Military Police
Complaints
Commission
Commission d'examen des
plaintes concernant
la police militaire
FYNES PUBLIC INTEREST HEARINGS
held pursuant to section 250.38(1) of the National Defence Act,
in the matter of file 2011-004/
LES AUDIENCES D'INTÉRÊT PUBLIC SUR FYNES
tenues en vertu du paragraphe 250.38(1) de la Loi sur la défense nationale
pour le dossier 2011-004
TRANSCRIPT OF PROCEEDINGS/
TRANSCRIPTION DE L'AUDIENCE
BEFORE/DEVANT:
Mr. Glenn Stannard
Ms Raymonde Cléroux
Ms Hanan Rahal
Chairperson/Président
Registrars/Greffières
APPEARANCES/COMPARUTIONS:
Ms Geneviève Coutlée
Mr. Mark Freiman
Mr. Rob Fairchild
Commission counsel/
Avocats de la Commission
Ms Elizabeth Richards
Ms Korinda McLaine
For/pour Sgt Jon Bigelow, MWO Ross
Tourout, LCol Gilles Sansterre,
WO Blair Hart, PO2 Eric McLaughlin,
Sgt David Mitchell, Sgt Matthew Alan
Ritco, Maj Daniel Dandurand,
Sgt Scott Shannon, LCol Brian Frei,
LCol (Ret’d) William H. Garrick,
WO (Ret’d) Sean Der Bonneteau,
CWO (Ret’d) Barry Watson
Col (Ret’d) Michel W. Drapeau
Ms Marie-Christine Fortin
For/pour Mr. Shaun Fynes and
Mrs. Sheila Fynes
HELD AT:
10th Floor
270 Albert Street
Ottawa, Ontario
10 September 2012
TENUE À:
10e étage
270, rue Albert
Ottawa (Ontario)
10 septembre 2012
Volume 44
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- ii TABLE OF CONTENTS/TABLE DES MATIÈRES
PAGE
SWORN:
LIEUTENANT COLONEL BRUCE MacGREGOR
EXAMINATION BY MR. FREIMAN
1
1
EXAMINATION BY COL (RET'D) DRAPEAU
125
EXAMINATION BY MS RICHARDS
140
EXAMINATION BY COL (RET'D) DRAPEAU
150
EXAMINATION BY THE CHAIRPERSON
151
EXAMINATION BY MS RICHARDS
158
SWORN:
SWORN:
SWORN:
163
163
163
S/SGT WILLIAM CLARK
INSP BRENDAN FITZPATRICK
DET. INSP. WILLIAM OLINYK
EXAMINATION BY MS COUTLÉE
166
EXAMINATION BY COL (RET'D) DRAPEAU
302
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NO.
DESCRIPTION
PAGE
P-151
Witness Book for Lieutenant
Colonel Bruce MacGregor
P-152
Accountability, Independence
and Consultation Documents
provided by Ms Richards
61
Director of Military Prosecutions'
Policy Directive 009/00,
Communications with Unit Legal
Advisors
61
Director of Military Prosecutions'
Policy Directive 005/99,
Communications with Service
Authorities
61
P-153
P-154
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Ottawa, Ontario / Ottawa (Ontario)
--- Upon resuming on Monday, September 10, 2012
3
at 0931 / L'audience reprend le lundi
4
10 septembre 2012 à 0931
5
THE CHAIRPERSON:
6
Mr. Freiman...
7
MR. FREIMAN:
8
Good morning.
Good morning,
Mr. Chair and Madam Registrar.
9
We have a document to enter this
10
morning, which is the Witness Book for
11
Lieutenant-Colonel MacGregor.
12
13
MS RAHAL:
It will be Exhibit
P-151.
14
EXHIBIT NO. P-151:
Witness
15
Book for Lieutenant-Colonel
16
Bruce MacGregor
17
MR. FREIMAN:
18
Our witness for this morning is
19
Lieutenant-Colonel Bruce MacGregor.
20
THE CHAIRPERSON:
21
sir.
22
SWORN:
23
EXAMINATION BY
Good morning,
Welcome.
LIEUTENANT-COLONEL BRUCE MacGREGOR
24
25
Thank you very much.
MR. FREIMAN:
Good morning,
Lieutenant-Colonel MacGregor.
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I wonder, to get us started,
2
whether you can give us some information about
3
your own personal background, both in the military
4
and in the area of law.
5
6
LCOL MacGREGOR:
Good morning, Mr.
Chair and counsel, and other attendees.
7
I am Lieutenant-Colonel Bruce
8
MacGregor.
I have been a Legal Officer, enrolled
9
in the Canadian Forces since 1997, but prior to
10
that I had six years of legal experience.
11
admitted to the Nova Scotia Bar Society in 1991,
12
and I practised for six years in New Glasgow, Nova
13
Scotia.
14
was criminal law.
15
defence, although I was a federal prosecutor.
16
was a Town of New Glasgow prosecutor.
17
environmental prosecutions, I did drug
18
prosecutions, I did some administrative law.
19
was the junior counsel involved in the Westray
20
matter, as counsel for Curragh, until they no
21
longer were a company.
22
23
My primary area of law that I practised
I did, primarily, criminal
I
I did
I
So I have an extensive criminal
defence background.
24
25
I was
And then I joined the military and
went to Victoria for my first posting in 1997.
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was the Deputy Judge Advocate for the Pacific
2
Fleet, and I did that for three years, where I was
3
advising the naval contingent on the West Coast.
4
5
I, in fact, deployed with the Navy
to the Arabian Gulf in 1999.
6
So that was 1997 to 2000.
Then,
7
in 2001, I became the Director of Military
8
Prosecutions 3, which was a position -- mostly
9
policy and certain high profile prosecutions.
10
example is the first prosecution of a general
11
rank, who was actually a commodore, back in 2001.
12
I did a number of prosecutions at
13
that point in time, but I was also a mentor to
14
some of the junior counsel.
15
One
I was put in that position even
16
though I hadn't been in DMP before because of my
17
extensive criminal law background.
18
That was until 2004, and then I
19
was posted to admin law, the Directorate of
20
Administrative Law and Personnel.
21
short period of time in 2004, because then I was
22
moved, a number of months later, to be one of the
23
counsel on the JAG Internal Review Team to review
24
the Lamer Report of 2003, in terms of helping to
25
develop a policy and legislative response to the
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Lamer Report.
2
I am sure you are familiar with
3
that, I don't need to get into too much detail on
4
that.
5
Then, in 2005, I went to the
6
University of Ottawa to do my Master's in Law.
7
focus on that was administrative law, and my major
8
paper was "Procedural Fairness of Military Boards
9
of Inquiry".
10
My
In 2006 I graduated, and they put
11
me back as the Deputy Director of Military
12
Prosecutions.
13
Military Prosecutions from 2006 until January
14
2009.
15
I was the Deputy Director of
I am sure you will have some
16
questions about that position, so I won't belabour
17
that point.
18
In January 2009, until the end of
19
July 2009, I was the sole legal advisor to the UN
20
mission in Sudan contingent.
21
troops, and I was the sole legal advisor to the
22
Force in Khartoum.
23
months.
24
25
There were 10,000
That was a deployment of six
Following that I came back in
August of 2009 and became the Director of Military
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Justice - Policy and Research, as it then was, and
2
that was here in Ottawa.
3
That directorship was responsible
4
for the legislative reform, regulatory reform
5
policy, and assisting the Judge Advocate General
6
in his superintendent's role in the military
7
justice system.
8
9
I did that until we changed the
operations' dynamic of the Military Justice -
10
Policy and Research, and I became the Director of
11
Military Justice - Operations.
12
position, established April 1st, 2011.
13
That was a new
Then, in the summer of 2011 I
14
became the Director of Military Justice -
15
Strategic.
16
legislative reform of -- basically, our fourth
17
attempt at trying to get legislation through in
18
response to the 2003 Lamer Report.
19
So that, again, was looking at the
My career has been very much on
20
the military justice side.
21
had very much been on the criminal justice side.
22
So here I am today.
23
My pre-military career
MR. FREIMAN:
If it weren't a
24
conflict, I would ask you to talk a little bit
25
more about procedural fairness.
