meeting, WO Rice apologized to Cpl Hamm, stating that if he had known Cpl Hamm's leave was [redacted text] he would not have tasked him for the deployment to Inuvik in the first place. CWO Gauvin ultimately released Cpl Hamm from arrest by making a comment “I de-arrest you.Cpl Hamm was then driven home by another member of the Detachment.

WO Hamm, after speaking to his brother on December 12, 2000, became concerned about his younger brother's welfare and believed he might have been subjected to an unlawful arrest. He sought advice about what to do from his own superior at 8 Wing, Trenton, Ontario, Master Warrant Officer (MWO) Richard Dennique, and then from CWO Frank Galway, the A3 Security and Military Police (A3 SAMP) Chief Warrant Officer with the office of 1 Canadian Air Division Provost Marshal (1 CAD PM) at 17 Wing, Winnipeg, Manitoba. Ultimately, he provided some details of the information he had received to CWO Galway. CWO Galway, believing the information disclosed a possible breach of the Military Police Professional Code of ConductFootnote 2 , provided the information he had to the Deputy Provost Marshal Professional Standards (DPM PS). Independently, on December 14, 2000, WO Hamm sent a formal letter of complaint to the DPM PS.

WO Hamm's letter of complaint outlined in detail the information he had learned from Cpl Hamm regarding the events of December 12, 2000. WO Hamm also set out some matters affecting Cpl Hamm that had occurred at 4 Wing, Cold Lake during the preceding six (6) months. These incidents suggested that Cpl Hamm's superiors might have been mistreating Cpl Hamm or might have otherwise acted improperly during that period.

WO Hamm emphasized in his letter that he was recounting third hand information, much of which he had received from Cpl Hamm.

On December 14, 2000, the DPM PS, referring to material received from CWO Galway on December 13, 2000 and the statement of complaint of WO Hamm dated December 14, 2000, issued tasking instructions to Sergeant (Sgt) Claude Dussault, a member of the Royal Canadian Mounted Police (RCMP) who was seconded to the Professional Standards section under the direction of the DPM PS. The tasking instructions defined four (4) allegations made by WO Hamm that were to be investigated.

  1. that WO Rice may have abused his authority when, without lawful authority, he ordered the arrest of Cpl Hamm;
  2. that WO Rice may have, while carrying out his duties, acted in a discriminatory or discourteous manner towards Cpl Hamm. This was during a verbal reprimanding which took place in front of several other people;
  3. that MCpl Paul and Cpl Murray may have knowingly, without good cause, carried out an arrest that was unlawful when they arrested Cpl Hamm. They could not provide Cpl Hamm with a reason for his arrest; and
  4. that CWO Gauvin may have intimidated or attempted to intimidate Cpl Hamm from complaining about the conduct of the Military Police members who ordered and effected his arrest.

The tasking instructions identified the subject members of the investigation as being CWO Gauvin, WO Rice, MCpl Paul and Cpl Murray. They directed that a Professional Standards “internal” investigation was to be conducted, in accordance with the Military Police Policies and Technical Procedures,Footnote 3 to determine if the actions of the Military Police were in accordance with their policies. On December 15, 2000, the DPM PS, Lieutenant-Colonel (LCol) Shelley Carey notified the four (4) subject members of the investigation and the complainant, WO Hamm, in writing, that she had ordered a Professional Standards Internal Investigation into the subject members' professional conduct.

On December 19, 2000, the Canadian Forces National Investigation Service (CFNIS) commenced an investigation to determine whether the circumstances described in WO Hamm's complaint disclosed the commission of criminal or service offences by members of the Military Police. The Professional Standards investigation was held in abeyance to await the completion of the CFNIS investigation.

The CFNIS investigation ultimately focused on two (2) basic issues: whether service or criminal offences had been committed in relation to the alleged unlawful arrest of Cpl Hamm on December 12, 2000 and whether CWO Gauvin had tampered with a witness who testified at an earlier summary trial of Cpl Hamm. The issue of witness tampering arose out of a reference to underlying facts by WO Hamm in his formal letter of complaint dated December 14, 2000.

On July 8, 2001, the CFNIS found that there was no evidence to support the allegation of witness tampering directed against CWO Gauvin. Their investigation also found that MCpl Paul and Cpl Murray had reasonable grounds to believe that the service offence had been committed when Cpl Hamm refused to accompany them pursuant to WO Rice's order. They were therefore found to be acting in good faith and had reasonable grounds to believe their actions were justified. This being the case, no further action against them was contemplated. The CFNIS investigation also found that WO Rice “recalledCpl Hamm to duty contrary to Queen's Regulations and Orders for the Canadian Forces (QR&O) section 16.01,Footnote 4 and concluded that he would be charged with one (1) count of Neglect to the Prejudice of Good Order and Discipline contrary to paragraph 129(2)(b) of the National Defence ActFootnote 5 (NDA), for breaching the Regulations by failing to ensure that Cpl Hamm's Commanding Officer directed the recall. WO Rice was subsequently charged and had his credentials suspended for approximately ten (10) months.

On August 3, 2001, Major (Maj) Paul Thobo-Carlsen, the 4 Wing Security and Military Police Officer, dissatisfied with the outcome of the investigation by the CFNIS, wrote to the Deputy Provost Marshal of the National Investigation Service (DPM NIS) expressing his dissatisfaction and formally requesting that the CFNIS investigate several breaches of service regulations that Maj Thobo-Carlsen alleged were committed by Cpl Hamm relating to the events of December 12, 2000.

On August 9, 2001, WO Rice was summarily tried on the subsection 129(2) charge arising out of the CFNIS investigation and was found not guilty.

On August 29, 2001, Superintendent (Supt) Russ Grabb, then Officer Commanding of the CFNIS, Sensitive Investigation Detachment, replied to and refused Maj Thobo-Carlsen's request for an investigation or a further investigation of his allegations regarding Cpl Hamm. He disputed suggestions that the investigation conducted by the CFNIS was deficient and indicated that he would forward the CFNIS investigative materials to the Military Police Complaints Commission (Complaints Commission) requesting an unbiased review of the CFNIS and all issues incidental to the investigation.

On August 30, 2001, Supt Grabb wrote to the Chairperson of the Complaints Commission asking for a complete review of the complaint, the investigation, and issues related to the CFNIS report dated July 8, 2001. This was the first time that the Complaints Commission learned of WO Hamm's complaint or of the investigations by both the CFNIS and the DPM PS in relation to that complaint.

On November 9, 2001, the Chairperson of the Complaints Commission wrote to the DPM PS, LCol Carey, referencing the letter received from Supt Grabb and the complaint lodged by WO Hamm. The Chairperson inquired about the rationale for the classification as an “internal” investigation and the failure to notify the Complaints Commission of the conduct complaint lodged by WO Hamm as required by subparagraph 250.21(2)(c)(i) of the NDA.Footnote 6 The DPM PS, LCol Carey, in subsequent correspondence, responded that the failure to notify the Complaints Commission was an oversight, that the situation had been rectified, and that it would not reoccur.

The Professional Standards investigation report was submitted on February 21, 2002. The investigation concluded that none of the allegations against the named subject members, WO Rice, CWO Gauvin, MCpl Paul and Cpl Murray, were supported by the evidence.

On April 5, 2002 and May 2, 2002, the DPM PS delivered Letters of Final Disposition of the Professional Standards Investigation to the named subject members, the complainant, WO Hamm and to Cpl Hamm. The Letters of Final Disposition dated April 5, 2002, were signed by LCol Carey, DPM PS, and the further Letters of Final Disposition dated May 2, 2002, were signed by Maj John Pumphrey, then acting DPM PS. The letters of April 5, 2002 were redone and signed on May 2, 2002 to ensure each individual received only the information pertaining to him. As was the case in the Professional Standards investigation report, and for essentially the same reasons, the four (4) allegations against the four (4) named subject members were stated to be unsupported based on the information, facts and evidence gathered in the investigation. The May 2, 2002 Letter of Final Disposition addressed to WO Rice noted his acknowledgement that he should not have acted [redacted text] during the incident with Cpl Hamm. It was directed that he should be counselled to ensure that, in similar circumstances, “he steps back from the situation before taking action to ensure the right decision is made.” The Letter of Final Disposition addressed to CWO Gauvin noted that he was to be advised that he should not have released Cpl Hamm from custody on December 12, 2000 as it was the arresting officer's authority to do so.

The Letter of Final Disposition addressed to WO Hamm criticized him for having filed a complaint based solely on his perceptions that his brother was in distress and was being harassed and without first confirming the accuracy of his complaint. It directed that, although WO Hamm was not wrong to engage the Chain of Command in the matter, he should be counselled “to ensure that he ascertains a clearer understanding of the given situation, before involving himself in matters pertaining to another unit.”.

The Letter of Final Disposition addressed to Cpl Hamm found that he committed five (5) service offences in connection with the events of December 12, 2000; that in five (5) instances he supplied his brother with misleading information used as a basis for his lodging the complaint and that he committed three (3) violations of the Military Police Professional Code of Conduct. On April 15, 2002, the DPM PS directed the suspension of Cpl Hamm's Military Police credentials. The suspension was confirmed on April 23, 2002. Cpl Hamm's credentials have remained suspended as of the date this report was written.

(b) The Complaints

On April 30, 2002, WO Hamm asked the Complaints Commission to review the Professional Standards investigation and the CFNIS investigation. WO Hamm indicated that he was to be counselled and that Cpl Hamm's credentials had been suspended. WO Hamm stated:

I would like to point out that I am the complainant in this matter, and Corporal Hamm was the victim. As a result of my complaint, it would appear that Corporal Hamm and I have now become subjects, and there are serious allegations made by professional standards with respect to his credibility, and by extension, mine.

I am completely dismayed with the conduct and outcome of the investigation by Professional Standards, and am asking that the entire investigation, including the investigative action taken by the Canadian Forces National Investigation Service, be reviewed.

On May 15, 2002, Cpl Hamm lodged a complaint in the first instance with the Complaints Commission regarding his arrest on December 12, 2000, the Professional Standards investigation and subsequent actions taken against him by the DPM PS. Cpl Hamm claimed he was treated unfairly and further alleged the Professional Standards investigation was “inept” and biased.

On October 31, 2002, the Chairperson of the Complaints Commission decided, pursuant to subsection 250.38(1) of the NDA, that it was advisable, in the public interest, to cause the Complaints Commission to conduct an investigation into the complaints of Cpl Hamm and WO Hamm and, if warranted, to hold a hearing. As both complaints concerned the same incidents, it was decided to investigate both complaints jointly.

On December 30, 2002, pursuant to subsection 250.11(3) of the NDA, the Chairperson delegated her authority to conduct this public interest investigation and to prepare and send Interim and Final Reports in relation to it, to Commission Members Mr. Peter Seheult as Chairperson and Mr. Odilon Emond.

(c) Issues

The main issues examined by the Complaints Commission during this public interest investigation were as follows:

  1. Was the order to arrest Cpl Hamm issued by WO Rice proper and lawful?
  2. Was the subsequent arrest by MCpl Paul and Cpl Murray proper and lawful?
  3. Was the release from arrest by CWO Gauvin proper and lawful?
  4. Did CWO Gauvin attempt to deter Cpl Hamm, in his office on December 12, 2000, through the use of intimidation or otherwise, from making a complaint in regard to his arrest?
  5. Are the rights of complainants being negated due to a lack of adherence to Part IV of the National Defence Act, through the internal classification of complaints?
  6. Did the DPM PS properly handle WO Hamm's complaint? Were Cpl Hamm and WO Hamm treated fairly after the latter filed his complaint?

(d) Commission Member's Findings

COMMISSION MEMBERS' FINDING # 1:

The Commission Members find that Warrant Officer Rice and Chief Warrant Officer Gauvin did not know that Corporal Hamm's sick leave was [redacted text] when they chose Corporal Hamm to deploy to Inuvik on December 26, 2000. The Commission Members accept Warrant Officer Rice's statement that he would not have called Corporal Hamm on December 12, 2000 if he had known Corporal Hamm's sick leave was [redacted text].


COMMISSION MEMBERS' FINDING # 2:

The Commission Members find that, in light of the information that was available to them, it was reasonable for Warrant Officer Rice and Chief Warrant Officer Gauvin to believe that Corporal Hamm would return to work on December 14, 2000 and would be available to deploy to Inuvik on December 26, 2000.


COMMISSION MEMBERS' FINDING # 3:

The Commission Members do not accept in its entirety the evidence given by Warrant Officer Rice or Corporal Hamm. In certain areas, their evidence was self-serving or inconsistent to the point that their credibility was questionable.


COMMISSION MEMBERS' FINDING # 4:

The Commission Members do not accept in its entirety the evidence given by Warrant Officer Rice or Corporal Hamm. In certain areas, their evidence was self-serving or inconsistent to the point that their credibility was questionable.


COMMISSION MEMBERS' FINDING # 5:

The Commission Members find no substantive evidence to support the conclusion reached by the Deputy Provost Marshal Professional Standards that Corporal Hamm manipulated the information to drive events in his favour.


COMMISSION MEMBERS' FINDING # 6:

The Commission Members find, on a balance of probabilities, Warrant Officer Rice did not attempt to call Corporal Hamm back after their telephone conversation.


COMMISSION MEMBERS' FINDING # 7:

The Commission Members find, on a balance of probabilities, that Warrant Officer Rice used profanity during his telephone conversation with Corporal Hamm. The Commission Members therefore find that Corporal Hamm was not insubordinate in hanging up the telephone.


COMMISSION MEMBERS' FINDING # 8:

The Commission Members accept Warrant Officer Rice's explanation that his purpose in summoning Corporal Hamm to attend his office, after the latter hung up the telephone, was two-fold: (i) to resolve whether Corporal Hamm would prepare to deploy and (ii) to resolve the perceived discipline issue.


COMMISSION MEMBERS' FINDING # 9:

The Commission Members find that the order or instruction by Warrant Officer Rice to come to the guardhouse is separate from the arrest itself. Therefore, although an arrest of a member for a service offence does not constitute a “recall to duty”, the instruction by Warrant Officer Rice to bring Corporal Hamm to the guardhouse was a “recall to duty” within the meaning of Queen's Regulations and Orders section 16.01 and failed to meet the prerequisites of the section. Corporal Hamm's Commanding Officer did not personally direct the recall.


COMMISSION MEMBERS' FINDING # 10:

The Commission Members find that Warrant Officer Rice, in ordering Corporal Hamm to be arrested if he refused to come in to the office voluntarily, was acting as a Military Police member and not in his capacity as a non-commissioned officer carrying out an administrative function. A Military Police member ordering or carrying out an arrest must follow the law and policies governing the exercise of Military Police functions and duties.


COMMISSION MEMBERS' FINDING # 11:

The Commission Members find that, while insubordination or disobeying a lawful command are arrestable offences under the National Defence Act, in the circumstances of this case the arrest was not necessary nor was it reasonable and proportional to the alleged violation.


COMMISSION MEMBERS' FINDING # 12:

The Commission Members find that Warrant Officer Rice's direction to the arresting officers in relation to Corporal Hamm's arrest failed to follow applicable Military Police Policies and Technical Procedures, namely sections 10, 11, and 16, relating to arrest without a warrant. The Commission Members also find that Warrant Officer Rice should have known of the policy requirements as well as those under section 495 (arrest without a warrant) of the Criminal Code of Canada and section 105.01 of the Queen's Regulations and Orders.


COMMISSION MEMBERS' FINDING # 13:

The Commission Members find that Master Corporal Paul and Corporal Murray in carrying out the arrest of Corporal Hamm failed to follow applicable Military Police Policies and Technical Procedures, namely sections 10, 11, 13 and 16. The Commission Members also find that Master Corporal Paul and Corporal Murray should have known of the policy requirements as well as those under section 495 (arrest without a warrant) of the Criminal Code of Canada.


COMMISSION MEMBERS' FINDING # 14:

The Commission Members find that Warrant Officer Rice did not properly exercise his discretion to order an arrest. Warrant Officer Rice failed to take into consideration existing law requiring a distinction to be drawn between the power to arrest and its exercise and he failed to consider whether, in the circumstances, the arrest of Corporal Hamm was necessary, justified in the public interest or proportional to the alleged violation..


COMMISSION MEMBERS' FINDING # 15:

The Commission Members find that Master Corporal Paul and Corporal Murray, even though they were ordered to arrest Corporal Hamm, failed to exercise their discretionary powers of arrest as required of them as Military Police. As such, they failed to consider the distinction that must be drawn between a power to arrest and its exercise and they failed to consider whether, in the circumstances, the arrest was necessary, justified in the public interest or proportional to the alleged violation.


COMMISSION MEMBERS' FINDING # 16:

The Commission Members find that Warrant Officer Rice did not provide sufficient information to Master Corporal Paul and Corporal Murray to enable them to form the reasonable and probable grounds required to effect a lawful arrest.


COMMISSION MEMBERS' FINDING # 17:

The Commission Members find that Master Corporal Paul and Corporal Murray failed to confirm either the reason why Warrant Officer Rice wanted to see Corporal Hamm or the reason for the arrest before leaving the guardhouse for Corporal Hamm's residence. This lack of information prevented them from properly informing Corporal Hamm of the reasons for his arrest.


COMMISSION MEMBERS' FINDING # 18:

The Commission Members find that Master Corporal Paul and Corporal Murray should have sought more information as it was their duty as the arresting officers to form the reasonable and probable grounds to arrest. As they lacked such grounds, the arrest of Corporal Hamm was unlawful.


COMMISSION MEMBERS' FINDING # 19:

The Commission Members find that Master Corporal Paul and Corporal Murray did not form the reasonable and probable grounds to arrest Corporal Hamm and that no reasonable person could have genuinely believed that such grounds existed. Accordingly, the Commission Members find that the detention was arbitrary as per section 9 of the Canadian Charter of Rights and Freedoms.


COMMISSION MEMBERS' FINDING # 20:

The Commission Members find that Corporal Hamm was not promptly informed of the reasons for his arrest which was in violation of paragraph 10(a) of the Canadian Charter of Rights and Freedoms. Accordingly, the Commission Members find that the arrest of Corporal Hamm was unlawful.


COMMISSION MEMBERS' FINDING # 21:

The Commission Members find that Corporal Hamm had a right to make an informed determination whether the order given by Warrant Officer Rice was manifestly unlawful. It was therefore essential for Corporal Hamm, who pursuant to Queen's Regulations and Orders, section 19.015, note “C”, could disobey a manifestly unlawful command, to be told why Warrant Officer Rice wanted Corporal Hamm to attend his office.


COMMISSION MEMBERS' FINDING # 22:

The Commission Members find that Warrant Officer Rice acted beyond the scope of his authority and responsibility in the circumstances. It is therefore the Commission Members' finding that Warrant Officer Rice abused his authority.


COMMISSION MEMBERS' FINDING # 23:

The Commission Members concur with the conclusion of the Deputy Provost Marshal Professional Standards that the fact that Warrant Officer Rice's course of action was chosen [redacted text] only served to inflame the situation. A different approach could have resolved the matter in a more appropriate fashion.


COMMISSION MEMBERS' FINDING # 24:

The Commission Members find that Master Corporal Paul had a minimum of two (2) opportunities to advise Warrant Officer Rice that Corporal Hamm's leave was [redacted text]: (i) at Corporal Hamm's residence after talking to Doctor Burke and (ii) in Warrant Officer Rice's office when Warrant Officer Rice confronted Corporal Hamm in Master Corporal Paul's presence.


COMMISSION MEMBERS' FINDING # 25:

The Commission Members find that once Master Corporal Paul spoke to Doctor Burke at Corporal Hamm's residence, he should have advised Warrant Officer Rice that Corporal Hamm was [redacted text] or that questions had been raised about his sick leave status, in order to obtain confirmation that the arrest was still warranted..


COMMISSION MEMBERS' FINDING # 26:

The Commission Members find that the notes and records of the incident made by Master Corporal Paul were deficient and not in accordance with best police practices. The failure of Master Corporal Paul to record the fact or details of his conversation with Doctor Burke in his notes or in any subsequent reports was a serious error.


COMMISSION MEMBERS' FINDING # 27:

The Commission Members find that Chief Warrant Officer Gauvin did not have the authority to release Corporal Hamm. His releasing Corporal Hamm was not in accordance with the principles of subsection 158(1) of the National Defence Act and Queen's Regulations and Orders section 105.12. Chief Warrant Officer Gauvin should have called on the arresting officer, Master Corporal Paul, to release Corporal Hamm from arrest.


COMMISSION MEMBERS' FINDING # 28:

The Commission Members find that the measure taken to advise Chief Warrant Officer Gauvin of the requirements for the release of arrested persons, pursuant to the direction in the Deputy Provost Marshal Professional Standards' Letter of Final Disposition, was appropriate and sufficient in the circumstances. .


COMMISSION MEMBERS' FINDING # 29:

The Commission Members find that, considering all of the circumstances, including the fact that Corporal Hamm was under stress and had just been arrested by his peers, Chief Warrant Officer Gauvin's comments and actions during the encounter in his office could well have caused Corporal Hamm to feel intimidated. However, the Commission Members could not find, on a balance of probabilities, that Chief Warrant Officer Gauvin attempted or intended to intimidate Corporal Hamm from complaining further. .


COMMISSION MEMBERS' FINDING # 30:

The Commission Members find that Chief Warrant Officer Gauvin should have used more appropriate language and his comments reflected poor police practice and management.


COMMISSION MEMBERS' FINDING # 31:

The Commission Members find that the correspondence received from the Deputy Provost Marshal Professional Standards regarding the “internal” designation of Warrant Officer Hamm's complaint did not satisfactorily explain how the designation came about..


COMMISSION MEMBERS' FINDING # 32:

The Commission Members find, on a balance of probabilities, that the “internal” designation was an error as there is no clear evidence to the contrary.


COMMISSION MEMBERS' FINDING # 33:

The Commission Members find that errors in classifying complaints as “internal” rather than Part IV conduct complaints have the potential effect of nullifying important statutory rights of complainants and subjects of complaints.


COMMISSION MEMBERS' FINDING # 34:

The Commission Members find that Corporal Hamm and Warrant Officer Hamm became subject members of the Professional Standards investigation when the seconded investigator determined early in the investigation that Corporal Hamm might have committed service offences or might have violated the Military Police Professional Code of Conduct and when the investigator determined that Warrant Officer Hamm failed to confirm the accuracy of the complaint.


COMMISSION MEMBERS' FINDING # 35:

The Commission Members find that when the Professional Standards investigation focused on Corporal Hamm and Warrant Officer Hamm as subject members of the investigation, a new and separate investigation of the allegations against Corporal Hamm and Warrant Officer Hamm should have been commenced. Corporal Hamm and Warrant Officer Hamm should then have been provided with the appropriate notices and protections required by law and policy.


COMMISSION MEMBERS' FINDING # 36:

The Commission Members find that the failure to designate Corporal Hamm and Warrant Officer Hamm as subject members of the investigation deprived them of their basic rights to natural justice, their rights to appreciate and defend themselves against the allegations or potential jeopardy they were facing, their rights of choice to refuse to be interviewed, and their rights to have counsel or an assisting officer present.


COMMISSION MEMBERS' FINDING # 37:

The Commission Members disagree with four (4) of the five (5) conclusions of the Deputy Provost Marshal Professional Standards as stated in her Letter of Final Disposition dated April 5, 2002 that Corporal Hamm committed five (5) breaches to the National Defence Act.


COMMISSION MEMBERS' FINDING # 38:

The Commission Members find that there was insufficient evidence to establish, on a balance of probabilities, that Corporal Hamm misinformed or provided misleading information to Warrant Officer Hamm about any matter relevant or material to Warrant Officer Hamm's complaint. Accordingly, the Commission Members find that Corporal Hamm did not mislead Warrant Officer Hamm in the five (5) manners detailed by the Deputy Provost Marshal Professional Standards.


COMMISSION MEMBERS' FINDING # 39:

The Commission Members find that Warrant Officer Hamm did not err nor was he negligent in basing his complaint on information received from Corporal Hamm nor did Warrant Officer Hamm prematurely file his complaint based on the information received..


COMMISSION MEMBERS' FINDING # 40:

The Commission Members find that Warrant Officer Hamm had an obligation, pursuant to section 7 of the Military Police Professional Code of Conduct, to report to his superior in the Military Police Chain of Command a belief in or awareness of an allegation that a member of the Military Police had breached the Military Police Professional Code of Conduct. The information Warrant Officer Hamm received on December 12, 2000 provided him with the requisite belief or awareness. There is no requirement to verify or investigate the belief or allegation before it is reported..


COMMISSION MEMBERS' FINDING # 41:

The Commission Members find that Warrant Officer Hamm properly reported his reasonable belief to, and sought advice from, his superior in the Military Police Chain of Command at 8 Wing Canadian Forces Base, Trenton, Master Warrant Officer Dennique.


COMMISSION MEMBERS' FINDING # 42:

The Commission Members find that it was reasonable and proper, in the circumstances, for Warrant Officer Hamm to follow Master Warrant Officer Dennique's advice.


COMMISSION MEMBERS' FINDING # 43:

The Commission Members find that it was reasonable and proper for Warrant Officer Hamm to advise Chief Warrant Officer Galway of his concerns and to forward the information to Chief Warrant Officer Galway.


COMMISSION MEMBERS' FINDING # 44:

The Commission Members find that, in the circumstances, Warrant Officer Hamm should not have been counselled and the direction to counsel Warrant Officer Hamm issued by the Deputy Provost Marshal Professional Standards was inappropriate.


COMMISSION MEMBERS' FINDING # 45:

The Commission Members find that the Deputy Provost Marshal Professional Standards erred in concluding that Corporal Hamm violated paragraph 4(l) of the Military Police Professional Code of Conduct.


COMMISSION MEMBERS' FINDING # 46:

The Commission Members find that the Deputy Provost Marshal Professional Standards' rationale for finding that Corporal Hamm violated paragraph 4(l) of the Military Professional Code of Conduct is so vague that it would be an unduly difficult allegation to defend against before the Military Police Credentials Review Board.


COMMISSION MEMBERS' FINDING # 47:

The Commission Members find that it was unfair and improper for the Deputy Provost Marshal Professional Standards to rely on paragraph 4(k) of the Military Police Professional Code of Conduct, as Corporal Hamm was not advised either that he was a subject member of an investigation or that the Professional Standards investigation was addressing this issue.


COMMISSION MEMBERS' FINDING # 48:

The Commission Members find that Corporal Hamm did not violate paragraph 4(h) of the Military Police Professional Code of Conduct in failing to disclose the reason for his sick leave to his supervisor. Corporal Hamm had no obligation in law to disclose the nature of his illness. It is, therefore, both improper and contrary to law to make Corporal Hamm's failure to disclose the reason for his sick leave a basis for either the suspension of his credentials or a finding that Corporal Hamm breached the Military Police Professional Code of Conduct.


COMMISSION MEMBERS' FINDING # 49:

The Commission Members find that there was no evidence to support the conclusion of the Deputy Provost Marshal Professional Standards that Corporal Hamm knowingly revealed information intended to mislead the investigator.


COMMISSION MEMBERS' FINDING # 50:

The Commission Members find that there was no evidence to establish that Corporal Hamm misinformed or withheld material information from Warrant Officer Hamm.


COMMISSION MEMBERS' FINDING # 51:

The Commission Members find the suspension of Corporal Hamm's credentials for supplying false information to or withholding information from Warrant Officer Hamm was not justified.


COMMISSION MEMBERS' FINDING # 52:

The Commission Members find that all the various and contradictory reasons advanced by the Deputy Provost Marshal Professional Standards to suspend Corporal Hamm's credentials are without merit and contrary to the evidence.

(e) Commission Member's Recommendations

COMMISSION MEMBERS' RECOMMENDATION # 1:

The Commission Members recommend that in order to ensure high police standards, Military Police members be trained to understand, respect and fully protect the rights of individuals as well as the law governing the exercise of powers of arrest.


COMMISSION MEMBERS' RECOMMENDATION # 2:

The Commission Members recommend that Warrant Officer Rice receive, if he has not already, instructions on the elements and requirements for a proper arrest and the rights of suspects who are subjected to an arrest.


COMMISSION MEMBERS' RECOMMENDATION # 3:

The Commission Members recommend that the Canadian Forces Provost Marshal impose corrective measures on Warrant Officer Rice for abuse of authority.


COMMISSION MEMBERS' RECOMMENDATION # 4:

The Commission Members recommend that Warrant Officer Rice be given additional management training.


COMMISSION MEMBERS' RECOMMENDATION # 5:

The Commission Members recommend that additional training be provided to Master Corporal Paul and Corporal Murray on Military Police powers of arrest, the law and Military Police Policies governing the exercise of powers of arrest and note-taking.


COMMISSION MEMBERS' RECOMMENDATION # 6:

The Commission Members recommend that the Canadian Forces Provost Marshal impose corrective measures on Master Corporal Paul and Corporal Murray for the unlawful arrest of Corporal Hamm in failing to form the reasonable and probable grounds prior to the arrest and for violating Corporal Hamm's section 10(a) Charter right by not promptly informing him of the reason for his arrest.


COMMISSION MEMBERS' RECOMMENDATION # 7:

The Commission Members recommend that the Canadian Forces Provost Marshal implement safeguards to ensure that the improper classification and handling of complaints will not reoccur. The Canadian Forces Provost Marshal should advise the Complaints Commission of the safeguards instituted to protect complainants' rights in this regard and of the procedures in place for classifying complaints.


COMMISSION MEMBERS' RECOMMENDATION # 8:

The Commission Members recommend that the Deputy Provost Marshal Professional Standards acknowledge, with appropriate supplementary correspondence, that the direction to counsel Warrant Officer Hamm was inappropriate.


COMMISSION MEMBERS' RECOMMENDATION # 9:

The Commission Members recommend that Corporal Hamm's credentials be immediately reinstated.


COMMISSION MEMBERS' RECOMMENDATION # 10:

The Commission Members recommend that in all future complaint investigations, if an investigator perceives that a complainant may be suspected of having committed a criminal or service offence or a professional standards violation, a new and separate investigation be commenced with the complainant as the subject member. This will ensure the individual is afforded his or her rights according to law.

I. INTRODUCTION

This public interest investigation has considered a number of issues related to the arrest, on December 12, 2000, of Corporal (Cpl) Timothy Hamm. On December 12, 2000, Cpl Hamm, a member of the Military Police, was posted to the Military Police Detachment at 4 Wing, Cold Lake, Alberta. Cpl Hamm's arrest was one focus of a complaint in writing forwarded to the Deputy Provost Marshal Professional Standards (DPM PS) by his brother, Warrant Officer (WO) Michael Hamm on December 14, 2000. Subsequently, WO Hamm requested a review by the Military Police Complaints Commission (Complaints Commission) and Cpl Hamm made a complaint in the first instance about the conduct of members who ordered and carried out his arrest and the handling of WO Hamm's complaints by the DPM PS.

The report is divided into the following sections:

  1. Introduction
  2. Military Police Complaints Commission

    This section will describe the scope and methodology of the public interest investigation.

  3. Summary of the Incident, Complaints and Investigations
  4. This section will provide a summary of the facts, the complaints, and the Canadian Forces National Investigation Service (CFNIS) and Professional Standards investigations.
  5. Commission Members' Findings and Recommendations Subsequent to The Public Interest Investigation

    This section will provide an issue by issue analysis. A more detailed set of facts will also be examined in relation to each issue.

  6. Summary of the Commission Members' Findings
  7. Summary of the Commission Members' Recommendations
  8. Conclusion

It is important to note that the findings and conclusions contained within this report cannot be taken as findings of criminal or civil liability. The findings and conclusions neither bind courts considering the same subject matter nor are they intended to infringe on the jurisdiction of other decision makers in related matters.

II. MILITARY POLICE COMPLAINTS COMMISSION

Table of Contents

II. Military Police Complaints Commission

  1. Scope of the Public Interest Investigation
  2. Methodology
    1. Document Review
    2. Designated Members
    3. Persons Interviewed
    4. Assisting the Complaints Commission
    5. Legal Framework of the Public Interest Investigation
    6. Burden of Proof and Jurisdiction

The Complaints Commission was created by amendments, in 1998, to the National Defence ActFootnote 7 (NDA). Subsection 250.18(1) of the NDA authorizes any person, including Department of National Defence (DND) and Canadian Forces (CF) personnel to make a complaint to the Complaints Commission about the conduct of a member of the Military Police in the performance of policing duties or functions prescribed in the Complaints About the Conduct of Members of the Military Police Regulations, Appendix 7.2 of volume IV of the Queen's Regulations and Orders for the Canadian Forces (Regulations). Under the NDA, the Canadian Forces Provost Marshal (CFPM) is initially responsible for dealing with conduct complaints, such as the complaint submitted by WO Hamm. The CFPM has delegated these responsibilities to the DPM PS. In addition, under section 250.31 of the NDA, a complainant who is dissatisfied with the disposition of a conduct complaint in the first instance, as set out in a report under section 250.29, may request, in writing, a review by the Complaints Commission. Subsection 250.32(2) of the NDA provides that, in conducting a review of a complaint, the Chairperson of the Complaints Commission (Chairperson) may investigate any matter related to the complaint.

The Complaints Commission is a civilian oversight authority external to, and independent of, the DND and the CF. The Complaints Commission was created to render the handling of complaints involving the Military Police more transparent and accessible and to ensure that both complainants and members of the Military Police are dealt with impartially and fairly. The mandate of the Complaints Commission is to promote and ensure the highest standards of conduct of members of the Military Police in the performance of their policing duties, to discourage improper interference with any Military Police investigation and to advance the climate of confidence within the DND, the CF and the Canadian public regarding the Military Police. The Complaints Commission carries out quasi-judicial functions pursuant to statutory authority. It has jurisdiction to monitor and review complaints lodged with the CFPM about the conduct of Military Police members in the performance of their policing duties or functions. It has exclusive authority to conduct investigations into complaints alleging interference with any Military Police investigation.

The NDA allows the Complaints Commission to investigate only those events occurring on or after December 1, 1999. The CFPM deals with complaints relating to events that occurred before December 1, 1999. However, the Complaints Commission may examine events occurring before December 1, 1999, to provide the necessary background for its investigations into more current events.

(a) Scope of the Public Interest Investigation

Subsection 250.38(1) of the NDA provides that if, at any time, the Chairperson considers it advisable in the public interest, she may cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into a conduct complaint or an interference complaint.

On October 31, 2002, the Chairperson decided, pursuant to subsection 250.38(1) of the NDA that it was advisable, in the public interest, to cause the Complaints Commission to conduct an investigation into the complaints of WO Hamm and Cpl Hamm and, if warranted, to hold a hearing. As both complaints concerned the same incidents, it was decided to investigate both complaints jointly. The decision to conduct a public interest investigation in this matter was taken, essentially, because:

  1. the complaints contained numerous allegations of a serious nature;
  2. certain elements of the complaints struck at core issues in military policing, such as the proper role and conduct of the Military Police when conducting arrests; and
  3. allegations that superiors had abused their authority or had attempted to influence or punish complainants for exercising their right to submit a complaint, if true, might reflect a denial of those complainants' rights.

As required by subsection 250.38(3) of the NDA, the Chairperson notified the Minister of National Defence, the Chief of the Defence Staff (CDS), the Judge Advocate General (JAG) and the CFPM of her decision, and the reasons for it, in letters dated October 31, 2002. On the same date, the complainants (WO Hamm and Cpl Hamm), the subject members (Chief Warrant Officer (CWO) Pierre Gauvin, Master Corporal (MCpl) David Paul, Cpl Pierre Murray, WO Stephen Rice; Lieutenant-Colonel (LCol) Shelley Carey, Major (Maj) John Pumphrey), and witnesses, were notified that the public interest investigation would address the following issues:Footnote 8

  1. Was the order to arrest Cpl Hamm issued by WO Rice proper and lawful?
  2. Was the subsequent arrest by MCpl Paul and Cpl Murray proper and lawful?
  3. Was the release from arrest by CWO Gauvin proper and lawful?
  4. Did CWO Gauvin attempt to deter Cpl Hamm, in his office on December 12, 2000, through the use of intimidation or otherwise, from making a complaint in regard to his arrest?
  5. Are the rights of complainants being negated due to a lack of adherence to Part IV of the National Defence Act, through the internal classification of complaints?
  6. Did the DPM PS properly handle WO Hamm's complaint? Were Cpl Hamm and WO Hamm treated fairly after the latter filed his complaint?

On the same date, the Chairperson also notified Maj Pumphrey, as former Acting DPM PS, and LCol Carey, DPM PS, that they were considered subject members of the complaints as authors of the DPM PS' Letters of Final Disposition relating to WO Hamm's complaint and in light of issues five (5) and six (6) to be addressed in the public interest investigation.

(b) Methodology

(i) Document Review

The Complaints Commission assembled and thoroughly reviewed voluminous relevant documentation including documentation related to the investigations conducted by the CFNISFootnote 9 and the DPM PS.Footnote 10

Subsequent to WO Hamm's request for review forwarded on April 30, 2002, the Chairperson made a request to the DPM PS on May 6, 2002 for all information and materials relevant to the complaint.

On May 27, 2002, the Complaints Commission received the first shipment of documentation and materials from the office of the DPM PS. Following the initial collection and analysis of information and materials, detailed requests were made on July 12, 2002, September 11, 2002, December 3, 2002, December 10, 2002, and January 17, 2003, to the offices of the DPM PS or the CFPM for further documentation. Documentation and/or responses were received on November 26, 2002, December 30, 2002, and March 10, 2003.

Additional documents were also presented to the Complaints Commission, some by witnesses who identified documents that had not previously been provided.

The Complaints Commission also examined the following:

(ii) Designated Members

On December 30, 2002, pursuant to subsection 250.11(3) of the NDA, the Chairperson delegated her authority to conduct this public interest investigation and to prepare and send Interim and Final Reports in relation to it, to Commission Members Mr. Peter Seheult and Mr. Odilon Emond.

(iii) Persons interviewed

The public interest investigation was conducted in two stages. In the first phase, Mr. Elwood Johnston, an investigator retained by the Complaints Commission, and Mr. Tom Pedersen, the Complaints Commission's Director of Operations, were asked to gather facts and details concerning the complaints, including interviewing witnesses as required for the Complaints Commission's evaluation. Between September 16, 2002 and February 5, 2003, they interviewed Cpl Hamm, Andrea Hamm, Superintendent (Supt) Russ Grabb, WO Hamm, WO Diane Lewis, WO Rice, Sergeant (Sgt) Andrew Smith, Sgt Jim Berney, Maj Paul Thobo-Carlsen, Elena De Guzman, Dr. Paul Burke (Captain (Capt)), Dr. Louise Laplante, Sgt Claude Dussault, Master Warrant Officer (MWO) Peter MacFarlane; Capt Glen Morrison (then Lieutenant), Capt John Pineau, Capt Gary Chiasson, Dr. Linda McNally, and MWO K.R. Rutter (retired).

In the second phase of the public interest investigation the Commission Members decided, as part of their ongoing investigation, to interview certain individuals who they believed might be able to enlighten them further regarding the complaints and allow the complainants' allegations to be fairly weighed. On and after January 16, 2003, the Commission Members sent correspondence to some individuals requesting interviews before Commission Members as part of the Complaints Commission's public interest investigation. Between February 12 and April 8, 2003, inclusive, the Commission Members interviewed eleven (11) individuals personally at its offices in Ottawa: Cpl Hamm, WO Hamm, Capt Pineau, CWO Gauvin, LCol Donald Dixon, Sgt Dussault, Capt Chiasson, WO Rice, Inspector (Insp) Wade Blizard, Capt Robert Bell, and Maj Thobo-Carlsen. The Commission Members also interviewed MWO Richard Dennique by teleconference and CWO Frank Galway by video conference. All interviews in both phases of the public interest investigation were recorded. The correspondence sent to each individual informed them of their rights including the right to have a person of their choosing accompany them to the interview. All individuals were provided with ample opportunity to express their point of view.

The following four (4) individuals refused the Commission Members' request for interviews: LCol Carey, MWO MacFarlane, MCpl Paul and Cpl Murray. Subsequently, all four (4) individuals were given an opportunity to respond to written questions provided to them. All four (4) individuals declined. The Commission Members also requested an interview with MWO MacFarlane who declined. However, MWO MacFarlane was interviewed in the first phase of the public interest investigation by Mr. Johnston.

(iv) Assisting the Complaints Commission

Assisting the Complaints Commission during its public interest investigation were Commission Counsel Julianne Dunbar and Registrar Suzan Fraser.

(v) Legal Framework of the Public Interest Investigation

Mr. Seheult, Commission Member, made a brief opening statement before the Commission Members interviewed each of the individuals. Among other things, he described the role of the Complaints Commission, pursuant to subsection 250.38(1) of the NDA, in conducting this public interest investigation to collect any information (oral, written or otherwise) which would allow the Complaints Commission to weigh, as fairly as possible, the complainants' allegations. Mr. Seheult also reminded the persons interviewed that this public interest investigation by the Complaints Commission was not a public hearing, nor an adversarial proceeding. The Commission Members acted as investigators whose role was to collect evidence and decide whether a public hearing was warranted. Those interviewed were told that they were under no obligation to answer questions or provide statements.

To maintain the integrity of this public interest investigation, Mr. Seheult requested that each of the persons interviewed not disclose to anyone any part of the discussions stemming from their interviews with the exception of counsel, should they have retained one.

Finally, Mr. Seheult described the issues under investigation.

(vi) Burden of Proof and Jurisdiction

The Complaints Commission applies a civil balance of probabilities standard in making findings of fact for the purpose of a public interest investigation as required by case law and doctrine.

Part IV of the NDA gives the Complaints Commission the jurisdiction to review a complaint about the conduct of a member of the Military Police in the performance of policing duties or functions prescribed in the Regulations. In doing so, it may investigate any matter related to the complaint. Queen's Regulations and Orders for the Canadian Forces (QR&O) Appendix 7.2 (Complaints About the Conduct of Members of the Military Police Regulations), subsection 2(1), specifies certain matters that are policing duties or functions for the purpose of subsection 250.18(1) of the NDA, including:

In this case, the Regulations clearly designate the arrest or custody of a person as being a policing duty or function. The Complaints Commission therefore has jurisdiction to review or investigate a complaint about a Military Police member's conduct in conducting an arrest and related manners, as well as the manner in which such a complaint is handled by the DPM PS.

Although the complaints lodged in this case suggested that part of the conduct complaint may have pertained to harassment, the Complaints Commission chose not to determine harassment issues in this particular case as other procedures already exist designed to deal with allegations of harassment involving military personnel.

In addition, the complaints considered in this public interest investigation contained allegations about the conduct of an investigator, Sgt Dussault, seconded from the Royal Canadian Mounted Police (RCMP) to Professional Standards, who conducted the Professional Standards investigation into WO Hamm's complaints. It was ascertained that Sgt Dussault was not appointed pursuant to section 156 of the NDA, although in his secondment agreement section 4.4 provides that “DND will provide the secondee with all the powers, authorities and appointments required, in accordance with the NDA to enable the secondee to perform his/her duties.” Therefore, as Sgt Dussault is a member of the RCMP and was not appointed under section 156 of the NDA, the Complaints Commission has no jurisdiction to make findings with respect to his conduct or to name him as a subject member of this public interest investigation.Footnote 11 Nevertheless, the Complaints Commission does have jurisdiction to consider whether the DPM PS, as the delegate of the CFPM who is responsible for dealing with Part IV matters in the first instance under the NDA, properly handled the complaints and does examine the Professional Standards investigation from that perspective.

The Commission Members believe that the CFPM's Part IV duties are properly characterized as “policing duties and functions” given the scheme of the NDA, the object of the legislation and the intent of Parliament. The Commission Members would like to point out that the current delegation of authority from the CFPM to the DPM PS does not affect their position. The NDA imposes the various Part IV duties on the CFPM and her decision concerning the day-to-day processing of complaints does not change this legal reality.

The handling of a complaint by the CFPM is a “policing duty or function”. This is supported by subsection 2(1)(h) of the Complaints About the Conduct of Members of the Military Police Regulations (responding to a complaint). “Complaint” is not restricted by any term or expression that would suggest a different meaning than the plain one. Indeed, the term “complaint” is mentioned in numerous provisions of Part IV of the Act. It would be contrary to statutory interpretation principles to allege that Parliament opted for two (2) different meanings under the NDA scheme, namely Part IV of the NDA and of its Regulations (subsection 2(1)(h) in this case).

The CFPM is and should be the guardian of professionalism, integrity and ethics of the Military Police. As such, the CFPM and her delegates must set the example and must be held accountable for their actions before the Complaints Commission. Given the importance of professional standards in the discharge of policing responsibilities, Part IV duties are constabulary duties in pith and substance.

With respect to the object of Part IV of the NDA, the Commission Members would like to point out two (2) significant recent judgmentsFootnote 12 that examined the purpose of a police complaint process. In both decisions the court described legislative purpose as being to “increase public confidence in the provision of public services, including the processing of complaints.Footnote 13

Although these decisions examined the Ontario scheme, the Commission Members have no reason to believe that the Federal Court, if seized, would endorse a different viewpoint vis-à-vis Part IV of the NDA. The object of the NDA and the intent of Parliament can be reasonably characterized as “increasing the public confidence in the provision of military police services.Footnote 14

Furthermore, one must bear in mind the reasons why Parliament created the Complaints Commission and tasked it to monitor and review conduct complaints. The Military Police, like the other police organizations, had to be held accountable for its actions before a civilian oversight agency. In light of this, Parliament enacted section 250.18 of the NDA and various provisions allowing the Complaints Commission to monitor the handling of complaints concerning the Military Police.

The process leading to and involved in this public interest investigation has, no doubt, imposed inconveniences and burdens on complainants, subject members and witnesses. Commission Members appreciate the cooperation, professionalism and dedication of all persons involved with the investigation. The Commission Members recognize that members of the Military Police must live up to dually high standards expected of both soldiers and police officers. Accordingly, while the actions of some may be criticized in this report, the Commission Members emphasize that they have the utmost respect for the complainants, subject members and witnesses.

III. SUMMARY OF THE INCIDENT, COMPLAINTS AND INVESTIGATIONS

Table of Contents

III. Summary of the Incident, Complaints and Investigations

  1. Background to Corporal Hamm's Arrest
  2. Warrant Officer Rice Telephones Corporal Hamm to Notify him to Prepare to Deploy to Inuvik
  3. Warrant Officer Rice Instructs Military Police Members to Attend Corporal Hamm's Residence and the Subsequent Arrest of Corporal Hamm
  4. Events at the 4 Wing, Cold Lake Guardhouse After Corporal Hamm's Arrest
  5. Warrant Officer Hamm's Complaint
  6. Tasking of Investigations of the Complaint and Notification of Subject Members
  7. Verbal Warning Administered of the Corporal Hamm
  8. The Canadian Forces National Investigation Service Investigation Report and its Aftermath
  9. Professional Standards Investigation Report
  10. Deputy Provost Marshal Professional Standards' Letters of Final Disposition
  11. Actions Taken Against Warrant Officer Hamm and Corporal Hamm
  12. Warrant Officer Hamm's Request for Review and Corporal Hamm's Complaints in the First Instance

(a) Background to Corporal Hamm's Arrest

Cpl Hamm became a member of the Military Police in 1990. In 1997, he was posted to the Military Police Detachment at 4 Wing, Cold Lake, Alberta. After a period on patrol and then as a court officer, he was assigned to criminal investigation duties.

After being posted to Cold Lake, Cpl Hamm initially received excellent performance evaluations. However, towards the end of 1999 after Cpl Hamm failed his Express Physical Training (PT) Test on November 2, 1999, his superiors at Cold Lake began to re-evaluate their views of his performance. It should be noted that the evidence showed that Cpl Hamm suffered from physical ailments. On January 18, 2000, Cpl Hamm was ordered by his supervisor, WO Diane Lewis, to attend Remedial Physical Training (RPT) classes three (3) times per week in preparation to attempt to pass the test again.Footnote 15 Cpl Hamm maintained that he was first ordered to attend RPT in June of 2000. Cpl Hamm did not interpret any directions or conversations prior to June 2000 as an order. Although he claimed to have attended classes, it was determined by WO Lewis and Cpl Hamm's immediate supervisor, Sgt Smith, that he did not in fact attend as required. Ultimately, on June 26, 2000, Cpl Hamm was charged with the offence of Neglect to the Prejudice of Good Order and Discipline, contrary to section 129 of the NDA, namely:

in that he, between 18 January and 29 May, 2000, failed to sign in for scheduled physical training sessions three times per week, as it was his duty to do so.

In July 2000, WO Lewis was posted out of Cold Lake and was replaced as Cpl Hamm's supervisor by WO Rice. On September 20, 2000, Cpl Hamm was found guilty of the charge after a summary trial. He received a caution, the lowest penalty possible. On October 10, 2000, Cpl Hamm requested a review of the conviction on the basis that he was not allowed to make representations before the conviction was registered. On October 30, 2000, the findings of the original summary trial were quashed. On November 23, 2000, the same charge was again filed. At the second summary trial held on December 5, 2000, Cpl Hamm was again found guilty. This time he was fined $100, a more severe penalty than had been imposed at his first trial. Cpl Hamm questioned the justice of having been forced to undergo a second summary trialFootnote 16 and also perceived irregularities surrounding the second trial. The entire situation led him to feel stressed and targeted. On December 7, 2000, two (2) days after his second summary trial, he was seen by a Base doctor, Capt Burke and was given seven (7) days sick leave for [redacted text] . When Cpl Hamm presented his sick leave pass to WO Rice, WO Rice asked him to disclose the reason. Cpl Hamm refused or suggested that it was due to a physical ailment. The sick leave chit indicated that Cpl Hamm would return to work on December 14, 2000.

(b) Warrant Officer Rice Telephones Corporal Hamm to Notify him to Prepare to Deploy to Inuvik

On December 12, 2000, Cpl Hamm was at home in Cold Lake pursuant to the sick leave pass when, at about 10.00 hours, WO Rice telephoned him to notify him that he would be required to prepare to deploy to Inuvik on December 26, 2000. WO Rice claimed that Cpl Hamm became insubordinate during the telephone conversation, indicated that he would not or could not deploy and then abruptly hung up the telephone after sarcastically commenting “See you later Bud.Cpl Hamm claimed that he agreed to deploy, but reminded WO Rice that he was on sick leave and indicated a need to return by a certain date to attend to childcare needs, as his wife was to depart for [redacted text] around that time frame. He also claimed that, when he raised questions about the return date, WO Rice started to swear and elevated his voice. When this happened, he terminated the conversation by hanging up his phone without making any comment. WO Rice claimed that, when the phone call terminated, he was still not certain whether Cpl Hamm would prepare to deploy. He also felt it necessary to address Cpl Hamm's insubordination.

(c) Warrant Officer Rice Instructs Military Police Members to Attend Corporal Hamm's Residence and the Subsequent Arrest of Corporal Hamm

WO Rice called in two (2) Military Police members who were working at the 4 Wing, Cold Lake Detachment, MCpl PaulFootnote 17 and Cpl Murray, and told them to go to Cpl Hamm's residence and order or instruct Cpl Hamm to attend the guardhouse to see WO Rice. If he refused, they were to arrest Cpl Hamm and bring him back to the guardhouse. The two (2) members went to Cpl Hamm's residence and, after certain discussions, including contact with his doctor, Cpl Hamm refused to go to the guardhouse as he was on sick leave and his doctor had advised him that he was not required to do so. Cpl Hamm was then arrested and transported to the guardhouse. Cpl Hamm claimed that, although he asked a number of times why he was being arrested, he was not given a reason for his arrest.

(d) Events at the 4 Wing, Cold Lake Guardhouse After Corporal Hamm's Arrest

Cpl Hamm was brought to WO Rice's office where another confrontation occurred, including refusals by Cpl Hamm to comply with WO Rice's instruction to stand at attention. WO Rice perceived Cpl Hamm's actions at this point to be further evidence of his insubordination. On the other hand, Cpl Hamm claimed that he was asserting his rights, as a person under arrest, to be told the reason for his arrest and to contact counsel. Cpl Hamm eventually entered the guardhouse interview room and attempted, initially unsuccessfully, to contact Duty Counsel. He then called his brother, WO Hamm, who was also a Military Police member working at the 8 Wing Military Police Detachment at Trenton, Ontario. During this telephone conversation and also as a result of a brief conversation with MCpl Paul, WO Hamm perceived that Cpl Hamm had been unlawfully arrested and was possibly the subject of an abuse of authority by WO Rice.

At some point after Cpl Hamm entered the guardhouse interview room, WO Rice was contacted by Cpl Hamm's doctor and advised that Cpl Hamm's sick leave pass had been given to him for [redacted text] . At approximately 13.00 hours, WO Rice briefed his superior, CWO Gauvin, as to what had transpired. CWO Gauvin had been away for much of the morning at an appointment and could not be contacted. CWO Gauvin then arranged to have Cpl Hamm escorted to his office. Present at this time were Cpl Hamm, WO Rice and CWO Gauvin. According to CWO Gauvin, he attempted to de-escalate the situation by having Cpl Hamm tell his side of the story. Cpl Hamm refused to speak, claiming he was under arrest and had been told to remain silent by Duty Counsel. CWO Gauvin then released Cpl Hamm or stated something to the effect that Cpl Hamm was “unarrested.” After further discussion with CWO Gauvin that Cpl Hamm later claimed was intimidating, WO Rice apologized to Cpl Hamm stating that, if he had known Cpl Hamm's sick leave was [redacted text] , he would not have contacted him in the first place. Cpl Hamm was then allowed to leave and was driven home by another Military Police member. Cpl Hamm claimed that his impression of the meeting was that he was being told not to complain further about his arrest or that reprisals might follow if he did complain.

(e) Warrant Officer Hamm's Complaint

After his telephone conversation with Cpl Hamm, WO Hamm became concerned about his brother's welfare. He believed Cpl Hamm might have been subjected to an unlawful arrest and none of WO Rice's immediate superiors were available. He sought the advice of his own superior at the 8 Wing Military Police Detachment, MWO Dennique. MWO Dennique advised WO Hamm to contact the 4 Wing, Cold Lake Base Chief Warrant Officer and ask him to look into the matter or to contact appropriate superiors of WO Rice who could look into the matter. WO Hamm followed this advice and contacted the base Wing Chief Warrant Officer (WCWO). This person did, in fact, contact CWO Gauvin about the matter before CWO Gauvin and WO Rice met with Cpl Hamm.

