Investigative independence and accurate terminology

TONY BATTISTA  –  Apr 7, 2021

Editor's note: This is a follow-up to the March article in which Colonel Tony Battista (retired) delves into the complex issues related to reporting and investigating sexual misconduct in the CAF and issues around its culture (https://defence.frontline.online/blogs/60849-Tony-Battista/16059-Ethics-through-Military-Reform​). That earlier article generated significant interest, drawing attention to the need for amendments to the National Defence Act and changes to the HR function – and has led to additional questions and points for readers to consider. Read on for his next set of answers.

Q1: When it comes to investigations related to sexual misconduct, some observers have identified actual or perceived interference from the chain of command as a major impediment to justice. Can you elaborate on the realities of independence of the Military Police and its specialized unit? In particular, does the Canadian Forces National Investigation Service (CFNIS) conduct police investigations independent from the military chain of command, at all times?

I appreciate the opportunity to offer additional comments on this crucially important matter. In my initial article, I responded to ‘investigative independence’ of the Military Police in reference to what is currently in the National Defence Act (NDA), specifically Section 18 that deals with the reporting construct of the Canadian Forces Provost Marshal (CFPM) who is the overall commander of all Military Police units in the CAF, and the tendency from a number of commentators to observe that there may be a (real or perceived) lack of investigative independence, because the CFPM reports to the Vice-Chief of the Defence Staff.

These same commentators often progress to vague recommendations to ‘civilianize' the entire Military Justice System (MJS). Yes, the policing function can be handed over to the RCMP; after all, the wartime Canadian Provost Corps (CPROC) – the precursor to the current Military Police (MP) organization – was born from the RCMP and, yes, the Judge Advocate General (JAG) organization can be civilianized, but this creates complications when CAF units/personnel are deployed outside Canada, and strains the essential operational requirements for commanders. There would inevitably be increased overall cost as well, and possible delays in the administration of discipline and justice.

Despite those complications, this is an important debate to engage in. However, I suggest it be done in an informed, dispassionate, and balanced manner. Otherwise, there is a tendency to ill-inform the Canadian public with distorted views that inevitably cause further strain on all involved, including serving members and their families, and those who aspire to join and serve in the CAF.

While interference can occur in many ways, including indirectly with funding impediments and staffing shortfalls, I suggest that if the MP/CFNIS organization were to be accountable only to the law in all matters pertaining to the policing function, coupled with an empowered, independent (parliamentary) review committee to address functional and operational matters, such as mandate, funding and staffing, this would go a long way to address the independence question.

Being only accountable to the law would also provide greater transparency and trust in the system for all concerned. This is why I suggest the National Defence Act be amended to strengthen the investigative independence of the military police. In my considerate view, these changes to the NDA would remove the perception of interference by the chain of command, would make the military police accountable to the law, and go a long way to rebuilding trust overall for the members of the Canadian Armed Forces.

Q2: Is the CFNIS too slow in conducting its investigations?

It may be so, but I do not have hard data and a reliable way to do a proper comparison with RCMP investigations of comparable complexity. What I can say is that the overall manning priority of the CFNIS (assigned by the Vice-Chief of the Defence Staff) is not sufficiently high, resulting in staffing shortfalls. 

When the foregoing is coupled with funding issues – including the cost of getting expert augmentation from civilian police in a timely manner, the regular posting-in and posting-out of NIS personnel, and the complexities of conducting investigations into alleged offences committed anywhere in Canada, international territory (on the high-seas, for instance) and in foreign countries – the cumulative effect might well contribute to delays in the conduct of investigations.

Anecdotally, I am led to understand that there are challenges with the prosecutorial arm of the Military Justice System (MJS) that might also contribute to delays in hearing charges in a timely manner.

Q3: You raised the ‘unionization’ issue in your earlier post. Any further comments on this?

The unionization question for the CAF is not new; it has been around for several decades. I raised this not in isolation from the other issues dealt with in my article, but to generate greater attention and serious reflection on how the CAF can improve its HR function. Although I'm not comfortable with a unionized CAF, I am even less comfortable with the internal ability to modernize the existing HR system in line with ever-changing societal norms. HR modernization in the CAF speaks volumes in terms of how best to look after its ‘most precious resource’ and, as such, it needs continued attention.

Q4: With Operation Honour terminated, what should replace it to address systemic issues within the military culture?