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paper on it tomorrow --
2
--- Laughter / Rires
3
MR. FREIMAN:
4
all the help I can get.
5
that.
6
7
But I won't ask about
What I will ask, though, is about
your current position.
8
9
-- and I could use
This may or may not strike you as
being a fair summary, but is it fair to say that
10
what you do in your job is look at the big picture
11
of what the military justice system does and why
12
it does it, or why --
13
14
It's not just the operation, but
the rationale behind it.
15
LCOL MacGREGOR:
I look at -- what
16
we like to say in the military -- and I just want
17
to make one proviso.
18
A month ago I was taken out of --
19
I was posted out of the military justice strategic
20
position and now I'm on a French course, just to
21
clarify that.
22
But in answer to your question,
23
sir, I would say that, as we like to say, I do the
24
strategic looking, I look at operational aspects,
25
and sometimes I sink into the tactical side of it.
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2
So I have a plethora of all three,
I think.
3
MR. FREIMAN:
You run the gamut.
4
LCOL MacGREGOR:
5
MR. FREIMAN:
I do.
Let me start just by
6
trying to get a little bit of orientation into the
7
structure of the Judge Advocate General's office
8
and what it is composed of.
9
You talked about a number of
10
directorates.
Do I understand that the office is
11
divided into directorates, or what are the units?
12
LCOL MacGREGOR:
13
the entire morning, we start off with the Judge
14
Advocate General, who is appointed, obviously.
15
think you are familiar with it.
16
17
been provided to me -- thank you -- at Tab 2.
The JAG is appointed by the
Governor in Council.
20
MR. FREIMAN:
21
LCOL MacGREGOR:
22
is set out in section 9 of the National Defence
23
Act.
24
25
I
We have the documentation that has
18
19
Without taking up
Yes.
His appointment
His role is set out in
"Superintendence of military justice", under 9.2
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of the National Defence Act.
2
3
But we have the JAG, and then we
have a number of colonels below the JAG.
4
We had -- up until 2011 we had a
5
Director of Military Justice and Administrative
6
Law.
7
Look, this is just way too big a directorate, we
8
have to split it up and make it a Director of
9
Military Justice, or a Deputy Judge Advocate of
I was part of the internal advocacy to say:
10
Military Justice -- or a Deputy Judge Advocate
11
General of Military Justice, and then a Deputy
12
Judge Advocate General of Administrative Law.
13
So those are two independent,
14
distinct divisions right now.
15
We also have other divisions.
16
have Operations.
17
colonel is responsible for all of the AJAG offices
18
across the country and in Europe.
19
20
That
And we have a chief of staff, who
is also a colonel.
21
22
We have Regional Services.
We
I think there are seven in total.
So that's how it is broken up.
23
And, then, underneath that --
24
because I think that you are probably focused more
25
on the military justice side of it, if that's what
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your question is -- underneath our Deputy Judge
2
Advocate General of Military Justice, we have two
3
directorates, Military Justice - Operations and
4
Military Justice - Strategic.
5
I have been the director of both.
6
Military Justice - Operations, you
7
have a number of lawyers that work under that
8
lieutenant-colonel, and that provides legal advice
9
across the country and over into Europe on
10
military justice issues writ large, as well as
11
providing direct support to the Military Police.
12
13
That's Military Justice Operations.
14
Military Justice - Strategic is
15
more looking at the legislation, regulations,
16
policy, and, as well, looking at the system writ
17
large.
18
Operations is also responsible for
19
one of the statutory obligations of the JAG, which
20
is doing the annual report on the military justice
21
system.
22
I am not sure if you want me to go
23
into other aspects of the Judge Advocate General's
24
office, because I could go on.
25
MR. FREIMAN:
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go into any aspect of the Judge Advocate General's
2
office that involves the delivery of legal advice
3
or legal support, whether it's to the military
4
justice system or to units, or however that is
5
organized.
6
LCOL MacGREGOR:
The colonel
7
responsible for operational law has a number of
8
directorates under him that deal with information,
9
ops and those types of things, as well as
10
supporting what was Canada Command and CEFCOM,
11
which are international operations, assisting
12
deployed officers, deployed legal officers, who
13
are deployed to assist the chain of command in
14
operational zones.
15
When I was in Sudan, for instance,
16
I would have been dealing with the DJAG -
17
Operations at that point in time.
18
So that would be a myriad of legal
19
advice to deployed legal officers, with units all
20
over the world.
21
With respect to giving legal
22
advice out in the regions, that is the DJAG -
23
Regional Services, and that is probably our
24
largest division, because we have AJAGs from --
25
AJAGs are lieutenant-colonels, and
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what they are responsible for is providing legal
2
advice in a particular region.
3
For instance, when I was in
4
Victoria, I had an AJAG who was at the
5
lieutenant-colonel rank, or actually the commander
6
rank, which is the same thing for the Navy, and we
7
gave legal advice to everybody in that region,
8
including Comox and Chilliwack, and Victoria, the
9
fleet.
10
There is an AJAG in Edmonton that
11
gives legal advice to our troops in Edmonton and
12
throughout Alberta and Saskatchewan, but
13
particularly the Army.
14
We have an AJAG in Winnipeg that
15
gives legal advice to the Air Force, but in any of
16
our military in that region, which would include
17
Shilo, Manitoba, which is primarily an Army base.
18
Then we have an AJAG in Toronto,
19
which gives legal advice there.
20
equivalent to an AJAG in Ottawa, one in Montreal,
21
and an AJAG in Halifax, which does the Atlantic
22
Region.
23
We have an
We have an AJAG in Geilenkirchen,
24
Germany, that supports our troops in Europe.
25
is actually AJAG - Europe, which deals with the
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NATO SOFA and international law.
2
If a question arises as to who
3
gives legal advice to the Military Police, non-NIS
4
Military Police, in each of those regions, it
5
would be the AJAG or the Deputy Judge Advocates
6
that work for the AJAG in those regions.
7
MR. FREIMAN:
Okay.
And that was
8
really my next question, is the Military Police
9
appeared to have two sources, am I correct, for
10
advice?
11
Police, non-NIS, have a different source.
12
The NIS has one source and the Military
LCOL MacGREGOR:
For -- for legal
13
advice to the Military Police, you're essentially
14
correct, sir, but with -- I'll with the NIS first.
15
The NIS and the documents that
16
have been provided to this Commission, it's set
17
out in this book that's here before me -- you have
18
a letter of agreement between the Director of
19
Military Prosecutions and the Provost Marshal
20
about the role and responsibilities of the
21
legal -- CFNIS legal adviser.
22
As well, at Tab 6, you have the
23
service level agreement between the DMP and the
24
Command Officer of the NIS.
25
Those documents have been provided
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to you to sort of give an essential flavour, is
2
how the Director of Military Prosecutions and his
3
team, the Canadian Military Prosecution Service,
4
give legal advice to the NIS.
5
They -- the prosecution team is
6
spread out across the country.
7
of -- we have the DMP and, I believe, two DDMPs
8
here in Ottawa.
9
We have a number
We have a number of regional
10
Military Prosecutors here in Ottawa, but we also
11
have some regional Military Prosecutors in
12
Valcartier, does the Quebec region, in Halifax,
13
Edmonton and now Victoria.
14
of the regional DDMPs in Victoria.
15
We have one of -- one
So these lawyers give legal advice
16
specifically to the National Investigation
17
Service.
18
With respect to -- and that's
19
with -- we also have an embedded prosecutor that
20
actually works at 2200 Walkley, which is the
21
headquarters for the Military Police and the NIS.
22
We have an embedded prosecutor that's with part of
23
the CMPS, Canadian Military Prosecution Service,
24
who works in situ with the NIS.
25
Now, with the Military Police,
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non-NIS, they're spread out across the country and
2
they -- when they are doing investigations,
3
disciplinary investigations, they have access to
4
the regional Military -- or, sorry, to the AJAG
5
offices and the Deputy Judge Advocates that work
6
for those AJAGs.
7
So if they're -- if they're doing,
8
say, an assault investigation in, say, Edmonton,
9
they will use the Edmonton AJAG office.
