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Military Police

Complaints
Commission
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Commission d'examen
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Pr6sident
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January 24,20L3
Distribution List
Our File: MPCC 20Ll'04512011-054
(Bees)
Subject: Final Report'Review of a Conduct Complaint
Following completion of the Complaints Commission's examination of the above-
referenced conduct complaint, an Interim Report was forwarded to the Minister of
National Defence, the Chief of the Defence Staff and the Canadian Forces Provost
Marshal on January L5,20L3.
pursuant
to subsections250.49(1)
and 250.51(1) of the National Defence Act, the
Canadian Forces Provost Marshal reviewed the conduct complaint in light of the
findings and provided a response letter dated January 2L,20L3.
After having considered the response letter, please find enclosed the Final Report
concerning the above-referenced
conduct complaint.
While there is no appeal from the Commission's findings, please note that those
directly affected by this report and who wish to dispute its contents may make an
application for
judicial review to the Federal Court of Canada. You should note
thit pursuant to ss. 18.1(2) of the Federal Courts Act an application for
judicial
review shall be made within 30 days after the time the decision was first
communicated or within any further time that a
judge of the Federal Court may
fix or allow before or after the end of those 30 days.
Sincerely,
Glenn M.
Chairperson
Encl.
.../2
Canad'd
270 Albert Street, 1Otr Floor, Ottawa, Ontario K1 P 5GB
613-947-5684 Fax 613-947-5705 Toll free: 1 800 632-0566
www.mpcc-cppm.gc.ca
270, rue Albert, 10" 6tage, Ottawa (Ontario) KlP 5G8
6 T6l. 613-947-5684 T6l6c. 613-947-5705 Sansfrais 1 800632-0566
www.mpcc-cppm.gc.ca
-2-
Distribution List
The Honourable Peter MacKay, P.C., M.P.
Minister of National Defence
National Defence Headquarters
Major-General George R. Pearkes Building
L0L Colonel By Drive
Ottawa, ON KlA 0K2
Mr. Robert Fonberg
Deputy Minister of National Defence
National Defence Headquarters
L3th Floor, North Tower
lOL Colonel By Drive
Ottawa, ON KlA 0K2
Gen Thomas J. [,awson, CMM, CD
Chief of the Defence Staff
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, ON K1A 0K2
Major-General Blaise Cathcart, CD
Judge Advocate General
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, ON KlA 0K2
Col T. D. Grubb
Canadian Forces Provost Marshal
National Defence Headquarters
Major-General George R. Pearkes Building
L0L Colonel By Drive
Ottawa, ON KlA 0K2
Mr. Bobbie Garnet Bees
MCpl Christian Cyr
Canadian Forces Military Police Academy
Canadian Forces Base Borden
PO Box 1000, Station Main
Borden ON InM 1C0
MCpl Robert Hancock
Canadian Forces National
Investigation Service
Western Region Detachment
PO Box 10500, Station Forces
Edmonton AB T5J 4J5
POL Steven Morris
Canadian Forces National
Investigation Service
Western Region Detachment
PO Box 10500, Station Forces
Edmonton AB T5J 4J5
Military Police
Complaints
Commission
Commission d'examen
des plaintes
concernant
la police militaire
PROTECTED B
,-
National Defence Acl
-
Part IV
Section 25O.53
FINAL REPORT
Following a Review Pursuant to
Section 250.31. of the National Defence Act, of a
Conduct Complaint by Mr. B
Regarding the Conduct of
PO1 Steven Morris, Sgt Christian Cyr and MCpl Robert Hancock, of the
Canadian Forces National Investigation Service Western Region
Files: MPCC 2011,-045 &20L1-O54
Ottawa, January 24, 201,3
Mr. Hugh Muir, M.O.M.
