Allegations Against the Canadian Forces - Part Two
PART TWO: Canadian Forces National Investigation Service investigations into the events outlined in the July 9 memorandum and Lieutenant-General Leach's failure to respond
Notwithstanding the fact that Captain Poulin's complaint included the way the Canadian Forces National Investigation Service (CFNIS) handled its investigations, as well as the military police complaints process that was followed, Major-General Penney, the Chief of Review Services, referred the matter to the Ombudsman's Office. Since the matters involving Captain Poulin arose prior to December 1, 1999, his complaints fell outside the jurisdiction of the Military Police Complaints Commission; they did, however, fall within the mandate of the Ombudsman's Office, outlined in Ministerial Directives for the Ombudsman's Office dated June 16, 1999. Major-General Penney referred these matters to this Office because he recognized that only an outside and independent review could bring closure to the matter, for Captain Poulin and for all others concerned. Attempts to deal with his complaints internally had only led to further discord and additional complaints. When I agreed to take this matter on, it was on the understanding that this Office would accept no restrictions. These terms of reference were accepted to preserve both the appearance and reality of impartiality.
Unfortunately, when my interim report was released, the current Canadian Forces Provost Marshal (CFPM) Colonel Dot Cooper, as well as the Deputy Provost Marshal Professional Standards, took exception to the jurisdiction of the Ombudsman's Office to review matters related to the CFNIS investigations and to the military police complaints process. The objection to the jurisdiction of this Office also pervaded the responses given to the specific recommendations.
I am disappointed and disheartened by this response. Objections based on jurisdictional grounds detract from the substance of the issues and needlessly undermine the benefits that specific recommendations can accomplish. These jurisdictional challenges stand in marked contrast to the strong endorsement of the interim report and the considerable support shown by the Chief of the Defence Staff. Indeed, they also stand in stark contrast to the positive responses that recommendations from this Office have received from the CFPM Brigadier-General Samson in the past.
Not only do technical objections imperil the substance of the recommendations, they are even more surprising in light of the fact that the Chief of Review Services referred this matter to this Office because internal mechanisms had been unable to settle things. Most importantly, these technical objections represent an unhealthy attempt at carving out pockets of authority that would remain impervious to the low-level settlement processes this Office offers. It is apparent that these technical objections represent a misunderstanding of the nature of the role of the Ombudsman. As Ombudsman, I do not have executive power. I lack the ability to order anyone to do anything. I cannot force people to implement my recommendations. I must rely on moral suasion, the merits of the recommendations themselves and the cooperation of leaders within the organization. Their goodwill is necessary to ensure fair treatment and to acknowledge unfairness when it has occurred. This is the only way that I can promote positive change and assist in remedying injustice.
I understand that changes are not always easy or painless to implement and, in many cases, require strong leadership by persons who have the will to make changes. I strongly encourage the current CFPM to consider the goals and objectives of the review conducted by this Office and to view the recommendations substantively, not jurisdictionally. It is my hope that the CFPM Colonel Cooper will accept this opportunity to help remedy the instances of maladministration and unfairness that this Office has identified, and will come to view its contributions in the area of the Military Police and the military police complaints process as a positive thing.
C. Allegations against Captain Bud Garrick
Captain Garrick was the CFNIS investigator assigned to lead the investigation into the allegations against Colonel Labbé contained in Captain Poulin's memorandum dated July 9, 1996. In his memorandum, Captain Poulin alleged Colonel Labbé, at that time Commandant of the Canadian Land Forces Command and Staff College (CLFCSC) in Kingston, Ontario, behaved inappropriately toward a civilian member of the dining room staff at the Fort Frontenac Officers' Mess on May 3, 1996.
The investigation into this matter was initiated on June 17, 1998 after Captain Poulin's memorandum became public. In his complaint to the Ombudsman's Office, Captain Poulin indicates that the CFNIS investigation of the allegations was not thorough or competent and that evidence was overlooked.
This Office provided Captain Garrick with an extension to March 28, 2001 to respond to the relevant portion of the interim report to accommodate his return from an operational deployment. Captain Garrick responded to Ombudsman's investigators by telephone, confirming that he had no comments to offer in relation to the portions of the interim report that had been provided to him. Comments that were provided by the current CFPM in relation to this Office's review will be addressed later in this report.
Allegation 1: Allegation of insufficient investigation into Captain Poulin's allegations against Colonel Labbé
Captain Poulin states in his complaint:
On or around July 27, 1998, sometime in the afternoon, Capt. "Bud" Garrick (Operations Officer, CFNIS Central Region) phoned me and said that, without wishing to compromise the investigation, the woman I had alluded to in my memo dated July 9, 1996 had been found.
Capt. Garrick also added that the woman in question[...] had given her testimony to the NIS wherein, he added, she corroborated my assertions contained in the subject memo. Capt. Garrick also mentioned, however, that she was not interested in laying charges against Col. Labbé. She no longer worked in DND and she felt that this whole issue was closed. If Capt. Garrick had found the waitress in question and she corroborated what I had said (using different words) then how was it possible to conclude there was no evidence. There were witnesses!
Captain Poulin also states:
On or around July 27, 1998, Capt. Garrick assured me that he had found the waitress with whom I alleged to have received information about Col. Labbé. Yet, at no time did he wish to confirm her identity with me to ensure she was, in fact, the waitress I had alluded to in my memo dated July 9, 1996. This, in spite of the fact that the waitress he had found did not even match the physical description I had given the NIS during my testimony to the investigators.
Captain Poulin further states:
In his August 1998 NIS investigative report on my allegations contained in my memo dated July 9, 1996, Capt. Garrick asserted that there was no evidence that Col. Labbé had committed any service offence on May 3, 1998. I had specified to him that the date of the incident was May 3, 1996.
Clearly, there would be no evidence to be found against Col. Labbé for May 3, 1998 given that it was the wrong date and none of the parties involved were even at the Fort Frontenac Officers' Mess on or around that date in 1998.
In Captain Poulin's diary entry of July 28, 1998, he writes:
Yesterday afternoon Capt "Bud" Garrick (NIS) called and said, without compromising his investigation he confirmed that the woman I had alluded to in my memo dated 9 July 1996 had come forward and corroborated my assertions. [...]she said she was not interested in laying charges against Labbé.
Ombudsman's investigators interviewed Captain Garrick on audio tape on July 27, 2000 in the 5th floor boardroom at 55 Murray Street. A copy of Captain Poulin's allegations against him was provided to Captain Garrick prior to his interview.
During this Office's investigation into this matter, Ombudsman's investigators were given full access to the CFNIS investigative file. They reviewed all documents, reports and video and audio recordings collected and produced during the CFNIS investigation.
During his interview, Captain Garrick acknowledged calling Captain Poulin on July 27, 1998 and informing him they had found the waitress and wished to confirm her identity. He stated that Captain Poulin was supplied with the waitress' full name, but Captain Poulin did not recognize it.Captain Garrick further stated that he did not inform Captain Poulin the waitress had corroborated his assertions. Rather, Captain Garrick related, he attempted to ascertain whether he had in fact found the waitress Captain Poulin had alluded to in his memorandum dated July 9, 1996. Captain Garrick indicated that the waitress' physical description had changed because she had cut her hair and let it return to its natural colour. He said there was no doubt in his mind that they had the correct woman because other witnesses interviewed confirmed that she herself came forward once Captain Poulin's July 9, 1996 memorandum became public.
Ombudsman's investigators interviewed the former mess waitress on audio tape on July 18, 2000 at her residence. She stated that she was present at the class barbecue in May 1996, but she does not recall Colonel Labbé or anyone else rubbing her back.
On July 24, 2000, Ombudsman's investigators interviewed one of Captain Poulin's classmates at the CLFCSC who had dated the former waitress, but the classmate stated that the former mess waitress had never related any incident involving Colonel Labbé to him.
In response to Captain Poulin's complaint that Captain Garrick asserted that there was no evidence that Colonel Labbé had committed any service-related offence on May 3, 1998 (when the correct year was in fact 1996), Captain Garrick acknowledges this was a typographical error. Having reviewed the complete report along with all of the documents contained in the CFNIS file, it is apparent that the year 1998 was clearly an error and that the events investigated by the CFNIS focused on May 1996.
Assessment
I am satisfied that my investigators have confirmed that the witness located and interviewed by the CFNIS during its investigation was the former mess waitress referred to by Captain Poulin in his allegations against Colonel Labbé. Neither the former mess waitress nor any other witness was able to provide CFNIS investigators with information to support charges of criminal or service offences by Colonel Labbé. The information the CFNIS investigators relied upon in arriving at their conclusions was independently confirmed by my investigators directly with the witnesses themselves. I am satisfied there is no basis to conclude that the CFNIS investigation into Captain Poulin's allegations against Colonel Labbé was inadequate.
Allegation 2: Failure to interview witnesses during the CFNIS investigation and to verify the assertion of one witness with Captain Poulin
Captain Poulin also maintains in his written complaint that:
Capt. Garrick did not ensure that the following people were interviewed although their evidence was relevant to the NIS investigation demonstrating, once again, that his actions were also in direct violation of QR&O 107.03. It states that: “An investigation conducted pursuant to this chapter (Chapter 107) shall, as a minimum, collect all reasonably available evidence bearing on guilt or innocence of the person who is subject of the investigation.
”
Capt. Liam Porter - He was my neighbour in the dorms at CLFCSC during serial 9601 and I often discussed sensitive issues with him. I had deliberately highlighted the importance of his testimony to LCdr. S. Moore to no avail. On or around June 21, 1999, I sent an e-mail to Maj. L. Porter and asked him if the NIS had ever interviewed him. On June 25, 1999 Maj. L. Porter responded to my question stating that the NIS “... never did call (him) about any of this stuff . ..
”
Capt. Marc Bossi - He remembered me discussing the Col. Labbé incident with him during the Spring of 1996 well before the end of the course and before I knew my final course mark. Even though I had provided this information to LCdr. Moore, no information was ever gleaned from him.Capt. Isabelle Compagnon - She was a member of the staff at CLFCSC. She recalls that, around that same period of time in 1996, she had been warned about Col Labbé's conduct towards women. She claims to have taken these warnings so seriously that she changed her social activities at night and always made it a point to leave early from any CLFCSC function.
Then Master Corporal M.C. Tremblay - She worked in the CLFCSC orderly room and contrary to MWO Parker she wrote to me on or around June 16, 1999, stating she felt that I was “... very nice throughout the course ...
” (The NIS report only sought to portray my behaviour in the CLFCSC orderly room as negative). Lt.-Col. Robertson had blamed her for the drinking on the bus incident but Capt. Garrick never sought her out to verify Lt.-Col. Robertson's version with that of then Master Corporal M.C. Tremblay.
Documents released through ATI revealed that Lt.-Col. D. Chupick (a member of the Directing Staff at CLFCSC) gave an interview to the NIS on or around July 3, 1998. He stated: “He (Lt.-Col. Chupick) does not know what prompted Poulin to do this - no reason for doing it in his mind (Lt.-Col.). If student had a problem ... the student could come and see Branch DS (Poulin could have come to see Lt.-Col. Chupick but did not from what Lt.-Col. can recall). Never gave Lt.-Col. any indication that he (Poulin) was going to do this.
”
You will note that Lt.-Col. Chupick was not in my chain of command nor had I seen him since Gagetown sometime in 1983! Had I approached Lt.-Col. Chupick, he would have been required to investigate to actions of Col. Labbé who had real and apparent authority over Lt.-Col. Chupick.Lt.-Col. Chupick was also the officer who agreed to take Pvt. Kyle Brown under his command at the Royal Canadian Horse Artillery from the Airborne Regiment in the Winter 1993/94.
Lt.-Col. Chupick was also the individual who promptly laid charges against Pvt. Brown almost immediately upon Pvt. Brown's arrival at the unit from the Canadian Airborne Regiment. Lt.-Col. Chupick was the same individual who had met with the JAG representative to discuss Brown's case and excluded Pvt. Brown's attorney from the meeting (collusion?). The combination of these factors led me to conclude very early on that I could not turn to him for help.
At no time did Capt. Garrick verify the assertion Lt.-Col. Chupick made about me or seek an explanation as to why I did not turn to him for help.
On August 1, 2000, Ombudsman's investigators interviewed Major Liam Porter in the 5th floor boardroom at 55 Murray Street. Major Porter said he was a friend of Captain Poulin and they had a number of discussions about the college and the course while at the CLFCSC, but Captain Poulin never mentioned anything about his July 9, 1996 memo. Major Porter stated that he first learned of Captain Poulin's July 9, 1996 memorandum when the story broke in the media.
On February 24, 2000, Ombudsman's investigators interviewed Captain (Retired) Marc Bossi at his office Mr. Bossi said he visited Captain Poulin at the CLFCSC near the end of May 1996 while he was there on a two- or three-day course. Mr. Bossi recalled that, during one of their evenings together, Captain Poulin mentioned the incident of drinking on the buses and what he witnessed involving Colonel Labbé and the waitress. Mr. Bossi did not believe that Captain Poulin provided any details regarding Colonel Labbé and the waitress. Mr. Bossi also stated he was not personally at the college at the time any of these incidents allegedly occurred.
On November 19, 1999, Ombudsman's investigators interviewed Captain Isabelle Compagnon in the interview room at 55 Murray Street. In May of 1996, Captain Compagnon was assigned to the CLFCSC in Kingston as the Mess Administration Officer. Captain Compagnon stated, however, that she neither experienced nor witnessed any basis for rumours about Colonel Labbé.
Captain Garrick's and Master Warrant Officer Peter MacFarlane's notebook entries for July 3, 1998 record their interview with Lieutenant-Colonel Chupick. Lieutenant-Colonel Chupick was a member of the Directing Staff and the Artillery Branch Advisor for the CLFCSC. Lieutenant-Colonel Chupick stated he does not remember Captain Poulin ever approaching him regarding Colonel Labbé and adds that, as the Artillery Branch Advisor, he would have been a resource for Captain Poulin, who was also an artillery officer at that time. Lieutenant-Colonel Chupick recalled, however, that Captain Poulin was very upset over the final mark he received at the college. Master Warrant Officer MacFarlane's notebook entry records Lieutenant-Colonel Chupick's recollection that in response to his final grade, Captain Poulin had remarked “you have not heard the last of me.
”
Captain Garrick stated he felt there was no reason or obligation to report back to Captain Poulin about his interview with Lieutenant-Colonel Chupick for verification regarding his findings, particularly in light of the other evidence obtained by the CFNIS during its investigation.
Assessment
As I have already noted, based upon the information collected by my investigators and the review of the CFNIS investigative file, there is no basis to conclude that the CFNIS investigation into the allegations of misconduct against Colonel Labbé was inadequate. I appreciate that Captain Poulin would be sensitive to Lieutenant-Colonel Chupick implying that Captain Poulin's dissatisfaction with his course grade suggested motive for Captain Poulin's allegations against Colonel Labbé. However, in light of all the other evidence collected by the CFNIS during its investigation, I am not satisfied that these comments played a significant role in the conclusion that there was no evidence to charge Colonel Labbé with a criminal or service-related offence.
Allegation 3: Failure to investigate allegations against Colonel Labbé regarding incident of drinking on a bus, as described in July 9, 1996 memorandum
Captain Poulin states in his written complaint:
Capt. Garrick's NIS investigative report (NCN 118-01-98) dated August 1998, acknowledged the drinking on the bus incident I alluded to in my memo dated July 9, 1996, but failed to make any recommendations on this issue even though “drunkenness
” was a service offence under section 97 of the National Defence Act. Capt. Garrick also accepted Lt.-Col. A.F. Robertson's version of the drinking on the bus incident concluding that it was the fault of then Master Corporal M.C. Tremblay without questioning Master Corporal Tremblay to verify the validity of Lt.-Col. Robertson's assertions.
Ironically, on or around May 17, 1996, the then Maj. Robertson had written a letter stating Master Corporal Tremblay's performance during the trip was “excellent
” and that in his opinion “... she is ready for much more demanding responsibilities now, and clearly has potential for advancement well beyond the rank of Sgt.
” Capt. Garrick's actions were also in direct violation of QR&O 107.03. It states that: “An investigation conducted pursuant to this chapter (Chapter 107) shall, as a minimum, collect all reasonably available evidence bearing on guilt or innocence of the person who is subject of the investigation.
”
Captain Poulin also states:
Captain Garrick also accepted Lt.-Col A.F. Robertson's version of the drinking on the bus incident concluding that it was the fault of then Master Corporal M.C. Tremblay without questioning Master Corporal Tremblay to verify the validity of Lt.-Col Robertson's assertions.
The CFNIS investigation report compiled by Captain Garrick records:
[Colonel Labbé] had received a letter written by LCol ROBERTSON, which he provided a copy of, in this letter LCol ROBERTSON addresses this issue of officers drinking on the bus. In essence he states that the whole affair was blown out of proportion, Col Labbé was not at the mess during this incident and a MCpl was responsible for ensuring that all students boarded the bus. Unfortunately some students did bring a glass of liquor on the bus.