Later that evening, WO Hamm spoke to his brother at home and learned from him what had transpired in CWO Gauvin's office. WO Hamm became concerned that the incident might not be properly reported to or might not be investigated by appropriate authorities. He contacted CWO Galway, the A3 Security and Military Police (A3 SAMP) Chief Warrant Officer with the office of 1 Canadian Air Division Provost Marshal (1 CAD PM) in Winnipeg.Footnote 18 During that conversation, WO Hamm disclosed some of the facts surrounding Cpl Hamm's arrest and indicated to CWO Galway that he would report the matter. CWO Galway did not advise WO Hamm to complain and did not attempt to dissuade him from complaining. He noted that WO Hamm was emotionally upset, so he calmed WO Hamm down and asked him to provide further details in writing. CWO Galway's note of the conversation indicated that the information provided by WO Hamm, if proven true, was “clearly a breach of the MP (Military Police) Professional Code of Conduct.

The next morning, WO Hamm provided details of his complaint by e-mail to CWO Galway. CWO Galway then contacted and eventually forwarded the information in his possession to the DPM PS, LCol Carey. The next day, December 14, 2000, WO Hamm submitted a formal letter of complaint to the DPM PS which essentially repeated the information provided to CWO Galway. It outlined a number of allegations against Cpl Hamm's superiors at 4 Wing, Cold Lake arising out of the circumstances of the arrest and also referred to certain incidents which had occurred during the six (6) months preceding the arrest.

WO Hamm indicated at the outset that the information set out in his letter was derived mainly from conversations he had with his brother, Cpl Hamm. He first described a series of events related to Cpl Hamm's failure to pass his PT test. He noted that when Cpl Hamm failed the test he was spoken to by his supervisor WO Lewis and agreed to go to the gym to raise his fitness level. However, his attendance was sporadic. Cpl Hamm approached CWO Gauvin for assistance with some unrelated matters, but was met with the response that CWO Gauvin was recommending that he should be charged for failing to attend RPT. WO Hamm stated that Cpl Hamm was in fact charged in late summer of 2000 with failing “[...] to sign-in for remedial PT, as it was his duty to do so” and provided the subsequent sequence of events in this regard. WO Hamm then stated:

After again being served with his charge report, CWO Gauvin informed Cpl Hamm that he could receive a greater punishment than the first time, and that he had spoken to (then) MCpl Smith (now Sgt Smith) regarding his testimony. CWO Gauvin explained that he had found MCpl Smith's testimony weak in the first trial, and he had directed MCpl Smith to be better prepared for the second trial. By Cpl Hamm's account, Sgt SMITH's (sic) testimony at the second trial vastly differed from the first trial. My point is, CWO Gauvin may have tampered with a witness.Footnote 19

WO Hamm then noted that Cpl Hamm was also found guilty at his second trial. Cpl Hamm felt the second trial was conducted with prejudice and became upset, frustrated, despondent and was under obvious personal stress. WO Hamm stated that he urged Cpl Hamm to see a doctor and Cpl Hamm did so, obtaining seven (7) days sick leave for [redacted text].

WO Hamm then described receiving an emergency call from Cpl Hamm at 8 Wing SAMP in Trenton, Ontario, on December 12, 2000 at about 13.00 hours:

He informed me he was on [redacted text], and that Sgt Rice had called him at home, attempting to put him on standby for deployment. Cpl Hamm had concerns with the deployment timings, and reminded Sgt Rice he was on sick leave. Sgt Rice became verbally abusive with Cpl Hamm, and Cpl Hamm terminated the telephone call. He explained that a short time later, two MP's showed up at his residence. They informed him that he was to proceed to the MP Section, and if he refused, Sgt Rice's instructions were to take him there, even if they had to bring him in handcuffs. They informed him their directions were to arrest him if necessary. Cpl Hamm telephoned the doctor who had ordered him on sick leave. The doctor told him not to go to the MP Section. He informed the MPP (Military Police Patrol). They informed him they would be arresting him if he did not go. Cpl Hamm contacted his wife at work. She returned home to care for their [redacted text] daughter. Cpl Hamm was then arrested in the presence of his wife and child. When asked for the reason for his arrest, the MPP responded they did not know the reason, it was the Sgt's orders. Cpl Hamm was informed of his Sec 10 Charter Rights, and transported via MP vehicle to the 4 Wing SAMP Sqn (Squadron).Footnote 20

WO Hamm also noted the following:

  1. on returning to the guardhouse, WO Rice began screaming and yelling uncontrollably at Cpl Hamm. He demanded that Cpl Hamm should stand at attention but Cpl Hamm refused, “as WO Rice was out of control;
  2. when Cpl Hamm indicated he wanted to speak to Duty Counsel, he was escorted to the interview room. He was unsuccessful in contacting Duty Counsel and then called WO Hamm;
  3. when WO Hamm tried to clarify the situation, he spoke with one of the arresting officers, MCpl Paul. MCpl Paul told him WO Rice was out of control and he had no idea why Cpl Hamm was arrested;
  4. WO Hamm briefed his superior, MWO Dennique who advised him to contact the 4 WCWO and request he intervene. He followed MWO Dennique's advice and the WCWO then contacted CWO Gauvin;
  5. that evening, he phoned his brother at home and was updated on what had occurred after their previous conversation. Cpl Hamm told WO Hamm that CWO Gauvin had expressed disappointment in Cpl Hamm; had indicated he believed the entire matter was Cpl Hamm's fault; had “unarrested” or released Cpl Hamm; had inquired how far Cpl Hamm intended to push the matter; and reminded Cpl Hamm that he was a Corporal and CWO Gauvin was a Chief Warrant Officer. As a result, Cpl Hamm was frustrated and feared reprisal.

WO Hamm concluded his letter with the following comment:

I have just documented mostly third hand information, which is certainly detrimental, at face value, to several members of my trade. I do so without malice. However, as a member of the Branch, I must bring this information forward. The allegations, if true, are serious. I am aware of their implications. I have attempted to advise Cpl Hamm on several occasions to seek intervention through harassment mediators. He declined to do so, for fear it would hamper his career.Footnote 21

Cpl Hamm explained to Commission Members why he did not file a complaint at that time:

MS DUNBAR: It was your brother that filed the complaint regarding the arrest. Did you ever ask your brother to do so on your behalf?

CPL HAMM: No. I was actually scared to complain.

MS DUNBAR: Is that why you didn't?

CPL HAMM: Yes.

MS DUNBAR: What did you expect would happen if you had complained?

CPL HAMM: Look at what happened when I fought the first charge. I got more. You have to realize that you're up in Cold Lake. It's not in the middle of nowhere, but you're up there all by yourself. These are your bosses. Look at my position. How many waves would you make? I don't want to push too far. I had never been arrested. What else would be next? It's hard to explain.Footnote 22

(f) Tasking of Investigations of the Complaint and Notification of Subject Members

On December 14, 2000, the DPM PS, referring to material received from CWO Galway on December 13, 2000, and the statement of complaint of WO Hamm dated December 14, 2000, including information received by WO Hamm in his telephone conversation with Cpl Hamm on December 12, 2000, issued tasking instructions to Sgt Dussault, signed by MWO Rutter.Footnote 23 Sgt Dussault is a member of the RCMP who is seconded to the Professional Standards section under the direction of the DPM PS. The instructions defined four (4) allegations made by WO Hamm that were to be investigated:

  1. WO Rice may have abused his authority when without lawful authority he ordered the arrest of Cpl Hamm;
  2. WO Rice may have, while carrying out his duties, acted in a discriminatory or discourteous manner towards Cpl Hamm. This was during a verbal reprimanding which took place in front of several other people;
  3. MCpl Paul and Cpl Murray may have knowingly, without good cause, carried out an arrest that was unlawful when they arrested Cpl Hamm. They could not provide Cpl Hamm with a reason for his arrest; and
  4. CWO Gauvin may have intimidated or attempted to intimidate Cpl Hamm who complained about the conduct of the Military Police members who ordered and effected his arrest.

The tasking instructions identified the subject members of the investigation as being CWO Gauvin, WO Rice, MCpl Paul and Cpl Murray. It directed that a Professional Standards “internal” investigation was to be conducted, in accordance with the Military Police Policies and Technical Procedures,Footnote 24 to determine if the actions of the Military Police were in accordance with Military Police Policies.Footnote 25 The tasking instructions further noted that the list of witnesses and investigation plan were to be approved.

On December 15, 2000, the DPM PS, LCol Carey, notified the four (4) subject members of the investigation and the complainant, WO Hamm, in writing, that she had ordered a Professional Standards investigation into the subject members' professional conduct.

On December 19, 2000, the CFNIS tasked an investigation to determine whether the circumstances described in WO Hamm's complaint disclosed the commission of criminal or service offences by members of the Military Police.Footnote 26 The Professional Standards investigation was held in abeyance to await the completion of the CFNIS investigation.

The following day, a CFNIS Investigation Plan was signed and approved. Capt Pineau and MCpl Martin Rivard were assigned as investigators. The investigation plan stated an intention to investigate a “breach of service discipline (alleged),” arising out of the following allegations:

After various personality/discipline conflicts with his superiors, Cpl HAMM was charged, summarily tried and found guilty and given a caution. Allegedly, the reviewing officer found that the presiding officer had erred and Cpl HAMM was re-charged for the same offence and again found guilty. He was then granted seven days sick leave. Allegedly, while on sick leave, and after a verbal disagreement (by telephone) with Sgt RICE, he refused to attend the SAMP Sqn. and was subsequently arrested in front of his wife and child. Cpl HAMM was given no reason for his arrest and was berated by Sgt RICE in an uncontrollable manner upon his arrival at the SAMP Sqn. Cpl HAMM and Sgt RICE were brought before CWO GAUVIN where further disagreements ensued, the results of which are unknown at this time. Cpl HAMM also made allegations against another member of the SAMP Sqn. and the manner in which CWO GAUVIN handled the complaint.Footnote 27

The CFNIS investigation ultimately focused on two issues: first, whether service or criminal offences had been committed in relation to the alleged unlawful arrest of Cpl Hamm on December 12, 2000 and second, whether CWO Gauvin had tampered with a witness who testified at the first summary trial of Cpl Hamm.

(g) Verbal Warning Administered to Corporal Hamm

On January 22, 2001, CWO Gauvin, after consulting with and receiving the approval of his superior, Maj Thobo-Carlsen,Footnote 28 administered a verbal warning, reduced to writing for administrative purposes, to Cpl Hamm. This warning addressed his alleged insubordination and disobedience of a lawful command during the telephone conversation with WO Rice on December 12, 2000 and his further alleged insubordination when he refused WO Rice's order to stand at attention at the guardhouse. He was warned that repetition of the conduct would result in either disciplinary or administrative action or both.

(h) The Canadian Forces National Investigation Service Investigation Report and its Aftermath

On July 8, 2001, the CFNIS investigators concluded in their final investigation report that there was no evidence to support the allegation of witness tampering directed against CWO Gauvin. It was further concluded that WO Rice recalled Cpl Hamm to duty contrary to QR&O section 16.01(2) (Withholding of and Recall from Leave)Footnote 29 and that he would be charged with one count under paragraph 129(2)(b) of the NDA for breaching the Regulation by failing to ensure that Cpl Hamm's Commanding Officer had directed the recall. Initially the CFNIS investigators felt that WO Rice should also be charged with an offence contrary to section 130 of the NDA for issuing instructions that led to Cpl Hamm's forcible seizure and confinement without lawful authority contrary to subsection 279(2) of the Criminal Code.Footnote 30 After consultation with the Military Prosecutor, this was not pursued. The report concluded that MCpl Paul and Cpl Murray, who conducted the actual arrest of Cpl Hamm, had reasonable grounds to believe that the service offence of disobeying a lawful command was committed when Cpl Hamm refused to accompany them pursuant to WO Rice's order. They were therefore acting in good faith and had reasonable grounds to believe their actions were justified. As a result, no action against them was contemplated.

On August 3, 2001, Maj Thobo-Carlsen, dissatisfied with the outcome of the CFNIS investigation, wrote to the Deputy Provost Marshal, National Investigation Service (DPM NIS), formally requesting that the CFNIS investigate several alleged breaches of service regulations by Cpl Hamm related to the events that occurred on December 12, 2000. Even though administrative measures were taken, he stated that he had decided not to lay charges against Cpl Hamm for insubordination and disobeying a lawful command arising out of those events in the belief that CFNIS would investigate offences that had been committed by Military Police personnel. Further, he had been assured by the CFNIS investigators that “both sides of the incident” would be investigated. He understood this to mean “our allegations against Cpl Hamm as well as his allegations against WO Rice et al.” He indicated that he was, therefore, “surprised to read the subsequent CFNIS report in which Cpl Hamm was listed as a victim rather than as one of the subjects.” He asserted that this surprise resulted from the fact that,

[.] in his statement to CFNIS investigators, Cpl Hamm admits to having refused Sgt Rice's direction and to having hung up the phone on Sgt Rice, who at the time was engaged in a fully legitimate staff check of off-duty military police personnel for a possible NORAD deployment.Footnote 31

Maj Thobo-Carlsen then requested that the CFNIS investigate allegations that Cpl Hamm, on or about December 12, 2000, breached service regulations when he:

  1. acted with contempt towards WO Rice by saying “I won't go,” when WO Rice instructed Cpl Hamm to get his kit ready for a northern deployment;
  2. was insubordinate, when, in a telephone conversation, he said to WO Rice, “See you later Bud,” and hung up the phone;
  3. disobeyed a lawful command to report to WO Rice and account for his earlier insubordination:
  4. disobeyed a lawful command of WO Rice to “take a seat” and then, to come to attention, when he arrived at WO Rice's office after being arrested; and
  5. on February 19, 2001, gave an opinion to a newspaper on a matter then being considered by both the DPM PS and the CFNIS.

Maj Thobo-Carlsen told the Commission Members that his main concern was that the CFNIS investigation had not “looked atFootnote 32 the allegations that Cpl Hamm had been insubordinate. He therefore suggested that the investigation was not objective and that he had been somewhat “betrayed” or “lied toFootnote 33 because he had been assured by CFNIS investigators that they would impartially evaluate both sides.

On August 9, 2001, WO Rice's summary trial on the charge arising out of the CFNIS investigation was held and he was found not guilty. Prior to this date and shortly after WO Rice was charged under section 129 of the NDA, his Military Police credentials were suspended for approximately a ten (10) month period.

On August 29, 2001, Supt Grabb, then Officer Commanding of the CFNIS Sensitive Investigation Detachment (OC CFNIS SI) replied to and refused the request of Maj Thobo-Carlsen for further investigation of his allegations regarding Cpl Hamm. He stated that the complaint was clearly vexatious and made in bad faith. Further, he stated that, upon a review of all of the facts pertaining to the investigation, Cpl Hamm might have been subject to egregious, systemic abuse from the Military Police Commanders at 4 Wing, Cold Lake. He added that this “unfortunate sequence of events culminated in his arrest on 12 December 2000 in the presence of his wife and daughter. This arrest and subsequent detention was deemed unjustified and unlawful.” He described Maj Thobo-Carlsen's letter of request for an investigation as a “litany of minor allegations” that “can only be viewed as further efforts to exact a price from Cpl Hamm for having the courage to report the gross violations of his constitutional rights that he has endured.” He indicated that he would forward the CFNIS investigative materials to the Complaints Commission and ask it to conduct an unbiased review of the CFNIS investigation “and all issues incidental to it.Supt Grabb did so on August 30, 2001. This was the first time that the Complaints Commission learned of WO Hamm's complaint or of the investigations carried out or planned by both the CFNIS and the DPM PS in relation to this matter.

In response to the complaints made by Maj Thobo-Carlsen, the CFNIS report was reviewed. On November 16, 2001, Commander (Cdr) Moore, DPM NIS, in a letter to the 1 CAD PM, confirmed Supt Grabb's opinion that the circumstances of the allegations presented would not support service offence charges and did not merit further investigation by the CFNIS.

In addition, Insp Blizard, who was seconded from the RCMP to replace Supt Grabb as OC CFNIS SI, was tasked by Cdr Moore at the request of the CFPM to conduct a review of the CFNIS investigation. He understood that the review was requested because of concerns raised by Maj Thobo-Carlsen.Footnote 34 In a memorandum dated April 22, 2002, Insp Blizard reported that, after his brief review, the facts strongly suggested an unlawful command issued by WO Rice and an unlawful arrest of Cpl Hamm. He concluded:

Investigational follow up was in support of gleaning all the facts and circumstances surrounding the complaint and not “in support” of Cpl HAMM. As such, I am informed that Sgt RICE, as well as other individuals thought to have insight into the matter were interviewed. Contentions of Major THOBO-CARLSEN that HAMM was insubordinate and disobeyed lawful commands were taken under consideration by both the investigators and the RMP.Footnote 35 Ultimately, the facts arising from all the information supported the charges as indicated. I see no reason for any further investigational follow up being required.Footnote 36

(i) Professional Standards Investigation Report

On October 31, 2001, the DPM PS, LCol Carey, notified CWO Gauvin, WO Rice, MCpl Paul, Cpl Murray, and WO Hamm that since the CFNIS investigation had concluded, the Professional Standards investigation of WO Hamm's allegations would resume.

On November 9, 2001, the Chairperson wrote to the DPM PS, LCol Carey, referencing the letter received from Supt Grabb and the complaint lodged by WO Hamm. She inquired about the rationale for the “internal” classification and the failure to notify the Complaints Commission of the conduct complaint lodged by WO Hamm as required by the NDA. The DPM PS, LCol Carey, responded that the failure to notify the Complaints Commission was an oversight, that the situation had been rectified, and that it would not reoccur.

The Professional Standards investigation report was submitted on February 21, 2002Footnote 37 and was signed by Sgt Dussault as the author and by MWO MacFarlane as the reviewer. The investigation concluded that none of the allegations against the named subject members, WO Rice, CWO Gauvin, MCpl Paul and Cpl Murray, were supported by the evidence.Footnote 38

The investigation report was, however, critical of Cpl Hamm's conduct. WO Hamm was also criticized for filing his complaint based solely on his perceptions that his brother was in distress and was being harassed, and without first confirming the accuracy of his complaint with Cpl Hamm.Footnote 39 The report then detailed five (5) matters in relation to which it alleged that Cpl Hamm had provided “in part, bias, incomplete or misleading” information to WO Hamm before the complaint was filed.Footnote 40

The criticisms of Cpl Hamm were more wide-ranging. They included:

  1. that Cpl Hamm provided “in part, bias, incomplete or misleading” information to WO Hamm which eventually was used as the basis for WO Hamm's complaint.Footnote 41 (This mirrored the criticism of WO Hamm for acting on the information he received from Cpl Hamm);
  2. Cpl Hamm's “answers and explanations” when confronted by “contradictions in his account” during his Professional Standards investigation interview raised doubts about his credibility in the investigator's mind; Footnote 42
  3. Cpl Hamm had presented “an unwarranted depiction” of having been systematically abused by Military Police Commanders at 4 Wing, Cold Lake; Footnote 43
  4. Cpl Hamm “manipulated the information” to drive events in his favour; Footnote 44
  5. Cpl Hamm let WO Hamm intervene on his behalf and thereby “conveniently distanced himself from the fallout.Footnote 45

The author of the Professional Standards investigation report was also critical of the CFNIS investigation. He noted that the CFNIS and Professional Standards investigations disclosed five (5) breaches of the NDA committed by Cpl Hamm but the CFNIS investigation was “blinded” to Cpl Hamm's infractions for “reasons that remain unclear.Footnote 46 Finally, the report stated that from the Military Police Professional Code of ConductFootnote 47 perspective it appeared that Cpl Hamm engaged in conduct that discredited the Military Police and that his behaviour called into question his ability to carry out his duties in a faithful and impartial manner.Footnote 48 It also added that Cpl Hamm was interviewed as a witness and was assured that his statement would not be used against him.Footnote 49

(j) Deputy Provost Marshal Professional Standards' Letters of Final Disposition

On April 5, 2002, LCol Carey, DPM PS, signed and forwarded her conclusions in a Letter of Final Disposition to the four (4) subject members, WO Hamm and Cpl Hamm. This report combined all of the findings and recommendations made in relation to all of the subject members as well as Cpl Hamm and WO Hamm, in one document. Except for the copy addressed to Cpl Hamm, which was transmitted through DPM NIS, all of the copies were addressed to each recipient through LCol Dixon, 1 CAD PM. At some point, a decision was made to produce and send a report to each subject member and WO Hamm to reflect only the findings and recommendations relevant to their individual circumstances. The adjusted Letters of Final Disposition dated May 2, 2002, were signed by Maj Pumphrey, Acting DPM PS.

For essentially the same rationale as was set out in the Professional Standards investigation report with only minor changes in wording, the four (4) allegations against the four (4) named subject members were held not to be supported based on the information, facts and evidence gathered in the investigation. The DPM PS' Letters of Final Disposition found that the four (4) subject members did not contravene Military Police Policies and Technical Procedures and did not breach any provisions of the Military Police Professional Code of Conduct. However, the letters did note that some of the actions taken by various personnel of the 4 Wing, Cold Lake Military Police Detachment were of concern and LCol Dixon, 1 CAD PM, was notified of certain follow-up actions that should be taken.

With respect to WO Rice, the DPM PS' Letter of Final Disposition addressed to him noted his acknowledgement that he should not have acted [redacted text] that he did during the incident with Cpl Hamm. It was directed that WO Rice should be counselled “[...] to ensure that, in similar circumstances, he steps back from the situation before taking action to ensure the right decision is made.Footnote 50

With respect to CWO Gauvin, the DPM PS' Letter of Final Disposition noted that as the person who released Cpl Hamm from custody he was to be advised that QR&O 105.12 required the release to be effected by the arresting officer, MCpl Paul, rather than himself.Footnote 51

The DPM PS' Letters of Final Disposition, like the investigation report, did not identify any concerns about the conduct of either MCpl Paul or Cpl Murray.

The DPM PS' Letter of Final Disposition addressed to WO Hamm criticized him in almost identical terms to those set out in the Professional Standards investigation report. This included reference to his having filed a complaint based solely on his perceptions that his brother was in distress and was being harassed and without first confirming the accuracy of his complaint. The Letter of Final Disposition also enumerated the five (5) matters, identified in the investigation report, that were alleged to be matters about which Cpl Hamm had provided “in part incomplete or misleading information” to WO Hamm before the complaint was filed. This Letter of Final Disposition also repeated, as matters of significance, the fact that the seconded Professional Standards investigator had doubts about Cpl Hamm's credibility. It further stated that, although WO Hamm was not wrong to engage the Chain of Command in the matter, he was premature in submitting a formal complaint that levelled the noted allegations against personnel at 4 Wing, Cold Lake. It directed that WO Hamm should be counselled “to ensure that he ascertains a clearer understanding of the given situation, before involving himself in matters pertaining to another unit.”.

The DPM PS' Letter of Final Disposition addressed to Cpl Hamm, dated April 5, 2002, repeated a number of findings and conclusions stated in the Professional Standards investigation report including:

  1. the questions raised in the investigator's mind about Cpl Hamm's credibility as a result of his responses when confronted with alleged contradictions in his account during the Professional Standards interview;
  2. the investigator's conclusion that Cpl Hamm manipulated information to drive events in his favour;
  3. the conclusion that Cpl Hamm “distanced himself from the fallout,” by letting WO Hamm intervene on his behalf;
  4. the five (5) instances where it was found that Cpl Hamm provided, in part, incomplete and misleading information to WO Hamm;
  5. the five (5) service offences committed by Cpl Hamm that the Professional Standards investigation report alleged had surfaced in the CFNIS and Professional Standards investigations.

The DPM PS' Letter of Final Disposition then went further and made specific findings that Cpl Hamm violated the Military Police Professional Code of Conduct (Code); in that:

  1. he knowingly suppressed, misrepresented or falsified information in a report or statement, contrary to paragraph 4(h) of the Code by withholding until he was arrested, the fact he was on stress leave and letting his supervisors believe he was on sick leave that would expire the day after the incident; Footnote 52
  2. he engaged in conduct likely to discredit the Military Police or that called into question his ability to carry out his duties in a faithful and impartial manner contrary to paragraph 4(l) of the Code by only divulging “certain information to certain persons at certain times” and leading other Military Police personnel in believing that he was being targeted, harassed and unjustly dealt with by the senior Military Police personnel at Cold Lake,Footnote 53 and that:
  3. he disclosed Military Police information to the press when not authorized. Footnote 54

However, with respect to the second alleged violation, the Professional Standards investigation report suggested that the breach of paragraph 4(l) was based on the report's finding that Cpl Hamm had committed several service offences to which the CFNIS investigation was allegedly “blinded.Footnote 55.

With respect to the third alleged violation, the DPM PS' Letter of Final Disposition did note that the offence related to Cpl Hamm's disclosure of information to the press was not covered and reported in the CFNIS investigation.Footnote 56 The letter also stated that information provided by Cpl Hamm on this issue “can not be used against the interests of the member by the Military Police Credentials Review Board (MPCRB).Footnote 57

(k) Actions Taken Against Warrant Officer Hamm and Corporal Hamm

On April 15, 2002, the DPM PS sent a telex to the Officer Commanding of the CFNIS unit in Ottawa (Capt Chiasson) where Cpl Hamm was then employed as an investigator. The telex, referencing the DPM PS' Letter of Final Disposition dated April 5, 2002 and the allegations raised in the report against Cpl Hamm, notified Capt Chiasson that Cpl Hamm's credentials were to be suspended. The telex identified, as reasons for the suspension, breaches by Cpl Hamm of paragraphs 4(h) and 4(l) of the Military Police Professional Code of Conduct. The DPM PS then stated in this telex that the DPM PS' Letter of Final Disposition addressed to Cpl Hamm dated April 5, 2002, alleged he had “[...] breached these sections of the Code as a result of alleged misconduct whereby during an investigation he knowingly revealed information intended to mislead the investigator.

On April 22, 2002, MWO MacFarlane stated, in an e-mail to Maj Pumphrey, Acting DPM PS, that the reasons for the suspension of Cpl Hamm's credentials were that he breached paragraph 4(h) of the Military Police Code of Conduct (knowingly suppress, misrepresent or falsify information in a report or statement) because he was not forthcoming with all information when he contacted WO Hamm and also provided false information to WO Hamm.

On April 23, 2002, a telex message to CFNIS, Ottawa and the DPM PS at National Defence Headquarters (NDHQ) Ottawa from Capt Chiasson confirmed the suspension of Cpl Hamm's credentials as of 08.45 hours on April 23, 2002, as directed.

On May 1, 2002, Maj Pumphrey, Acting DPM PS, wrote to the Vice-Chief of the Defence Staff (VCDS) indicating, among other things, that Cpl Hamm's credentials had been suspended. He stated that the reason was that Cpl Hamm provided incomplete and biased information to his brother, which his brother then used to formulate the allegations against the respondents in the Professional Standards investigation.

Cpl Hamm's credentials continue to be suspended as of this date of this report and he awaits the Military Police Credentials Review Board process. He has never been convicted of, or charged with, any of the service or other offences that the Professional Standards report alleged he committed.

In July 2002, LCol Dixon carried out the direction of the DPM PS as contained in the Letter of Final Disposition that he should counsel WO Hamm. He told Complaints Commission Members that this involved providing WO Hamm with “sage advice” and “guidanceFootnote 58 to the effect that he should not have inserted himself into a process outside of his own Chain of Command when he had a personal or emotional involvement with his brother. However, LCol Dixon also told Commission Members that, in the circumstances, he “did not embraceFootnote 59 the concept of counselling WO Hamm because he did not take enough care in verifying the information received from Cpl Hamm. What WO Hamm had stated in his complaint was “[...] a reflection of an emotional time.” “He took the information and put it down verbatim, from his perspective. I don't see the onus on him. I don't. It's the investigative body.Footnote 60

(l) Warrant Officer Hamm's Request for Review and Corporal Hamm's Complaint in the First Instance

On April 30, 2002, WO Hamm asked the Complaints Commission to review the Professional Standards investigation and the CFNIS investigation.

On May 15, 2002, Cpl Hamm made a complaint in the first instance and asked the Complaints Commission to review his arrest on December 12, 2000, the Professional Standards investigation, and subsequent actions taken against him by the DPM PS. Cpl Hamm further claimed that the Professional Standards investigation was “inept” and biased.

IV. COMMISSION MEMBERS' FINDINGS AND RECOMMENDATIONS SUBSEQUENT TO THE PUBLIC INTERST INVESTIGATION

Table of Contents

IV. Commission Members' Findings and Recommendations Subsequent to the Public Interest Investigation

  1. Issues 1 and 2: Was the Order to Arrest Corporal Hamm Issued by Warrant Officer Rice Proper and Lawful?

    Was the Subsequent Arrest by Master Corporal Paul and Corporal Murray Proper and Lawful?

    1. Background of Corporal Hamm's Arrest on December 12, 2002

      1. Events Preceding the Arrest
      2. Warrant Officer Rice's Telephone Call to Corporal Hamm December 12, 2004
      3. Warrant Officer Rice Instructs Master Corporal Paul and Corporal Murray
      4. Events at Corporal Hamm's Residence
      5. Return to the Guardhouse
      6. Events in Guardhouse Interview Room
    2. Background of Corporal Hamm's Arrest on December 12, 2002

      1. Events Preceding the Arrest
      2. Warrant Officer Rice's Telephone Call to Corporal Hamm December 12, 2004
      3. Warrant Officer Rice Instructs Master Corporal Paul and Corporal Murray
      4. Events at Corporal Hamm's Residence
      5. Return to the Guardhouse
      6. Events in Guardhouse Interview Room
    3. Commission Members' Findings: Issues 1& 2

      1. Knowledge of the Reasons for Corporal Hamm's Sick Leave
      2. The Decision to Task Corporal Hamm to Deploy to Inuvik on December 26, 2000
      3. Assessments of Credibility of Warrant Officer Rice and Corporal Hamm
      4. Use of Profanity by Warrant Officer Rice
      5. Warrant Officer Rice's Rationale for Summoning Corporal Hamm of Attend his Office
      6. Whether Requiring Corporal Hamm to Attend the Military Police Detachment Was a Recall to Duty
      7. The Source of Warrant Officer Rice's Authority to Arrest Corporal Hamm
      8. Was Corporal Hamm's Arrest Necessary?
      9. Exercise of the Discretion to Arrest
      10. Duty of Master Corporal Paul and Corporal Murray to Carry out Warrant Officer Rice's Instruction
      11. Failure to Disclose Reason for the Arrest to the Arresting Officers
      12. The Effect on the Arresting Officers'Understanding
      13. Effect on What Corporal Hamm Was Told
      14. Duty of Master Corporal Paul and Corporal Murray to Clarify Warrant Officer Rice's Instructions
      15. A Section 9 Charter Analysis: Arbitrary Detention
      16. The Charter Right to be Informed Promptly of the Reasons for Arrest
      17. Necessity for Corporal Hamm to be Told Why Warrant Officer Rice Wanted to See Him
      18. Deputy Provost Marshal Professional Standards' Finding that Warrant Officer Rice Acted Within his Authority and Responsibilities
      19. Master Corporal Paul's Note-Taking
    4. Commission Members' Recommendations: Issues 1& 2

The first two (2) issues addressed in this public interest investigation relate to the arrest of Cpl Hamm on December 12, 2000. There were two (2) basic components of the arrest: the orders or instructions given by WO Rice to the arresting officers and the execution of WO Rice's orders or instructions by way of the arrest of Cpl Hamm. There are common and related facts and legal issues underlying both components of the arrest. Therefore, this report addresses the first two (2) issues together:

A. ISSUE 1: WAS THE ORDER TO ARREST CORPORAL HAMM ISSUED BY WARRANT OFFICER RICE PROPER AND LAWFUL?

and

ISSUE 2: WAS THE SUBSEQUENT ARREST BY MASTER CORPORAL PAUL AND CORPORAL MURRAY PROPER AND LAWFUL?

(1) Background of Corporal Hamm's Arrest on December 12, 2000

(a) Events Preceding the Arrest

The circumstances surrounding the failure of Cpl Hamm to pass his PT tests, his summary trials and convictions for Neglect to the Prejudice of Good Order and Discipline and his obtaining a seven (7) day sick leave pass for [redacted text]on December 7, 2000 have previously been described.

In July 2000, Cpl Hamm's supervisor, WO Lewis was transferred out of Cold Lake and was replaced by WO Rice. WO Rice, aware of the ongoing difficulties involving Cpl Hamm and RPT, began to monitor Cpl Hamm's work habits and punctuality more closely. WO Rice developed concerns about what he perceived were regular attempts by Cpl Hamm to avoid taking the PT tests by obtaining sick leave certificates at the last minute before each test. Cpl Hamm, on the other hand, began to perceive that some of the actions taken against him by his superiors were unjustified. While WO Lewis' management style was more flexible and allowed Cpl Hamm more leeway in his punctuality and dress, Cpl Hamm saw WO Rice's management style as more harsh and uncompromising. A conflict of perceptions emerged. Cpl Hamm perceived the closer supervision of his work and conduct as bordering on harassment, while his superiors viewed it as necessary to improve his work habits and discipline within a military organization.Footnote 61 At the same time, witnesses also noted an emerging personality conflict between WO Rice and Cpl Hamm. Sgt Berney, a former supervisor of Cpl Hamm, described WO Rice as keeping Cpl Hamm on a “short leashFootnote 62 and their interaction as comparable to “oil and water.Footnote 63 WO Rice was concerned with maintaining and reinforcing the observance of military decorum, punctuality, the prompt completion of paperwork and discipline. Cpl Hamm was described as a civilian in uniform who, although a good investigator, was not physically fit, was not punctual, was slow to complete paperwork, preferred civilian dress and projected a lack of respect for authority. Sgt Berney noted that conversations between WO Rice and Cpl Hamm often generated noticeable frustration and anger on both of their parts.Footnote 64.

Capt Pineau, the CFNIS investigator, told Commission Members:

MS DUNBAR: Did you feel that there was any validity to the harassment claims by Corporal Hamm?

CAPT PINEAU: In his mind I think he felt that he was harassed, but quite possibly in the minds of Rice of Gauvin he was a discipline problem and the problem was being addressed. Rice made Hamm-I shouldn't say he made him his project, but to Rice, Hamm was a discipline problem and he was going to sort him out.Footnote 65

The sick leave chit that Cpl Hamm presented to WO Rice on December 7, 2000 indicated that Cpl Hamm would return to work on December 14, 2000. The chits do not disclose the nature of the illness for which leave is granted. Boxes on the chit that might have indicated that Cpl Hamm was required to see a doctor before returning to work or that allowed for an indication of “excused duties, admission to hospital or light duties” were not checked.

Early in the morning of December 12, 2000, WO Rice and CWO GauvinFootnote 66 met to consider a recently received order that had been received to find seven (7) 4 Wing personnel to replace 4 Wing personnel who had earlier been deployed to Inuvik. The deployment of the replacements was to take place on December 26, 2000. [redacted text]. WO Rice and CWO Gauvin settled on the seven (7) who would be required to deploy. Cpl Hamm was one of the persons selected, as was WO Rice. [redacted text]. Anyone who was not properly prepared on the deployment date would not be allowed to deploy. WO Rice was tasked to notify those who were selected and, as indicated, he telephoned Cpl Hamm at home at about 10.00 hours.

(b) Warrant Officer Rice's Telephone Call to Corporal Hamm on December 12, 2000

Cpl Hamm and WO Rice disagree as to what was said during the telephone conversation. In essence, Cpl Hamm claimed that he agreed to go on the deployment, but expressed a desire to be back by a certain date to attend to child care issues when his wife was scheduled to go to [redacted text]. He claimed that WO Rice then became agitated and verbally abusive and swore at him. He described WO Rice's tone as aggressive and demeaning. He claimed WO Rice said:

You better [redacted text]learn you're military. If I [redacted text]tell you to do something, you're going to [redacted text]do it. If I have to go, you have to go.Footnote 67

Cpl Hamm claimed that, at this point, he was speaking on a cordless phone and was urinating. WO Rice was swearing, so he extended his phone hand away and clicked the phone off. The entire conversation lasted about two (2) or three (3) minutes. He told Commission Members:

MS DUNBAR: You said you never told him that you would not go, but did you ever say, “Yes, I will go”[.]?

CPL HAMM: No. All I said is “Okay, as long as you know I'm still on sick leave and as long as we are back before this date.” That was the gist of it.

MS DUNBAR: The message in your mind that you were portrayed was a yes or a no or somewhere in between?

CPL HAMM: It was a yes. I'm hoping that we are back before this date. That's all. Nothing else. If daycare was a problem, we had [redacted text]. [redacted text]. She was an older lady. She had her own kids. That's whom we normally took [redacted text]to every day [...].

MS DUNBAR: Did you ever say before you hung up, “See you later bud”?

CPL HAMM: No, I did not say, “See you later, bud”.

MS DUNBAR: What was the conversation just prior to hanging up?

CPL HAMM: A click. I held it away from me -

MS DUNBAR: You were listening to him.

CPL HAMM: He was swearing. I was going to the bathroom. He was swearing. I went click. Footnote 68

On the other hand, WO Rice claimed that when he told Cpl Hamm that he should prepare his kit for a possible deployment, Cpl Hamm immediately stated that he could not and would not go. WO Rice asked why. Cpl Hamm told him that his wife was going to [redacted text]over that period on vacation and he had no child care. WO Rice alleged that at no time during the conversation did Cpl Hamm say he could not go because he would be on more sick leave or he would not be fit to go on deployment. Rather, the entire conversation focused on his wife's trip to [redacted text].Footnote 69 WO Rice responded that he would do what he could but Cpl Hamm should still plan in case he was required to go. Cpl Hamm again stated, “I won't go.WO Rice then told him that several other persons were in the same boat and Cpl Hamm might be ordered to go. Cpl Hamm again said he would not go. WO Rice then told Cpl Hamm that, if he was ordered to go he would do so or would go to jail. Cpl Hamm then stated “See you later bud” and hung up the phone. He told Commission Members that Cpl Hamm, during the conversation, was defiant, that he raised his voice, and that his tone was insolent or sarcastic. WO Rice did recall reminding Cpl Hamm that he was in the military and telling Cpl Hamm that he had to get his priorities in order, but he denied swearing while the telephone was connected. He did not order Cpl Hamm to deploy or to come to his office during the conversation. WO Rice explained that he would not have used the word “order” to go on deployment because he was being ordered to prepare to go on deployment.Footnote 70

(c) Warrant Officer Rice instructs Master Corporal Paul and Corporal Murray

WO Rice claimed that, when the telephone conversation ended, he tried to call Cpl Hamm back several times over a period of about four (4) or five (5) minutes before taking further steps, but the line was busy.Footnote 71 Cpl Hamm maintained that his phone was not in use or off the hook after he hung up.Footnote 72 WO Rice told Commission Members that, at that point, he was interested primarily in determining whether Cpl Hamm would in fact prepare for the deployment to resolve the situation. He also wanted to deal with Cpl Hamm's insubordination.Footnote 73

He described the resolution of the issues of Cpl Hamm's availability for the deployment and his agreement to prepare to deploy as work-related matters. For example, he told CFNIS investigators:

SGT RICE: [.] and I felt that this was inappropriate, I felt that it was insubordinate and, to be honest with you, I was incredulous that a Corporal would do this in conversation with a Sergeant to do with - particularly to do with operational deployments, work related stuff. [.] This is a work-related thing that's not supposed to be considered lightly.Footnote 74

Nevertheless, WO Rice maintained that he did not believe that he, at any time during the incident, recalled Cpl Hamm from leave within the meaning of QR&O 16.01.

MS DUNBAR: [...] Did you ever feel it necessary on that day to seek (the Commanding Officer's (CO)) authorization to recall Hamm from leave?

WO RICE: At no time in the course of this incident did I feel, nor do I feel, that I ever recalled him from leave. I spoke to him. I ordered him to prepare to do something. I did not tell him to come into the place of work. I did not tell him to - until the grounds of arrest were met.Footnote 75

He also told Commission Members that he believed he had grounds to arrest Cpl Hamm arising out of what Cpl Hamm said on the telephone.Footnote 76 He told the seconded Professional Standards investigator that he believed Cpl Hamm committed two (2) offences by his conduct during the telephone conversation: insubordination and disobeying a lawful command by intending to disobey the order to prepare his kit to go to Inuvik.Footnote 77 However, WO Rice did not proceed to arrest Cpl Hamm or to order Cpl Hamm's arrest for these perceived offences; instead, he took steps to have Cpl Hamm notified that he should come into the guardhouse voluntarily to meet him in order to deal with the issues that WO Rice believed remained outstanding.

WO Rice maintained that he expected Cpl Hamm to come in voluntarily and did not expect him to be arrested:

My assumption was that these guys would show up there, tell him that he was ordered to come, Corporal Hamm would then get into his own car with his appropriate car seat and all the rest of it, and come into the office.Footnote 78

WO Rice believed that he told MCpl Paul and Cpl Murray that, if Cpl Hamm refused “to come in,” he was to be arrested “for disobedience of a lawful command.” He also believed that he mentioned insubordination.Footnote 79 However, he told Commission Members that he could not be one hundred per cent sure of the latter.Footnote 80 He further mentioned that he did not tell MCpl Paul and Cpl Murray why he wanted to see Cpl Hamm, as the details of the telephone conversation were between himself and Cpl Hamm.Footnote 81 WO Rice also agreed that he might have told them to place Cpl Hamm in handcuffs if they had to arrest him.Footnote 82 WO Rice maintained that his instructions must have been clear because MCpl Paul and Cpl Murray did not ask for any clarifications.Footnote 83

MCpl Paul declined to be interviewed by both the Complaints Commission's investigator, Mr. Elwood Johnston, and subsequently the Complaints Commission. Cpl Murray was on deployment during the period Mr. Johnston was conducting interviews. Cpl Murray subsequently declined to be interviewed by the Complaints Commission. However, Commission Members did have access to their notebooks, their reports and transcripts of their interviews with CFNIS and Professional Standards investigators. Their recollections differed from those of WO Rice in some respects. First, their recollections call into question WO Rice's assertion that he calmly sat back and tried to call Cpl Hamm back a few times before calling in MCpl Paul and Cpl Murray.

Their recollections were to the effect that WO Rice called them into his office immediately after slamming down the phone.Footnote 84 MCpl Paul further recalled that, at the conclusion of the conversation with Cpl Hamm, WO Rice was very excited, loud and “furious” and did not appear to be thinking clearly about the situation.Footnote 85 Neither of them understood, from what WO Rice told them, why Cpl Hamm was being summoned back to the guardhouse or why they were to arrest Cpl Hamm if he refused to go voluntarily, other than the fact that WO Rice told them they were to arrest him. They were also so shocked by WO Rice's [redacted text]behaviour and instructions that they were not comfortable asking him to clarify anything they did not understand.Footnote 86.

MCpl Paul described to CFNIS investigators: (i) the time interval between WO Rice hanging up the telephone and summoning them to his office; (ii) WO Rice's emotional state at the conclusion of the conversation; and (iii) the confusion WO Rice's instructions generated as follows:

CPL PAUL: Put it like this. By the level of his voice and the slamming of the phone made the hair on the back of my neck stand up, because I knew shit was happening [.]. Somebody was in shit [.]. And I knew because of “Hamm”, “Hamm”, “Cpl Hamm” that it was Tim Hamm [.].Footnote 87

MCPL RIVARD: Okay. And if you had to describe Sergeant Rice's voice on the phone at that point, how would you describe it? [.]

CPL PAUL: One word completes it, furious.

MCPL RIVARD: Okay. So Sergeant Rice is furious at this point and we move a little forward.

CPL PAUL: Like milliseconds forward.

MCPL RIVARD: Yeah, I know.

CPL PAUL: He knows I'm in that room and he's yelling at me.

MCPL RIVARD: Okay. So he's yelling and this is - is this like, “Corporal Paul, get in here now right away,” or is it, “Corporal Paul, can you come in here?

CPL PAUL: No, your first one, “Corporal Paul.” “Oh shit,” and the shredding paper gets stopped [.]. But it was very abrupt, very forceful, “Corporal Paul.” [...]Footnote 88

MCPL RIVARD: What is his demeanour? What is his tone of voice at you at that point again? Is this a person that's in control of a situation that has gone wrong?

CPL PAUL: He was very excited, very loud. I can't say whether he understood what he was doing [.]. I don't think he gave himself enough time from hanging up to make a clear decision of what to do. That's my opinion [.].Footnote 89 I think he knew what he was doing, but I don't think he thought it out completely [.]. Because of his excitement level at the time.Footnote 90

Sgt Dussault, the seconded Professional Standards investigator, indicated to Commission Members when asked if he learned in the investigation whether or not Rice used profanities while on the phone with Cpl Hamm:

The only information I have is that the phone was hung up [.]. All they heard was “[redacted text]Hamm.Footnote 91

MCpl Paul's recollection of WO Rice's instructions, as told to CFNIS investigators, was:

He directed Corporal Murray and myself to go to Corporal Hamm's house, tell him to come into the office and see Sergeant Rice. If he didn't come in voluntarily, meaning I was to arrest him and bring him in. And if he didn't come willingly, I was to place him in handcuffs.Footnote 92

At another point, MCpl Paul stated that WO Rice's direction was:

Go to Tim's house, arrest him. You know, tell him to come in. If he doesn't come voluntarily, arrest him and put him in handcuffs.Footnote 93

MCpl Paul elaborated on his understanding of the instructions he was given and explained why he did not question WO Rice further:

CPL PAUL: He says, “You and Cpl Murray go to Tim's house,” and he's like - there was no question in my mind I'm not going to stand there and question him at that point.

MCPL RIVARD: Okay.

CPL PAUL: Because of the way I could see in his eyes that he's upset, he's pissed.

MCPL RIVARD: Okay.

CPL PAUL: And I'm not going to stand there and be the buffer to a sergeant when I'm two ranks below.

MCPL RIVARD: No, I can understand your position. I understand your position on that.

CPL PAUL: Given the way he slammed the phone, yelled at Hamm, slammed the phone down, he yelled at me to come to his office and then met me basically at the doorway. I'm not questioning anything, I'm going [.].Footnote 94

CPL PAUL: My confusing part was because Sergeant Rice directed me to go to his house and arrest him, that I thought in the back of my head that I had to be told by Sergeant Rice of what to arrest him for. And that's what I questioned and I've been questioning all along. Now the problem that I have is whether I could legally surmise on my own from the direction of Sergeant Rice whether I can make my own decision of what to arrest him for.

CAPT PINEAU: Because Sergeant Rice didn't tell you.

CPL PAUL: Because Sergeant Rice never came out and said arrest him for disobeying a lawful command, conduct unbecoming or whatever [.]. He never clearly directed that.

MCPL RIVARD: Okay [.].Footnote 95

CPL PAUL: Like I said, when I made up my mind from the conversation of Sergeant Rice, who slammed the phone down, the way he spoke, that I knew Tim (Hamm) wasn't doing what he was supposed to be doing or wasn't doing what he was asked to do or told to do, however you want to phrase it.

MCPL RIVARD: Uh-huh.

CPL PAUL: Okay. When Sergeant Rice told me to go to his house, even though he didn't tell me what to do, I already had that in my head that obviously he's not listening to a superior officer, so therefore, it's disobeying a lawful command.

MCPL RIVARD: Okay.

CPL PAUL: And I told Tim that, I said, “I'm arresting you for.,” or my exact words were, “I can surmise that I'm arresting you for.”. and touched him on the shoulder, “disobeying a lawful command.” [.]Footnote 96

CPL PAUL: But I was there for the slam of the phone, the yell, “Corporal Hamm,” or “Tim Hamm,” twice anyway very loud. No answer obviously because the phone went crashing down and that was it.

MCPL RIVARD: And again, at no time -

CPL PAUL: I know it's an assumption on my part, but it was clear to me that obviously Tim was not following along with what he said.

CAPT PINEAU: Yeah, yeah.

MCPL RIVARD: Okay.

CPL PAUL: Given the fact that Tim's a corporal and given the fact that Sergeant Rice is a sergeant, obviously, there's a disobeying of something.

CAPT PINEAU: Assuming that it would be lawful.

CPL PAUL: Right, assuming - well I don't know.Footnote 97

Cpl Murray told CFNIS investigators that he was in his office doing paperwork. He heard “Corporal Hamm! Bang!” and WO Rice was “agitated.” He and MCpl Paul came to WO Rice's office. WO Rice's instructions were words to the effect, “Go to Hamm's residence [.] if he doesn't come willingly [...] arrest him and cuff him [...] and bring him back here.Cpl Murray stated that WO Rice gave no reasons for his instructions or the arrest.Footnote 98

The state of mind of the two (2) members as they drove to Cpl Hamm's residence was vividly described by MCpl Paul when he was interviewed by CFNIS investigators:

MCPL RIVARD: So he's given you the order. You and Pierre take off.

CPL PAUL: Uh-huh.

MCPL RIVARD: So you show up at Tim's place. As you are going to Tim's place, are you and Pierre talking about the situation that just happened like right in front or [.]?

CPL PAUL: I think we're in the car and we're pretty well both looking straight ahead going, “Holy fuck.

MCPL RIVARD: Okay.

CAPT PINEAU: You're sort of just in shock.

CPL PAUL: Yeah.

MCPL RIVARD: Well, I can imagine.

CPL PAUL: And that's about it. There was no, okay, what are we going to do, you know, are we going to throw him to the ground -

CAPT PINEAU: And wrestle with him for a while.

CPL PAUL: There was nothing like that at all. There was nothing, you know, Sergeant Rice is being this way or that way or, you know, Tim should have done - there was nothing like that. It was just basically, oh, my God.

MCPL RIVARD: Oh, my God, oh, my God, oh my God.

CPL PAUL: Yeah.

MCPL RIVARD: Yeah.

CPL PAUL: Or, [redacted text]or whatever.

MCPL RIVARD: Yeah, I can understand. Words to that effect, [redacted text], what's going on.

CPL PAUL: Yeah.Footnote 99

(d) Events at Corporal Hamm's Residence

When the members arrived at Cpl Hamm's residence, Cpl Hamm claimed, when interviewed by CFNIS investigators, that MCpl Paul, who did all of the talking, told him:

CPL HAMM: [...] I [.] came downstairs. “What's going on?” Because he had this look on his face. “What's going on?” And he says, “Well, you've got to come to work.” I said, “I'm not coming to work.

CAPT PINEAU: Is this Paul?

CPL HAMM: Paul, yeah. [.]

CPL HAMM: And he tells me, he says, “From Sergeant Rice, I have orders to come here and tell you you're to come to work and if you refuse he's ordered me to arrest you and drag you back in cuffs.Footnote 100

MCpl Paul told CFNIS investigators:

CPL PAUL: I went in the house, I said, “Tim, you kind of think you know why we're here.” “Yeah.” I said, “Well, Sergeant Rice has told me to bring you to his office. If you don't come willingly, I was to arrest you and bring you in handcuffs.” And I said, “I'm not going to throw you in handcuffs.” I said, “Are you going to come with me?” And he basically said, “Well what for?” And I said, “Well, obviously he wants to talk to you about something.” And he goes, “Well, what's he going to arrest me for?” And I said, “Well, he never told me what to arrest you for, but I can surmise that it would be for disobeying a lawful command.” Because I had made that [.] deduction in my head from the conversation I heard.

MCPL RIVARD: Okay.

CPL PAUL: Anyway, he said, “Well, I'm not going willingly. I don't have to go unwillingly. I don't have to go at all. I'm on sick leave and my doctors told me I don't have to go in.Footnote 101

Cpl Hamm telephoned his doctor to inquire whether he was required to go to work while on sick leave. The doctor told him he was not obliged to go in to work. The doctor also spoke with MCpl Paul and told him the same. However, MCpl Paul requested the doctor to produce or cite a regulation that would demonstrate that the sick leave would somehow override or exempt Cpl Hamm from following WO Rice's instruction to return. Dr. Burke did not produce a regulation to MCpl Paul's satisfaction or within a timeframe suitable to MCpl Paul. Cpl Hamm then told MCpl Paul that he would not go in and would follow his doctor's instructions. After waiting for Cpl Hamm's wife to return home from work so she could care for their infant daughter, MCpl Paul placed Cpl Hamm under arrest and read him his Canadian Charter of Rights and Freedoms (Charter)Footnote 102 rights. According to Cpl Hamm, MCpl Paul failed to provide him with the reasons for his arrest. Cpl Hamm was then driven back to the guardhouse. Cpl Hamm stated that he asked the reason for his arrest numerous times at his residence and was told by MCpl Paul either that he did not know the reason or that WO Rice had not provided him a reason. Cpl Hamm's wife told investigators that, when Cpl Hamm was formally arrested, she also asked the Military Police members why Cpl Hamm was being arrested and the officers told her they did not know.

MCpl Paul told CFNIS investigators that Cpl Hamm might have asked why he was being arrested two (2) or three (3) times before his arrest.Footnote 103 On one of those occasions, MCpl Paul stated:

I remember Tim saying, “What am I under arrest for?” And I said, “Well, to be honest with you, Tim, I don't know.” Sergeant Rice never clearly directed, but I surmised that it was for disobeying a lawful command. Footnote 104

In MCpl Paul's handwritten notes regarding the incident, he stated that, when Cpl Hamm asked the reason for his arrest,

I told him, well I guess it would be for disobey a lawful command but I was not sure as Sgt Rice never clarified.

In MCpl Paul's typed report, dated December 14, 2000, he stated that when Cpl Hamm asked what he would be arrested for, MCpl Paul informed him “it was not made apparent to me.Footnote 105 Cpl Hamm then said he was on sick leave and would not go willingly. MCpl Paul then wrote: “At 1030 (sic) hrs, I surmised that WO Rice wanted him arrested for Disobey a Lawful Command and informed Cpl Hamm that he was under arrest [.]”.