Commission Member
270, rue Albert, 10" 6tage, Ottawa (Ontario) K1P sGB
T6l. : 613-947-5625 I6l6c. :613-947-5713 Sans frais : 1 800 632-0566
www.mpcc-cppm.gc.ca
Canad'fl
270 Albert Street, 10'h Floor, Ottawa, Ontario K1P sGB
613-947-5625 Faxi613-947-5713 Toll free: 1 800 632-0566 o
wwwmpcc-cppm.gc.ca
Protected B
TABLE OF CONTENTS
L Synopsis..
............ I
III. Factual Background to the Comp1aint................
..".""""2
IIL Mr. B's Conduct Comp1aints...............
"""""
3
[\/. Deputy Commander CF MP Group's Disposition of the Comp1aint...............4
V. Methodolory of the Complaints Commission's Review......"""""""""""""""
4
vI.Analysis&Findings................:.................
VilL Summary of Findings ............... """"""""""'
I I
Protected B
L Synopsis
l. The complainant made two separate but related MP conduct complaints regarding
the actions of MPs in respect of his alleged sexual abuse on a military base in Canada
when he was a child in 1978-80. The first complaint regards the conduct of a Canadian
Forces National Investigation Service (CFNIS) investigation into the complainant's
historical sexual abuse allegations. The second complaint pertains to the conduct of MP
members on the base at the time of the offences in question'
2. In respect of the first complaint, the complainant alleged:
1) that the CFNIS members conducted an incomplete investigation;
2) that this incompleteness was deliberate on the part of the MPs and
intended to shield DND from possible civil liability arising from
the comPlainant's abuse; and
3) that the CFNIS did not have
jurisdiction to investigate in the first
place because, at the time of the alleged offences:
a) the CFNIS did not exist, and
b) the CF did not have
jurisdiction to prosecute offences of
sexual assault committed within Canada.
3. The Commission's review revealed the CFNIS members in fact went to
considerable lengths, given the circumstances of the then over 3O-year old case, to pursue
the complainant's criminal allegations. While charges were not ultimately laid against
the alleged perpetrator, the MPs did attempt to interview key relevant witnesses and made
various efforts to locate other possible witnesses. In the end, the MPs produced a Crown
brief which they referred to the local prosecutor's office for a legal review. Moreover, in
their brief to the prosecutor, the MPs expressed the conclusion that their investigation
revealed evidence to support charges. However, the prosecutor in the case recommended
against charges due to inherent weaknesses in the available evidence.
The Comrnission found all the complainant's allegations in his first complaint to
unsubstantiated.
5. With respect to the second complaint, regarding the failure of the relevant MPs in
1980 to involve local civilian police to investigate sexual assaults involving civilians on
4.
be
The Military Police Complaints Commission
Final Report MPCC 2011-0451054
Protected B
the base, the Commission determined it could not address this complaint as it related to
MP conduct which occurred prior to the coming into force of the Commission's enabling
legislation in 1999.
II. Factual Background to the Complaint
6. The complainant, Mr. B, alleges he and his younger brother were sexually abused
on a number of occasions from 1978-1980 by his babysitter, Mr. S, in the private married
quarters (PMQs) at CFB Namao (now part of CFB Edmonton). During the relevant time
periods, Mr. B would have been between five and eight years old; while Mr. S would
have been between twelve and fifteen years of age.
7. Mr. B recalls a particularly notable episode when Mr. S attempted to sodomize
him in Mr. S's bedroom. According to Mr. B, Mr. S's sister entered the room
interrupting and witnessing the assault. She then left and contacted other youths who
gathered outside the home and yelled taunts at Mr. B, while he was still in Mr. S's
bedroom. According to Mr. B, this was also the last time he was abused by Mr. S.
8. On March 3,2}ll, Mr. B notified the Edmonton Police Service (EPS) regarding
these incidents. EPS contacted the Canadian Forces National Investigation Service
(CFNIS); it was mutually decided that the CFNIS had
jurisdiction
to investigate, as the
alleged offences would have occurred on military property. CFNIS Western Region
(CFNIS WR) assumed responsibility for the investigation.
