MPCC: Fynes report, Vol. 2, Notice of Action

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7.1 THE NOTICE OF ACTION Introduction 1. The text of the Notice of Action raises a number of concerns. In the limited number of instances where direct response
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7.1 THE NOTICE OF ACTION Introduction 1. The text of the Notice of Action raises a number of concerns. In the limited number of instances where direct responses are given and reasons are provided for rejecting recommendations, the reasons suggest a failure to recognize the seriousness of the deficiencies identified in the Interim Report or a failure to understand the very nature of the issues to be addressed. Many of the responses nominally accepting the recommendations, as well as the few substantive comments made about the Commission’s findings, further confirm a general failure to acknowledge or even recognize what went wrong in this case. 2. The responses included in the Notice of Action often fail to address the issues. They avoid providing direct or clearly discernable answers. The numerous non-committal responses to both the recommendations and the findings provide no information about whether and how the issues will be addressed. Even responses directly rejecting the recommendations generally provide little information about anything the Military Police might do instead to address the issues. The Notice of Action includes various statements indicating issues raised in the Report are being taken seriously and will be addressed, while at the same time providing practically no commitment to any meaningful substantive action to address them. 3. On the whole, the Notice of Action provided by the Military Police leaves the Commission and the Minister of National Defence (MND), as well as the parties and the public (assuming they are eventually allowed to see the Notice of Action), largely without meaningful answers. Instead, the Commission is left with many of the same concerns expressed in the Interim Report and, in some cases, with even greater concerns. ______________________________________________________________________________________ Military Police Complaints Commission - 968 Final Report MPCC 2011-004 The Rejected Recommendations 4. The Notice of Action reproduces each of the Commission’s 46 recommendations, and adds the Military Police’s response to each. None of these responses indicate directly whether the recommendation is “accepted” or “rejected.” 1 The majority of the responses reject the recommendations indirectly, by indicating they will be considered but not stating what will be done about them. 2 A few of the responses express this rejection in more or less direct terms by taking issue with the substance of the recommendations and indicating, albeit generally without using the actual words, that the recommendations will not be implemented. 3 These more direct rejections relate to many of the Commission’s most important substantive recommendations and to all but one of the recommendations related to police independence. 4 5. The reasons provided for these rejections raise a number of concerns. They either ignore the factual issues that made the recommendations necessary in the first place, or display a lack of concern or understanding for those issues. ACQUIRING SUFFICIENT EXPERIENCE TO CONDUCT SUDDEN DEATH INVESTIGATIONS 6. The Commission found numerous serious deficiencies in the conduct of the 2008 sudden death investigation in this case. There were serious flaws in the investigation from the very beginning, when the scene of Cpl Langridge’s death was processed with no clear understanding of the evidence to be gathered, right to the end, when reaching what can only be described as obvious conclusions was greatly and unnecessarily delayed because of an inadequate understanding of what was necessary to rule out foul play. 5 7. There were serious problems at every intervening step. The investigation lacked a coherent plan and was poorly supervised. The requirements for conducting warrantless searches and seizures were not understood. Important witnesses were not interviewed. Cpl Langridge’s suicide note was not disclosed and was eventually forgotten. There was no information provided to the family about the investigation, and no steps were taken to return the exhibits seized until the Detachment was contacted by a third party months after the file was closed. 6 ______________________________________________________________________________________ Military Police Complaints Commission - 969 Final Report MPCC 2011-004 8. The Commission concluded these deficiencies were largely due to the lack of adequate experience of the CFNIS in the conduct of domestic sudden death investigations. 7 9. As a result, the Commission recommended sudden death investigations on defence property be led by experienced civilian police investigators until CFNIS members acquire sufficient field experience through secondments with civilian police forces. 8 The Commission’s recommendations specified that acquiring sufficient field experience would require active and significant involvement in a minimum of 15 sudden death investigations. 9 The Commission did not make these recommendations lightly. The Commission was aware these steps were significant, and would require significant adjustments on the part of the Military Police. However, based on the evidence, the Commission concluded these steps were the only reasonable way to address the issues and prevent a recurrence of the deficiencies observed in the 2008 investigation. 10. In the Notice of Action, the Military Police rejects all of the Commission’s recommendations on the conduct of sudden death investigations. The Notice of Action states clearly the Military Police will continue to conduct sudden investigations on defence property. 10 The Military Police indicates it will amend policies and “where required” will put in place protocols to allow the involvement of civilian police investigators in support of sudden death investigations on defence property. However, and crucially, contrary to what was recommended by the Commission, the involvement contemplated will not permit their assignment as lead investigators in those cases. 11 In terms of the secondments recommended by the Commission so as to allow CFNIS members to gain the necessary field experience, the Notice of Action does indicate agreement, in general terms, to seek more positions to allow secondment to civilian police forces. 