Captain Garrick recalled reviewing Captain Poulin's allegations of drinking on the buses in 1996. Captain Garrick's notebook entry records his interview with Lieutenant-Colonel Robertson on September 3, 1998 at 1315 hours. Lieutenant-Colonel Robertson had been a member of Colonel Labbé's staff at the CLFCSC in 1996.
Captain Garrick notes that during his interview, Lieutenant-Colonel Robertson informed him he stands by his letter to Colonel Labbé dated July 28, 1998. In it, Lieutenant-Colonel Robertson acknowledged his responsibility for the lack of adequate supervision and adds that he was rebuked for not providing supervision or ensuring that adequate rank was present for this activity.
In the letter from Lieutenant-Colonel Robertson to Colonel Labbé dated July 28,1998 Lieutenant-Colonel Robertson states:
I will also comment briefly on [Poulin's] concern about drinking on buses. The bottom line is that I am the guilty party. In the specific case discussed, I believe [Poulin] was referring to the Saturday night course 9601 left for the Battlefield Study. I had made arrangements with Liam Thomas to have MWO Parker at the Fort to get everyone on the bus in good order. Unfortunately ... it didn't happen, with the result that Master-Corporal Tremblay was left holding the bag, which included the bus showing up late. I found out afterward that the students used this as an excuse to board the bus in the dark with drinks in their hands (would not have happened if the MWO had been there). I got a mild slap on the wrist from you through the Deputy (Commandant) about the absence of a senior NCO or officer in general and I subsequently spoke to the Course leader in particular on the drinking, and left it that.
Assessment
Police investigators retain the discretion to decide whether or not to pursue allegations of misconduct that are brought to their attention. They may take many factors into account when exercising this discretion. In this case, Captain Garrick appears to have based his decision not to investigate Captain Poulin's allegations against Colonel Labbé on a number of considerations, including the fact that the matter appeared to have been dealt with by the CLFCSC in 1996. I am satisfied in this case that Captain Garrick's decision not to pursue an investigation into these allegations was not an improper exercise of his discretion.
Allegation 4: Failure to investigate allegations that Colonel Labbé arranged for transportation to take officers to an exotic dancing establishment in the 1980s
Captain Poulin states in his written complaint:
In my memo dated July 9, 1996, addressed to the then Maj.-Gen. Leach, I stated: “While employed as the Bn Comd at CFB Valcartier, QC, in the late 1980's, Col Labbé had arranged for the transportation to take officers, dressed in combat uniforms, to a local strip club. One of the stripper's acts consisted of her dressing in one of the officer's uniforms.
” This allegation was included in Capt. Garrick NIS investigative report (NCN 118-01-98) dated August 1998 but, to the best of my knowledge, Capt. Garrick did not investigate this allegation. This inaction was also in direct violation of QR&O 107.02(1). It states that: “Where a complaint is made or where there are other reasons to believe that a service offence may have been committed, an investigation should normally be conducted as soon as practical to determine whether there is sufficient grounds to justify the laying of charges.
”
During his interview with Ombudsman's investigators on July 27, 2000, Captain Garrick stated the CFNIS did review this allegation, was based on a rumor of which he had no first-hand knowledge.
In his memorandum dated July 9, 1996, Captain Poulin states that he obtained this information through discussion with fellow students while at the CLFCSC. Specifically, Captain Poulin states:
... when other students where (sic) made aware of the said earlier facts they did not seemed (sic) surprised by Col Labbé's behaviour. Instead, they told me about another (sic) incidents they had witnessed first hand ...
Assessment
As I have noted, police investigators retain the discretion to decide whether or not to pursue allegations of misconduct that are brought to their attention. They may take many factors into account when exercising this discretion, including the age of the complaint, the existence of witnesses and whether the information provided appears to be based on rumor or hearsay, which would be difficult to substantiate. I am not satisfied that Captain Garrick's decision in this instance was an improper exercise of his discretion as a Military Police officer.
D. Allegation against Master Warrant Officer Peter MacFarlane
Master Warrant Officer MacFarlane is a CFNIS investigator who was assigned with Captain Garrick to investigate allegations against Colonel Labbé in Captain Poulin's memorandum dated July 9, 1996, which became public on June 17, 1998. Captain Poulin complains that Master Warrant Officer MacFarlane failed to follow up on his request that the CFNIS investigate whether Colonel Labbé was receiving legal representation and advice at public expense during its investigation. Master Warrant Officer MacFarlane responded to the relevant portion of the interim report on March 14, 2001. His comments have been carefully reviewed and clarifications to the final report made where appropriate.
Allegation : Refusal to investigate whether Colonel Labbé was receiving legal representation and advice at public expense
In his written complaint, Captain Poulin states:
On or around July 3, 1998, I (Capt. Poulin) went over to the Constitution building and met with WO MacFarlane (Investigation Analyst, CFNIS Central region) and handed him a newspaper clipping along with a note addressed to Lt-Cdr. S. Moore. After reading my comments and acknowledging receipt of a video I had given him, WO MacFarlane said they would look into who was actually paying for Col. Labbé's lawyer and why he was involved at this stage of the process.
My understanding of his comments were that no one from the NIS had yet made it clear to Col. Labbé as to whether he was a “witness
” or the “subject
” of their (meaning NIS) investigation. WO MacFarlane went on to say that if it was shown that DND/CF was paying for Mr. Hendin's services then the NIS would have to launch another investigation into that aspect of the case.
At no time was I ever informed of a NIS investigation into this aspect neither of the case, nor of the results of this possible NIS investigation even though I was the plaintiff. It would therefore appear that WO MacFarlane was in direct violation of QR&O 107.02(1). It states that: “Where a complaint is made or where there are other reasons to believe that a service offence may have been committed, an investigation should normally be conducted as soon as practical to determine whether there is sufficient grounds to justify the laying of charges.
”
On July 27, 2000, Ombudsman's investigators interviewed Master Warrant Officer Peter MacFarlane on audiotape in the 5th floor boardroom at 55 Murray Street. A copy of Captain Poulin's allegation against him was provided to Master Warrant Officer MacFarlane prior to the interview. As previously noted, Ombudsman's investigators also reviewed the full CFNIS file in relation to its investigation of allegations of misconduct against Colonel Labbé.
Master Warrant Officer MacFarlane was tasked along with Captain Garrick to investigate the allegations of inappropriate behaviour by Colonel Labbé towards the civilian waitress at the Fort Frontenac Officers' Mess, as set out in the July 9 memorandum authored by Captain Poulin.
In his response to my interim report, Master Warrant Officer MacFarlane acknowledged that he met with Captain Poulin on or around July 3, 1998 after Captain Poulin had initially requested to speak to then Lieutenant-Commander Moore. He met Captain Poulin and received a video cassette, written note and other information and advised Captain Poulin that he would forward the information to Lieutenant-Commander Moore for his review and action as required. Master Warrant Officer MacFarlane maintains that he passed the items received from Captain Poulin on to Lieutenant-Commander Moore for consideration and action as necessary.
Master Warrant Officer MacFarlane indicates that he was not tasked to investigate whether Colonel Labbé was receiving legal representation or advice at public expense. Colonel Labbé was interviewed by Captain Garrick and Sergeant Cavasin of the CFNIS on August 13, 1998. A copy of the audio cassette recorded during this interview was provided to Ombudsman's investigators and a transcript was produced. From the transcript, it is clear that Colonel Labbé is being interviewed as a subject of the investigation resulting from the allegations in Captain Poulin's July 9, 1996 memorandum. It is also apparent that no counsel is present or representing Colonel Labbé while the statement is being taken.
In his interview with the CFNIS, Colonel Labbé stated a lawyer and acquaintance of his had notified him of Captain Poulin's allegations against him. He related that this lawyer had faxed him a copy of Captain Poulin's July 9, 1996 memorandum on June 18, 1998 and asserted that this was the first he had ever heard of these allegations.
On September 12, 2000, Colonel Serge Labbé was interviewed on audiotape by Ombudsman's investigators in the Hilton Hotel in Izmir, Turkey. They asked Colonel Labbé if he had been provided with legal representation as a result of the allegations contained in Captain Poulin's memorandum. Colonel Labbé replied that he had not. Colonel Labbé stated he came to appreciate the lawyer in question as a friend and that he had discussed the matter of the CFNIS investigation with the lawyer. Colonel Labbé clarified, however, that he was not represented during his interview with the CFNIS, nor did he request legal representation or reimbursement from the CF for the same.
Assessment
The CFNIS was tasked to investigate the allegations of misconduct against Colonel Labbé and determine whether criminal or service-related charges should be laid. Captain Poulin was the catalyst for this investigation in that his memorandum set forth the allegations against Colonel Labbé that ultimately resulted in the CFNIS investigation being initiated. However, Captain Poulin was not the victim or the plaintiff and, other than having an interest in his concerns being responded to, he did not have a direct interest or stake in the outcome of the investigation. Although it was desirable that the CFNIS keep Captain Poulin informed of the status and progress of their investigation into the allegations he had brought forward, I do not conclude that Captain Poulin should have been informed as to whether Colonel Labbé received legal representation during the course of the investigation. Consequently, I do not conclude that Master Warrant Officer MacFarlane acted inappropriately nor that the CFNIS acted unfairly towards Captain Poulin by not investigating Captain Poulin's queries about Colonel Labbé's receipt of legal representation at Crown expense.
E. Allegation against Colonel Serge Labbé
Colonel Labbé is a former Commandant of the CLFCSC. In his memorandum dated July 9, 1996 that was submitted to the attention of then Major-General Leach, Captain Poulin alleged that, while he was Commandant of the CLFCSC, Colonel Labbé behaved in an inappropriate manner towards a civilian waitress at the Fort Frontenac Officers' mess. As previously noted, the investigation into these allegations by the CFNIS found that there was insufficient evidence to support laying any criminal or service-related charges.
Colonel Labbé contacted the Ombudsman's investigator on March 27, 2001. At Colonel Labbé's request, the relevant portion of the interim report was read to him over the phone. Colonel Labbé advised that he had no comments on the portion of the interim report that were read to him.
Allegation : Provision of libellous and defamatory comments to CFNIS investigators and misuse of personal information
During the course of the CFNIS investigation, Colonel Labbé was interviewed as the subject of the allegations in the July 9, 1996 memorandum. Pursuant to Privacy and Access to Information requests, Captain Poulin received copies of notes Colonel Labbé prepared for his interview with CFNIS investigators. It is Captain Poulin's view that comments Colonel Labbé provided to these investigators were libellous and defamatory and involved a misuse of Captain Poulin's personal information.
Specifically, Captain Poulin states in his written complaint:
Colonel Labbé also wilfully made several false statements to the NIS when he used my CLFCSC course report and interpreted the grades I was awarded in a manner that was inconsistent with the CLFCSC training manual. The course report that both he and I signed stated: “Captain Poulin is a highly intelligent and hard working officer who generally maintained a positive attitude throughout ... He has an excellent intellect to support his problem-solving skills and was original in developing workable solutions to complex tactical problems ... A confident leader, he has demonstrated that he can effectively organise a staff team to produce the required results ...
”
In contrast to the course report, Col. Labbé stated to the NIS, in his official capacity as a former Comdt CLFCSC, using these same course report grades, that now, in hindsight: “He (Capt Poulin) was generally considered the weakest Canadian student and his overall C grading was considered overly generous ...
”
Captain Poulin also states:
Col. Labbé misused his official position as the former Comdt CLFCSC to impart wrongful personal information about me. Col. Labbé asserted that: “... he (Capt Poulin) had the unfortunate distinction of being graded 10th out of 10 in at least two of the three tutorials.
” I do not remember, ever being graded 10th out of 10 in at least two of the three tutorials. At no time was such a ranking discussed with me and nowhere was it indicated either on my mid-tutorial or my end tutorial assessments.
Col. Labbé, in his official capacity as a former Comdt CLFCSC, provided wrongful personal information about my performance on the three tutorials at CLFCSC. Specifically, he stated to the NIS that: “... he (Capt. Poulin) never exceeded a very weak C grade.
”
In contrast to Col. Labbé's assertions, my second CLFCSC tutorial stated: “His (Capt. Poulin) oral communication skills are above average as is his knowledge of staff procedures ... He is a confident officer who has used originality in his tactical solutions to good effect ... Capt. Poulin will be a good staff officer at Brigade level.
”
Ombudsman's investigators interviewed Colonel Labbé on audiotape in the Hilton Hotel in Izmir, Turkey on September 12, 2000. A copy of Captain Poulin's allegations against Colonel Labbé was forwarded to him on July 14, 2000.
The Ombudsman's investigators also obtained a copy of the audio cassette recording of Colonel Labbé's interview with Captain Garrick and Sergeant Cavasin of the CFNIS on August 13, 1998. A transcript of this interview was prepared by this Office and reviewed by its investigators prior to their meeting with Colonel Labbé.
During his interview with the CFNIS investigators, Colonel Labbé unequivocally denied the allegations contained in Captain Poulin's memorandum dated July 9, 1996. Colonel Labbé suggested that Captain Poulin was motivated by revenge attributable to his dissatisfaction with the assessment of his performance at the CLFCSC.
Ombudsman's investigators also obtained from Captain Poulin a copy of his final report for the course he completed dated June 12, 1996. They also reviewed a copy of Captain Poulin's course records, as well as statistics for performance of the other students in the course.
In response to the above allegation, Colonel Labbé stated:
... I certainly have not been talking to the media nor the public ... I have never intended on him being hurt. I was simply, in my discussions with the NIS, revealing what I thought to be relevant information. Facts as I knew them without the benefit of having his course reports in front of me because I have never had access to those since I left the college in 1996.
Colonel Labbé further stated:
I have not been libellous because, to be libellous implies that you are wilfully making false statements in public. I have never wilfully made false statements. I have always provided, to the NIS, what I believe to be a fact, again, without the benefit of his course reports or files ... I'm not being defamatory because when I met with the NIS in August of 98, I was doing my duty. I was doing it because of an investigation launched as result of allegations made by Captain Poulin.
Colonel Labbé asserted that he was doing his duty in speaking to the CFNIS because he knew he was innocent of the allegations against him in Captain Poulin's July 9, 1996 memorandum. He stated:
... I agreed to tell the NIS the truth and the whole truth, everything I knew. I believe I was under an obligation to do so and that means telling everything one judges to be relevant, including my perception ... my perception is what I believe to be the truth about what actually happened ... My observations were made on the basis of what I could remember from Captain Poulin ... which is what I recall from memory ... I believed that to be relevant and as a result necessary to declare because I believe that his course results were the motive for what he ... had said in terms of allegations. I was making a statement as part of a confidential investigation by the NIS and I ... believe I was correct in believing that the results would be safe-guarded appropriately.
Colonel Labbé further stated that it was his belief that personal information would be expunged from reports before information was released in compliance with Privacy and Access to Information requests.
Assessment
The information Colonel Labbé provided to the CFNIS regarding Captain Poulin and his performance at the CLFCSC has been carefully reviewed, along with Captain Poulin's final report and other course records. The differences between Colonel Labbé's and Captain Poulin's assessments of Captain Poulin's performance appear to be based on differences of opinion and perception as to the interpretation that should be given to his course report narrative. It is understandable that Captain Poulin may have felt offended by some of the comments Colonel Labbé offered to the CFNIS investigators, since Colonel Labbé's description of Captain Poulin's performance was not overly generous or flattering.
It is important to note the context in which Colonel Labbé made the comments that Captain Poulin finds objectionable. Colonel Labbé's comments were made to CFNIS investigators while he was being interviewed by them and he was under an obligation to cooperate with the ongoing CFNIS investigation. Colonel Labbé was also the subject of serious allegations put forth by Captain Poulin and was expressing his opinion as to the motive he felt Captain Poulin might have had for bringing forward matters that Colonel Labbé asserts were false allegations.
Colonel Labbé was entitled to expect the comments he made would be treated as privileged and kept confidential. It is clear that he did not intend these comments to be made public. Colonel Labbé expressed his opinion based on his recollection of Captain Poulin's performance without having the benefit of reference to the actual course records, although it would have been preferable if Colonel Labbé had deferred any comment on Captain Poulin's results and referred the CFNIS investigators to Captain Poulin's records. As a subject of the investigation, he clearly had an interest in providing what he perceived to be a possible motive for allegations that he insisted were false.
I think that the CFNIS investigators would have placed Colonel Labbé's comments in the proper context, considering that they clearly would have had access to Captain Poulin's actual course records. I am also satisfied, in light of the other evidence my investigators obtained, that the comments Colonel Labbé made did not influence the outcome of the CFNIS investigation.