9. During the investigation, a number of MP personnel transfers took place,
however, the key participants in the conduct of the investigation during the critical phases
were Master Corporal (MCpl) Robert Hancock (lead investigator), Sergeant (Sgt)
Christian Cyr (investigator) and Petty Officer 1.'t Class (PO1) Steven Morris (Case
Manager).
10. The CFNIS investigation lasted from March to October 2017.
The Military Police Complaints Commission 2 Final Report MPCC 2011-0451054
Protected B
11. A "Pre-charge Screening Report" was compiled by the CFNIS WR investigative
team and referred to the Alberta Crown Attorney's office at Morinville on October 19,
20t7.
12. The prosecutor's office reviewed the material and advised, on November 1,2017,
that the available evidence was insufficient to adequately support the prosecution of Mr.
S in respect of the events in question. CFNIS WR notified the complainant, Mr. B, of
this decision by letter dated November 7, ZOLI.
III. Mr. B's Conduct ComPlaints
13. On November 9, 2011, Mr. B filed his conduct complaint against PO1 Steven
Morris, Sgt Christian Cyr and MCpl Robert Hancock with the Military Police Complaints
Commission (the Commission).
14. Mr. B's allegations in this complaint (file MPCC 2011-045) were that the MPs in
question:
1) Failed to conduct a complete investigation of his historical allegation of
child sexual abuse by Mr. S; and
2) Only conducted a "soft" investigation in order to help insulate the
Department of National Defence from civil liability.
15. In a further letter dated December L5,z}7L,received December 28th, Mr. B
complained about the failure of military police in 1980 to refer "civilian on civilian"
sexual assault cases to local civilian law enforcement authorities (file MPCC 2O1l-054).
16. In another letter (to the Commission Chair) dated March 5,2072, Mr. B also
raised concerns about the legality of the CFNIS having taken
jurisdiction over his
historical sexual assault complaint. These concerns were raised in light of his
undbrstanding that the CFNIS was only established in 1996 and that the CF did not have
jurisdiction over sexual assault cases involving civilians at the time of the alleged
offences against him. As this allegation related to the same CFNIS investigation and
subject members as per Mr. B's November 9,2011 complaint, the Commission decided
to treat this issue as a third allegation to the original complaint (file MPCC 2011-045)
The Military Police Complaints Commission Final Report MPCC 2011-0451054
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17. In accordance with section 250.26 of the National Defence Acl (NDA), the
Commission referred the complaint to the Canadian Forces Provost Marshal (CFPM) for
initial review and action as deemed necessary.
IV. Deputy Commander CF MP Group's Disposition of the Complaint
18. The Canadian Forces Provost Marshal's (CFPM's) delegate for dealing with MP
conduct complaints in the first instance is the Deputy Commander CF MP Group (Deputy
Commander). The Deputy Commander reviewed Mr. B's complaints, as well as the
relevant MP investigation file.
19. In a letter dated January 1.8,2012, the Deputy Commander issued his response to
the complaints. The Deputy Commander concluded (in respect of the complaint in file
MPCC 201,7-045) that the MPs in question acted within the scope of their duties and
conducted as thorough an investigation as was possible in the circumstances.
20. It was further noted (with respect to the complaint in file MPCC 2011-054) the
conduct of MPs from the 1980s could not be assessed under the Military I'olice
Professional Code of Conduct since the Code only came into force in 7999.
21. Mr. B requested a review of his complaint by the Commission in a letter dated
January 28, 2072,received February 2nd.
V. Methodology of the Complaints Commission's Review
22. [n accordance with the requirements of NDA paragraph 25A3IQ)(b), the
Commission sought disclosure from the CFPM of all relevant information and materials
in the possession of the MPs. Primary disclosure of materials was received by the
Commission on March 2,2012. Further disclosure items were provided on March 8 and
October L6,2012.
23. On March 30,2072, the Commission Chair delegated the conduct of this
complaint review to Commission Member Hugh Muir.