MCpl Paul's handwritten notes also claimed that, after his Charter rights were read, Cpl Hamm waived them. Cpl Hamm denied ever waiving his Charter rights.

No report prepared by MCpl Paul mentioned the conversations he or Cpl Hamm had with Dr. Burke at Cpl Hamm's residence. Dr. Burke confirmed having this conversation with MCpl Paul.Footnote 106 However, MCpl Paul acknowledged to CFNIS investigators that he knew all along that Cpl Hamm was on sick leave for [redacted text]:

CPL PAUL: The only reason I knew it was [redacted text]is because Tim told me. I was with him when - well, I wasn't with him when he went to the M.R., but I was in the office with him when he left to the M.R. and came back and said, [redacted text]He had the sick chit in his hand and I said, “Well, make sure you go take it down and drop it off to the bosses.Footnote 107

(e) Return to the Guardhouse

On arrival at the guardhouse, Cpl Hamm was brought before WO Rice. Cpl Hamm refused to respond to WO Rice's directions that he should take a seat or that he should stand at attention. Cpl Hamm stated that he was under arrest and did not have to be there because he was on sick leave. WO Rice recalled Cpl Hamm indicating that he wanted to lay a complaint or speak to a lawyer. Cpl Hamm asked to be told the reason for his arrest. WO Rice claimed he told him the reason was disobeying a lawful command and there was insubordination involved. However, MCpl Paul and Cpl Murray, who were present during this confrontation, recorded that Cpl Hamm asked for a reason but they did not record that any reason was given by WO Rice. MCpl Paul told CFNIS investigators that he did recall that Cpl Hamm told WO Rice that he was out of control and wanted to speak to WO Rice's supervisor. Cpl Hamm, without being dismissed by WO Rice, then headed for the interview room escorted by MCpl Paul. Cpl Hamm remained in the interview room under guard for approximately two (2) hours, until, at approximately 13.00 hours, he was escorted to CWO Gauvin's office.

Petty Officer Second Class (PO2) Kevin O'Sullivan, who was working in the guardhouse at the time, told CFNIS investigators that, immediately before Cpl Hamm left WO Rice's office for the interview room, he heard a one-way conversation mainly consisting of WO Rice screaming and yelling.Footnote 108

(f) Events in Guardhouse Interview Room

In the interview room, Cpl Hamm unsuccessfully attempted to call the Duty Counsel. He left a message for the Duty Counsel to call back and then telephoned his brother, WO Hamm. During the telephone conversation Cpl Hamm claimed, among other things, that he was verbally abused by WO Rice, that he was arrested while on sick leave and that the arresting officers did not know the reason for his arrest. He also stated that WO Rice wanted him in the cells for insubordination. When Cpl Hamm mentioned a possible reason for his arrest, MCpl Paul was heard to correct him and state that the reason was disobeying a lawful command rather than insubordination. The recording of the conversation revealed some confusion on the part of Cpl Hamm as to the exact reason for his arrest. WO Hamm then asked who was the senior Military Police member. He was told it was WO Rice. MCpl Paul then got on the line and said to WO Hamm “This has gone way out of hand.WO Hamm then said to MCpl Paul: “So he has arrested Timmy, that's an unlawful arrest.MCpl Paul replied: “I know that.WO Hamm indicated he was going to brief his commander and ask him to contact Professional Standards. Later, MCpl Paul in his Professional Standards interview stated he went along with WO Hamm that the arrest was unlawful because he was not sure.Footnote 109

It was clear that Cpl Hamm was detained and was not free to leave or move about unescorted throughout this period. Cpl Hamm told Commission Members:

MS DUNBAR: Was there ever a discussion at any point in time about putting you in cells.

CPL HAMM: I believe Corporal Paul told me - I can't say this verbatim -that was the next logical step. What's going to happen now? Are you going to the cells? Here I am, I am on sick leave. I am sitting at home with my kid. He calls me up. He's cursing and swearing at me. I hung up. Then I know, I am arrested. Now what's next? The cells. That's what I was thinking. I think it was Cpl Paul who told me. I said, “What's next? Cells?Footnote 110.

MCpl Paul told the seconded Professional Standards investigator that, when Cpl Hamm was in the interview room, a Duty Counsel finally returned his call. At some point MCpl Paul spoke to the Duty Counsel:

The JAG asked me what the next process was and I said, “Well, I believe that once we're done here, I believe his next post is the cells”. Which is, if that's closed custody, then that's where he's going.Footnote 111

In typed notes made shortly after the events, WO Rice stated that he took a telephone call from Dr. Burke at 11.15 hours. He told Commission Members that this occurred after Cpl Hamm had gone to the interview room. In that telephone conversation, WO Rice was told by Dr. Burke that Cpl Hamm's sick leave was [redacted text]. WO Rice stated that this was the first time he realized that Cpl Hamm's sick leave was [redacted text]. At approximately 13.00 hours, two (2) hours after Cpl Hamm was brought to the guardhouse, in CWO Gauvin's office, WO Rice apologized to Cpl Hamm for tasking him for the deployment. WO Rice stressed that, had [redacted text], he would not have chosen Cpl Hamm to deploy in the first place. He maintained that, after learning of the reasons from Dr. Burke, the main interest of CWO Gauvin and himself became to advance Cpl Hamm's welfare and act in his best interests. Nevertheless, Cpl Hamm was kept in custody in the interview room for approximately two (2) hours until Cpl Hamm was escorted to CWO Gauvin's office. After further discussion in CWO Gauvin's office, Cpl Hamm was released from arrest by CWO Gauvin.

(2) Commission Members' Findings and Recommendations: Issues 1 & 2

(a) Knowledge of the Reasons for Corporal Hamm's Sick Leave

Cpl Hamm was granted seven (7) days sick leave for [redacted text]by Dr. Burke on December 7, 2000. QR&O 16.16, revised August 1998, provides that an officer or non-commissioned member may be granted sick leave not exceeding two (2) continuous calendar days by the member's commanding officer without the recommendation of a medical officer or for up to thirty (30) continuous calendar days by a medical officer. When the change came into effect, a policy statement was issued by DND. It stated, among other things, that concerns within the Chain of Command with individual cases were to be raised with the appropriate medical authorities and not with the individual serving member.Footnote 112 This would appear to include concerns a supervisor may have about the reasons for a member's sick leave.

On December 7, 2000, Cpl Hamm provided a sick leave chit to WO Rice. He told Commission Members that WO Rice asked him to disclose the reason but he refused to do so. Dr. Burke advised Cpl Hamm that there was no obligation to disclose the reason for sick leave to his superiors. Dr. Burke again maintained this position when he telephoned WO Rice on December 12, 2000 at approximately 11.15 hours. Although Cpl Hamm suggested that WO Rice and CWO Gauvin, as Cpl Hamm's superiors, ought to have known his leave was [redacted text], both CWO Gauvin and WO Rice maintained that they did not know.

When WO Rice and CWO Gauvin were deciding who should be selected for the deployment, they considered the sick leave form submitted by Cpl Hamm. They also considered other records that indicated who had already made holiday or other leave commitments over the deployment period. As indicated previously, the sick chits had spaces to allow the doctor to note whether the patient would be required to re-attend for evaluation before returning to work. There were other boxes as well (for example, “light duties”) which, if checked, would have indicated that Cpl Hamm's ability to deploy might be in question. None of these boxes were checked on Cpl Hamm's sick leave form.

In these circumstances it could not be concluded, on a balance of probabilities, that either WO Rice or CWO Gauvin knew that Cpl Hamm's leave was [redacted text].

When WO Rice learned that Cpl Hamm's sick leave was [redacted text], he apologized to Cpl Hamm. This apology was not for the fact that he had ordered Cpl Hamm's arrest but to emphasize that, [redacted text], he would not have chosen Cpl Hamm for the deployment in the first place. The phone call that initiated the chain of events would not have occurred. Nevertheless, according to policy, WO Rice should have raised any concerns about Cpl Hamm's sick leave with the appropriate medical authorities and not with Cpl Hamm directly. WO Rice could have asked Cpl Hamm to identify the doctor who signed the pass and then engage Cpl Hamm's doctor in discussion. Had he done so he would probably have learned enough about the circumstances to have caused him to question the appropriateness of tasking Cpl Hamm for the deployment.

COMMISSION MEMBERS' FINDING # 1:

The Commission Members find that Warrant Officer Rice and Chief Warrant Officer Gauvin did not know that Corporal Hamm's sick leave was [redacted text]when they chose Corporal Hamm to deploy to Inuvik on December 26, 2000. The Commission Members accept Warrant Officer Rice's statement that he would not have called Corporal Hamm on December 12, 2000 if he had known Corporal Hamm's sick leave was [redacted text].

COMMISSION MEMBERS' FINDING # 2:

The Commission Members find that, in light of the information that was available to them, it was reasonable for Warrant Officer Rice and Chief Warrant Officer Gauvin to believe that Corporal Hamm would return to work on December 14, 2000 and would be available to deploy to Inuvik on December 26, 2000.

This public interest investigation revealed concerns that operational and administrative difficulties may arise if supervisors are unable to access even general information about a member's health that may be relevant to their ability to make appropriate duty plans or assignments.

An inability to access such information in some cases appeared to be a matter of general concern of many witnesses interviewed during this public interest investigation. Patients have a right to privacy and confidentiality in relation to their personal medical information and their privacy interests should not be interfered with or diminished without good cause. On the other hand, supervisors of employees also have interests in ensuring that employees are given and can handle appropriate duties. For example, had WO Rice known it was not advisable to contact Cpl Hamm at home, the events of December 12, 2000 would most likely not have taken place.

(b) The Decision to Task Corporal Hamm to Deploy to Inuvik on December 26, 2000

As indicated previously, WO Rice and CWO Gauvin, on examining appropriate records, were pressed to choose and notify seven (7) persons before Base stores closed early for the Christmas holidays. Anyone who was not prepared with the proper cold weather kit at the time of deployment would not have been allowed to deploy. It might then have been necessary to require cancellation of leave already approved for others. They were also required to select the seven (7) persons from personnel located at the 4 Wing, Cold Lake. In the circumstances they had little choice in determining who should deploy.

Further, in the circumstances existing at 4 Wing, Cold Lake on December 12, 2000, it would not have been out of the ordinary for a superior to call a subordinate who was on sick leave to advise the subordinate that he or she was tasked and should prepare to deploy to another location at a later date. The circumstances included:

  1. the reasonable belief of WO Rice that Cpl Hamm would be available to deploy on December 26, 2000 as Cpl Hamm's sick leave, on which no restrictions were noted, indicated that he would be returning to work on December 14, 2000; and
  2. the need for emergency action as described.

The Commission Members accept WO Rice's statement, confirmed by CWO Gauvin, that in the particular circumstances of this case, there was little opportunity to be flexible in choosing who would deploy.

(c) Assessments of Credibility of Warrant Officer Rice and Corporal Hamm

Reference has previously been made to the descriptions, given by various witnesses, of a personality conflict and other factors that affected the interactions between Cpl Hamm and WO Rice. These factors may also have affected their conduct on December 12, 2000. Maj Thobo-Carlsen, the supervisor of both WO Rice and Cpl Hamm, told Commission Members that there was a mutual lack of trustFootnote 113 between Cpl Hamm and WO Rice. Cpl Hamm saw many of WO Rice's actions as bordering on harassment or unfair, while WO Rice saw a need to “straighten out” and impose discipline on Cpl Hamm.

The Commission Members find no substantive evidence to support conclusions, reached in the DPM PS' Letter of Final Disposition addressed to Cpl Hamm, either that Cpl Hamm “manipulated the information to drive events in his favourFootnote 114 or that his “answers and explanations” when interviewed during the Professional Standards investigation cast doubt on his credibility. On the contrary, the seconded Professional Standards investigator himself told Commission Members:

I didn't get the sense that he was lying to me, because a lot of the discrepancies he provided some sort of explanation for.Footnote 115

There was a lack of evidence to support WO Rice's belief, expressed during his Complaints Commission interview, that Cpl Hamm was manipulating events on and after December 12, 2000 and that Cpl Hamm planned everything he did on December 12, 2000.Footnote 116 In assessing the credibility, conduct and recollections of Cpl Hamm some consideration must be given to the fact that, on December 12, 2000, he was on sick leave pursuant to a medical diagnosis of a [redacted text].

Capt Pineau, who conducted the CFNIS investigation, told Commission Members that, in order to assess whether Cpl Hamm was insubordinate during the telephone conversation with WO Rice on December 12, 2000, it was necessary to determine who was telling the truth about what was said. Their investigation could never “get to the bottom” of that issue as it was a he-said vs. he-said situation. However, he believed that, even if Cpl Hamm was insubordinate, the arrest was a more important issue. As he put it, if they were “having a fight on the phone and (Cpl Hamm) hung up, [.] a normal person in a normal frame of mind would not have had the guy arrested.Footnote 117

Some examples of credibility issues arising out of the various interviews given by WO Rice and Cpl Hamm should be noted. WO Rice first denied swearing on the telephone; then came to admit that it might have happened; then claimed that, if he did swear, it was to the disconnected telephone, but not to Cpl Hamm while the phone was connected.Footnote 118 On the other hand, CWO Gauvin, who was otherwise supportive of WO Rice, recalled that WO Rice told him on the day of the arrest that he could have used coarse language during his conversation with Cpl Hamm, “probably the F word.Footnote 119 Another example is the contradiction, through the evidence of MCpl Paul, of WO Rice's assertion that he calmly tried to call Cpl Hamm back a few times before calling for MCpl Paul. This projection of calmness contrasted with MCpl Paul's description of WO Rice slamming down the phone and immediately calling him into his office. As indicated previously, MCpl Paul noted the effect that WO Rice's fury and emotional level may have had on WO Rice's subsequent conduct.Footnote 120.

On the other hand, one could also appreciate, from the telephone conversation and other evidence, the validity of the observation of Sgt Berney that Cpl Hamm and WO Rice interacted like “oil and water” and that Cpl Hamm's manner of speaking to WO Rice:

[...] wasn't insubordinate, but it would be close sometimes and it's just the way or the words he (Cpl Hamm) would choose to answer with. And, especially with Sergeant Rice, you could see the red getting in both of their faces and getting angry on both of their parts.Footnote 121

Thus, the history of conflict between WO Rice and Cpl Hamm, as described by numerous witnesses, likely added to the frustration and contributed to the general escalation of events on December 12, 2000.

Even if Cpl Hamm's evidence is accepted in full, his response to WO Rice's instruction to prepare to deploy to Inuvik was not “Yes sir;” but rather, it was “yes, but.” Why this kind of response was necessary when Cpl Hamm told Commission Members he wanted to go on the deployment is not clear. Cpl Hamm allegedly told WO Rice that he wanted to be back by a certain date because he had child care problems but he told Commission Members that he did not have child care problems and that a reliable babysitter was available. Another example is seen in Cpl Hamm's responses when interviewed by Commission Members regarding his earlier failure to attend RPT. He could not bring himself to admit that he had been ordered to attend even when shown the order on which he signed an acknowledgement. He maintained that the acknowledgement meant he “should have” gone not that he was “ordered” to go.

At one point, Cpl Hamm told the Commission Members that WO Rice, in his office, told him he was under arrest for insubordination. Moments later, in the same interview, he stated he did not recall WO Rice saying he was under arrest for insubordination. He told the Commission Members that WO Rice was “ranting and raving” during the December 12, 2000 telephone conversation but appeared not to believe that his own conduct and responses might have contributed to the escalation of the situation.Footnote 122 Cpl Hamm also admitted that he lied earlier to Sgt Smith about his attendances at RPT.Footnote 123.

On some matters the conflict in evidence is such that Commission Members are unable to determine which version is correct on a balance of probabilities. In assessing the credibility of witnesses for purposes of this public interest investigation, Commission Members have attempted, particularly in relation to the evidence of Cpl Hamm and WO Rice, to assess their interviews and testimony as objectively as possible in light of all of the evidence, both oral and documentary, that has been made available. Applying this approach the Commission Members make the following findings:

COMMISSION MEMBERS' FINDING # 3:

The Commission Members do not accept in its entirety the evidence given by Warrant Officer Rice or Corporal Hamm. In certain areas, their evidence was self-serving or inconsistent to the point that their credibility was questionable.

COMMISSION MEMBERS' FINDING # 4:

The Commission Members find no substantive evidence to support the conclusion reached by the Deputy Provost Marshal Professional Standards that Corporal Hamm manipulated the information to drive events in his favour.

COMMISSION MEMBERS' FINDING # 5:

The Commission Members accept, on a balance of probabilities, Corporal Hamm's statement that he did not refuse outright to go on the deployment. However, the Commission Members also find, on a balance of probabilities, that due to Corporal Hamm's ambiguity in his response, it was not unreasonable for Warrant Officer Rice to form the opinion that Corporal Hamm refused to deploy.

WO Rice claimed that after Cpl Hamm hung up the phone he tried to call Cpl Hamm back several times over a period of about four (4) or five (5) minutes before taking further steps, but the line was busy.Footnote 124 On the other hand, Cpl Hamm maintained his phone was not in use or off the hook after he hung up.Footnote 125 As indicated earlier, MCpl Paul detailed that he heard WO Rice shout during the phone call, slam down the phone, and then yell “that [redacted text]Hamm” and finally yell for MCpl Paul and Cpl Murray to come into his office, all in immediate succession.Footnote 126

COMMISSION MEMBERS' FINDING # 6:

The Commission Members find, on a balance of probabilities, Warrant Officer Rice did not attempt to call Corporal Hamm back after their telephone conversation.

(d) Use of Profanity by Warrant Officer Rice

Cpl Hamm told Commission Members that he hung up the telephone in response to WO Rice's profanity. On the other hand, WO Rice denied that he swore while the phone was connected. WO Rice responded to questioning on this issue by Commission Members as follows:

MEMBER EMOND: Did you raise your voice during that conversation.

WO RICE: Yes, mostly at the tail end of the conversation. I made a comment something to the effect of you have to get your priorities in order, and he was yelling at me.

MEMBER EMOND: Did you curse at him?

WO RICE: No. I believe I may have cursed into the now dead handset as I put it down after being hung up on, but I don't believe that I cursed at him in that conversation. It was not a screaming match back and forth in the sense of-it was loud. I am a loud person. I am aware that when I speak and when I get excited, good, bad or otherwise, I am a boisterous person and my voice carries. So it is possible. There were raised voices in there [.]. When I put the telephone down forcibly into the receiver and said-when I realized I was talking into dead air, was I probably very loud? I probably was.

MS. DUNBAR: What did you say?

WO RICE: I believe it was “Corporal Hamm! Corporal Hamm!” I wasn't sure if I was talking into dead air or if I was talking to the hung up telephone.

Ms. DUNBAR: Were you swearing then?

WO RICE: No, I don't believe that I was. But we are two and a half years later, and I will honestly say I don't know. I do not remember swearing at Corporal Hamm.

MEMBER EMOND: Would it be possible or did you say when you hung up the phone -

WO RICE: I may well have said “Corporal Hamm! Corporal Hamm! Shit.” Or some other thing like that.

MEMBER EMOND: Did you say “that [redacted text]Hamm”?

WO RICE: I don't think so, but it is possible. That is not language that would be out of -

MEMBER EMOND: Out of place.

WO RICE: Out of place for me, given the circumstances that were there. But be aware that I was talking to the hung up telephone at that particular point in time. Footnote 127

Reference has previously been made to MCpl Paul's recollection that WO Rice was “furious” when he slammed down the telephone. The seconded Professional Standards investigator believed MCpl Paul told him that WO Rice swore at the end of his telephone conversation with Cpl Hamm:

MS DUNBAR: Did you ever learn in the investigation whether or not Rice when he was on the phone with Hamm was actually swearing?

SGT DUSSAULT: The only information I have is that the phone was hung up and he said [.]. All they heard was “[redacted text]Hamm.

MS DUNBAR: You heard that from Paul. Is that right?

SGT DUSSAULT: Yes, I think it's one of the members that mentioned that.Footnote 128

CWO Gauvin, when interviewed by Commission Members said that, on his return to the guardhouse on December 12, 2000, he was briefed by WO Rice as to what had happened. He stated:

MEMBER EMOND: Did Sergeant Rice in his briefing to you mention that he could have used coarse language during his conversation with -

CWO GAUVIN: I believe he did, yes.

MEMBER EMOND: Would you know the nature of the -

CWO GAUVIN: No. Probably the “F” word.

MEMBER EMOND: Probably the “F” word.

CWO GAUVIN: Not too many soldiers don't use that word.

MEMBER EMOND: Sergeant Rice mentioned to you having used coarse language.

CWO GAUVIN: I think he said “I may have swore.” But then again, you are asking me about three years ago, a little incident here and there.Footnote 129

A number of members and officers interviewed by Commission Members were of the view that it would be proper for a subordinate to hang up a telephone on a superior who is swearing, and that doing so in such circumstances would not amount to insubordination. CWO Gauvin told Commission Members that he had hung up the telephone on superiors not in his direct Chain of Command who were “in a certain excited state and talking out of turn.” In his view, it might be construed as insubordination, but it was justified. Footnote 130

Another member interviewed by Commission Members, Capt Chiasson, currently Officer Commanding of CFNIS, Central Region, DPM Police, also commented on this issue:

MEMBER SEHEULT: Would you, Captain, feel that you would be justified in hanging up the phone on a superior officer if he was swearing at you or using vulgar language?

CAPT CHIASSON: Justified?

MEMBER SEHEULT: Yes.

CAPT CHIASSON: If he was using vulgar language?

MEMBER SEHEULT: To you.

CAPT CHIASSON: Yes.

MS DUNBAR: Would you consider yourself as being insubordinate?

CAPT CHIASSON: By hanging up the phone, no.

MEMBER SEHEULT: Would you have to say, “Excuse me, I don't accept your conduct” or would you just hang up?

CAPT CHIASSON: I would just hang up.Footnote 131

Capt Pineau, the CFNIS investigator, told Commission Members:

MS DUNBAR: [...] “If” - Sergeant Rice was cursing and swearing on the other end, is it possible that Corporal Hamm was justified in hanging up the phone?

CAPT PINEAU: Yes.

MS DUNBAR: Would that equal insubordination?

CAPT PINEAU: No. If he is at fault and he hung up and Rice didn't deserve it-if it was a normal conversation and Hamm said, “[redacted text], I'm not going”, bang, that's insubordination.

COMMISSION MEMBERS' FINDING # 7:

The Commission Members find, on a balance of probabilities, that Warrant Officer Rice used profanity during his telephone conversation with Corporal Hamm. The Commission Members therefore find that Corporal Hamm was not insubordinate in hanging up the telephone.

(e) Warrant Officer Rice's Rationale for Summoning Corporal Hamm to Attend his Office

Reference has previously been made to WO Rice's explanation that when the telephone conversation ended, he was still unsure whether Cpl Hamm would prepare to deploy and that he wanted to resolve the issue as a priority. He also wanted to deal with what he believed was Cpl Hamm's insubordination.Footnote 132

COMMISSION MEMBERS' FINDING # 8:

The Commission Members accept Warrant Officer Rice's explanation that his purpose in summoning Corporal Hamm to attend his office, after the latter hung up the telephone, was two-fold: (i) to resolve whether Corporal Hamm would prepare to deploy and (ii) to resolve the perceived discipline issue.

(f) Whether Requiring Corporal Hamm to Attend the Military Police Detachment was a Recall to Duty

QR&O subsection 16.01(2) provides that an officer or non-commissioned member on leave may be recalled to duty only: (a) because of imperative military requirements; and (b) when the member's Commanding Officer personally directs the recall.

WO Rice told Commission Members that he did not believe he recalled Cpl Hamm to duty. However, WO Rice stated, on a number of occasions, previously referred to,Footnote 133 that he considered Cpl Hamm was returning to work, at least in part to resolve the matter of his intention to deploy and then to begin his preparations to deploy. WO Rice emphasized that he did not expect Cpl Hamm to be arrested and was surprised when he found out he did not come in voluntarily. WO Rice suggested to Commission Members that his instructions were not a recall to duty because Cpl Hamm had committed service offences and he ordered him to come into his place of work after the grounds for arrest were met. Footnote 134

On November 25, 2002, a Complaints Commission investigator forwarded a written question to WO Rice. He asked WO Rice whether Cpl Hamm's Commanding Officer personally directed his recall. WO Rice responded in the negative, but also suggested that the Commanding Officer would have authorized Cpl Hamm's leave to be cancelled, if required. However, the intention of the regulation is clear. A recall from leave must be personally ordered by the member's Commanding Officer. A belief that a Commanding Officer will issue an appropriate order some time in the future is not sufficient.

While it was perhaps commendable that WO Rice considered an alternative short of arrest as a first option, he ought to have been aware that his instruction or order for Cpl Hamm to attend his office to resolve the deployment issue would require a recall to duty.

COMMISSION MEMBERS' FINDING # 9:

The Commission Members find that the order or instruction by Warrant Officer Rice to come to the guardhouse is separate from the arrest itself. Therefore, although an arrest of a member for a service offence does not constitute a “recall to duty”, the instruction by Warrant Officer Rice to bring Corporal Hamm to the guardhouse was a “recall to duty” within the meaning of Queen's Regulations and Orders section 16.01 and failed to meet the prerequisites of the section. Corporal Hamm's Commanding Officer did not personally direct the recall.

(g) The Source of Warrant Officer Rice's Authority to Arrest Corporal Hamm

WO Rice claimed that he sent MCpl Paul and Cpl Murray to Cpl Hamm's residence to notify Cpl Hamm that he should attend WO Rice's office and also to notify Cpl Hamm that he would be arrested if he refused. MCpl Paul and Cpl Murray felt that it was their duty to obey the order to arrest Cpl Hamm if he refused to attend the guardhouse voluntarily. WO Rice claimed that in giving such an order he was acting as a non-commissioned officer (NCO) carrying out an administrative function and was not acting as a Military Police member effecting an arrest. He made this claim while also asserting that he believed there were grounds to arrest Cpl Hamm for insubordination.

The normal form of arrest when Military Police deal with members of the Canadian Forces and other persons subject to the Code of Service Discipline is defined in section 156 of the NDA. Arrest is a discretionary measure subject to the satisfaction of certain criteria. Any person subject to the Code of Service Discipline who has committed, is found committing, is believed on reasonable grounds to be about to commit or to have committed a service offence or who is charged with having committed a service offence may be arrested by officers and non-commissioned members appointed as Military Police under section 156 of the NDA. Footnote 135

However, sections 154 and 155 of the NDA also provide a power of arrest for all officers and non-commissioned members, including a power to arrest when ordered to do so by officers or non-commissioned members of higher or, in some cases, equal rank. The NDA provides that an officer or non-commissioned member may order an arrest in the circumstances described in section 154 of the NDA.Footnote 136 QR&O section 105.07 provides that “an officer or non-commissioned member who receives an order from a superior officer to effect an arrest shall carry out that order notwithstanding that the member could not have made the arrest on the member's responsibility.Footnote 137 The implication of WO Rice's argument is that once an order to arrest is issued, the person effecting the arrest must obey the order and need not be concerned about the reasons for the arrest or whether it is justified according to normal criteria as long as it is not a “manifestly unlawful” command.

Nevertheless, WO Rice was and is a member of the Military Police who holds Military Police credentials. Military laws, regulations and policies clearly apply to guide and constrain members of the Military Police when they exercise their powers of arrest. Military Police Policies and Technical Procedures state that an arrest is a legal, not an administrative, measure and is to be used only after many factors are considered. The use of the power to arrest to deal with criminal or service offences is an extreme measure of last resort and persons exercising such power must assure themselves that an arrest is warranted and justified in the circumstances. Before the power is exercised, consideration must be given to whether the seriousness of the alleged offence warrants an arrest or whether the public interest may be satisfied without an arrest. When an arrest is carried out, the person arrested must be told the reasons for the arrest in an understandable manner.Footnote 138 The latter requirement is also, of course, set out in paragraph 10(a) of the Charter.Footnote 139 The Charter is the supreme law of Canada and any law, including any military law, that is inconsistent with the provisions of the Charter is, to the extent of the inconsistency, of no force and effect.Footnote 140 Since the enactment of the Charter, case lawFootnote 141 and legislation have emphasized a principle of restraint in using arrest powers and have encouraged peace officers to exercise discretion in favour of not arresting where other alternatives are available.Footnote 142.

In this context, it would be improper to hold the view that once an order to arrest is issued to a member of the Military Police, the member must obey the order and need not be concerned about the reasons for the arrest or whether it is justified. The spirit underlying the law of arrest and the development of the law since the Charter would be disregarded or undermined if members of the Military Police are encouraged, or believe they are entitled, to use alternative, non-discretionary powers and can, thereby, avoid the constitutional, legislative and policy constraints placed on the exercise of the power of arrest by members of the Military Police. That spirit is also disregarded or undermined if members are encouraged to use arrest powers in such a way as to circumvent the need to accord arrested persons the rights to which they would ordinarily be entitled.

Capt Chiasson told Commission Members:

Personally, I don't think they had the grounds to arrest this guy. Because of the fact that Sergeant Rice told them to go and get him, what is the offence? When you arrest somebody, you have to tell them certain things. You have to give them their rights under the Charter, because you are detaining them - you are arresting them - you have to give them their rights to counsel, and the reason they are being detained or the reason they are being arrested. What are they going to give for a reason? Because Sergeant Rice wants to see him? And then he says, “No, I'm not going in.” What offence has he committed? Who was he insubordinate to? The Corporal because he said no? I don't think so.

[.]

[T]o me, they were not acting as NCOs. They were there as Military Police. They went to do a job. Whether or not they were ordered to arrest this individual, they did not have reasonable and probable grounds to arrest this individual and they should not have done that.Footnote 143

COMMISSION MEMBERS' FINDING # 10:

The Commission Members find that Warrant Officer Rice, in ordering Corporal Hamm to be arrested if he refused to come in to the office voluntarily, was acting as a Military Police member and not in his capacity as a non-commissioned officer carrying out an administrative function. A Military Police member ordering or carrying out an arrest must follow the law and policies governing the exercise of Military Police functions and duties.

(h) Was Corporal Hamm's Arrest Necessary?

A number of witnesses told Commission Members that it was their view that the arrest of Cpl Hamm was not necessary in the circumstances.

Maj Thobo-Carlsen said:

MS DUNBAR: I want to confirm in your interview with Elwood Johnston-and we have touched on this already. You said that if you were in the position of Rice, you would not have called Hamm back to the guardhouse on that day and that you would have proceeded later on and considered perhaps administrative action. You did believe it was insubordination, but you would not have proceeded with the measure of arrest.

MAJ THOBO-CARLSEN: Right [.]. Exactly. Like I said before, the school of leadership that I was taught is sometimes it's best to sit back, to put your feet up, not react immediately because there is too much emotion. You have too much tied up in emotions. Wait a couple of hours, sit back and say, “What action should I take now?” That is how I - I hope, anyway - would have reacted.Footnote 144

CWO Gauvin told Commission Members that, although other options might have been available, the fact that WO Rice allegedly attempted to telephone Cpl Hamm back and failed, reflected that WO Rice was trying to immediately resolve his perception that “his authority was jeopardized” and therefore could have felt justified, in his mind, in ordering Cpl Hamm to be brought back to his office. He also stated that insubordination is generally not an offence warranting an arrest and WO Rice's actions were probably not warranted. Footnote 145

However, as previously indicated, Commission Members concluded, on a balance of probabilities, that WO Rice did not attempt to call Cpl Hamm back after their telephone conversation. Capt Pineau responded to Commission Members when asked if it is common to arrest for insubordination:

No, no. You could possibly charge somebody, but you don't need to be arrested to be charged. I could tell you, “I am charging you for insubordination. Get into my office. Expect the paperwork in due course.” You would show up at an orders parade, and they would go through the process, and you would be fined or found not guilty, or whatever. But there is no need to arrest somebody to charge them.

It is the Commission Members' view that WO Rice, [redacted text], clearly failed to consider whether the arrest of Cpl Hamm was necessary. He knew Cpl Hamm was on approved sick leave and would return to work in two (2) days. There was no basis for WO Rice to believe that Cpl Hamm would not have presented himself at work at the conclusion of his sick leave to address any issue that WO Rice believed was outstanding.

QR&O section 105.01 deals with persons subject to arrest. Section 105.01 refers to section 154 of the NDA, which states that every person who is found, or believed to be committing a service offence may be placed under arrest. Note B of QR&O section 105.01 reads:

A person who has been or may be charged need not necessarily be placed or retained under arrest. The circumstances surrounding each case should be considered in order to determine whether arrest is appropriate.Footnote 146

Furthermore, sections 10, 11, 13 and 16 of Chapter 5, Annex C of the Canadian Forces Military Police Policies and Technical Procedures, specify the military procedures for arrest and detention.

The Commission Members find Cpl Hamm's situation was not one that involved the “extraordinary” measure of arrest.

In addition, section 495 of the Criminal Code sets out the powers of a peace officer, while acting in the execution of his duty, to make an arrest without a warrant and further details when a peace officer shall not arrest a person without warrant.Footnote 147

The legislation, QR&O and policies make it very clear that all peace officers must examine whether or not arrest is a necessary measure.

COMMISSION MEMBERS' FINDING # 11:

The Commission Members find that, while insubordination or disobeying a lawful command are arrestable offences under the National Defence Act, in the circumstances of this case the arrest was not necessary nor was it reasonable and proportional to the alleged violation.

COMMISSION MEMBERS' FINDING # 12:

The Commission Members find that Warrant Officer Rice's direction to the arresting officers in relation to Corporal Hamm's arrest failed to follow applicable Military Police Policies and Technical Procedures, namely sections 10, 11, and 16, relating to arrest without a warrant. The Commission Members also find that Warrant Officer Rice should have known of the policy requirements as well as those under section 495 (arrest without a warrant) of the Criminal Code of Canada and section 105.01 of the Queen's Regulations and Orders.

COMMISSION MEMBERS' FINDING # 13:

The Commission Members find that Master Corporal Paul and Corporal Murray in carrying out the arrest of Corporal Hamm failed to follow applicable Military Police Policies and Technical Procedures, namely sections 10, 11, 13 and 16. The Commission Members also find that Master Corporal Paul and Corporal Murray should have known of the policy requirements as well as those under section 495 (arrest without a warrant) of the Criminal Code of Canada.

(i) Exercise of the Discretion to Arrest

O Rice claimed that, because the power to order an arrest under section 155 of the NDA existed, it was an available option that he was entitled to use at his discretion. In his view, MCpl Paul and Cpl Murray had a duty, under QR&O 19.015,Footnote 148 to carry out what WO Rice alleged was a lawful order. In other words, they did not have any discretion to refuse to carry out his order to arrest if Cpl Hamm refused to come to the guardhouse voluntarily, unless it was manifestly unlawful.

However, in maintaining this view, WO Rice failed to advert to developments in the law before December 12, 2000, that required persons with the power to order an arrest under the NDA to also consider whether the exercise of the power to arrest is justified.

In R. v. Gauthier,Footnote 149 the Court Martial Appeal Court, after confirming that section 156 of the NDA confers very broad powers of arrest and detention without warrant on a Military Police member, warned that:

[.] in the realm of arrest and detention, because of the particularly prejudicial nature of these powers to an individual's rights and freedoms, it is not enough that the power exists. The exercise of the power must also be justified in the circumstances.Footnote 150

The Court cited the example of subsection 495(2)Footnote 151 of the Criminal Code, which prohibits the exercise of the power of arrest if the arresting officer believes, on reasonable grounds, that the public interest may be satisfied without an arrest. The implication is obvious: before arresting under the authority of the Criminal Code, the peace officer must consider matters set out in subsection 495(2)Footnote 152 that are relevant to determine whether the exercise of the power to arrest is justified. For example, even if there are grounds for an arrest, the peace officer must still, before exercising the power, question whether there is reason to believe the person will not attend court or that the person will commit another offence if he or she is not arrested.

The Court continued:

With the advent of the Charter and the constitutionalization of the protection against arbitrary arrest and detention, the requirements governing the exercise of the power to arrest which are found in the Criminal Code and surprisingly are not found in the N.D.A. (National Defence Act), except in section 158, where they apply only as criteria for release from custody, have become minimum requirements for the valid exercise of the power of arrest.Footnote 153 (emphasis added)

The Federal Court of Appeal in Du-Lude v. Canada,Footnote 154 a case involving an arrest carried out in similar circumstances to those of Cpl Hamm's arrest,Footnote 155 extended the principle in Gauthier to “ordered” arrests pursuant to section 154 and 156 of the NDA. These were the sections of the NDA which WO Rice claimed were the source of his authority to order the arrest of Cpl Hamm. The Court held that even when effecting an “ordered” arrest, the Military Police members were not performing a duty imposed by law but were actually exercising a discretionary power of arrest mentioned in sections 154 and 156 of the NDA. The Court also held, that even though a lack of approval from the Commanding Officer was an important factor in determining whether Du-Lude committed an offence against section 90 of the NDA (absent without authority), this could not, by itself, justify the use made of the power of arrest. The Court considered whether the arrest or detention was justified in the circumstances and stated that “the existence of a power of arrest must not be confused with its exerciseFootnote 156 (emphasis added). The Court further stated that in this case, even if the Commanding Officer who ordered the arrest believed Du-Lude committed a service offence, this could not in itself justify the use of the power to arrest:

[The] use of the power of arrest was in my opinion nothing less than an unlawful exercise of the discretionary power conferred by ss. 154 and 156 of the Act: it was nothing but a demonstration of authority and force which was as futile as it was unjustified. Consequently, the arrest and the use of force and detention that followed were unlawful and unjustified.Footnote 157 (emphasis added).

As the Court in Gauthier stated, the minimum requirement to justify the exercise of the power is a prior determination that the criteria set out in subsection 495(2) of the Criminal Code have been satisfied. A peace officer shall not arrest if the public interest may be satisfied without an arrest. The public interest may be satisfied without an arrest:

The Military Police member must consider whether these conditions are satisfied. If they are not, the power to arrest should not be exercised, even by a Military Police member who has been ordered to effect an arrest.

COMMISSION MEMBERS' FINDING # 14:

The Commission Members find that Warrant Officer Rice did not properly exercise his discretion to order an arrest. Warrant Officer Rice failed to take into consideration existing law requiring a distinction to be drawn between the power to arrest and its exercise and he failed to consider whether, in the circumstances, the arrest of Corporal Hamm was necessary, justified in the public interest or proportional to the alleged violation..

The Commission Members recognize as the Court did in Du-Lude, that even though the arrest was not necessary in the public interest in this particular case, that:

There is no doubt, in view of the Armed Forces' mission, that the public interest may, for example, in wartime or in peacekeeping or peace-restoring missions, or in training periods for such missions, justify the arrest without warrant of a soldier who fails to be present at his place of duty or remain there. Such conduct may be much more than a breach of discipline; it may threaten the military objectives and safety of property or of other civilian or military personnel. In saying that, I do not in any way suggest that military objectives or operations cannot be threatened or affected by such conduct in peacetime or that it may not then be permissible, even essential, to use the power of arrest [.].Footnote 158

(j) Duty of Master Corporal Paul and Corporal Murray to Carry out Warrant Officer Rice's Instruction

The DPM PS' Letters of Final Disposition, paragraph 2(c)(1), found that MCpl Paul and Cpl Murray were ordered to go to Cpl Hamm's residence and

[...] convey the order to appear before WO Rice. It was understood by the two MP that if Cpl Hamm refused, he was to be arrested.

The letters then stated that, under QR&O section 105.07, both members had the duty to carry out the order given by WO Rice. However, MCpl Paul and Cpl Murray both stated that they were never told why WO Rice wanted to see Cpl Hamm. They were simply told to go to Cpl Hamm's residence and tell him to attend the guardhouse to see WO Rice and if he refused to come voluntarily they were to arrest Cpl Hamm.

Even with an explicit order to arrest Cpl Hamm, MCpl Paul and Cpl Murray had a duty, before exercising the power to arrest, to determine whether the arrest was justified. The Commission Members find that they clearly failed to consider whether the arrest was justified.

COMMISSION MEMBERS' FINDING # 15:

The Commission Members find that Master Corporal Paul and Corporal Murray, even though they were ordered to arrest Corporal Hamm, failed to exercise their discretionary powers of arrest as required of them as Military Police. As such, they failed to consider the distinction that must be drawn between a power to arrest and its exercise and they failed to consider whether, in the circumstances, the arrest was necessary, justified in the public interest or proportional to the alleged violation.

(k) Failure to Disclose Reasons for the Arrest to the Arresting Officers

(i) The Effect on the Arresting Officers' Understanding

As previously indicated, WO Rice told Commission Members that he did not tell MCpl Paul and Cpl Murray why he wanted to see Cpl Hamm when he sent them to Cpl Hamm's residence. The details of the telephone conversation remained between himself and Cpl Hamm.Footnote 159 He believed that he told MCpl Paul and Cpl Murray why they were to arrest Cpl Hamm if he refused to come in voluntarily (disobedience of a lawful command), but he was not certain if he mentioned insubordination. However, MCpl Paul told CFNIS investigators that WO Rice never clearly indicated why he wanted to see Cpl Hamm or what Cpl Hamm was to be arrested for.Footnote 160 It is therefore likely that MCpl Paul told Cpl Hamm, at some point, that WO Rice wanted him to come in to work, as Cpl Hamm claimed. MCpl Paul, at one point, admitted that he said work but did not mean it literally.Footnote 161 He was also, at best, put into the position of having to “surmise” that the reason for Cpl Hamm's arrest was disobeying a lawful command. MCpl Paul appeared to be confused as to whether Cpl Hamm's disobedience arose out of his refusal to go to the office willingly or because of something he said during his telephone conversation with WO Rice. MCpl Paul also stated that he had no idea whether WO Rice's order to Cpl Hamm was lawful or not.Footnote 162 Cpl Murray could not recall WO Rice having given any reason at all for his instructions.

MCpl Paul and Cpl Murray failed to confirm with WO Rice either the reason why WO Rice wanted to see Cpl Hamm or the reason for the arrest of Cpl Hamm should it have become necessary. MCpl Paul did not feel it appropriate to raise any questions in light of WO Rice's emotional state at the time.Footnote 163

As such, WO Rice did not provide sufficient information to MCpl Paul and Cpl Murray to enable them to form the reasonable and probable grounds required to effect a lawful arrest.

(ii) Effect on What Corporal Hamm was Told

When Cpl Hamm asked MCpl Paul the reason for the arrest, the answers of MCpl Paul ranged from “I don't know,” to “no idea,” to “guess,” to “not sure as WO Rice never clarified” to “I surmise it might be [...]” to “it was not made apparent to me.Footnote 164 Cpl Murray's notes suggest that there was one simple act of placing Cpl Hamm under arrest and that Cpl Hamm was told a clear answer at that time. Yet, the variations in MCpl Paul's versions appeared in his notes and subsequent reports. MCpl Paul was also heard agreeing with WO Hamm, during their brief recorded conversation in the interview room, that the arrest was unlawful.

At the other end of the spectrum, the evidence indicated that one of the first things Cpl Hamm did when he was brought to the guardhouse was ask WO Rice why he was arrested. Even here, MCpl Paul and Cpl Murray have different recollections. MCpl Paul's notes record Cpl Hamm asking but suggest that WO Rice's only response was to direct Cpl Hamm to stand to attention. Cpl Murray also recorded that Cpl Hamm asked the reason but his notes say he did not hear the answer. Even Cpl Hamm stated, at one point, that WO Rice told him he was arrested for insubordination and at another point that he did not hear WO Rice say that. However, in the interview room, Cpl Hamm said, while talking to WO Hamm, that WO Rice “wanted him in the cells for insubordination.Footnote 165 It will be recalled that Cpl Hamm also asserted that the first time he was told a reason for his arrest was in the interview room.

Adding to the confusion over what Cpl Hamm might have understood is a sequence recorded during the interview room conversation. MCpl Paul was heard telling Cpl Hamm that he was arrested for disobeying a lawful command. Cpl Hamm's first reaction was to assume this referred to his refusal to stand at attention. Then MCpl Paul clarified that this referred to his failure to come willingly with him to the office.

The Professional Standards investigation concluded that MCpl Paul told Cpl Hamm, at his residence, that he was under arrest for disobeying a lawful command. The seconded Professional Standards investigator speculated that, when MCpl Paul said he did not know why he was arresting Cpl Hamm, he really meant he did not know why WO Rice wanted to see Cpl Hamm. The seconded Professional Standards investigator in his investigation report further suggested that Cpl Hamm somehow used the ignorance of MCpl Paul and Cpl Murray to “drive events in his favour” by continually asking why he was arrested. The fact that Cpl Hamm asked WO Rice why he was arrested was also seen in this light or as evidence that Cpl Hamm was “pushing the envelope.

Contrary to the DPM PS position, Commission Members find that it was essential, in order to conclude that the arrest was lawful, for Cpl Hamm to have been told why WO Rice wanted to see him. WO Rice gave conflicting and inconsistent rationales for the instructions he gave to MCpl Paul and Cpl Murray. This context could reasonably support a conclusion that Cpl Hamm was simply not told the reason for his arrest in a meaningful and understandable way as is required by the Charter, the law and Military Policy and Technical Procedures.

Even if it is determined that Cpl Hamm was told that the reason for his arrest was “disobey lawful command,” this does not conclude the matter. As MCpl Paul and WO Rice said there was confusion in their minds as to what the lawful command was. If one accepts MCpl Paul's notes, one could conclude that Cpl Hamm was not given an answer even when he asked WO Rice.

COMMISSION MEMBERS' FINDING # 16:

The Commission Members find that Warrant Officer Rice did not provide sufficient information to Master Corporal Paul and Corporal Murray to enable them to form the reasonable and probable grounds required to effect a lawful arrest.

COMMISSION MEMBERS' FINDING # 17:

The Commission Members find that Master Corporal Paul and Corporal Murray failed to confirm either the reason why Warrant Officer Rice wanted to see Corporal Hamm or the reason for the arrest before leaving the guardhouse for Corporal Hamm's residence. This lack of information prevented them from properly informing Corporal Hamm of the reasons for his arrest.

(l) Duty of Master Corporal Paul and Corporal Murray to Clarify Warrant Officer Rice's Instructions

It is evident confusion existed in the minds of both MCpl Paul and Cpl Murray as to what they had been instructed to do and what they were to tell Cpl Hamm. They were not told why WO Rice wanted to see Cpl Hamm and therefore did not have reasonable and probable grounds to arrest Cpl Hamm when he refused to proceed voluntarily to the Detachment. MCpl Paul told investigators that he felt it was inappropriate to question WO Rice because of WO Rice's “excitement level” at the time.

However, as the arresting officers, MCpl Paul and Cpl Murray had a duty to inform themselves to the extent that they could form the reasonable and probable grounds for the arrest. Failing to ask questions of WO Hamm resulted in their being incapable of forming the reasonable and probable grounds for the arrest which is a legal requirement imposed on them as peace officers.

The Supreme Court of Canada in R. v. StorreyFootnote 166 in considering what constitutes reasonable and probable grounds for a proper arrest without a warrant stated:

[.] In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest.

[.] In summary, then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.Footnote 167

The Supreme Court in the subsequent case of R. v. FeeneyFootnote 168 held that the absence of either objective or subjective grounds to believe that the accused committed the offence renders the arrest unlawful.

In the case of O'Hara v. Chief Constable of the Royal Ulster Constabulary,Footnote 169 an English case decided by the House of Lords, the Court had to determine whether a police officer who had effected an arrest as per the instructions of a superior officer had reasonable grounds to do so. The Court found that the need for “reasonable grounds to believe” permits an arresting officer to arrest a person on the basis of hearsay information received from another person, as for example, on “instructions from a superior officer”. However, the arresting officer must receive sufficient information from the other person so as to personally and independently have the subjective belief and objective grounds necessary to constitute reasonable grounds to arrest at the time of arrest. The Court also implied that the arresting officer is the officer who actually effects the arrest, and not the superior officer who gives the instructions.

COMMISSION MEMBERS' FINDING # 18:

The Commission Members find that Master Corporal Paul and Corporal Murray should have sought more information as it was their duty as the arresting officers to form the reasonable and probable grounds to arrest. As they lacked such grounds, the arrest of Corporal Hamm was unlawful.

(m) A Section 9 Charter Analysis: Arbitrary Detention

The Commission Members further examined if, in addition to being unlawful, the arrest/detention was arbitrary as per section 9 of the Charter.Footnote 170 According to prominent lawyer and author Eugene Meehan, Q.C.,Footnote 171 there is no clear authority from the Supreme Court of Canada as to the broad meaning and interpretation of arbitrariness. Some provincial appellate courts have defined it as a detention which is “capricious, despotic or unjustifiable”.Footnote 172 The lawfulness of the detention is a relevant factor but “unlawful” does not necessarily mean “arbitrary”. Therefore, in determining whether a detention is arbitrary, it is helpful to consider whether the detention was authorized by law. Also, the issue of whether an accused is arbitrarily detained depends on: (1) the particular facts of the case; and (2) the view taken by the court with respect to the extent of the departure from the standard of reasonable and probable grounds, and the honesty of the belief and the basis for the belief in the existence of reasonable and probable grounds on the part of the person making the arrest.Footnote 173 While not all unlawful detentions are necessarily arbitrary, the absence of lawful authority for a detention is at least strongly suggestive of arbitrariness.Footnote 174.

In Regina v. Duguay, Murphy and Sevigny [Duguay]Footnote 175 the court said:

It cannot be that every unlawful arrest necessarily falls within the words 'arbitrarily detained'. The grounds upon which an arrest was made may fall ‘just short’ of constituting reasonable and probable cause. The person making the arrest may honestly, though mistakenly, believe that reasonable and probable grounds for the arrest exist and there may be some basis for that belief. In those circumstances the arrest, though subsequently found to be unlawful, could not be said to be capricious or arbitrary. On the other hand, the entire absence of reasonable and probable grounds for the arrest could support an inference that no reasonable person could have genuinely believed that such grounds existed. In such cases, the conclusion would be that the person arrested was arbitrarily detained. Between these two ends of the spectrum, shading from white to grey to black, the issue of whether an accused was arbitrarily detained will depend, basically, on two considerations: first, the particular facts of the case, and secondly, the view taken by the court with respect to the extent of the departure from the standard of reasonable and probable grounds and the honesty of the belief and basis for the belief in the existence of reasonable and probable grounds on the part of the person making the arrest.Footnote 176 (emphasis added)

Following the criteria set out in Duguay, the Commission Members find the unlawful arrest of Cpl Hamm to be arbitrary. The Commission Members find that MCpl Paul and Cpl Murray did not formulate the reasonable and probable grounds for arrest nor were they close to formulating such grounds considering their lack of information on the reasons or motives for the arrest.

The Commission Members find MCpl Paul and Cpl Murray are on the side of the spectrum described by the Court in Duguay where “no reasonable person could have genuinely believed that [the reasonable and probable grounds for arrest] existed”.Footnote 177

Even though MCpl Paul and Cpl Murray could attempt to justify their actions with section 105.07Footnote 178 of the QR&O stating that they were acting under the orders of their superior officer, the Federal Court of Appeal has established in Du-Lude v. CanadaFootnote 179 where four (4) officers (two (2) military and two (2) civilian) were sent to arrest a member of the Canadian Forces for a service offence, that even though these officers were acting under the orders of their superior officer “[t]hese officers were not performing a duty imposed by law [.] but were actually exercising the discretionary power of arrest mentioned in ss. 154 and 156 of the Act.Footnote 180

Accordingly, even though the Commission Members recognize that there are mitigating factors, such as the confusion that may have existed in relation to the arrest and the applicability of section 105.07 of the QR&O, as well as the military culture of following orders, the Commission Members find that the section 9 Charter breach is established.

Once an action is found to have violated a Charter right, a section 1 Charter analysis must be done. Section 1 of the Charter reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The words “prescribed by law” make clear that an act that is not legally authorized can never be justified under section 1, no matter how reasonable or demonstrably justified it may appear to be. Charter violations that take place on the initiative of a police officer, acting without clear legal authority, are outside the protection of section 1.Footnote 181

(n) The Charter Right to be Informed Promptly of the Reasons for Arrest

Paragraph 10(a) of the Charter sets out the right of anyone who is arrested or detained to be promptly provided with the reasons for the arrest or detention. Footnote 182

When Cpl Hamm asked to be advised of the reason for his arrest, MCpl Paul told him he had “no idea” and “He never told me what to arrest you for.MCpl Paul did not tell Cpl Hamm that WO Rice had “orderedCpl Hamm to come to the office because, as he stated, WO Rice did not tell him to say that to Cpl Hamm. If MCpl Paul told Cpl Hamm that the order from WO Rice was to bring Cpl Hamm to “work,” (as MCpl Paul conceded to the seconded Professional Standards investigator he might have said), it was arguable that, being on sick leave, Cpl Hamm could reasonably have believed it was a manifestly unlawful order as it did not come personally from his Commanding Officer. The same line of reasoning could apply even if MCpl Paul did not use the word “work” as it could reasonably have been concluded by Cpl Hamm, in all of the circumstances, that he was being recalled to duty.

The Supreme Court of Canada has stated that one purpose of the section 10(a) Charter right of a person arrested to be informed promptly of the reasons for the arrest is to ensure that the detainee or person arrested is provided with sufficient information to permit him or her to make a reasonable decision to decline to submit to the arrest, or alternatively to decide whether or not to exercise the right to counsel. Footnote 183 MCpl Paul could not provide Cpl Hamm with basic information that could have enabled this condition to be satisfied.

Cpl Hamm's arrest was made at his place of residence, without a warrant. Cpl Hamm had to ask the arresting officers to read him his rights Footnote 184 and he was not immediately informe.

of the reasons for his arrest, contrary to section 10(a) of the Charter, section 105.08 Footnote 185 of the QR&O and section 29(2) Footnote 186 of the Criminal Code.

The same section 1 Charter analysis that was done in relation to section 9 of the Charter must be done here. Again, the words “prescribed by law” make clear that an act that is not legally authorized can never be justified under section 1, no matter how reasonable or demonstrably justified it may appear to be. Charter violations that take place on the initiative of a police officer, acting without clear legal authority, are outside the protection of section 1. Footnote 187

The fact that the arresting officers did not inform Cpl Hamm of the reasons for his arrest is not “prescribed by law” as it was not legally authorized. Therefore, the Commission Members are of the view that the 10(a) Charter violation can not be justified under section 1 of the Charter.