F. Allegations against Commander Stephen Moore
Commander Moore was the Officer Commanding the CFNIS, Central Region and was the lead investigator into the alleged inaction by Lieutenant-General William Leach in response to Captain Poulin's memorandum dated July 9, 1996. Commander Moore held the rank of Lieutenant-Commander at that time.
Commander Moore is currently the Deputy Provost Marshal, CFNIS Investigation Support.Captain Poulin's complaints regarding Commander Moore include allegations that the CFNIS investigation into inaction by Lieutenant-General Leach was not adequate and that Commander Moore failed to investigate complaints of harassment, retaliation and leaked medical information Captain Poulin brought forward.
Commander Moore responded to the relevant portion of the interim report in a memorandum dated March 28, 2001. His comments, as well as comments provided by the current CFPM in relation to the relevant portions of the interim report, have been carefully reviewed and considered and additional clarifications have been made to this final report where warranted.
Other comments by Commander Moore concerning the jurisdiction of the Ombudsman's Office in relation to military police conduct are addressed elsewhere in this report.
Allegation 1: Inadequate investigation into inaction on the part of Lieutenant-General Leach and failure to interview relevant witnesses
In his written complaint to this Office, Captain Poulin alleges:
LCdr. Moore did not ensure that the following people were interviewed although their evidence was relevant to the NIS investigation demonstrating, once again, that his actions were also in direct violation of QR&O 107.03. It states that: "An investigation conducted pursuant to this chapter (Chapter 107) shall, as a minimum, collect all reasonably available evidence bearing on guilt or innocence of the person who is subject of the investigation."
Then Maj. Jacques Tremblay - He was my immediate supervisor while I was at LFC St-Hubert. He wrote the supervisor portion of my 1995/96 PER (on behalf of Col. Coleman). I had deliberately highlighted the importance of his testimony - he had seen my memo dated July 9, 1996 - to LCdr. Moore during my NIS testimony to no avail. On or around August 18, 1999, now Lt.-Col. Tremblay confirmed that “... personnel du SNE ne m'a contacté à ce sujet.
”
Lt.-Col. Réjean Duchesneau - He replaced Col. R. Coleman during the summer of 1996. So, he too was in my chain of command. I had shown him the memo of July 9, and 15, 1996 and I had deliberately highlighted these facts to LCdr. Moore during my NIS testimony to no avail.
A Kingston Whig Standard article by Rob Tripp, dated February 9, 1999, quoted RCMP Inspector Killam, who was involved in the investigation into negligence by Lt.-Gen. Leach, stating: “I don't doubt he [Lt.-Gen. Leach] read the [memo], ... After the news conference on 17 June [Trudel] tried to find the memo but it was no longer in the filing cabinet, ... I agree, that it looks like a cover-up.
”
Despite these assertions, LCdr. Moore did not recommend any charges be laid against Lt.-Gen. Leach, to the best of my knowledge LCdr. Moore did not even initiate an investigation into the possibility of a cover-up. LCdr. Moore's handling of this investigation appears to be in direct violation of QR&O 107.03.
It states that: “An investigation conducted pursuant to this chapter (Chapter 107) shall, as a minimum, collect all reasonably available evidence bearing on guilt or innocence of the person who is subject of the investigation.
”
On September 6, 2000, Ombudsman's investigators interviewed Commander Stephen Moore on audiotape in the 5th floor boardroom at 55 Murray Street. A copy of Captain Poulin's allegations was provided to Commander Moore prior to his interview.
The CFNIS report on its investigation into the alleged inaction by Lieutenant-General Leach concluded the following:
Although CAPT POULIN and MAJ LAVOIE stated that they recalled discussing the 9 Jul 96 memo with LGEN LEACH he is adamant that he never saw the memo and he stated that if he had seen it, he would have taken immediate action ... There is no evidence to support criminal or service offence charges against LGEN LEACH; however, this issue should be reviewed from an administrative perspective by the chain of command.
Royal Canadian Mounted Police Inspector Dan Killam, who was serving on secondment in 1998, and Sergeant Dave Cavasin of the CFNIS interviewed Lieutenant-General Leach. Lieutenant-General Leach did not dispute that the memorandum came into his office but he did not recall reading or seeing the document. Lieutenant-General Leach said he remembered the July 15, 1996 memorandum outlining the concerns about Colonel Labbé's administration of the CLFCSC and talking with Captain Poulin about that memorandum but not the July 9, 1996 memorandum that contained the allegations against Colonel Labbé.
Ombudsman's investigators interviewed Lieutenant-General Leach in his office on June 30 and July 10, 2000. He restated that he did not dispute that Captain Poulin's July 9, 1996 memorandum was delivered to his office but he did not remember reading it. He asserted, however, that if he had read such allegations he would have taken action. Lieutenant-General Leach recalled speaking with Major Lavoie and Captain Poulin about Captain Poulin's criticisms of the CLFCSC and said that he had been receptive to Captain Poulin's concerns because the CLFCSC was being closed while the curriculum was rewritten.
It is evident upon a review of the evidence that the July 9, 1996 memorandum was delivered to Lieutenant-General Leach's office while he was headquartered in St. Hubert, Quebec. As previously indicated, three witnesses are certain the memorandum containing allegations against Colonel Labbé was delivered to Lieutenant-General Leach's office. Captain Poulin states he hand-delivered the memorandum to Ms. Ginette Nault, Lieutenant-General Leach's secretary at the time. Ms. Nault told the CFNIS that she had received the memorandum and passed it on to Major Lavoie, Lieutenant-General Leach's former Executive Assistant. Major Lavoie and Captain Poulin both contend that they spoke with Lieutenant-General Leach on separate occasions about Captain Poulin's allegations regarding Colonel Labbé prior to the memorandum being written. Finally, Lieutenant-Colonel Trudel also confirmed to the CFNIS that Major Lavoie had shown him the memorandum, which was kept on file when he replaced Major Lavoie as Executive Assistant in 1997. Lieutenant-Colonel Trudel also stated that, when he checked for the memo after the June 17, 1998 press conference, it was no longer in the file.
Lieutenant-Colonel Jacques Tremblay was interviewed by Ombudsman's investigators by phone in Banja Luka, Croatia on July 24, 2000. Lieutenant-Colonel Tremblay was Captain Poulin's supervisor at the former Land Forces Headquarters in St. Hubert in 1996 and held the rank of Major at that time. Lieutenant-Colonel Tremblay is currently a public affairs officer with Public Affairs. Lieutenant-Colonel Tremblay stated he had a discussion with Captain Poulin about Colonel Labbé after Captain Poulin returned from the CLFCSC in 1996 but does not remember the memorandum. Lieutenant-Colonel Tremblay said he was involved in the Somalia aftermath at the time and stated that, if he had been shown a memorandum involving Colonel Labbé, he definitely would remember it. The diary entries Captain Poulin submitted to Ombudsman's investigators do not provide any record to support his assertion that he had shown his memorandum to Lieutenant-Colonel Tremblay.
Lieutenant-Colonel Réjean Duchesneau was interviewed by Ombudsman's investigators in the 5th floor boardroom at 55 Murray Street on June 22 and November 3, 2000. In 1996, Lieutenant-Colonel Duchesneau held the rank of Major and replaced Colonel Coleman as the head of public affairs for the army. Lieutenant Colonel Duchesneau stated he did not remember Captain Poulin's July 9, 1996 memorandum. The first time he became aware of the allegations regarding Colonel Labbé was at Lieutenant-General Leach's June 17, 1998 press conference.
Captain Poulin cites a number of statements allegedly made by Royal Canadian Mounted Police Inspector Killam in support of his allegation that Commander Moore failed to ensure individuals with relevant information were interviewed as part of the investigation he led. In his interview with Ombudsman's investigators, Royal Canadian Mounted Police Inspector Killam stated that he was misquoted by the reporter from the Kingston Whig-Standard and asserts that in his judgement, there were no reasonable or probable grounds to support the proposition that Lieutenant-General Leach had read the memorandum.
In his interview with Ombudsman's investigators, Commander Moore stated that, on conclusion of the CFNIS investigation, he consulted with the Office of the Judge Advocate General for an opinion. Based on the advice he received, he concluded that the CFNIS lacked the requisite reasonable and probable grounds to charge Lieutenant-General Leach with an offence.
Assessment
I am satisfied that Lieutenant-Commander Moore did not fail to ensure individuals with information relevant to the CFNIS investigation were questioned.
I have already provided my assessment, based upon my Office's investigation, which included a review of the CFNIS investigative file, that it is highly unlikely that Captain Poulin's July 9, 1996 memorandum containing allegations of misconduct against Colonel Labbé went unseen by Lieutenant-General Leach. However, a different standard is applied by a police agency in determining whether sufficient evidence exists to warrant laying charges. Pursuant to the Ministerial Directives for my Office, I am not mandated to review this discretion or to assess whether criminal or service-related charges are warranted against any individual. I will therefore refrain from discussing or making any findings on these issues.
Allegation 2: Delayed search for July 9, 1996 memorandum within the Office of the Chief of the Land Staff
Captain Poulin alleges:
A search for the July 9, 1996, memo was, according to documents released under ATI/Privacy conducted on or around September 14, 1998. This date represented almost three months from the time the memo had become public and the time a search was carried out in the CLS office.
In the course of their investigation, Ombudsman's investigators had access to and reviewed the entire CFNIS file related to the investigation into the allegations of inaction against Lieutenant-General Leach. The CFNIS investigation commenced on June 17, 1998. Lieutenant-General Leach was interviewed by CFNIS investigators on September 14, 1998, and a search of files at army headquarters was conducted on September 14, 1998.
The CFNIS investigators interviewed Lieutenant-Colonel Pierre Trudel, who replaced Major Lavoie as Executive Assistant to Lieutenant-General Leach in April 1997. Lieutenant-Colonel Trudel held the rank of Major at that time. While he recalled Major Lavoie showing him the memo that was held on file at that time, Lieutenant-Colonel Trudel could not recall any notation that would suggest whether Lieutenant-General Leach had read the memorandum. The notes by the CFNIS investigator record that then Major Trudel stated he had searched for the memorandum following the press conference of June 17, 1998, but it was no longer in the file.
In conducting their investigations, police must conform to legal requirements including those related to search and seizure and must also engage in a number of strategic and tactical decisions in order to ensure an investigation is conducted effectively and that the rights of individuals are respected as guaranteed under the Canadian Charter of Rights and Freedoms. In this particular case, Commander Moore maintains that the CFNIS delayed the search for the July 9, 1996 memorandum on the basis that there were insufficient grounds to obtain a search warrant. Ultimately the decision was made to obtain consent to search Lieutenant-General Leach's office.
Assessment
Although the search for the memorandum dated July 9, 1996 in the office of the Chief of the Land Staff was not conducted until September 14, 1998, there was other evidence available to the CFNIS to establish the existence of the memorandum and its presence within the office of the Chief of the Land Staff. I am not satisfied that any delay by the CFNIS in searching Lieutenant-General Leach's office during the course of the investigation prejudiced the outcome.
Allegation 3: Failure to pursue suggestions of interference with results of CFNIS investigations
Captain Poulin states in his written complaint:
On or around October 21, 1998, at approximately 09:30 hrs, I spoke with LCdr. Moore and informed him about the conversation I had had with Maj. Deschênes on or about October 19, 1998. Specifically, I informed him that Maj. Deschênes had told me that he had been privy to a conversation about the relevant NIS investigations between Maj.-Gen. Penney and Gen. Baril on or about October 16, 1998.
During that conversation, Maj. Deschênes told me he had interrupted the conversation because he felt uncomfortable with it. It was, in his words “bordering on obstruction of justice.
”
I voiced my concern to LCdr. Moore that the CDS, and the CRS would know the results of the NIS investigation relating to my memo dated July 9, 1996 even before the Provost Marshal had rendered his decision on the matter. LCdr. Moore concluded the conversation by saying that this whole incident was very “interesting.
”
On or around October 21, 1998, approximately late morning or early afternoon, Maj. Deschênes phoned me to say that he had received a phone call from LCdr. Moore and that it was absolutely essential that we meet. He would not elaborate over the phone but the time interval between his phone call and my previous phone call to LCdr.Moore suggested the timing was more than happenstance. (We eventually met on October 29, 1998).
On or around October 29, 1998, at approximately 14:00hrs, following a meeting we had had with Lt.-Col. [David] Moore, Maj. Deschênes took me aside and said there may have been a misunderstanding about our (his and mine) conversation held on or about October 21, 1998. He now said that he had never been in a meeting between himself, Maj.-Gen. Penney and Gen. Baril on Friday on or about October 16, 1998.
Rather, he had been in a meeting with Maj.-Gen. Penney and Col. Maillet on or about October 16, 1998. During that meeting Maj.-Gen. Penney and Col. Maillet were discussing the results of both of my National Investigative Services criminal investigations. Nevertheless, from my perspective, we still had a case where senior officers could be perceived as potentially influencing or derailing the relevant NIS investigations.
Maj. Deschênes, who is a military policeman by trade, told me he had interrupted the conversation because it was, in his own words “bordering on obstruction of justice.
” After all, he continued, the people in this meeting knew the results even before the provost marshal had officially rendered her decision on the two investigations (the decision on both investigations were made public October 26, 1998).
By the same token, LCdr. Moore's actions contradicted the then Col. Samson's memo (5000-1 (DPM PS) dated April 30, 1998, on violation of trust policy. It states “... those holding such powers (i.e. MP) must abide by a professional code of conduct that is in addition to and higher than the CF ethos and ethics that apply to all CF members.
”
Moreover, “... the violation of the trust by a CF member would be grounds for dismissal from the CF as well as those who lose their professional credentials (i.e. MP) can expect to be released from the CF.
”
Commander Moore acknowledged that he had spoken with Captain Poulin on October 21, 1998 regarding a conversation Captain Poulin had with Lieutenant-Colonel Deschênes on October 19, 1998. Captain Poulin informed Commander Moore of a conversation that Lieutenant-Colonel Deschênes reported to have witnessed between General Maurice Baril, the Chief of the Defence Staff, and Major-General Penney, the Chief of Review Services. Captain Poulin alleged that then Major Deschênes had described the nature of General Baril and Major-General Penney's conversation as a potential obstruction of justice relating to the CFNIS investigations.
Commander Moore stated he confronted Lieutenant-General Deschênes with this information the day Captain Poulin brought it to his attention. Commander Moore related that Lieutenant-Colonel Deschênes replied that he did not know what Commander Moore was referring to and that he had never attended such a meeting.
On August 1, 2000, Ombudsman's investigators interviewed Lieutenant-Colonel Deschênes on audiotape in his office at 101 Colonel By Drive. At that time, Lieutenant-Colonel Deschênes was a Senior Analyst with Special Examinations and Inquiries, a section within the office of the Chief of Review Services, and held the rank of Major.
Lieutenant-Colonel Deschênes indicated his first meeting with Captain Poulin was on October 19, 1998 at 1315 hours. This is corroborated by the diary notes of both Lieutenant-Colonel Deschênes and Captain Poulin. The purpose of the meeting was to inform Captain Poulin his office would be conducting an administrative inquiry into allegations of reprisal contained in Captain Poulin's speaking notes which he sought to present at the 1998 Defence Ethics Conference. Lieutenant-Colonel Deschênes related that he told Captain Poulin the administrative inquiry would commence only after the conclusion of the CFNIS investigations into the allegations against Colonel Labbé and Lieutenant-General Leach.
Lieutenant-Colonel Deschênes confirmed to Ombudsman's investigators that he had informed Captain Poulin there had been a discussion involving himself, Major-General Penney and Colonel Maillet as to when the administrative inquiry would commence. As Lieutenant-Colonel Deschênes recalled, Major-General Penney wanted the inquiry to commence immediately but Lieutenant-Colonel Deschênes informed him the inquiry by the Chief of Review Services could not begin until the CFNIS investigations were completed. Lieutenant-Colonel Deschênes speculated that it was this information that Captain Poulin had characterized as an “obstruction of justice.
”
Lieutenant-Colonel Deschênes stated he spoke with Captain Poulin on October 29, 1998 to clarify this misunderstanding. This is corroborated by Captain Poulin's diary entry, which records this explanation.
Assessment
This allegation appears to be based on a misunderstanding that occurred between Captain Poulin and Lieutenant-Colonel Deschênes, formerly a Senior Analyst with Special Examinations and Inquiries, a section within the office of the Chief of Review Services. In my view, it is likely that Captain Poulin's perception that an obstruction of justice may have occurred was based on Lieutenant-Colonel Deschênes' comment that it would be inappropriate to commence an administrative inquiry while the CFNIS investigations were still progressing. This comment was consistent with Lieutenant-Colonel Deschênes' role within Special Examinations and Inquiries which was, in part, to ensure administrative inquiries do not encroach upon ongoing service-related or criminal investigations.
My investigators also carefully reviewed the entire contents of the CFNIS investigative files in relation to the investigations into the allegations against both Colonel Labbé and Lieutenant-General Leach. I am satisfied there was no evidence in either file to suggest that any member of the CF chain of command, including Major-General Penney and General Baril, interfered with the ongoing CFNIS investigations or influenced their conclusions.