24. The Commission Member, assigned legal counsel and lead investigator reviewed
the material provided by both the Deputy Commander and the complainant. Based on
The Military Police Complaints Commission
4 Final Report MPCC 2011-0451054
Protected B
this material, the lead investigator prepared an investigation plan. This plan was
reviewed by the legal counsel and the Commission Member. It was approved by the
Member on June 7,2012.
25. Following approval of the investigation plan, a second investigator was assigned
and the investigators proceeded to arrange and conduct witness interviews. The
Commission investigators conducted interviews with the following witnesses between
July 19 and July 31,2012:
1) Mr. B (complainant);
2) PO1 Steven Morris (subject);
3) Sgt Christian Cyr (subject);
4) MCpl Robert Hancock (subject).
26. An investigation report was submitted for review by Commission legal counsel
and the Commission Member on October 17,2012, immediately following receipt of the
final disclosure item from the CFPM on October 76,201.2. The investigation report was
approved by the Commission Member on October 23,2OL2.
Consideration of the Canadian Forces Provost Marshal's Notice of Action
27. On January 23,2013, the Complaints Commission received the CFPM's response
letter (dated January 21,2013) to the Commission Member's Interim Report dated
January 15,2013.
28. In conformity with NDA section 250.53(1), the Commission Member has
prepared this Final Report after having considered CFPM's response letter. The CFPM is
required to notify the Minister and the Chairperson of any action that has been or will be
taken with respect to the complaint.
29. In his response letter, the CFPM advised that he agreed with the Commission's
findings and, given the Commission's conclusion that no improper conduct took place, no
action was deemed required in respect of this report.
The Military Police Contplaints Commission 5 Final Report MPCC 2011-0451054
vI. Analysis & Findings
t) MPCC 2OI1-045
a) Allegation 1: Incomplete Investigation
30. The Commission's review of the relevant materials, particularly, the
contents of the MP investigative file (GO #201,1-5754), as well as its interviews
with the subject MP members, indicate that the following investigative steps were
taken by CFNIS WR in respect of Mr. B's allegations against Mr' S.
Protected B
r
Checked archived military records, contacted area schools through the EPS
School Resource Office, and visited schools formerly attended by Mr. S, in
order to identify possible witnesses;
o
Searched records at area schools and interviewed a teacher to confirm Mr.
S's and Mr. B's attendance at the relevant schools at the relevant times and
to obtain a contemporary picture of Mr. S for identification purposes;
o
Conducted a CPIC search on Mr. S to determine his past interactions with
police and any criminal record; this search revealed past convictions for
sexual offence from the 1980s and 1990s, as well foi theft and asslult;
.
Contacted the public library, and media outlets directly, with a view to
locating contemporary media coverage of the 1980 fire which destroyed Mr.
S's family's PMQ;
o
Searched for and obtained records from an investigation of a 1980 fire at
Mr. S's residence on the base;
o
Searched for information and records pertaining to Mr. S's sexual abuse by
a former (now deceased) military chaplain on the base
-
the chaplain was in
fact court martialed, convicted and sentenced to four years imprisonment
(though he ended up serving only 10 months) for molesting Mr. S;
o Interviewed the complainant, Mr. B;
o
Interviewed the complainant's brother;
o
Interviewed the complainant's father;
o
Identified, located and interviewed Mr. S's sister;
o
Located and attempted to interview Mr. S's father, who declined to
cooperate with the investigation, indicating only that his son was ill as a
result of his abuse by the former military chaplain; and
o Located and attempted to interview Mr. S, who declined to be interviewed.
The Military Police Complaints Commission
Final Report MPCC 2011-0451054
Protected B
31. For his part, Mr. B's brother recalled to the MPs a single incident of a sexual
nature involving Mr. S which occurred when he (Mr. B's brother) was about six years
old. However, he indicated to MP investigators that he did not recall his older brother,
Mr. B, being present, nor did he ever discuss the incident with him.
32. Mr. B's father indicated to the MPs that he was unaware of any such incidents
involving his sons and Mr. S.
