Decision Letter - MPCC 2015-005 - September 21, 2015

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September 21, 2015

Distribution List
Our File: MPCC 2015-005 (Anonymous)

PS File: 2120-20-2-3/2015-007

The following is my decision in relation to a complaint received at the Military Police Complaints Commission (MPCC) on February 12, 2015. I have granted an extension of time in this case based on the implied request contained in the complaint letter and in view of my finding that an extension is reasonable in the circumstances. The reasons for my decision are below.

The complaint

The complaint was made in a one-page typewritten letter in French dated January 9, 2015.  It was received by mail in an envelope postmarked February 10, 2015, sent from the Sheraton Gateway Hotel which is located within Pearson International Airport in Toronto, Ontario.  The letter is addressed to the MPCC, and the subject lines indicate it is a complaint relating to the assault of detainees by the Military Police (MP) in Afghanistan in 2010-2011.  The letter is unsigned and contains no contact or identifying information about the complainant. 

The complaint alleges that between December 2010 and January 2011 the Commanding Officer of the Joint Task Force Afghanistan Military Police Company (JTF-Afg MP Coy), Task Force 3-10, stationed at Kandahar Airfield, Afghanistan, ran exercises in unoccupied detention cells neighbouring cells containing detainees, in order to “terrorize” the detainees.  The complainant further alleges that at one point, at least one exercise was conducted in cells occupied by detainees.  According to the complaint, MP members would have entered the cells in the middle of the night, carrying weapons and other police equipment, and would have pressed detainees against the wall and on the floor and applied arm locks.  The complainant alleges the tension was so high after the previous two months that several detainees defecated and urinated on the spot.

In addition, the complaint letter alleges the Canadian Forces National Investigation Service (CFNIS) conducted an investigation for the purpose of bringing serious charges against the MP Commanding Officer but did not lay charges.  Instead, charges were allegedly provided to the CAF Task Force Commander who, according to the complainant, ignored them.  Finally, the complainant alleges that in October 2012, a Lieutenant-Colonel in the MP Chain of Command was tasked to conduct an investigation into the events but no court martial or charges resulted.  The letter provides the ranks and surnames of five “references”.

I understand from this letter that the complainant is making a complaint about the conduct of any MP members involved in ordering and/or conducting the exercises, and also complains about the failure to lay charges or take any other action following the CFNIS investigation in 2011 and the subsequent investigation in 2012.

The complaint is anonymous and the events referred to occurred more than one year before the complaint was made.  Section 250.2 of the National Defence Act (NDA) requires that complaints must be made within one year of the event giving rise to the complaint, but also allows for an extension of the time at the request of the complainant.  This provision provides as follows:

No complaint may be made more than one year after the event giving rise to the complaint unless the Chairperson, at the request of the complainant, decides that it is reasonable in the circumstances to extend the time

As a result, three issues arise:

  1. Can the MPCC accept an anonymous complaint?
  2. If an anonymous complaint can be accepted, can the time for making an anonymous complaint be extended?
  3. If the time can be extended, is it reasonable in the circumstances to grant an extension in this case?

Can the MPCC consider anonymous complaints?

Section 250.18 of the NDA specifically provides that complaints about the conduct of MP members may be made by “any person” and that the complainant need not be personally affected by the subject-matter of the complaint.  The NDA imposes no specific requirements on complainants to provide any specific information or evidence substantiating their allegations.  Instead, it allows “any person” to bring conduct of concern to the attention of the MPCC and the Canadian Forces Provost Marshal’s (CFPM) Professional Standards section for investigation.  As such, I find that anonymous complaints are permitted under the NDA, and that the MPCC must ensure those complaints are processed and investigated, as necessary, in the same manner as other complaints.

Can the time for making an anonymous complaint be extended?