COMMISSION MEMBERS' FINDING # 20:

The Commission Members find that Corporal Hamm was not promptly informed of the reasons for his arrest which was in violation of paragraph 10(a) of the Canadian Charter of Rights and Freedoms. Accordingly, the Commission Members find that the arrest of Corporal Hamm was unlawful.

(o) Necessity for Corporal Hamm to be Told Why Warrant Officer Rice Wanted to See Him

Officers and non-commissioned members of the CF must obey lawful commands and orders of superior officers. An officer or non-commissioned member is not justified in obeying a command or order that is manifestly unlawful. A manifestly unlawful command or order is one that would appear to a person of ordinary sense and understanding to be clearly illegal. Footnote 188 In order for the recipient of the command to be able to determine whether it is manifestly unlawful, the recipient should be provided with some basic information about its content and purpose.

In this case, in order to make a determination whether WO Rice's order for him to attend the guardhouse was manifestly unlawful, Cpl Hamm was entitled to some basic information. For example, if the order was a recall to duty because its purpose, as WO Rice characterized it, was to resolve whether Cpl Hamm would prepare to deploy, then Cpl Hamm is assumed to be aware of QR&O section 16.01 which requires that an order to recall him to duty from leave must be made personally by Cpl Hamm's Commanding Officer. It might, therefore, have been open to Cpl Hamm to conclude that the order was manifestly unlawful and in breach of the Regulation on its face. However, even this basic information was not imparted to Cpl Hamm because, as WO Rice himself stated, MCpl Paul and Cpl Murray did not know and were not told the reason. MCpl Paul himself stated that he did not know if what WO Rice wanted or had asked Cpl Hamm to do was lawful. Footnote 189

As also noted previously, the Supreme Court of Canada has stated that one purpose of the section 10(a) Charter right is to ensure that the detainee is provided with sufficient information to permit him to make a reasonable decision to decline to submit to the arrest. In other words, the detainee must be able to assess whether it is lawful.

COMMISSION MEMBERS' FINDING # 21:

The Commission Members find that Corporal Hamm had a right to make an informed determination whether the order given by Warrant Officer Rice was manifestly unlawful. It was therefore essential for Corporal Hamm, who pursuant to Queen's Regulations and Orders, section 19.015, note “C”, could disobey a manifestly unlawful command, to be told why Warrant Officer Rice wanted Corporal Hamm to attend his office.

(p) Deputy Provost Marshal Professional Standards' Finding that Warrant Officer Rice Acted Within his Authority and Responsibilities

In the DPM PS' Letter of Final Disposition addressed to WO Rice dated May 2, 2002, the DPM PS found the allegation that WO Rice may have abused his authority Footnote 190 when, without lawful authority, he ordered the arrest of Cpl Hamm, was not supported. Paragraph 2.a.(9) of the report stated:

While Sgt Rice acted within his authority and responsibilities, the fact that his course of action was chosen [redacted text]only served to inflame the situation. A different approach could have resolved the matter in a more appropriate fashion which would have negated the requirement for the arrest.

COMMISSION MEMBERS' FINDING # 22:

The Commission Members find that Warrant Officer Rice acted beyond the scope of his authority and responsibility in the circumstances. It is therefore the Commission Members' finding that Warrant Officer Rice abused his authority.

(q) Alternative Approaches That Warrant Officer Rice Might Have Considered

Commission Members heard from many witnesses of their belief that the course of arrest that was taken was inappropriate and unnecessary in the circumstances, particularly having regard to WO Rice's emotional state that was well documented through the recollections of a number of witnesses. Even WO Rice has conceded that it would have been better if he had at least waited and consulted with CWO Gauvin before taking further action.

COMMISSION MEMBERS' FINDING # 23:

The Commission Members concur with the conclusion of the Deputy Provost Marshal Professional Standards that the fact that Warrant Officer Rice's course of action was chosen [redacted text]only served to inflame the situation. A different approach could have resolved the matter in a more appropriate fashion.

(r) Duty of Master Corporal Paul to Advise Warrant Officer Rice of Information Received from Dr. Burke on December 12, 2000

Soon after MCpl Paul and Cpl Murray arrived at Cpl Hamm's residence, Cpl Hamm advised them that his doctor had told him he did not have to go in to work. MCpl Paul spoke to the doctor and was told the same thing. MCpl Paul demanded to be cited a regulation that would exempt Cpl Hamm from being required to attend the Detachment as per WO Rice's orders. Cpl Hamm was arrested when Dr. Burke could not produce a regulation within a timeframe suitable to MCpl Paul.

MCpl Paul knew all along that Cpl Hamm's sick leave was [redacted text]because Cpl Hamm had told him on December 7, 2000 when he received his sick leave pass from Dr. Burke. Footnote 191 Therefore, when MCpl Paul received WO Rice's instructions on December 12, 2000, MCpl Paul knew Cpl Hamm's sick leave was [redacted text]. However, given that MCpl Paul obtained this personal information about Cpl Hamm in confidence, the Commission Members find no fault can be attributed to MCpl Paul for not mentioning this to WO Rice at the stage of receiving WO Rice's instructions.

Despite this, MCpl Paul had a minimum of two (2) opportunities to advise WO Rice that Cpl Hamm's leave was [redacted text]: (i) at Cpl Hamm's residence after talking to Dr. Burke; and (ii) in WO Rice's office when WO Rice confronted Cpl Hamm in his presence. In these instances, MCpl Paul had received the information from Dr. Burke so there should not have been any concerns of releasing the medical information transmitted by Dr. Burke.

WO Rice stated that he would not have tasked Cpl Hamm for the deployment if he had known Cpl Hamm was on [redacted text]. Therefore, he would likely not have proceeded with the arrest if he had been advised of Cpl Hamm's sick leave status.

In his interview, MWO MacFarlane, the DPM PS-4 (MWO In Charge of Professional Standards), told Mr. Elwood Johnston, Complaints Commission investigator:

I quite agree with you that is an important point. If that information (of whether Cpl Hamm's leave was [redacted text]) would have been secured it does cast a different light on the situation and I would suggest to you if that information was ascertained at the scene then those Cpls. had the responsibility to relay that information back to the chain of command. I quite agree with you, for me as their supervisor I would be quite upset, because now I have the information and can make a logical decision. All indications and the information that I am aware of that did not occur. Footnote 192

While MWO MacFarlane was focusing on what MCpl Paul might have been told by Dr. Burke, MCpl Paul in fact knew all along that Cpl Hamm's leave was [redacted text].

Maj Thobo-Carlsen, asked by Commission Members about MCpl Paul's actions after he spoke to Dr. Burke at Cpl Hamm's residence stated:

MEMBER EMOND: Again that would have changed the whole scenario if Sergeant Rice had been informed of that.

MAJOR THOBO-CARLSEN: Exactly, yes. One would have hoped that that kind of information could have been transmitted back to Sergeant Rice so he could evaluate his original order, definitely. Footnote 193

COMMISSION MEMBERS' FINDING # 24:

The Commission Members find that Master Corporal Paul had a minimum of two (2) opportunities to advise Warrant Officer Rice that Corporal Hamm's leave was [redacted text]: (i) at Corporal Hamm's residence after talking to Doctor Burke and (ii) in Warrant Officer Rice's office when Warrant Officer Rice confronted Corporal Hamm in Master Corporal Paul's presence.

COMMISSION MEMBERS' FINDING # 25:

The Commission Members find that once Master Corporal Paul spoke to Doctor Burke at Corporal Hamm's residence, he should have advised Warrant Officer Rice that Corporal Hamm was [redacted text]or that questions had been raised about his sick leave status, in order to obtain confirmation that the arrest was still warranted.

(s) Master Corporal Paul's Note-Taking

MCpl Paul failed to record, in his notes, his conversation with Dr. Burke and the reason Cpl Hamm gave at his residence for refusing to go willingly to WO Rice's office, although the reason given by Cpl Hamm at the guardhouse was noted in a later typed report. Certain details recorded in MCpl Paul's handwritten notes conflicted with details in his subsequent reports. The records were inconsistent in relation to certain actions and statements such as the reasons for the arrest disclosed to Cpl Hamm. One entry, that Cpl Hamm waived his Charter rights at his residence, was incorrect according to Cpl Hamm. These actions failed to meet the standards of good police practice.

The seconded Professional Standards investigator questioned MCpl Paul about his conversation with Dr. Burke at Cpl Hamm's residence but did not question his failure to mention the conversation in his handwritten notes or in his subsequent reports. Instead, the report suggested that MCpl Paul's notes were in order, observing only that what was set out in MCpl Paul's handwritten notes was consistent with what he said in the interview. This was true because MCpl Paul was neither asked about, nor asked to explain, the omissions or contradictions in his notes.

The report stated, without referring to omissions in the notes:

Investigator's Note: MCpl. Paul's notes on the incident of December 12, 2000 were reviewed and are kept on file in DPM PS. The content of the notes was consistent with his statements he made to CFNIS and to me. Footnote 194

The Professional Standards investigation report stated, in relation to MCpl Paul's interview, “during his conversation with Dr. Burke there was no mention of [redacted text].Footnote 195 However, no mention was made in the Professional Standards investigation report of the fact that the investigator listened to MCpl Paul's interview by the CFNIS investigators and, in so doing, must have learned that MCpl Paul admitted that he knew all along that Cpl Hamm's leave was [redacted text]Footnote 196, or of the fact that MCpl Paul had omitted to mention his conversation with Dr. Burke in his notes.

The Police Policy Bulletin dealing with notebooks and note-taking procedure, dated January 1998, issued under the authority of the CDS, was signed by the CFPM. The 4 Wing, Cold Lake WSAMP O received the Bulletin. Its purpose is stated to be to provide direction in the critical aspect of Military Police note-taking. It stresses the importance of taking notes “which completely detail an incident.” Military Police are directed that entries must be clear, concise and understandable. They are to ensure that each entry can be fully explained, including its significance.

In addition, Military Police Policies and Technical Procedures, Chapter 7, Annex “A” entitled “Investigation Aid: MP Note Taking,” defines Military Police practices with respect to note-taking. It states that taking detailed and comprehensive notes is essential. This is in line with best practices and procedures of other police organisations. All Military Police personnel must strive to produce the highest quality police notes.

The Policy states that, in order to determine the relevance of information, the Military Police must be conversant with what information is required in the performance of any particular policing function. For example, the Military Police must know the law and the elements in proving a particular offence and/or the procedures involved in a particular investigative technique. It is incumbent upon all Military Police personnel to become cognizant of this type of information. It further states:

a good rule to adopt is the procedure of reviewing the notebook entry and asking the question, “Has every bit of relevant information been obtained?” before closing off an entry [.].

COMMISSION MEMBERS' FINDING # 26:

The Commission Members find that the notes and records of the incident made by Master Corporal Paul were deficient and not in accordance with best police practices. The failure of Master Corporal Paul to record the fact or details of his conversation with Doctor Burke in his notes or in any subsequent reports was a serious error.

(3) Commission Members' Recommendations: Issues 1 & 2

Military Police Policy and Technical Procedures, Chapter 3, “MP Professional Code of Conduct and MP Credentials Review Board,” sections 3 and 4 provide:

  1. General: A high level of professional conduct is expected of all MP members in the execution of their law enforcement duties. These standards are reflected in the Military Professional Code of Conduct (Code):
  2. Expectation: Public confidence in the administration of justice and law enforcement may be eroded by misconduct, inappropriate exercise of authority, or failure to properly exercise police authority. As such, MP members are subject to a separate and higher standard of professional conduct than for other members of the Canadian Forces. Good judgement, prudence and courtesy are also essential elements of the conduct expected of a MP member.

Education and training are at the core of the recommendations relating to issues one (1) and two (2). MCpl Paul in his Professional Standards interview indicated that he had only conducted five (5) previous arrests. Footnote 197 Accordingly, the Commission Members note that a lack of experience may have been a contributing factor on the day of Cpl Hamm's arrest.

COMMISSION MEMBERS' RECOMMENDATION # 1:

The Commission Members recommend that in order to ensure high police standards, Military Police members be trained to understand, respect and fully protect the rights of individuals as well as the law governing the exercise of powers of arrest.

COMMISSION MEMBERS' RECOMMENDATION # 2:

The Commission Members recommend that Warrant Officer Rice receive, if he has not already, instructions on the elements and requirements for a proper arrest and the rights of suspects who are subjected to an arrest.

COMMISSION MEMBERS' RECOMMENDATION # 3:

The Commission Members recommend that the Canadian Forces Provost Marshal impose corrective measures on Warrant Officer Rice for abuse of authority.

COMMISSION MEMBERS' RECOMMENDATION # 4:

The Commission Members recommend that Warrant Officer Rice be given additional management training.

COMMISSION MEMBERS' RECOMMENDATION # 5:

The Commission Members recommend that additional training be provided to Master Corporal Paul and Corporal Murray on Military Police powers of arrest, the law and Military Police Policies governing the exercise of powers of arrest and note-taking.

COMMISSION MEMBERS' RECOMMENDATION # 6:

The Commission Members recommend that the Canadian Forces Provost Marshal impose corrective measures on Master Corporal Paul and Corporal Murray for the unlawful arrest of Corporal Hamm in failing to form the reasonable and probable grounds prior to the arrest and for violating Corporal Hamm's section 10(a) Charter right by not promptly informing him of the reason for his arrest.

B. ISSUE 3: WAS THE RELEASE FROM ARREST BY CHIEF WARRANT OFFICER GAUVIN PROPER AND LAWFUL?

Table of Contents

B. Issue 3 : Was the Release from Arrest by Chief Warrant Officer Pierre Gauvin Proper and Lawful?

  1. Commission Members' Finding and Recommendations: Issue 3

(1) Commission Members' Findings and Recommendations: Issue 3

At approximately 13.00 hours on December 12, 2000, CWO Gauvin asked for Cpl Hamm to be brought to his office. WO Rice, who was also present, did little talking.

At the end of the conversation, CWO Gauvin released Cpl Hamm from arrest and instructed a member to accompany Cpl Hamm to his residence.

The DPM PS concluded that, by virtue of QR&O section 105.12 (Release of Arrested Person Unless Conditions Necessary For Retention In Custody Are Met), MCpl Paul should have released Cpl Hamm rather than CWO Gauvin. Section 158(1) of the NDA and QR&O section 105.12 make it clear that it must be the arresting officer who releases the individual under arrest. QR&O section 105.12 and section 158(1) of the NDA state, in part, “A person arrested under this Act shall, as soon as practicable, be released from custody by the person making the arrest [...].” The DPM PS directed that CWO Gauvin be advised of the requirements for the release of arrested persons be carried out.

COMMISSION MEMBERS' FINDING # 27:

The Commission Members find that Chief Warrant Officer Gauvin did not have the authority to release Corporal Hamm. His releasing Corporal Hamm was not in accordance with the principles of subsection 158(1) of the National Defence Act and Queen's Regulations and Orders section 105.12. Chief Warrant Officer Gauvin should have called on the arresting officer, Master Corporal Paul, to release Corporal Hamm from arrest.


COMMISSION MEMBERS' FINDING # 28:

The Commission Members find that the measure taken to advise Chief Warrant Officer Gauvin of the requirements for the release of arrested persons, pursuant to the direction in the Deputy Provost Marshal Professional Standards' Letter of Final Disposition, was appropriate and sufficient in the circumstances.

C. ISSUE 4: DID CHIEF WARRANT OFFICER GAUVIN ATTEMPT TO DETER CORPORAL HAMM, IN HIS OFFICE ON DECEMBER 12, 2000, THROUGH THE USE OF INTIMIDATION OR OTHERWISE, FROM MAKING A COMPLAINT IN REGARDS TO HIS ARREST?

Table of Contents

C. Issue 4: Did Chief Warrant Officer Gauvin Attempt to Deter Corporal Hamm, in his Office on December 12, 2000, through the Use of Intimidation or Otherwise, from Making a Complaint in Regards to his Arrest?

  1. Commission Members' Findings and Recommendations: Issue 4

(1) Commission Members' Findings and Recommendations: Issue 4

In his initial e-mail to CWO Galway on the morning of December 13, 2000, WO Hamm raised the possibility that an attempt might have been made to intimidate Cpl Hamm or to discourage him from lodging a formal complaint at a meeting that occurred in CWO Gauvin's office on the day of the arrest. The Professional Standards investigation arising out of WO Hamm's complaint was tasked to examine whether CWO Gauvin “[...] may have intimidated or attempted to intimidate Cpl Hamm who complained about the conduct of the MPs who ordered and effected his arrest.Footnote 198.

Cpl Hamm told the Complaints Commission that he found certain actions and statements of CWO Gauvin during their meeting in CWO Gauvin's office on December 12, 2000, to be intimidating and that they caused him to fear reprisals. He believed that he was being given a message that CWO Gauvin wanted to keep the issue “in-house.” The actions and statements of concern allegedly included:

  1. CWO Gauvin's move to “unarrestCpl Hamm;
  2. he wagged his finger at Cpl Hamm and stated “I'm the chief and you are a corporal. How far do you want to push this?”; and
  3. he told Cpl Hamm that if he wanted to complain he would do so through CWO Gauvin.

CWO Gauvin told Commission Members that his purpose at the meeting was to find out what had happened from Cpl Hamm, possibly to get Cpl Hamm to apologize to WO Rice for his behaviour and then move on. He agreed that he told Cpl Hamm, “I de-arrest you” but this was done in order to de-escalate the situation. He stated that he probably told

Cpl Hamm that he wanted to deal with the matter right away and probably used the words “in-house.CWO Gauvin also conceded that some language that he used might have been inappropriate. However, he maintained that he did not mean to intimidate or deter Cpl Hamm from making a complaint. CWO Gauvin also conceded that he probably did make the comment, “I am the chief and you are a corporal” but he did not recall saying “How far do you want to push this?” By this, he only meant that he was the disciplinarian and was trying to bring the matter back down to a level where it could be discussed. He agreed that perhaps, in retrospect, the words did not have to be used. However, CWO Gauvin emphasized that everything, including the “de-arresting” and his comments, were all done in an effort to diffuse the situation.

The DPM PS' Letter of Final Disposition addressed to CWO Gauvin noted that CWO Gauvin played a minor role in the incident and that his approach to the situation after being briefed by WO Rice was reasonable. As a superior to both WO Rice and Cpl Hamm it was appropriate for CWO Gauvin to have both of them explain the reasons for their respective behaviour. The DPM PS found that there was no substantiation, in either the Professional Standards or the CFNIS investigations, of the allegation that CWO Gauvin may have intimidated or attempted to intimidate Cpl Hamm.

Although there are differences in detail, some words or gestures on the part of CWO Gauvin were capable of being viewed as intimidating by someone who was subordinate in rank and, for other reasons, already under considerable stress.

CWO Gauvin stated that he released Cpl Hamm in an attempt to diffuse the situation. Although Cpl Hamm believed this represented an attempt to intimidate him, on a balance of probabilities, the Commission Members cannot conclude that CWO Gauvin intended to intimidate Cpl Hamm.

COMMISSION MEMBERS' FINDING # 29:

The Commission Members find that, considering all of the circumstances, including the fact that Corporal Hamm was under stress and had just been arrested by his peers, Chief Warrant Officer Gauvin's comments and actions during the encounter in his office could well have caused Corporal Hamm to feel intimidated. However, the Commission Members could not find, on a balance of probabilities, that Chief Warrant Officer Gauvin attempted or intended to intimidate Corporal Hamm from complaining further.


COMMISSION MEMBERS' FINDING # 30:

The Commission Members find that Chief Warrant Officer Gauvin should have used more appropriate language and his comments reflected poor police practice and management.

D. ISSUE 5: ARE THE RIGHTS OF COMPLAINANTS BEING NEGATED DUE TO A LACK OF ADHERENCE TO PART IV OF THE NATIONAL DEFENCE ACT, THROUGH THE INTERNAL CLASSIFICATION OF COMPLAINTS?

Table of Contents

D. Issue 5: Are the Rights of Complaints Being Negated Due to a Lack of Adherence to Part IV of the National Defence Act, through the Internal Classification of Complaints?

  1. Commission Members' Finding and Recommendations: Issue 5
    1. The “Internal” Classification of Warrant Officer Hamm's Complaint
    2. Potential Effects of the Internal Designation on the Rights of Complaints and Subjects of Complaints

(1) Commission Members' Findings and Recommendations: Issue 5

(a) The “Internal” Classification of Warrant Officer Hamm's Complaint

On January 3, 2001, the DPM PS, LCol Carey, signed a memorandum to WO Bureau, advising that the file dealing with alleged breaches of the Military Police Professional Code of Conduct on the part of MCpl Paul, Cpl Murray, WO Rice and CWO Gauvin regarding the arrest of Cpl Hamm was being held “in abeyance.” This was stated to be an “internal dealing.

On September 4, 2001, the Complaints Commission first learned of the conduct complaint of WO Hamm dated December 14, 2000. The Complaints Commission received a letter dated August 30, 2001 from Supt Grabb, OC CFNIS SI, in which he formally requested that the Complaints Commission conduct “a complete review of the complaint, investigation and issues” incidental to its investigation of WO Hamm's complaint.

Subsection 250.21(2) of the NDA stipulates that the person receiving a conduct complaint must ensure that notice of the complaint is sent “as soon as practicable” to the Chairperson and to the CFPM. Accordingly, on November 9, 2001, the Chairperson wrote to the DPM PS, LCol Carey regarding the failure to notify the Complaints Commission of WO Hamm's complaint and the related investigations that had been conducted or were contemplated in relation to WO Hamm's complaint.

The Chairperson pointed out that a complaint of unlawful arrest by members of the Military Police is an obvious conduct complaint falling within the definition of subsection 250.18(1) of the NDA. Accordingly, the Chairperson should have been notified shortly following the receipt of WO Hamm's complaint at the office of the DPM PS in December 2000. The Chairperson asked the DPM PS, LCol Carey, to explain why the legislative requirements were not followed and expressed concern that the failure to deliver appropriate notices might indicate that the complaint was going to be handled as an “internal” investigation. In this instance the complaint would not have been investigated and monitored by the Complaints Commission had it not been brought independently to the Complaints Commission's attention.

The initial set of documentation received included a copy of the Chairperson's letter. On this copy, the DPM PS, LCol Carey, had written a note to “MWO” on November 14, 2001, asking that a letter be drafted to the Complaints Commission outlining that an acknowledgement letter was sent to subjects and the complainant the previous December when the complaint was received and that notification of Complaints Commission was omitted in error. The notation concluded “Leave it at that.” In a further letter dated November 15, 2001, the DPM PS, LCol Carey, apologized:

[.] for the “oversight” of not including the MPCC (Complaints Commission) on the distribution list of this Professional Standards Case File. I can assure you that the matters brought forward by WO Hamm with regard to the MP Conduct are being investigated by this office under the noted file. The professional standards investigator is Sergeant Claude Dussault, a seconded member to Professional Standards from the RCMP. Any future correspondence will include the MPCC within the distribution list.

One of the documents enclosed with the LCol Carey's letter of November 15, 2001 was headed: “(RESUME Invest Ltr to All)” and referenced file DPM PS 2120-2-3/TD 088-00, the file number of the Professional Standards investigation of WO Hamm's complaint. It notified the subject members and complainant of the completion of the CFNIS investigation and the resumption of the Professional Standards investigation with regard to the allegations in the original complaint. The heading again referred to “Professional Standards Internal Investigation.”.

On December 3, 2001, the Chairperson again wrote to the DPM PS, LCol Carey, asking for an explanation of the “internal” classification.

On December 17, 2002 Complaints Commission investigator Mr. Elwood Johnston interviewed MWO MacFarlane. He commented on the heading “internal investigations.” He stated that, generally, if a complaint emanates from the Military Police section, for example, the Chain of Command, then it is classified as “internal”. If it is a public complaint, the Complaints Commission gets it immediately. He indicated that this is an interpretation by the DPM PS depending on the circumstances of each case and the practice would continue. If the DPM PS feels that the Complaints Commission should be involved or advised concerning an “internal” investigation, then a letter would be sent. MWO MacFarlane did indicate that the Complaints Commission would continue to get all public complaints on a routine basis.

However, the comments of MWO MacFarlane do not explain the basis for withholding notification to the Complaints Commission of this conduct complaint when the NDA clearly requires that the Complaints Commission must be notified of all conduct complaints. Conduct complaints are not restricted to complaints filed by the general public as opposed to CF members, Military Police members or DND personnel. Section 250.18(l) of the NDA states “Any person” may make a complaint about the conduct of a member of the Military Police.

In a letter to the Chairperson dated January 10, 2002, the DPM PS, LCol Carey, responded to the Chairperson's letter of December 3, 2001 by stating that the “internal investigation caption [.] was done so in error and has since been rectified.” In addition, the DPM PS, LCol Carey, explained to the Complaints Commission's Executive Director, Mr. Robert A. MacDougall, that the same investigators are tasked to investigate internal complaints and public complaints. Further, LCol Carey, DPM PS, explained that at the time WO Hamm made his complaint, the automatic macro pop-up screen to categorize complaints was set at “internal investigation”. In order for a complaint to be listed as a “public complaint” in the DPM PS system, the macro had to be manually changed. The Complaints Commission has no knowledge of what, if any, changes have been made to rectify the situation for future cases.

On January 22, 2003, Tom Pedersen, the Complaints Commission's Director of Operations, interviewed MWO Rutter (retired) by telephone. He had signed the original Professional Standards tasking order dated December 14, 2000, headed “internal” investigation. MWO Rutter stated that complaints could be classified in the automated system used by Professional Standards as either “internal”, “public”, or “informal resolution”. He also stated that, because the DPM PS, LCol Carey, signed the letter dated December 15, 2000 advising the subject members of the Professional Standards investigation, she was likely responsible for the “internal” classification. He believed that, because these were early days in handling these types of complaints, the classification was an error. MWO Rutter had no personal recollection of the classification of this particular complaint.

COMMISSION MEMBERS' FINDING # 31:

The Commission Members find that Chief Warrant Officer Gauvin should have used more appropriate language and his comments reflected poor police practice and management.


COMMISSION MEMBERS' FINDING # 32:

The Commission Members find, on a balance of probabilities, that the “internal” designation was an error as there is no clear evidence to the contrary.

(b) Potential Effects of the “Internal” Designation on the Rights of Complainants and Subjects of Complaints

Section 250.21 of the NDA, which sets out who is to be notified of a conduct complaint, does not contemplate the potential effect of a classification error. The Complaints Commission should be immediately notified of all conduct complaints relating to the carrying out of policing duties or functions and governed by Part IV of the NDA, regardless of the source. If conduct complaints, brought to the attention of the CFPM either through the Military Police Chain of Command or through any other source, are classified as “internal” the complainant may never be notified of the right to have their conduct complaint reviewed by the Complaints Commission and thus may be unable to exercise that right. The complainant and subject of complaint may also lose the right to have the complaint monitored at all stages by the Complaints Commission. The complainant and subject of complaint may also lose their potential right to have the complaint investigated by the Complaints Commission as a public interest investigation and/or hearing.

COMMISSION MEMBERS' FINDING # 33:

The Commission Members find that errors in classifying complaints as “internal” rather than Part IV conduct complaints have the potential effect of nullifying important statutory rights of complainants and subjects of complaints.


COMMISSION MEMBERS' RECOMMENDATION # 7:

The Commission Members recommend that the Canadian Forces Provost Marshal implement safeguards to ensure that the improper classification and handling of complaints will not reoccur. The Canadian Forces Provost Marshal should advise the Complaints Commission of the safeguards instituted to protect complainants' rights in this regard and of the procedures for classifying complaints.

E. ISSUE 6: DID THE DEPUTY PROVOST MARSHAL PROFESSIONAL STANDARDS PROPERLY HANDLE WARRANT OFFICER HAMM'S COMPLAINT - WERE CORPORAL HAMM AND WARRANT OFFICER HAMM TREATED FAIRLY AFTER THE LATTER FILED HIS COMPLAINT?

Table of Contents

E. Issue 6: Did the Deputy Provost Marshal Professional Standards Properly Handle Warrant Officer Hamm's Complaint?

Were Corporal Hamm and Warrant Officer Hamm Treated fairly After The Latter Filed his Complaint?

  1. Commission Members' Finding and Recommendations: Issue 6

    1. The Investigation by the Canadian Forces National Investigation Service
    2. The Professional Standards Investigation
    3. The Deputy Provost Marshal Professional Standards' Handling of Warrant Officer Hamm's Complaint: The Investigation Process
    4. The Deputy Provost Marshal Professional Standards' Handling of Warrant Officer Hamm's Complaint; the Deputy Provost Marshal Professional Standards' Findings

      1. Commission of Service Offence by Corporal Hamm
      2. Allegation that Corporal Hamm Misled Warrant Officer Hamm
    5. Was Warrant Officer Hamm Treated Fairly After He Filed His Complaint?

      1. Conditions for Filing and Duty to Complain
      2. Disclosure by Warrant Officer Hamm of his Concerns to the Chain of Command
      3. Warrant Officer Hamm's Counselling
    6. Was Corporal Hamm Treated Fairly After Warrant Officer Hamm Filed His Complaint?

      1. Reason for Corporal Hamm's Suspension
      2. Identification of Contradictory Reason for the Suspension of Corporal Hamm's Credentials

(1) Commission Members' Findings and Recommendations: Issue 6

(a) The Investigation by the Canadian Forces National Investigation Services

The handling of the CFNIS investigation was not listed as one (1) of the six (6) issues under investigation during this public interest investigation. Despite this, the CFNIS investigation was thoroughly reviewed in the course of this public interest investigation by the Complaints Commission and, therefore, the Commission Members felt it important to make a few comments. The Commission Members are of the opinion that the CFNIS investigators, Capt Pineau and MCpl Rivard, carried out a fair and professional investigation. The Commission Members had no major concerns about the investigation and were content with the handling of the CFNIS investigation.

(b) The Professional Standards Investigation

The DPM PS tasked an investigation into WO Hamm's complaint on December 14, 2000, soon after receiving notice of the complaint. The basic issue was stated to be whether any of the four (4) subject members, CWO Gauvin, WO Rice, MCpl Paul or Cpl Murray, violated the Military Police Professional Code of Conduct or any Military Police Policies and Technical Procedures. The investigation was held in abeyance for a number of months pending the CFNIS investigation. WO Rice was later acquitted of the one charge recommended in the CFNIS investigation report.

The Professional Standards investigation resumed on October 31, 2001. The investigation was completed and a report provided to the DPM PS on February 21, 2002. The DPM PS sent Letters of Final Disposition to the four (4) subject members, WO Hamm and Cpl Hamm. As previously indicated, the Professional Standards investigation was conducted by Sgt Dussault, an RCMP member seconded to DND. The investigation was, at all times, according to the secondment agreement, “[...] under the direction, control, supervision and instruction of the DPM PS.Footnote 199.

The office of the DPM PS tasked and advised the investigator and ultimately reviewed and acted on the investigator's report. Many of the statements and conclusions in the investigation report were incorporated verbatim into the DPM PS' Letters of Final Disposition. Sgt Dussault confirmed to Commission Members that he consulted with and reported to both LCol Carey, the DPM PS and MWO MacFarlane, the Master Warrant Officer In Charge of Professional Standards Investigations, during his investigation of WO Hamm's complaint.

The seconded Professional Standards investigator appears not to have submitted an investigation plan for approval even though he was tasked to do so. The seconded Professional Standards investigator told Commission Members that his point of contact as the investigation progressed was MWO MacFarlane. However, the content and direction of the investigation was, in essence, left to his discretion. He told Commission Members:

Basically, they give me the investigation and I run with it. If I have any questions, I know my limitations, so I go out and I seek the information. I will ask for counsel if I need it for guidance, but generally I do the investigation, I submit the report, I would discuss the findings, and if something happens in mid stream yes, there could be a conversation. But there was no specific direction given. Footnote 200

He also told Commission Members that legal advice or opinions were not sought on any issue during the investigation. Footnote 201

The seconded Professional Standards investigator told Commission Members that, as a result of listening to the CFNIS interview tapes and before interviewing any witnesses, he concluded that it appeared as if Cpl Hamm had committed service offences in connection with the December 12, 2000 incident. He also knew of Maj Thobo-Carlsen's view that the CFNIS investigation had not “reflected” or “coveredCpl Hamm's offences:

One of the things that I realized when I reviewed the tape was that NIS had all of the information at hand, and the conclusions - One of the points was that their role was supposed to be to investigate what happened from Corporal Hamm's perspective, Sergeant Rice, Corporal Murray and Corporal Paul, which meant that if there - that was my understanding - if there were any malfeasance on the part of Corporal Hamm, it should have surfaced in the investigation and been part of their report. I also knew that when the NIS investigators met with the Major - and I forget his name - at Cold Lake there was an understanding that they would investigate all of the people involved, including Corporal Hamm - the comments of Corporal Hamm. When I read their final report, it appeared to me that Corporal Hamm's behaviour had not been covered, or wasn't reflected in the report. Yet when I reviewed all of the tapes, all the information was there. Everything was there. There were several situations where Corporal Hamm clearly breached the Code - committed service offences under the National Defence Act, yet nothing was said. Footnote 202 .

Sgt Dussault also told Commission Members that his approach to the investigation was to gather all the information, then ask Cpl Hamm for “clarifications” of “discrepancies” between what other persons, including the named subject members of the investigation, said. He determined that, in order to do this, he would interview Cpl Hamm last:

[.] The information that I gathered that I would put on paper would certainly not be flattering to him. So in fairness to him, I think it was fair to put all the information to him and say, “Here it is. What do you have to say? What happened?” And that's what I did. In order to do that, I had to do that once I was finished. Footnote 203

MS DUNBAR: Would you agree with me that generally that's the type of approach that you would use for a member who is having to face allegations and have an opportunity to respond to those as somewhat of a last word? [.]

SGT DUSSAULT: My problem was that I knew by the time I would write the report I would need to highlight the fact that, yes, in fact there were service offences committed by-it would appear. I am not the one that decides. It would appear based on the information, that Corporal Hamm may have committed service offences. Footnote 204

At another point he also told Commission Members:

MS DUNBAR: When did the red flag start going up in your mind [.] “Okay, Corporal Hamm may have committed some service offences?” When did that start happening in the investigation? Was it before the interview of Corporal Hamm?

SGT DUSSAULT: Oh, yes, it was before the interview of Corporal Hamm, absolutely. Footnote 205

The seconded Professional Standards investigator, after first reviewing the CFNIS investigation and witness interviews, scheduled interviews of Cold Lake personnel for the last week of November 2001. He interviewed WO Hamm on November 16, 2001. During that interview, Sgt Dussault told WO Hamm that he had concerns that Cpl Hamm had not given his brother “a clear picture of what happened.WO Hamm emphasized to Sgt Dussault that he was not saying that the things he complained about were true only that they were concerns and should be looked at. Sgt Dussault then raised with WO Hamm the matter of a February 19, 2001 press release in which Cpl Hamm was quoted as providing an interview regarding his arrest. WO Hamm disclosed to Sgt Dussault what he knew about Cpl Hamm's involvement with the press release. When the interview ended, the seconded Professional Standards investigator had some questions that he wanted clarified by the DPM PS. The next day, November 17, 2001, he met with the DPM PS, LCol Carey, and asked her for her permission to contact the journalist. Sgt Dussault told Commission Members that the DPM PS, LCol Carey, told him:

No, leave it be. Cover that in your report that there's the whole issue of the publication of the article and the involvement of Corporal Hamm. Don't contact the journalist.” I said, Okay, that's fine. Footnote 206

[...] This is when she pulled out the memo and that's when I became cognizant of the fact the OC of Cold Lake, MP detachment, when he perused the NIS report, was dissatisfied because Cpl. Hamm had not been dealt with in that investigation. So they sent a memo requesting NIS to investigate the alleged offence under the National Defence Act, service offences. Footnote 207

Thus, on November 17, 2001, prior to any interviews of Cold Lake personnel or of Cpl Hamm, the seconded Professional Standards investigator was made aware, by the DPM PS, of Maj Thobo-Carlsen's letter dated August 3, 2001, in which he alleged and sought an investigation of his allegations, that Cpl Hamm committed service offences, in particular:

Cpl Hamm gave his opinion to the Edmonton Sun newspaper on a question that was under consideration by military authorities (both DPM PS and CFNIS), and his opinion was subsequently published in that newspaper on February 19, 2001, contrary to QR&O 19.14, QR&O 19.36(2)(d)(f) and (e) and QR&O 19.375. Neither the undersigned nor the Wing Public Affairs Officer knew of or properly sanctioned his media interview.

The seconded Professional Standards investigator was also instructed by the DPM PS to cover and report on, without full investigation, Cpl Hamm's involvement in the press contact in his report.

The seconded Professional Standards investigator further concluded, as a result of his consideration of the CFNIS material and before interviewing any witnesses in connection with his own investigation, that there was reason to question Cpl Hamm's credibility and that Cpl Hamm had “manipulated information.

He told Commission Members:

MS DUNBAR: Did you hear any initial thoughts or opinions that Corporal Hamm might have been playing the system or he was a manipulator? Did you hear those types of opinions early on in the investigation?

SGT DUSSAULT: No, but that came clear to me at the outset, once I started listening to the tapes.

MS DUNBAR: In what way did it become clear.

SGT DUSSAULT: You just listen to the tapes and then you understand - on the issue of the allegation that Mr. Gauvin had manipulated witnesses, that on the second summary trial he had contacted the individuals and that he had directed Sergeant Smith to ensure to do a better job, that he had showed some lacking in his first testimony, an on and on. Then, when you listen to the tape, that is not what happened. It was sheer manipulation of information. Footnote 208

What the seconded Professional Standards investigator described as “sheer manipulation of information” had been assessed in the CFNIS investigation as a mistaken conclusion by Cpl Hamm of certain information that was capable of being interpreted differently. They did not find that Cpl Hamm had lied about his impressions or manipulated information. The CFNIS investigation report stated:

He perceived there to be differences in the testimony of Sgt SMITH and WO LEWIS from the first Summary Trial to the Second Summary Trial. He also stated that CWO GAUVIN, prior to his second summary trial, had commented that “his (Sgt SMITH's) testimony would be better this time.” This led him to believe that CWO GAUVIN may have influenced WO LEWIS's and Sgt SMITH's testimony in that it was not as favourable as he felt it should be. Footnote 209

Notwithstanding conclusions about Cpl Hamm's credibility and culpability and the approach he was adopting in carrying out the investigation, the seconded Professional Standards investigator told Commission Members that he never considered either Cpl Hamm or WO Hamm to be subject members of the investigation. Footnote 210

Nevertheless, the seconded Professional Standards investigator told Commission Members that he personally had concerns that his investigation of the four (4) named subject members would find that Cpl Hamm, who was not a named subject member, had committed service offences. His report recommended that Cpl Hamm's apparent breaches “should be investigated in a separate file.Sgt Dussault elaborated to Commission Members:

My problem was that I knew by the time I would write the report that I would need to highlight the fact that, yes, in fact there were service offences committed by-it would appear. I am not the one that decides. It would appear, based on the information, that Corporal Hamm may have committed service offences. I wasn't comfortable with that. It would have been preferable at one point for me ideally if I had put the information in the report and somebody would have turned around and read the information and said, “Okay, we are going to give this to a second investigator.” That was my recommendation in the report. In my report I did state that. I said the apparent breaches of discipline, whatever, should be investigated in a separate file. Footnote 211

The Professional Standards investigation report, at paragraph 31, also criticized the CFNIS investigation for its failure to consider Cpl Hamm as a subject member in a separate investigation or as a subject member in their then current investigation. In Sgt Dussault's view, it should have become apparent to the CFNIS investigators that Cpl Hamm had committed service offences.

The seconded Professional Standards investigator told Commission Members that he raised concerns about the matter with the DPM PS, LCol Carey, when he found out that Cpl Hamm's credentials were suspended after the Professional Standards investigation. He was concerned that Cpl Hamm's interview may have been used as a basis for Cpl Hamm's suspension after having been told that his interview would not be used against him.

When I heard he was suspended, I went back to Pete Footnote 212 and I said, “You know he was a witness in my case.” I even went to Colonel Carey and she said, “Pete had told me about it. I understand what you are saying, but the decision to suspend Corporal Hamm was not based on your interview. It was based on the information provided by all the other parties. Just relax. It wasn't your interview of the information you got from Corporal Hamm-it's the information you gathered or NIS gathered [...]” So I said, okay, fine. Footnote 213

However, the seconded Professional Standards investigator was ambiguous as to whether he advised his supervisors of his concerns:

MS DUNBAR: So why didn't you go to Carey or MacFarlane at that point and consider making him a subject of the complaint, or put forward these concerns that you have expressed to Carey, but much later on?

SGT DUSSAULT: I may have. I may have and maybe I didn't. I don't remember. That could have been a good idea. Footnote 214

Notwithstanding the instructions he received or the opinions he developed as the investigation progressed, including the fact that Cpl Hamm's possible commission of service offences was raised in his mind before he interviewed Cpl Hamm, neither he nor the DPM PS took steps at any time to designate or treat either Cpl Hamm or WO Hamm as a subject member of the current investigation or to commence a new investigation with either as a subject member. The seconded Professional Standards investigator appreciated that the designation of Cpl Hamm as a subject member of the investigation could have affected his rights:

MS DUNBAR: In fairness to Cpl Hamm-in retrospect [.] had he been considered a subject of a complaint, you would have read the subject member preamble. In fact, he could have objected to answering any questions at all.

SGT DUSSAULT: I understand that, and that would have been available to him, but you would need to assess how much of the decision to suspend him relied solely on my interview. That was the point that I put across to Lieutenant-Colonel Carey, and she said all of the information was already there [...] from other sources. Footnote 215

The seconded Professional Standards investigator was concerned enough about the situation that he attempted, during the course of his interview of Cpl Hamm, to assure Cpl Hamm that although he was interviewed as a witness, the interview would not be used against him, a protection ordinarily offered to subject members.

Section 8 of the Military Police Professional Code of Conduct provides that the subject of a Military Police Professional Code of Conduct investigation may refuse to answer questions. Annex “C” to Chapter 13 of the Military Police Policies and Technical Procedures relating to “Conduct and Interference Complaints Against and by the MP,” sets out the form of preamble to be acknowledged and signed by a witness in a Professional Standards investigation. The wording of Annex “C” was specifically set out in the Professional Standards tasking instructions of WO Hamm's complaint. The witness is told that the interview is in support of a Military Police Professional Conduct of Conduct investigation and that any statement made or information provided may be used for subsequent administrative proceedings. Annex “D” sets out the Professional Standards Investigation Preamble to be acknowledged and signed by a subject member of the investigation. It adds the following disclaimer to the witness preamble that the subject member must read and acknowledge:

  1. I understand that I am giving this statement to a person in authority;
  2. I understand that this statement is given in response to a conduct complaint against me.
  3. I also understand that this statement shall not be used for any disciplinary or criminal proceedings against me other than any proceedings that may be taken against me for having given an answer or made a statement herein knowing it to be false.

When interviewing Cpl Hamm the seconded Professional Standards investigator, in the presence of Cpl Hamm, first noted that he served him with the witness preamble. He then added a rendition of the third matter, set out above, that would ordinarily be acknowledged by a subject member of the investigation:

SGT DUSSAULT: One thing I didn't mention, that this interview cannot be used against you. Okay?

CPL HAMM: Okay.

SGT DUSSAULT: However, unless, naturally, if there is-if something turns out to be a lie, then that portion could be used against you.

CPL HAMM: Okay. Footnote 216

Paragraph 24 of the Professional Standards investigation report noted that, in addition to the wording of the Witness Statement Preamble, Cpl Hamm was advised that the interview would not be used against him unless he provided information knowing that it was untrue. It should be noted that the Commission Members received a copy of all signed witness statement forms in the course of the public interest investigation, with the exception of Cpl Hamm's statement form. The seconded Professional Standards investigator advised the Commission Members that he was unable to locate the form. In addition, paragraph 32 of the Professional Standards investigation report stated:

Cpl HAMM was interviewed as a witness and provided with the assurance that his statement would not be used against him. Footnote 217

Sgt Dussault told Commission Members:

I remember, he told me, he said, “I'm the last one. I guess you have already made up your mind.” I said, just wait a minute, and we went into that.

But it was clearly on my mind, and if I went the extra mile to tell him, even though he was officially a witness-that I would have spoken to him about the matter which is written in the subject member-it is a clear indication that I had some concerns about it and I wanted it to reassure him that the information he was going to give me would not be used against him. Footnote 218

Sgt Dussault explained that he did take the matter up with MWO MacFarlane:

SGT DUSSAULT: [.] I reassured him by telling him that “Tim, you are a witness. Anything that you say will not be used administratively or criminally against you, unless you lie”. [.]

MS DUNBAR: I don't want to put words in your mouth, but were you doing that, essentially, to provide him with some protection that would be given to a subject member?

SGT DUSSAULT: Yes, that's a fair statement. I was concerned because I knew that by the time I got to Tim the report would not be flattering to him. There were a lot of gaps that he had, and I intended to ask him for clarification. And I already knew the answers. You don't have to be a genius. You read everything that was given to me, or what the NIS had - I already had the answers. I knew that there would be issues that could fall back on his shoulders. But he was a witness, he wasn't a subject, so I tried to reassure him that “You are a witness.” That's why I went to the extent of going to MacFarlane and personally going to the colonel and saying, “Hey, are you aware of this?Footnote 219

Operating within this framework, the seconded Professional Standards investigator's approach was to wait until the end of the investigation to interview Cpl Hamm and then require him to explain “discrepancies” between his version of events and those of other witnesses, including the named subjects members. This is an approach normally adopted when dealing with the subject member of an investigation, and the opposite when dealing with the complainant.

Except for the seconded Professional Standards investigator, members interviewed who had extensive experience in conducting investigations told Commission Members that the normal sequence in an investigation is to interview the complainant first and the subject of the complaint last and that this is the sequence that investigators are normally trained to follow. Footnote 220.

Both the Professional Standards investigation report and the DPM PS' Letter of Final Disposition addressed to Cpl Hamm stated that during his Professional Standards interview he was confronted with several contradictions in his account and that his answers and explanations raised doubt in the investigator's mind as to his credibility. In fact, the response of Cpl Hamm that caused concern about his credibility was his claim that he was telling the truth:

I confronted Cpl HAMM with the fact that his version of events was quite different from the account I got from the other members interviewed. Given the discrepancies and his admission that he lied to Sgt SMITH, I expressed my view that his version of events was not reliable. He retorted that he was willing to take a polygraph test anytime and that he was telling the truth. Footnote 221

(c) The Deputy Provost Marshal Professional Standards' Handling of Warrant Officer Hamm's Complaint: The Investigation Process

Section 8 of the Military Police Professional Code of Conduct provides that the subject of a Military Police Professional Code of Conduct investigation may refuse to answer questions. Section 39 of Chapter 13 of the Military Police Policies and Technical Procedures relating to “Conduct and Interference Complaints Against and by the Military Police” provides that all Military Police members who are subject of a Military Police Professional Code of Conduct investigation have the right to request an assisting officer. Paragraph 39(f) states that one duty of the assisting officer is to ensure that the subject member is fully informed about the conduct complaint investigation process, including section 250 of the NDA, Chapter 22 of the QR&O, the Military Police Professional Code of Conduct and the complaint policy. Paragraph 39(g) provides that the assisting officer may accompany the subject member during any Professional Standards/Conduct Complaint interview. Further, as previously indicated, Annex “D” to Chapter 13 sets out the Professional Standards Investigation Preamble to be acknowledged and signed by a subject member of the investigation.

By failing to designate either WO Hamm or Cpl Hamm as subject members of the investigation at the appropriate time, both WO Hamm and Cpl Hamm were deprived of the basic rights and protections that are required by law and policy to be afforded to subject members of conduct investigations. In addition, they were deprived of basic rights to natural justice available to everyone subjected to a judicial or investigative process that may result in adverse findings against them. Among the rights and protections made available to the named subject members of the investigation that were denied in this case were the rights to be notified:

  1. of the substance of the complaints made against them;
  2. that the DPM PS had ordered a Professional Standards investigation of their professional conduct;
  3. that the investigation would determine whether either of them breached the Military Police Professional Code of Conduct or the Code of Service Discipline or were otherwise deserving of disciplinary or administrative sanctions;
  4. of the specific issues that the investigation of their conduct would address;
  5. of their rights, as subject members, pursuant to section 8 of the Military Police Professional Code of Conduct, to refuse to respond to questions put to them in an investigation that would determine whether their conduct was in breach of the Code,
  6. of their rights, under Military Police Policies and Technical Procedures if they chose to submit to an interview, to have an assisting officer present during the interview; and
  7. of their rights, as subject members of the investigation to be told, before making any statement:
    1. that the statement was being made to a person in authority;
    2. that the statement was given in response to a conduct complaint against them; and
    3. that the statement would not be used for any disciplinary or criminal proceedings against them other than proceedings for giving an answer or making a statement knowing it was false. It should be noted that Cpl Hamm was told this although WO Hamm was not.

COMMISSION MEMBERS' FINDING # 34:

The Commission Members find that Corporal Hamm and Warrant Officer Hamm became subject members of the Professional Standards investigation when the seconded investigator determined early in the investigation that Corporal Hamm might have committed service offences or might have violated the Military Police Professional Code of Conduct and when the investigator determined that Warrant Officer Hamm failed to confirm the accuracy of the complaint.

COMMISSION MEMBERS' FINDING # 35:

The Commission Members find that when the Professional Standards investigation focused on Corporal Hamm and Warrant Officer Hamm as subject members of the investigation, a new and separate investigation of the allegations against Corporal Hamm and Warrant Officer Hamm should have been commenced. Corporal Hamm and Warrant Officer Hamm should then have been provided with the appropriate notices and protections required by law and policy.

COMMISSION MEMBERS' FINDING # 36:

The Commission Members find that the failure to designate Corporal Hamm and Warrant Officer Hamm as subject members of the investigation deprived them of their basic rights to natural justice, their rights to appreciate and defend themselves against the allegations or potential jeopardy they were facing, their rights of choice to refuse to be interviewed, and their rights to have counsel or an assisting officer present.

(d) The Deputy Provost Marshal Professional Standards' Handling of Warrant Officer Hamm's Complaint and the Deputy Provost Marshal Professional Standards' Findings

The Commission Members' findings do not agree with some of the DPM PS' findings. The Commission Members find that WO Rice abused his authority in ordering the arrest of Cpl Hamm and that MCpl Paul and Cpl Murray carried out an unlawful arrest and failed to provide Cpl Hamm with a reason for his arrest.

The DPM PS was critical of the conduct of Cpl Hamm and WO Hamm in the Letters of Final Disposition. WO Hamm was criticized for filing his complaint prematurely, for not confirming with Cpl Hamm the accuracy of his complaint before making his submission, for relying on his perceptions that his brother was in distress and was being harassed, Footnote 222 and for acting on incomplete information provided by Cpl Hamm. Footnote 223 The DPM PS directed that WO Hamm should be counselled “to ensure that he ascertains a clearer understanding of the given situation, before involving himself in matters pertaining to another unit.Footnote 224

Cpl Hamm was criticized in both the Professional Standards investigation report and the DPM PS' Letter of Final Disposition addressed to him, for supplying allegedly misleading information to WO Hamm on five (5) different issues. The DPM PS also adopted the finding of the seconded Professional Standards investigator that Cpl Hamm committed five (5) service offences. Ultimately, the DPM PS concluded that the only violator of the Military Police Professional Code of Conduct flowing from the investigation of WO Hamm's complaint was Cpl Hamm, who was never made a subject member of the investigation. The DPM PS' Letters of Final Disposition set out three (3) alleged violations of the Military Police Professional Code of Conduct by Cpl Hamm, the details of which follow.

On April 15, 2002, the DPM PS sent a telex to the Officer Commanding of the CFNIS unit in Ottawa (Capt Chiasson), where Cpl Hamm was then employed as an investigator, directing the suspension of Cpl Hamm's credentials.

In July 2002, LCol Dixon carried out the direction of the DPM PS to counsel WO Hamm. LCol Dixon told Commission Members that, in the circumstances, he “did not embrace” the concept of counselling WO Hamm because he had not taken enough care in verifying the information received from Cpl Hamm; rather, he counselled WO Hamm on other matters, discussed in more detail below, that he believed were more appropriate in the circumstances.

(i) Commission of Service Offences by Corporal Hamm

The DPM PS' Letter of Final Disposition addressed to Cpl Hamm, dated April 5, 2002, listed five (5) service offences allegedly committed by Cpl Hamm. Footnote 225 It stated that the offences came to light in the course of the CFNIS and Professional Standards investigations. The seconded Professional Standards investigator found that the commission of these offences by Cpl Hamm also amounted to breaches of the Military Police Professional Code of Conduct, being evidence that, in the words of paragraph 4(l) of the Code, Cpl Hamm “engaged in a conduct that discredited the MP and his behaviour calls into question his ability to carry out his duties in a faithful and impartial manner.” The Commission Members disagree with the findings of the DPM PS as detailed in her Letter of Final Disposition with respect to four (4) of the five (5) alleged service offences. Each offence will be reviewed.

1- On December 12, 2000, Cpl Hamm refused a lawful command when WO Rice ordered him to prepare for a deployment to Inuvik;

As indicated, the Commission Members find, on a balance of probabilities, that Cpl Hamm did not refuse outright to go on the deployment, but that WO Rice interpreted Cpl Hamm's ambiguous comments as a refusal. WO Rice told Commission Members that he did not order Cpl Hamm to deploy during their telephone conversation. However, even if WO Rice did order him to deploy and Cpl Hamm said, “I won't go,” he could not have been found to have disobeyed a lawful command until he actually failed to deploy on December 26, 2000. This could not have occurred because the deployment was cancelled before December 26, 2000. The same reasoning applies to an order to prepare for deployment. It could not be said that Cpl Hamm disobeyed a lawful command until Cpl Hamm failed to meet the said requirements.