Allegation 4: Missing time period on CFNIS videotape of interview with Captain Poulin on June 22, 1998
Captain Poulin alleges:
On or around December 15, 1998, at approximately 13:52 hrs, I received an e-mail from Sgt. Duncan. In his e-mail, Sgt. Duncan stated: “In conversation with LCdr. Moore OC CFNIS CR he advised me that he will need more specifics as to times when the video tape was not working. I will leave it to you to take the necessary steps to satisfy those concerns.
”
On December 16, 1998, at approximately 10:49 hrs, I wrote and submitted an e-mail to LCdr. Moore, as directed by Sgt. Duncan, giving specific details about the missing ten minutes from the videocassettes to no avail. LCdr. Moore never responded to my request.
This allegation relates to concerns that arose after Captain Poulin reviewed a copy of his videotaped statement to CFNIS investigators. Captain Poulin expressed concern that 10 minutes of interview time appeared to be missing from the interview tape and requested information in relation to this missing video footage. At the time, the Deputy Provost Marshal Professional Standards had asked Captain Poulin to provide further information to develop his military police complaints against members of the CFNIS in relation to his concerns that the investigations into the allegations against Colonel Labbé and Lieutenant-General Leach were inadequate.
On November 18, 1998, Captain Poulin initiated a complaint against then Lieutenant-Commander Moore (and other CFNIS investigators) through the Deputy Provost Marshal Professional Standards. The professional standards investigation into Captain Poulin's allegations against Commander Moore was assigned to Sergeant Bruce Duncan of the Royal Canadian Mounted Police, who was seconded to the Deputy Provost Marshal Professional Standards at that time. During his interview with the Ombudsman's investigators, Commander Moore stated that once Captain Poulin had submitted the military police complaint about him, any subsequent communications he would have with Captain Poulin were made through Sergeant Duncan.
The Ombudsman's investigators asked Commander Moore about the alleged missing portion of Captain Poulin's videotaped interview. He responded that he had reviewed the videotapes and recalls that they had experienced some technical problem with the camera but was adamant there was no part of the interview with Captain Poulin missing from the video. Commander Moore stated that he had responded to a query from Sergeant Duncan because by that time he was not dealing with Captain Poulin's case.
Ombudsman's investigators collected a copy of the videotapes held by Captain Poulin as well as a copy of the original tape held by the CFNIS. These videotapes record the CFNIS interviews conducted with Captain Poulin and his assisting officer, Lieutenant-Colonel David Moore, on June 22, 1998. The pertinent interview is identified in Captain Poulin's December 13, 1998 diary notes, in which he records that “[t]en minutes are missing from the tape between 11:40 hrs - 11:50 hrs on 22 June 1998.
”
My investigators viewed these videotapes. The first videotape ends at 1140 hours when CFNIS investigators Captain Garrick and then Lieutenant-Commander Moore are questioning Captain Poulin in connection with his concerns about Colonel Labbé's Performance Evaluation Report and about General Baril. Captain Poulin raises a question about the date of Colonel Labbé's Performance Evaluation Report and Lieutenant-Commander Moore responds “11 June 98" and the recording ends. The second video cassette begins at 11:50 hours with Captain Poulin's assisting officer, Lieutenant-Colonel David Moore, commenting
” ... during the break ... “and the interview resumes discussing General Baril.
”
Captain Garrick's notebook entry of this interview records “1140 hours - tape change; break taken. Back in @ 1149.
” Similarly, Lieutenant-Commander Moore's notebook entry of 22 June 1998 records “1145 break; 1154 recommenced interview.
” While there appears to be some discrepancy between the watch settings of the investigators, the interview proceedings describe the identical time interval for the break.
Assessment
While there is a 10-minute time period which is not recorded, the interval is clearly attributable to the original recording reaching the end of the video cassette - a natural place for a break in the interview. When the interview resumed 10 minutes later, the first comment on the tape is from Lieutenant-Colonel David Moore who prefaces his comments with “... during the break ...
” I am not satisfied that there was any failure on the part of the CFNIS investigators to properly record this portion of Captain Poulin's interview.
Allegation 5: Failure to commence CFNIS investigation into harassment or reprisals
Captain Poulin states in his written complaint:
On or around July 29, 1998, during my NIS interview, I stated to the NIS investigators that I was being intimidated to the point of harassment and that I felt that there were reprisals being taken against me. One of the NIS investigators responded stating words to the effect that investigating any harassment or reprisals against me was not part of their mandate. His inaction was also in direct violation of QR&O 107.02(1).
It states that: “Where a complaint is made or where there are other reasons to believe that a service offence may have been committed, an investigation should normally be conducted as soon as practical to determine whether there is sufficient grounds to justify the laying of charges.
”
Commander Moore stated that he discussed Captain Poulin's complaints of harassment and retaliation with him and advised him that military police policy does not allow for the investigation of harassment complaints. Commander Moore also related to Ombudsman's investigators that he informed Captain Poulin that the CFNIS was receptive to any information he wished to provide as it could prove relevant to its ongoing investigations into alleged criminal or service-related offences. Commander Moore recalled that he had spoken at length with Captain Poulin about his concerns and advised him to utilize the existing CF mechanisms in place to deal with harassment.
Commander Moore provided Ombudsman's investigators with a copy of CF Administrative Order 22-4, Security and Military Police Services, Prohibitions 12 a (i) that outlines in part that Military Police are precluded from investigating complaints of harassment.
Assessment
Lieutenant-Commander Moore's referral of Captain Poulin to existing internal CF mechanisms to deal with his complaints of harassment and retaliation was in accordance with existing CF military police policy. I am satisfied that he took adequate steps to ensure Captain Poulin was aware of the appropriate mechanisms and corresponding authority to deal with harassment complaints.
I also note from other aspects of Captain Poulin's complaint and his discussions with other members of the CF that he appeared to have been informed of his rights in relation to harassment and of the mechanisms available to him to pursue such complaints should he wish to do so. Captain Poulin's specific allegations of harassment and retaliation relating to his experiences in the workplace at the Media Liaison Office in Public Affairs are dealt with in Part Three of this report.
Allegation 6: Failure to pursue CFNIS investigation into complaint about leaked personal information
Captain Poulin states in his written complaint:
On or around June 22, 1998, during my interview with the NIS, I reported that a senior Col. at NDHQ had leaked information regarding my medical file to several journalists and perhaps even Col. (Ret'd) M. Drapeau. No separate NIS investigation was ever conducted into this matter nor did the NIS ever inform me of any results regarding this issue (if it had been investigated at all).
In contrast, the Hon A. Eggleton assured the public that BGen. Samson will “... make sure that there is a full and proper investigation conducted and that is underway ...
” regarding the leak of medical documents on Private (ret'd) Ann Margaret Dickey by unknown military sources on or around June 12, 1998. (Ottawa Sun, June 17, 1998, p. 8).
Again, L.-Cdr. Moore's inaction was in direct violation of QR&O 107.02(1). It states that: “Where a complaint is made or where there are other reasons to believe that a service offence may have been committed, an investigation should normally be conducted as soon as practical to determine whether there is sufficient grounds to justify the laying of charges.
”
During his interview with Ombudsman's investigators on September 6, 2000, Commander Moore recalled that Captain Poulin had related information to him about being involved in a vehicle accident in April 1986.
Captain Poulin alleged that this information was leaked to members of the media by a senior officer at National Defence Headquarters (NDHQ) to provoke questions about Captain Poulin's mental stability. Captain Poulin related that he was questioned about the incident by Scott Taylor of Esprit de Corps, Jason Brown of the Ottawa Citizen and David Gamble of Southam News. Captain Poulin could not, however, refer Ombudsman's investigators to any specific media coverage or news source where the information was published.
On July 13, 2000, Ombudsman's investigators interviewed Scott Taylor in his office at Somerset Street West, Ottawa in relation to the alleged leak of the medical information about Captain Poulin's accident. Mr. Taylor said the source of the July 9, 1996 memo was anonymous but Colonel (Retired) Michel Drapeau* had received the call about Captain Poulin's accident.
On July 17, 2000, Ombudsman's investigators interviewed Mr. Michel Drapeau by phone about the source of the information relating to Captain Poulin's accident. Mr. Michel Drapeau stated that the source of the medical information was a colonel or above within NDHQ but, when asked, refused to identify the individual.
Captain Poulin's medical file contains information relating to treatment he received subsequent to this accident. The medical file is held at National Defence Medical Centre and Ombudsman's investigators were able to review it only after showing Captain Poulin's written consent to the Medical Records Supervisor. They did not find any evidence on this file to suggest that any personal or medical information from it had been improperly disclosed.
Information relating to Captain Poulin's involvement in a traffic accident is also contained in Captain Poulin's military personnel file. While this file is accessible to Captain Poulin's chain of command, it did not contain any medical information relating to Captain Poulin but was limited to a report of the traffic accident and a copy of a traffic citation. CF document transit receipts confirm that Captain Poulin's personnel file was forwarded from CF Support Unit (Ottawa), Personnel Support Centre on June 25, 1998 to the attention of the Administration Officer for Public Affairs. Again, no evidence was uncovered that the file had been used as a source for the disclosure of any personal information.
Assessment
Allegations that medical or other personal information of CF members has been leaked to the public should be treated as serious and investigated wherever possible. This is particularly true in cases where it is suggested that the information was leaked as an act of retaliation or reprisal for bringing forward a complaint. Commander Moore indicated in his response to the interim report that, during an interview on 22 June 1998, Captain Poulin told him of finding on the answering machine at his home, messages from two journalists who claimed that anonymous sources at NDHQ had told them about the traffic accident.
Commander Moore explained that no investigation was conducted into these anonymous “tips
” because it was not clear that Captain Poulin was making a complaint that he felt should be investigated. Furthermore, Commander Moore believed that Captain Poulin was complaining that his information was false information, not leaked information. Commander Moore was of the view that the circulation of rumours did not constitute an offence within the mandate of the CFNIS, although he did see it as an ethical issue that could warrant further scrutiny. He advised my investigator that if Captain Poulin had been as clear to the CFNIS as he was to the Ombudsman's Office investigators that he believed an offence to have taken place, he would have been provided with a clear explanation as to why the incident was not within the mandate of the CFNIS. I accept Commander Moore's explanation. This was a case of miscommunication. Notwithstanding this explanation, Captain Poulin was left with the impression that the CFNIS was not interested in protecting him.
Ombudsman's recommendation
I therefore recommend that:
5. The Canadian Forces National Investigation Service provide to Captain Poulin, in writing, confirmation of its decision not to investigate his complaint that his personal information was leaked to the media in June 1998, including an explanation as to why this matter falls outside of the mandate of the Canadian Forces National Investigation Service.
An initial review by my office of Captain Poulin's medical and personnel files did not disclose evidence that information had been leaked. There may, however, be further investigative avenues to be pursued on this issue. As a follow-up to this recommendation, my investigators will meet with Captain Poulin to explore whether he wishes my Office to further investigate and pursue the ethical and administrative aspects of his complaint regarding improper leaking of information to the media.
G. Allegations against Lieutenant-Colonel Paul Cloutier
Captain Poulin's complaint against Lieutenant-Colonel Cloutier, the former Deputy Provost Marshal Professional Standards, stems from Captain Poulin's dissatisfaction with the way his military police complaints dated November 18 and November 30, 1998 were handled.
Ombudsman's investigators interviewed Lieutenant-Colonel Cloutier in the 5th floor boardroom of 55 Murray Street on December 8, 2000. Prior to this interview, Lieutenant-Colonel Cloutier was first contacted by telephone on September 21, 2000, while he was serving on deployment in Bosnia. During the telephone conversation, the Ombudsman's investigator informed Lieutenant-Colonel Cloutier of the allegations against him and inquired as to the best method to facilitate delivery of a copy of the allegations against him so he could be interviewed upon his return. Lieutenant-Colonel Cloutier declined the opportunity to make any comments until he returned to Canada, as he needed to review the files held in his former office. Lieutenant-Colonel Cloutier informed the investigator that he would return to work in Canada on December 4, 2000 and would require an opportunity to review files contained in his former office before he could participate in an interview.
On December 5, 2000, the investigator contacted Lieutenant-Colonel Cloutier and a copy of the allegations was forwarded to him. Lieutenant-Colonel Cloutier subsequently confirmed receipt of the allegations and on December 7, 2000, contacted the investigator to advise that he was prepared to be interviewed.
Ombudsman's investigators also obtained a copy of the Professional Standards file that pertains to Captain Poulin's complaints. Captain Poulin's military police complaints dated November 18, 1998 were against three of the CFNIS investigators assigned to examine the allegations against Colonel Labbé and the alleged inaction of Lieutenant-General Leach. The investigators named in Captain Poulin's military police complaints are Warrant Officer MacFarlane, Captain Garrick and then Lieutenant-Commander Moore. The fourth complaint, also dated November 18, 1998 named Brigadier-General Patricia Samson, then CFPM, presumably in light of the role that she played as head of the CFNIS.
The complaint against each military police officer is examined in the section within this report that pertains to the individual named. Accordingly, this section only addresses the process followed in consideration of Captain Poulin's military police complaints and the Professional Standards section's handling of this complaint.
Captain Poulin subsequently submitted a fifth military police complaint dated November 30, 1998. This complaint named Lieutenant-Colonel Cloutier and his immediate superior, the CFPM, then Colonel Samson, for the manner in which Captain Poulin's original military police complaints dated November 18, 1998 were handled.
Lieutenant-Colonel Cloutier responded in writing to the relevant portions of the interim report on March 12, 2001. The recently appointed CFPM, Colonel Dot Cooper, also responded to this portion of the interim report in her response dated March 21, 2001. Their comments in relation to the relevant portions of the interim report have been carefully reviewed and clarifications have been made to this final report where appropriate.
Lieutenant-Colonel Cloutier's questions concerning the jurisdiction of this Office in reviewing complaints about the conduct of the Military Police and the process followed in this case, which are identical to those raised by Colonel Cooper, are dealt with elsewhere in this report.
Chronology of events surrounding handling of Captain Poulin's military police complaints
Before examining the allegations contained in Captain Poulin's complaints in relation to Lieutenant-Colonel Cloutier and the handling of the military police investigations, it is helpful to review briefly the events that took place during the consideration of the complaints and their ultimate disposition by CF authorities.
Upon receipt of Captain Poulin's complaints dated November 18, 1998, Lieutenant-Colonel Cloutier observed that two of the complaints named his direct supervisor, the CFPM, as a subject. Relying on military police policy, which requires complaints about the conduct of the CFPM to be referred to the Chief of the Defence Staff, Lieutenant-Colonel Cloutier forwarded these two complaints, together with the remaining complaints about CFNIS investigators, to the Acting Chief of the Defence Staff, on the basis that all complaints should be dealt with together since they were all submitted by the same individual and all involved the same CFNIS investigations.
The complaints that were referred to the Acting Chief of the Defence Staff were reviewed by the former Executive Assistant to the Chief of the Defence Staff, Brigadier-General Lise Mathieu, who held the rank of Colonel at that time. Then Colonel Mathieu proceeded to seek an opinion from the Office of the the Judge Advocate General regarding whether the complaints should be addressed by the Chief of the Defence Staff; in her view, the Summary of Incident portion of the complaints did not indicate any direct involvement by the CFPM.
Commander S. J. Blythe, Special Advisor to the Judge Advocate General, responded to then Colonel Mathieu in a memorandum dated November 26, 1998 with the following advice:
It seems highly significant that, although the CFPM is listed in the Military Police Members involved portion of 2 of the complaints, there is nothing in either of the Summary of Incident portions of those complaints to suggest what she might have done wrong ...
The best course of action would be to ask DPM PS to contact the complainant and ask him to confirm that the complaint is indeed against the CFPM's action or inaction and if so, to describe what action or inaction is being complained about.
If the complainant does have some action or inaction on the part of the CFPM that he wishes investigated, then I would support DPM PS' course of action.
In a letter dated December 7, 1998 addressed to Captain Poulin and each subject of his November 18, 1998 complaints, Lieutenant-Colonel Cloutier advised all parties that:
The Chief of the Defence Staff has requested that the complainant be contacted to clarify the allegations and the subject members contained in Captain Poulin's Military Police Complaints (4) dated 18 November 1998. I have therefore directed Sgt (RCMP) Duncan NCM IC Professional Standards Investigation Section, to contact the complainant for this purpose.
Sergeant Bruce Duncan was an investigator seconded from the Royal Canadian Mounted Police to the CFNIS, who reported directly to the Deputy Provost Marshal Professional Standards, Lieutenant-Colonel Cloutier.