The
10
Military Police, the non-NIS Military Police, will
11
use the AJAG office in Edmonton and talk to one of
12
the lawyers there to assist them.
13
When I was in Victoria, I assisted
14
the Military Police on some of their
15
investigations, some of their questions.
16
great deal of training to assist them in
17
fine-tuning their abilities and in terms of
18
getting -- you know, doing better -- you know,
19
better investigative work.
20
I did a
Now, we also have -- so that's --
21
those are the guys outside of Ottawa, primarily.
22
We have also have -- we have the
23
MP Headquarters at 2200 Walkley here in Ottawa,
24
and if they were looking for policy work -- or
25
policy advice from a legal perspective, we have
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two -- we have two legal officers out of Military
2
Justice Operations that work at 2200 Walkley and
3
provide legal advice to the Military Police, to
4
the Provost Marshal directly, and to their upper
5
hierarchy of the Military Police.
6
MR. FREIMAN:
Okay.
I just want
7
to get a bit of clarification before we on to the
8
NIS.
9
For the non-NIS Military Police,
10
my understanding is that they get their advice in
11
the regions --
12
LCOL MacGREGOR:
13
MR. FREIMAN:
14
M'hmm.
-- from legal
officers deployed in the region.
15
Now, are those legal officers
16
dedicated for purposes of charge screening and
17
such like, or do they provide a variety of
18
services?
19
LCOL MacGREGOR:
Oh, they provide
20
a variety of services.
21
officers are, you know -- I don't want to use the
22
term "general practitioners", but they do a myriad
23
of tasks in terms of giving legal advice to the
24
Military Police as well as the chain of command.
25
It's not -- those legal
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Okay.
So their
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clients, if we can use the word "clients" in this
2
context, extend beyond the Military Police and
3
beyond matters dealing with the military justice
4
system.
5
6
LCOL MacGREGOR:
Absolutely.
did in Victoria.
7
MR. FREIMAN:
8
So I want to turn to military
9
As I
All right.
operations for -- in a moment, but just as a
10
general matter, is there communication back and
11
forth among the various Directorates, or are they
12
silos?
13
And I'm thinking specifically of
14
the two areas where the Military Police, the NIS
15
on the one hand and the regular Military Police on
16
the other, get their advice.
17
LCOL MacGREGOR:
Well, okay,
18
that's -- it -- that's a pretty broad question in
19
the sense that if what you're looking at is do
20
the -- do the DJAG -- or the DJAs, the Deputy
21
Judge Advocates, in the regions, do they have an
22
opportunity to talk to prosecutors.
23
they have an opportunity to talk to prosecutors.
24
25
Absolutely,
And we have -- if the focus of
your question is asking how do prosecutors deal
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with or communicate with lawyers that are
2
working -- military lawyers that are working in
3
the regions that are non-prosecutors, we have -- I
4
believe you have some -- a document here from the
5
18 March 2009 that talks about -- or it's a DMP
6
policy that is specifically dealing with
7
communications with unit legal advisers.
8
I believe you that document.
9
MR. FREIMAN:
10
Can you give us the
gist of that document?
11
LCOL MacGREGOR:
The gist of that
12
document is to make it publicly available and also
13
to give direction to the prosecutors because there
14
is an independent aspect to the prosecutors from
15
the rest of the office of the JAG in terms of what
16
they're doing.
17
And it's to illustrate the
18
different purposes between prosecuting legal
19
officers and non-prosecuting legal officers.
20
MR. FREIMAN:
21
LCOL MacGREGOR:
Yes.
So I mean, I'm
22
certainly happy to walk you through that, but that
23
does set out how prosecutors can communicate with
24
unit legal advisers.
25
MR. FREIMAN:
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Okay.
Well, in
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words of -- or in brief, what is the protocol for
2
that sort of communication?
3
4
Is it direct, is it indirect?
How
do -- what are the nuts and bolts?
5
LCOL MacGREGOR:
Well, I guess the
6
nuts and bolts are showing that the Military
7
Prosecutors, they give legal advice to the NIS.
8
If the Military Police are doing an investigation
9
on a potential service offence, it'll be the local
10
lawyers in the AJAG offices that give that legal
11
advice.
12
If it's a situation where the
13
Military Police are looking at something that is
14
obvious -- or that there is no -- there is no
15
potential for that charge that they're looking at
16
for it to be a summary trial versus a
17
court-martial offence, so there's -- the
18
jurisdiction is clearly only to be a
19
court-martial, then what happens is that the --
20
instead of the AJAG's office lawyers looking at
21
that, they'll pass that on to the prosecution,
22
Regional Military Prosecutor, to take a look at
23
that in terms of meeting the 107 -- QR&O 10703
24
pre-charge screening that is necessary before a
25
charge can be laid.
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Now, as you know, Military Police
2
can't lay charges in the military justice system
3
unless they're in the NIS pursuant to QR&O 10702,
4
but --
5
MR. FREIMAN:
May I can just stop
6
you for a moment and clarify my question.
7
Really, if you look under
8
Statement of Policy in this document, it says:
9
"It is essential that they
10
ensure..."
11
12
They being the prosecutors and
unit legal advisers:
13
"...ensure proper coordination
14
while still maintaining the
15
independence necessary to
16
exercise prosecutorial
17
discretion."
18
LCOL MacGREGOR:
19
MR. FREIMAN:
20
Correct.
So that's the goal
of the policy.
21
I'm not sure I understand what the
22
nuts and bolts are that, on the one hand, allow
23
proper coordination; on the other hand, ensure
24
necessary independence.
25
LCOL MacGREGOR:
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Okay.
Well, I
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1
mean, that's -- the nuts and bolts, if you're a
2
prosecutor in the Canadian Military Prosecution
3
Service and you are giving legal advice to the
4
NIS, then that -- then you are within a silo that
5
you are providing legal advice to the NIS.
6
not disclosing that legal advice to the -- to the
7
legal advisers in the AJAG offices.
8
9
You're
The AJAG offices, they give their
legal advice to the Military Police and to the
10
units, and that's not -- and that's not being sent
11
over to the Military Prosecutors.
12
If we have a situation where we
13
wanted to have more experienced AJAG lawyers to
14
potentially move over to being in the Prosecution
15
Service, we would have a second chair.
16
We would sometimes have an AJAG
17
lawyer work on a prosecution with one of the
18
Canadian Military Prosecutors, but we would
19
have -- we would set up a silo when they were
20
doing that that they would not be able to disclose
21
that information on the prosecution or the
22
information provided to the NIS to the AJAG office
23
or to the chain of command.
24
MR. FREIMAN:
25
got us off on the wrong foot by calling them
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Okay.
And I think I
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1
silos, which is the term I'm used to looking in
2
terms of government operations.
3
it from a legal point of view.
4
But let's look at
Is there a legal structure that's
5
put into place?
Are there ethical screens, or is
6
not necessary to go to that sort of formal
7
arrangement?
8
LCOL MacGREGOR:
Oh, no.
We have
9
it throughout our policies that you have before
10
you.
It's expressly stated that the information
11
that is being provided to the prosecutor is not to
12
be shared with the AJAG office.
13
So if I, as a Regional Military
14
Prosecutor, was providing legal advice to the
15
National Investigation Service, that is not --
16
it's specifically in these policies that it's not
17
to be shared with the chain of command or with the
18
AJAG office.
19
MR. FREIMAN:
Okay.
No, I
20
understand the policy.
21
if there is some issue of passage of information,
22
there are specific policies that are put into
23
place and there are specific arrangements that the
24
law societies have deemed to be sufficient that
25
screen members of the firm from any access to any
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1
sort of documentation.
2
3
Is that degree of formality
followed in the JAG?
4
LCOL MacGREGOR:
Absolutely.
It's
5
set out throughout these policies that the
6
information is not -- and one of the other
7
policies that you have here is communications with
8
service authorities.
9
It sets out that the prosecution
10
is not to be sharing certain type of information
11
with the service authorities.
12
However, that doesn't mean that
13
they're completely shut out from talking to the
14
service authorities or giving -- giving service
15
authorities an understanding what the status of a
16
prosecution is.