The second alleged violation was:

2- On December 12, 2000, Cpl Hamm was insubordinate in that he acted with contempt towards WO Rice by saying “See you later bud,” or words to that effect and then hung up the phone;

As discussed earlier, the Commission Members find that WO Rice used profanity during the telephone conversation with Cpl Hamm. Cpl Hamm was therefore not insubordinate in hanging up the telephone. (Finding #7)

WO Rice told Commission Members that Cpl Hamm said “See you later bud” or words to that effect just prior to hanging up the phone. Cpl Hamm adamantly denied saying this. Rather, Cpl Hamm told Commission Members that WO Rice was swearing and he held the phone away from him and hung up by clicking his phone. Footnote 226 The Commission Members could not conclude whether or not the statement “See you later bud” was made by Cpl Hamm.

The third alleged infraction was:

3- On December 12, 2000, Cpl Hamm refused a lawful command when WO Rice through MCpl Paul and Cpl Murray ordered him to attend his office;

Commission Members find that Cpl Hamm was not told the reason why WO Rice wanted to see him on December 12, 2000 and subsequently the reason for his arrest. WO Rice's initial step of ordering Cpl Hamm to come to his office was a recall to duty of a member on sick leave that was not personally ordered by Cpl Hamm's Commanding Officer, contrary to QR&O section 16.01. (Finding #9) Cpl Hamm's section 10(a) Charter right to be told the reason for his arrest was violated. (Finding #20)

The CFNIS concluded that MCpl Paul and Cpl Murray acted in good faith, notwithstanding the fact that they had been ordered to effect an unlawful arrest. Commission Members also agree with Insp Blizard's conclusion, after his review of the CFNIS investigation, that WO Rice's order and the subsequent arrest were unlawful.

The fourth alleged violation was.

4- On December 12, 2000, Cpl Hamm refused lawful commands when WO Rice ordered him to stand at attention several times.

When Cpl Hamm was brought into WO Rice's office subsequent to his arrest, WO Rice asked Cpl Hamm to have a seat. When Cpl Hamm refused, WO Rice ordered him several times to stand at attention. Cpl Hamm admitted not doing so as he had still not been provided with a reason for his arrest. Cpl Hamm demanded to know why he was arrested, indicated he wanted to exercise his right to call a lawyer and subsequently left to go towards the interview room.

While there is no question Cpl Hamm refused to stand at attention, the DPM PS did not evaluate if it was a lawful command given that Cpl Hamm had not been given his Charter right to be informed of the reasons for his arrest. On the other hand, the Commission Members find that this may very well have constituted a service offence.

The fifth alleged violation was:

5- On or about February 18, 2001, Cpl Hamm disclosed information to the Edmonton Sun newspaper on issues that were under investigation by CFNIS SI and DPM PS and those views were published. The content of the article brought discredit to the Military Police.

When interviewed by Commission Members, Cpl Hamm stated that he consulted with a superior, Capt Morrison, as to whether he could respond to a reporter who had initiated contact with him and was about to print an inaccurate story. He told Commission Members that the superior told him that he could respond as long as he provided only factual information to ensure accurate facts were reported. He responded in accordance with the advice received when the reporter called back, but the reporter printed inaccuracies, which Cpl Hamm claims he did not provide. The seconded Professional Standards investigator questioned Cpl Hamm about the press contact, but did not inform Cpl Hamm that one focus of the investigation was to determine whether he had acted improperly in dealing with the press or that his conduct in the matter was being considered in relation to a possible breach of the Military Police Professional Code of Conduct. In addition, the seconded Professional Standards investigator was not allowed to contact the journalist who would have been an independent witness, assuming the journalist would have disclosed details about his sources. Nevertheless, the DPM PS' Letter of Final Disposition found that Cpl Hamm's contact with the press breached the Military Police Professional Code of Conduct.Footnote 227.

The Complaints Commission did not address in detail the fifth allegation noted in the DPM PS' Letter of Final Disposition. However, it is to be noted that the DPM PS did not evaluate whether Cpl Hamm reasonably believed or had been properly advised that he could communicate with the media. It also did not address whether it would have been proper for Cpl Hamm to impart only correct facts to a reporter who told him he was going to print inaccurate facts. Had Cpl Hamm been designated a subject member of the Professional Standards investigation and properly informed about the purpose of the questioning and what the issues were, he might have, as he did when interviewed by Commission Members, addressed facts that were capable of providing a justification for his press contact.

COMMISSION MEMBERS' FINDING # 37:

The Commission Members disagree with four (4) of the five (5) conclusions of the Deputy Provost Marshal Professional Standards as stated in her Letter of Final Disposition dated April 5, 2002 that Corporal Hamm committed five (5) breaches to the National Defence Act.

(ii) Allegation that Corporal Hamm Misled Warrant Officer Hamm

The DPM PS' Letter of Final Disposition addressed to Cpl Hamm listed five (5) matters in relation to which it was alleged that Cpl Hamm provided “in part, incomplete and misleading” information to and “misinformedWO Hamm. In the DPM PS' Letter of Final Disposition addressed to WO Hamm, the DPM PS mentioned these matters as a prelude to finding that WO Hamm was premature in submitting a formal complaint. The DPM PS then directed that WO Hamm be counselled to “ascertain a clearer understanding of the given situation before involving himself in matters pertaining to another unit.Footnote 228 The DPM PS implied that WO Hamm had erred or was negligent in allowing himself to base his complaint on the information he received from Cpl Hamm.

Although not entirely clear in the DPM PS' Letter of Final Disposition dated April 5, 2002 addressed to Cpl Hamm, it appears that the DPM PS may have concluded that the five (5) instances of alleged misleading of WO Hamm by Cpl Hamm amounted to a breach, by Cpl Hamm, of the Military Police Professional Code of Conduct. Paragraph 7 of the DPM PS' Letter of Final Disposition stated:

It is evident throughout the investigation that Cpl Hamm only divulged certain information to certain personnel at certain times. He led other MP personnel in believing that he was targeted, harassed and unjustly dealt with by the senior MP personnel at 4 Wing Cold Lake. In this regard, Cpl Hamm engaged in conduct that is likely to discredit the MP or that calls into question the member's ability to carry out their duties in a faithful and impartial manner. Accordingly, this breach of the MP Professional Code of Conduct will be dealt with further under separate cover.

In the same letter, at paragraph 3(c), the DPM PS based a similar conclusion on answers that Cpl Hamm provided during his Professional Standards interview:

During Cpl Hamm's interview, he was confronted with several contradictions in his account. His answers and explanations raised doubt in the mind of the investigator as to Cpl Hamm's credibility. Cpl Hamm's unwarranted depiction of being a victim of egregious and systemic abuse from the MP Commanders at 4 wing Cold Lake persisted in the minds of some in the MP branch that responded to his plight. This investigation has shown that Cpl Hamm manipulated events to drive events in his favour.

The DPM PS found that Cpl Hamm misled WO Hamm. The Commission Members note that allegations of misleading someone generally refer to a person in authority. On December 12, 2000, it seems clear that Cpl Hamm called WO Hamm as his brother and not a person in authority. The DPM PS found that Cpl Hamm misled WO Hamm about the following five (5) items:

1- When he (Cpl Hamm) informed WO Hamm that he was being harassed for failing the Express Test, he withheld the fact that he was ordered in writing by the

4 Wing, Cold Lake Military Police Officer Commanding to attend Remedial Physical Training:

The Commission Members found no evidence that Cpl Hamm informed WO Hamm that he had been harassed regarding his failure of the Express Test. WO Hamm independently came to believe Cpl Hamm was being harassed, based on what Cpl Hamm had told him was happening. The only reference to harassment in the correspondence or taped conversation between WO Hamm and Cpl Hamm is one e-mail that Cpl Hamm sent to WO Hamm on November 23, 2000. In that e-mail, Cpl Hamm notified WO Hamm of the decision to hold a second summary trial related to the RPT issue. He asked for WO Hamm's opinion on it and specifically added that he wanted such “without screaming about harassment”.

In addition, WO Hamm's e-mail to CWO Galway of December 13, 2000 and his statement of complaint dated December 14, 2000, make no reference to WO Hamm having been informed by Cpl Hamm that he had been harassed. The only mention of harassment in relation to Cpl Hamm in WO Hamm's complaint letter to the DPM PS dated December 14, was in WO Hamm's concluding remark:

I have attempted to advise Cpl Hamm on several occasions, to seek intervention through harassment mediators. He declined to do so, for fear it would hamper his career [.]

It was also alleged that Cpl Hamm withheld the fact that he was ordered in writing to attend RPT. However, in his e-mail of November 23, 2000, referred to above, Cpl Hamm quoted the exact wording of his charge, including the particulars: “in that he, between 18 January and 29 May, 2000, at 4 Wing, failed to sign in for scheduled physical training sessions three times per week, as it was his duty to do so.” He was charged, therefore, for neglect of duty, not for disobeying an order, written or otherwise. Accordingly, Cpl Hamm accurately reported this to his brother and the allegation of withholding information on RPT is without merit.

The second matter that Cpl Hamm allegedly misinformed WO Hamm about was:

2- He withheld from WO Hamm the pertinent facts that he had failed to attend Remedial Physical Training as ordered by Sgt Smith and WO Lewis and the fact that was the real issue for him being charged in relation to the Remedial Physical Training issue;

This is, essentially, a repetition of the first matter already mentioned and the same comments apply. The “real” issue was made clear in the particulars of the charge quoted verbatim by Cpl Hamm to WO Hamm. In doing so, WO Hamm was obviously made aware, by Cpl Hamm, that it was alleged that Cpl Hamm's attendance at RPT was less than satisfactory. At the time of making the complaint, WO Hamm was aware that Cpl Hamm had been found guilty at his second summary trial, which he mentioned in his letter of complaint. Before he was found guilty Cpl Hamm believed that he did not fail in his duty as alleged and was contesting the allegation through the summary trial process.

The third alleged instance of misleading by Cpl Hamm was:

3-When he alleged to WO Hamm that CWO Gauvin had tampered with witnesses, he withheld the fact that he had spoken to his Assisting Officer and that CWO Gauvin had simply ensured that Sgt Smith had his notes in time for his testimony. In addition, Cpl Hamm contacted Sgt Smith and the latter assured him that CWO Gauvin had not attempted to influence him;

WO Hamm's statement of complaint simply asserted that, by Cpl Hamm's account, Sgt Smith's testimony at the second trial differed from the first trial. WO Hamm clearly stated that CWO Gauvin “may have tampered with witnesses.

WO Hamm was stating his own opinion that witness tampering may have occurred. There was no information as to what Cpl Hamm told WO Hamm concerning CWO Gauvin's conversation with Sgt Smith. He may well have spoken of this with WO Hamm before speaking to his Assisting Officer or to Sgt Smith. In fact, the Professional Standards interview of Sgt Smith suggested that Cpl Hamm did not talk to Sgt Smith about his arrest until February 2000, as Sgt Smith went to [redacted text] almost immediately after Cpl Hamm's second summary trial. The revelation Cpl Hamm would have obtained by speaking to Sgt Smith therefore occurred long after WO Hamm lodged his complaint. In any event, it was clear that Cpl Hamm candidly agreed, by the time of the Professional Standards interview, that he had been mistaken about the possibility that CWO Gauvin might have improperly influenced the testimony of Sgt Smith.

About one week after interviewing Sgt Smith, the seconded Professional Standards investigator interviewed Cpl Hamm. He asked Cpl Hamm to indicate when he had come to realize that Sgt Smith's change in testimony between the two trials was not due to possible witness tampering by CWO Gauvin. Cpl Hamm suggested it had something to do with his conversation with Sgt Smith sometime after December 12, 2000 and after his brother lodged the complaint. The seconded Professional Standards investigator then stated:

SGT DUSSAULT: Yes. Okay. But it was after you called your brother and your brother made a complaint.

CPL HAMM: Yeah.

SGT DUSSAULT: Okay. Because that's an important benchmark for me. Your brother makes the complaint based on the information he's got. So I would have a problem if you would tell me “Well, when I called Smith on December 15th or whatever,” and it was at the time your brother wrote the complaint. Then I would say “Well, why didn't you tell him?”.

CPL HAMM: I've never actually seen the complaint yet.

SGT DUSSAULT: No.

CPL HAMM: No. Footnote 229

Therefore, not only did the seconded Professional Standards investigator know that Cpl Hamm changed his mind only after he spoke to both Sgt Smith and Capt Morrison, but he also knew that Cpl Hamm changed his mind after the complaint was lodged by WO Hamm. The seconded Professional Standards investigator and subsequently the DPM PS proceeded to allege that Cpl Hamm withheld the information about his change of mind from WO Hamm. WO Hamm was then criticized by the DPM PS for acting on or not verifying information that its own investigator knew WO Hamm could not have verified before he made his complaint.

The fourth instance of alleged misleading by Cpl Hamm was:

4- He misled WO Hamm as to the true nature of the phone conversation between he and WO Rice on December 12, 2000;

In the note of the events that WO Rice made on December 12, 2000, he wrote;

At about 1020 hrs 12 Dec 00, in response to Op planning for a deployment to Inuvik 26 Dec I telephoned Cpl Hamm to inform him that he should prepare his kit and make preparations for a possible deployment 26 Dec 00. I was tasked to identify 7 Pers for this task. Cpl Hamm was on 7 days sick leave which was to end Dec 13 00. Upon informing Cpl Hamm he stated he would not and could not go. When queried as to why, he stated that his wife was gone to [redacted text] over that period and he had no childcare. I informed him that I would do what I could but that he should plan in case he was required to go.

WO Hamm, in his e-mail to CWO Galway dated December 13, 2000, reported the incident in the following terms:

Cpl Hamm informed me he was on sick leave from his unit. Sgt Rice contacted him by telephone and attempted to put him on standby for an upcoming mission. Cpl Hamm reminded Sgt Rice he was on sick leave. Sgt Rice became verbally abusive with Cpl Hamm. Cpl Hamm terminated the telephone call.

Similarly, in his more formal statement of complaint dated December 14, 2000, WO Hamm set out a very similar version of what he had learned from Cpl Hamm:

He informed me that he was [redacted text] , and that Sgt Rice had called him at home, attempting to put him on standby for deployment. Cpl Hamm had concerns with the deployment timings, and reminded Sgt Rice he was on sick leave. Sgt Rice became verbally abusive with Cpl Hamm and Cpl Hamm terminated the telephone call.

The accounts of WO Rice and WO Hamm as to the nature of the call do not differ substantially. The only exceptions are to which of the parties was verbally abusive and whether Cpl Hamm was insubordinate. The Commission Members find, as stated earlier, that WO Rice did use profanities while on the telephone. (Finding #7.

The various accounts are in near agreement as to the “nature” of the conversation. The criticism seemingly lies in the fact that WO Hamm lodged a complaint based on his awareness of Cpl Hamm's version of events, which is precisely what section 7 of the Military Police Professional Code of Conduct requires him to do. Section 7 requires all Military Police members to report a belief in or awareness of an allegation that a member has breached the Military Police Professional Code of Conduct. In order to “verify” that awareness, WO Hamm would have had to engage in an investigative process. Therefore, the Commission Members find that WO Hamm was never misled in this regard.

The fifth instance of alleged misleading by Cpl Hamm was:

5- On the day of his arrest he misled WO Hamm by telling him that WO Rice had ordered him into custody in the cells, that he was arrested for no reason and that WO Rice had invented charges after the arrest.

These allegations are based on the recorded telephone conversation between Cpl Hamm and WO Hamm on December 12, 2000. An excerpt of this conversation reads as follows:

CPL HAMM: Then he (WO Rice) starts screaming at me telling me that I'm under arrest for insubordination. I said there's no arrest. I said, first of all sergeant, if there was no arrest to begin with, the first time, you're just making up a charge now, right? WO HAMM: Ya; CPL HAMM: I said second of all, I want to see your supervisor. Because this is wrong. He said he wanted me in the cells for insubordination now.

Independent witnesses, for example PO2 O'Sullivan, confirmed the yelling or screaming on the part of WO Rice. MCpl Paul told CFNIS investigators that WO Rice was “out of control to the point where arguing over coming to attention and all that little stuff shouldn't have happened...you know, playing that stupid little game [...]Footnote 230

Although there is confusion as to exactly what was said, WO Rice stated in his Professional Standards interview that he told Cpl Hamm “he was under arrest for disobedience of a lawful command and that there was insubordination involved.Footnote 231 It would therefore not have been unreasonable for Cpl Hamm to believe that his arrest was related to insubordination. Indeed, MCpl Paul told CFNIS investigators that he believed “Tim either (a) disobeyed a lawful command or he's been disrespectful to a senior NCM (Non-Commissioned Member) and I'm bringing him in for those causes.Footnote 232

Cpl Hamm did not say that WO Rice had “ordered” him in custody in cells, rather he said “he wanted me in the cells for insubordination.Footnote 233 WO Rice told the seconded Professional Standards investigator that he did not recall and did not think he said that Cpl Hamm should be placed in the cells. However, in WO Rice's December 12, 2000 telephone conversation with Cpl Hamm, he stated and later noted that he told Cpl Hamm that “if he was ordered to go he would or he would go to jail.” He told various investigators that this was only a “figure of speech” but he did not tell Cpl Hamm this. Cpl Hamm told CFNIS investigators that MCpl Paul had suggested that Cpl Hamm might be locked up. In fact, MCpl Paul told the seconded Professional Standards investigator that, when Cpl Hamm was in the interview room, a Duty Counsel finally returned his call. At some point MCpl Paul spoke to the Duty Counsel. MCpl Paul told the seconded Professional Standards investigator of his conversation with the Duty Counsel:

The JAG asked me what the next process was and I said, “Well, I believe that once we're done here, I believe his next post is the cells”. Which is, if that's closed custody, then that's where he's going. Footnote 234

The seconded Professional Standards investigator noted this conversation with the Duty Counsel. Footnote 235

Cpl Hamm was detained in the interview room, was being watched over and was not free to leave. Cpl Hamm summarized his state of mind after his arrest to the seconded Professional Standards investigator: “You have to realize my whole world is upside downFootnote 236 and “I was in shock and I was quite emotional about what was going on.Footnote 237.

The seconded Professional Standards investigator confronted Cpl Hamm more than once with the allegation that WO Hamm's complaint said that WO Rice had “orderedCpl Hamm into the cells. Cpl Hamm's response was consistent in that this did not happen. WO Hamm did not allege in any statement of complaint that Cpl Hamm told him or that he believed WO Rice ordered Cpl Hamm into the cells. The seconded Professional Standards investigator maintained, that WO Hamm had “either misinterpreted or was misinformed.” He then suggested to Cpl Hamm that he told WO Hamm, in the interview room that “WO Rice ordered you into cells.Cpl Hamm responded that this “never happened.” The following exchange then took place:

SGT DUSSAULT: So you didn't - inadvertently - I don't know - inadvertently, through rage or emotion or purposely, you misinformed your brother into believing something that didn't really happen [.].

CPL HAMM: Did I intentionally make it up? No. Was I scared to death and confused? Yes. But I don't know, Cpl Paul telling me I'm going to cells next, I think that's the point you're missing, is that he was in there with me. He left and came back a couple of times. Footnote 238

Cpl Hamm believed, in his emotional state and based on what MCpl Paul told him, that he would be put in cells. Even MCpl Paul believed this was a possibility. The seconded Professional Standards investigator appeared to concede that the “misinformation” could have been “inadvertent.” Nevertheless, the seconded Professional Standards investigator found that Cpl Hamm intentionally misled WO Hamm as part of a plan to “drive events in his favour.” However, since WO Hamm never alleged in a complaint that WO Rice ordered Cpl Hamm into cells, there is no evidence that he was misled on any material matter as the DPM PS alleged.

With respect to the allegation that Cpl Hamm misled WO Hamm by stating he was arrested for no reason, Cpl Hamm consistently stated he was not given a reason for his arrest and even made a written statement that asserted he was arrested for no reason. The Commission Members find that Cpl Hamm was not provided a reason for his arrest and that his Charter right was breached.

COMMISSION MEMBERS' FINDING # 38:

The Commission Members find that there was insufficient evidence to establish, on a balance of probabilities, that Corporal Hamm misinformed or provided misleading information to Warrant Officer Hamm about any matter relevant or material to Warrant Officer Hamm's complaint. Accordingly, the Commission Members find that Corporal Hamm did not mislead Warrant Officer Hamm in the five (5) manners detailed by the Deputy Provost Marshal Professional Standards.

COMMISSION MEMBERS' FINDING # 39:

The Commission Members find that Warrant Officer Hamm did not err nor was he negligent in basing his complaint on information received from Corporal Hamm nor did Warrant Officer Hamm prematurely file his complaint based on the information received.

(e) Was Warrant Officer Hamm Treated Fairly After He Filed His Complaint?

(i) Conditions for Filing and Duty to Complain

Prior to and on December 12, 2000, WO Hamm acquired information from Cpl Hamm and other sources that led him to believe that Cpl Hamm might have been subjected to an unlawful arrest and possibly other abuses of authority by Military Police personnel at 4 Wing, Cold Lake. The information disclosed possible breaches of the Military Police Professional Code of Conduct and improper conduct of members of the Military Police in the performance of policing duties and functions.

The DPM PS' Letter of Final Disposition dated May 2, 2002 addressed to WO Hamm concluded that he “acted on incomplete information provided by Cpl Hamm.” It stated that, although he was not wrong to engage the Chain of Command in the matter, he was “premature” in submitting a formal complaint that levelled allegations against personnel at 4 Wing, Cold Lake. It directed that he should be counselled as previously stated.

No guidelines exist in the Military Police Professional Code of Conduct about the types of violations to be reported or the standard of evidence required to report on another Military Police member. Section 7 of the Military Police Professional Code of Conduct states: A member of the military police who believes, or is aware of an allegation, that a member of the military police has breached this Code shall report the belief or allegation, as the case may be, to

  1. their superior in the military chain of command; or
  2. the next superior in the military police chain of command, if the superior referred to in paragraph (a) is the subject of the belief or allegation.

The threshold for requiring a Military Police member to report another member is quite low. The duty to report lies with any member who simply “believes,” or “is aware” of an allegation of breach of the Military Police Professional Code of Conduct. It is not a requirement that a Military Police member who reports another member have reasonable or probable grounds to believe that a violation took place. The appreciation of what may constitute a violation is therefore left to the Military Police member, his discretion and good faith. This aspect of the Military Police Professional Code of Conduct is consistent with the Codes of Conduct for other Police Agencies. It is also consistent with the philosophy and practice of police ethics.

In addition, no requirement is set out, either in the NDA or in the Military Police Professional Code of Conduct, that either a complaint or facts underlying a complaint first be verified or investigated before a complaint is filed. In order to file a complaint, no more is required than a belief in or an awareness of an allegation. In fact, the legislation is clear that there is a duty to file a complaint when a member acquires the requisite belief or awareness, without more. Footnote 239

The NDA specifically gives powers to investigating agencies to decline to investigate or further investigate complaints or allegations that are determined to be trivial, frivolous, vexatious or made in bad faith. Footnote 240 In other words, it is the responsibility of the investigating authority, not the complainant, to weed out complaints lacking in merit or substance.

COMMISSION MEMBERS' FINDING # 40:

The Commission Members find that Warrant Officer Hamm had an obligation, pursuant to section 7 of the Military Police Professional Code of Conduct, to report to his superior in the Military Police Chain of Command a belief in or awareness of an allegation that a member of the Military Police had breached the Military Police Professional Code of Conduct. The information Warrant Officer Hamm received on December 12, 2000 provided him with the requisite belief or awareness. There is no requirement to verify or investigate the belief or allegation before it is reported.

(ii) Disclosure by Warrant Officer Hamm of his Concerns to the Chain of Command

MWO Dennique, WO Hamm's immediate superior in the Military Police Chain of Command at 8 Wing, Trenton, Ontario, told Commission Members that WO Hamm came to see him on the morning of December 12, 2000, and expressed concerns that his brother had been unlawfully arrested and that WO Rice was abusing his authority over Cpl Hamm. He was also concerned that he did not know what to do about it. MWO Dennique advised WO Hamm:

MWO DENNIQUE: My advice to WO Hamm was “Let's get in touch with the chain of command. Sergeant Rice is responsible to somebody. Let's call the warrant officer in charge of police services in Cold Lake, or Chief Warrant Officer Gauvin, or the Major in charge of the MP squadron” - Thobo-Carlsen, I believe, at the time. Warrant Officer Hamm's response to me was “Nobody is available. The major is on course [redacted text]. The warrant officer” - and his name escapes me-was away from Cold Lake, I believe [redacted text] . And the Chief, although he was in Cold Lake, he was nowhere to be found on that particular day.

I suggested, “If you believe that there is an abuse of authority situation occurring, then go outside the MP squadron in Cold Lake and call the base chief warrant officer, who is responsible for all personnel on the wing” in Cold Lake [.]

[.] my understanding is that Warrant Officer Hamm did, in fact, call the base Chief Warrant Officer in Cold Lake and expressed his concerns and subsequent to that the base chief warrant officer somehow got in touch with Chief Warrant Officer Gauvin, who went in to the guardhouse to resolve th.

Based on the information that Warrant Officer Hamm was receiving, he was obviously upset and concerned about the welfare of Corporal Tim Hamm, and he was at a loss to know really what he should be doing or what he should do. So I said, “Allow the chain of command to handle it. If there is something going on that's not right, Sergeant Rice” now Warrant Officer Rice “is responsible to somebody. Try to get in touch with who he is responsible to.” That was my advice to him.

MS DUNBAR: Did you ever advise him specifically to make a complaint?

MWO DENNIQUE: No, absolutely not. I went away on vacation. This was his own decision. Footnote 241

MS DUNBAR: Is it your opinion that WO Hamm actually had an obligation to report what he perceived to be an unlawful arrest?

MWO DENNIQUE: In accordance with the Military Police Code of Conduct, it is my understanding that if there is a breach of the Military Police Code of Conduct, he has that responsibility. Footnote 242

WO Hamm then contacted CWO Galway the evening of December 12, 2000 and subsequently sent him the details of his complaint.

COMMISSION MEMBERS' FINDING # 41:

The Commission Members find that Warrant Officer Hamm properly reported his reasonable belief to, and sought advice from, his superior in the Military Police Chain of Command at 8 Wing Canadian Forces Base, Trenton, Master Warrant Officer Dennique.

COMMISSION MEMBERS' FINDING # 42:

The Commission Members find that it was reasonable and proper, in the circumstances, for Warrant Officer Hamm to follow Master Warrant Officer Dennique's advice.

COMMISSION MEMBERS' FINDING # 43:

The Commission Members find that it was reasonable and proper for Warrant Officer Hamm to advise Chief Warrant Officer Galway of his concerns and to forward the information to Chief Warrant Officer Galway.

(iii) Warrant Officer Hamm's Counselling

In July 2002, LCol Dixon counselled WO Hamm as directed by the DPM PS. He told Commission Members that this involved providing WO Hamm with “sage advice and guidance.” This was not related to “counselling and probation” which, in the administrative process, may be the last step before potential dismissal from the Canadian Forces. However, as indicated previously, LCol Dixon did not consider that WO Hamm's alleged failure to verify the information he received from Cpl Hamm was a proper reason to counsel WO Hamm. He stated:

LCOL DIXON: The counselling he received - or the sage advice and guidance that he was receiving from me was not to insert himself into a process where he has a personal - not a commitment, but he is personally involved with his brother.

The rest of it - what they were talking about as it pertains to him - was irrelevant, because if you ask somebody for something, which Professional Standards did, and you take it from the victim or you take it from the accused - not this - you have to verify that.

Surely to goodness they didn't proceed on this as if it were the God - given truth. It was a reflection-an articulation of an emotional time, and he put it down. I flipped through it. I looked through it the other day, and I know his writing voice, and I recognized emotion in there, and I would have validated it.

MS DUNBAR: So you didn't actually counsel him, then, on not verifying the -

LCOL DIXON: No. I never even mentioned it to him. Footnote 243

MS DUNBAR: I don't want to put words in your mouth, but I want to make sure that I understand about the counselling of

WO Hamm. You felt that it was appropriate for him to call up Chief Warrant Officer Galway and advise him of this. In fact, you mentioned about his duty to do so under the MP Code of Conduct. But where you felt it was inappropriate was when he called over to the folks at Cold Lake. Is that the distinction.

LCOL DIXON: Correct. Footnote 244

LCol Dixon was of the view that WO Hamm should have first called CWO Galway as he was in his own technical Chain of Command.

LCol Dixon explained to Commission Members that Canadian Military Police are in a unique situation. Unlike other police forces, they are not under the command and control of police leaders. Their day to day administrative activities, such as annual evaluations fall under the command and control of Wing Commanders, Base Commanders, and Base Operations Officers. 1 CAD in Winnipeg, Manitoba is the technical Chain of Command for Provost Marshals' policing functions. This group, then under the direction of LCol Dixon, audits the policing and security functions. CWO Galway started a mentoring program for all Wing Provost Marshals. WO Hamm fell within the 1 CAD Winnipeg technical purview and within the mentoring program. Footnote 245

LCol Dixon did not know that WO Hamm had sought out the advice of MWO Dennique. In fact, WO Hamm did contact CWO Galway in the evening of December 12, 2000. LCol Dixon explained:

LCOL DIXON: He would have been well advised - I mean, somebody had called him, so he is stuck with that. He is at the end of the phone. Of course his brother, a loved one, is distraught, so he can't hang up on him. So he had to go through that conversation. I understand that.

Then, if he was that concerned - and obviously he was - he should have picked up the phone and called Chief Warrant Officer Galway at the CAD, who is a tremendous representative of our police folk in the field. Galway would have gotten a grip on the situation. There is no doubt about it. He would have got involved in the process to find out exactly what was going on. And he would have been the ideal person because he had no vested interest, except for the professional conduct of the people. And then Mike could have gone back to the role of providing moral support. Footnote 246

Commission Members find that it was reasonable and proper in the circumstances for WO Hamm to follow MWO Dennique's advice.

COMMISSION MEMBERS' FINDING # 44:

The Commission Members find that, in the circumstances, Warrant Officer Hamm should not have been counselled and the direction to counsel Warrant Officer Hamm issued by the Deputy Provost Marshal Professional Standards was inappropriate.

COMMISSION MEMBERS' RECOMMENDATION # 8:

The Commission Members recommend that the Deputy Provost Marshal Professional Standards acknowledge, with appropriate supplementary correspondence, that the direction to counsel Warrant Officer Hamm was inappropriate.

(f) Was Corporal Hamm Treated Fairly After
Warrant Officer Hamm Filed His Complaint?

Unlike WO Hamm who, as the complainant, received notice from the DPM PS of the Military Police Professional Code of Conduct investigation, of the identity of the subject members of the investigation and the issues to be addressed, Cpl Hamm received no notice of these matters because he was neither a subject member nor the complainant. As indicated previously, both Cpl Hamm and WO Hamm became subject members of the investigation, but were deprived of information that would normally be provided to subject members.

Cpl Hamm and WO Hamm were not made aware that allegations or complaints against them were being investigated. They were not made aware that the Professional Standards investigation would address whether their conduct violated the Military Police Professional Code of Conduct and might make findings and recommendations on that issue. They were not made aware that they could refuse to answer questions or be interviewed at all. They were not notified of the issues that were relevant to the investigation or issues they might have wanted to address in their own defence. Commission Members have accordingly noted the failure of the DPM PS to make Cpl Hamm and WO Hamm subject members of its investigation of WO Hamm's complaint or to start a new investigation with them as the subject members and the resulting denial of various rights that should have been available.

From Cpl Hamm's perspective, he was at no time advised of his potential jeopardy. In the April 5, 2002 DPM PS' Letter of Final Disposition, which Cpl Hamm was given on April 22, 2002, findings were made against him that (i) he committed five (5) service offences in connection with the events of December 12, 2000; (ii) in five (5) instances, he supplied his brother with misleading information and in doing so, violated the Military Police Professional Code of Conduct; (iii) he manufactured a false picture of being a victim of “egregious and systemic abuse from the Military Police commanders at 4 Wing, Cold Lake;” (iv) he manufactured a complaint and let others advance it so that he would not “suffer any fallout;” and (v) he manipulated information to drive events in his favour. Then, on April 22, 2002 his Military Police credentials were suspended and have remained so to the date this report was written. Cpl Hamm has never been charged with or convicted of any of the offences or transgressions alleged against him in the DPM PS' Letter of Final Disposition.

LCol Carey, DPM PS, on April 5, 2002 in her Letter of Final Disposition noted at paragraph 3(c) that:

This investigation has shown that Cpl Hamm manipulated the information to drive the events in his favour. By letting WO Hamm intervene on his behalf, Cpl Hamm conveniently distanced himself from the fallout.

Cpl Hamm told Commission Members that he was scared to complain and feared reprisals. Footnote 247 This does not appear to have been considered by the DPM PS as a potential reason why Cpl Hamm did not make the complaint himself.

(i) Reasons for Corporal Hamm's Suspension

The DPM PS found that Cpl Hamm violated the Military Police Professional Code of Conduct for a number of reasons:

  1. he engaged in conduct likely to discredit the Military Police or that called into question his ability to carry out his duties in a faithful and impartial manner, contrary to paragraph 4(l) of the Code, by only divulging “certain information to certain persons at certain times,” and leading other Military Police personnel in believing that he was being targeted, harassed and unjustly dealt with by the senior Military Police personnel at Cold Lake; Footnote 248

It was alleged that the first violation occurred because:

  1. he “only divulged certain information to certain persons at certain times;” and
  2. he led other MP personnel in believing that he was being targeted, harassed and unjustly dealt with by the senior MP personnel at 4 Wing, Cold Lake.
  3. he disclosed military police information to the press when not authorized. Footnote 249
  4. he knowingly suppressed, misrepresented or falsified information in a report or statement, contrary to paragraph 4(h) of the Code, by withholding, until he was arrested, the fact he was [redacted text] and letting his supervisors believe he was on sick leave that would expire the day after the incident; Footnote 250

The first basis for the DPM PS conclusion does not disclose what information Cpl Hamm disclosed or did not disclose; to whom the disclosures or lack of disclosures were or were not made; why, how or in what respects any disclosure or lack of disclosure was improper; or what proper disclosure would have been in the circumstances. Similarly, the second basis suggests that Cpl Hamm improperly, or perhaps falsely, led other Military Police personnel to believe the matters alleged. Again, the finding did not disclose who was misled and in what respects anyone was misled.

The second branch of the first alleged violation flows from an investigation which the investigator was not, in fact, tasked to investigate. If the seconded Professional Standards investigator was tasked to investigate whether Cpl Hamm somehow misled various Military Police into thinking he was unjustly harassed, Cpl Hamm was never notified that such an allegation was being investigated. He was therefore deprived of any opportunity to make full answer and defence to the allegation. Which Military Police did he allegedly mislead and why were they misled? What did he tell them? In what respects was what he told them misleading? Cpl Hamm was never alerted that he should be addressing these issues in the Professional Standards investigation or even that he could refuse to be interviewed when the focus of the investigation turned from the named subject members to him.

COMMISSION MEMBERS' FINDING # 45:

The Commission Members find that the Deputy Provost Marshal Professional Standards erred in concluding that Corporal Hamm violated paragraph 4(l) of the Military Police Professional Code of Conduct.

COMMISSION MEMBERS' FINDING # 46:

The Commission Members find that the Deputy Provost Marshal Professional Standards' rationale for finding that Corporal Hamm violated paragraph 4(l) of the Military Police Professional Code of Conduct is so vague that it would be an unduly difficult allegation to defend against before the Military Police Credentials Review Board.

Cpl Hamm's second alleged Military Police Professional Code of Conduct violation was of paragraph 4(k), prohibiting disclosure of Military Police information unless authorized. This violation allegedly occurred when he divulged information pertaining to an ongoing CFNIS investigation to the media. In this case, the letter stated that “[...] the information supplied by Cpl Hamm in this regard cannot be used against the interests of the member by the MPCRB.

Although this allegation contained the noted disclaimer, it appears that the DPM PS believed that the information supplied by Cpl Hamm could be used to support its own allegation in the Letter of Final Disposition that Cpl Hamm violated the Military Police Professional Code of Conduct. Again, Cpl Hamm was never advised that he was a subject member of an investigation of this issue or that it was alleged that his contact with the press was a violation of the Military Police Professional Code of Conduct. As indicated previously, the failure to treat Cpl Hamm as a subject member of the investigation prevented Cpl Hamm from addressing whether he was authorized or had a reasonable belief that he was authorized to respond to the reporter's questions as he did.

COMMISSION MEMBERS' FINDING # 47:

The Commission Members find that it was unfair and improper for the Deputy Provost Marshal Professional Standards to rely on paragraph 4(k) of the Military Police Professional Code of Conduct, as Corporal Hamm was not advised either that he was a subject member of an investigation or that the Professional Standards investigation was addressing this issue.

The third basis on which Cpl Hamm allegedly violated the Military Police Professional Code of Conduct was paragraph 4(h), which prohibits knowingly suppressing, misrepresenting or falsifying information in a report or statement. He allegedly violated this clause by withholding the information that his sick leave was [redacted text] until after his arrest.

The evidence during all investigations of this issue was clear. There was no obligation on Cpl Hamm to disclose to WO Rice that his sick leave was [redacted text] . Cpl Hamm was also told this by his doctor. It is simply unfair and improper to find that a Military Police member who does not disclose information that the law states he does not have to disclose has “suppressed” the information so as to violate the Military Police Professional Code of Conduct.

COMMISSION MEMBERS' FINDING # 48:

The Commission Members find that Corporal Hamm did not violate paragraph 4(h) of the Military Police Professional Code of Conduct in failing to disclose the reason for his sick leave to his supervisor. Corporal Hamm had no obligation in law to disclose the nature of his illness. It is, therefore, both improper and contrary to law to make Corporal Hamm's failure to disclose the reason for his sick leave a basis for either the suspension of his credentials or a finding that Corporal Hamm breached the Military Police Professional Code of Conduct.

Chapter 3, section 14 of the Military Police Policies and Technical Procedures, “MP Professional Code of Conduct and MP Credentials Review Board” states:

14: Removal of Credentials: Although suspension and revocation of credentials are decided by the CFPM upon recommendation of the MPCRB, credentials may be temporarily removed by the DPM PS pending review of the matter by a MPCRB Panel when the member's alleged breach of the Code is so serious so as to render, considering all the circumstances of the case, the member incapable of effectively discharging their MP duties.

Thus, one (1) or more of the three (3) alleged breaches of the Military Police Professional Code of Conduct set out in the DPM PS' Letter of Final Disposition addressed to Cpl Hamm must have been seen as a breach of the Code that reached or exceeded the required level of seriousness necessary for the immediate suspension of Cpl Hamm's credentials. However, Cpl Hamm was never advised which, if any, of the grounds justified the suspension.

(ii) Identification of Contradictory Reasons for the Suspension of Corporal Hamm's Credentials

Although one would initially assume that Cpl Hamm's credentials were suspended for one (1) or more of the Military Police Professional Code of Conduct violations identified in the DPM PS' Letter of Final Disposition addressed to him on April 5, 2002, subsequent documents referencing the suspension purported to set out two (2) alternative reasons for the suspension. As noted previously, the telex dated April 15, 2002, sent by the DPM PS to Capt Chiasson directing the suspension of Cpl Hamm's credentials, stated that the reason was that Cpl Hamm violated the Military Police Professional Code of Conduct by “knowingly revealing information intended to mislead the investigator.” As the only investigation referenced in the telex was the Professional Standards investigation, the reference alleged an intention to mislead the Professional Standards investigator. The telex also stated that this was the reason for breaches by Cpl Hamm of both paragraph 4(h) and 4(l) of the Military Police Professional Code of Conduct.

Capt Chiasson told Commission Members:

I saw Colonel Carey about the reason why he was being suspended. This was prior to the message coming out. She explained to me that it was because Corporal Hamm had lied to one of her investigators. The way she explained was that he had ample opportunity to come forward and basically, in her words, tell the truth about what he was lying about, but didn't do that. This was basically the reason for the suspension. I was never provided with a report from Professional Standards to indicate what he had lied about. I was never provided with any documentation to prove that he had lied to any of the investigators and so on and so forth. Footnote 251

Although, as previously indicated, the seconded Professional Standards investigator stated in his report that he confronted Cpl Hamm during his interview “with several contradictions in his account,” and that “his answers and explanations raised doubts in my mind as to his credibility,” he told Commission Members, in relation to the statement in the telex, that he did not believe Cpl Hamm misled him during the investigation or that he had any reason to question his credibility:

SGT DUSSAULT: I know where you are going but the issue is Tim never misled me. I only spoke to him once at the end. The report contains not only my investigation, but it incorporates all the investigation of NIS. If you read the report, obviously Tim didn't mislead me. I don't think so. I would have to re-read it, but that's not the impression I got.

[.]

SGT DUSSAULT: Okay. I understand your rationale and I respect it because I understand what you are saying, that clearly somebody that reads that has the - you know - the investigative report was done by Claude Dussault. I totally agree with you. It should have been written differently. It should have been specified, you know in relation to what. But my reaction is to tell you, no, Tim Hamm never misled me. In fact, he admitted to a lot of discrepancies. The issues of misleading were more in relation to what was provided to NIS, I took the NIS report and went up and met everybody. Footnote 252

When asked his opinion generally about Cpl Hamm's credibility during the Professional Standards investigation, Sgt Dussault replied:

I didn't get the sense that he was lying to me, because a lot of the discrepancies he provided some sort of explanation for. That's all I can say about it. Footnote 253

Capt Pineau, the CFNIS investigator, told Commission Members:

MS DUNBAR: Based on your investigation, did you formulate any opinions on the credibility of Corporal Hamm?

CAPT PINEAU: Not based on my investigation, and not based on what I saw of him in the NIS. I know that the PS investigation had problems with his credibility, but neither myself nor Master Corporal Rivard did, nor did any of the NIS when he came to us. How PS arrived at their conclusion, I don't know. MS DUNBAR: Was there anything that you saw that has made you doubt his credibility?

CAPT PINEAU: Nothing that I saw personally. Footnote 254

On April 22, 2002, MWO MacFarlane, in an e-mail to Maj Pumphrey, Acting DPM PS, enunciated a second alternative rationale for the suspension. The breach was of paragraph 4(h) of the Military Police Professional Code of Conduct because Cpl Hamm was not forthcoming with all information when he contacted WO Hamm and also provided false information to WO Hamm. On May 1, 2002, Maj Pumphrey, Acting DPM PS, wrote to the VCDS indicating that Cpl Hamm's credentials had been suspended because he provided incomplete and biased information to his brother, which his brother then used to formulate the allegations against the respondents in the Professional Standards investigation.

The allegation that Cpl Hamm violated the Military Police Professional Code of Conduct by providing false information to or withholding information from WO Hamm was not directly stated in the DPM PS' Letter of Final Disposition addressed to Cpl Hamm. However, as indicated, MWO MacFarlane and Maj Pumphrey, Acting DPM PS, in later correspondence stated that this was the reason for the suspension of Cpl Hamm's credentials. Commission Members find that there was no evidence to establish that Cpl Hamm misinformed or withheld material information from WO Hamm.

In the DPM PS' Letter of Final Disposition and subsequent documentation, six (6) different violations of the Military Police Professional Code of Conduct have at various times been alleged by the DPM PS against Cpl Hamm, either arising out of the Professional Standards investigation or as other potential reasons for the suspension of his credentials:

  1. misinforming or withholding information from his supervisors about the reason for his sick leave;
  2. divulging certain information to certain persons at certain times;
  3. leading other Military Police personnel in believing that he was being targeted, harassed and unjustly dealt with by the senior Military Police personnel at Cold Lake;
  4. disclosing Military Police information to the press when not authorized.
  5. during an investigation knowingly revealed information intended to mislead the investigator;
  6. he was not forthcoming with all information when he contacted WO Hamm and also provided incomplete and biased information to his brother, which WO Hamm then used to formulate the allegations against the respondents in the Professional Standards investigation.

As previously indicated, the Professional Standards investigation report alleged that Cpl Hamm violated the Military Police Professional Code of Conduct by committing five (5) service offences to which the CFNIS investigation was “blinded.Footnote 255.

On April 23, 2002, Capt Chiasson confirmed that Cpl Hamm's credentials were suspended by telex message addressed to the DPM PS at National Defence Headquarters in Ottawa.

COMMISSION MEMBERS' FINDING # 49:

The Commission Members find that there was no evidence to support the conclusion of the Deputy Provost Marshal Professional Standards that Corporal Hamm knowingly revealed information intended to mislead the investigator.

COMMISSION MEMBERS' FINDING # 50:

The Commission Members find that there was no evidence to establish that Corporal Hamm misinformed or withheld material information from Warrant Officer Hamm.

COMMISSION MEMBERS' FINDING # 51:

The Commission Members find the suspension of Corporal Hamm's credentials for supplying false information to or withholding information from Warrant Officer Hamm was not justified.

COMMISSION MEMBERS' FINDING # 52:

The Commission Members find that all the various and contradictory reasons advanced by the Deputy Provost Marshal Professional Standards to suspend Corporal Hamm's credentials are without merit and contrary to the evidence.

COMMISSION MEMBERS' RECOMMENDATION # 9:

The Commission Members' recommend that Corporal Hamm's credentials be immediately reinstated.

COMMISSION MEMBERS' RECOMMENDATION # 10:

The Commission Members recommend that in all future complaint investigations, if an investigator perceives that a complainant may be suspected of having committed a criminal or service offence or a professional standards violation, a new and separate investigation be commenced with the complainant as the subject member. This will ensure the individual is afforded his or her rights according to law.

V. SUMMARY OF THE COMMISSION MEMBERS' FINDINGS

Finding #1:
The Commission Members find that Warrant Officer Rice and Chief Warrant Officer Gauvin did not know that Corporal Hamm's sick leave was [redacted text] when they chose Corporal Hamm to deploy to Inuvik on December 26, 2000. The Commission Members accept Warrant Officer Rice's statement that he would not have called Corporal Hamm on December 12, 2000 if he had known Corporal Hamm's sick leave was [redacted text].

Finding #2:
The Commission Members find that, in light of the information that was available to them, it was reasonable for Warrant Officer Rice and Chief Warrant Officer Gauvin to believe that Corporal Hamm would return to work on December 14, 2000 and would be available to deploy to Inuvik on December 26, 2000.

Finding #3:
The Commission Members do not accept in its entirety the evidence given by Warrant Officer Rice or Corporal Hamm. In certain areas, their evidence was self-serving or inconsistent to the point that their credibility was questionable.

Finding #4:
The Commission Members find no substantive evidence to support the conclusion reached by the Deputy Provost Marshal Professional Standards that Corporal Hamm manipulated the information to drive events in his favour.

Finding #5:
The Commission Members accept, on a balance of probabilities, Corporal Hamm's statement that he did not refuse outright to go on the deployment. However, the Commission Members also find, on a balance of probabilities, that due to Corporal Hamm's ambiguity in his response, it was not unreasonable for Warrant Officer Rice to form the opinion that Corporal Hamm refused to deploy.

Finding #6:
The Commission Members find, on a balance of probabilities, Warrant Officer Rice did not attempt to call Corporal Hamm back after their telephone conversation.

Finding #7:
The Commission Members find, on a balance of probabilities, that Warrant Officer Rice used profanity during his telephone conversation with Corporal Hamm. The Commission Members therefore find that Corporal Hamm was not insubordinate in hanging up the telephone.

Finding #8:
The Commission Members accept Warrant Officer Rice's explanation that his purpose in summoning Corporal Hamm to attend his office, after the latter hung up the telephone, was two-fold: (i) to resolve whether Corporal Hamm would prepare to deploy and (ii) to resolve the perceived discipline issue.

Finding #9:
The Commission Members find that the order or instruction by Warrant Officer Rice to come to the guardhouse is separate from the arrest itself. Therefore, although an arrest of a member for a service offence does not constitute a “recall to duty”, the instruction by Warrant Officer Rice to bring Corporal Hamm to the guardhouse was a “recall to duty” within the meaning of Queen's Regulations and Orders section 16.01 and failed to meet the prerequisites of the section. Corporal Hamm's Commanding Officer did not personally direct the recall.

Finding #10:
The Commission Members find that Warrant Officer Rice, in ordering Corporal Hamm to be arrested if he refused to come in to the office voluntarily, was acting as a Military Police member and not in his capacity as a non-commissioned officer carrying out an administrative function. A Military Police member ordering or carrying out an arrest must follow the law and policies governing the exercise of Military Police functions and duties.

Finding #11:
The Commission Members find that, while insubordination or disobeying a lawful command are arrestable offences under the National Defence Act, in the circumstances of this case the arrest was not necessary nor was it reasonable and proportional to the alleged violation.

Finding #12:
The Commission Members find that Warrant Officer Rice's direction to the arresting officers in relation to Corporal Hamm's arrest failed to follow applicable Military Police Policies and Technical Procedures, namely sections 10, 11, and 16, relating to arrest without a warrant. The Commission Members also find that Warrant Officer Rice should have known of the policy requirements as well as those under section 495 (arrest without a warrant) of the Criminal Code of Canada and section 105.01 of the Queen's Regulations and Orders.

Finding #13:
The Commission Members find that Master Corporal Paul and Corporal Murray in carrying out the arrest of Corporal Hamm failed to follow applicable Military Police Policies and Technical Procedures, namely sections 10, 11, 13 and 16. The Commission Members also find that Master Corporal Paul and Corporal Murray should have known of the policy requirements as well as those under section 495 (arrest without a warrant) of the Criminal Code of Canada.

Finding #14:
The Commission Members find that Warrant Officer Rice did not properly exercise his discretion to order an arrest. Warrant Officer Rice failed to take into consideration existing law requiring a distinction to be drawn between the power to arrest and its exercise and he failed to consider whether, in the circumstances, the arrest of Corporal Hamm was necessary, justified in the public interest or proportional to the alleged violation.

Finding #15:
The Commission Members find that Master Corporal Paul and Corporal Murray, even though they were ordered to arrest Corporal Hamm, failed to exercise their discretionary powers of arrest as required of them as Military Police. As such, they failed to consider the distinction that must be drawn between a power to arrest and its exercise and they failed to consider whether, in the circumstances, the arrest was necessary, justified in the public interest or proportional to the alleged violation.

Finding #16:
The Commission Members find that Warrant Officer Rice did not provide sufficient information to Master Corporal Paul and Corporal Murray to enable them to form the reasonable and probable grounds required to effect a lawful arrest.

Finding #17:
The Commission Members find that Master Corporal Paul and Corporal Murray failed to confirm either the reason why Warrant Officer Rice wanted to see Corporal Hamm or the reason for the arrest before leaving the guardhouse for Corporal Hamm's residence. This lack of information prevented them from properly informing Corporal Hamm of the reasons for his arrest.

Finding #18:
The Commission Members find that Master Corporal Paul and Corporal Murray should have sought more information as it was their duty as the arresting officers to form the reasonable and probable grounds to arrest. As they lacked such grounds, the arrest of Corporal Hamm was unlawful.

Finding #19:
The Commission Members find that Master Corporal Paul and Corporal Murray did not form the reasonable and probable grounds to arrest Corporal Hamm and that no reasonable person could have genuinely believed that such grounds existed. Accordingly, the Commission Members find that the detention was arbitrary as per section 9 of the Canadian Charter of Rights and Freedoms.

Finding #20:
The Commission Members find that Corporal Hamm was not promptly informed of the reasons for his arrest which was in violation of paragraph 10(a) of the Canadian Charter of Rights and Freedoms. Accordingly, the Commission Members find that the arrest of Corporal Hamm was unlawful.

Finding #21:
The Commission Members find that Corporal Hamm had a right to make an informed determination whether the order given by Warrant Officer Rice was manifestly unlawful. It was therefore essential for Corporal Hamm, who pursuant to Queen's Regulations and Orders, section 19.015, note “C”, could disobey a manifestly unlawful command, to be told why Warrant Officer Rice wanted Corporal Hamm to attend his office.

Finding #22:
The Commission Members find that Warrant Officer Rice acted beyond the scope of his authority and responsibility in the circumstances. It is therefore the Commission Members' finding that Warrant Officer Rice abused his authority.

Finding #23:
The Commission Members concur with the conclusion of the Deputy Provost Marshal Professional Standards that the fact that Warrant Officer Rice's course of action was chosen [redacted text] only served to inflame the situation. A different approach could have resolved the matter in a more appropriate fashion.

Finding #24:
The Commission Members find that Master Corporal Paul had a minimum of two (2) opportunities to advise Warrant Officer Rice that Corporal Hamm's leave was [redacted text]: (i) at Corporal Hamm's residence after talking to Doctor Burke and (ii) in Warrant Officer Rice's office when Warrant Officer Rice confronted Corporal Hamm in Master Corporal Paul's presence.

Finding #25:
The Commission Members find that once Master Corporal Paul spoke to Doctor Burke at Corporal Hamm's residence, he should have advised Warrant Officer Rice that Corporal Hamm was [redacted text] or that questions had been raised about his sick leave status, in order to obtain confirmation that the arrest was still warranted.

Finding #26:
The Commission Members find that the notes and records of the incident made by Master Corporal Paul were deficient and not in accordance with best police practices. The failure of Master Corporal Paul to record the fact or details of his conversation with Doctor Burke in his notes or in any subsequent reports was a serious error.

Finding #27:
The Commission Members find that Chief Warrant Officer Gauvin did not have the authority to release Corporal Hamm. His releasing Corporal Hamm was not in accordance with the principles of subsection 158(1) of the National Defence Act and Queen's Regulations and Orders section 105.12. Chief Warrant Officer Gauvin should have called on the arresting officer, Master Corporal Paul, to release Corporal Hamm from arrest.

Finding #28:
The Commission Members find that the measure taken to advise Chief Warrant Officer Gauvin of the requirements for the release of arrested persons, pursuant to the direction in the Deputy Provost Marshal Professional Standards' Letter of Final Disposition, was appropriate and sufficient in the circumstances.