Ultimately, Lieutenant-Colonel Cloutier dismissed Captain Poulin's military police complaints. In his letter to Captain Poulin, Colonel Samson and General Baril, the Chief of the Defence Staff, dated January 22, 1999, Lieutenant-Colonel Cloutier stated the following:
Based on the lack of information provided by the complainant and that he has failed or refused to provide additional information to enable an investigation to be conducted, I must classify this complaint as vexatious. Vexatious is defined as ... complaint that is one of a number of unsubstantiated complaints from the same person, all of which share a common theme.
Allegation 1: Improper procedures followed for the proposed investigation of Captain Poulin's complaints
Captain Poulin states in his written complaint to the Ombudsman's Office:
On or around November 24, 1998, Lt.-Col. Cloutier, the Deputy Provost Marshal Professional Standards wrote and submitted a letter (2120-20-2-3/TD 069-98 (DPM PS)) addressed to me. Lt.-Col. Cloutier acknowledged receipt of my four Military Police Public Complaints (dated November 18, 1998).
His correspondence led me to believe that he would be involved in investigating the actions of the then Col. P. Samson, the Canadian Forces Provost Marshal, who had real and apparent authority over him.
Captain Poulin also expresses concern that:
In this same letter (2120-20-2-3/TD 069-98 (DPM PS)) Lt.-Col. Cloutier cited Bill C-25 as an authoritative document legitimizing his section's role in investigating my NIS complaints process and to help assuage any of my concerns of conflict of interest. Bill C-25, however, had not been passed by Parliament nor had it received Royal Ascent.
Bill C-25 received Royal Assent on December 10, 1998, at approximately 20:00 hrs and only on August 26, 1999 did DND/CF produce CDS 066 / CANFORGEN 075/99 stating that the provisions of Bill C-25 that pertain to military justice would become effective September 1, 1999. Perhaps of greater concern was Sgt. Duncan's own assertion on or around December 14, 1998, that Bill C-25 was being used by DPM PS although the Bill had not received the “force of law.
”
Lieutenant-Colonel Cloutier informed Ombudsman's investigators that, upon receipt of Captain Poulin's military police complaints dated November 18, 1998, he recognized he would be precluded from investigating two of the complaints because they listed his immediate superior, the CFPM, as a subject.
Pursuant to military police policy, Lieutenant-Colonel Cloutier submitted Captain Poulin's military police complaints to the Acting Chief of the Defence Staff, Vice-Admiral Gary Garnett, along with a letter indicating that:
Although the CDS is only responsible for complaints about the CFPM, in this case it may be more appropriate, from ... investigative and accountability point of views, if all four complaints were investigated as one unit. This recommendation is made since all complaints are by the same individual, and they all relate to the same CFNIS investigation and associated press releases. As Deputy Provost Marshal Professional Standards (DPM PS) I cannot action nor respond to two of the complaints at ref. D therefore they are all forwarded for your actions/directions.
On November 24, 1998, Lieutenant-Colonel Cloutier wrote a letter to Captain Poulin, informing him of the applicable policy and procedures for the investigation of his complaints. The last line of the correspondence also advises that the complaints had been forwarded to the Acting Chief of the Defence Staff for action.
Captain Poulin also objects to the Deputy Provost Marshal's reliance upon Bill C-25 as the basis for the procedure to deal with his military police complaints in November 1998 because Bill C-25 was not given the force of law until September 1, 1999. Bill C-25 created legislative reforms relating to internal oversight of the Military Police.
In his interview with Ombudsman's investigators, Lieutenant-Colonel Cloutier indicated that the procedures for dealing with Captain Poulin's complaints were contained in the Military Police Policy Bulletin 7/98, issued on October 13, 1998. This bulletin was intended to establish internal procedures consistent with those contained in Bill C-25 to ensure that military police complaints were dealt with in accordance with due process until the provisions of Bill C-25 came into effect.
Assessment
I am satisfied that the letter written by Lieutenant-Colonel Cloutier to Captain Poulin on November 23, 1998 demonstrated that Lieutenant-Colonel Cloutier requested the office of the Chief of the Defence Staff to handle all of Captain Poulin's complaints about the CFNIS including those pertaining to the CFPM.
I am also satisfied that the decision to incorporate the spirit and intent of the provisions of Bill C-25 into military police policy prior to Bill C-25 taking legal effect was not an arbitrary or improper exercise of discretion. Although Bill C-25 had not attained the force of law at the time, there was nothing to prevent the CF from establishing internal review procedures for complaints that were intended to reflect the procedures and safeguards inherent in Bill C-25.
Allegation 2: Improper selection of proper authority to investigate Captain Poulin's military police complaints
Captain Poulin states in his written complaint to the Ombudsman's Office:
Lt.-Col. Cloutier did not follow either VCDS 083 / CANFORGEN 100/99 dated October 16, 1997 nor 2120-20-0 (DPM PS) dated July 20, 1998. These documents listed, in priority, a series of agencies that are supposed to conduct investigations into Interim Military Police Public Complaints (par. 12). In order, they are:
a) The CFNIS (criminal);
b) CFNIS jointly with an appropriate civilian police force (criminal);
c) Civilian police (criminal); and
d) Deputy Provost Marshal Professional Standards 4 (DPM PS 4) (conduct while discharging Police duties/functions).
My November 18, 1998, Interim Military Police Public complaints precluded options (a) and (b) because my complaints involved the CFNIS (criminal) as well as a member of the RCMP (Inspector D. Killam) who was part of the subject investigation into my memo dated July 9, 1996. The next logical step, according to 2120-20-0 (DPM PS) dated July 20, 1998, would have been to follow option (c) and not option (d).
Lieutenant-Colonel Cloutier further states that the document dated July 20, 1998 (2120-20-0 DPM PS), “Interim Policy on Internal Affairs Investigations and Complaints About or by Military Police
” that Captain Poulin quotes in his allegation, was a draft policy. The policy regarding internal affairs investigations and complaints about or by Military Police was finalized and issued by the Chief of the Defence Staff on October 13, 1998. Lieutenant-Colonel Cloutier relied upon the latter as the basis for his decision to task Sergeant Duncan to contact Captain Poulin and obtain further information clarifying the allegations and the subjects of his complaints.
The policy issued by the office of the Chief of the Defence Staff on October 13, 1998 indicates that:
Depending on the circumstances of a complaint, one of the following organisations will normally be tasked with the investigation:
a) the Canadian Forces National Investigation Service (CFNIS) for criminal and service offences;
b) Canadian Forces National Investigation Service jointly with an appropriate civilian police force for criminal offence;
c) Civilian police for criminal offences;
d) The directorate of the Deputy Provost Marshal Professional Standards for MP professionalconduct while performing MP policing duties or functions; or
e) The directorate of the Deputy Provost Marshal Professional Standards for interference in MP investigation (until the MPCC is established).
Assessment
Both the draft policy and the finalized policy dated October 13, 1998, were carefully reviewed in the preparation of this report. Neither policy dictated an order of priority for assignment of complaints. Rather, each policy appears to afford discretion as to which agency is selected, depending upon the circumstances of the complaint.
After receiving Captain Poulin's complaints back from the office of the Chief of the Defence Staff, Lieutenant-Colonel Cloutier tasked Sergeant Bruce Duncan, a Royal Canadian Mounted Police officer seconded to his staff, to obtain the required clarification from Captain Poulin. It is clear from the chronology of events, and from the direction provided by the Chief of the Defence Staff's office, that Sergeant Duncan was assigned to seek clarification of Captain Poulin's complaints, not to begin an investigation.
The intention of the direction to solicit clarification of Captain Poulin's complaints was to determine what agency should properly address Captain Poulin's complaints. As such, it is my view that Lieutenant-Colonel Cloutier's handling of Captain Poulin's complaints was not inconsistent with the military police procedures nor was it an unreasonable exercise of his professional discretion.
Allegation 3: Failure to grant Captain Poulin's request to delay military police complaints proceedings and dismissal of these complaints
Captain Poulin states in his written complaint to the Ombudsman's Office:
On or around December 7, 1998, Lt.-Col. Cloutier wrote and submitted a memo (2120-20-2-3/TD 069-98 (DPM PS) addressed to me stating: “The complainant (Capt. Poulin) has requested access to the video tapes of his interviews with CFNIS CR. Once these tapes have been provided by the OC CFNIS CR arrangements will be made for a meeting.
” This understanding was later contradicted by Lt.-Col. Cloutier's statement on or around December 10, 1998.
On or around December 10, 1998, at approximately 15:36hrs, I received an info copy of Lt.-Col. Cloutier's robust and intimidating e-mail from him to Sgt. Duncan concerning my Interim Military Police Public Complaints and my desire to seek legal counsel at public expense.
Essentially, Lt.-Col. Cloutier's e-mail ordered Sgt. Duncan to “Call Capt. Poulin and tell him that I have read his e-mail and find it unacceptable ... Capt. Poulin has been provided with the material he requested to help him clarify his complaints; now we must proceed with the MP complaint process.
”
During his interview with Ombudsman's investigators, Lieutenant-Colonel Cloutier related that Royal Canadian Mounted Police officer Sergeant Duncan was assigned to handle Captain Poulin's complaints, which required further clarification before the matter could be assigned for investigation. Lieutenant-Colonel Cloutier recalled that Sergeant Duncan had informed him that Captain Poulin seemed to be having difficulties articulating clearly what and whom he wished to complain about without the help of copies of some videotapes recorded during the earlier investigations by the CFNIS. Lieutenant-Colonel Cloutier stated he was aware Sergeant Duncan expedited the provision of the copies of the videotapes to Captain Poulin. Captain Poulin's diary entry for December 7, 1998 confirms that he had been supplied with copies of his video testimony as requested so he could articulate his complaints. Notes taken by Sergeant Duncan, plus copies of many e-mails between Sergeant Duncan and Captain Poulin, record Sergeant Duncan's extensive efforts to have Captain Poulin clarify his complaints.
On December 10, 1998, Captain Poulin sent an e-mail to Sergeant Duncan, indicating as follows:
... I have also received another memorandum from the CRS dated 8 December 1998. As a result, I am requesting permission from CRS to instruct [a lawyer] at public expense. Seen from this perspective, I am sure you understand that I wish to wait until I have spoken with my lawyer before moving forward with the CRS administrative investigation or your investigation into my complaints.
When Sergeant Duncan brought this information to the attention of Lieutenant-Colonel Cloutier, Lieutenant-Colonel Cloutier responded with what Captain Poulin describes as a "robust and intimidating email." It stated:
Call Capt. Poulin and tell him that I have read his email and find it unacceptable. Your meeting with him is not to conduct an investigation but rather it is for him to clarify and for us to understand his four and perhaps his fifth complaints he has made against the Military Police. Once these complaints have been clearly articulated and they are understood by us, a decision [will] be made about the subsequent investigation.
Captain Poulin has been provided with the material he requested to help him in clarifying his complaints; now we must proceed with the MP complaint process. To help Capt. Poulin understand the need to proceed immediately, explain to him the time lines we must work under as directed by Bill C-25. There is now a series of people who have been informed, as required by Bill C-25 that complaints have been lodged against them. They too are entitled to a speedy and complete investigation.
Lieutenant-Colonel Cloutier also stated that at the time they were:
... following Bill C-25 ... we have to be transparent and we have to be accountable ... We also must do everything we can to help the complainant but we must also ensure that the subject of the investigation of the complaints do not become victims themselves.
Lieutenant-Colonel Cloutier related to Ombudsman's investigators that, although Bill C-25 had not yet been passed, the CF had adopted a policy effective October 13, 1998 that mirrored the procedures outlined in Section 250 of Bill C-25. His decision to have Sergeant Duncan inform Captain Poulin that his request for a delay was not granted and that his complaints would proceed, was premised on the spirit and intent of Bill C-25. These procedures emphasized the need to deal with complaints and to inform complainants and subjects of complaints of the results as soon as practicable.
As previously noted, Lieutenant-Colonel Cloutier dismissed Captain Poulin's military police complaints as "vexatious" based on the lack of clarification from Captain Poulin to enable an investigation to be conducted. His decision was related to Captain Poulin in his letter dated January 22, 1999.
Assessment
My investigators reviewed copies of Captain Poulin's complaints dated November 18 and 30, 1998. From reading Captain Poulin's Summary of Incident and the specific allegations listed against the military police members, it is not evident what action or omission Captain Poulin is complaining about. It should be noted that Captain Poulin was not an unsophisticated complainant and clearly had detailed knowledge of the matters investigated by the CFNIS. I am satisfied that the request for clarification of the allegations was not unreasonable, particularly in light of the nature and complexity of the incidents giving rise to them and the seriousness of the allegations themselves.
It is clear from the evidence my investigators collected that Sergeant Duncan attempted to facilitate Captain Poulin's response to the request for clarification of his allegations on behalf of the Deputy Provost Marshal Professional Standards. It should be noted that the purpose of the process at that stage was to obtain clarification of the allegations so the proper decisions could made as to how the investigation should proceed and who should be tasked with the investigation, pursuant to the recommendations of the office of the Chief of the Defence Staff. Captain Poulin sought to have this process put on hold.
It is clear from the evidence reviewed that the complaints had not proceeded to a full investigation and that Captain Poulin was not being asked to respond to or participate in a formal investigation at that stage. I am not satisfied that Captain Poulin required legal representation to respond to the request for clarification. It is also noteworthy that Captain Poulin's request for funding for legal representation from the CF was not ultimately granted.
I am satisfied that Lieutenant-Colonel Cloutier's denial of Captain Poulin's request to delay moving forward with his military police complaints was not an unreasonable exercise of his discretion in this circumstance, particularly in light of the desire to deal with such complaints in a timely fashion, to the benefit of all parties.
After instructing Sergeant Duncan to inform Captain Poulin that the complaints process would proceed, Lieutenant-Colonel Cloutier ultimately dismissed Captain Poulin's complaints as “vexatious
” based on the lack of further clarification from Captain Poulin to enable an investigation to be conducted. Lieutenant-Colonel Cloutier indicates in his dismissal of the complaints that vexatious is defined "as a complaint that is one of a number of unsubstantiated complaints from the same person, all of which share a common theme."
It should be noted that, in the interim military police policy on complaints dated 13 October 1998, the term “vexatious
” was given the specific meaning that is described in the notice rejecting Captain Poulin's complaints. Moreover, that definition provides the basis for summary dismissal. As indicated, the discretion to summarily reject Captain Poulin's complaints of 18 November 1998 was not inappropriate for the reason provided; that is, Captain Poulin had not provided the specific information sought. It was not evident what action Captain Poulin was complaining about. Efforts made to obtain further particulars failed to produce results. Nevertheless, it is my view that the use of the term “vexatious,
” even if it is employed consistent with military police policy and even if it is defined in the notice, was inflammatory and counterproductive. In the interests of defusing a volatile situation, I recommended in my interim report that the Deputy Provost Marshal Professional Standards re-issue the official letter dismissing Captain Poulin's military police complaints removing reference to the word “vexatious.
” Both Lieutenant-Colonel Cloutier and the newly appointed CFPM, Colonel Cooper, declined to accept that recommendation.
Notwithstanding their opposition, it is my view that the use of the term “vexatious
” to describe Captain Poulin's complaints could serve only to exacerbate the frustration that Captain Poulin had experienced from the outset in having his initial complaints considered. That term, in its ordinary use, connotes or suggests that the complaints were not serious ones but were intended to annoy and harass the subjects of the complaints.
“Vexatious
” is defined by Merriam-Webster's Dictionary of Law, 1996 as “lacking a sufficient ground and serving only to annoy or harass when viewed objectively.
” The Concise Oxford Dictionary defines “vexatious
” as “causing annoyance or worry.
” Accordingly, despite the definition provided by Lieutenant-Colonel Cloutier in his letter to Captain Poulin, the term “vexatious
” creates the impression that Captain Poulin put forward the matter, not only with insufficient information, but for no other purpose than to annoy or harass.
There is no basis for concluding that Captain Poulin was simply intending to harass or annoy. He believed that he had grounds to complain, yet he acted as he did because he had lost faith in the complaints process. While Lieutenant-Colonel Cloutier cannot be faulted for adopting the language approved in the interim military police policy, it is nonetheless a provocative term which distorts the actual basis for dismissing the complaints in this instance and is more counterproductive than useful.
In the interests of attempting to reduce any stigma that may attach to Captain Poulin through the use of this term, bearing in mind the degree of frustration and difficulty he endured as a direct result of the failure by CF authorities to treat his initial complaints appropriately, it is my view that, whether or not the term “vexatious
” was used in a technically correct fashion without the intention of slurring Captain Poulin, much could be gained by removing the term from the written decision to dismiss the military police complaints. Without that word, the record shows that the complaints were rejected properly as never having been sufficiently made. Because of its strong connotation, the inclusion of the label “vexatious
” obscures more than it enlightens and needlessly stigmatizes Captain Poulin.
Ombudsman's recommendation
I therefore recommend that:
6. The official letter dismissing Captain Poulin's professional standards complaints should be reissued removing the reference to “vexatious.