33. Most significantly, Mr. S's sister, who, according to the complainant, witnessed
part of the final incident of sexual assault on him by Mr. S (an act of attempted anal
intercourse in Mr. S's bedroom), informed the MPs that she had no recollection of such
an incident and, furthermore, was certain that she would recall such an event.
34. The main area where the complainant felt that more could have been done by the
MPs was in trying to identify and obtain statements from the individuals who he alleges
were gathered outside the S residence shouting taunts to Mr. B while he was in Mr. S's
bedroom. However, Mr. B himself was unable to provide the MPs with any names; and,
as noted above, Mr. S's sister had no recollection of the incident.
35. Yet, despite these problems with the evidence, on October 18,2071, the MPs
prepared and submitted a brief to the Regional Crown Prosecutor seeking a legal ,.ui.nJ
of the investigation file to see if there was a sufficient basis to lay charges against Mr. S.
Furthermore, in seeking this legal review, the MPs indicated their conclusion that the
investigation supported the elements of an offence under section 156 of the Criminal
Code (1980) ("indecent assault on a male").
36. The Crown prosecutor determined the evidence simply was not adequate to offer
a reasonable prospect of conviction (given the criminal law standard of proof beyond a
reasonable doubt). As a result, the prosecutor recommended against the laying of charges
against Mr. S, and the MPs acted on this advice, as police typically do in this situation.
37. To be sure, the Commission does not doubt the sincerity of the complainant's
criminal allegations against Mr. S. However, it is nonetheless apparent in the
Commission's opinion that, in light of the investigative steps taking and considering all
the relevant evidence, the subject MPs took all reasonable investigative steps in respect of
The Military Police Complaints Commission Final Report MPCC 2011-0451051
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the complainant's criminal allegations. Indeed, in the Commission's view, the efforts put
into this investigation by then CFNIS WR members, and the treatment of the
complainant, were commendable and reflect well on the MPs.
Findine # 1:
The Commission finds the complainant's allegation that the subject MP members
from CFNIS WR conducted an incomplete investigation in respect of the
complainant's historical child sexual abuse allegations against Mr. S is
NOT SUBSTANTIATED.
(Accepted by the CFPM)
b) Allegation 2: Investigation Intended to Shield DND from Liability
38. For same reasons as noted above, the suggestion that the MPs conducted a "soft"
investigation cannot be supported.
39. The only basis for this allegation cited by the complainant was the fact that the
CFNIS is part of the same federal department (DND) which could be civilly liable in the
event of a successful lawsuit arising out of the complainant's abuse in 1978-80. The
complainant considers this to be a significant conflict of interest.
40. However, a number of factors militate against the notion that the subject MPs r
sought to shield DND from potential liability.
41, First, since Mr. S is, and was at all material times, a civilian, the path to
establishing DND liability would hardly be clear cut.
42. Second, to the Commission's knowledge, no lawsuit has been launched against
DND with respect to the complainant's historical sexual abuse.
43. Third, all three subject MPs adamantly deny any attempt or suggestion to conducl
a "soft" investigation. Moreover, the MPs' evidence on this point is supported by the
lack of any such thinking or communication recorded in the file, as well as the extent of
the investigative efforts undertaken in this case, as outlined in the preceding section,
including the CFNIS WR's conclusion (reported to the Crown prosecutor) that there was
evidence to support criminal charges.
The Military Police Complaints Commission 8 Final Report MPCC 2011-0451054
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Findine # 2:
The Commission finds the complainant's allegation that the subject MP members
from CFNIS WR conducted a
"soft"
investigation of his historical child sexual
abuse allegations against Mr. S, with a view to shielding the Department of National
Defence from any related civil liability, is NOT SUBSTANTIATED.
(Accepted by
the CFPM)
c) Allegation 3: Lack of CFNIS Jurisdiction/Failure to Refer Case to
Civilian Police
44. The complainant
questions the legality of the CFNIS WR's assumption of
jurisdiction to investigate his criminal complaint against Mr. S in respect of his historical
sexual abuse allegations against Mr. S. On this point, the complainant notes, as the
CFNIS was only created in 1996, and that the CF did not have
jurisdiction to prosecute
the offence of sexual assault at the time of the alleged crimes (1978-80), the CFNIS did
not have
jurisdiction in the matter and should have referred the case to a civilian police
service, such as the EPS or RCMP.