Finding #29:
The Commission Members find that, considering all of the circumstances, including the fact that Corporal Hamm was under stress and had just been arrested by his peers, Chief Warrant Officer Gauvin's comments and actions during the encounter in his office could well have caused Corporal Hamm to feel intimidated. However, the Commission Members could not find, on a balance of probabilities, that Chief Warrant Officer Gauvin attempted or intended to intimidate Corporal Hamm from complaining further.

Finding #30:
The Commission Members find that Chief Warrant Officer Gauvin should have used more appropriate language and his comments reflected poor police practice and management.

Finding #31:
The Commission Members find that the correspondence received from the Deputy Provost Marshal Professional Standards regarding the “internal” designation of Warrant Officer Hamm's complaint did not satisfactorily explain how the designation came about.

Finding #32:
The Commission Members find, on a balance of probabilities, that the internal designation was an error as there is no clear evidence to the contrary.

Finding #33:
The Commission Members find that errors in classifying complaints as “internal” rather than Part IV conduct complaints have the potential effect of nullifying important statutory rights of complainants and subjects of complaints.

Finding #34:
The Commission Members find that Corporal Hamm and Warrant Officer Hamm became subject members of the Professional Standards investigation when the seconded investigator determined early in the investigation that Corporal Hamm might have committed service offences or might have violated the Military Police Professional Code of Conduct and when the investigator determined that Warrant Officer Hamm failed to confirm the accuracy of the complaint.

Finding #35:
The Commission Members find that when the Professional Standards investigation focused on Corporal Hamm and Warrant Officer Hamm as subject members of the investigation, a new and separate investigation of the allegations against Corporal Hamm and Warrant Officer Hamm should have been commenced. Corporal Hamm and Warrant Officer Hamm should then have been provided with the appropriate notices and protections required by law and policy.

Finding #36:
The Commission Members find that the failure to designate Corporal Hamm and Warrant Officer Hamm as subject members of the investigation deprived them of their basic rights to natural justice, their rights to appreciate and defend themselves against the allegations or potential jeopardy they were facing, their rights of choice to refuse to be interviewed, and their rights to have counsel or an assisting officer present.

Finding #37:
The Commission Members disagree with four (4) of the five (5) conclusions of the Deputy Provost Marshal Professional Standards as stated in her Letter of Final Disposition dated April 5, 2002 that Corporal Hamm committed five (5) breaches to the National Defence Act.

Finding #38:
The Commission Members find that there was insufficient evidence to establish, on a balance of probabilities, that Corporal Hamm misinformed or provided misleading information to Warrant Officer Hamm about any matter relevant or material to Warrant Officer Hamm's complaint. Accordingly, the Commission Members find that Corporal Hamm did not mislead Warrant Officer Hamm in the five (5) manners detailed by the Deputy Provost Marshal Professional Standards.

Finding #39:
The Commission Members find that Warrant Officer Hamm did not err nor was he negligent in basing his complaint on information received from Corporal Hamm nor did Warrant Officer Hamm prematurely file his complaint based on the information received.

Finding #40:
The Commission Members find that Warrant Officer Hamm had an obligation, pursuant to section 7 of the Military Police Professional Code of Conduct, to report to his superior in the Military Police Chain of Command a belief in or awareness of an allegation that a member of the Military Police had breached the Military Police Professional Code of Conduct. The information Warrant Officer Hamm received on December 12, 2000 provided him with the requisite belief or awareness. There is no requirement to verify or investigate the belief or allegation before it is reported.

Finding #41:
The Commission Members find that Warrant Officer Hamm properly reported his reasonable belief to, and sought advice from, his superior in the Military Police Chain of Command at 8 Wing Canadian Forces Base, Trenton, Master Warrant Officer Dennique.

Finding #42:
The Commission Members find that it was reasonable and proper, in the circumstances, for Warrant Officer Hamm to follow Master Warrant Officer Dennique's advice.

Finding #43:
The Commission Members find that it was reasonable and proper for Warrant Officer Hamm to advise Chief Warrant Officer Galway of his concerns and to forward the information to Chief Warrant Officer Galway.

Finding #44:
The Commission Members find that, in the circumstances, Warrant Officer Hamm should not have been counselled and the direction to counsel Warrant Officer Hamm issued by the Deputy Provost Marshal Professional Standards was inappropriate.

Finding #45:
The Commission Members find that the Deputy Provost Marshal Professional Standards erred in concluding that Corporal Hamm violated paragraph 4(l) of the Military Police Professional Code of Conduct.

Finding #46:
The Commission Members find that the Deputy Provost Marshal Professional Standards' rationale for finding that Corporal Hamm violated paragraph 4(l) of the Military Professional Code of Conduct is so vague that it would be an unduly difficult allegation to defend against before the Military Police Credentials Review Board.

Finding #47:
The Commission Members find that it was unfair and improper for the Deputy Provost Marshal Professional Standards to rely on paragraph 4(k) of the Military Police Professional Code of Conduct, as Corporal Hamm was not advised either that he was a subject member of an investigation or that the Professional Standards investigation was addressing this issue.

Finding #48:
The Commission Members find that Corporal Hamm did not violate paragraph 4(h) of the Military Police Professional Code of Conduct in failing to disclose the reason for his sick leave to his supervisor. Corporal Hamm had no obligation in law to disclose the nature of his illness. It is, therefore, both improper and contrary to law to make Corporal Hamm's failure to disclose the reason for his sick leave a basis for either the suspension of his credentials or a finding that Corporal Hamm breached the Military Police Professional Code of Conduct.

Finding #49:
The Commission Members find that there was no evidence to support the conclusion of the Deputy Provost Marshal Professional Standards that Corporal Hamm knowingly revealed information intended to mislead the investigator.

Finding #50:
The Commission Members find that there was no evidence to establish that Corporal Hamm misinformed or withheld material information from Warrant Officer Hamm.

Finding #51:
The Commission Members find the suspension of Corporal Hamm's credentials for supplying false information to or withholding information from Warrant Officer Hamm was not justified.

Finding #52:
The Commission Members find that all the various and contradictory reasons advanced by the Deputy Provost Marshal Professional Standards to suspend Corporal Hamm's credentials are without merit and contrary to the evidence.

VI. SUMMARY OF THE COMMISSION MEMBERS' RECOMMENDATIONS

Recommendation #1:
The Commission Members recommend that in order to ensure high police standards, Military Police members be trained to understand, respect and fully protect the rights of individuals as well as the law governing the exercise of powers of arrest.

Recommendation #2:
The Commission Members recommend that Warrant Officer Rice receive, if he has not already, instructions on the elements and requirements for a proper arrest and the rights of suspects who are subjected to an arrest.

Recommendation #3:
The Commission Members recommend that the Canadian Forces Provost Marshal impose corrective measures on Warrant Officer Rice for abuse of authority.

Recommendation #4:
The Commission Members recommend that Warrant Officer Rice be given additional management training.

Recommendation #5:
The Commission Members recommend that additional training be provided to Master Corporal Paul and Corporal Murray on Military Police powers of arrest, the law and Military Police Policies governing the exercise of powers of arrest and note-taking.

Recommendation #6:
The Commission Members recommend that the Canadian Forces Provost Marshal impose corrective measures on Master Corporal Paul and Corporal Murray for the unlawful arrest of Corporal Hamm in failing to form the reasonable and probable grounds prior to the arrest and for violating Corporal Hamm's section 10(a) Charter right by not promptly informing him of the reason for his arrest.

Recommendation #7:
The Commission Members recommend that the Canadian Forces Provost Marshal implement safeguards to ensure that the improper classification and handling of complaints will not reoccur. The Canadian Forces Provost Marshal should advise the Complaints Commission of the safeguards instituted to protect complainants' rights in this regard and of the procedures for classifying complaints.

Recommendation #8:
The Commission Members recommend that the Deputy Provost Marshal Professional Standards acknowledge, with appropriate supplementary correspondence, that the direction to counsel Warrant Officer Hamm was inappropriate.

Recommendation #9:
The Commission Members recommend that Corporal Hamm's credentials be immediately reinstated.

Recommendation #10:
The Commission Members recommend that in all future complaint investigations, if an investigator perceives that a complainant may be suspected of having committed a criminal or service offence or a professional standards violation, a new and separate investigation be commenced with the complainant as the subject member. This will ensure the individual is afforded his or her rights according to law.

VII. Interim Report Conclusion

The Commission Members recognize the turmoil these complaints, and the subsequent investigations, has had on the subject members, the complainants and their families.

The December 12, 2000 incident that led to three (3) investigations first by the Canadian Forces National Investigation Service, Professional Standards and finally the Complaints Commission, strikes at core issues in military policing, such as the proper role and conduct of the Military Police when conducting arrests. Other serious allegations were investigated relating to abuse of authority by superiors and attempts to influence or punish complainants for having exercised their right to make a complaint.

The Commission Members are of the view that the Complaints Commission has an important educational role to play in the policing arena. Equally important is the Complaints Commission's role in ensuring that complainants feel free to advance their complaints in an atmosphere free from reprisals. No one should be denied the right to complain and have his or her complaint investigated in a thorough, accurate and unbiased manner.

The Commission Members' findings and recommendations are a result of careful consideration and weighing of the complainants' allegations including due process and fairness to the subject members. The Interim Report is intended to assist in making positive changes. In order to effect any form of positive change, it requires willingness and cooperation between the two (2) organizations, namely, the Military Police headed by the Canadian Forces Provost Marshal and the Complaints Commission. In this spirit, the Commission Members believe that public confidence in the Military Police services would continue to grow.

Ottawa, October 20, 2003

________________________
Peter Seheult
Member

       

________________________
Odilon Emond
Member

FINAL EXECUTIVE SUMMARY

Table of Contents

Final Executive Summary

  1. Background
  2. The Complaints
  3. Issues
  4. The Public Interest Investigation and Report
  5. Summary of the Commission Members' Final Findings
  6. Summary of the Commission Members' Final Recommendations

(a) Background

On December 12, 2000, Corporal (Cpl) Timothy Hamm, a Military Police member, was serving with the Military Police Detachment at 4 Wing, Cold Lake, Alberta. On that day, Cpl Hamm was at home, having received a seven (7) day sick leave pass for [redacted text] on December 7, 2000. At about 10.00 hours, Cpl Hamm received a telephone call from his supervisor, Warrant Officer (WO) Stephen Rice (then at the rank of Sergeant), during which WO Rice notified Cpl Hamm to begin preparations to deploy to Inuvik on December 26, 2000. The conversation became heated and ended with Cpl Hamm abruptly hanging up the telephone. WO Rice was left with the impression that Cpl Hamm had refused to accept the deployment tasking and had been insubordinate.

WO Rice called in two (2) Military Police members working at the Detachment, Master Corporal (MCpl) David Paul (then at the rank of Cpl) and Cpl Pierre Murray. He ordered them to go to Cpl Hamm's residence and order Cpl Hamm to attend the guardhouse. If he refused, they were to arrest Cpl Hamm and bring him to WO Rice.

The two (2) members attended Cpl Hamm's residence and told Cpl Hamm of WO Rice's order. Cpl Hamm called his doctor, Captain (Capt) Paul Burke, and was advised that he was not required to go in to work while on sick leave. MCpl Paul also spoke to Capt Burke and was advised the same. MCpl Paul told Capt Burke that unless he could provide him with a specific authority for Cpl Hamm refusing to accompany them, he would carry out the arrest. Cpl Hamm told the two (2) members that he would follow his doctor's advice. The two (2) members then arrested Cpl Hamm. MCpl Paul read him his Canadian Charter of Rights and Freedoms (Charter)Footnote 256 rights. Cpl Hamm claimed that, at his residence, he asked the arresting members on a number of occasions why he was being arrested and he was not given a reason. Cpl Hamm was then transported to the guardhouse.

At the guardhouse, Cpl Hamm was brought before WO Rice. This short meeting became heated. WO Rice more than once ordered Cpl Hamm to come to attention. Cpl Hamm refused, claiming he was under arrest and wanted to speak to counsel. Cpl Hamm abruptly left the meeting and went to the guardhouse interview room. He remained there, under guard, for approximately two (2) hours.

While in the interview room, Cpl Hamm unsuccessfully tried to contact Duty Counsel. He then called his brother, WO Michael Hamm, who is also a member of the Military Police and was posted to the Military Police Detachment at 8 Wing, Trenton, Ontario. Cpl Hamm advised his brother of his arrest and suggested he was arrested for no reason. During this conversation, WO Hamm also spoke to the arresting officer, MCpl Paul, who told him, among other things, that the situation had gotten “way out of hand” and agreed with WO Hamm's suggestion that the arrest was unlawful.

At some point while Cpl Hamm was in the interview room, Cpl Hamm's doctor spoke to WO Rice by telephone and advised WO Rice that Cpl Hamm's sick leave was given for [redacted text]. At about 13.00 hours, WO Rice briefed his superior, Chief Warrant Officer (CWO) Pierre Gauvin who had been away during the morning and was unable to be contacted about the situation. After being briefed, CWO Gauvin had Cpl Hamm brought to his office. CWO Gauvin claimed at this meeting, with WO Rice present, that he attempted to diffuse the situation. Cpl Hamm alleged that CWO Gauvin made certain statements that led him to feel intimidated and suggested to him that he should not complain further. At this meeting, WO Rice apologized to Cpl Hamm, stating that if he had known Cpl Hamm's leave was [redacted text] he would not have tasked him for the deployment to Inuvik in the first place. CWO Gauvin ultimately release.

Cpl Hamm from arrest by making a comment “I de-arrest you.Cpl Hamm was then driven home by another member of the Detachment.

WO Hamm, after speaking to his brother on December 12, 2000, became concerned about his younger brother's welfare and believed he might have been subjected to an unlawful arrest. He sought advice about what to do from his own superior at 8 Wing, Trenton, Ontario, Master Warrant Officer (MWO) Richard Dennique, and then from CWO Frank Galway, the A3 Security and Military Police (A3 SAMP) Chief Warrant Officer with the office of 1 Canadian Air Division Provost Marshal (1 CAD PM) at 17 Wing, Winnipeg, Manitoba. Ultimately, he provided some details of the information he had received to CWO Galway. CWO Galway, believing the information disclosed a possible breach of the Military Police Professional Code of ConductFootnote 257 , provided the information he had to the Deputy Provost Marshal Professional Standards (DPM PS). Independently, on December 14, 2000, WO Hamm sent a formal letter of complaint to the DPM PS.

WO Hamm's letter of complaint outlined in detail the information he had learned from Cpl Hamm regarding the events of December 12, 2000. WO Hamm also set out some matters affecting Cpl Hamm that had occurred at 4 Wing, Cold Lake during the preceding six (6) months. These incidents suggested that Cpl Hamm's superiors might have been mistreating Cpl Hamm or might have otherwise acted improperly during that period. WO Hamm emphasized in his letter that he was recounting third hand information, much of which he had received from Cpl Hamm.

On December 14, 2000, the DPM PS, referring to material received from CWO Galway on December 13, 2000 and the statement of complaint of WO Hamm dated December 14, 2000, issued tasking instructions to Sergeant (Sgt) Claude Dussault, a member of the Royal Canadian Mounted Police (RCMP) who was seconded to the Professional Standards section under the direction of the DPM PS. The tasking instructions defined four (4) allegations made by WO Hamm that were to be investigated:

  1. that WO Rice may have abused his authority when, without lawful authority, he ordered the arrest of Cpl Hamm;
  2. that WO Rice may have, while carrying out his duties, acted in a discriminatory or discourteous manner towards Cpl Hamm. This was during a verbal reprimanding which took place in front of several other people;
  3. that MCpl Paul and Cpl Murray may have knowingly, without good cause, carried out an arrest that was unlawful when they arrested Cpl Hamm. They could not provide Cpl Hamm with a reason for his arrest; and
  4. that CWO Gauvin may have intimidated or attempted to intimidate Cpl Hamm from complaining about the conduct of the Military Police members who ordered and effected his arrest.

The tasking instructions identified the subject members of the investigation as being CWO Gauvin, WO Rice, MCpl Paul and Cpl Murray. They directed that a Professional Standards “internal” investigation was to be conducted, in accordance with the Military Police Policies and Technical Procedures,Footnote 258 to determine if the actions of the Military Police were in accordance with their policies. On December 15, 2000, the DPM PS, Lieutenant-Colonel (LCol) Shelley Carey notified the four (4) subject members of the investigation and the complainant, WO Hamm, in writing, that she had ordered a Professional Standards Internal Investigation into the subject members' professional conduct.

On December 19, 2000, the Canadian Forces National Investigation Service (CFNIS) commenced an investigation to determine whether the circumstances described in WO Hamm's complaint disclosed the commission of criminal or service offences by members of the Military Police. The Professional Standards investigation was held in abeyance to await the completion of the CFNIS investigation.

The CFNIS investigation ultimately focused on two (2) basic issues: whether service or criminal offences had been committed in relation to the alleged unlawful arrest of Cpl Hamm on December 12, 2000 and whether CWO Gauvin had tampered with a witness who testified at an earlier summary trial of Cpl Hamm. The issue of witness tampering arose out of a reference to underlying allegations by WO Hamm in his formal letter of complaint dated December 14, 2000.

On July 8, 2001, the CFNIS found that there was no evidence to support the allegation of witness tampering directed against CWO Gauvin. Their investigation also found that MCpl Paul and Cpl Murray had reasonable grounds to believe that the service offence had been committed when Cpl Hamm refused to accompany them pursuant to WO Rice's order. They were therefore found to be acting in good faith and had reasonable grounds to believe their actions were justified. This being the case, no further action against them was contemplated. The CFNIS investigation also found that WO Rice “recalledCpl Hamm to duty contrary to Queen's Regulations and Orders for the Canadian Forces (QR&O) section 16.01,Footnote 259 and concluded that he would be charged with one (1) count of Neglect to the Prejudice of Good Order and Discipline contrary to paragraph 129(2)(b) of the National Defence ActFootnote 260 (NDA), for breaching the Regulations by failing to ensure that Cpl Hamm's Commanding Officer directed the recall. WO Rice was subsequently charged and had his credentials suspended for approximately ten (10) months.

On August 3, 2001, Major (Maj) Paul Thobo-Carlsen, the 4 Wing Security and Military Police Officer, dissatisfied with the outcome of the investigation by the CFNIS, wrote to the Deputy Provost Marshal of the National Investigation Service (DPM NIS) expressing his dissatisfaction and formally requesting that the CFNIS investigate several breaches of service regulations that Maj Thobo-Carlsen alleged were committed by Cpl Hamm relating to the events of December 12, 2000.

On August 9, 2001, WO Rice was summarily tried on the subsection 129(2) charge arising out of the CFNIS investigation and was found not guilty.

On August 29, 2001, Superintendent (Supt) Russ Grabb, then Officer Commanding of the CFNIS, Sensitive Investigation Detachment, replied to and refused Maj Thobo-Carlsen's request for further investigation of his allegations regarding Cpl Hamm. He disputed suggestions that the investigation conducted by the CFNIS was deficient and indicated that he would forward the CFNIS investigative materials to the Military Police Complaints Commission (Complaints Commission) requesting an unbiased review of the CFNIS and all issues incidental to the investigation.

On August 30, 2001, Supt Grabb wrote to the Chairperson of the Complaints Commission asking for a complete review of the complaint, the investigation and issues related to the CFNIS report dated July 8, 2001. This was the first time that the Complaints Commission learned of WO Hamm's complaint or of the investigations by both the CFNIS and the DPM PS in relation to that complaint.

On November 9, 2001, the Chairperson of the Complaints Commission wrote to the DPM PS, LCol Carey, referencing the letter received from Supt Grabb and the complaint lodged by WO Hamm. The Chairperson inquired about the rationale for the classification as an “internal” investigation and the failure to notify the Complaints Commission of the conduct complaint lodged by WO Hamm as required by subparagraph 250.21(2)(c)(i) of the NDA.Footnote 261 The DPM PS, LCol Carey, in subsequent correspondence, responded that the failure to notify the Complaints Commission was an oversight, that the situation had been rectified, and that it would not reoccur.

The Professional Standards investigation report was submitted on February 21, 2002. The investigation concluded that none of the allegations against the named subject members, WO Rice, CWO Gauvin, MCpl Paul and Cpl Murray, were supported by the evidence.

On April 5, 2002 and May 2, 2002, the DPM PS delivered Letters of Final Disposition of the Professional Standards Investigation to the named subject members, the complainant, WO Hamm and to Cpl Hamm. The Letters of Final Disposition dated April 5, 2002, were signed by LCol Carey, DPM PS, and the further Letters of Final Disposition dated May 2, 2002, were signed by Maj John Pumphrey, then acting DPM PS. The letters of April 5, 2002 were redone and signed on May 2, 2002 to ensure each individual received only the information pertaining to him. As was the case in the Professional Standards investigation report, and for essentially the same reasons, the four (4) allegations against the four (4) named subject members were stated to be unsupported based on the information, facts and evidence gathered in the investigation. The May 2, 2002 Letter of Final Disposition addressed to WO Rice noted his acknowledgement that he should not have [redacted text] during the incident with Cpl Hamm. It was directed that he should be counselled to ensure that, in similar circumstances, “he steps back from the situation before taking action to ensure the right decision is made.” The Letter of Final Disposition addressed to CWO Gauvin noted that he was to be advised that he should not have released Cpl Hamm from custody on December 12, 2000 as it was the arresting officer's authority to do so.

The Letter of Final Disposition addressed to WO Hamm criticized him for having filed a complaint based solely on his perceptions that his brother was in distress and was being harassed and without first confirming the accuracy of his complaint. It directed that, although WO Hamm was not wrong to engage the Chain of Command in the matter, he should be counselled “to ensure that he ascertains a clearer understanding of the given situation, before involving himself in matters pertaining to another unit.”.

The Letter of Final Disposition addressed to Cpl Hamm found that he committed five (5) service offences in connection with the events of December 12, 2000; that in five (5) instances he supplied his brother with misleading information used as a basis for his lodging the complaint and that he committed three (3) violations of the Military Police Professional Code of Conduct. On April 15, 2002, the DPM PS directed the suspension of Cpl Hamm's Military Police credentials. The suspension was confirmed on April 23, 2002. Cpl Hamm's credentials have remained suspended as of the date this report was written.

(b) The Complaints

On April 30, 2002, WO Hamm asked the Complaints Commission to review the Professional Standards investigation and the CFNIS investigation. WO Hamm indicated that he was to be counselled and that Cpl Hamm's credentials had been suspended. WO Hamm stated:

I would like to point out that I am the complainant in this matter, and Corporal Hamm was the victim. As a result of my complaint, it would appear that Corporal Hamm and I have now become subjects, and there are serious allegations made by professional standards with respect to his credibility, and by extension, mine. [.]

I am completely dismayed with the conduct and outcome of the investigation by Professional Standards, and am asking that the entire investigation, including the investigative action taken by the Canadian Forces National Investigation Service, be reviewed.

On May 15, 2002, Cpl Hamm lodged a complaint in the first instance with the Complaints Commission regarding his arrest on December 12, 2000, the Professional Standards investigation and subsequent actions taken against him by the DPM PS. Cpl Hamm claimed he was treated unfairly and further alleged the Professional Standards investigation was “inept” and biased.

On October 31, 2002, the Chairperson of the Complaints Commission decided, pursuant to subsection 250.38(1) of the NDA, that it was advisable, in the public interest, to cause the Complaints Commission to conduct an investigation into the complaints of Cpl Hamm and WO Hamm and, if warranted, to hold a hearing. As both complaints concerned the same incidents, it was decided to investigate them jointly.

On December 30, 2002, pursuant to subsection 250.11(3) of the NDA, the Chairperson delegated her authority to conduct this public interest investigation and to prepare and send Interim and Final Reports in relation to it, to Commission Members Mr. Peter Seheult as Chairperson and Mr. Odilon Emond.

(c) Issues

The main issues examined by the Complaints Commission during this public interest investigation were as follows:

  1. Was the order to arrest Cpl Hamm issued by WO Rice proper and lawful?
  2. Was the subsequent arrest by MCpl Paul and Cpl Murray proper and lawful?
  3. Was the release from arrest by CWO Gauvin proper and lawful?
  4. Did CWO Gauvin attempt to deter Cpl Hamm, in his office on December 12, 2000, through the use of intimidation or otherwise, from making a complaint in regard to his arrest?
  5. Are the rights of complainants being negated due to a lack of adherence to Part IV of the National Defence Act, through the internal classification of complaints?
  6. Did the DPM PS properly handle WO Hamm's complaint? Were Cpl Hamm and WO Hamm treated fairly after the latter filed his complaint?

(d) The Public Interest Investigation and Reports

Upon completion of the public interest investigation and in accordance with section 250.39 of the National Defence Act, Mr. Peter Seheult and Mr. Odilon Emond, Delegated Members, sent their investigation report, often referred to as the Interim Report, to the Minister, the Chief of the Defence Staff, the Judge Advocate General and the Provost Marshal on October 20, 2003. The Interim Report is produced, in its entirety, in Volume 1 of this report.

Sections 250.49 and 250.51 of the National Defence Act require that, on receipt of a report under section 250.39 in respect of a conduct complaint, the Provost Marshal shall review the complaint in light of the findings and recommendations set out in the report. Following this review, the Minister and the Chairperson are to be notified in writing of any action that has been or will be taken with respect to the complaint. Included in this notice are reasons for not taking action should the Provost Marshal so decide.

In response to the Commission Members' Interim Report, the Provost Marshal's Notice of Action dated February 13, 2004 was received on February 16, 2004. This Notice of Action is produced, in its entirety, in Volume 2 of this report.

After receipt and consideration of the Notice of Action, section 250.53 of the National Defence Act requires that the Chairperson, or the Delegated Members in this instance, prepare a Final Report in writing setting out the findings and recommendations with respect to the complaint. The Final Report is produced in Volume 3 of this report.

(e) Summary of the Commission Members' Final Findings

COMMISSION MEMBERS' FINAL FINDING # 1:

The Commission Members find that Warrant Officer Rice and Chief Warrant Officer Gauvin did not know that Corporal Hamm's sick leave was [redacted text] when they chose Corporal Hamm to deploy to Inuvik on December 26, 2000. The Commission Members accept Warrant Officer Rice's statement that he would not have called Corporal Hamm on December 12, 2000 if he had known Corporal Hamm's sick leave was [redacted text].


COMMISSION MEMBERS' FINAL FINDING # 2:

The Commission Members find that, in light of the information that was available to them, it was reasonable for Warrant Officer Rice and Chief Warrant Officer Gauvin to believe that Corporal Hamm would return to work on December 14, 2000 and would be available to deploy to Inuvik on December 26, 2000.


COMMISSION MEMBERS' FINAL FINDING # 3:

The Commission Members do not accept in its entirety the evidence given by Warrant Officer Rice or Corporal Hamm. In certain areas, their evidence was self-serving or inconsistent to the point that their credibility was questionable.


COMMISSION MEMBERS' FINAL FINDING # 4:

The Commission Members find no substantive evidence to support the conclusion reached by the Deputy Provost Marshal Professional Standards that Corporal Hamm manipulated the information to drive events in his favour.


COMMISSION MEMBERS' FINAL FINDING # 5:

The Commission Members accept, on a balance of probabilities, Corporal Hamm's statement that he did not refuse outright to go on the deployment. However, the Commission Members also find, on a balance of probabilities, that due to Corporal Hamm's ambiguity in his response, it was not unreasonable for Warrant Officer Rice to form the opinion that Corporal Hamm refused to deploy.


COMMISSION MEMBERS' FINAL FINDING # 6:

The Commission Members find, that on a balance of probabilities, Warrant Officer Rice did not attempt to call Corporal Hamm back after their telephone conversation.


COMMISSION MEMBERS' FINAL FINDING # 7:

The Commission Members find, on a balance of probabilities, that Warrant Officer Rice used profanity during his telephone conversation with Corporal Hamm. The Commission Members further find that this led Corporal Hamm to hang-up the telephone on Warrant Officer Rice.


COMMISSION MEMBERS' FINAL FINDING # 8:

The Commission Members accept Warrant Officer Rice's explanation that his purpose in summoning Corporal Hamm to attend his office, after the latter hung up the telephone, was two-fold: (i) to resolve whether Corporal Hamm would prepare to deploy and (ii) to resolve the perceived discipline issue.


COMMISSION MEMBERS' FINAL FINDING # 9:

The Commission Members find that the order or instruction by Warrant Officer Rice to come to the guardhouse is separate from the arrest itself. Therefore, although an arrest of a member for a service offence does not constitute a “recall to duty”, the instruction by Warrant Officer Rice to bring Corporal Hamm to the guardhouse could be construed as a “recall to duty” within the meaning of Queen's Regulations and Orders section 16.01.


COMMISSION MEMBERS' FINAL FINDING # 10:

The Commission Members find that Warrant Officer Rice, in ordering Corporal Hamm to be arrested if he refused to come in to the office voluntarily was not carrying out an administrative function. A Military Police member ordering or carrying out an arrest must always follow the applicable laws and policies governing the exercise of policing duties and functions.


COMMISSION MEMBERS' FINAL FINDING # 11:

The Commission Members find that, while insubordination or disobeying a lawful command are arrestable offences under the National Defence Act, in the circumstances of this case the arrest was not necessary nor was it reasonable and proportional to the alleged violation.


COMMISSION MEMBERS' FINAL FINDING # 12:

The Commission Members find that Warrant Officer Rice's direction to the arresting officers in relation to Corporal Hamm's arrest failed to follow the requirements of section 495 (arrest without a warrant) of the Criminal Code of Canada, as well as the guidance provided in Note B to article 105.01 of the Queen's Regulations and Orders.


COMMISSION MEMBERS' FINAL FINDING # 13:

The Commission Members find that Master Corporal Paul and Corporal Murray, before proceeding to arrest Corporal Hamm, should have sought to ascertain from Warrant Officer Rice whether they would be performing the arrest as military police members under section 156 or as Canadian Forces members under section 155 of the National Defence Act.


COMMISSION MEMBERS' FINAL FINDING # 14:

The Commission Members find that Warrant Officer Rice did not properly exercise his discretion to order an arrest. Warrant Officer Rice failed to take into consideration existing law requiring a distinction to be drawn between the power to arrest and its exercise and he failed to consider whether, in the circumstances, the arrest of Corporal Hamm was necessary, justified in the public interest or proportional to the alleged violation.


COMMISSION MEMBERS' FINAL FINDING # 15:

The Commission Members find that Master Corporal Paul and Corporal Murray failed to confirm either the reason why Warrant Officer Rice wanted to see Corporal Hamm or the reason for the arrest before leaving the guardhouse for Corporal Hamm's residence. This lack of information prevented them from properly informing Corporal Hamm of the reasons for his arrest.


COMMISSION MEMBERS' FINAL FINDING # 16:

The Commission Members find that Corporal Hamm was not promptly informed of the reasons for his arrest which was in violation of paragraph 10(a) of the Canadian Charter of Rights and Freedoms. Accordingly, the Commission Members find that the arrest of Corporal Hamm was unlawful.


COMMISSION MEMBERS' FINAL FINDING # 17:

The Commission Members find that Warrant Officer Rice acted beyond the scope of his authority and responsibilities in the circumstances.


COMMISSION MEMBERS' FINAL FINDING # 18:

The Commission Members concur with the conclusion of the Deputy Provost Marshal Professional Standards that the fact that Warrant Officer Rice's course of action was chosen [redacted text] only served to inflame the situation. A different approach could have resolved the matter in a more appropriate fashion.


COMMISSION MEMBERS' FINAL FINDING # 19

The Commission Members find that once Master Corporal Paul spoke to Doctor Burke at Corporal Hamm's residence, he should have advised Warrant Officer Rice that questions had been raised about Corporal Hamm's sick leave status, in order to obtain confirmation that the arrest was still warranted.


COMMISSION MEMBERS' FINAL FINDING # 20:

The Commission Members find that the notes and records of the incident made by Master Corporal Paul were deficient and not in accordance with best police practices. The failure of Master Corporal Paul to record the fact or details of his conversation with Doctor Burke in his notes or in any subsequent reports was a serious error.


COMMISSION MEMBERS' FINAL FINDING # 21:

The Commission Members find that Chief Warrant Officer Gauvin did not have the authority to release Corporal Hamm. His releasing Corporal Hamm was not in accordance with the principles of subsection 158(1) of the National Defence Act and Queen's Regulations and Orders section 105.12. Chief Warrant Officer Gauvin should have called on the arresting officer to release Corporal Hamm from arrest.


COMMISSION MEMBERS' FINAL FINDING # 22:

The Commission Members find that the measure taken to advise Chief Warrant Officer Gauvin of the requirements for the release of arrested persons, pursuant to the direction in the Deputy Provost Marshal Professional Standards' Letter of Final Disposition, was appropriate and sufficient in the circumstances.


COMMISSION MEMBERS' FINAL FINDING # 23:

The Commission Members find that, considering all of the circumstances, including the fact that Corporal Hamm [redacted text] and had just been arrested by his peers, Chief Warrant Officer Gauvin's comments and actions during the encounter in his office could well have caused Corporal Hamm to feel intimidated. However, the Commission Members could not find, on a balance of probabilities, that Chief Warrant Officer Gauvin attempted or intended to intimidate Corporal Hamm from complaining further.


COMMISSION MEMBERS' FINAL FINDING # 25:

The Commission Members find that Chief Warrant Officer Gauvin should have used more appropriate language.


COMMISSION MEMBERS' FINAL FINDING # 25:

The Commission Members find that the correspondence received from the Deputy Provost Marshal Professional Standards regarding the “internal” designation of Warrant Officer Hamm's complaint did not satisfactorily explain how the designation came about.


COMMISSION MEMBERS' FINAL FINDING # 26:

The Commission Members find, on a balance of probabilities, that the internal designation was an error as there is no clear evidence to the contrary.


COMMISSION MEMBERS' FINAL FINDING # 27:

The Commission Members find that errors in classifying complaints as “internal” rather than Part IV conduct complaints have the potential effect of nullifying important statutory rights of complainants and subjects of complaints.


COMMISSION MEMBERS' FINAL FINDING # 28:

The Commission Members find that the Professional Standards investigation focused on Corporal Hamm's behaviour when the seconded investigator determined early in the investigation that Corporal Hamm might have committed service offences or might have violated the Military Police Professional Code of Conduct and when the investigator determined that Warrant Officer Hamm failed to confirm the accuracy of the complaint.


COMMISSION MEMBERS' FINAL FINDING # 29:

The Commission Members find that when the Professional Standards investigation began to focus on possible misconduct by Corporal Hamm and Warrant Officer Hamm, a new and separate investigation of the allegations against Corporal Hamm and Warrant Officer Hamm should have been commenced which would have provided them with the appropriate notices and protections required by law and policy.


COMMISSION MEMBERS' FINAL FINDING # 30:

The Commission Members find that the failure to designate Corporal Hamm and Warrant Officer Hamm as subject members of the investigation deprived them of their basic rights to natural justice, their rights to appreciate and defend themselves against the allegations or potential jeopardy they were facing, their rights of choice to refuse to be interviewed, and their rights to have counsel or an assisting officer present.


COMMISSION MEMBERS' FINAL FINDING # 31:

The Commission Members disagree with all of the conclusions of the Deputy Provost Marshal Professional Standards as stated in her Letter of Final Disposition dated April 5, 2002 that Corporal Hamm committed five (5) breaches to the National Defence Act.


COMMISSION MEMBERS' FINAL FINDING # 32:

The Commission Members find that there was insufficient evidence to establish, on a balance of probabilities, that Corporal Hamm misinformed or provided misleading information to Warrant Officer Hamm about any matter relevant or material to Warrant Officer Hamm's complaint. Accordingly, the Commission Members find that Corporal Hamm did not mislead Warrant Officer Hamm in the five (5) manners detailed by the Deputy Provost Marshal Professional Standards.


COMMISSION MEMBERS' FINAL FINDING # 33:

The Commission Members find that Warrant Officer Hamm did not err nor was he negligent in basing his complaint on information received from Corporal Hamm nor did Warrant Officer Hamm prematurely file his complaint based on the information received.


COMMISSION MEMBERS' FINAL FINDING # 34:

The Commission Members find that Warrant Officer Hamm had an obligation, pursuant to section 7 of the Military Police Professional Code of Conduct, to report to his superior in the Military Police Chain of Command a belief in or awareness of an allegation that a member of the Military Police had breached the Military Police Professional Code of Conduct. The information Warrant Officer Hamm received on December 12, 2000 provided him with the requisite belief or awareness. There is no requirement to verify or investigate the belief or allegation before it is reported.


COMMISSION MEMBERS' FINAL FINDING # 35:

The Commission Members find that Warrant Officer Hamm properly reported his reasonable belief to, and sought advice from, his superior in the Military Police Chain of Command at 8 Wing Canadian Forces Base, Trenton, Master Warrant Officer Dennique.


COMMISSION MEMBERS' FINAL FINDING # 36:

The Commission Members find that it was reasonable and proper, in the circumstances, for Warrant Officer Hamm to follow Master Warrant Officer Dennique's advice.


COMMISSION MEMBERS' FINAL FINDING # 37:

The Commission Members find that it was reasonable and proper for Warrant Officer Hamm to advise Chief Warrant Officer Galway of his concerns and to forward the information to Chief Warrant Officer Galway.


COMMISSION MEMBERS' FINAL FINDING # 38:

The Commission Members find that, in the circumstances, Warrant Officer Hamm should not have been counseled and the direction to counsel Warrant Officer Hamm issued by the Deputy Provost Marshal Professional Standards was inappropriate.


COMMISSION MEMBERS' FINAL FINDING # 39:

The Commission Members are of the view that the evidence does not support the conclusion that Corporal Hamm violated paragraph 4(l) of the Military Police Professional Code of Conduct.


COMMISSION MEMBERS' FINAL FINDING # 40:

The Commission Members are of the view that the Deputy Provost Marshal Professional Standards' rationale for finding that Corporal Hamm violated paragraph 4(l) of the Military Professional Code of Conduct is so vague that it would be an unduly difficult allegation to defend against before the Military Police Credentials Review Board.


COMMISSION MEMBERS' FINAL FINDING # 41:

Because Corporal Hamm was not treated as a subject member or advised that the Professional Standards investigation was addressing this issue, the Commission Members are of the opinion that it was unfair to Corporal Hamm for the Deputy Provost Marshal Professional Standards to rely on paragraph 4(k) of the Military Police Professional Code of Conduct.


COMMISSION MEMBERS' FINAL FINDING # 42:

The Commission Members are of the view that the evidence does not support the conclusion that Corporal Hamm violated paragraph 4(h) of the Military Police Professional Code of Conduct in failing to disclose the reason for his sick leave to his supervisor. Corporal Hamm had no obligation in law to disclose the nature of his illness.


COMMISSION MEMBERS' FINAL FINDING # 43:

In the Commission Members' view, the evidence does not support the conclusion of the Deputy Provost Marshal Professional Standards that Corporal Hamm knowingly revealed information intended to mislead the Professional Standards investigator or the Canadian Forces National Investigation Service investigators.


COMMISSION MEMBERS' FINAL FINDING # 44:

Based on the evidence reviewed and heard, the Commission Members do not support the decision to suspend Corporal Hamm's credentials for supplying false information to or withholding information from Warrant Officer Hamm.


COMMISSION MEMBERS' FINAL FINDING # 45:

The Commission Members disagree with the various and contradictory reasons advanced by the Deputy Provost Marshal Professional Standards to suspend Corporal Hamm's credentials.

(f) Summary of the Commission Members' Final Recommendations

COMMISSION MEMBERS' FINAL RECOMMENDATION # 1:

The Commission Members recommend that in order to ensure high police standards, Military Police members be trained to understand, respect and fully protect the rights of individuals as well as the law governing the exercise of powers of arrest.


COMMISSION MEMBERS' FINAL RECOMMENDATION # 2:

The Commission Members recommend that Warrant Officer Rice receive, if he has not already, advanced training on the elements and requirements for a proper arrest and the rights of suspects who are subjected to an arrest.


COMMISSION MEMBERS' FINAL RECOMMENDATION # 3:

The Commission Members recommend that the Canadian Forces Provost Marshal ensure that Warrant Officer Rice is provided with sage advice and guidance on the proper exercise of his authority.


COMMISSION MEMBERS' FINAL RECOMMENDATION # 4:

The Commission Members recommend that Warrant Officer Rice be given additional management training.


COMMISSION MEMBERS' FINAL RECOMMENDATION # 5:

The Commission Members recommend that additional training be provided to Master Corporal Paul and Corporal Murray on Military Police powers of arrest, the law and Military Police Policies governing the exercise of powers of arrest and note-taking.


COMMISSION MEMBERS' FINAL RECOMMENDATION # 6:

The Commission Members recommend that appropriate representatives of the Complaints Commission, the Canadian Forces Provost Marshal, the Judge Advocate General, and the Department of Justice meet to review and discuss the legal and professional issues surrounding the exercise by military police members of arrest powers under the National Defence Act and the relevant implications of an order to arrest from a military superior.


COMMISSION MEMBERS' FINAL RECOMMENDATION # 7:

The Commission Members recommend that the Canadian Forces Provost Marshal implement safeguards to ensure that the improper classification and handling of complaints will not reoccur. Furthermore, the Complaints Commission should be involved in the development and application of criteria in the classification of complaints and where the Provost Marshal or her delegate makes a decision that a complaint does not fall under Part IV of the National Defence Act, the complainant should be notified of the right to have such a decision reviewed by the Complaints Commission. All such correspondence should be copied to the Complaints Commission.


COMMISSION MEMBERS' FINAL RECOMMENDATION # 8:

The Commission Members do not agree with the decision to counsel Warrant Officer Hamm and recommend that the Canadian Forces Provost Marshal revisit this decision.


COMMISSION MEMBERS' FINAL RECOMMENDATION # 9:

Based on the findings in this public interest investigation, the Commission Members do not support the decision to suspend Corporal Hamm's credentials and recommend that the Canadian Forces Provost Marshal revisit this decision as soon as possible. The Commission Members ask that the Final Report be forwarded to the Military Police Credentials Review Board for their consideration.


COMMISSION MEMBERS' FINAL RECOMMENDATION # 10:

The Commission Members recommend that in all future complaint investigations, if an investigator perceives that a complainant may be suspected of having committed a criminal or service offence or a professional standards violation, a new and separate investigation be commenced with the complainant as the subject member. This will ensure the individual is afforded his or her rights according to law.

VIII. REVIEW OF CHAIRPERSON'S INTERIM REPORT

In accordance with section 250.39 of the National Defence Act, Mr. Peter Seheult and Mr. Odilon Emond, Delegated Members, sent their investigation report, often referred to as the Interim Report, to the Minister, the Chief of the Defence Staff, the Judge Advocate General and the Provost Marshal on October 20, 2003.

Sections 250.49 and 250.51 of the National Defence Act require that, on receipt of a report under section 250.39 in respect of a conduct complaint, the Provost Marshal shall review the complaint in light of the findings and recommendations set out in the report. Following this review, the Minister and the Chairperson are to be notified in writing of any action that has been or will be taken with respect to the complaint. Included in this notice are reasons for not taking action should the Provost Marshal so decide.

In response to the Commission Members' Interim Report (found in its entirety in Volume 1 of this report), the Provost Marshal's Notice of Action dated February 13, 2004 was received on February 16, 2004. This Notice of Action, which can be found in its entirety in Volume 2 of this report, is discussed further in the following section of this report (see Section IX: The Commission Members' Findings and Recommendations Having Considered the Provost Marshal's Notice of Action).

IX. COMMISSION MEMBERS' FINDINGS AND RECOMMENDATIONS HAVING CONSIDERED THE NOTICE OF ACTION FROM THE PROVOST MARSHAL

Table of Contents

IX. Commission Members' Findings and Recommendations Having Considered the Notice of Action from the Provost Marshal

  1. Civilian Oversight and the Purpose of the Notice of Action
  2. Background of Complaints
  3. Powers of Arrest under the National Defence Act and the Jurisdiction of the Complaints Commission in this case
  4. Public Interest Component
  5. Hearing versus Investigation
  6. Refusal by Witnesses to be Interviewed and Treatment of Witnesses
  7. Provost Marshal's Allegation that the Complaints Commission Refused to Provide Witness Statements
  8. Credibility Findings Challenged by the Provost Marshal
  9. Insubordination
  10. Recall to Duty
  11. Section 10(a) of the Charter and Corporal Hamm's Right to be Informed of the Reason for his Arrest
  12. Superior Orders and the Arrest of Corporal Hamm
  13. Abuse of Authority
  14. Privacy Act comments by the Provost Marshal
  15. Master Corporal Paul's notes
  16. Findings surrounding Chief Warrant Officer Gauvin
  17. Right of Complainants and Subject Members Concerning Classification of Complaints
  18. Warrant Officer Hamm and Corporal Hamm as Subjects of Complaints
  19. Deputy Provost Marshal Professional Standards' Conclusions
  20. Warrant Officer Hamm's treatment by the Deputy Provost Marshal Professional Standards
  21. Corporal Hamm's treatment by the Deputy Provost Marshal Professional Standards & Review of Police Credentials
  22. Misleading the Investigator
  23. Recommendations

In response to a significant report on complaints arising from an incident within a Military Police detachment, the Canadian Forces Provost Marshal has chosen to attack the credibility, the objectivity, the expertise and the jurisdiction of the Military Police Complaints Commission. Regrettably, even more than four years after the creation of the Complaints Commission, this is symptomatic of a culture of resistance at the upper levels of the Military Police to civilian oversight of military law enforcement.

We have, however, carefully considered the Provost Marshal's Notice of Action, and indeed after further research and analysis we have been persuaded to make certain changes to our findings and recommendations in some areas. Such an opportunity to clarify points of view and to ensure a proper understanding by interested parties is an important part of the complaint resolution process.

The Commission Members will now review the areas where the Provost Marshal has objected to the Commission Members' Findings and Recommendations or where the Provost Marshal has provided comments, which the Commission Members would like to further discuss.

(a) Civilian Oversight and the Purpose of the Notice of Action

The societal imperative demands that the military remains subordinate to civil authority and reflects, to an appropriate degree, societal values and norms.Footnote 262.

The Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (often referred to as the Dickson Report), in Chapter 10 dealing with Oversight and Review, stresses the importance of civilian oversight for military police:

Independent oversight is especially important for the military police and, in this regard, civilian oversight of police forces is particularly instructive. If an individual citizen complains to a civilian police force about improper conduct of its personnel, there is an expectation of and a right to a response. The situation should be no different in the military context.

[.]

In this report, we have particularly recommended an increased role for the military police in the military justice system. With such an increase in responsibility and authority must come a corresponding professionalism and accountability. This responsibility should at all times be monitored by a process of oversight and review.Footnote 263

In the creation of Part IV of the National Defence Act (NDA), Parliament created a model of civilian oversight of the Military Police as a necessary system of checks and balances. The Military Police Complaints Commission, as the civilian oversight body, oversees the Military Police in the handling of conduct complaints under Part IV of the NDA.

Complainants who are unsatisfied with the decision or handling of the conduct complaint in the first instance by the Provost Marshal may request a review by the Military Police Complaints Commission. In addition, the Chairperson of the Complaints Commission has powers to remove a conduct complaint from the Provost Marshal, at any time, where she feels the matter necessitates a public interest investigation or hearing, as was the case in the present files.

The fact that civilian oversight of law enforcement has become commonplace is not surprising. Canadians expect those upon whom they bestow power to use it responsibly, and when they do not, Canadians demand that those persons be held accountable. This accountability is fundamental to maintaining confidence in and respect for the institutions that bind us as a nation. Recognizing this, Parliament has developed mechanisms to ensure those who wield power on our behalf are not only accountable, but are seen to be accountable.

This is particularly true of our police services, institutions we have entrusted with very special powers - the power of detention, for example; even the power to use lethal force against citizens. With such exceptional powers come exceptional responsibility, and an equally exceptional degree of accountability.

Canadians understand the importance to society of police services that enjoy widespread trust and respect. It is in the interest of maintaining this trust that Canadians insist any allegation of police misconduct be investigated thoroughly, and through a process of independent civilian oversight that allows them to have confidence in the fairness of the result.

In the National Defence publication titled Duty with Honour, The Profession of Arms in Canada an accurate reflection of civilian oversight in the military context is stated at page 41:

In light of this overall structure, it is perhaps not surprising that civil-military relations characteristically exhibit a healthy tension between control and oversight, and legitimate autonomy and self-regulation.

It is apparent from some of her comments in the Notice of Action, that the Provost Marshal has blurred the role of overseer and overseen. For example, the Provost Marshal stated in relation to Interim Finding 18 that:

The MPCC is a fact-finding administrative body that has no powers to make findings of law. The standard of review in this case is correctness. The MPCC was not correct in this finding. This finding must be amended.

By such assertions, the Provost Marshal appears to be putting herself in the role of the Federal Court of Canada, which alone has jurisdiction to review the legality of our findings and recommendations. The Provost Marshal, as the head of the Military Police, is the overseen and not the overseer.

It is also evident from the Provost Marshal's Notice of Action that a lack of understanding and acceptance exists of the general principles of civilian oversight and the purpose of the Notice of Action. We must at the outset address the disheartening language and tone of the Provost Marshal's Notice of Action in this case. Such a tone is neither necessary nor productive, and indeed is inimical to and detracts from the very important process, which Parliament created when enacting Part IV of the NDA. By taking an overly restrictive reading of the NDA and Regulations, the Provost Marshal risks hindering the efficiency and indeed the efficacy of the complaints process.

By way of illustration, in relation to Interim Finding 7 the Provost Marshal indicated “I must therefore surmise that Cpl Hamm told the MPCC that WO Rice swore at him on the telephone.” The Provost Marshal goes on to say, “I would be very interested in examining the MPCC's questions which led Cpl Hamm to bring forth this fresh allegation.” The Provost Marshal seems to be suggesting that the Complaints Commission somehow acted improperly or unprofessionally in the questions put to witnesses and was attempting to solicit certain answers from Cpl Hamm.

This is far from reality. The Complaints Commission does not favour one side over the other and is mandated to conduct a thorough, impartial investigation into the alleged events. Moreover, we were surprised and disappointed that the Provost Marshal would make such an inference without foundation.

Certain comments by the Provost Marshal in the Notice of Action show an unwillingness to improve the relationship between the two organizations. For example, the Provost Marshal writes at A-17:

It is clear to reasonable persons with knowledge and expertise in the military justice system that when WO Rice ordered the arrest of Cpl Hamm he was acting in his capacity as Cpl Hamm's superior officer, not as a police officer.

In numerous places in her Notice of Action, the Provost Marshal has taken the opportunity to cast aspersions on the expertise and competence of the Complaints Commission. Such gratuitous and undisciplined language is unworthy of all concerned and is decidedly unhelpful in assisting the relationship between our two organizations.

Furthermore, certain assertions are made without properly verifying their veracity. For example, in her commentary in Interim Finding 32, the Provost Marshal states:

This is an issue that demonstrates the limits of expertise of the Military Police Complaints Commission. The Commission has no members with prior military service, let alone any experience in the military justice system. It is therefore not surprising that the Commission was not able to identify and comprehend the functions, operations and responsibilities of the chain of command relationship that exist within a military unit and the various powers that can be exercised by that chain of command.

In point of fact, one of the Delegated Members does have some prior military service. The statement also ignores the reality that Commission Members may, and in fact do, have access to individuals with experience in or knowledge of the military and military law. More importantly, however, by making such a statement the Provost Marshal fails to accept that civilian oversight means oversight by civilians as enunciated in section 250.1(7) of the NDA, which reads:

An officer, a non-commissioned member or an employee of the Department is not eligible to be a member of the Complaints Commission.

It seems clear that Parliament's intent in this section is to ensure the independence of the Complaints Commission from undue influence from the Department of National Defence.

Given the tone and approach of the Provost Marshal in her Notice of Action, it seems necessary to examine the purpose of the Notice of Action as intended by Parliament. Accordingly, we turn to the parliamentary debates for guidance. The review of the Interim Report and the preparation of the Notice of Action by the Provost Marshal provide a mechanism for the Complaints Commission and the Provost Marshal to discuss certain points before a final decision is made. In the Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs in relation to Part IV of the NDA, the purpose of the Notice of Action was discussed. It was stated that the purpose of the Notice of Action is to ensure a proper understanding between parties and an opportunity to clarify certain points. It was also stated to be a method to shorten the process if people see a resolution.Footnote 264.

Furthermore, in the creation of Part VII of the RCMP ActFootnote 265 on which the military police complaints process was modeled, the purpose of the Notice of Action as stated in the debates is “to allow for a process of deliberation with the commissioner, if he is having trouble with the commission's findings, to make sure it is all understood and to be able to reconcile any particular difficulties” before the final report goes out to the parties. Footnote 266

While we commend the Provost Marshal for bringing certain issues in the Interim Report to light for further examination, as a necessary and intended purpose for the Notice of Action, it is not meant to be an opportunity for the Provost Marshal to investigate or critique the Complaints Commission's work. It is certainly not intended to serve as a forum to further the Provost Marshal's apparent desire to undermine the credibility of the Complaints Commission.

(b) Background of Complaints

The Provost Marshal stated at page 3 of her Notice of Action:

The complaints were eventually sent to the Military Police Complaints Commission (MPCC) by a member of the Royal Canadian Mounted Police who had been seconded to the Canadian Forces National Investigation Service CFNIS , after his own investigation into the matter had been called into question by Major Thobo-Carlsen, the military police detachment commander at Cold Lake.

This description of the events may be somewhat misleading and therefore further clarity is required.

On December 14, 2000, WO Hamm made a conduct complaint regarding the arrest of his brother, Cpl. Hamm. The Deputy Provost Marshal Professional Standards (DPM PS) initially classified this complaint as an “internal” matter. A CFNIS investigation was conducted first to determine if the circumstances described in WO Hamm's complaint disclosed the commission of criminal or service offences by members of the Military Police. The Professional Standards investigation was held in abeyance upon completion of the CFNIS investigation. It should be noted that Canadian Forces Military Police members, Capt. Pineau and MCpl. Rivard, conducted the CFNIS investigation, not the seconded RCMP member (Supt. Grabb) referred to by the Provost Marshal. As is discussed in detail in the Interim Report, the CFNIS concluded that WO Rice should be charged with a service offence.