17
But we certainly have that set out
18
in these policies.
And if you want to go through
19
that, I certainly am willing to do that.
20
But you just --
21
MR. FREIMAN:
22
LCOL MacGREGOR:
Okay.
I --
-- mentioned
23
ethics, though, sir, and I think that's very
24
important.
25
Just because we're legal officers
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1
and maybe a Regional Military Prosecutor or what,
2
or even the JAG himself, we're all subject to the
3
provincial codes of ethics as well.
4
So if you're referring to codes of
5
ethics for provincial bars, we're the same as
6
you --
7
MR. FREIMAN:
8
LCOL MacGREGOR:
9
Yeah.
-- in terms of
being subject to our codes of ethics.
10
MR. FREIMAN:
Well, I used the
11
words "ethical screen" because I think that in the
12
21st century we're no longer allowed to talk about
13
Chinese walls, but that's what I meant.
14
That's a formal structure that's
15
put into place where a list of people is compiled
16
who have access to information and no one other
17
than the people on that list is allowed to have
18
access to that information.
19
20
What I was intending to ask you
is, is that the practice --
21
LCOL MacGREGOR:
22
MR. FREIMAN:
23
-- within the
Prosecution Service?
24
25
Yes.
And so for any given file, or is
for all prosecution files that listed people have
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1
access?
2
LCOL MacGREGOR:
Well, there's
3
no -- there's no list of people that have access.
4
But what the guidance is and the policy,
5
specifically, is that the prosecutor shall not
6
disclose the solicitor-client privileged
7
information or the prosecution information to
8
anybody outside of the Prosecution Service
9
unless -- unless the DMP is -- well, says
10
otherwise, essentially.
11
12
And I'll see if I can point that
out to you.
13
14
MR. FREIMAN:
that, if you don't mind.
15
16
Yes, I'd like to see
LCOL MacGREGOR:
Okay.
LCOL MacGREGOR:
Okay, I'm going
--- Pause
17
18
to take you, sir, to the Accountability,
19
Independence and Consultation Policy.
20
MR. FREIMAN:
21
LCOL MacGREGOR:
22
you to paragraph 27.
23
24
Yes.
And I'll refer
Okay.
And I'll go through that for the
record:
25
"Generally, legal advice given
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1
by a prosecutor to
2
investigative agencies is
3
protected by solicitor-client
4
privilege.
5
not release the legal opinion,
6
refer to it or describe it in
7
any fashion to defence
8
counsel, a Commanding Officer
9
of the accused or the public
A prosecutor may
10
unless the privilege has been
11
waived."
12
And then it talks about the
13
exceptions to the general rule, for example, the
14
Shirose and Campbell, Supreme Court of Canada
15
decision, Crown sought defendant -- so that's -- I
16
think that gives you a clear understanding that
17
that's a highly-protected privilege even within
18
the JAG office.
19
MR. FREIMAN:
Well, I think I
20
understand the policy, but -- you may have
21
different view than I do.
22
understanding that, according to the rules of a
23
law society, in order to effectively maintain a
24
separation and prevent communication, there have
25
to be certain mechanical steps taken, including
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But it was my
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1
what we now call ethical screens in order to
2
prevent the passage of information.
3
And I'm wondering whether there is
4
anything other than this statement that legal
5
advice is not to be shared that prevents the
6
passage of information.
7
LCOL MacGREGOR:
8
take you through -- if I may, I'll just take a
9
quick look at the service level agreement.
10
11
MR. FREIMAN:
Well, I'll
That's Tab 6 of your
book.
12
13
Okay.
LCOL MacGREGOR:
Annex A.
Yeah.
That's
Annex A of Tab 6.
14
MR. FREIMAN:
Yes.
15
LCOL MacGREGOR:
And if you look
16
at paragraph 3 -- I mean, Annex A is dealing with
17
solicitor-client privilege.
18
MR. FREIMAN:
Yeah.
19
LCOL MacGREGOR:
Paragraph 3:
20
"A Military Prosecutor
21
provides legal advice to the
22
NIS, will not provide copies
23
of that advice to departmental
24
or CF authorities outside of
25
the CMPS or the office of the
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1
JAG without the consent of the
2
DMP and cannot provide that
3
advice to anyone outside the
4
department without a waiver.
5
The DMP will consult with the
6
CO, CFNIS before authorizing
7
disclosure to anyone in the
8
department, CF outside the
9
offices of the JAG or DMP."
10
I think that's pretty clear.
11
MR. FREIMAN:
Okay.
So again, not
12
to belabour the point, the way that prevention of
13
communication is effected is through these
14
policies.
15
LCOL MacGREGOR:
16
MR. FREIMAN:
Right.
But not through any
17
formal device that, in common parlance, is known
18
as an ethical screen or a Chinese wall.
19
MS RICHARDS:
Well, with respect,
20
I have to object to the way you're characterizing
21
those as different.
22
In the first instance, Mr. Freiman
23
has referred to the ethical walls within law firms
24
as being a list of lawyers who can't talk to
25
things and, with respect, that version that he's
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1
providing, we don't accept that that's different
2
than the various policies and the explanation
3
that's been given.
4
MR. FREIMAN:
Okay.
I'm just
5
trying to clarify whether there's anything more
6
formal than this particular directive.
7
LCOL MacGREGOR:
Well, I guess --
8
I mean, it is an interesting question.
I'm not
9
sure exactly how you're -- how you're perceiving
10
the answers I'm trying to give you, and I'm trying
11
to be absolutely up front and --
12
13
MR. FREIMAN:
I -- believe me, I
have no complaint about your attempt to be clear.
14
LCOL MacGREGOR:
Yeah.
I mean,
15
I'll certainly point out that right from the start
16
the Director of Military Prosecutions is appointed
17
by the Minister and it's set out as to exactly
18
what he or she is supposed to be doing and the
19
independence from the chain of command.
20
And that's set out at your Tab 4
21
of the documents as to how the DMP is appointed
22
and cannot be removed unless an inquiry committee
23
establishes -- established under the regulations
24
has that -- recommends that he be removed for
25
cause.
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1
2
There's a certain independent
aspect in that.
3
Under 4.08(1) of the QR&Os, and
4
that's at Tab 3, that's -- that's established
5
regulation as to who has command over legal
6
advisers, including the Canadian Military
7
Prosecution Service.
8
Nobody outside of the office of
9
the JAG has the ability to command prosecutors.
10
Prosecutors are under the command of the DMP, and
11
the DMP is under the general supervision of the
12
JAG.
13
These are all -- these are all
14
part of, I guess, the mosaic which shows that the
15
legal advice given by the Canadian Military
16
Prosecution Services is independent and it is
17
protected.
18
19
MR. FREIMAN:
Okay.
Maybe I can
focus just slightly differently.
20
There's one aspect of the JAG that
21
we haven't spoken about yet, and that's the
22
defence capacity.
23
As I understand it, there is a
24
unit or a Directorate whose task it is to provide
25
defence to members of the Forces who have been
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1
accused -- or who face military justice.
2
LCOL MacGREGOR:
3
MR. FREIMAN:
Right.
Can you explain how
4
that's organized and what its relationship is to
5
the other units within the JAG?
6
LCOL MacGREGOR:
7
a good point, and I appreciate you raising that
8
because when I was going through the list of seven
9
Colonels that we have under the JAG, the two that
Sure.
And that's
10
I left out were the Director of Military
11
Prosecutions and the Director of Defence Counsel
12
Services.
13
Now, Defence Counsel Services also
14
appointed under the National Defence Act, and he
15
is a LCol.
16
officers that provide defence counsel services to
17
military members.
I believe seven -- there's seven legal
18
I don't have that -- I don't have
19
the National Defence Act in front of me, but it's
20
under the National Defence Act as to how he is
21
appointed by the Minister.
22
well.
And it's four years as
23
But he is not -- he's under the
24
general supervision of the JAG, but he's not --
25
similarly to DMP, he can't be given case specific
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1
instructions, but he can be given general
2
constructions and -- by the JAG as to set up --
3
you know, you're going into this position, please
4
set up certain policies for your defence team.
5
The defence team is truly
6
independent in terms of giving the legal advice to
7
their clients.