The Review into Sexual Misconduct, completed by Supreme Court Justice Marie Deschamps and released in March 2015, found “an underlying sexualized culture in the CAF that is hostile to women and LGTBQ members, and conducive to more serious incidents of sexual harassment and assault.” https://www.canada.ca/en/department-national-defence/corporate/reports-publications/sexual-misbehaviour/external-review-2015.html

Operation Honour was a focussed (and limited) response to the Deschamps Review. At best, Operation Honour may have had a training awareness impact and an increased level of discomfort for all concerned with the ‘duty to report’ directive, but not much more.

The challenge now is to replace it with something that will truly address both the cultural root causes and lasting, desired effects for the CAF. We need a mechanism that will focus on “respect” and can bring needed change while raising the level of trust for serving members and those who aspire to join the CAF.

Cultural issues can be difficult to address. It takes time, enlightened leadership, and steady, non-dogmatic persistence that spans the entire life-cycle, from attracting the right people to join the CAF, to their training and education phases, employment, postings, continued upgrading and updating of skills and knowledge, emphasis on leadership accountability and responsibility, all the way to retirement and support for veterans, and their families. But most of all, it takes consistency. In my protracted, humble view, there are no short-cuts!

Q5. Can you elaborate on the accurate use of terminology, especially as it relates to the sexual misconduct continuum?

This is a very important question, one that needs our concerted attention, as we all have a (moral) obligation to get it right. I am disappointed by the confused and confusing comments in the media from both the so-called ‘expert commentators’ and those who should know better. For instance, not differentiating clearly between allegations of criminal offences and non-physical misbehaviour, inevitably leads to confusion and misunderstanding. Sexual assault, a criminal offence, must be investigated by the military police. On the other hand, sexual misbehaviour, such as continuing unwanted advances, making lewd jokes or other verbal innuendo, is more appropriately dealt with administratively (and not by misusing military police resources).

There is a world of difference between a sexual assault case and a case of suggestive sexual comments. Yet, too often in the public domain, the entire range seems to be lumped into the same category of sexual misconduct. This muddies the waters.

Q6: When someone contacts CFNIS or Military Police to file a complaint, the police must do an assessment to decide whether it meets the threshold for the police to pursue it and how. If the evaluation does not call for further police investigation, then what? Is there a clear understanding of what alternative options are available to the complainant?

In my view, having a more streamlined mechanism or agency (again, independent of the chain of command) that would address this continuum and perform an initial ‘triage’ of the range of complaints, would go a long way towards ensuring each case has the appropriate gravity attached to it.

When one categorizes every allegation under the same term of "sexual misconduct", the most egregious actions, such as physical assault or touching, may lose their impact when lumped in with being overheard sharing a lewd joke.

That's not to say lewd jokes cannot prove detrimental to a person’s feeling of self-worth but, if we are to truly fix the culture, such conduct should result in immediate and serious reprimand and sensitivity training, not end a person’s career. Save career-ending results for repeat or criminal cases.

So, if the Military Police determine that a complaint does not meet the threshold for further investigation by them – they need to inform the complainant and explain what non-policing options are available to them. The file should then be documented accordingly for potential followup and long-term tracking purposes to ensure that leadership cannot claim to be unaware of the depths of the many problems.

Q7: If someone raises a complaint to another DND/CAF organization, other than the military police or the chain of command (the Military Family Resource Centre or the DND/CAF Ombudsman, for instance), seeking help to deal with a systemic issue – and the complainant does NOT wish to lodge a formal complaint with the CFNIS or Military Police, then what are the concrete actions to be taken by all concerned?

Apparently, this may have been the dilemma faced by the former DND Ombudsman when he went to his superior – the Minister of National Defence – with information that a complainant wanted to raise in order to help improve the systemic, cultural problems, but without formally lodging a complaint with the Military Police/NIS.

If the wishes of the complainant are to be respected and protected, then clear policies must be put in place. This will also ensure that if the complainant changes his/her mind in terms of reporting the matter at a later date, including going to the media, the organization will have an accurate record on file.

These internal policies – carefully reviewed by legal experts to ensure legal requirements are met – would also compel the complainant to commit in writing that he/she does not want to lodge a formal complaint with the military police. Again, accurate terminology and knowledge are essential for procedural fairness and to getting things right.

Tony Battista served 40 years in the Canadian Armed Forces, retiring at the rank of Colonel in 2014. His varied career included serving as senior Military Police Officer at NDHQ and as Air Force Provost Marshal.