45. The complainant is quite correct the CFNIS did not exist in 1978-80, and the CF
did not have
jurisdiction to prosecute the offence of sexual assault (when committed in
\
Canada) at that time. However, these factors are not pertinent to the propriety of the
CFNIS's
jurisdiction in this case.
4G. The crimes alleged by the complainant against Mr. S occurred on DND property
and, as such, the CF military police were, and remain, the law enforcement agency of
jurisdiction. The fact the CF has since altered its internal organization so as to create a
special unit for serious and sensitive cases is immaterial.
47. Moreover, it is important to distinguish between prosecutorial
jurisdiction and
policing
jurisdiction. The former law which precluded military
jurisdiction over sexual
assaults committed in Canada pertained only to prosecutorial
jurisdiction. In other
words, the law on this point only affected the
jurisdiction of CF prosecutors (Office of the
Judge Advocate General) and service tribunals. But this law would have made no
difference in this case on the prosecution side in any event, given that the potential
accused was a civilian.
The Military Police Complaints Commission
Final Report MPCC 2011-0451054
Protected B
48. It is also well established that policing
jurisdiction
does not follow prosecutorial
jurisdiction. Because they are "peace officers" under the Criminal Code, the MPs on
bases throughout Canada routinely investigate and lay charges in cases which go before
the local provincial prosecution authorities and the provincial courts.
49. Finally, the
jurisdictional issue was discussed at the outset between CFNIS WR
and the local civilian police and it was agreed the CFNIS would assume responsibility.
Findine # 3:
The Commission finds the complainant's allegation that the CFNIS should not have
assumed
jurisdiction
to investigate his historical child sexual abuse allegations
against Mr. S is NOT SUBSTANTIATED.
(Accepted by the CFPM)
2) MPCC 2OII.O54
50. In this separate, but obviously related complaint, the complainant raises concerns
regarding the conduct of the MPs at CFB Namao in 1980. Specifically, he alleges the
local MP Detachment, which he believes must have been aware of his victimization by
Mr. S, wrongly neglected to involve or notify civilian police agencies of incidents of
sexual assault committed on the base by Mr. S.
51. Section 704 of An Act to amend the National Defence Act and other Acts (Statutes
of Canada 1998, chapter 35) specifically precludes the application of the NDA Part IV
MP complaints process, including the
jurisdiction of this Commission, to any complaints
regarding military police conduct which would have occurred prior to the coming into
force of these legislative provisions (to wit, December 1, 1999). As such, the
Commission is unable to address this complaint.
The Military Police Complaints Commission 10 Final Report MPCC 2011-0451054
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VIII. Summary of Findings
Findine # 1:
The Commission finds the complainant's allegation that the subject MP members
from CFNIS WR conducted an incomplete investigation in respect of the
complainant's historical child sexual abuse allegations against Mr. S is
NOT SUBSTANTIATED.
Findine # 2:
The Commission finds the complainant's allegation that the subject MP members
from CFNIS WR conducted a
'osoft"
investigation of his historical child sexual
abuse allegations against Mr. S, with a view to shielding the Department of National
Defence from any related civil liability, is NOT SUBSTANTIATED.
Findine # 3:
The Commission finds the complainant's allegation that the CFNIS should not have
assumed
jurisdiction
to investigate his historical child sexual abuse allegations
against Mr. S is NOT SUBSTANTIATED.
Ottawa, January 24, 2013
Hugh M{fr, M.O.M.
Commission Member
The Military Police Complaints Commission 11 Final Report MPCC 2011-0451054
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la police militaire
270 Albert Street, 10th Floor, 270, ru Albsrt, 10 6tag,
Ottawa,Ontario K1PsGB Ottawa(Onlarlo) KlP5GB
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