8
suspected of or have been charged with a service
9
offence.
Generally, it's members who are
They vociferously guard that
10
independence that they have, as defence counsel,
11
and they will fight to the tooth on behalf of
12
their clients without any pressure from the chain
13
of command.
14
MR. FREIMAN:
Again, just
15
institutionally, what steps are there, if any,
16
that separate this aspect from the other aspects
17
of the JAG?
18
LCOL MacGREGOR:
19
that wasn't part of some of the questions that
20
were given to me prior to coming here, I don't
21
have all of the Director of Defence Counsel
22
Services policies, but there's numerous policies,
23
as well as the statutory setup of Defence Counsel
24
Services under the National Defence Act.
25
Well, because
But there are policies that speak
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1
volumes as to their independence from the rest of
2
the chain of command, as well as the Office of the
3
JAG.
4
MR. FREIMAN:
Okay.
Well, I
5
think, for our purposes today, it's not necessary
6
for us to have that in detail.
7
at is to try to understand whether there any
8
administrative policies of which you're aware
9
that, again, hive off this particular function and
10
What we're looking
keep it separate from the rest of the operations.
11
I understand the concept, that
12
there's no interference with the way that
13
individual members of this directorate exercise
14
their duties, the advice they give, the defence
15
that they mount, or any of those sorts of things.
16
I'm looking as well, though, at administrative
17
steps that might separate officers who perform
18
that function from officers who perform other
19
functions.
20
MS RICHARDS:
Mr. Chairman, I
21
understand that this Commission has some leeway in
22
terms of information, and I'm expecting that Mr.
23
Freiman's going to say this is all by way of
24
context and background information; however, this
25
Commission is not here to investigate how the JAG
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1
Branch is structured or whether is independence
2
within the JAG Branch.
3
So I'm a little concerned about
4
the breadth of the questions and where we're going
5
with this issue.
6
MR. FREIMAN:
There's no secret or
7
any need to have the witness to leave.
What I'm
8
trying to understand is the structures that are in
9
place that delineate the boundary lines among
10
different elements in the JAG, and I'm using the
11
Office of Defence Counsel as an obvious case where
12
it should be possible to understand whether there
13
are any structures.
14
Where I tried to go at first
15
instance, without much success, is to try to
16
understand the nature of the separation à la as
17
between military prosecutors who give advice to
18
the NIS and members in the region, legal officers
19
in the region, who give advice to both Military
20
Police and to members of the chain of command in
21
the region.
22
It's not a huge question, but I'm
23
still grappling with the issue as to whether there
24
are any administrative provisions for that
25
separation.
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If there aren't, I'll just go on,
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1
because one thing that Ms Richards is correct
2
about, this isn't a huge point.
3
MS RICHARDS:
Well -- and, again,
4
with respect -- the issue before this Commission
5
is an allegation about legal advice that was
6
provided to the National Investigation Service,
7
and so that is what this witness should be called
8
upon to talk about.
9
The structure and process, and how
10
the JAG Branch is structured as a whole, is not
11
for this Commission to investigate.
12
that there are instances where this Commission may
13
make submissions on that issue in another forum,
14
and it wouldn't be appropriate to be investigating
15
those very issues in this case, where it hasn't
16
arisen.
I understand
17
MR. FREIMAN:
18
attributes a degree of subtly to me that I'm
19
afraid I can never live up to.
20
interest in asking these questions than to be able
21
to come at some of the allegations with a modicum
22
of understanding of the structure, and whether the
23
structure tends to confirm or to deny the
24
allegations.
25
Well, Ms Richards
THE CHAIRPERSON:
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I have no other
Colonel Drapeau,
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1
do you have anything you wish to add?
2
want to leave you out.
3
COL (RET'D) DRAPEAU:
4
THE CHAIRPERSON:
5
MR. FREIMAN:
I didn't
No.
Okay.
Mr. Chairman, I
6
think I'm going to volunteer to go on, because I
7
can ask similar questions.
8
be an easy way of understanding the structural
9
makeup.
I thought this would
If we can't do it this way --
10
THE CHAIRPERSON:
11
MR. FREIMAN:
12
Yeah.
-- we'll do it a
different way.
13
THE CHAIRPERSON:
14
where you are, Ms Richards, but it also helps me
15
understand some of the structure to it.
16
an area that I have had an education background in
17
myself.
18
we need to do, but it does help me in
19
understanding a little more about JAG, too.
20
MR. FREIMAN:
21
THE CHAIRPERSON:
22
JAG isn't
I understand where we're going and what
ahead say.
23
And I understand
Okay.
Go ahead.
Go
You have something on your mind.
MS RICHARDS:
Well, with all due
24
respect, sir, I know that this is an issue that
25
the Commission has actually made submissions upon
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1
and reached certain conclusion upon in a different
2
forum.
3
overlap, or having any appearance that there's
4
overlapping in those issues.
So our concern is not having those issues
5
THE CHAIRPERSON:
6
MR. FREIMAN:
I agree.
Fine.
And I can
7
assure Ms Richards that my retainer is restricted
8
to this inquiry.
9
mandate to stray into any other areas.
10
I have no interest and I have
Let's pass on, then.
Yeah, we
11
have a little bit of time.
Let's pass on the
12
actual nuts and bolts of how advice is provided to
13
the NIS in the course of an NIS investigation.
14
LCOL MacGREGOR:
15
As mentioned earlier, we have the
Okay.
16
Canadian Military Prosecution Service, we have the
17
Directorate of Military Prosecutions, we have now
18
three Deputy Directors of Military Prosecutions
19
and we have Regional Military Prosecutors, and we
20
have an Embedded Prosecutor.
21
structure of the Canadian Military Prosecution
22
Service.
23
That's really the
We have the National Investigation
24
Service, we have a CO of the National
25
Investigation Service, and we have national
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1
investigation investigators throughout the world,
2
and they do their investigations.
3
If those investigators have any
4
question about the law generally, we have an
5
Embedded Prosecutor that they can go and talk to.
6
The Embedded Prosecutor is not within the chain of
7
command of the Military Police or the NIS, they
8
are in the chain of command and under the command
9
of the Director of Military Prosecutions.
10
So I was a big part of
11
establishing that Embedded Prosecutor at Walkley
12
Road in 2008.
13
Military Prosecutions at that point.
14
decide to make it into three different deputy
15
directors until after I left, kindly enough.
16
I was the sole Deputy Director of
They didn't
So I was heavily involved in a lot
17
of the policy work to get an Embedded Prosecutor
18
in there to be able to assist right up front the
19
NIS on any questions that they had on
20
investigations and on the law generally, and even
21
training.
22
23
MR. FREIMAN:
stop there?
24
25
Okay, can I just
We're talking about providing
advice to the NIS via the Embedded Prosecutor.
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When you're talking about providing it to the NIS,
2
are we talking about the chain of command of the
3
NIS or are we talking about individual
4
investigators in the course of an investigation?
5
6
LCOL MacGREGOR:
Actually, I'm
referring to both.
7
MR. FREIMAN:
8
LCOL MacGREGOR:
9
have the Letter of Agreement, you also have the
10
Service Level Agreement, that sets out how that
11
working relationship between the Canadian Military
12
Prosecution Service and the NIS functions.
13
Okay.
Okay?
So you
But, generally, we have the
14
Embedded Prosecutor that will be there to assist
15
all of the investigators that are at the
16
headquarters and from around.
17
Regional Military Prosecutors that give legal
18
advice to the NIS investigators in those regions.
19
We also have
When I was DDMP and DMP3, actually
20
moreso when I was DMP3, I was acting similarly as
21
the Embedded Prosecutor, to be fielding calls from
22
all over the place, including Afghanistan, much to
23
my wife's chagrin in the middle of the night, on a
24
regular basis, assisting them in what they -- they
25
had questions about legality of what they were
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doing on investigations, legality of what -- they
2
were looking at potential service offenses by
3
people in the chain of command.
4
So they would phone us, when I was
5
a prosecutor, and ask us legal questions on those
6
types of things.
7
of those types of things were legal advice given
8
by prosecutors.
Even process.
The Charter.
Okay.