On August 3, 2001, Major Thobo-Carlsen, dissatisfied with the outcome of the CFNIS investigation wrote to the DPM NIS formally requesting that the CFNIS investigate several alleged breaches of service regulations by Cpl. Hamm in relation to the events that occurred on December 12, 2000. On August 29, 2001, Supt. Grabb, then Officer Commanding of the CFNIS Sensitive Investigation Detachment replied to and refused the request of Major Thobo-Carlsen for further investigation of his allegations regarding Cpl. Hamm. In Supt Grabb's response, he stated that the complaint was vexatious and made in bad faith. Supt Grabb indicated that he would forward the CFNIS investigative materials to the Complaints Commission and ask it to conduct an unbiased review of the CFNIS investigation and all issues incidental to it. Supt. Grabb did so on August 20, 2001 and this was the first time the Complaints Commission learned of WO Hamm's complaint in the first instance or the ensuing investigations.

On October 31, 2001 the DPM PS advised that the Professional Standards investigation would resume now that the CFNIS investigation had been completed. On April 5, 2002 the DPM PS made her final decision regarding the Professional Standards investigation. It is important to note that in addition to Supt. Grabb forwarding the materials to the Complaints Commission, WO Hamm asked the Complaints Commission on April 30, 2002 to review the Professional Standards and CFNIS investigations. Further, on May 15, 2002, Cpl. Hamm made a conduct complaint in the first instance and asked the Complaints Commission to investigate his arrest of December 12, 2000, the Professional Standards investigation, and subsequent actions taken against him by the DPM PS.

(c) Powers of Arrest under the National Defence Act and the Jurisdiction of the Complaints Commission in this case

In her Notice of Action, the Provost Marshal objected to Findings 10 through 19 and 31 and 32 in the Complaints Commission's Interim Report. Indeed, the Provost Marshal strenuously and repeatedly asserts in her Notice of Action that this complaint is beyond the legal jurisdiction, and even the competence, of the Complaints Commission acting under Part IV of the NDA, and that we should, therefore, have declined to deal with it.

According to the Provost Marshal, when WO Rice ordered Cpl Hamm's arrest by MCpl Paul and Cpl Murray, he was invoking his powers of arrest as an ordinary Canadian Forces member under s. 155 of the NDA, and not his powers of arrest as a member of the Military Police under s. 156.Footnote 267 The Provost Marshal asserts that, precisely because MCpl Paul and Cpl Murray were ordered by WO Rice to arrest Cpl Hamm, the ensuing arrest must have been affected under s. 155 - it not being legally possible for arrests under s.156 to be ordered.

The Provost Marshal further argues that, since the power of arrest under s. 155 is not peculiar to Military Police, and since it was in this instance being used in connection with the maintenance of internal unit discipline, the arrest ordered by WO Rice should be viewed as falling within one of the categories of functions excluded from the definition of “policing duties or functions” by virtue of s. 2(2) of the Complaints About the Conduct of Members of the Military Police Regulations.Footnote 268 Subsection 2(2) provides that “[f]or greater certainty,” duties or functions performed by military police that relate to “administration, training, or military operations that result from established military custom or practice” do not constitute “policing duties or functions”.

The Provost Marshal therefore concludes that the request for review by WO Hamm and complaint by Cpl Hamm regarding the latter's arrest did not relate to the performance of a “policing duty or function,” did not fall under Part IV of the NDA, and should never have been handled by the Complaints Commission.

For the reasons that follow, we disagree.

Having reflected on the Provost Marshal's arguments in her Notice of Action, we are prepared to accept that WO Rice may well have been using the basic powers of arrest that he enjoys as a member of the Canadian Forces under NDA s. 155, rather than those conferred specially on Military Police members under s. 156. Moreover, we are sensitive to WO Rice's command and supervisory responsibilities in this situation, and the fact that he seems to have been motivated to act as he did in consideration of these responsibilities, rather than in consideration of his duties as a peace officer.

However, the means which WO Rice selected to deal with his subordinate, namely, his ordered arrest, represent the exercise of a special legal power which has significant implications for not only the physical liberty of the individual concerned, but also for that individual's dignity and emotional well-being and that of his family. The gravity and significance of the power to arrest an individual, and the responsibilities attached to the exercise of that power ought not, in our view, be diluted or devalued in the military context simply because, as a matter of practical necessity, the power to arrest without warrant is more widely distributed than it is in civil society. Not only is an arrest specifically listed as a “policing duty or function” to which the NDA Part IV complaints process applies, but the legislator has also seen fit in the same set of regulations (see s. 3 of the Complaints About the Conduct of Members of the Military Police Regulations) to preclude complaints concerning arrests from being dealt with by way of informal resolution, which implies that arrests are in a more serious category of police powers.

Moreover, the jurisprudence, cited in our Interim Report - namely, the cases of GauthierFootnote 269 and DuludeFootnote 270- indicates that the exercise of the arrest power within the military under the NDA is subject to similar requirements of reasonable belief, both in the grounds for and the necessity of an arrest, as those applicable to the arrest of civilians under the Criminal CodeFootnote 271 . The Provost Marshal may be technically correct when she states in her Notice of Action that s. 495 of the Criminal Code did not apply to the arrest in this case under the NDA. However, the Provost Marshal does not address the real point which is that, in fact, the conditions on the proper use of the arrest power found in s. 495(2) of the Criminal Code are now to be read into the arrest powers under the NDA in order to meet the constitutional requirements of s. 9 of the Canadian Charter of Rights and Freedoms (the right to be free from arbitrary arrest or detention).Footnote 272 This is the thrust of the Gauthier and Dulude decisions. While these two cases dealt with arrests that had ostensibly been effected by Military Police using their special arrest powers under NDA s. 156, it is noteworthy that, in the Dulude case, the arrest by the Military Police was - as in this case - pursuant to an order by the arrestee's chain of command. In any event, we see no legal basis for limiting the reasoning in these cases to arrests under NDA s. 156.

It is interesting to note that, far from trying to appeal either of these two decisions, the Department of National Defence is in fact looking to codify their effect in amendments to the arrest provisions of the NDA. In the recent independent review of the 1998 amendments to the NDAFootnote 273, former Chief Justice of Canada, the Rt. Hon. Antonio Lamer, has, on the recommendation of the Judge Advocate General, proposed that, in keeping with the Gauthier and Dulude decisions, both NDA ss. 155 and 156 be amended to add similar conditions on the use of the arrest power as are found in s. 495(2) of the Criminal Code.

While WO Rice may well have felt that he was acting merely as Cpl Hamm's supervisor, rather than in a policing capacity, we cannot agree with the Provost Marshal's portrayal of the power of arrest as a mere administrative tool.

We note that in the QR&O, both arrest powers, NDA s. 155 and s. 156, are dealt with together in the volume of the regulations dealing with “Discipline”, and not in the volume dealing with “AdministrationFootnote 274. Former Chief Justice of Canada, the late Brian Dickson, in his 1997 report to the Minister of National Defence on military justice and military policing, also acknowledged a distinction between disciplinary and administrative action.Footnote 275 Indeed, such a distinction is apparent in the very passage from that report that is quoted by the Provost Marshal at page 4 of her Notice of Action.Footnote 276 Nor do we understand the distinction that the Provost Marshal is purporting to make between a so-called “internal disciplinary” arrest of a subordinate by a superior using members of the same unit, and an analogous situation where the Military Police are called in. Arrest under either s. 155 or s. 156 can only be done to enforce the Code of Service Discipline. We fail to see how enforcing discipline within an MP unit must be “administration”; while the use of those same Military Police members in the same manner to enforce the same discipline on the same facts, but in another unit, is deemed to be “law enforcement” or “policing”?

To be sure, we recognize that the military discipline system incorporates a range of responses to performance and behaviour problems, some of which are administrative in nature. However, an arrest is not part of this administrative aspect of discipline. Arrests clearly fall under the formal disciplinary system enshrined in the Code of Service Discipline.

Nor do we see the arrest in this case as falling within the other potentially relevant category of functions that are excluded from the definition of “policing duties or functions”: namely, “military operations that result from established military custom or practice.” In our view, this somewhat cryptic phrase is intended to refer to those functions typically performed by Military Police in an operational theatre. In any event, the power to arrest, deriving as it does from statutory authority, cannot therefore be described as an operation that results from custom or practice. .

We must act in a manner consistent with our jurisdiction as defined in the relevant legislation. In this particular case, we had received one request for review and one conduct complaint that dealt with an arrest by Military Police members. Arrests are specifically listed as an activity deemed to be a “policing duty or function” for the purposes of making a valid conduct complaint. In light of the foregoing, we do not believe that we can fairly construe the exclusions in s. 2(2) of the Complaints About the Footnote 277 as extending to the arrest in this case or to arrests under NDA s. 155 generally, when these are done by Military Police members. We specifically do not read s. 2(2) of the Regulations as necessarily implying, as the Provost Marshal urges, that in certain circumstances, the listed policing activities will not constitute “policing duties or functions”. If that had been the intent, we believe that s. 2(2) would have been added “notwithstanding s. 2(1)”, rather than “for greater certainty”.

It seems only reasonable to presume that those who formulated the Complaints About the Conduct of Members of the Military Police Regulations were aware that Military Police, being members of the Canadian Forces, have two distinct arrest powers under the NDA, namely, s. 155 and s. 156. If it had been the intent of the legislator to exclude arrests done under one of these provisions from the definition of “policing duties or functions”, this intent could clearly and easily have been expressed in these Regulations. However, given the way that s. 2 of the Regulations has actually been drafted, we find it almost inconceivable that the legislator could thereby have sought to express an intention to exclude arrests under NDA s. 155.

Given our reading of s. 2 of the Complaints About the Conduct of Members of the Military Police Regulations, we had no choice but to discharge our statutory responsibilities in relation to this case. Indeed, the DPM PS herself had previously conceded that these complaints belonged in the Part IV process and that she had been wrong to have originally classified them as “internal”. The DPM PS also had a professional standards investigation conducted into these complaints, which presumably implies some nexus to their special appointment as a Military Police member.

Particularly in light of these circumstances, we find the tone and some of the language used by the Provost Marshal in her Notice of Action in this regard - such as her reference to our “seizing jurisdiction” over these complaints, and her numerous references to what she views as our lack of expertise - to be not only unprofessional and unwarranted, but rather surprising. The Provost Marshal through her delegate, the DPM PS, previously determined that these cases did, in fact, belong in the Part IV complaints process (which necessarily implies a belief that they did relate to “policing duties or functions”) and dealt with them accordingly. Yet the Provost Marshal and her delegate, the DPM PS, obviously have military experience and knowledge of military law as well as constant access to military lawyers of the office of the Judge Advocate General. It would appear, contrary to the Provost Marshal's suggestion, that these attributes are not determinative of one's capacity to discern the proper scope and application of Part IV.

We do not dispute the right of the Provost Marshal to raise jurisdictional issues about the application of Part IV or the Complaints Commission's mandate. We would, however, prefer that, in future, such issues be raised at a much earlier stage in the process. It seems to us neither fair nor appropriate for the Provost Marshal to wait all this time and to make such jurisdictional arguments only after she has seen the Complaints Commission's Interim Report. We think the complainants and the subject members deserve greater consideration. In this regard, we are especially conscious of the ongoing suspension of Cpl Hamm's policing credentials and his inability to have that suspension reviewed by the Military Police Credentials Review Board until the Part IV complaints process is complete - a process that the Provost Marshal now says was never even applicable to his case.

In any event, we do not accept the Provost Marshal's jurisdictional arguments. On the contrary, we are persuaded that, notwithstanding that in ordering Cpl Hamm's arrest WO Rice may well have been acting under NDA s. 155, such action can nonetheless be the proper subject of a conduct complaint under NDA s. 250.18 and is therefore within the jurisdiction of the Complaints Commission.

Unlike the Provost Marshal, we see no injustice in WO Rice's actions being subject to scrutiny, including independent civilian oversight, pursuant to the Part IV complaints process. Whatever the legal authority, the power to arrest is a significant and exceptional power in a free society. Like civilians, military personnel in Canada are only liable to be arrested for offences. Within the NDA, the grounds for arrest are essentially the same under s. 155 as those under s. 156. Moreover, current case lawFootnote 278 dictates that arrests under the NDA are subject to a similar test of necessity as arrests in the civilian world under the Criminal Code.

Furthermore, the acceptance of a distinction between arrests under s. 155 and those under s. 156 with respect to the application of Part IV and the corresponding jurisdiction of the Complaints Commission would present a practical difficulty. In making an arrest, Military Police members do not normally specify under which statutory arrest power they are acting. In some circumstances, the statutory authority will be clear, such as where a Military Police member arrests someone of higher rank on the member's own authority. In such a case, the arresting Military Police member would have to be acting under s. 156. But in many situations, a Military Police member would not strictly need to rely on his or her special powers of arrest under s. 156. This would cause considerable uncertainty about the application of the Part IV complaints process to many arrest scenarios. Nor are we particularly optimistic at this time about the manner in which such uncertainty would, in practice, be resolved in future cases. We certainly do not think it would be appropriate for the member who is the subject of the complaint, or indeed the Provost Marshal herself, to effectively be in a position to elect after the fact whether Part IV will apply to a complaint.

In any event, we do not believe that either Parliament, in adopting Part IV, or the Governor in Council, in defining “policing duties or functions,” intended such uncertainty to exist in the application of the Military Police complaints regime.

Accordingly, none of the findings impugned by the Provost Marshal on the basis of our alleged lack of jurisdiction will be modified on that account.

Consistent with the foregoing analysis, some of the wording of Interim Finding 10 is being modified slightly.

Interim Finding #10 (revised) (Final Finding #10):

The Commission Members find that Warrant Officer Rice, in ordering Corporal Hamm to be arrested if he refused to come in to the office voluntarily was not carrying out an administrative function. A Military Police member ordering or carrying out an arrest must always follow the applicable laws and policies governing the exercise of policing duties or functions.

Interim Finding 12 is also being modified for the reasons indicated in note 11.

Interim Finding #12 (revised) (Final Finding #12):

The Commission Members find that Warrant Officer Rice's direction to the arresting officers in relation to Corporal Hamm's arrest failed to follow the requirements of section 495 (arrest without a warrant) of the Criminal Code of Canada, as well as the guidance provided in Note B to article 105.01 of Queen's Regulations and Orders.

Interim Findings 11, 14, 31 and 32 (now Final Findings 11, 14, 25 and 26) remain as written.

(d) Public Interest Component

In her Notice of Action, the Provost Marshal questions the Chairperson's decision to call a public interest investigation into these files. The Provost Marshal indicated that she fails to see what brings this case into the public interest such that it should have been left to the office of the Provost Marshal.

The NDA clearly vested the discretionary power to call a public interest investigation and/or hearing in the Chairperson and not the Provost Marshal. Section 250.38(1) reads:

If at any time the Chairperson considers it advisable in the public interest, the Chairperson may cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into a conduct complaint or an interference complaint.

We find it surprising that the Provost Marshal would comment on an issue that is clearly within the sole discretion of the Chairperson and one which is only subject to review by the Federal Court. The Provost Marshal stated at page 15 of her Notice of Action that:

the de-railing of the regular statutory complaints process should be reserved for only the most serious of cases in which the conduct of the police involved is so reprehensible as to cause severe concern, shock or indignation in the surrounding military and civilian communities.

Invoking a public interest investigation cannot be said to be “de-railing” the complaints process when it is clearly a process provided for in Part IV of the NDA. Furthermore, the Provost Marshal's office did investigate WO Hamm's complaint and made final determinations on the matter. Subsequently, WO Hamm requested a review pursuant to section 250.31 of the NDA by the Complaints Commission and Cpl Hamm filed a complaint in the first instance regarding the same set of circumstances. In fact, the handling of WO Hamm's complaint by the DPM PS was one of the troubling factors in this case that led to the decision of the Chairperson to call a public interest investigation. Certainly any mishandling of a complaint falls within the public interest so as to ensure an act of Parliament is respected.

In these circumstances, it made little sense to await the Provost Marshal's handling of a second complaint concerning the same incident and seemed only sensible to combine the two complaints before the Complaints Commission. In this way, the Complaints Commission saved time and avoided the need for any further action by the Provost Marshal on the second complaint. Given that the Provost Marshal and her immediate subordinate and delegate in such matters, the DPM PS, had already in effect pronounced themselves on the matter in her handling of the first complaint, there seemed little point in leaving the second complaint with the Provost Marshal to follow the usual process. Moreover, the NDA clearly gives the power to the Chairperson to call a public interest investigation at “any time” which means that it may occur before, during or after a request for review has been made.

The Provost Marshal further appears to be criticizing the Chairperson for not clearly articulating her reasons for declaring a public interest investigation and seemingly does not accept the exclusive jurisdiction of the Chairperson to decide which complaints are in the public interest. Rather, as indicated at page 43 of the Interim Report, on October 31, 2002, the Chairperson decided to cause the Complaints Commission to conduct an investigation in the public interest for the following reasons:

  1. The complaints contained numerous allegations of a serious nature;
  2. Certain elements of the complaints struck at core issues in military policing, such as the proper role and conduct of the Military Police when conducting arrests; and
  3. Allegations that superiors had abused their authority or had attempted to influence or punish complainants for exercising their right to submit a complaint, if true, might reflect a denial of those complainants' rights.

In the same letter, the following six issues were identified as being the subject of the public interest investigation:

  1. Was the order to arrest Cpl Hamm issued by WO Rice proper and lawful?
  2. Was the subsequent arrest by MCpl Paul and Cpl Murray proper and lawful?
  3. Was the release from arrest by CWO Gauvin proper and lawful?
  4. Did CWO Gauvin attempt to deter Cpl Hamm, in his office on December 12, 2000, through the use of intimidation or otherwise, from making a complaint in regard to his arrest?
  5. Are the rights of complainants being negated due to a lack of adherence to Part IV of the National Defence Act, through the internal classification of complaints?
  6. Did the DPM PS properly handle WO Hamm's complaint? Were Cpl Hamm and WO Hamm treated fairly after the latter filed his complaint?

All of this information including the rationale and the issues to be investigated, was clearly communicated, in writing on October 31, 2002, as per section 250.38(3) of the NDA to the complainants, the subject members, the Minister, the Chief of Defence Staff, the Judge Advocate General and the Provost Marshal.

The Provost Marshal cites the case of Via Rail Inc. v. National Transportation AgencyFootnote 279 for the proposition that a thorough analysis of the reasons for declaring a public interest investigation must be articulated by the Chairperson. Notwithstanding our position that this was in fact done, the case is not on point, as it does not involve the declaration of the public interest. Rather, the case focuses on whether or not the Agency erred by failing to give adequate reasons for its findings after having considered all the evidence.

The Provost Marshal goes on to lament that “there does not appear to be an established threshold for the imposition of a declaration of public interest by the Commission”. This is because the courts have held that there should not be a definitive threshold and that each case ought to be carefully considered on its own individual merits. Courts have held that it is the function and duty of the tribunal to form an opinion, based on the individual case before it and further note the wide and unfettered powers of discretion this gives.Footnote 280 The meaning of the words “public interest” must also be construed in the context of the statute in which they are found.Footnote 281 The Supreme Court of Canada has noted that the term “public interest” is an open-ended term and imports a standard that is completely discretionary.Footnote 282 The Supreme Court case of Pezim v. British Columbia (Superintendent of Brokers)Footnote 283 referred to the case of the Ontario Court of Appeal in Re the Securities Commission and Mitchell, (1957) O.W.N. 595 at p. 599 which discussed the discretion given to Securities Commissions to determine what is in the public interest:

The Chairperson and other members of the Commission are selected and appointed by the Lieutenant Governor in Council for their high qualifications, ability and experience. It is the function and duty of the Commission under s. 8 of the Securities Act to form an opinion whether or not it is in the public interest to suspend or cancel the registration of any person. It is intended by the legislation that the Commission shall have extremely wide powers of discretion in forming its opinion.

The NDA confers exclusive jurisdiction on the Chairperson to determine whether a conduct complaint should be referred to the Provost Marshal for investigation or be adjudicated upon following a public interest investigation or hearing. Factors that may lead to a decision to call a public interest investigation or hearing could include: systemic issues, the seriousness of the allegation(s), the possible existence of an institutional conflict of interest, a reasonable apprehension of bias, and the lack of a proper investigation.

We are troubled and surprised by the Provost Marshal's attempt to minimize the serious nature of such issues as a potentially unlawful arrest, retaliatory treatment of complainants and improper classification of complaints.Footnote 284

(e) Hearing versus Investigation

The Provost Marshal in her Notice of Action is critical of the Chairperson's decision to call a public interest investigation. She states at page 16 of her Notice of Action that “the requirements of fairness, transparency and openness point toward a requirement for public interest hearings instead of ineffective public interest investigations.

In creating section 250.38 of the NDA, Parliament clearly envisioned two (2) separate processes; namely a public interest investigation and a public interest hearing. It is within the Chairperson's discretion to decide which proceedings should be employed. As with any investigation, including those conducted by the office of the Provost Marshal, the interviews are conducted in private with no opportunity to cross-examine. In a public interest investigation, the final report is made public through the Complaints Commission's Website.

Finally, the Complaints Commission is obliged by NDA s. 250.14 to proceed as expeditiously and informally as the circumstances of fairness permit in each case. There are situations, as here, where there are good reasons in the public interest to take the cas.

over from the Provost Marshal, but where the added expense, formality and delay of holding public hearings is not warranted. The public interest investigation serves this purpose and was clearly intended by Parliament to be a distinct option. Indeed, its existence calls into question the Provost Marshal's apparent assumption that the Chairperson's “public interest” powers were only intended for cases whose gravity demands a public airing.

In any event, the Provost Marshal's suggestion in this regard would amount to a de facto amendment to Part IV of the Act. The Provost Marshal has other channels for proposing legislative amendments. In the meantime, we must accept and respect the law as it is written.

(f) Refusal by Witnesses to be Interviewed and Treatment of Witnesses

On this topic, the Provost Marshal makes general assertions without identifying the source of her information. For example, she states in general terms that certain persons interviewed felt that the process was adversarial and others believed that the Complaints Commission is biased against subjects of conduct complaints and has lost its objectivity. It is convenient for the Provost Marshal that she is in a position to express such sentiments on an unattributed basis.

Five (5) people declined interviews before the Commission Members: LCol Carey, DPM PS; Major Pumphrey, Acting DPM PS; MCpl Paul; Cpl Murray and MWO MacFarlane.Footnote 285 The Provost Marshal states that she spoke to “several persons” who declined to be interviewed by the Complaints Commission. Given that three of the five individuals are employees of the office of the Provost Marshal and tasked to handle Part IV complaints, this is a serious issue.

The Provost Marshal also expresses the view that due to the lack of cooperation of witnesses, who were primarily her own staff, the Complaints Commission was “denied the ability to fully investigate and understand what transpired on 12 December 2000 and the ensuing days.” While we recognize it is the personal choice of all witnesses to be interviewed or not (and thereby forgo the opportunity to present their version of events), we do find it disheartening to experience such a lack of cooperation at this level of authority. Nonetheless, we reviewed a wealth of documentation and conducted numerous interviews. As the persons delegated by the Chairperson to investigate these complaints, we felt we had ample evidence to proceed and make findings and recommendations on the enumerated issues. Had we not felt this way, a public interest hearing would have been deemed to be necessary.

It is important to note that the Provost Marshal on page 17 of her Notice of Action states that as a result of the discussions in Wakefield, QuebecFootnote 286, between the Complaints Commission and her office, various individuals ultimately decided that they would not provide statements to the Complaints Commission in this investigation. This is not accurate. In fact, these decisions were made prior to the meeting in Wakefield on May 22, 2003. In December 2002 LCol Carey and Major Pumphrey declined the Complaints Commission's request to be interviewed by Mr. Elwood Johnston, Complaints Commission investigator. Subsequently on February 6, 2003 we wrote to LCol Carey and Major Pumphrey requesting to conduct an interview with them as part of Phase II of the public interest investigation. On February 7, 2003 the Complaints Commission received correspondence from Major Pumphrey declining the request to be interviewed by the Commission Members. Similarly, on March 3, 2003, LCol Carey advised the Complaints Commission in writing that she would not appear before the Complaints Commission to be interviewed. Further on March 21, 2003 the Commission Members wrote to LCol Carey and Major Pumphrey asking if they would respond to certain questions in writing. The letter attached the list of questions for their review. On March 25, 2003 LCol Carey advised our office that she would not be answering the questions provided. In addition, written questions were forwarded to MCpl Paul and Cpl Murray on March 27, 2003. None of the witnesses provided answers to the Complaints Commission. .

Accordingly, contrary to the Provost Marshal's assertion, these witnesses made the decision not to be interviewed well in advance of the meeting in Wakefield on May 22, 2003.

Other statements made by the Provost Marshal are cause for concern. For example, the Provost Marshal indicated that Sgt. Claude Dussault made a complaint regarding his interview before the Complaints Commission. This was not the case. Rather, during a meeting between the Legal Counsel for the Provost Marshal and the General Counsel/Director of Legal Services of the Complaints Commission to prepare the agenda for the May 2003 Wakefield symposium, Legal Counsel for the Provost Marshal mentioned that a complaint might be forthcoming from Sgt Dussault. The General Counsel/Director of Legal Services of the Complaints Commission indicated that we would deal with his complaint if and when he decided to file one. Accordingly, it is imprudent to say that a complaint had been made when none was ever made or received.

The Provost Marshal goes on to say that the issue was subsequently addressed at the meeting in Wakefield, Quebec to no avail. This too is inaccurate. The general issue of certain witnesses being hesitant to testify due to the lack of protection afforded by the NDA as enumerated in paragraph 17 of the Complaints Commission's Public Interest Investigation Guide was discussed. At no time was the specific case of Sgt Dussault reviewed or discussed. The purpose of the Wakefield symposium was not to discuss particular files or complaints. In fact, it would have been completely inappropriate to discuss this public interest investigation given that LCol Carey, a subject member of the complaint, was in attendance at the symposium.

However, in order to clarify the circumstances surrounding Sgt. Dussault's interview, the following information is relevant. It was confirmed to Sgt. Dussault prior to his first interview with the Complaints Commission's investigator, Mr. Elwood Johnston, that allegations were made against him for having conducted a biased investigation. It was further stated to him that he was not considered to be a subject of the investigation because he had not been appointed under s. 156 of the NDA, which is necessary for the Complaints Commission to have jurisdiction over his conduct.Footnote 287 However, during Sgt. Dussault's interview with the Complaints Commission Members it was clearly stated to him that given his role in conducting the Professional Standards investigation and given the heavy reliance on his report by the DPM PS in coming to her final conclusions, it was critical to examine in detail the rationale for several of his findings and recommendations in his report. The Complaints Commission Members noted the need to examine and perhaps even challenge some of his findings in order to satisfy themselves that they were well founded. During the introductory phase of the interview with Sgt. Dussault on March 18, 2003, Ms. Julianne Dunbar, Legal Counsel for the Complaints Commission, advised him of the following after having confirmed that Sgt. Dussault was never appointed under section 156 of the NDA:

Ms Dunbar: Given that, we do not have jurisdiction over you. Even though the complainants raised an allegation of bias in your investigation, you will not be considered as a subject of this complaint, and therefore you are appearing here as a witness.

I do wish to advise you, however, that as part of the Military Police Complaints Commission's mandate we will be examining the DPM PS handling of WO Hamm's complaint in the first instance. This of course includes examining your investigation and we will be asking you questions about your investigation as part of that. But you will not be a subject member per se.Footnote 288.

It was explained more than once to Sgt. Dussault during his interview that we were required to ask some difficult questions in order to test the basis for the DPM PS findings. Even after Sgt. Dussault raised the issue that he felt as though his credibility had been questioned, the issue was discussed and seemed to be resolved to Sgt. Dussault's satisfaction:

Sgt. Dussault: When you started to nit pick the report and this and that, I became very uncomfortable because I felt that my credibility was being assessed and there was some insinuation.

I think that some of the arguments or the way things were put to me, my mental assessment and my perception of what you were suggesting were so much apart that I think at one point I said to hell with this. We agree to disagree, and that's fine. And your suggestion -- I guess I'll skip it. At one point I started wondering, and I said I am not comfortable. I do understand that you have to base yourself on the information you have; that your assessment of everything -- I mean, this is overwhelming. There are elements in the evidence that have attracted your attention. Your interpretation of that brings you -- that there is a mental link. I understand that. So I am leaving here satisfied that this was a fair process. I hope that I have divulged everything. I don't know what the others have said. My interpretation is the more I tell you; maybe it is going to verify the credibility of others.

I normally review my tapes for myself just to see, and I am probably going to come to the conclusion that hell, il souffre, [redacted text], ferme-toi, t'as trop parlé.

So I have been very forthcoming as much as I could. There were times when I was uncomfortable with some of your questioning, but that is fair game.I think I showed my reluctance at that, but I think it is fair.

Membre Emond: Mais moi, on apprécie beaucoup, je vais le dire en français pour être très clair aussi, on apprécie ta participation, ton témoignage et je voudrais t'assurer que le but, tu l'as très bien défini pour nous. C'est de bien comprendre, de bien saisir l'ampleur de tout ça et on n'a pas de parti-pris on est pas là pour représenter qui que ce soit dans tout ce projet là mais c'est de faire ressortir les faits tels qu'ils sont. Des fois, on est peut-être obligé de pousser, de poser des questions qui peuvent rendre certains témoins inconfortable. Mais ce sont des faits dans le but précis de bien s'assurer que l'on comprend bien tout ce qui s'est passé puis tes explications sont utiles. Alors, c'est dans cet esprit là que ça était fait et puis je voulais te...

Me Dunbar: Pour vraiment bien comprendre la conclusion c'est qu'on fait le même genre de question avec tout le monde dans ce sens là qu'on veut vraiment bien comprendre les décisions, les conclusions de qui que ce soit.

Sgt. Dussault: Non. Je comprends ça, puis je dois dire que le niveau de professionnalisme de votre part est évident. Entre autres vous m'avez permis un peu d'aggressivité ou de m'exprimer. Donc, non je suis confortable. J'ai tout dit ce que j'avais à dire. I wish you good luck.

Ms. Dunbar: Thank you very much.

Mr. Seheult: I want to thank you as well, Sergeant Dussault. We appreciate your efforts to assist us in this investigation. You understand that part of our job is to test and to probe your opinions.

Sgt. Dussault: Like I said, it is fair game. I hold no grudge. I had a little difficulty with you, and perhaps you did with me. I don't know. But that's all right. I have no problem with that. I respect you very much, sir. I respect everybody.

Ms. Dunbar: Thank you very much, Sergeant Dussault. --- Whereupon the interview concluded at 12:00 p.m. Emphasis added

As a final note, Sgt. Dussault taped his own interview with our consent. It was certainly open to the Provost Marshal to make a request to the Complaints Commission for Sgt. Dussault's transcript, as she did with other selected individuals, or to review Sgt. Dussault's tape had she wished to substantiate the basis of her comments with respect to his interview.

(g) Provost Marshal's Allegation that the Complaints Commission Refused to Provide Witness Statements

The Provost Marshal has stated several times in her Notice of Action that the Complaints Commission refused to release requested documents to her office. The Provost Marshal stated that the reason for such is unclear. This, again, is false.

By way of background, the following is a chronology of the relevant actions taken pursuant to the Provost Marshal's request. In reviewing this chronology, it is useful to bear in mind that this is the first time such a request had been made by the Provost Marshal, and that the purpose of the Notice of Action is not for the Provost Marshal to oversee the work of the Complaints Commission and reinvestigate the matter.

As a final note, the Provost Marshal titled this section of her Notice of Action as “Refusal by the MPCC to Provide CFPM with Witness Statements”. As the foregoing facts clearly show, at no time did the Complaints Commission refuse to provide the statements and such a suggestion is clearly misleading.

(h) Credibility Findings challenged by the Provost Marshal

In her Notice of Action, the Provost Marshal has challenged many of the findings on credibility in this investigation. Given that the Provost Marshal was not privy to all the evidence presented to the Complaints Commission, with the exception of those transcripts forwarded to her request (see above), and that the Provost Marshal was not able to witness first hand the demeanor and non-verbal communication of the witnesses, the Complaints Commission Members are somewhat surprised by the comments made by the Provost Marshal in arriving at contrary findings based on the evidence that was heard and witnessed by us and not by the Provost Marshal.

The principles of judicial deference apply. Although the Provost Marshal is not an appellant body, nor is her role to review or reinvestigate the Complaints Commission's investigation, the same rationale is applicable in this instance. The rationale of a deferential standard of review is that the trier of fact (in this case, the Complaints Commission Members) is in the best position to assess the credibility of witnesses' testimony as he or she has both seen and hear the witnesses.Footnote 289.

We will now examine specific findings relating to this issue.

Interim Finding #2 (Final Finding #2):

Interim Finding 2 reads as follows:

The Commission Members find that, in light of the information that was available to them, it was reasonable for Warrant Officer Rice and Chief Warrant Officer Gauvin to believe that Corporal Hamm would return to work on December 14, 2000 and would be available to deploy to Inuvik on December 26, 2000.

The Provost Marshal in her Notice of Action in relation to Interim Finding 2 appears to be agreeing with us. The Provost Marshal goes on to say “[f]ollowing the phone call, the evidence shows that WO Rice was of the opinion that Cpl Hamm would refuse to deploy.” We found in Interim Finding 5 that “it was not unreasonable for WO Rice to form the opinion that Cpl Hamm refused to deploy.” It would appear that we are all of the same mind in relation to this finding. Accordingly. Finding 2 remains as written.

Interim Finding #3:

Interim Finding 3 reads as follows:

The Commission Members do not accept in its entirety the evidence given by Warrant Officer Rice or Corporal Hamm. In certain areas, their evidence was self-serving or inconsistent to the point that their credibility was questionable.

Again, as those who heard the evidence and conducted the investigation, we are in the best position to make determinations of credibility. In addition, the Provost Marshal stated in relation to Interim Finding 3 that “[b]ased on the information as provided above, I accept the MPCC's view that Cpl Hamm's testimony was the less consistent”, yet we never made any such pronouncement on whose evidence was more credible or consistent.

As such, Interim Finding 3 (Final Finding #3) remains as written.

Interim Finding #4:

Interim Finding 4 reads:

The Commission Members find no substantive evidence to support the conclusion reached by the Deputy Provost Marshal Professional Standards that Corporal Hamm manipulated the information to drive events in his favour.

The Provost Marshal does not agree with this finding and states “(t)he several inconsistencies in Cpl Hamm's statements with respect to child care and the inaccurate version of events that he relayed to his brother tends to support the findings of DPM PS on this issue.

We made this finding based on “substantive evidence” which is not the same as “inconsistencies” referred to by the Provost Marshal. We are not saying that there were no inconsistencies; however, they did not amount to a substantive level of proof to make such a conclusion that Cpl Hamm manipulated the events in his favour.

Accordingly, Interim Finding 4 (Final Finding #4) remains as written.

Interim Finding #5:

Interim Finding 5 reads:

The Commission Members accept, on a balance of probabilities, Corporal Hamm's statement that he did not refuse outright to go on the deployment. However, the Commission Members also find, on a balance of probabilities, that due to Corporal Hamm's ambiguity in his response, it was not unreasonable for Warrant Officer Rice to form the opinion that Corporal Hamm refused to deploy.

The Provost Marshal recommends in her Notice of Action that this “finding be changed to reflect that the Commission cannot reach a conclusion on whether or not Cpl Hamm categorically refused to deploy.” While this is not inconsistent with the finding as written, we feel that Interim Finding 5, as written, is a balanced finding and one that is reflective of the testimony heard.

Accordingly, we confirm Interim Finding 5 (Final Finding #5).

Interim Finding #6:

Interim Finding 6 reads:

The Commission Members find, on a balance of probabilities, that Warrant Officer Rice did not attempt to call Corporal Hamm back after their telephone conversation.

The Provost Marshal is of the view that Interim Finding 6 cannot be supported by the evidence and that there is no credible evidence to contradict WO Rice's version that he tried to call Cpl Hamm back several times.

We disagree. Commencing at page 82 of the Interim Report, MCpl Paul's evidence during his CFNIS interview is detailed. MCpl Paul's recollection was that WO Rice called them into his office immediately after slamming down the phone after his conversation with Cpl Hamm. This would confirm Cpl. Hamm's version of the events.

The standard of proof required for us to come to our conclusions is one of a balance of probabilities and not one of certainty.

Accordingly, we confirm Interim Finding 6 (Final Finding #6). It is not the Provost Marshal's role to weigh the evidence. Such would suggest a clear indication of a misunderstanding of her role.

We are pleased to note the Provost Marshal's agreement with Interim Finding 1 (Final Finding #1).

(i) Insubordination

Evidentiary Issue:

Finding 7 of the Interim Report reads as follows:

The Commission Members find, on a balance of probabilities, that Warrant Officer Rice used profanity during his telephone conversation with Corporal Hamm. The Commission Members therefore find that Corporal Hamm was not insubordinate in hanging up the telephone.

Commencing at page 100 of the Interim Report, we outlined the evidence in support of this finding. Essentially, Cpl Hamm told us that he hung up the telephone in response to WO Rice's profanity and his yelling. At page 101 of the Interim Report, WO Rice stated to us that he does not remember swearing at Cpl Hamm but it was possible. In addition, CWO Gauvin's testimony to Commission Members was that he believed WO Rice mentioned to him in his briefing that he could have used course language during his conversation with Cpl Hamm.

The Provost Marshal states in her Notice of Action in relation to this finding that:

Cpl Hamm did not mention any swearing in his complaint to his brother, his interview with the NIS, or his interview with the DPM PS investigator. The first mention that I have seen of WO swearing at Cpl Hamm was made in the MPCC's Interim Report.

In a typed statement prepared by Cpl Hamm, which was forwarded by Major Pumphrey, Acting DPM PS, on September 24, 2002 as part of the package of materials pursuant to our request for all materials dated July 12, 2002, he stated:

Sgt Rice looses it, starts yelling into the phone that I am in the Military and better damn well realize it, becomes verbally abusive, I hold the phone away from my ear listen to him ranting and raving and hang up.

Further, in his e-mail to CWO Galway dated December 13, 2000, WO Hamm notes that “Sgt Rice became verbally abusive with Cpl Hamm.” Again, this same statement is reiterated in WO Hamm's official complaint dated December 14, 2000.

The statement that Sgt Rice was verbally abusive during the telephone conversation was also noted in Cpl Hamm's complaint in the first instance to the Complaints Commission on May 15, 2002.

In Cpl Hamm's interview with the DPM PS Professional Standards investigator of January 17, 2002 Cpl Hamm stated at page 58 of the transcript:

Sgt Rice told me, he said “You better [redacted text] learn you're in the military.” He said the “F” word a couple of times. He was yelling and screaming.

It is disheartening that the Provost Marshal would misstate the evidence that she has in her possession from the CFNIS and DPM PS investigations. It is even more disturbing that she would suggest that the Complaints Commission somehow posed leading questions to Cpl Hamm to solicit such a response. For the record, portions of Cpl Hamm's interview before the Complaints Commission is reproduced below:

Ms Dunbar: Did you ever say before you hung up, “See you later, bud

Cpl Hamm: No, I did not say, “See you later, bud.

Ms Dunbar: What was the conversation just prior to hanging up?

Cpl Hamm: A click. I held it away from me.

Ms Dunbar: You were listening to him.

Cpl Hamm: He was swearing. I was going to the bathroom. He was swearing. I went click.

Ms Dunbar: What exactly was he saying again when he was swearing? Was this the part about “If I go, you go”?

Cpl Hamm:You better [redacted text] learn you're military. If I tell you to [redacted text] do something, you do it, blah, blah, blah.” Click. I say “man” a lot. I say “Hey, man.” Even my friends have said the same thing. I never say, “See you later, bud.

The Provost Marshal is quite right that this ultimately comes down to an issue of credibility. We had the benefit of investigating this matter in the public interest and hearing the evidence of the various witnesses and therefore feel we are the proper persons to make conclusions in this respect. The duty to investigate was removed from the Provost Marshal when the Chairperson of the Complaints Commission called a public interest investigation.

Accordingly, we confirm the first part of Interim Finding 7 that “on a balance of probabilities, (...) Warrant Officer Rice used profanity during his telephone conversation with Corporal Hamm.”.

Legal Issue:.

The Provost Marshal in her Notice of Action also specifically objects to our conclusion in Finding 7 in the Interim Report that, given WO Rice's use of profanities in his telephone exchange with Cpl Hamm, “Corporal Hamm was not insubordinate in hanging up the telephone [on WO Rice].”.

The Provost Marshal effectively takes the position that nothing that WO Rice may have said to Cpl Hamm during their telephone conversation while the latter was at home on medical leave could have justified or excused Cpl Hamm in hanging up on WO Rice. The Provost Marshal further states that our suggestion to the contrary demonstrates on our part a fundamental lack of understanding of military law, a failure to research the relevant law and to consult with military law experts and an excess of our mandate by attempting to interpret a provision of the Code of Service Discipline.

On further reflection, we wish to clarify that we did not intend in Interim Finding 7 to express a conclusion on Cpl Hamm's guilt or innocence of the Code of Service Discipline offence of insubordination contrary to NDA s. 85. It was our intention merely to address the issue of insubordination in a generic sense. In that sense, we agreed with the assessment made by the CFNIS investigators on this point. However, we admit that, given the context of this case, our use of the term “insubordination” does create confusion on this point. Therefore, we will revise this finding accordingly.

Interim Finding #7 (revised) (Final Finding #7):

The Commission Members find, on balance of probabilities, that Warrant Officer Rice used profanity during his telephone conversation with Corporal Hamm. The Commission Members further find that this led Corporal Hamm to hang-up the telephone on Warrant Officer Rice.

As we were not intending to interpret NDA s. 85, we do not, strictly speaking, need to address most of the objections made by the Provost Marshal on this point in her Notice of Action. However, we believe the nature of her comments is such that we need to reiterate a few points.

In making this finding in the Interim Report, we deliberately refrained from citing NDA s. 85, as it is the policy of the Complaints Commission, not to express conclusions as to the criminal or civil liability of individuals. We have, however, conducted legal research into the interpretation of the insubordination offence, both under s. 85 of the NDA specifically and in other analogous contexts, such as internal police service offences.

There is, in fact, very little available jurisprudence on the interpretation and application of this offence as it is usually dealt with at summary trial where reasons for judgment are not given. However, in reviewing the limited jurisprudence and analysis of this offence that was available, we have found nothing to support the Provost Marshal's assertion that hanging-up on a superior is, without exception, an act of insubordination for which there can be no legal excuse, justification or defence. Nor does the Provost Marshal cite any authority in support of her position. This omission on her part is particularly striking given her gratuitous remarks and characterizations of our competence and methods, which convey the distinct impression that such authority exists in abundance and is easily found.

We accept that it was not the best choice of language to use in our Interim Report as the finding could be interpreted as expressing an opinion that Cpl Hamm was innocent of the offence of insubordination under the Code of Service Discipline. The Provost Marshal may wish to consider taking a similar approach in the drafting of her Notices of Action. As it is, she has in this portion of her Notice of Action expressed a fairly strong opinion of Cpl Hamm's guilt under s. 85, notwithstanding that he has never even been charged with this offence, let alone convicted. We cannot help but contrast her approach to Cpl Hamm in this regard with her objection to our Interim Report Finding 9, where she takes issue with our conclusion that WO Rice attempted to recall Cpl Hamm to duty on the basis that it conflicts, in her view, with WO Rice's acquittal by a service tribunal on a charge of conduct to the prejudice of good order and discipline.

Finally, while we do wish to refrain from making findings that express conclusions about the guilt or innocence of individuals, we do not concede that the interpretation of legislation, including provisions of the Code of Service Discipline, is beyond our mandate. As a body that issues only non-binding findings and recommendations, such legal interpretations in our reports should not be viewed as “findings of law” in the administrative law sense for which we require any special statutory authority. Rather, our reports constitute findings of fact and opinion notwithstanding that they will inevitably have some legal content given that they are reviewing the conduct of law enforcement professionals.

We are pleased to note the acceptance of Interim Finding 8 (Final Finding #8) by the Provost Marshal.

(j) Recall to Duty

In Finding 9 of our Interim Report, we found that:

the order or instruction by Warrant Officer Rice to come to the guardhouse is separate from the arrest itself. Therefore, although an arrest of a member for a service offence does not constitute a “recall to duty”, the instruction by Warrant Officer Rice to bring Corporal Hamm to the guardhouse was a “recall to duty” within the meaning of Queen's Regulations and Orders section 16.01 and failed to meet the prerequisites of the section. Corporal Hamm's Commanding Officer did not personally direct the recall.

In her Notice of Action, the Provost Marshal starts out by agreeing with this finding, but ultimately finds that she can neither accept nor support it. The Provost Marshal disputes this finding primarily on the basis that WO Rice's actions were in fact consistent with QR&O 16.01. In support of this position, the Provost Marshal argues that the authority to cancel any outstanding leave was implicit in the tasking to prepare for the upcoming deployment to the far north that had been issued by Cpl Hamm's Commanding Officer and in the ancillary requirement to ensure that the necessary information was communicated to those slated to deploy on the mission. The Provost Marshal also objects to this finding due to WO Rice's acquittal on a charge of conduct to the prejudice of good order and discipline that had been laid by the CFNIS on the basis that he had allegedly attempted to improperly recall Cpl Hamm from sick leave.

Taking the second point first, a mere acquittal on a charge of conduct to the prejudice to good order and discipline is in no way determinative of the issue of whether or not WO Rice, in fact, sought to recall Cpl Hamm from sick leave, or whether, in doing so, he followed the legal requirements for this step. While there is overlap, the issues are not the same. There are additional elements to proving an offence under NDA s. 129 which go beyond a determination of whether the requirements in QR&O 16.01 were followed. Therefore, we do not agree with this objection to our finding.

However, on further reflection, we are prepared to accept the Provost Marshal's argument that any necessary leave cancellations for the affected personnel can be viewed as implicit in the tasking order from Cpl Hamm's Commanding Officer. Paragraph 16.01(2)(b) of QR&O does stipulate that a member's Commanding Officer must personally direct a member's recall from leave, which we understood to require that the member's Commanding Officer must at least have directed his mind to the cancelling of the member's leave. However, after having considered the opinions expressed by persons from the office of the Judge Advocate General as well as others with relevant military experience, we are persuaded that, in practice, such a step is not deemed to be necessary or practical given the tempo of operations and the competing demands on Commanding Officers in such situations.

Therefore, consistent with this understanding of how QR&O 16.01 is construed in practice, and in the absence of any apparent jurisprudence to the contrary, we have modified Interim Finding 9 accordingly.

Interim Finding #9 (revised) (Final Finding #9):

The Commission Members find that the order or instruction by Warrant Officer Rice to come to the guardhouse is separate from the arrest itself. Therefore, although an arrest of a member for a service offence does not constitute a “recall to duty”, the instruction by Warrant Officer Rice to bring Corporal Hamm to the guardhouse could be construed as a “recall to duty” within the meaning of Queen's Regulations and Orders section 16.01.

(k) Section 10(a) of the Charter and Corporal Hamm's Right to be Informed of the Reason for his Arrest

Interim Finding 20 reads:

The Commission Members find that Corporal Hamm was not promptly informed of the reasons for his arrest which was in violation of paragraph 10(a) of the Canadian Charter of Rights and Freedoms. Accordingly, the Commission Members find that the arrest of Corporal Hamm was unlawful.

The Provost Marshal in her Notice of Action stated:

In his interviews with both Professional Standards and the CFNIS investigators, Cpl Murray was adamant that Cpl Hamm's rights were respected. Indeed, Cpl Murray stated that MCpl Paul borrowed his caution card to read Cpl Hamm his rights.

It would appear that the Provost Marshal read Interim Finding 20 as referring to paragraph 10(b) of the Charter, which deals with the right to retain and instruct counsel without delay and be informed of that right, rather than paragraph 10(a) of the Charter which provides the right to be informed promptly for the reasons of arrest.

In any event, we confirm Finding 20 (now Final Finding #16) as written for the reasons enunciated in the Interim Report.

However, while Cpl Hamm was entitled to be informed of the reason for his arrest, we have reconsidered our position in Interim Finding 21 that he had any legal right to be given reasons for WO Rice's order to attend his office. While we never intended to suggest that WO Rice's order for Cpl Hamm to attend his office was, or was even close to being, “manifestly unlawful”, we recognize that we did not properly apply this doctrine in the context of this case. Military members are entitled to disobey unlawful commands and are obliged to disobey manifestly unlawful commands. However, we recognize that military superiors are not thereby required to justify or explain their orders to their subordinates. Therefore, we are withdrawing Interim Finding 21.Footnote 290

(l) Superior Orders and the Arrest of Corporal Hamm

The Provost Marshal disputes our Interim Report Findings 13, 15, 16, 17, 18 and 19, along with interim Recommendations 5 and 6, essentially on the grounds that the Military Police members who effected the physical arrest of Cpl Hamm, MCpl Paul and Cpl Murray, were not responsible for ensuring that the arrest was lawful, as they were simply following the orders of their superior, WO Rice.

We are sympathetic to the difficult position of MCpl Paul and Cpl Murray in this case. We are fully cognizant of their legal and ethical obligation to obey the orders of their military superiors, even when they do not agree with, or fully comprehend the reasons for, such orders - indeed, even when the very lawfulness of the orders they are given is unclear. We also understand the necessity and rationale for such a doctrine within the military.

At the same time, it must be recognized that circumstances do often permit - and sometimes require - that military subordinates seek additional information from their superiors before carrying out their orders. Such a need may arise where the subordinate requires clarification regarding the actual task or action that has been ordered. Another scenario where it would be acceptable, if not essential, for a military subordinate to question his or her superior about an order would be where the subordinate must personally be aware of certain information, or must personally make an assessment of the situation, in order to satisfy applicable legal requirements. We believe that the situation of a Military Police member ordered to arrest a suspect is just such a scenario.

Due at least in part to court decisions such as Gauthier and Dulude, it now seems clear that the arrest of a person subject to the Code of Service Discipline for a service offence is subject to essentially the same legal conditions as the arrest of a civilian under the Criminal Code: namely that the person responsible for the arrest must subjectively believe that the grounds for arrest (i.e., reasonable belief that the person has committed an offence) are present; and, at least for less grave offences, that the use of the arrest power (as opposed to less restrictive means, such as the issuance of a summons) is actually necessary in the public interest (as, e.g., where there is a need to establish identity or prevent the repetition or continued commission of an offence, or where there is a likelihood of flight from or evasion of justice, etc.).

It is also clear that a superior order does not displace these legal requirements for a valid arrest (see, e.g., the Dulude case). It could hardly be otherwise, if the rights guaranteed to suspects under the Constitution were not to be rendered meaningless.

What is less clear from existing jurisprudence is whether those who make an arrest pursuant to a superior order bear any responsibility for ensuring that the legal requirements for an arrest are satisfied. Certainly, such subordinates are relieved of any criminal liability, provided that the order to arrest is not manifestly unlawful. But this does not fully address the issue. When the subordinates in question are specially trained and appointed as Military Police members, such subordinates also have legal and ethical obligations of a professional nature, and should, in our view, generally be accountable in this regard for ensuring that an ordered arrest is lawfully effected. Such a responsibility comes with being appointed a Military Police Member.

We are of the view that when a Military Police member, acting in his or her capacity under NDA s. 156, is ordered to arrest a suspect, it should be presumed that the Military Police member will exercise his or her professional judgment in giving effect to such an order. Consequently, the Military Police member in this situation ought to take personal responsibility, notwithstanding the fact of the order, for ensuring that the arrest meets all the applicable legal requirements. In this respect, Military Police are no different from other professional occupations in the Canadian Forces (e.g., military physicians or lawyers, etc.) whose members, while still subject to the orders of their military superiors, are nonetheless expected to exercise their independent professional judgment when performing their duties.

We do not accept the Provost Marshal's argument that arrests by Military Police acting under s. 156 cannot be ordered, or that an order to arrest necessarily means that the Military Police member carrying out such an arrest must thereby be acting in a purely military (i.e., non-policing) capacity under s. 155. The ordered arrest at issue in the Dulude case, for instance, was held to be an arrest carried out under s. 156. Indeed, elsewhere in her Notice of Action, the Provost Marshal acknowledges implicitly the possibility of ordered arrests under s. 156, when she writes (at page 12): “Thus, a peace officer cannot arrest, or be ordered to arrest, an individual unless he has the knowledge that an offence has been committed by that individual” [Italics added for emphasis].

A responsible and properly trained military commander ordering Military Police to arrest someone for a service offence should understand that there are particular legal requirements for an arrest. Such a commander should also expect that the specially-trained Military Police members will apply their professional knowledge to the situation and either: take whatever additional steps, or acquire whatever additional information, they judge necessary to effect a valid arrest in a professional manner; or, alternatively, advise the commander that an arrest would not be legal in such circumstances.

However, the fact that there is room for, and indeed a requirement of, some independent judgment, does not in our view mean that such arrests cannot be said to have been ordered. Nor, conversely, does the mere fact of a superior order to arrest eliminate a Military Police member's duty to exercise his or her own professional judgment and discretion in carrying out his or her policing duties.

QR&O article 105.07 does provide that service members who receive an order to arrest from a superior officer are required to perform the arrest notwithstanding that they could not have made the arrest on their own responsibility. While the provision makes no explicit distinction between ordered arrests under NDA s. 155 and s. 156, we think that QR&O 105.07 is best understood as speaking primarily to arrests under s. 155. Given the extent of the Military Police members' authority to arrest under s. 156, QR&O 105.07 would add little to these powers. In any event, QR&O 105.07 should not, in our view, be read as requiring or authorizing Military Police members acting under s. 156 to perform arrests without forming the necessary grounds for the arrests or assessing whether arrest is necessary in the public interest.

However, having considered the views of the Provost Marshal in her Notice of Action, we accept that different considerations may well apply to arrests ordered under s. 155. We recognize that in the military context there must be a mechanism for securing the arrest of persons without the need to justify the arrest to those expected to carry it out, and without these subordinates having to be personally satisfied as to the necessity or appropriateness of this action. NDA s. 155 serves this purpose in the Canadian Forces and, as the Provost Marshal correctly points out in her Notice of Action, s. 155 applies without distinction to all Canadian Forces members, including Military Police members.