Pursuant to s. 250.2 of the NDA the Chairperson of the MPCC may extend the time for making a complaint “at the request of the complainant.”  Must this request be explicit, or can the request be implicit? If an explicit request is required in order for the Chairperson to be able to consider whether it is reasonable to extend the time, then the time for making an anonymous complaint will never be capable of being extended.  For the reasons that follow, I find that in the case of anonymous complaints, the request for an extension need not be explicit, but may be inferred from the complaint letter itself as well as from the circumstances of the complaint.  An implicit request for a time extension can be accepted and decided upon where a complaint is made after the time limit and discloses an intention on the part of the complainant to request that the Commission take the steps available to investigate the complaint.

In making this finding, I take a purposive, common-sense interpretation of the NDA, keeping in mind the mandate of the MPCC to investigate complaints about the Military Police and to provide access to an independent body for the oversight of the Military Police and the resolution of complaints, including anonymous complaints. 

The complaints process created in Part IV of the NDA to address complaints about the conduct of MP members is designed to ensure that any individual can bring matters of concern to the attention of the oversight body without having to fulfill onerous requirements.  Complaints can be made by any person and do not have to be submitted in any particular form, or even in writing.  The MPCC provides assistance to complainants in fulfilling any technical requirements for presenting their complaint, and NDA section 250.14 expressly directs the Commission to “deal with all matters before it as informally and expeditiously as the circumstances and the considerations of fairness permit.” 

In this context, even complainants who do not choose to remain anonymous cannot reasonably be expected to present an explicit request for an extension of time without prompting from the Commission.  As borne out by the MPCC’s experience, receiving an explicit request for a time extension has often required this assistance.  It would lead to an absurd result if the legislation were interpreted to mean that anonymous complaints made outside the time limit can never be considered simply because this technical step of confirming explicitly the intention already implicit in the complaint cannot be taken. 

As a result, I find that requiring an explicit request for an extension of time in the circumstance of an anonymous complainant would have the effect of frustrating the MPCC’s mandate to investigate the conduct of the Military Police and to provide broad access to a complaint mechanism overseen by an independent body.  This cannot have been Parliament’s intention in drafting NDA section 250.2.

In cases where complainants choose to remain anonymous, there is a strong likelihood the reason for doing so relates to the fear of reprisals. Through recent amendments to the NDA enacted in 2013, Parliament has manifested a clear intention to ensure that complainants are protected from possible reprisals.  Section 250.18(3) was added to the NDA, specifically stipulating that “a person may not be penalized” for exercising the right to make a conduct complaint in good faith. 

Requiring an explicit request for a time extension in cases involving anonymous complainants would mean that these most vulnerable complainants would be precluded from exercising their right to have their complaints considered precisely because of their fear of reprisals.  This would lead to an absurd result.  It would prevent the MPCC from considering time extensions in cases where the public interest in ensuring complaints can be investigated may in fact be greater.  This would also be contrary to the intent evident in the legislative scheme as a whole to provide protection and assistance to complainants.

Accordingly and in the circumstances it is up to me, as Interim Chairperson of the MPCC, to determine whether there has been a “request” for an extension of time in this matter as required in NDA section 250.2.

In this case, I find that the complaint letter contains an implicit request from the complainant for an extension of time based on the intention it discloses to have the Commission investigate the matter – including by providing the names of the references – as well as the specificity of the complaint and the complainant’s demonstrated continuing intention to pursue the matter through his/her monitoring of the subsequent investigations and results.  I also find that the complaint letter and surrounding context provide sufficient information for me to make a decision on whether the time to make the complaint should be extended.

Is it reasonable in the circumstances to extend the time for making the complaint?

In considering whether it would be reasonable in the circumstances to grant the extension of time request, I have considered all the circumstances including: the length of the delay; explanations for the delay and the complainant’s continuing intention to pursue the matter; the seriousness of the conduct alleged; the prejudice to the potential subjects of the complaint; and the public interest.  After reviewing and considering the information provided to the MPCC regarding this matter, and for the reasons below, I am persuaded it would be reasonable in the circumstances to grant the request for an extension of time to file the complaint.

Factual background

Because the complaint in this case was made anonymously, the MPCC was unable to contact the complainant to obtain further information or clarification about the allegations, the timeline and complainant’s knowledge of the events, and any explanation for the delay in making this complaint.