All
9
MR. FREIMAN:
10
talking about a single Embedded Prosecutor.
11
sort of support does that prosecutor have in
12
dealing with questions that may arise?
13
as you're telling us, you have a lot of questions,
14
covering a lot of areas, and even someone with
15
your distinguished background wouldn't be able to
16
answer all questions on the basis of personal
17
experience or knowledge.
What
Because,
18
LCOL MacGREGOR:
19
lacking, in terms of my knowledge on an area of
20
criminal/disciplinary law, I would seek somebody
21
within the Canadian Military Prosecution Service
22
to assist me on a certain question that I wasn't
23
aware of or fully aware of, or I could go to the
24
Deputy Director of Military Prosecutions to seek
25
his or her counsel, based on their experience,
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No.
But we're
If I was
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1
talk to the DMP, and seek counsel that way.
2
Those are the types of things.
3
That's how it was set up with the Canadian
4
Military Prosecution Service, like any civilian
5
criminal prosecution service.
6
MR. FREIMAN:
If the question is a
7
question of civil law, as opposed to criminal law,
8
is that something that will be handled by the
9
Embedded Prosecutor as well, or was it sent
10
somewhere else?
11
12
LCOL MacGREGOR:
Are you talking
civil law in terms of Quebec?
13
MR. FREIMAN:
No, no, I'm talking
14
about the opposite of criminal law or that portion
15
of the law that deals with matters that aren't in
16
the purview of the Criminal Code or Codes of
17
Discipline.
18
LCOL MacGREGOR:
Okay.
So if
19
you're talking administrative law or if you're
20
talking international law --
21
MR. FREIMAN:
Or it could be
22
talking property law, it could be talking contract
23
law.
24
LCOL MacGREGOR:
25
Well, if you're talking those
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1
types of areas of the law, I guess it would be
2
infrequent that we would be getting into those
3
types of questions.
4
that, we can obviously go to somebody else in the
5
JAG office that had more knowledge on those areas
6
and, without divulging the purpose of that, we
7
would talk to other JAG officers to seek their
8
guidance on those types of things.
9
10
But if we had a concern about
MR. FREIMAN:
All right.
Let me
try to focus us a little more.
11
Various provincial justice systems
12
have different rules and different setups with
13
respect to what we can colloquially call "charge
14
screening".
15
what legal advice is necessary before the police
16
are ready to propose a charge?
17
In almost every case the issue is:
In some provinces, it's the police
18
that lay a charge; in other provinces, it's
19
actually the prosecutor that has to clear the
20
charge before it's laid.
21
is a formal process for advice to the police at
22
the pre-charge stage; in other jurisdictions,
23
while it's encouraged, there's no formality
24
required.
25
In some provinces there
I understand that there is a
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1
distinctive system and there is a distinctive
2
process in the Canadian Forces, in the military
3
justice system, and that's what I'd like to focus
4
our attention on for the next little while.
5
Can you explain what the protocol
6
is when police are investigating an offence before
7
they can lay a charge with respect to that
8
offence?
9
LCOL MacGREGOR:
Okay.
10
just said "police".
11
Police or are you talking the NIS?
12
Now you
Are you talking Military
MR. FREIMAN:
Well, I used the
13
word generally because I wanted you to talk about
14
whether there is a difference, and, if there is a
15
difference, what the difference is.
16
LCOL MacGREGOR:
Okay.
17
Under QR&O, Queen's Regulation &
18
Order 107.02, that provides who can lay a charge.
19
That includes the commanding officer or a person
20
delegated by the commanding officer to
21
specifically have charge-laying authority under
22
107.02.
23
charge under the Code of Service Discipline are
24
NIS investigators, not the Military Police writ
25
large.
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So if we're talking about prior to
2
a charge being laid, then, under the Code of
3
Service Discipline, we're talking only about the
4
NIS, not the Military Police.
5
Now, that said, the Military
6
Police can lay charges.
7
the Criminal Code, they can lay charges outside
8
of --
9
As peace officers under
MR. FREIMAN:
10
Yes.
LCOL MacGREGOR:
-- the Code of
11
Service Discipline, and you've probably had
12
evidence on that already.
13
they have an ability to talk to Crown counsel
14
outside of the military.
15
If they do do that,
So in terms of the charges to be
16
laid by the NIS, they have to go through a
17
pre-charge screening as set out under QR&O 107.03.
18
I don't have that in front of me right now, but
19
107.03 essentially means that, if it's a potential
20
charge of somebody that is the rank of sergeant
21
and above, or if it can be an electable offence, I
22
believe, to a court-martial, then there's a
23
requirement to have pre-charge screening, which
24
means the charge layer, before a charge is laid,
25
has to seek legal advice.
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1
So in the case of the National
2
Investigation Service, they seek that legal advice
3
from a Regional Military Prosecutor or somebody
4
within the Canadian Military Prosecution Service
5
before the charge is laid.
6
MR. FREIMAN:
Okay.
7
LCOL MacGREGOR:
That isn't the
8
same as the prosecutor laying the charge.
It is
9
legal advice, and it's legal advice only.
The NIS
10
investigator still has that independent capacity
11
to lay a charge no matter what the legal advice
12
is.
13
MR. FREIMAN:
Okay.
14
If I understand correctly, then,
15
before a charge can be laid the NIS must avail
16
themselves of legal advice, and this is advice
17
from the prosecution service.
18
about the Embedded Prosecutor right now, we're
19
talking about a different sort of advice.
20
right?
21
LCOL MacGREGOR:
We're not talking
Is that
Well, the
22
Embedded Prosecutor gives -- and that's set out in
23
our documentation here as to what the Embedded
24
Prosecutor does -- but the Embedded Prosecutor
25
generally is there to assist investigators in
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1
developing their strategy on investigations.
2
The Embedded Prosecutor -- and
3
I'll take some credit or blame, whatever
4
perspective you have on the Embedded Prosecutor --
5
but before we went down this road of having
6
Embedded Prosecutors, I canvassed amongst a number
7
of different civilian prosecution services, as
8
well as phoning up Mr. Michael Code, as he then
9
was, who I knew was doing the Claude Lesage report
10
on the Ontario prosecutions system, and asked how
11
can we work a system where we can better provide
12
legal advice to the NIS?
13
Also, as a member of the Federal
14
Heads of Prosecution, the DMP is regularly at
15
those meetings as a full member with the Federal
16
Heads of Prosecution.
17
So these types of questions came
18
up and would have discussed amongst the Federal
19
Heads of Prosecution, including our DMP.
20
In any event, that's a long way of
21
answering your question that the Embedded
22
Prosecutor will give legal advice to investigators
23
on matters that they are investigating, but that's
24
not -- the pre-charge advice is given by the
25
Regional Military Prosector.
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2
MR. FREIMAN:
Okay.
And that's
what I wanted to establish.
3
Before we look at the nuts and
4
bolts of that advice, am I correct that if an NIS
5
investigator or investigative team wants to or
6
thinks that there may be merit in laying a charge,
7
they need to ask for legal advice?
8
own analysis, they decide that there is no reason
9
to lay a charge, is there any need to get legal
10
If, from their
advice?
11
LCOL MacGREGOR:
If a National
12
Investigation Service investigator feels that
13
there is no need to lay a charge, there is no
14
obligation on them to seek legal advice.
15
MR. FREIMAN:
Okay.
16
You've also told that in the
17
course of their investigations the NIS can avail
18
themselves of the services of the Embedded
19
Prosecutor to answer any legal questions that may
20
come up.
21
LCOL MacGREGOR:
22
to go back, because I just wanted to make sure
23
that I was not misleading in any way this hearing.
24
25
Yes.
And I want
If I can take you to Tab 7 of the
documents here, and I'll take you to page 4, and
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paragraph 16, this is a setup of the type of
2
advice that can be given by the Embedded
3
Prosecutor.
4
If you turn yourself to 16(i),
5
pre-charge screening is one of the available types
6
of advice that can be given by the Embedded
7
Prosecutor.
8
Military Prosecutors, the Embedded Prosecutor can
9
also give pre-charge screening advice in
10
So in addition to the Regional
accordance with 107.03 of the QR&O.