As we indicated earlier in this document, we have come to the conclusion that the arrest in this case - regardless of whether it was done under NDA s. 155 or 156 - constitutes a “policing duty or function” when performed by a member of the Military Police and is therefore reviewable by the Complaints Commission pursuant to Part IV of the NDA. We further believe that - again, regardless of which arrest power was being invoked - those Military Police members involved in the arrest of Cpl Hamm are all accountable, as police professionals, to the Provost Marshal and to the Complaints Commission as well as the Canadian public in general, for the manner in which they discharged their responsibilities. Specifically, MCpl Paul and Cpl Murray, as Military Police performing a policing function, were responsible as police professionals for executing the physical arrest of Cpl Hamm in a lawful, appropriate and professional manner, regardless of which legislative provision they were acting under.

In this connection, we were somewhat surprised by certain comments made in relation to our Interim Finding 13, at page A-22 of the Provost Marshal's Notice of Action, which seem to suggest that MCpl Paul and Cpl Murray were not required to advise Cpl Hamm of the reason for his arrest or of his right to counsel. While we have conceded that the Military Police Policies and Procedures referenced in Interim Finding 13 were not technically applicable, it should be clear that these constitutional rights of arrested persons, enshrined as they are in section 10 of the Charter, are engaged by any arrest, including an arrest under the NDA s. 155. The requirement of Canadian Forces personnel performing arrests to respect these rights is further specified in QR&O 105.08, which applies to arrests under both sections 155 and 156. We hope that the Provost Marshal, as the most senior police officer in the Canadian Forces, did not intend to suggest otherwise.

In terms of the actual decision to arrest, however - specifically, the need to discern the legal grounds for arrest and to determine its necessity (the so-called “mental elements” of an arrest) - we accept that there may well be a difference in the professional responsibilities of Military Police ordered to make an arrest pursuant to NDA s. 155 versus s. 156. In contrast with the special Military Police arrest powers under s. 156, the general arrest powers of Canadian Forces members under s. 155 do not as such import the same considerations of police professional responsibility so as to qualify, dilute or read-down the direction under QR&O 105.07 to carry out ordered arrests without regard to personal responsibility. In other words, the combined effect of NDA s. 155 and QR&O 105.07 would appear to be such that only the person who orders an arrest is expected to concern themselves with the propriety of the actual decision to arrest. .

As the particular facts of this case suggest that WO Rice may well have been acting under s. 155 when he ordered Cpl Hamm's arrest, we are inclined to revisit certain of our findings and recommendations concerning the conduct of MCpl Paul and Cpl Murray in connection with that arrest.

In the somewhat unusual circumstances of this case, it seems only fair to give MCpl Paul and Cpl Murray the benefit of the doubt and assess their conduct through the lens of s. 155, rather than s. 156. Given its application to all Canadian Forces members, an ordered arrest under s. 155 does not seem to engage a Military Police member's special professional responsibilities in the same way, or to the same extent, as would an arrest under s. 156. As already indicated, MCpl Paul and Cpl Murray were expected to carry out the arrest of Cpl Hamm in a manner consistent with their professional obligations in any event. However, given the requirements of QR&O 105.07, we believe that MCpl Paul and Cpl Murray, acting in their military capacity under s. 155, were entitled to rely upon WO Rice having been satisfied as to the existence and sufficiency of the grounds for arrest and its necessity. In other words, we believe that any specific failure to form the proper grounds for the arrest of Cpl Hamm and to assess its necessity in the public interest should rest with WO Rice alone. Accordingly, we are withdrawing Interim Report Findings 13, 15, 16, 18 and 19, as well as interim Recommendation 6.

We continue to believe, however, that, even in the context of an ordered arrest under s. 155, those carrying out such an order do bear some responsibility for trying to ascertain the reason for the arrest so that they can convey this information to the person being arrested, as required by s. 10(a) of the Charter and QR&O article 105.08. Therefore, we confirm Interim Finding 17 (now Final Finding #15).

We also believe that, as they knew or ought to have known that they had arrest powers under both ss. 155 and 156, and given the differing professional obligations applicable under those provisions, it was incumbent on MCpl Paul and Cpl Murray to try to ascertain the capacity in which they were being called upon to arrest Cpl Hamm. While it might no doubt have been awkward seeking this clarification from WO Rice given his mood at the time, this knowledge was essential for them to properly discharge their professional responsibilities. MCpl Paul and Cpl Murray needed to know whether they were performing the arrest as Military Police per se - in which case, they would have needed to personally discern the grounds for and necessity of the arrest - or as military subordinates - in which case, they could rely on WO Rice having done so.

Therefore, we are adding a new Finding 13 regarding the responsibility of MCpl Paul and Cpl Murray in this regard.

Finding #13 (new) (Final Finding #13):

The Commission Members find that Master Corporal Paul and Corporal Murray, before proceeding to arrest Corporal Hamm, should have sought to ascertain from Warrant Officer Rice whether they would be performing the arrest as Military Police members under s. 156 or as Canadian Forces members under s. 155 of the National Defence Act.

Given their failure to try to obtain both this information and the reason for the arrest, we believe that the additional training recommended in interim Recommendation 5 is still justified.

As is clear from the foregoing discussion, the legal issues presented by the interplay of the law governing arrests, police professional obligations, and the duty to obey superior orders, are neither simple nor free from doubt. Specific legislative and judicial guidance is lacking in key areas. We believe that the foregoing analysis reflects a balancing of rights and duties that is most consistent with the present state of the law. However, we also recognize that other answers and perspectives are possible. The issues at stake here are significant and include: the liberty of the individual, and the rights of suspects; the nature and limits of the arrest powers under the NDA; and the legal liability and professional accountability of Military Police members. While achieving the proper balance among these concerns involves grappling with some grey areas of the law, we believe that it is essential that those institutions with responsibility for military policing in Canada move toward a common understanding in this area.

Although further clarification from Parliament or the courts would be beneficial, we believe that some action can and should be taken in the interim. We believe that representatives of the key agencies involved in these issues should meet informally to discuss and share their various perspectives on the legal issues in question. Ideally, some consensus on these questions could be achieved that could form the basis of future policy guidance to Military Police and those who command them. Moreover, each organization would benefit from the specific concerns, experience, and perspectives of the others. From the military policing side, obviously there should be participation from the Provost Marshal and the Complaints Commission. The office of the Judge Advocate General would obviously be best suited to provide insight and expertise on the military justice system and general questions of military law. Also, given the substantial experience of the civilian criminal justice system with respect to the law governing arrests, we think it would be useful to have the involvement of counsel of the Department of Justice with expertise in criminal law and procedure under the Criminal Code.

Therefore, we would add the following recommendation:

Recommendation #6 (new) (Final Recommendation #6):

The Commission Members recommend that appropriate representatives of the Complaints Commission, the Canadian Forces Provost Marshal, the Judge Advocate General, and the Department of Justice meet to review and discuss the legal and professional issues surrounding the exercise by Military Police members of arrest powers under the National Defence Act and the relevant implications of an order to arrest from a military superior.

(m) Abuse of Authority

We acknowledge that use of a term such as “abuse of authority” that is defined in the Department of National Defence Harassment policy may have created confusion. It was not our intention to allege harassment. The Commission Members have decided, nonetheless, to modify Interim Finding 22 as follows:

Interim Finding #22 (revised) (now Final Finding # 17):

The Commission Members find that Warrant Officer Rice acted beyond the scope of his authority and responsibility in the circumstances.

We note the Provost Marshal's agreement with Interim Finding 23 (now Final Finding #18).

(n) Privacy ActFootnote 291 comments by the Provost Marshal

In relation to Interim Finding 24, the Provost Marshal noted that the wording of this finding “implies that MCpl Paul was told by Dr. Burke on the telephone that Cpl Hamm's medical leave was [redacted text].” It was not our intention to convey that message. Rather, the “information” that MCpl Paul “received from Dr. Burke” was that Cpl Hamm was on medical leave and it was his recommendation that he not go to work and that his advice to Cpl Hamm was that he had no obligation to go as he was on medical leave.

At no time did we wish to infer that Dr. Burke disclosed the reasons for Cpl Hamm's medical leave to MCpl Paul. Rather, the text in the Interim Report noted that MCpl Paul knew all along that Cpl Hamm's sick leave was [redacted text] because Cpl Hamm had told him on December 7, 2000. The Commission Members do wish to acknowledge the confusion that was created at page 131 of the Interim Report, lines four through nine.

For these reasons, Interim Finding 24 is withdrawn and Interim Finding 25 is modified as follows:

Interim Finding #25 (revised) (now Final Finding #19):

The Commission Members find that once Master Corporal Paul spoke to Doctor Burke at Corporal Hamm's residence, he should have advised Warrant Officer Rice that questions had been raised about Corporal Hamm's sick leave status, in order to obtain confirmation that the arrest was still warranted.

The Provost Marshal notes that the implication in this finding is that MCpl Paul should have told WO Rice about Cpl Hamm's medical condition. The Provost Marshal goes on to stress that she has difficulties reconciling this with the rights of patients to confidentiality in relation to their personal medical information. We strongly agree with the patient's right to confidentiality but do disagree with the Provost Marshal when she says that MCpl Paul “had a legal obligation to protect the privacy of Cpl Hamm.” While MCpl Paul may have a “moral” duty to keep a colleague's confidence, we do not feel that he has a legal duty to do so in light of the Privacy Act. One of the purposes of the Privacy Act as stated in section 2 is to protect personal information “held by a government institution”. MCpl Paul, in his capacity as a colleague of Cpl Hamm's, cannot be considered to be holding the personal medical information of Cpl Hamm as a “government institution”. The Privacy Act is meant to protect the release of personal information by the institution or management. In the present case, such information is held by Dr. Burke and the medical office. MCpl. Paul was not the official holder of the information, and was not acting on behalf of the institution in receiving the information, nor did he hold an employer-employee relationship with Cpl Hamm. Rather MCpl Paul learned the information through his personal association with Cpl Hamm.

(o) Master Corporal Paul's notes

In respect of Interim Finding 26, on one hand the Provost Marshal states her agreement that MCpl Paul did not take good notes in this situation and then later states that his notes were sufficient, given the situation.

This statement by the head of the Military Police certainly causes us some concern. There is never an excuse for poor note-taking. We take issue with the fact that MCpl Paul never mentioned in his notes that he had a conversation with Dr. Burke. Even if the Commission Members were to believe that MCpl Paul and Cpl Murray were conducting this arrest pursuant to s. 155 of the NDA, they would still be required to take proper notes. The members carrying out the arrest are responsible for ensuring the person's Charter rights are respected. If any Charter violations are alleged it would be difficult for the member who effected the arrest to properly respond. In addition, in order for the officer to be a credible witness at a summary trial or court martial, proper notes are essential.

Accordingly, Interim Finding 26 (now Final Finding #20) remains as written.

(p) Findings surrounding Chief Warrant Officer Gauvin

The point that we wish to make in relation to Interim Finding 27 is that CWO Gauvin was not the proper person to release Cpl Hamm from arrest. In order to clarify this finding, Interim Finding 27 now reads as follows:

Interim Finding #27 (revised) (now Final Finding #21):

The Commission Members find that Chief Warrant Officer Gauvin did not have the authority to release Corporal Hamm. His releasing Corporal Hamm was not in accordance with the principles of subsection 158(1) of the National Defence Act and QR&O section 105.12. Chief Warrant Officer Gauvin should have called on the arresting officer to release Corporal Hamm from arrest.

We note the Provost Marshal's agreement with Interim Finding 28 (now Final Finding #22).

In relation to Interim Finding 29 (now Final Finding #23), we confirm this finding.

The Provost Marshal disagreed with the Commission Members' Interim Finding 30 which stated that:

The Commission Members find that Chief Warrant Officer Gauvin should have used more appropriate language and his comments reflected poor police practice and management.

CWO Gauvin even conceded, in his interview with the Complaints Commission, that some language he used might not have been necessary.Footnote 292 The Commission Members recognize CWO Gauvin's role as the chief disciplinarian and as stated in Interim Finding 29 the Commission Members did not find, on a balance of probabilities, that CWO Gauvin attempted or intended to intimidate Cpl Hamm from complaining further. The essence of Interim Finding 30 was simply that more appropriate language could have been used in this situation. We do, however, wish to modify Interim Finding 30 (now Final Finding #24).

Interim Finding #30 (revised) (now Final Finding #24):

The Commission Members find that Chief Warrant Officer Gauvin should have used more appropriate language.

(q) Rights of Complainants and Subject Members Concerning Classification of Complaints

In Interim Finding 33, we found that errors in classifying complaints as “internal” rather than Part IV conduct complaints have the potential effect of nullifying important statutory rights of complainants and subjects of complaints.

In the Provost Marshal's commentary she notes that she is not “aware of any statutory rights that are provided by Part IV of the NDA that are otherwise unavailable to personnel submitting complaints or grievances under the many other provisions of the NDA and QR&O.

The Provost Marshal stated that there are other recourse mechanisms that provide the same rights to complainants.

We do not share her view. Civilian oversight provides an opportunity to complainants and subject members to have their matter reviewed by an outside, independent oversight agency. At page 145 of the Interim Report, we explained the various rights which may potentially be nullified:

If conduct complaints, brought to the attention of the CFPM either through the Military Police Chain of Command or through any other source, are classified as “internal” the complainant may never be notified of the right to have their conduct complaints reviewed by the Complaints Commission and thus may be unable to exercise that right. The complainant and subject of complaint may also lose the right to have the complaint monitored at all stages by the Complaints Commission. The complainant and subject of complaint may also lose their potential right to have the complaint investigated by the Complaints Commission as a public interest investigation and/or hearing.

None of these rights under Part IV of the NDA are available to a complainant if a complaint is classified as “internal”. Essential to the principles of civilian oversight is the right of a complainant to have his or her complaint reviewed or investigated by an outside, independent, civilian oversight agency. The Provost Marshal's comments in regards to this finding are indicative of a resistance to the notion of civilian oversight.

Accordingly, Interim Finding 33 (now Final Finding #27) remains as written.

(r) Warrant Officer Hamm and Corporal Hamm as Subjects of Complaints

Finding 34 in the Interim Report stated:

The Commission Members find that Corporal Hamm and Warrant Officer Hamm became subject members of the Professional Standards investigation when the seconded investigator determined early in the investigation that Corporal Hamm might have committed service offences or might have violated the Military Police Professional Code of Conduct and when the investigator determined that Warrant Officer Hamm failed to confirm the accuracy of the complaint.

The Provost Marshal objected to this finding by stating that Cpl Hamm and WO Hamm never became subjects of the DPM PS investigation, rather only drew comment by both the DPM PS and the CFNIS.

We agree that, technically, WO Hamm and Cpl Hamm were not named as subject members by the DPM PS in her investigation. We found that, if and when a complainant's own conduct becomes a focus of the investigation, a new Professional Standards investigation ought to be commenced naming them as a subject of the complaint. This would ensure that this individual is given all the proper warnings and protections in relation to the allegations against him or her. Accordingly for reasons of clarity, the Commission Members make the following modifications to Interim Finding 34:

Interim Finding #34 (revised) (now Final Finding #28):

The Commission Members find that the Professional Standards investigation focused on Corporal Hamm's behavior when the seconded investigator determined early in the investigation that Corporal Hamm might have committed service offences or might have violated the Military Police Professional Code of Conduct and when the investigator determined that Warrant Officer Hamm failed to confirm the accuracy of the complaint.

For further clarity, Interim Finding 35 is modified as follows:

Interim Finding #35 (revised) (now Final Finding #29):

The Commission Members find that when the Professional Standards investigation began to focus on possible misconduct by Corporal Hamm and Warrant Officer Hamm, a new and separate investigation of the allegations against Corporal Hamm and Warrant Officer Hamm should have been commenced which would have provided them with the appropriate notices and protections required by law and policy.

In her commentary in relation to Interim Finding 35, the Provost Marshal makes reference to file #2002-005 and states that the Complaints Commission held in this file that the DPM PS is not at liberty to create complaints or complainants. The Provost Marshal inferred from this that they are also not at liberty to create a subject of a complaint.

After a review of File #2002-005, we are of the view that Finding 4 of that file was taken out of context by the Provost Marshal.

This case was one that involved the person affected by the conduct reporting the information to a person in authority who subsequently made a complaint. Some time later in the process, the DPM PS named the person affected as the complainant without that person ever being made aware. The point of this finding was simply to ensure that the DPM PS contacts those persons she is naming as a complainant to ensure that they wish to be named as a complainant. It is a leap for the Provost Marshal to assume that this finding stands for the proposition that the DPM PS is not at liberty to name herself as a complainant in a file where no complainant comes forward.

The Commission Members are certainly supportive of the DPM PS naming herself as the complainant in such cases where a complainant has not come forward. The Commission Members do not see anything wrong with such a practice and in fact, encourage it. It is further consistent with Part IV of the NDA which allows “any person” to file a conduct complaint, which includes the DPM PS.

Interim Finding 36 (now Final Finding #30) remains as written.

(s) Deputy Provost Marshal Professional Standards' Conclusions

Interim Finding 37 reads:

The Commission Members disagree with four (4) of the five (5) conclusions of the Deputy Provost Marshal Professional Standards as stated in her Letter of Final Disposition dated April 5, 2002 that Corporal Hamm committed five (5) breaches to the National Defence Act.

We agree with the Provost Marshal's comments contained in the second paragraph in relation to Interim Finding 37 in her Notice of Action. We, too, cannot support the DPM PS contention in the fifth matter.

The Commission Members make the following modification to Interim Finding 37:

Interim Finding #37 (revised) (now Final Finding #31):

The Commission Members disagree with all of the conclusions of the Deputy Provost Marshal Professional Standards as stated in her Letter of Final Disposition dated April 5, 2002 that Corporal Hamm committed five (5) breaches to the National Defence Act.

Interim Finding 38 reads:

The Commission Members find that there was insufficient evidence to establish, on a balance of probabilities, that Corporal Hamm misinformed or provided misleading information to Warrant Officer Hamm about any matter relevant or material to Warrant Officer Hamm's complaint. Accordingly, the Commission Members find that Corporal Hamm did not mislead Warrant Officer Hamm in the five (5) manners detailed by the Deputy Provost Marshal Professional Standards.

In relation to Interim Finding 38, we do not find the Provost Marshal's commentary compelling in which she insisted that Cpl. Hamm did not “fully and accurately disclose to his brother the information pertaining to his EXPRES test and remedial PT” and therefore leave Interim Finding 38 (now Final Finding #32) as written. In addition, it is important to note that Cpl Hamm called WO Hamm as a brother. Cpl Hamm was not registering an official complaint with WO Hamm, but rather was calling him as a brother and a support person. It also appears that the Provost Marshal overlooked the fact that Cpl Hamm was on [redacted text] medical leave when he was arrested and later spoke to his brother. The emotion of being arrested added on to the fact that he was already on [redacted text] leave may have been overlooked when the Provost Marshal made her commentary.

(t) Warrant Officer Hamm's treatment by the Deputy Provost Marshal Professional Standards

We are pleased that the Provost Marshal agrees with Interim Finding 39 (now Final Finding #33); however, we do have concerns about her expectation that a Warrant Officer in the Military Police will verify a complaint or allegation before involving himself in the affairs of another unit.

We view this as tantamount to investigating a complaint himself and do not agree with such an obligation. Furthermore, it would be ill-advised to do so as it could be considered as interfering in a police investigation. In fact, we are of the view that section 7 of the Military Police Professional Code of Conduct required WO Hamm to report his awareness of the allegation. There is no requirement to verify or investigate the belief or allegation before it is reported. This was essentially the main thrust of Interim Finding 40 to which the Provost Marshal agreed.

We are pleased to note the Provost Marshal's agreement with Interim Findings 40, 41, 42 and 43 (now Final Findings #34, 35, 36 & 37).

The Provost Marshal disagreed with Interim Finding 44 wherein we found that WO Hamm should not have been counseled. The Provost Marshal in stating her disagreement noted that:

I believe that WO Hamm made an error in judgment by accepting his younger brother's versions of the events without verifying them. He should not have asserted himself into this issue, particularly because it was his brother who was involved.

We fail to understand how WO Hamm was expected to verify the events without involving himself in the affairs of another unit - precisely what the Provost Marshal is criticizing him for doing. Again, this is tantamount to investigating the matter, which was neither WO Hamm's mandate nor obligation. On the one hand, the Provost Marshal is saying that WO Hamm's counseling for his “inappropriate intervention” was justified for “inserting himself into a process where he is.personally involved with his brother”; and, on the other hand, the Provost Marshal is saying that WO Hamm ought to have taken the time to verify his brother's account of the events. This appears to be contradictory.

We conclude that Interim Finding 44 (now Final Finding #38) is the correct finding on the facts of this case and confirm this finding.

(u) Corporal Hamm's treatment by the Deputy Provost Marshal Professional Standards & Review of Police Credentials

In Interim Findings 45, 46, 47, and 48, we stated our disagreement with the DPM PS' conclusions that Cpl Hamm violated certain paragraphs of the Military Police Professional Code of Conduct. The Provost Marshal stated at A-63 of her Notice of Action that:

This is a matter for determination by the MP CRB, a separate decision making body. In this context it is inappropriate for the MPCC or the Office of the Canadian Forces Provost Marshal to comment on this issue.

By making such findings, we were not intending to infringe upon the jurisdiction of others. In fact, on page 41 of the Interim Report under the section “Introduction” the following was stated:

It is important to note that the findings and conclusions contained within this report cannot be taken as findings of criminal or civil liability. The findings and conclusions neither bind courts considering the same subject matter nor are they intended to infringe on the jurisdiction of other decision makers in related matters.

After due consideration of the Provost Marshal's objections, we disagree with the Provost Marshal's assessment that findings on conformity with the Military Police Professional Code of Conduct are the exclusive preserve of the Military Police Credentials Review Board and the Provost Marshal.

Since the Complaints Commission has no penal jurisdiction and its Findings and Recommendations are not legally binding, reports by Complaints Commission Members are in no way equivalent to the judgments of a court or service tribunal properly seized of such issues. However, in assessing Military Police conduct, the Complaints Commission is nonetheless entitled to draw upon relevant standards, including legal ones. The Canadian Charter of Rights and Freedoms, the Military Police Professional Code of Conduct and, in some cases, the Code of Service Discipline, or even the Criminal Code, are all valid sources of potentially relevant standards for Military Police conduct. In fact, the Complaints Commission would be remiss in its duty to act fairly if, in assessing the appropriateness of Military Police conduct, it were to ignore relevant, pre-existing and authoritative norms simply on the basis that other institutions bear primary responsibility for their application and enforcement.

We therefore reject the Provost Marshal's assertion that the Provost Marshal and the Military Police Credentials Review Board have a monopoly on the construction and application to specific cases of the Military Police Professional Code of Conduct. The Military Police Professional Code of Conduct is clearly relevant to the Complaints Commission's mandate under Part IV of the NDA and the Commission Members have an implicit jurisdiction to consider the Military Police Professional Code of Conduct in arriving at the Findings and Recommendations in their reports. Indeed, the Military Police Policies and Technical Procedures themselves stipulate that the Military Police Credentials Review Board process must await any review by the Complaints Commission (A-SJ-100-004/AG-000, page 3-8, paragraph 18), which clearly suggests a role for the Complaints Commission in the interpretation of the Military Police Professional Code of Conduct.

As they do not legally bind any other body, such findings by the Complaints Commission do not in any way detract from the unique authority of the Provost Marshal - on the advice of the Military Police Credentials Review Board - to enforce professional standards through the imposition of sanctions or other remedial measures.

We would like restate that the Complaints Commission is entitled to make findings and recommendations on a broad scale (as per NDA s. 250.32, the Complaints Commission's mandate covers “any matter relating to the complaint”). Given that the DPM PS conclusions regarding Cpl Hamm's conduct derived from this complaint, and thus cannot be separated from the initial complaint, it is not only part of the Complaint Commission's mandate, but it is incumbent upon us to comment and to make findings and recommendations relating to the complaints.

That being said, we do wish to afford the proper deference to those empowered to make the ultimate decisions and as such feel it appropriate to revise the following findings:

Interim Finding #45 (revised) (now Final Finding #39):

The Commission Members are of the view that the evidence does not support the conclusion that Corporal Hamm violated paragraph 4(l) of the Military Police Professional Code of Conduct.

Interim Finding #46 (revised) (now Final Finding #40):

The Commission Members are of the view that the Deputy Provost Marshal Professional Standards' rationale for finding that Corporal Hamm violated paragraph 4(l) of the Military Professional Code of Conduct is so vague that it would be an unduly difficult allegation to defend against before the Military Police Credentials Review Board.

Interim Finding #47 (revised) (now Final Finding #41):

Because Corporal Hamm was not treated as a subject member or advised that the Professional Standards investigation was addressing this issue, the Commission Members are of the opinion that it was unfair to Corporal Hamm for the Deputy Provost Marshal Professional Standards to rely on paragraph 4(k) of the Military Police Professional Code of Conduct.

Interim Finding #48 (revised) (now Final Finding #42):

The Commission Members are of the view that the evidence does not support the conclusion that Corporal Hamm violated paragraph 4(h) of the Military Police Professional Code of Conduct in failing to disclose the reason for his sick leave to his supervisor. Corporal Hamm had no obligation in law to disclose the nature of his illness.

Interim Finding #51 (revised) (now Final Finding #44):

Based on the evidence reviewed and heard, the Commission Members do not support the decision to suspend Corporal Hamm's credentials for supplying false information to or withholding information from Warrant Officer Hamm.

Interim Finding #52 (revised) (now Final Finding #45):

The Commission Members disagree with the various and contradictory reasons advanced by the Deputy Provost Marshal Professional Standards to suspend Corporal Hamm's credentials.

(v) Misleading the Investigator

In Interim Finding 49, we stated our opinion that there was no evidence to support the DPM PS' conclusion that Cpl Hamm knowingly revealed information intended to mislead the investigator.

The Provost Marshal in her Notice of Action stated that the accuracy of this finding depends on which investigator we are referring to. The Provost Marshal states her understanding to be that the DPM PS finding refers to the CFNIS investigator and not the DPM PS investigator.

To clarify, we were under the impression that the DPM PS was referring to her own investigator. Capt. Chiasson, in his interview with the Complaints Commission, stated the following:

I saw Colonel Carey about the reason why he was being suspended. This was prior to the message coming out. She explained to me that it was because Corporal Hamm had lied to one of her investigators. The way she explained was that he had ample opportunity to come forward and basically, in her words, tell the truth about what he was lying about, but didn't do that. This was basically the reason for the suspension.Footnote 293

The telex of April 5, 2002 referring to this statement was not sufficiently clear in this regard. Despite this, we do not feel that Cpl Hamm “knowingly revealed information intended to mislead” either the CFNIS investigators or the DPM PS investigator.

Accordingly, Interim Finding 49 is modified as follows:

Interim Finding #49 (revised) (now Final Finding #43):

In the Commission Members' view, the evidence does not support the conclusion of the Deputy Provost Marshal Professional Standards that Corporal Hamm knowingly revealed information intended to mislead the Professional Standards investigator or the Canadian Forces National Investigation Service investigators.

Interim Finding #50:

The members have chosen to withdraw Interim Finding 50 for reasons of duplicity with Interim Finding 38.

(w) Recommendations

In relation to interim Recommendation 2 that WO Rice receive instructions on the elements and requirements for a proper arrest and the rights of suspects, the Provost Marshal responded that WO Rice has been provided with such training throughout his career and he is well aware of the requirements for effecting an arrest.

We are of the view that WO Rice did not act properly on the day of Cpl Hamm's arrest. Accordingly, we make the following modification to interim Recommendation 2:

Interim Recommendation #2 (revised) (Final Recommendation #2):

The Commission Members recommend that Warrant Officer Rice receive, if he has not already, advanced training on the elements and requirements for a proper arrest and the rights of suspects who are subjected to an arrest.

Interim Recommendation 3 reads:

The Commission Members recommend that the Canadian Forces Provost Marshal impose corrective measures on Warrant Officer Rice for abuse of authority.

After having considered the Provost Marshal's comments in relation to interim Recommendation 3, we do make the following modification to interim Recommendation 3:

Interim Recommendation #3 (revised) (Final Recommendation #3):

The Commission Members recommend that the Canadian Forces Provost Marshal ensure that Warrant Officer Rice is provided with sage advice and guidance on the proper exercise of his authority.

For the reasons enunciated under the heading “Superior Orders and the Arrest of Cpl Hamm”, Interim Report Recommendation 6 is no longer appropriate and, accordingly, we withdraw it.'

In interim Recommendation 7, we recommended that the Provost Marshal implement safeguards regarding the classification of complaints. The Provost Marshal in her Notice of Action responded that the DPM PS process for the categorization of complaints was reviewed following discussions in Wakefield in May 2003. The Provost Marshal indicated that the Director of Operations attended the office of the DPM PS in September 2003 and was briefed on the process.

By way of background, the issue of classification of complaints was raised as an issue at meetings between the Complaints Commission and the office of the Provost Marshal in Wakefield, Quebec, in May 2003. The Complaints Commission raised the issue that they were concerned that some complaints were being incorrectly categorized as “internal” (i.e., not falling under the NDA Part IV complaints process). The Complaints Commission also raised the issue that if the two organizations do have differences of opinions on classification, we will never be able to sort them out if we are not aware of these files. The Complaints Commission asked for access to all the files classified as “internal” to review. The Provost Marshal and her staff were not willing to allow the Complaints Commission to see all the files, but did agree to allow the Complaints Commission to see a pre-selected sampling of files.

Ultimately, on September 9, 2003 the Complaints Commission's Director of Operations reviewed this sampling of files. The information relayed to the Director of Operations from the DPM PS staff was that if there is no clear complainant, or complaint and instead, Professional Standards issues surface from the chain of command or from a Military Police Unusual Incident Report, the DPM PS may classify the files as an internal matter rather than a Part IV complaint.

The Complaints Commission takes the view that if the subject of the alleged misconduct relates to a “policing duty or function” it ought to be categorized as a Part IV complaint. This does not appear to always be the case.

We are of the view that this meeting was an initial step in gathering information on how the office of the CFPM is classifying complaints but that by no means is this considered to be a resolved issue.

There could not be a better example of why the Complaints Commission should be involved in the classification of complaints than the present case. Initially, the DPM PS categorized this complaint as an “internal” file due to the manner in which the issues were brought to her attention (i.e., complaint from another Military Police member). Subsequently, upon questioning by the Chairperson of the Complaints Commission, the DPM PS acknowledged that an error had occurred in the classification and that it was now being treated as a Part IV complaint. Surprisingly, at the very late stage of the Notice of Action, the Provost Marshal now reverts to the position that the matter is an “internal” matter and not a Part IV complaint though notably for a very different reason: namely, that this type of arrest is “administrative” in nature and not one that falls under “policing duties and functions”. The Provost Marshal has delegated certain powers under Part IV of the NDA to the Deputy Provost Marshal Professional Standards. We fail to see how the Part IV complaints process will work if the Provost Marshal chooses to reverse decisions made by her delegate at such a late stage in the process. This will only confuse the Part IV complaints process, and sadly result in procedural inequity to the parties involved.

The need for the Complaints Commission to be actively involved in the process of classification of complaints is entirely apparent and appropriate. Given the obvious institutional conflict of interest, it seems contrary to the spirit and purpose of Part IV of the NDA for the Military Police to exercise exclusive control for classifying complaints.

Accordingly, we confirm interim Recommendation 7 with the following modification.

Interim Recommendation #7 (revised) (Final Recommendation #7):

The Commission Members recommend that the Canadian Forces Provost Marshal implement safeguards to ensure that the improper classification and handling of complaints will not reoccur. Furthermore, the Complaints Commission should be involved in the development and application of criteria in the classification of complaint and where the Provost Marshal or her delegate makes a decision that a complaints does not fall under Part IV of the National Defence Act, the complainant should be notified of the right to have such a decision reviewed by the Complaints Commission. All such correspondence should be copied to the Complaints Commission.

In regards to interim Recommendation 8, we acknowledge that the decision to direct that WO Hamm be counseled rested with the DPM PS. As stated at the outset of the Interim Report, none of our findings or recommendations are meant to interfere with the jurisdiction of others in related matters. That being said, we have a right to make findings and recommendations on all matters concerning the complaint. We are disappointed that the Provost Marshal supports the actions of the DPM PS toward WO Hamm and would ask that she reconsider her decision.

We do wish, however, to recognize the jurisdiction of others and accordingly modify interim Recommendation #8 as follows:

Interim Recommendation #8 (revised) (Final Recommendation #8):

The Commission Members do not agree with the decision to counsel Warrant Officer Hamm and recommend that the Canadian forces Provost Marshal revisit this decision.

As stated in relation to interim Recommendation 8, we are well aware that the decision to suspend credentials on a temporary basis rests with the DPM PS and the final decision on whether to revoke or reinstate a member's credentials is that of the Provost Marshal afte.

she considers the recommendations of the Military Police Credentials Review Board. We strongly object to the Provost Marshal's comments regarding interim Recommendation #9 that the Complaints Commission is “attempting to interfere with or otherwise improperly influence the decisions of the MPCRB.” Such a comment is both inappropriate and unwarranted.

We refer the reader to the rationale as stated under the section titled “Cpl Hamm's treatment by the DPM PS & Review of Police Credentials”. While it is not our intention to infringe on the jurisdiction of others, the Complaints Commission has the power to make broad findings and recommendations in relation to complaints. Furthermore, given the order of precedence in the Military Police policy as referred to above, it would appear that there is an expectation that the findings of the Complaints Commission are taken into consideration by the Military Police Credentials Review Board.

However, in order to show the necessary deference to those empowered to make recommendations and decisions regarding police credentials, we modify interim Recommendation 9 as follows:

Interim Recommendation #9 (revised) (Final Recommendation #9):

Based on the findings in this public interest investigation, the Commission Members do not support the decision to suspend Corporal Hamm's credentials and recommend that the Canadian Forces Provost Marshal revisit this decision as soon as possible. The Commission Members ask that the Final Report be forwarded to the Military Police Credentials Review Board for their consideration.

In relation to interim Recommendation 10, we acknowledge and appreciate the Provost Marshal directing an examination of the policy governing procedures to be followed by investigators in circumstances where facts come to light which suggest that other members may have breached the Military Police Professional Code of Conduct. The Provost Marshal has stated that:

Currently, under Part IV of the NDA, there is no provision which allows the CFPM or the DPM PS to start a conduct complaint investigation unless a complaint has been made.

We do not agree with this statement. Section 250.18(1) of the NDA allows for “Any person, including any officer or non-commissioned member” to make a conduct complaint. This section would give the authority to the Provost Marshal or her delegate, the DPM PS, to make the complaint. As discussed above, a misunderstanding in relation to File #2002-005 has occurred. The findings made in relation to File #2002-005 were never meant to hold the proposition that the DPM PS could not name herself the complainant when a conduct complaint became known to her without a complainant coming forward.

Accordingly, we leave interim Recommendation 10 (Final Recommendation #10) as written.

Finally, interim Recommendations 1, 4, & 5 (Final Recommendations #1, 4 & 5) also remain the same.

X. COMMISSION MEMBERS' CONCLUSION:

We recognize the turmoil these complaints, and the subsequent investigations, has had on the subject members, the complainants and their families.

The December 12, 2000 incident that led to three (3) investigations, first by the Canadian Forces National Investigation Service, then by Professional Standards and finally the Complaints Commission, strikes at core issues in military policing, such as the proper role and conduct of the Military Police when conducting arrests. Other serious allegations were investigated relating to abuse of authority by superiors and attempts to influence or punish complainants for having exercised their right to make a complaint.

We are of the view that the Complaints Commission has an important educational role to play in the policing arena. Equally important is the Complaints Commission's role in ensuring that complainants feel free to advance their complaints in an atmosphere free from reprisals. No one should be denied the right to complain and have his or her complaint investigated in a thorough, accurate and unbiased manner.

Our findings and recommendations are a result of careful consideration and weighing of the complainants' allegations, including due process and fairness to the subject members as well as consideration of the comments from the Provost Marshal in her Notice of Action. The Final Report is intended to assist in making positive changes. In order to effect any form of positive change, it requires willingness and cooperation between the two organizations, namely, the Military Police headed by the Canadian Forces Provost Marshal and the Military Police Complaints Commission.

While we certainly welcome comments from the Provost Marshal to our interim reports as a necessary and important step in the complaints process, we are also of the view that an appropriate balance needs to be reached. The Interim Report is just that, an interim step in the Part IV complaints process. Certainly, the Provost Marshal has made important comments and after further research and analysis we have been persuaded to make changes to our findings and recommendations in certain areas. This was the intended purpose, as we see it, of the Notice of Action. We cannot overlook the fact, however, that we are disappointed by some of the language used by the Provost Marshal in her Notice of Action and her decision to attack the credibility, objectivity, the expertise and the jurisdiction of the Military Police Complaints Commission. We are of the view that such an approach is unfortunate and unnecessary, especially when it only serves to confuse the process for the people who matter the most in the Part IV complaints process; namely, the complainants, the subjects of the complaints and the Canadian public at large who expect and rely on an effective complaints process.

Ottawa, July XXXX, 2004

________________________
Peter Seheult
Member

       

________________________
Odilon Emond
Member

XI. SUMMARY OF THE COMMISSION MEMBERS' FINAL FINDINGS

COMMISSION MEMBERS' FINAL FINDING # 1:

The Commission Members find that Warrant Officer Rice and Chief Warrant Officer Gauvin did not know that Corporal Hamm's sick leave was [redacted text] when they chose Corporal Hamm to deploy to Inuvik on December 26, 2000. The Commission Members accept Warrant Officer Rice's statement that he would not have called Corporal Hamm on December 12, 2000 if he had known Corporal Hamm's sick leave was [redacted text].

COMMISSION MEMBERS' FINAL FINDING # 2:

The Commission Members find that, in light of the information that was available to them, it was reasonable for Warrant Officer Rice and Chief Warrant Officer Gauvin to believe that Corporal Hamm would return to work on December 14, 2000 and would be available to deploy to Inuvik on December 26, 2000.

COMMISSION MEMBERS' FINAL FINDING # 3:

The Commission Members do not accept in its entirety the evidence given by Warrant Officer Rice or Corporal Hamm. In certain areas, their evidence was self-serving or inconsistent to the point that their credibility was questionable.

COMMISSION MEMBERS' FINAL FINDING # 4:

The Commission Members find no substantive evidence to support the conclusion reached by the Deputy Provost Marshal Professional Standards that Corporal Hamm manipulated the information to drive events in his favour.

COMMISSION MEMBERS' FINAL FINDING # 5:

The Commission Members accept, on a balance of probabilities, Corporal Hamm's statement that he did not refuse outright to go on the deployment. However, the Commission Members also find, on a balance of probabilities, that due to Corporal Hamm's ambiguity in his response, it was not unreasonable for Warrant Officer Rice to form the opinion that Corporal Hamm refused to deploy.

COMMISSION MEMBERS' FINAL FINDING # 6:

The Commission Members find, that on a balance of probabilities, Warrant Officer Rice did not attempt to call Corporal Hamm back after their telephone conversation.

COMMISSION MEMBERS' FINAL FINDING # 7:

The Commission Members find, on a balance of probabilities, that Warrant Officer Rice used profanity during his telephone conversation with Corporal Hamm. The Commission Members further find that this led Corporal Hamm to hang-up the telephone on Warrant Officer Rice.

COMMISSION MEMBERS' FINAL FINDING # 8:

The Commission Members accept Warrant Officer Rice's explanation that his purpose in summoning Corporal Hamm to attend his office, after the latter hung up the telephone, was two-fold: (i) to resolve whether Corporal Hamm would prepare to deploy and (ii) to resolve the perceived discipline issue.

COMMISSION MEMBERS' FINAL FINDING # 9:

The Commission Members find that the order or instruction by Warrant Officer Rice to come to the guardhouse is separate from the arrest itself. Therefore, although an arrest of a member for a service offence does not constitute a “recall to duty”, the instruction by Warrant Officer Rice to bring Corporal Hamm to the guardhouse could be construed as a “recall to duty” within the meaning of Queen's Regulations and Orders section 16.01.

COMMISSION MEMBERS' FINAL FINDING # 10:

The Commission Members find that Warrant Officer Rice, in ordering Corporal Hamm to be arrested if he refused to come in to the office voluntarily was not carrying out an administrative function. A Military Police member ordering or carrying out an arrest must always follow the applicable laws and policies governing the exercise of policing duties and functions.

COMMISSION MEMBERS' FINAL FINDING # 11:

The Commission Members find that, while insubordination or disobeying a lawful command are arrestable offences under the National Defence Act, in the circumstances of this case the arrest was not necessary nor was it reasonable and proportional to the alleged violation.

COMMISSION MEMBERS' FINAL FINDING # 12:

The Commission Members find that Warrant Officer Rice's direction to the arresting officers in relation to Corporal Hamm's arrest failed to follow the requirements of section 495 (arrest without a warrant) of the Criminal Code of Canada, as well as the guidance provided in Note B to article 105.01 of the Queen's Regulations and Orders.

COMMISSION MEMBERS' FINAL FINDING # 13:

The Commission Members find that Master Corporal Paul and Corporal Murray, before proceeding to arrest Corporal Hamm, should have sought to ascertain from Warrant Officer Rice whether they would be performing the arrest as military police members under section 156 or as Canadian Forces members under section 155 of the National Defence Act.

COMMISSION MEMBERS' FINAL FINDING # 14:

The Commission Members find that Warrant Officer Rice did not properly exercise his discretion to order an arrest. Warrant Officer Rice failed to take into consideration existing law requiring a distinction to be drawn between the power to arrest and its exercise and he failed to consider whether, in the circumstances, the arrest of Corporal Hamm was necessary, justified in the public interest or proportional to the alleged violation.

COMMISSION MEMBERS' FINAL FINDING # 15:

The Commission Members find that Master Corporal Paul and Corporal Murray failed to confirm either the reason why Warrant Officer Rice wanted to see Corporal Hamm or the reason for the arrest before leaving the guardhouse for Corporal Hamm's residence. This lack of information prevented them from properly informing Corporal Hamm of the reasons for his arrest.

COMMISSION MEMBERS' FINAL FINDING # 16:

The Commission Members find that Corporal Hamm was not promptly informed of the reasons for his arrest which was in violation of paragraph 10(a) of the Canadian Charter of Rights and Freedoms. Accordingly, the Commission Members find that the arrest of Corporal Hamm was unlawful.

COMMISSION MEMBERS' FINAL FINDING # 17:

The Commission Members find that Warrant Officer Rice acted beyond the scope of his authority and responsibilities in the circumstances.

COMMISSION MEMBERS' FINAL FINDING # 18:

The Commission Members concur with the conclusion of the Deputy Provost Marshal Professional Standards that the fact that Warrant Officer Rice's course of action was chosen [redacted text] only served to inflame the situation. A different approach could have resolved the matter in a more appropriate fashion.

COMMISSION MEMBERS' FINAL FINDING # 19:

The Commission Members find that once Master Corporal Paul spoke to Doctor Burke at Corporal Hamm's residence, he should have advised Warrant Officer Rice that questions had been raised about Corporal Hamm's sick leave status, in order to obtain confirmation that the arrest was still warranted.

COMMISSION MEMBERS' FINAL FINDING # 20:

The Commission Members find that the notes and records of the incident made by Master Corporal Paul were deficient and not in accordance with best police practices. The failure of Master Corporal Paul to record the fact or details of his conversation with Doctor Burke in his notes or in any subsequent reports was a serious error.

COMMISSION MEMBERS' FINAL FINDING # 21:

The Commission Members find that Chief Warrant Officer Gauvin did not have the authority to release Corporal Hamm. His releasing Corporal Hamm was not in accordance with the principles of subsection 158(1) of the National Defence Act and Queen's Regulations and Orders section 105.12. Chief Warrant Officer Gauvin should have called on the arresting officer to release Corporal Hamm from arrest.

COMMISSION MEMBERS' FINAL FINDING # 22:

The Commission Members find that the measure taken to advise Chief Warrant Officer Gauvin of the requirements for the release of arrested persons, pursuant to the direction in the Deputy Provost Marshal Professional Standards' Letter of Final Disposition, was appropriate and sufficient in the circumstances.

COMMISSION MEMBERS' FINAL FINDING # 23:

The Commission Members find that, considering all of the circumstances, including the fact that Corporal Hamm [redacted text] and had just been arrested by his peers, Chief Warrant Officer Gauvin's comments and actions during the encounter in his office could well have caused Corporal Hamm to feel intimidated. However, the Commission Members could not find, on a balance of probabilities, that Chief Warrant Officer Gauvin attempted or intended to intimidate Corporal Hamm from complaining further.

COMMISSION MEMBERS' FINAL FINDING # 24:

The Commission Members find that Chief Warrant Officer Gauvin should have used more appropriate language.

COMMISSION MEMBERS' FINAL FINDING # 25:

The Commission Members find that the correspondence received from the Deputy Provost Marshal Professional Standards regarding the “internal” designation of Warrant Officer Hamm's complaint did not satisfactorily explain how the designation came about.

COMMISSION MEMBERS' FINAL FINDING # 26:

The Commission Members find, on a balance of probabilities, that the internal designation was an error as there is no clear evidence to the contrary.

COMMISSION MEMBERS' FINAL FINDING # 27:

The Commission Members find that errors in classifying complaints as “internal” rather than Part IV conduct complaints have the potential effect of nullifying important statutory rights of complainants and subjects of complaints.

COMMISSION MEMBERS' FINAL FINDING # 28:

The Commission Members find that the Professional Standards investigation focused on Corporal Hamm's behaviour when the seconded investigator determined early in the investigation that Corporal Hamm might have committed service offences or might have violated the Military Police Professional Code of Conduct and when the investigator determined that Warrant Officer Hamm failed to confirm the accuracy of the complaint.

COMMISSION MEMBERS' FINAL FINDING # 29:

The Commission Members find that when the Professional Standards investigation began to focus on possible misconduct by Corporal Hamm and Warrant Officer Hamm, a new and separate investigation of the allegations against Corporal Hamm and Warrant Officer Hamm should have been commenced which would have provided them with the appropriate notices and protections required by law and policy.

COMMISSION MEMBERS' FINAL FINDING # 30:

The Commission Members find that the failure to designate Corporal Hamm and Warrant Officer Hamm as subject members of the investigation deprived them of their basic rights to natural justice, their rights to appreciate and defend themselves against the allegations or potential jeopardy they were facing, their rights of choice to refuse to be interviewed, and their rights to have counsel or an assisting officer present.

COMMISSION MEMBERS' FINAL FINDING # 31:

The Commission Members disagree with all of the conclusions of the Deputy Provost Marshal Professional Standards as stated in her Letter of Final Disposition dated April 5, 2002 that Corporal Hamm committed five (5) breaches to the National Defence Act.

COMMISSION MEMBERS' FINAL FINDING # 32:

The Commission Members find that there was insufficient evidence to establish, on a balance of probabilities, that Corporal Hamm misinformed or provided misleading information to Warrant Officer Hamm about any matter relevant or material to Warrant Officer Hamm's complaint. Accordingly, the Commission Members find that Corporal Hamm did not mislead Warrant Officer Hamm in the five (5) manners detailed by the Deputy Provost Marshal Professional Standards.

COMMISSION MEMBERS' FINAL FINDING # 33:

The Commission Members find that Warrant Officer Hamm did not err nor was he negligent in basing his complaint on information received from Corporal Hamm nor did Warrant Officer Hamm prematurely file his complaint based on the information received.

COMMISSION MEMBERS' FINAL FINDING # 34:

The Commission Members find that Warrant Officer Hamm had an obligation, pursuant to section 7 of the Military Police Professional Code of Conduct, to report to his superior in the Military Police Chain of Command a belief in or awareness of an allegation that a member of the Military Police had breached the Military Police Professional Code of Conduct. The information Warrant Officer Hamm received on December 12, 2000 provided him with the requisite belief or awareness. There is no requirement to verify or investigate the belief or allegation before it is reported.

COMMISSION MEMBERS' FINAL FINDING # 35:

The Commission Members find that Warrant Officer Hamm properly reported his reasonable belief to, and sought advice from, his superior in the Military Police Chain of Command at 8 Wing Canadian Forces Base, Trenton, Master Warrant Officer Dennique.

COMMISSION MEMBERS' FINAL FINDING # 36:

The Commission Members find that it was reasonable and proper, in the circumstances, for Warrant Officer Hamm to follow Master Warrant Officer Dennique's advice.

COMMISSION MEMBERS' FINAL FINDING # 37:

The Commission Members find that it was reasonable and proper for Warrant Officer Hamm to advise Chief Warrant Officer Galway of his concerns and to forward the information to Chief Warrant Officer Galway.

COMMISSION MEMBERS' FINAL FINDING # 38:

The Commission Members find that, in the circumstances, Warrant Officer Hamm should not have been counseled and the direction to counsel Warrant Officer Hamm issued by the Deputy Provost Marshal Professional Standards was inappropriate.

COMMISSION MEMBERS' FINAL FINDING # 39:

The Commission Members are of the view that the evidence does not support the conclusion that Corporal Hamm violated paragraph 4(l) of the Military Police Professional Code of Conduct.

COMMISSION MEMBERS' FINAL FINDING # 40:

The Commission Members are of the view that the Deputy Provost Marshal Professional Standards' rationale for finding that Corporal Hamm violated paragraph 4(l) of the Military Professional Code of Conduct is so vague that it would be an unduly difficult allegation to defend against before the Military Police Credentials Review Board.

COMMISSION MEMBERS' FINAL FINDING # 41:

Because Corporal Hamm was not treated as a subject member or advised that the Professional Standards investigation was addressing this issue, the Commission Members are of the opinion that it was unfair to Corporal Hamm for the Deputy Provost Marshal Professional Standards to rely on paragraph 4(k) of the Military Police Professional Code of Conduct.

COMMISSION MEMBERS' FINAL FINDING # 42:

The Commission Members are of the view that the evidence does not support the conclusion that Corporal Hamm violated paragraph 4(h) of the Military Police Professional Code of Conduct in failing to disclose the reason for his sick leave to his supervisor. Corporal Hamm had no obligation in law to disclose the nature of his illness.

COMMISSION MEMBERS' FINAL FINDING # 43:

In the Commission Members' view, the evidence does not support the conclusion of the Deputy Provost Marshal Professional Standards that Corporal Hamm knowingly revealed information intended to mislead the Professional Standards investigator or the Canadian Forces National Investigation Service investigators.

COMMISSION MEMBERS' FINAL FINDING # 44:

Based on the evidence reviewed and heard, the Commission Members do not support the decision to suspend Corporal Hamm's credentials for supplying false information to or withholding information from Warrant Officer Hamm.

COMMISSION MEMBERS' FINAL FINDING # 45:

The Commission Members disagree with the various and contradictory reasons advanced by the Deputy Provost Marshal Professional Standards to suspend Corporal Hamm's credentials.

XII. SUMMARY OF THE COMMISSION MEMBERS' FINAL RECOMMENDATIONS

COMMISSION MEMBERS' FINAL RECOMMENDATION # 1:

The Commission Members recommend that in order to ensure high police standards, Military Police members be trained to understand, respect and fully protect the rights of individuals as well as the law governing the exercise of powers of arrest.

COMMISSION MEMBERS' FINAL RECOMMENDATION # 2:

The Commission Members recommend that Warrant Officer Rice receive, if he has not already, advanced training on the elements and requirements for a proper arrest and the rights of suspects who are subjected to an arrest.

COMMISSION MEMBERS' FINAL RECOMMENDATION # 3:

The Commission Members recommend that the Canadian Forces Provost Marshal ensure that Warrant Officer Rice is provided with sage advice and guidance on the proper exercise of his authority.

COMMISSION MEMBERS' FINAL RECOMMENDATION # 4:

The Commission Members recommend that Warrant Officer Rice be given additional management training.

COMMISSION MEMBERS' FINAL RECOMMENDATION # 5:

The Commission Members recommend that additional training be provided to Master Corporal Paul and Corporal Murray on Military Police powers of arrest, the law and Military Police Policies governing the exercise of powers of arrest and note-taking.

COMMISSION MEMBERS' FINAL RECOMMENDATION # 6:

The Commission Members recommend that appropriate representatives of the Complaints Commission, the Canadian Forces Provost Marshal, the Judge Advocate General, and the Department of Justice meet to review and discuss the legal and professional issues surrounding the exercise by military police members of arrest powers under the National Defence Act and the relevant implications of an order to arrest from a military superior.

COMMISSION MEMBERS' FINAL RECOMMENDATION # 7:

The Commission Members recommend that the Canadian Forces Provost Marshal implement safeguards to ensure that the improper classification and handling of complaints will not reoccur. Furthermore, the Complaints Commission should be involved in the development and application of criteria in the classification of complaints and where the Provost Marshal or her delegate makes a decision that a complaint does not fall under Part IV of the National Defence Act, the complainant should be notified of the right to have such a decision reviewed by the Complaints Commission. All such correspondence should be copied to the Complaints Commission.

COMMISSION MEMBERS' FINAL RECOMMENDATION # 8:

The Commission Members do not agree with the decision to counsel Warrant Officer Hamm and recommend that the Canadian Forces Provost Marshal revisit this decision.

COMMISSION MEMBERS' FINAL RECOMMENDATION # 9:

Based on the findings in this public interest investigation, the Commission Members do not support the decision to suspend Corporal Hamm's credentials and recommend that the Canadian Forces Provost Marshal revisit this decision as soon as possible. The Commission Members ask that the Final Report be forwarded to the Military Police Credentials Review Board for their consideration.

COMMISSION MEMBERS' FINAL RECOMMENDATION # 10:

The Commission Members recommend that in all future complaint investigations, if an investigator perceives that a complainant may be suspected of having committed a criminal or service offence or a professional standards violation, a new and separate investigation be commenced with the complainant as the subject member. This will ensure the individual is afforded his or her rights according to law.

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