In conformity with NDA section 250.21(2)(c)(i), the MPCC notified the CFPM of the complaint on February 27, 2015, and requested additional information about the matters raised in the complaint.  The Deputy Commander, Canadian Forces Military Police Group confirmed, on March 11, 2015, that the CFNIS investigated an incident relating to an exercise conducted at the Detainee Transfer Facility in Kandahar in January 2011.  The Deputy Commander indicated a General Occurrence file relating to that investigation was located.  He advised the investigation was concluded on April 16, 2011, no charges were laid and the matter was referred to the CAF Task Force Commander for appropriate action.  The Deputy Commander further confirmed that a Lieutenant-Colonel in the MP Chain of Command conducted an investigation into the matter.  He did not specify when this investigation was concluded, but he did state it was conducted in 2012.

The MPCC attempted to reach the five references listed in the complaint letter, as well as two other individuals later referred to the MPCC by those persons, in order to obtain any information that would assist in assessing the complaint and determining the appropriate next steps.  The information received from these individuals confirmed that an event did occur at the Detainee Transfer Facility in Kandahar, but did not assist in providing further clarity about any explanation for the delay in filing the complaint.

Apparent jurisdiction

It is not necessary for me to make a decision on the jurisdiction of the MPCC for the purposes of this time extension decision.  However, I have considered whether the complaint is clearly outside of the MPCC’s mandate.  If so, this factor would militate against granting a time extension.

In this case I consider at least one aspect of the complaint, the allegations related to the CFNIS investigation and its outcome, to clearly relate to policing duties or functions, specifically the conduct and adequacy of an investigation as directed by the MP Chain of Command and the decision not to lay charges.  The CFNIS investigation is therefore prima facie within the MPCC’s jurisdiction.

Other aspects of the complaint – the underlying exercises and the 2012 investigation – raise questions in terms of the MPCC’s jurisdiction.  However, on the whole, it cannot be said that the complaint is clearly outside the MPCC’s jurisdiction, as one aspect is clearly within jurisdiction.  I therefore consider jurisdiction a neutral factor in making my decision under NDA section 250.2.

Length of Delay

For the purpose of s. 250.2 of the NDA I consider “the event giving rise to the complaint” to be the conclusion of the CFNIS investigation, which occurred on April 16, 2011.  As such, the complaint was made three years and ten months after the event, or two years and ten months after the legislated time limit, which is a lengthy delay. 

Another possible date for “the event giving rise to the complaint” could have been the date of the exercises involving the detainees, January 2011.  In that case the complaint would have been made over three years after the legislated time limit.  A final possible date that could have been considered as “the event giving rise to the complaint” is the conclusion of the subsequent investigation in late 2012.  In this case, the complaint was made a little over two years after the event.  Because the MPCC’s jurisdiction over the exercises in cells and this subsequent investigation is less clear, I have decided not to consider either of those dates for the purpose of calculating the length of the delay in making this time extension decision. 

I note, however, that regardless of any jurisdictional issues, the existence of the subsequent investigation remains relevant to the explanation of the delay and continuing intention from the complainant’s perspective.  It was only once all investigations were concluded and some time had elapsed that the complainant could reasonably come to the conclusion that no action would be taken about the conduct of the exercises.  It is this lack of action s/he complains about.

 Seriousness of the alleged conduct

All aspects of this complaint involve serious allegations.  The allegations have not been proven and I make no comment on the likelihood of any allegation being substantiated following an investigation.  However, for the purposes of this time extension decision, I must consider the type of misconduct being alleged on the face of the complaint.

The allegations about the exercise(s) involving detainees describe a potentially serious incident, involving potential violations of Canada’s international law obligations, as well as potential ramifications for the CAF’s reputation and Canada’s international relations.  The conduct alleged involves MP members assaulting and otherwise mistreating detainees for the purpose of conducting an “exercise” or exercises apparently unrelated to any specific threat or situation requiring this use of force. Considering the complaint as alleged, I conclude that the seriousness of the alleged conduct is very high.