12 However, the Military Police does not appear to recognize such secondments as necessary for its members to gain sufficient experience in the conduct of sudden death investigations. Instead, it commits to carrying out consultations and leveraging partnerships with other forces “to determine what additional opportunities may be available for CFNIS investigators to gain sufficient experience in sudden death investigations to qualify as lead investigators.” 13 ______________________________________________________________________________________ Military Police Complaints Commission - 970 Final Report MPCC 2011-004 11. The Military Police also rejects the Commission’s recommendation as to what constitutes sufficient field experience to qualify as a lead investigator in sudden death cases, instead indicating it will determine and implement “best practices with respect to necessary qualifications […], subject to the exigencies of the service, to ensure that policing duties and functions are performed that meet the standards required of policing in Canada.” 14 The Notice of Action does not even provide a general commitment to seek assistance from other police forces in sudden death cases, indicating only that assistance from experienced civilian police investigators, including the Military Police’s embedded RCMP Inspector, will be sought “where required if sufficiently experienced [MP] investigators are unavailable.” 15 12. There is only one reason given for rejecting the recommendations. It is listed several times in the Notice of Action, both in response to the factual findings of deficiencies in the sudden death investigation and in response to the recommendations themselves. In response to the findings, the Military Police indicates it acknowledges the “relative inexperience” of the members who conducted and supervised the investigation in this case, but adds: “However, since 2008, the CFNIS has gained considerable experience with investigating sudden deaths with 173 investigations done by MP including 74 overseas.” 16 In the response to Recommendation 3, the Notice of Action in essence repeats this formula, but with an unexplained difference in the statistics cited, stating: “Since 2008, MP have gained significant experience through the investigation of 178 sudden deaths occurring within their jurisdiction.” 17 13. As the Military Police considers the CFNIS’ sudden death investigation experience to be sufficient at this time, it sees no need to implement immediate measures to increase this experience, and will not allow investigators from other police forces to act as lead investigators for the sudden death investigations within its jurisdiction. No specific reasons are provided for rejecting the Commission’s recommendation as to the experience necessary for CFNIS members to qualify as lead investigators in sudden death cases. 14. The additional experience gained since 2008, which the Notice of Action describes as “considerable” 18 and “significant” 19, does nothing to allay the concerns that made the ______________________________________________________________________________________ Military Police Complaints Commission - 971 Final Report MPCC 2011-004 Commission’s recommendations necessary in the first place. The actual experience the Military Police is said to have gained in the interim period, on examination, proves to be extremely limited in real terms. It cannot be sufficient to provide any assurances the MP members have sufficient field experience to qualify as lead investigators in sudden death cases. In fact, the experience the Military Police states it has gained amounts to the equivalent of less than two weeks of work by the section of the Edmonton Police Service (EPS) in charge of investigating sudden deaths, performed each year by all CFNIS Detachments across Canada combined. 15. According to the Notice of Action, of the 173 sudden death investigations conducted by the CFNIS since 2008, only 99 were not overseas. 20 Experience conducting investigations into battlefield deaths is significantly different from, and does not constitute adequate preparation for, the conduct of domestic sudden death investigations. 21 The total experience gained by the CFNIS in the conduct of domestic sudden death investigations over six years therefore amounts to less than 17 cases per year, divided across the different detachments. By comparison, the evidence before the Commission has shown the EPS alone investigates one to two sudden deaths each day. 22 In one week alone, the EPS would often investigate nearly as many sudden deaths as all of the CFNIS detachments in Canada combined would investigate in one year. Therefore, any one of the roughly 120 CFNIS investigators 23 would be in the exceptional minority should he or she investigate even one sudden death case per year. At this rate, it will still be many years before most CFNIS investigators gain the active and significant experience in 15 sudden death investigations recommended by the Commission as the minimum requirement, 24 and many decades before they gain experience equivalent to that of even fairly junior investigators from civilian police forces working in large urban centers. As such, it is difficult to understand how the limited additional experience acquired by the Military Police since 2008 could be viewed as sufficient reason for rejecting the Commission’s recommendations. 16. Based on the evidence heard in this Hearing, there are serious reasons to doubt any additional experience gained by the Military Police has as yet had an impact in terms of identifying the deficiencies noted in the conduct of the 2008 sudden death investigation or of preventing their recurrence. Despite any additional experience gained in the interim, the ______________________________________________________________________________________ Military Police Complaints Commission - 972 Final Report MPCC 2011-004 CFNIS witnesses who testified at the Hearing in 2012 were still in the dark about the most important problems with the 2008 sudden death investigation. 25 Instead, they agreed with the conclusion reached following a 2009 Quality Assurance review that the investigation was “technically sound.” 26 It is clear from the testimony of the CFNIS witnesses, including those in supervisory and leadership positions, that the glaring deficiencies in the 2008 sudden death investigation conducted in this case had not been recognized by the CFNIS, its members or its chain of command by the time this Hearing was held in 2012. 