”
Allegation 4: Improper role and interference in military police complaints dated November 18 and November 30, 1998 and in allegations of collusion and obstruction of justice contained in November 18, 1998 military police complaint
Captain Poulin states in his written complaint to the Ombudsman's Office:
On or around December 11, 1998, Lt.-Col. Cloutier wrote and submitted a memo (2120-20-2-3/TD 075-98 (DPM PS) addressed to me acknowledging receipt of my November 30, 1998, Interim Military Police Public Complaint against him and his immediate superior the then Col. Samson. In this letter, he stated he “will delay forwarding this complaint to the CDS pending our upcoming meeting where I hope to receive further clarification of four other MP Public Complaints (dated November 18, 1998)...
” This procedure was contrary to the precedent set with my Interim Military Police Public Complaints dated November 18, 1998 and Lt.-Col. Cloutier's letter acknowledging receipt of the complaints and the procedure he was following.
Indeed, on or around November 24, 1998, Lt.-Col. P. Cloutier, the Deputy Provost Marshal Professional Standards wrote and submitted a letter (2120-20-2-3/TD 069-98 (DPM PS)) addressed to me. Lt.-Col. Cloutier acknowledged receipt of my four Military Police Public Complaints (dated November 18, 1998).
His correspondence led me to believe that he would be involved in investigating the actions of the then Col. Samson, the Canadian Forces Provost Marshal, who had real and apparent authority over him. Lt.-Col. Cloutier also indicated that he had "provided the A/CDS with a copy of references A (My Interim Military Police Public Complaints, dated November 18, 1998) through C, for his action."
By interfering in my Interim Military Police Public Complaints Lt.-Col. Cloutier was trying to stop me from blowing the whistle on high level incompetence regarding the NIS investigations into my allegations contained in my July 9, and 15, 1996, memos. Lt.-Col. Cloutier's actions were also in direct violation of QR&O 107.02(1).
It states that: “Where a complaint is made or where there are other reasons to believe that a service offence may have been committed, an investigation should normally conducted as soon as practical to determine whether there is sufficient grounds to justify the laying of charges.
” This assertion is further corroborated in memo 2120-20-0 (DPM PS) dated July 20, 1998 wherein: “Subject to any attempts at informal resolution, the DPM PS shall investigate a conduct complaint as soon as practicable.
” In my case, there was no formal investigation.
Captain Poulin further states:
On or around November 18, 1998, I submitted an Interim Military Police Public Complaint alluding to collusion and obstruction of justice on the part of some NIS investigators. According to memo 2120-4-0 (DPM PS 4) dated October 13, 1998, “obstruction
” is a “... criminal offence and which must be investigated by the Canadian Forces National Investigative Service ...
” and not the Directorate of the Deputy Provost Marshal Professional Standards (DPM PS). In my case, however, Lt.-Col. Cloutier took it upon himself to have his staff “flush out
” this complaint.
Ombudsman's investigators confirmed with Lieutenant-Colonel Cloutier that the letter referred to by Captain Poulin in the above-noted portion of his written complaint was authored by Sergeant Duncan who was seconded from the Royal Canadian Mounted Police to the Deputy Provost Marshal Professional Standards. Sergeant Duncan reported directly to Lieutenant-Colonel Cloutier, the Deputy Provost Marshal Professional Standards.
The letter acknowledged receipt of Captain Poulin's additional military police complaints dated 30 November, 1998 against Lieutenant-Colonel Cloutier, the Deputy Provost Marshal Professional Standards, as well as the CFPM. Sergeant Duncan also related some general, explanatory information to Captain Poulin in response to the allegations contained in his November 30, 1998 complaints.
The procedure being followed at this point was the same as that followed in relation to Captain Poulin's November 18, 1998 complaints against the CFNIS investigators and the CFPM. Lieutenant-Colonel Cloutier tasked Sergeant Duncan to have Captain Poulin provide clarification of his complaints and the subjects. This step was deemed necessary by the office of the Chief of the Defence Staff on the advice of the Judge Advocate General to determine the proper subjects of the complaints, how the investigation should proceed and the appropriate agency for investigating the complaints.
Clarification was also sought for Captain Poulin's allegations of obstruction of justice and collusion that appeared to potentially involve CFNIS investigator Commander Stephen Moore; Lieutenant-Colonel Deschênes, a military police officer who was employed as Senior Analyst within the Office of the Chief of Review Services; Major-General Penney, the Chief of Review Services; and General Baril, the Chief of the Defence Staff. (The circumstances giving rise to this allegation are described in the section of this report dealing with allegations against Commander Stephen Moore). This complaint was submitted by Captain Poulin as part of his November 18, 1998 military police complaints and was submitted to the Chief of the Defence Staff together with his other complaints of the same date, for reasons that have already been reviewed in this report.
Lieutenant-Colonel Cloutier related to Ombudsman's investigators that Sergeant Duncan, a Royal Canadian Mounted Police officer, was given the task of obtaining clarification from Captain Poulin on the specifics of his allegations and the subjects of his complaints as he felt that:
... it was totally inappropriate for me to look and to be involved in an investigation against myself. Sergeant Duncan, that's why we had a member of the RCMP attached to the section; so it would give us that flexibility if required. And he had the mandate from me, and I had a pool of individuals that we had identified, external to the Canadian Forces, but investigators, former RCMP officers, former Gatineau officers, former OPP officers ... who had agreed that they would work for us if we needed them on contract.
Lieutenant-Colonel Cloutier further provided that:
I had, and continue to have today, complete confidence in Sergeant Duncan. [An] extremely, extremely fair and extremely competent individual. We had already discussed long before this particular incident took place, what will happen if somebody complains against me? What will happen if somebody complains against the Provost Marshal? What will happen if somebody complains against you, Sergeant Duncan? How are we going to handle this? So he already knew how to handle it. He already knew that if something came against me, it would go to him and then he was handling it completely. He already knew of our pool of [outside] investigators. He already knew of the budget and how to establish a contract and so on. So, it was all in his hands, until ... Bill C-25 got passed and then it was ... it would be very simple. Then it would [be submitted] to the MP Complaints Commission ... but until it was stood up, we had to have a process. Sergeant Duncan was very, very well aware.
Assessment
Although Sergeant Duncan was a member of the Royal Canadian Mounted Police, as a member on secondment to the CFNIS and assigned to the Deputy Provost Marshal Professional Standards, I cannot agree with the suggestion that he should be considered to provide the same degree of real and perceived independence as an investigator who is outside of the organization. In dealing with this matter, Sergeant Duncan was not acting in his capacity as a Royal Canadian Mounted Police officer, but was directly accountable to the CF for his handling of the matter.
All the same, it must be considered that Sergeant Duncan's role in this case was limited to his efforts to obtain clarification from Captain Poulin as to the specifics and subjects of his complaints so they could be investigated. It is clear from the information provided to my investigators that no final decision had been taken by Professional Standards or the office of the Chief of the Defence Staff as to what agency should properly investigate the complaints. In light of these considerations, I am satisfied there was not an improper exercise of discretion on the part of Lieutenant-Colonel Cloutier or Sergeant Duncan in dealing with Captain Poulin's complaints.
H. Allegations against Brigadier-General Patricia Samson
Brigadier-General Samson was the CFPM when Captain Poulin's memorandum dated July 9, 1996 became public on June 17, 1998, and held the rank of Colonel at that time. As CFPM, then Colonel Samson was the Commanding Officer of the CFNIS throughout their investigations of the allegations against Colonel Labbé and the alleged inaction of Lieutenant-General Leach. Some of the allegations against Brigadier-General Samson that were contained in Captain Poulin's written complaint to the Ombudsman's Office consisted of allegations of actions or omissions on the part of Brigadier-General Samson's subordinate staff. These allegations are dealt with in the sections pertaining to the individual, with reference to Brigadier-General Samson's responsibilities and obligations as the Commanding Officer of the CFNIS and as the CFPM wherever appropriate.
Brigadier-General Samson responded to the relevant sections of the interim report in writing on March 14, 2000. Brigadier-General Samson's response, as well as the relevant responses from Colonel Cooper, the current CFPM, and General Baril, the Chief of the Defence Staff, have been carefully reviewed and clarifications added to this final report where appropriate.
Allegation 1: Receipt of information from Lieutenant-General Leach relating to allegations against him, outside of the normal investigative process
Captain Poulin states in his written complaint to the Ombudsman's Office:
On or around June 17, 1998, at approximately 17:35 hrs the then Col. Samson opened a letter from Lt.-Gen. Leach. It was his hand-written statement relating to his involvement with the subject memo. Her actions were in direct violation of procedure insofar as:
She was made privy to information that had by passed the normal investigative process (the values of such testimony, other than to taint the credibility of the NIS investigative process as well as the person holding the office of Provost Marshal is unclear).
She was made privy to information before it could be refuted or corroborated by the NIS investigative team (hence the potential danger of bias).
She was made privy to his testimony on June 17, 1998, before the internal tasking order not only to launch the relevant NIS investigations but also before setting the limiting parameters of these investigations on June 18, 1998 (date CFNIS CR tasked).
In addition to the irregularity of procedure and negligence allegations against the then Col. Samson, these events also suggest that senior officers may still have a role in military justice investigations and influenced its outcome.
This allegation against then Colonel Samson stems from the existence of a hand-written memorandum Lieutenant-General Leach wrote and submitted to her following events at Lieutenant-General Leach's press conference on June 17, 1998, at which Captain Poulin's July 9, 1996 memo was made public.
Lieutenant-General Leach's memorandum contained a lengthy description of his thoughts and his version of the events relating to the allegations that he had been the recipient of Captain Poulin's memorandum dated July 9, 1996 and failed to take action in response. A copy of the memo written by Lieutenant-General Leach and delivered to Brigadier-General Samson is attached to this report as Appendix IV. At the end of the memorandum, after a lengthy review of his recollection of the events as they unfolded, Lieutenant-General Leach indicates, “I am passing this hand-written note to the CFPM immediately. I will reflect tonight and if any other thoughts come to mind, I will add an addendum.
” At the end of the memo he states, “for the CFPM, I request that you take whatever follow up action is necessary, as soon as you can.
”
Brigadier-General Samson was interviewed by my investigators on audiotape in her office at 101 Colonel By Drive on October 12, 2000. A copy of Captain Poulin's allegations against her was provided to Brigadier-General Samson prior to this interview.
Brigadier-General Samson acknowledged receiving Lieutenant-General Leach's memorandum and she indicated the following to Ombudsman's investigators:
... I am the Commanding Officer of the National Investigation Service. If someone writes me a letter, I open it. I read it. The people that do the taskings for me are the Deputy Provost Marshal, NIS Support. I'm the one who tasks the investigations. Therefore, there is no bypass of the normal process. That is the process. Am I privy to information? I'm privy to all the information on every investigation that is ever done by the NIS. There is nothing irregular about this. The same thing as the Chief of Police - he'd be privy to all the information. I was privy to the information before the internal tasking order; if I wasn't there wouldn't have been a tasking order ... There was something in here about, “before setting the limiting parameters.
” We don't set limiting parameters. We task investigations and investigators go out and investigate. There [would have been] irregularity of procedure if I had not done this.
Brigadier-General Samson confirmed in her response to the interim report that from a personal perspective she “was very comfortable that there was no hidden intent or personal agenda behind Lt-Gen. Leach's memorandum.
”
Commander Stephen Moore was Officer Commanding the CFNIS, Central Region and held the rank of Lieutenant-Commander at that time. He was assigned to lead the investigation concerning whether Lieutenant-General Leach had received Captain Poulin's memorandum and failed to take action. Then Lieutenant-Commander Moore's case notebook entry records that he was tasked to conduct the investigation prior to Lieutenant-General Leach preparing the statement that he forwarded to the CFPM. The case notebook entry records:
At 1455 hrs 17/6/98 I attended a (meeting) with CFPM and Maj. Dixon. CFPM gave me two copies of memo 9 Jul 96 addressed to DComd LFCHQ authored by Capt. Poulin. CFPM stated that they were received by Lieutenant-General Leach from Scott Taylor.
The text of Lieutenant-General Leach's hand-written memorandum suggests it was not completed until some hours after the CFPM had tasked Commander Moore to investigate.
Assessment
Lieutenant-General Leach's memorandum does not ask for anything improper to be done. It does not expressly invite favour nor does it ask for special treatment. Indeed, at least in part, it is a request for an investigation. It ends with a request that Captain Poulin's allegation relating to his own conduct be referred to the CFPM for follow-up action.
It is apparent, however, from the information in the file of the CFNIS, that by the time that Lieutenant-General Leach's letter was drafted, investigations had already been tasked. In his memo, Lieutenant-General Leach notes that he had already reported the incident to the Acting Chief of the Defence Staff. Without in any way suggesting that Lieutenant-General Leach's request for an investigation in his memorandum to the CFPM was not sincere, it is important to note that the memorandum submitted by Lieutenant-General Leach goes beyond merely requesting an investigation. It also contains Lieutenant-General Leach's personal version of events leading up to the release of Captain Poulin's memorandum of July 9, 1996. It asserts his position that he does not recall ever having seen that memorandum. It also contains comments by Lieutenant-General Leach in relation to personal matters regarding Captain Poulin's posting and reimbursement of educational expenses that Lieutenant-General Leach claimed he had assisted Captain Poulin in resolving. It is not clear what bearing or relevance these issues were expected to have on the CFNIS investigations into allegations against Lieutenant-General Leach and Colonel Labbé, although they do create the impression that Lieutenant-General Leach was attempting to demonstrate a history of having dealt fairly with Captain Poulin so that his conduct in this case would be understood in that light. Without question, this letter was not simply an invitation by Lieutenant-General Leach to encourage an investigation so that the matter could be cleared up. It was also an attempt by Lieutenant-General Leach to record aspects of his side of the event. There are two things that are troubling about this. First, the letter is sent directly to the CFPM, not to the CFNIS or the investigator assigned to lead the investigation. It was addressed directly to the CFPM to be delivered by hand. Secondly, Lieutenant-General Leach's note ends with these words:
PS. The original copy this handwritten memo is for the Canadian Forces Provost Marshal. I have retained a copy for myself. No other copies have been done.
Considered together, these features of the letter present real and obvious concerns relating to the appearance of impartiality of the CFNIS investigation.
Before continuing, it is imperative to first underscore how essential both impartiality and the appearance of impartiality are to CFNIS Service investigations. The independence of any investigation is essential to the integrity of its outcome. So too is the appearance of impartiality. If an investigative organization is seen to be vulnerable to undue influence, the results it produces will not be trusted. Both impartiality and the appearance of impartiality are particularly important for the credibility of the CFNIS, because it is responsible for investigating matters in which persons high in the chain of command often have a personal or professional interest. The possibility, or at least the appearance, of undue influence is an omnipresent reality as a result of the very existence of a command structure and the varying rank and status of the individuals involved in an investigation. For that reason, the office of the CFPM has been established as an independent office, albeit an office that remains part of the CF, and a strong ethic of non-interference in investigations by the CFNIS has developed within the CF. The paramount importance of protecting the independence of the CFNIS is also the reason for the establishment of an independent Military Police Complaints Commission. All considered, there is an overarching interest on everyone's behalf in ensuring that independence is never compromised and that impartiality, as well as the appearance of impartiality, is preserved.
In my opinion, it is clear that there is unquestionably a problem for the appearance of impartiality when a Lieutenant-General who is the subject of an allegation that is under investigation communicates matters of substance relating to the complaint directly to the CFPM, particularly when the letter ends with the notation that “no other copies have been done.
” This kind of action, however innocent it may seem in the minds of both the sender and the receiver, can have no other effect than to call into question respect for the ethic of non-interference in and independence of the CFNIS.
It is important that I be clear here. I am not finding that Lieutenant-General Leach was attempting to interfere improperly in the investigation in which he was implicated. Nor am I suggesting that Brigadier-General Samson is personally vulnerable to undue influence. I am certain that is not the case. This Office reviewed the entire CFNIS file as it related to the investigation into the inaction by Lieutenant-General Leach in response to Captain Poulin's memorandum, as well as the record of Lieutenant-General Leach's statement of September 14, 1998 to CFNIS investigators. No evidence was found to suggest that the investigation or its outcome were affected in any way by the memorandum Lieutenant-General Leach wrote. Nevertheless, the action of a high-ranking officer sending a personal, hand-delivered, hand-written communication about a matter being investigated, in which he tells his side of the story and on which there is a notation that he has the only other copy, to the CFPM can only shake the confidence those who learn of this action have placed in the impartiality and independence of the investigation. Imagine, for a moment, a member of the federal Cabinet writing directly to the Commissioner of the Royal Canadian Mounted Police with information about an investigation into his or her conduct and noting in the letter that no other copies of the document have been circulated. I am satisfied that this episode had no effect on the investigation. I am also not satisfied that Lieutenant-General Leach ever intended the letter to have such an effect. However, the revelation that this form of communication took place will, in some measure, imperil public confidence in the CF and erode members' trust in the leadership - that is, unless clear steps are taken, not to proclaim the innocence of this kind of practice, but rather to recognize the danger it represents and to ensure that it does not happen again. It is imperative, in my opinion, that the CF have procedural safeguards in place to prevent actions by any persons, especially high-ranking members of the chain of command, that could even be perceived as attempts to influence the course of an investigation.