In considering the CFNIS investigation, the crux of the complaint appears to be that nothing was done about the exercise(s) and the person or persons responsible. This amounts to an allegation that the matter was not properly investigated or that improper decisions were made about the laying of charges.  In the complaint letter, the complainant raises the possibility that there was an intentional “cover up” of the events, as s/he alleges charges were “ignored” and s/he emphasizes there has still not been any court martial or charges to this day, despite the conduct of the CFNIS and subsequent investigations. 

I note that CFNIS members have the authority to lay charges under the Code of Service Discipline of their own accord, unlike regular MP members who must refer such charges to the subject’s Chain of Command.  In this case, the complainant alleges the CFNIS members derogated from their responsibility as independent investigators by simply handing the matter over to the CAF operational Chain of Command. 

I consider these allegations about the independence of CFNIS investigations to be serious and intrinsically linked with the mandate of the MPCC.

I also note that the CFNIS investigation needed to reflect the seriousness of the underlying events being investigated.  The allegation that it did not – based on the complainant’s perception of the results and outcome – is also a serious one, in light of the underlying context of the alleged conduct during the exercises involving the detainees.

I do not make any finding here as to whether the complainant’s impressions of the events and subsequent investigations are accurate or not.  However, on the face of the complaint and for the purposes of a time extension decision under NDA section 250.2, the allegations about the underlying conduct towards the detainees and the failure to lay charges raise serious questions.  In particular the suggestion that the investigation and charge laying decisions were carried out without due regard to the independence of the CFNIS is a serious allegation that I consider weighs in favour of granting a time extension request.

Reasonable Explanation for Delay/Continuing Intention

While not stated explicitly, the letter of complaint and surrounding circumstances disclose several potential reasons for the delay in making the complaint. 

First, I note the complainant’s apparent knowledge of the CFNIS and October 2012 investigations.  Based on the information included in the complaint, it appears the complainant followed this matter and these investigations closely.  In this context, it would not be unreasonable for the complainant to wait to see the outcome of these investigations before deciding to make a Part IV complaint, and to wait some time to be certain that no consequences or results would follow.  I consider this reasonable waiting period to reduce the period of delay in excess of the one-year time limit prescribed in the NDA, and to constitute a reasonable explanation for a large portion of the delay in making the complaint.

The complainant’s knowledge of the investigations and apparent monitoring of their outcomes also indicates a continuing intention on his/her part to pursue the matter.

In addition, based on the manner in which the complaint was made, there are strong indications the delay in bringing a complaint may have been related to the complainant’s own concerns about bringing attention to this matter.  The complainant obviously went to great lengths to shield his or her identity, even mailing the anonymous letter of complaint from a hotel located in an airport.  This is consistent with the complainant having some fear of the consequences to him- or herself in making a complaint. 

Considering the sensitivity of the matter, the complainant’s apparent belief that there was a “cover-up” of the issue within the CAF or MP, and the rank of some of the potential subjects, it is reasonable to infer that the complainant proceeded anonymously because of fears of reprisals either personally or professionally.  I make no finding here as to whether there is, in fact, any basis for such fears, but I note the complainant’s behaviour tends to indicate a sincerely held concern that may explain the delay in coming forward with these allegations.

Without speaking to the complainant, it is impossible for the MPCC to confirm the source of the complainant’s knowledge, whether the complainant was personally deployed to Afghanistan at the time – which may have impacted on the complainant’s ability to make the complaint –, or the nature or basis of any fear of reprisals. However, I consider the fact that the complainant appears to have monitored the outcome of the investigations and has demonstrated some level of personal concern by choosing to remain anonymous as relevant in possibly explaining the delay and in assessing its reasonableness.

I find that there are indications of a continuing intention to pursue the matter, as well as, potentially, some reasonable explanations for the delay in bringing this complaint.  Therefore, on balance, I find this factor to weigh in favour of granting a time extension.