27 The limited additional experience gained within the organization by 2012 was not sufficient to allow its members to recognize and address the issues. It is doubtful two more years of experience, amounting to a little over 30 cases divided among all Detachments and members, would make a significant difference in this respect, when the previous four years, involving a little under 70 cases conducted, did not. 17. The Notice of Action provides no indication the deficiencies in the investigation have been recognized or specifically addressed. The responses to the findings do acknowledge the Commission’s conclusion that the serious deficiencies in the investigation mostly resulted from the lack of experience of the members who conducted and supervised it. 28 However, the responses fall short of acknowledging the actual deficiencies identified, or the more generalized failure of the CFNIS as an organization to recognize and address those deficiencies prior to the date of the Hearing being held. 29 18. The responses display a reluctance on the part of the Military Police to seek assistance from other police forces. Having indicated clearly that civilian police investigators will not be called on to lead sudden death investigations on defence establishment property under any circumstances, the Notice of Action goes on to stress that even when it comes to seeking assistance from civilian police, the Military Police will retain for itself the discretion as to when to seek support and from whom. In the response to Recommendation 3, the Military Police states “experienced federal, provincial or municipal police investigators, including our embedded RCMP Inspector, will be consulted where required if sufficiently experienced investigators are unavailable.” 30 In rejecting the recommendation to put in place protocols to have civilian police lead sudden death investigations until the CFNIS acquires sufficient experience, the Military Police does ______________________________________________________________________________________ Military Police Complaints Commission - 973 Final Report MPCC 2011-004 agree to pursue protocols to secure the agreement of civilian police forces to “provide support to MP for the investigation of sudden deaths,” but specifies these protocols will only be sought, “where required.” 31 19. The fact that there are cases where sufficiently experienced Military Police members will not be available, and that in such cases the Military Police still intends to have these members lead the investigation, albeit with the assistance of civilian police, is extremely concerning. The Commission’s recommendation to have civilian police investigators lead the investigations until the Military Police gains sufficient experience was rejected based on a claim that the experience has now been gained. No explanation is provided in the Notice of Action as to why, in cases where such experience is not present, the Military Police will only agree to seek assistance and not to allow other, more experienced police members to lead the investigation. The apparent intention to continue conducting sudden death investigations even where sufficiently experienced MP investigators are not available, seems the ultimate demonstration of lack of recognition by the Military Police of the Commission’s findings about what can (and did) happen when inexperienced investigators and supervisors are put in charge of a complex investigation. 20. The insistence on not seeking assistance in all cases is also surprising. Whatever view one may take as to the sufficiency of the experience acquired by the Military Police, it is clear that in all but the rarest of circumstances, civilian police agencies would have far more experience. As such, it is difficult to understand why the Military Police would not wish to ensure its members are able to benefit from this assistance and mentorship in as many cases as possible. Instead, the Military Police indicates assistance will be sought only in cases where sufficiently experienced Military Police investigators are not available. 32 The manner in which the sufficiency of the experience will be determined is not revealed in the Notice of Action, as it is stated it will be determined based on future research into best practices and policing standards. 33 21. Relying on Military Police members who may themselves lack sufficient experience to determine whether and when to seek assistance is also problematic. In this case, the CFNIS had available an embedded RCMP Inspector at the time of the sudden ______________________________________________________________________________________ Military Police Complaints Commission - 974 Final Report MPCC 2011-004 death investigation. Significantly, he was not consulted by any of the investigators or their superiors. 34 Not surprisingly, those who lacked the experience to conduct the investigation also lacked the ability to recognize their own need for guidance. Indeed, as the Commission has found in this Report, it is not reasonable to expect inexperienced members to be able to recognize their own shortcomings or needs. 35 Yet, based on the responses in the Notice of Action, it appears this is precisely what the Military Police intends to do, leaving it yet again in the hands of members with limited experience to determine whether and when it will be advisable or necessary to seek guidance from outside investigators with more experience. 22. On the whole, the evident unwillingness to seek meaningful assistance and involvement from other police forces that do have the necessary substantive experience can be seen to indicate a disregard for the seriousness of the issues observed in this case. Similarly, the rejection of the Commission’s recommendations on the basis that sufficient experience now exists, when the additional experience is very limited, leaves open the question whether the Military Police in fact understands or appreciates the nature and seriousness of the deficiencies identified during this Hearing. MAINTAINING SEPARATION BETWEEN THE CAF AND THE MP IN MEDIA RELATIONS MATTERS 23. The Notice of Action rejects the Commission’s findings and recommendations on media relations matters affecting both the Canadian Armed Forces and the Military Police. 36 24. The first recommendation on this issue appears, to a certain extent, to be accepted in principle. The Commission recommended providing policy guidance to MP members with respect to media and public relations practices, in order to safeguard both the fact and the perception of police independence. 37 In the response, the Notice of Action states as part of the ongoing review of MP policies, the relevant order will be reviewed, and the Military Police will then “consider the wording and spirit of the Commission’s recommendation in order to safeguard both the fact and the perception of police independence.” 38 Since the recommendation was general in nature, and simply called for ______________________________________________________________________________________ Military Pol
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