11
MR. FREIMAN:
Okay.
12
My question, though, was going to
13
be:
if the NIS investigators are so-minded, is
14
there anything wrong with them doing their own
15
legal research, rather than asking an Embedded
16
Prosecutor or anyone else?
17
LCOL MacGREGOR:
Well, if the NIS
18
want to be their own legal counsel, then they can
19
be their own legal counsel.
20
before they lay a charge, if they meet that
21
criteria of 107.03, they have to seek legal
22
advice --
But under 107.03,
23
MR. FREIMAN:
24
LCOL MacGREGOR:
25
Right.
-- of somebody
from CMPS.
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MR. FREIMAN:
Yeah, but in the
2
situation, the hypothetical that I gave you
3
before, where they decide that there is no reason
4
to lay a charge, that conclusion could well be
5
founded on their own legal research.
6
need to vet their own legal research with anyone
7
in the JAG, do they?
They don't
8
LCOL MacGREGOR:
No, I think -- if
9
a complaint comes into a National Investigation
10
Service investigator, and the investigator chooses
11
to close a file on his or her own without seeking
12
legal advice, I don't think that there's anything
13
in our policies that behooves the investigator,
14
before he closes his file, to talk to a lawyer.
15
Like any police officer, there's a certain level
16
of discretion.
17
MR. FREIMAN:
All right.
18
I'd like just quickly, then, to
19
understand charge screening, then we'll take our
20
morning break.
21
As I understand it, there are
22
certain requirements for charge screening that are
23
placed upon the NIS.
24
relevant member of the Military Prosecution
25
Service with a brief.
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2
Can you tell us what's in that
brief?
3
4
LCOL MacGREGOR:
Oh, in terms of
the type of information that...?
5
MR. FREIMAN:
Yes.
6
LCOL MacGREGOR:
We try to set out
7
a disclosure package, in terms of Annex C of the
8
Service Level Agreement.
9
you know, the prospect that there will be a charge
That's given towards,
10
and that it's going to be proceeded, so it
11
assists.
12
And also, on Annex B, at the
13
pre-charge screening, if your focus is solely on
14
the pre-charge screening then the information that
15
is to be provided is found at Tab 6, Annex B,
16
paragraph 3.
17
MR. FREIMAN:
So I can say, sir,
18
that for today's proceedings we are not going to
19
go to post-charge screening at all.
20
going to talk about pre-charge screening.
We are just
21
LCOL MacGREGOR:
Okay, all right.
22
So then this, fair enough, this is
23
directly on point to your question.
24
Annex B, sir, at Tab 6.
25
MR. FREIMAN:
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1
2
LCOL MacGREGOR:
And this is the
provision of pre-charge screening advice.
3
Paragraph 3 states that:
4
"A complete pre-charge
5
screening package which is
6
going to be provided by the
7
NIS to the regional military
8
prosecutor, the RNP brief,
9
police reports, charges
10
proposed by the investigator
11
on an unsigned RDP form [RDP
12
is the record of disciplinary
13
proceedings which is the
14
equivalent to a charge or
15
laying of information], CPIC
16
checks completed during the
17
course of the investigation if
18
any, video and audio tapes
19
only when requested by the
20
prosecutor and other items
21
when requested by the
22
prosecutor."
23
(As read)
So that affords the prosecutor the
24
opportunity to have sufficient information to be
25
able to give that legal advice under 107.03.
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2
MR. FREIMAN:
What's in the RNP
brief?
3
LCOL MacGREGOR:
In the RNP brief
4
that could be statements.
5
information about the witness.
6
generally the witness's address, phone number, et
7
cetera, et cetera.
8
9
That could be
You know,
The RNP brief can really -- that
was, I mean, anything that affords an opportunity
10
for the prosecutor to have a full sense of what
11
the investigation has come up with.
12
MR. FREIMAN:
13
standard that you could refer us to for what
14
should be in an RNP brief?
15
Is there any
LCOL MacGREGOR:
Certainly that
16
was always a moving target when I was DDMP because
17
we kept trying to standardize what was in the RNP
18
brief.
It was very difficult to do.
19
They had been -- I know that you
20
still have Military Police and NIS investigators
21
that you can call but they can probably give you a
22
little bit more information as to where they are
23
on Versadex which is a computer system to more
24
smartly organize all the information that was
25
there.
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I can tell you when I was in the
2
Canadian military prosecution service both as DMP3
3
and DDMP I was pressing ahead to better
4
standardize what was in the RNP brief so that it
5
was easier to read, faster to make a decision,
6
more focused on the information that was necessary
7
before a decision had to be made.
8
9
I'm not sure exactly where they
are specifically on the format and the information
10
contained in the RNP brief.
11
similar -- you know they are constantly trying to
12
have a better organized fashion to get to the
13
information and get to the nub of the
14
investigation so that a decision can be made as
15
quickly as possible based on all of the relevant
16
information.
17
But certainly it's
MR. FREIMAN:
In these proceedings
18
we have before us three very large documents that
19
are the GO files with respect to three different
20
investigations.
21
different from one of the GO files?
22
23
LCOL MacGREGOR:
I haven't seen
what you're talking about.
24
25
Is the RNP brief the same as or
MR. FREIMAN:
We'll get you one in
a second.
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I can tell you, sir, that I can't
2
figure out how they are organized at all, but they
3
do contain an awful lot of information.
4
wondering whether there is anything different from
5
that that's required or whether simply providing
6
the investigative brief; that is, the GO file
7
would be sufficient.
8
9
10
LCOL MacGREGOR:
I'm
Well, I mean,
that's a difficult question without me seeing
what's in that GO file in particular.
11
But I can tell you, sir, that this
12
was always something that we were working on
13
together as a prosecution service with the NIS and
14
with the Provost Marshal to try to standardize our
15
RNP brief because I, quite frankly, saw a
16
difference in the quality of an RNP brief from one
17
investigator to another and one from one region to
18
another.
19
So that was a bit of a bone of
20
contention throughout.
21
you specifically, sir --
They tried to -- I'll give
22
MR. FREIMAN:
23
LCOL MacGREGOR:
24
MS RICHARDS:
25
Here is a GO file.
Thank you.
Just to declare on
the record because we have had evidence on what
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that constitutes, that is not a GO file.
That is
2
a tracking release that was prepared specifically
3
for the purposes of this proceeding.
4
MR. FREIMAN:
Okay.
5
MS RICHARDS:
And so you just have
6
to be a little careful in terms of referring to
7
the terminology.
8
9
MR. FREIMAN:
we don't have a GO file.
Well, then I take it
We have this document
10
which contains much but not all of what's in a GO
11
file.
12
MS RICHARDS:
I think we are
13
talking semantics here.
I can't recall, Mr.
14
Freiman, if you were here during the panel for the
15
individuals --
16
MR. FREIMAN:
I was not.
17
MS RICHARDS:
-- who spoke about
18
it.
So there is evidence before the Commission
19
about what that constitutes.
20
But just to be clear on the record
21
there is no paper GO file.
It is electronic and
22
different versions are printed for different
23
purposes.
24
MR. FREIMAN:
25
LCOL MacGREGOR:
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Okay.
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1
So I have just taken a very
2
cursory view, sir, of this document that you
3
provided me.
4
a general occurrence file.
5
or GO stands for.
And GO file, just for the record, is
That's what GO means
6
MR. FREIMAN:
Right.
7
LCOL MacGREGOR:
In the various
8
prosecutions that I have done, or the various
9
prosecutions that I have reviewed of some of my
10
recent military prosecutors who work for me, have
11
done, I've seen this type of GO file that come
12
across my desk in a very similar format which I
13
find not very helpful in terms of delving into the
14
nub of what we're talking about.
15
to strive for a more organized management of this.
16
And that led us
Now, as Ms Richards has just
17
pointed out, it tends to be all electronic and the
18
format that -- or the program, the computer
19
program that is that they have been working with,
20
Versadex, as I mentioned earlier, is programmed to
21
have this dump of information like this where you
22
have 1 of page 714 for instance that starts with
23
"General Occurrence information" and goes directly
24
into, on page 2, a police officer's notes.