I go even farther. It is not befitting the principles related to protecting the appearance of impartiality for high-ranking officers to refer complaints about their own conduct to the CFNIS for investigation. Even if the sole function of Lieutenant-General Leach's memorandum of June 17, 1998 was to invite an investigation, without recording potentially exculpatory information, the action still should not have occurred.
The current CFPM, Colonel Dot Cooper, in her response to my interim report, did not accept that the degree of concern I expressed there, and also express in this final report, is warranted. She noted that police routinely approach suspects to obtain their side of the allegation, often going to great lengths to get a statement from an accused, and that suspects must be free to present their side of the story, regardless of their rank or position in the service. She advises that “[in] this respect, it may be argued that unfettered access to the police helps to ensure that the investigation will be conducted fairly.
” While there is truth in these comments, what needs to be appreciated is that this is not a case of an investigator approaching a 'suspect' for a statement, or a 'suspect' volunteering information to the investigator. Context cannot be forgotten. This is a senior officer writing to the head of an investigative service that is part of the CF within which he holds his rank. This happened well “outside of the normal investigative process.
” Indeed, altogether apart from this missive, Lieutenant-General Leach was interviewed in this case and did provide a statement to the CFNIS investigators, as part of their investigation.
It should be obvious that it is not the purpose of my recommendations to advise adoption of policies that would thwart effective military police investigations. The purpose is to ensure that the CFPM and the CFNIS is protected from even the perception of undue influence.
In her response to my interim report, the current CFPM also notes that “the solution to undue influence
” lies in institutional safeguards, notably the independent Military Police Complaints Commission. This safeguard is undoubtedly part of the solution. The first thing that needs to be noted, however, is that under the National Defence Act, complaints related to interference with an investigation can only be referred to that body by a member of the Military Police, and only in cases where the conduct in question took place after December 1, 1999. Moreover, it seems unduly restrictive, even counterproductive, to think in terms of "the" solution. No doubt the significant contribution of the Military Police Complaints Commission to ensuring the independence of investigations can be complemented and enhanced by other measures, including educating members of the chain of command about situations in which direct communications with fellow officers may be improper or may be perceived as the exercise of undue influence and setting up a milieu that prevents such actions. This assurance is most effectively accomplished, not through after-the-fact responses to complainants, but by strong direction from the Chief of the Defence Staff to those under his command to avoid engaging in the kind of actions that occurred in this case.
Ombudsman's recommendations
7. The Chief of the Defence Staff should ensure that appropriate directives are put into place to prevent actions by Canadian Forces members that constitute, or may be perceived by a reasonable person to constitute, attempts to influence the course of military police investigations outside of the normal investigative process.
8. The Chief of the Defence Staff should issue the appropriate directives to ensure that, where incidents are referred to the Canadian Forces Provost Marshal for investigation, the referral comes from persons within the chain of command who are not identified as potential subjects of any allegations to be investigated.
The Chief of the Defence Staff indicated in his response to my interim report that these recommendations fall within the purview of the CFPM and “out of deference to the Accountability Framework of that office, I have not dealt with these recommendations.
”
With respect to the Chief of the Defence Staff, I cannot agree. Rather than encouraging the Chief of the Defence Staff to do anything that would interfere with the independence of the CFPM, I am encouraging the development of mechanisms in order to prevent such interference. Indeed, I am recommending directives to CF members in general, not to the CFPM or to members of the CFNIS. I am simply calling on the Chief of the Defence Staff to use his authority over CF members to complement and support the independence and impartiality of the CFNIS by directing CF members, including those high in the chain of command, not to engage in activity that could be perceived as influencing the course of an investigation. It is important to appreciate that I am not making a recommendation to the Chief of the Defence Staff to take any action with respect to any specific, ongoing investigation. I am simply recommending that directives be issued to establish matters of general policy.
Leaving aside questions of jurisdiction for the moment, it is not the most effective way to prevent conduct that may jeopardize the appearance of impartiality of a CFNIS investigation to wait for an act of interference to occur and then to address it by instituting some formal process. The best way to prevent such conduct is to give strong directives that will help educate CF members about proper and improper conduct so that such instances can be avoided in the first place. In this instance, it is unlikely that Lieutenant-General Leach would have sent his letter in the first place had the Chief of the Defence Staff issued a directive such as the one I recommend. He would have been more attuned to the sensitivity of this issue and would probably have chosen a more appropriate course of action. This preventative approach would have avoided the perception that was reasonably created in the eyes of Captain Poulin that there was a behind-the-scenes attempt to influence this high-profile and very sensitive investigation.
I turn to the jurisdictional question. I feel the need to address the comment the Chief of the Defence Staff made in his response to my interim report that he was declining to follow my recommendations “out of deference to the Accountability Framework of that office.
” Ironically, the Accountability Framework not only does not prevent the implementation of these recommendations, it in fact encourages if not mandates the development of directives like those I am recommending.
As its name suggests, the Accountability Framework is not unlike many statutory provisions that exist to make those who provide civilian police services accountable without subjecting them to improper political or executive interference. For example, under the Police Services Act of Ontario, a Police Services Board has the power to establish policies for the effective management of the police forces, and the Solicitor General of the province is empowered to issue directives and guidelines to police chiefs to enable those policies to be implemented. The qualifier is that a Police Services Board cannot direct a Chief of Police how to deal with specific operational decisions or the day-to-day operation of the police force. The term day-to-day operation refers to specific policing strategies and decisions as they relate to particular cases, not to general policy directives.
Similarly, the Accountability Framework for the CF provides for the accountability of the CFPM. Like the Police Services Act of Ontario, it prevents two kinds of direction. First, it prevents any attempt to direct the CFPM on specific operational decisions of an investigative nature. Second, it prevents senior leadership's involvement in ongoing investigations, other than to receive information necessary for management decision making. It is important to appreciate that the recommendations that I am making do not do either of these things. They do not direct the CFPM on specific operational decisions of an investigative nature. Nor do they involve individuals in any ongoing investigations.
There is, therefore, nothing in the Accountability Framework, either in its terms or its spirit, to prevent implementation of the recommendations that I am making. Indeed, there is much in the Accountability Framework to support what I am suggesting.
The Accountability Framework provides expressly that the Vice Chief of the Defence Staff “will ensure that education and training are provided to the chain of command and the members of the military police to assist in understanding their respective roles
” (paragraph 6(a) Operational Primacy Environment). That, of course, is exactly the function that I am requesting the Chief of the Defence Staff to perform in Recommendations 7 and 8, namely to define the respective roles of members of the chain of command in matters to do with investigations. Indeed, the framework further provides that:
To ensure that information sharing is carried out in a way which supports the primacy of operations and investigative integrity, the Vice Chief of the Defence Staff will facilitate the chain of command and the military police working together to ensure a shared understanding of the respective responsibilities and obligations with respect to information sharing.
An improper mode of sharing information in a way that undermines the investigative integrity of the CFNIS precisely describes the incident in this case that has prompted me to make Recommendation 7.
As noted above, and this is the key point, the recommendations I am making do not run afoul of the Accountability Framework for the simple and obvious reason that they are not directed at the CFPM. They are directed at the members of the CF.
As an academic but illustrative exercise, I want to make the point that the Chief of the Defence Staff could go even further than I have asked him to in this report. He could craft directives to the CFPM herself to support the objectives of the Accountability Framework. For example, through the office of the Vice Chief of the Defence Staff, he could direct the CFPM not to engage in any communications outside of the normal course of an investigation with any member of the chain of command who is under investigation. The Accountability Framework provides:
The Vice Chief of the Defence Staff may give orders and general direction to the Canadian Forces Provost Marshal to ensure professional and effective delivery of policing services. The Canadian Forces Provost Marshal is accountable to the Vice Chief of the Defence Staff for maintaining police standards which are consistent with those of other police agencies.
The orders and general direction of the Vice Chief of the Defence Staff may include matters of public, Departmental, Canadian Forces and strategic military police policy, ethical standards and requirements to comply with the laws of Canada.
It would not have been at all inconsistent with the provisions of the Accountability Framework if I had recommended in this report that the Chief of the Defence Staff give such an order or general direction to the CFPM to ensure professional and effective delivery of policing services with respect to avoiding the appearance of improper influence. It would have been an order and direction that captured the merits of the Accountability Framework.
Allegation 2: Misleading press release regarding the results of CFNIS investigation into allegations of sexual misconduct against Colonel Serge Labbé
Captain Poulin states in his written complaint:
One part of the CFPM-98.044 news release stated that: “The CFNIS has determined that there is no evidence to support allegations of sexual misconduct made against Colonel Serge Labbé ...
” This assertion neglected to state that both I and another witness had corroborated some of the allegations I had made.
This assertion also conveniently omitted other portions of the investigation that proved well founded (i.e. the drinking on the bus). The then Col. Samson did not correct the said earlier News Release although she knew that it omitted well-founded portions of the investigation. Instead, she authorised the subject news release.
Her role in approving this document is confirmed in Capt. Bissonnette's statement on or around October 15, 1998, in the Kingston Whig-Standard that the military investigation into my memo dated July 9, 1996 was “completed, (but) there's still a few touch-ups to do.
” Capt. Bissonnette added further “The Provost-Marshal hasn't seen it yet ... She saw a portion of it, but when she returns - that's when she's going to take a look at it and decide whether it is completed to her satisfaction.
”
A copy of the CFNIS press release dated October 26, 1998 is reprinted in Appendix V.
Assessment
As previously noted, the CFNIS investigative file, including its report of the investigation into the allegations brought forward by Captain Poulin against Colonel Labbé, has been carefully reviewed in the preparation of this report. The CFNIS press release cited by Captain Poulin has also been carefully reviewed in its entirety.
The media coverage of the allegations contained in Captain Poulin's July 9, 1996 memorandum, which became public at the press conference of June 17, 1998, and the ongoing CFNIS investigation, clearly focused on the allegations brought forward by Captain Poulin as a witness. It is reasonable to conclude that the general public was aware of the allegations and Captain Poulin's version of events as set forth in his July 9, 1996 memorandum, which has almost invariably been referred to in all media coverage of the case.
I am satisfied that the spirit and intent of the CFNIS press release, and the perception which would be left with a reasonable person given the language used, was that the CFNIS, an agency mandated to conduct investigations into potential criminal and service-related offences, did not substantiate the allegations that Colonel Labbé behaved inappropriately toward a member of the mess dining room staff. In light of the totality of the evidence uncovered by the CFNIS investigators and their conclusions, I am satisfied that the perception the CFNIS press release would create in the minds of reasonable and objective members of the public is not misleading or inaccurate.
Allegation 3: Misleading press release regarding the results of CFNIS investigation into allegations against Lieutenant-General Leach
The CFNIS report dated October 6, 1998 notes that two CFNIS investigators:
... interviewed MAJ LAVOIE who stated that when CAPT POULIN returned from his course at (CLFCSC) he related his concerns about the course and COL LABBÉ to him. (Major Lavoie) advised CAPT POULIN to report these concerns in a memo to LGEN LEACH. (Major Lavoie) verbally briefed LGEN LEACH about the concern in the memo including the incident with COL LABBÉ and the waitress and told him that these concerns would be addressed to him in a memo. When (Major Lavoie) received the 9 Jul 96 memo from CAPT POULIN he put it on top of the "ACTION" pile and gave it to LGEN LEACH saying that the memo on top is extremely sensitive and involves allegations about COL LABBÉ and women. After CAPT POULIN asked him 2-3 times about the memo (Major Lavoie) told LGEN LEACH that CAPT POULIN was wondering about his memo. LGEN LEACH responded that he didn't have to report to a CAPTAIN. MAJ LAVOIE asked him if he was handling it and (LGEN LEACH) said yes.
This report of the investigation concludes that:
Although CAPT POULIN and MAJ LAVOIE stated that they recalled discussing the 9 Jul 96 memo with LGEN LEACH he is adamant that he never saw the memo and he stated that if he had seen it, he would have taken immediate action ... There is no evidence to support criminal or service offence charges against LGEN LEACH; however, this issue should be reviewed from an administrative perspective by the chain of command.
The report was released to the public on October 26, 1998 under the heading, “CFNIS finds no evidence to support allegations against Colonel Labbé and Lieutenant-General Leach.
”
The release then stated:
In addition to finding insufficient evidence against Lieutenant-General Leach, the CFNIS investigating team found no evidence to support the idea that any other individual within the chain of command had been made aware of the memorandum, or the information contained in it.
Captain Poulin's complaint relating to the press release's treatment of the allegation involving Lieutenant-General Leach pertains specifically to the passage quoted above that reports "the investigating team found no evidence to support the idea that any other individual within the chain of command had been made aware of the information, or the information contained in it." From a comparison of the contents of the press release with the information in the file, it is readily seen that the press release is misleading in at least three material respects as follows:
1. The headline, presented in bold at the top of the release, asserts that "Canadian Forces National Investigation Service finds no evidence to support allegations against .... Lieutenant-General Leach."
Captain Poulin's complaint concerned Lieutenant-General Leach's alleged inaction in response to the memorandum of July 9, 1996. Contrary to the headline, the investigation did uncover evidence of inaction by Lieutenant-General Leach. Major Michel Lavoie gave the memorandum to Lieutenant-General Leach, describing it as extremely sensitive and advising him that it was about allegations involving Colonel Labbé and women. Major Lavoie also said he asked Lieutenant-General Leach about the memorandum on two or three occasions, and was told by Lieutenant-General Leach that he did not have to report to a captain. Although Major Lavoie recalled that Lieutenant-General Leach responded positively when asked if he was handling it, the investigation revealed that Lieutenant-General Leach had taken no such action about the allegations in the memorandum.
The misleading headline is ameliorated to some degree by the passage in the body of the press release which states:
The Canadian Forces National Investigation Service (CFNIS) has determined that there is no evidence to support the allegations of sexual misconduct made against Colonel Serge Labbé, and that there is insufficient evidence to support allegations of inaction against Lt.-Gen. Bill Leach (emphasis added).
The contradistinction between no evidence with respect to Colonel Labbé and insufficient evidence with respect to Lieutenant-General Leach does communicate, contrary to the headline, that there must have been some evidence relating to the allegation against Lieutenant-General Leach.
2. The press release fails to disclose that the report of the investigation recommended that, given the recollections of Captain Poulin and Major Lavoie, the issue of Lieutenant-General Leach's denial that he ever saw the memorandum should be "reviewed from an administrative perspective by the chain of command."
Although it is often a matter of controversy whether a particular non-disclosure is misleading, in this case it clearly was. The press release stated that there was “insufficient evidence to support allegations of inaction against Lt.-Gen. Bill Leach.
” This statement was obviously intended to refer to evidence of criminal or service-related offences, but the lack of any reference to the recommendation for an administrative review leaves the impression that there was “insufficient evidence
” to find any merit in Captain Poulin's complaint regarding Lieutenant-General Leach's inaction. It is clear from the recommendation to review the matter from an administrative perspective in the report of the investigation, however, that there was lingering concern that Captain Poulin's complaint was not dealt with properly, even if there was an inadequate basis for a criminal or service-related offence charge. The omission of any mention of the recommendation for administrative review contributed to the mistaken impression that there was “insufficient evidence
” to find merit in the complaint, when in fact there remained lingering concern about Lieutenant-General Leach's inaction.
That this impression was created is demonstrated beyond any doubt by observing comments made by the Minister of National Defence during a media scrum on October 26, 1998. During that scrum, the following exchange took place:
Q: The NIS also said that there was no indication that others in the chain of command had knowledge of the allegations in this controversy. Does this in fact then lift an impediment that might have been hanging over the head of General Baril?
Hon. Art Eggleton: Well I think the decision speaks for itself. The National Investigation Service did a thorough investigation, in fact it was done under the aegis of an inspector of the RCMP, and I'm satisfied with the findings and the report. And I think that's the end of the matter.
Clearly, for the Minister to express publicly that the report was the end of the matter, when in fact the report had itself recommended an administrative review, shows beyond all doubt that the press release was misleading.
3. As Captain Poulin complained, the press release asserts that “the investigating team found no evidence to support the idea that any other individual within the chain of command had been made aware of the memorandum.
”
This passage created the definite impression than no-one other than then Major-General Leach had seen or been made aware of the memorandum or the allegation. As indicated above, Major Lavoie knew of the allegation and had seen the memorandum.