Prejudice to the potential subject MP members

It is reasonable to presume some prejudice to the potential subjects of the complaint in this case considering the significant delay. As the MPCC has not seen a copy of the CFNIS GO file, the identities of the potential subjects involved in that investigation are unknown. These individuals have not received any notice that their conduct is being questioned, nor has the Lieutenant-Colonel who conducted the 2012 investigation. Other potential subjects involved in the underlying conduct may have been aware the issue was being investigated, but they would not have specific notice of this complaint.

That said, there seems little reason to fear that the passage of time has prejudiced the ability of witnesses to recall the events in question accurately. These events are unusual and they are likely to stand out in the minds of anyone involved in them. The information received from the Deputy Commander has confirmed that records still exist in this case. As such, the CFNIS investigators would have access to their notes and reports in order to refresh their memories. Further, the complainant has alleged there are video recordings for both the original exercises and subsequent statements obtained during the investigation.

I find that while there is some potential prejudice to the subjects, that prejudice does not outweigh the other factors I have to consider in this decision.

Public Interest and other relevant considerations

I find there to be significant public interest in all aspects of this complaint.

First, the underlying facts alleged, the “exercise(s)” involving Afghan detainees, reveal a potentially serious incident with broad ramifications for the CAF’s reputation and Canada’s international relations and ongoing engagement in Afghanistan. As found in the MPCC’s past decisions to hold the Afghan Public Interest Hearings, the handling of detainees in theatre raises public interest issues, as it can impact public confidence in the MP.

Similarly, the allegation that the CFNIS investigators provided their charge recommendations to the Task Force Commander instead of exercising their authority to lay charges raises questions of MP independence. There is public interest in ensuring those issues are investigated.

Most importantly, the allegation that the MP may have been involved in covering-up misconduct on the part of CAF or MP members raises significant public interest concerns going to the heart of the MPCC’s mandate to provide for greater public accountability by the MP and to foster public confidence in the availability of a suitable independent mechanism to investigate alleged misconduct by CAF members.

The conduct alleged in this complaint would be a serious affront to the independence of the MP in any location, which directly engages public confidence in the MP. I find this concern particularly important in theatre, where operational pressures are most acutely felt, and the public needs to have confidence there are available mechanisms for investigations to be conducted, whether or not an issue may cause embarrassment to the CAF Chain of Command. This was one of the issues identified in the Somalia Inquiry Report, which was part of the impetus for creating the MPCC. 

It should be borne in mind that coming to this assessment of the public interest in the allegations set out in the complaint does not involve any assessment of these allegations on the merits.  Whether any of the allegations may be substantiated cannot be known at this point.

Of potentially similar relevance to the public interest, in addition to what is being alleged and implied by the complainant, the information obtained by the MPCC from some of the individuals contacted tends to indicate that there was indeed a perception on the part of some of the members deployed to Kandahar Airfield at the time that some of the decisions made about the conduct and ultimate outcome of the investigations were made because of orders coming from “Ottawa” and/or concerns about the reputation of the MP or CAF in light of the public attention issues surrounding the treatment of detainees can receive.

As the complaint has not been investigated, there is no information available to indicate what the basis of this perception is, or whether it is accurate. However, the fact that such a perception existed among members of the MP or CAF highlights the public interest in ensuring the matter can be investigated despite the delay in bringing the complaint.  Not proceeding with this complaint could diminish public confidence in military policing and in independent police oversight.

I find the public interest in having this complaint investigated to be high and I give this factor significant weight in making my decision.

Conclusion

Given these circumstances, in particular the strong public interest in having complaints about the independence of the Military Police investigated, I conclude that it is reasonable in the circumstances of this case to extend the time for making this complaint. 

The implied request in the complaint for an extension of time is therefore granted.

Sincerely,

Mr. Michel Séguin, O.O.M.
Interim Chairperson


Distribution List:

Canadian Forces Provost Marshal
National Defence Headquarters
2200 Walkley Road
Ottawa ON  K1A 0K2

Deputy Commander CF MP Gp/PS
National Defence Headquarters
2200 Walkley Road
Ottawa ON K1A 0K2

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