Captain Alain Bissonnette was the media relations officer for the CFNIS in October 1998, and acknowledges that he prepared the media release for the CFNIS. Ombudsman's investigators interviewed Captain Bissonnette at the Bulford Camp Military Police Complex in England on September 13, 2000. A copy of Captain Poulin's allegation against him was provided to him prior to the interview. Captain Bissonnette stated that he prepared media releases from information supplied to him by investigators or from reports of investigations once completed. Captain Bissonnette related that all news releases he prepared were submitted to Brigadier-General Patricia Samson for review and that Brigadier-General Samson's approval was necessary before any news release would be sent out for publication.
During her interview with Ombudsman's investigators, Brigadier-General Samson acknowledged she read and approved all news releases, including this release.
Assessment
As indicated above, the press release was misleading in three respects.
The first way in which the press release was misleading, the headline's announcement that no evidence was found against Lieutenant-General Leach, receives some clarification through a careful reading of the body of the release. It is obvious that the headline was not intended to mislead but rather represented a clipped “sound bite
” that, unfortunately, did not succeed in capturing the essence of the release.
With respect to the second misleading characteristic, the omission of any mention of the recommendation for administrative review, I do not find that a decision was made to omit this in order to sanitize the report. It is evident that those who prepared the press release focused on the jurisdiction of the CFNIS as it relates to criminal and service-related offences, and were content to report that no charges would be laid. It is apparent that they did not appreciate the relevance of the recommendation for an administrative review or the contribution its inclusion would have made to improving the overall accuracy of the public impression created by the press release.
The third misleading characteristic, the representation that “the CFNIS investigating team found no evidence to support the idea that any other individual within the chain of command had been made aware of the memorandum, or the information contained in it,
” was the subject of Captain Poulin's complaint. My investigators therefore presented it as the essence of the misleading nature of the release when they met with Brigadier-General Samson. She did not see this passage as misleading. She explained that the reference to “chain of command
” in the press release meant Lieutenant-General Leach's chain of command, not Captain Poulin's chain of command. She elaborated on this explanation in her response to the interim report. According to Brigadier-General Samson, that term described everyone above the rank of then Major-General Leach. At the time, Major-General Leach's chain of command consisted of the Commander of Land Forces and ultimately the Chief of the Defence Staff, neither of whom had seen or been made aware of the memorandum or its contents.
I, of course, accept Brigadier-General Samson's explanation. There was no intent on her part to mislead as to whom had or had not seen the memorandum. That said, it is clear that the drafting of the passage does not make it at all clear that the press release was talking about Lieutenant-General Leach's chain of command. It refers to any other individual within the chain of command, without specifying whose chain of command.
Two things make the reader naturally assume that the reference was to Captain Poulin's chain of command. First, complaints by a member normally would work their way up his or her chain of command; moreover, the complaint was about inactivity related to Captain Poulin's complaint. Context alone would cause the reader to assume that the reference was to Captain Poulin's chain of command as those to whom he would complain and whether they had undertaken any activity with respect to his complaint.
Second, there had never been any suggestion that those above Lieutenant-General Leach had learned of the memorandum. Their vindication in the press release would therefore appear to be gratuitous. It is not surprising, then, that the release was misunderstood. It was misunderstood by Captain Poulin, who saw this passage as misleading, and it was misunderstood by everyone in my Office who read it. More to the point, it was misleading in a way that caused significant embarrassment to Captain Poulin. In its totality, the release leaves the unquestionable message that the complaint that Captain Poulin had made against Lieutenant-General Leach was determined to have been without merit, when it is clear that his complaint was not dealt with as it should have been. As our investigation has revealed, there was inaction. Yet the press release made it appear as though Captain Poulin had brought a largely groundless complaint against a superior officer, when such a conclusion was not the finding of the investigation.
The importance of public releases of the results of CFNIS investigations should be evident from this experience. The CF has embarked on a commitment to openness and transparency so that any problems or unfairness that exist can see the light of day and be fixed. There has been a keen public interest in the state of the CF, and the public depends on accurate information to form accurate impressions. Accordingly, tremendous care must be employed not to release public statements that can be misinterpreted as spin-doctoring, whether due to inexactitude, over-simplistic headlines, the ambiguous employment of technical concepts such as "chain of command" or failure to include all information needed to form an accurate impression.
The release of public statements open to misinterpretation, for whatever reasons, creates two casualties. The first casualty is the reputation of the CF for openness and transparency; furthermore, the real credit for a job well done is not received. In this case, for example, the investigation was conducted with impartiality and fairness by the CFNIS, and its recommendation for further administrative review was commendable. The plaudits that should have been given to the CFNIS have been lost, despite my findings, amid concerns about whether the release was an attempt to gloss over problems in the way the Poulin complaint was handled.
The second casualty of inadequately worded public releases is the "little" person. As previously indicated, even though I am satisfied that it was not meant to do so, this press release left the impression that Captain Poulin's complaint had been found to be groundless, when it had not been so determined. This is an injustice that must be corrected.
Ombudsman's recommendation
I therefore recommend that:
9. The Canadian Forces National Investigation Service issue a further press release to inform the public of the complete results of its investigation into the allegations against Lieutenant-General Leach, including the fact that evidence was uncovered that other individuals within Lieutenant-General Leach's office had seen the memorandum submitted by Captain Poulin in July 1996 and were aware of its contents. The press release should also include the Canadian Forces National Investigation Service recommendation that the matter be reviewed from an administrative perspective by the chain of command.
I. Allegation against Captain Alain Bissonnette
Captain Bissonnette is a military police officer who served as the Media Relations Officer for the CFPM at the time of the CFNIS investigations into the allegations in Captain Poulin's July 9, 1996 memorandum. As previously noted, Captain Bissonnette was responsible for authoring a media release dated October 26, 1998 that informed the public of the results of the CFNIS investigations into the allegations against Colonel Labbé contained in the July 9, 1996 memorandum and of the allegations of inaction on the part of Lieutenant-General Leach.
The allegation against Captain Bissonnette, contained in the written complaint Captain Poulin submitted to the Ombudsman's Office, indicates that the October 26, 1998 media release was inaccurate in its communication of the conclusions of the investigations into the allegations against both Colonel Labbé and Lieutenant-General Leach. The substance of this portion of the complaint is dealt with under the second and third allegations relating to Brigadier-General Samson who, as the CFPM at the relevant time, was the person responsible for reviewing and approving all CFNIS press releases.
J. Allegation against Brigadier-General Charles Lemieux
Brigadier-General Charles Lemieux is currently a Special Advisor to the Chief of the Defence Staff on Professional Development. Formerly, Brigadier-General Lemieux was the G5 (Director of Communications) for the Land Forces, and held the rank of Colonel. Captain Poulin alleges that then Colonel Lemieux made false statements to the media regarding the initiation of the investigations related to the allegations contained in Captain Poulin's July 9, 1996 memorandum and subsequent alleged inaction.
Brigadier-General Lemieux advised Ombudsman's investigators that he was satisfied with the relevant portion of the interim report and that he did not have any comments to offer.
The written complaint Captain Poulin submitted to this Office states:
On or around July 20, 1998 on “J.E. EN DIRECT
” between approximately 12:30 hrs and 13:30 hrs. Col. Lemieux knowingly misinformed the media regarding the initiation of the NIS investigation regarding my memo dated 9 July 1996 and made public on or around 17 June 1998.
The misinformation Col. Lemieux gave the media on or around July 20, 1998 should have been corrected in accordance with Public Affairs Defence Administrative Orders and Directives dated March 1, 1998. It states: “In consultation with DGPA or Command Public Affairs, COs and DND managers shall promptly undertake appropriate PA activities to correct factual errors, misquotes and misleading information attributed to the DND or the CF.
”
Brigadier-General Lemieux was interviewed on audiotape by Ombudsman's investigators in his office at 222 Nepean Street on November 15, 2000. A copy of Captain Poulin's allegation against him was provided to Brigadier-General Lemieux prior to the interview.
Brigadier-General Lemieux was part of a panel on a televised interview on J.E. En Direct, entitled “Women in the Armed Forces,
” on July 20, 1998. At the time, then Colonel Lemieux was the Director of Communications for the Land Forces. Ombudsman's investigators reviewed a copy of the program transcript. The show was hosted by Jocelyn Cazin and included a number of panellists including Brigadier-General Lemieux.
During the broadcast, Brigadier-General Lemieux commented on Lieutenant-General Leach having immediately requested an investigation into the allegations contained in Captain Poulin's July 9, 1996 memorandum. Brigadier-General Lemieux stated he was present when Lieutenant-General Leach prepared his hand-written statement to the CFPM and was aware of Lieutenant-General Leach's request for an investigation. Brigadier-General Lemieux related that he used no other sources of information during his participation at the July 20, 1998 panel discussion. Lieutenant-General Leach's hand-written statement requesting follow-up by the CFPM is attached as Appendix IV to this report. Observations on the need for procedures to ensure that subjects of allegations are not responsible for referring the same matters to the Military Police for investigation are dealt with elsewhere in this report.
Assessment
As I have previously indicated, it appears from a review of the CFNIS investigative file and Lieutenant-General Leach's memorandum that the CFNIS had already been tasked to investigate the allegations against Lieutenant-General Leach before his memorandum was completed and submitted to the CFPM. In his memorandum prepared and submitted on June 17, 1998, Lieutenant-General Leach does, however, request that the CFPM “take whatever follow-up action is necessary, as soon as you can.
” ""
Brigadier-General Lemieux's public comments were clearly intended to convey that Lieutenant-General Leach responded to the matter in a timely fashion by requesting an investigation and that Lieutenant-General Leach was supportive of the CFNIS in its role as investigator of the allegations against Colonel Labbé and the allegations involving him. This support is in fact reflected in Lieutenant-General Leach's request in his June 17 memorandum to the CFPM that she take any necessary follow-up action. (My comments and concerns in relation to the nature of Lieutenant-General Leach's memorandum and the perception it raises are detailed elsewhere in this report.)
I am not satisfied that Brigadier-General Lemieux's comments were inaccurate or that they created a misleading perception.
K. Allegation against Lieutenant-Colonel Pierre Pellicano
Allegation: Improper consideration of redress of grievance regarding decision to dismiss military police complaints
Lieutenant-Colonel (Retired) Pellicano is the former Director of CF Grievance Administration. He responded to the relevant portion of the interim report in writing, on March 7, 2001. In his written response, he indicates: "In conclusion I fully agree with your investigators' balanced assessment of Captain Poulin's submission to your office." All of the written responses to the interim report can be found in Appendix VI.
Captain Poulin filed a redress of grievance on January 26, 1999 pursuant to CF Administrative Order 19-32 in response to the decision by the Deputy Provost Marshal Professional Standards to dismiss his military police complaints as vexatious.
In his written complaint submitted to this Office, Captain Poulin alleges that, as head of the CF Grievance Administration, Lieutenant-Colonel Pellicano should not have been involved in the handling of his grievance due to conflict of interest and further that Lieutenant-Colonel Pellicano was unable to properly deal with Captain Poulin's redress of grievance because he was lower in rank than persons who were named in the redress including Brigadier-General Samson, the CFPM. Captain Poulin also argues that his application for redress ought to have been granted and the decision by Lieutenant-Colonel Cloutier to dismiss Captain Poulin's complaints ought to have been rescinded.
Captain Poulin states in the written complaint submitted to this Office:
Lt.-Col. P. Pellicano, the DCFGA, should not have investigated and rendered a decision in my harassment complaint against Lt.-Col. Cloutier and the then Col. Samson. Given his rank and marital status, there is, at the very least, a perception of bias because he violated CFAO 19.39.
An investigator must be chosen who neither has any interest in the outcome of the investigation, nor is perceived to have any personal link to anyone with an interest in the outcome (CFAO 19.39 par. 46(b). In this case, DGPA had a clear interest in the outcome given that this option (i.e. grievance) was also being touted as an alternative dispute resolution mechanism for my allegations against many serving staff members at DGPA.
The investigator ... should be equal or superior in rank to both the complainant and the alleged harasser (CFAO 1939, para. 46 (c)). The then Col. Samson's letter 2120-20-2 (CFPM) dated March 11, 1999 addressed to Comdt CFSU(O) clearly established her involvement in my grievance of harassment.
Lt.-Col. Pellicano should have rescinded Lt.-Col. Cloutier decision because it also violated VCDS 083 / CANFORGEN 100/97 dated October 16, 1997. It states: " For this interim process (MP complaint review and investigative process) to be fair and successful, it is essential that all commanders and leaders remain neutral and impartial towards all parties throughout the complaint process."
The issue related to the process followed and the decision by Lieutenant-Colonel Cloutier to dismiss Captain Poulin's military police complaints is dealt with elsewhere in this report.
Ombudsman's investigators interviewed Lieutenant-Colonel (Retired) Pellicano as a witness and subject of this complaint on October 12, 2000. They also obtained a copy of the relevant grievance file and reviewed it. The file contains Captain Poulin's grievance submission and subsequent correspondence from the CF Support Unit (Ottawa) and the CF Grievance Administration at NDHQ. It should be noted that the CF Administrative Orders cited in the written complaint submitted to this Office in fact apply to complaints of harassment and thus are not applicable to the redress of grievance filed by Captain Poulin, which complained about the administrative decision taken by Lieutenant-Colonel Cloutier in dismissing his complaints and the process that was followed in arriving at that decision.
Mr. Pellicano explained that the process followed within the CF Grievance Administration involved collecting opinions relevant to the grievance submission from experts and developing a summary of their comments to go before the Chief of the Defence Staff for a decision. Mr. Pellicano related that the role of his office was administrative in nature and, beyond distributing the grievance submission to the appropriate experts and ensuring the completeness of the grievance file, his office was not involved in any investigative process nor did it adjudicate the grievance submissions.
Captain Poulin's submission for redress of grievance was handled by Major Simone Morrissey, Mr. Pellicano's Senior Analyst. On May 4, 1999, a memorandum was issued from Major Morrissey on behalf of Lieutenant-Colonel Pellicano to Captain Poulin via his Commanding Officer, the Commandant of CF Support Unit (Ottawa). Major Morrissey advised Captain Poulin that his grievance could not be considered for adjudication as it did not articulate the redress which was sought as required by CF grievance procedures. In the memorandum, Captain Poulin was informed that no action would be taken on his application for redress until he specified the actual redress he was seeking.
The memorandum dated May 4, 1999 states:
Capt. Poulin is to be advised that the role of this Directorate is to review, administratively investigate and co-ordinate grievance files on behalf of the Chief of the Defence Staff and the Minister of National Defence. An initial review of this file has determined that [Captain Poulin] has not clearly articulated the redress that he is seeking ...
... Capt. Poulin is to be advised that no administrative action will be taken on his application for redress of grievance until such time as the actual redress sought is defined IAW QR&O 19.27.
Captain Poulin did not make any attempt to resubmit his application for redress of grievance specifying the actual redress he was seeking.
The allegation that Mr. Pellicano should not have been involved in the handling of Captain Poulin's application for redress of grievance is based, in part, upon the fact that Mr. Pellicano's spouse was at that time the secretary to Mr. Georges Rioux, Director General Public Affairs at DND. Captain Poulin was at that time and remains a member of the CF who is posted to a division within DGPA. Mr. Pellicano stated to Ombudsman's investigators that he never discussed the content of any grievance, including Captain Poulin's, with his wife. He acknowledged, however, that there is the potential for a perception of bias in some cases.
Assessment
In this case, the redress of grievance filed by Captain Poulin does not appear to list Mr. Rioux, Director General Public Affairs, as either a subject or witness, and the issues complained about and source of the potential for a conflict of interest is not clear. The grievance submitted by Captain Poulin was against the Deputy Provost Marshal Professional Standards, Lieutenant-Colonel Cloutier and then CFPM Brigadier-General Patricia Samson in relation to the administrative decision of Lieutenant-Colonel Cloutier to dismiss Captain Poulin's military police complaints.
Captain Poulin's suggestion that, because the grievance process might be used to consider his complaints of harassment and retaliation against members of Public Affairs, DGPA had an interest in the outcome of his redress of grievance against the CFPM and the Deputy Provost Marshal Professional Standards is speculative at best. It must also be considered that it is the Chief of the Defence Staff who has the ultimate authority to adjudicate a grievance, including any grievance that Captain Poulin might have elected to submit to address his allegations of harassment by members of Public Affairs. In light of all of these factors, I am not satisfied that a reasonable perception of conflict of interest existed in this instance.
I am also not satisfied, based on the evidence collected by my investigators, including the information contained in the grievance file, that the issue of rank influenced the handling of Captain Poulin's grievance. Captain Poulin's grievance was not in fact investigated and was not submitted to the Chief of the Defence Staff for adjudication because it failed to specify the specific redress which was sought, and meet a technical requirement set out in the CF grievance procedures. The memorandum authored by Major Morrissey on behalf of the Director CF Grievance Administration clearly left the door open for Captain Poulin to resubmit his application for redress of grievance, specifying the redress sought as required by the procedures.
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