25
That can all be put into the
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computer like that, but unless it's formatted
2
properly it's not very helpful.
3
off like that it would give somebody the first
4
impression that they are very disorganized.
5
If it's printed
But that's not necessarily the
6
case if all that is information being put onto the
7
computer, and then we hit the proverbial button
8
and out comes an RNP brief report that's taking
9
page 1 of 714 and at page 29 of 714 and then
10
putting it in logical fashion.
11
were striving for when I was in DMP and I think
12
that that's -- they have come a long way since.
13
That's what we
I mean I can't speak specifically
14
as of September of 2012 exactly what is being done
15
but, certainly, that's what we were striving for.
16
I don't think that this type of thing would be
17
propped on an RNP's desk like this without
18
anything -- any proper formatted computer program
19
that would have set that up better.
20
MR. FREIMAN:
As a general matter
21
when you're dealing with this through any package,
22
is there a requirement that the investigation be
23
the primary investigation of the investigators or
24
is it permissible to use secondary sources, for
25
instance a BOI report or an SI report that was
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compiled by someone else?
2
LCOL MacGREGOR:
3
well, as you may or may not know, if a board of
4
inquiry is going on and they feel that, or the
5
board feels or the legal advisor to the board
6
feels that they are going down into a road where
7
they are crossing into disciplinary investigation
8
or there is potential charges coming out under the
9
defence orders and administration directives they
10
are obliged to stop the board of inquiry and call
11
in legal advice to find out, okay, where are we on
12
this?
13
going down this road where we can get into a
14
criminal investigation or a disciplinary
15
investigation.
We've got to stop.
16
17
I don't think --
We can't -- we're not
MR. FREIMAN:
Well, I am aware of
that and let me ask you a question about that.
18
Is it the case that if the board
19
of inquiry has not been stopped because the panel
20
has not come to such a conclusion, is it a fair
21
assumption that there is no criminal charge or
22
there is no offence disclosed?
23
24
LCOL MacGREGOR:
Well, I guess
that is going to be on a case by case basis.
25
I mean Westray was actually a good
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example of where the fine lines had to be drawn.
2
You had to be very careful as to the type of
3
information that is being given because if you are
4
obliged to give legal advice at an inquiry or a
5
commission that information cannot be used in a
6
subsequent criminal investigation or in a criminal
7
trial.
So we know about that.
8
That is the danger that you're
9
getting into if you just -- if you bullnose your
10
way through that and continue on with a board of
11
inquiry.
12
13
MR. FREIMAN:
But that's in fact
the reason that I'm asking.
14
Let's assume the board of inquiry
15
does not see any reason to stop or the SI
16
investigation does not see any reason to stop and
17
completes its work.
18
LCOL MacGREGOR:
19
MR. FREIMAN:
20
that process capable of forming part of the
21
screening package?
22
MS RICHARDS:
Right.
Is the product of
With respect, I
23
think what Mr. Freiman is getting at, and he is
24
asking the question of Lieutenant-Colonel
25
MacGregor who acted as DMP, whether or not there
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is any problem from a legal perspective of the NIS
2
relying on the BOI and the SI.
3
I just want to be clear that
4
that's not the question and that's not where he is
5
going because that would lead into an area of
6
solicitor/client privilege.
7
MR. FREIMAN:
I am asking whether
8
the package, the disclosure package can
9
legitimately contain the results of a BOI or an
10
SI.
11
12
LCOL MacGREGOR:
wrong with that question.
13
14
There is nothing
MS RICHARDS:
That's fine, as long
as it doesn't go any further.
15
LCOL MacGREGOR:
If it contains
16
that then any prosecutor worth his or her salt is
17
going to know right off the bat that that's fruit
18
from the poisoned vine that can't be used in terms
19
of providing your elements of the offence.
20
So if that stuff did get in, and
21
generally it didn't, but if it did you put a big
22
red sticker on that and say, "Well, this is
23
tainted evidence.
24
to assist us in making a determination as to
25
whether or not all of the elements of the offence
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are met".
2
3
MR. FREIMAN:
Okay.
I think this
is probably a good time to take a break.
4
MS RICHARDS:
5
and just so I don't forget, the witness has
6
referred to three documents which have not been
7
entered as exhibits yet and I thought just so it
8
doesn't slip our mind is that --
9
MR. FREIMAN:
10
11
No, we --
MS RICHARDS -- as testimony goes
on, maybe we should do that before the break.
12
13
But before we break,
THE CHAIRPERSON:
We can do
it now.
14
MS RICHARDS:
15
The CHAIRPERSON:
16
Okay.
So we -I don't know
where they originated or who brought them.
17
MS RICHARDS:
I brought them to
18
the attention of the Commission and -- sorry, the
19
parties.
20
I provided them to counsel.
So the first is the
21
accountability, independence and consultation
22
documents if we do them in that order.
23
Thank you.
24
MS RAHAL:
25
Exhibit P-152.
EXHIBIT NO. P-152:
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Accountability, Independence
2
and Consultation Documents
3
provided by Ms Richards
4
MS RICHARDS:
The second would be
5
Director of Military Prosecutions' Policy
6
Directive 009/00, Communications with Unit Legal
7
Advisors.
8
MS RAHAL:
9
Exhibit P-153.
EXHIBIT NO. P-153:
Director
10
of Military Prosecutions'
11
Policy Directive 009/00,
12
Communications with Unit Legal
13
Advisors
14
MS RICHARDS:
15
be Director of Military Prosecutions' Policy
16
Directive 005/99, Communications with Service
17
Authorities.
18
And the third would
MS RAHAL: Exhibit P-154.
19
EXHIBIT NO. P-154:
20
of Military Prosecutions'
21
Policy Directive 005/99,
22
Communications with Service
23
Authorities
24
25
MS RICHARDS:
Director
Oh, I am told
there's already a 152, although I think --
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MS RAHAL:
That wasn't entered.
2
MS RICHARDS:
3
MS RAHAL:
4
MS RICHARDS:
5
Thank you.
6
THE CHAIRPERSON:
Pardon me?
That wasn't entered.
Yes, okay.
Now, we will
7
break until 10 past eleven.
8
--- Upon recessing at 1050 / Suspension à 1050
9
--- Upon resuming at 1117 / Reprise à 1117
10
--- LCol MacGregor absent from hearing room
11
THE CHAIRPERSON:
Ms Richards?
12
MS RICHARDS:
13
There is just an issue I wanted to
Yes, Mr. Chair.
14
address briefly.
15
that I made during the testimony of
16
Lieutenant-Colonel MacGregor and, I think, to some
17
degree too the statement or explanation that you
18
gave at the end of testimony of Mr. Fynes
19
regarding the jurisdiction or scope of this
20
hearing.
21
It follows up from an objection
I just wanted to be clear on the
22
issue that I had raised, is that there is a
23
concern or I wanted to have clarity on the fact
24
that this Commission is not investigating the
25
structure of the JAG branch or, indeed, whether or
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not the legal advice that's provided to the
2
National Investigation Service by the JAG branch
3
is independent and that this Commission is not
4
within your jurisdiction.
5
making recommendations or findings on that issue.
Indeed, you won't be
6
THE CHAIRPERSON:
Mr. Freiman?
7
MR. FREIMAN:
8
mandate that you have is to investigate the
9
complaints before you.
In my submission the
To the extent that a
10
subject is relevant to the complaint can shed
11
light on it either to confirm or to refute the
12
complaint, it's properly within your jurisdiction.
13
It is difficult to know in advance
14
whether a matter is relevant or is not to your
15
final report.
16
mandate is not to investigate the JAG but, to the
17
extent that considerations as to how military --
18
how legal advice is provided, may have an impact
19
on a finding of whether the investigation -- or
20
whether an investigation or a number of
21
investigations were properly conducted, it has at
22
least the potential to be of some relevance.
It is certainly the case that your
23
COL (RET'D) DRAPEAU:
24
THE CHAIRPERSON:
25
If I may?
Yes, Colonel
Drapeau.
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COL (RET'D) DRAPEAU:
The
2
testimony of Colonel MacGregor this morning I find
3
enlightening.
4
Although I would agree with my
5
friend that you probably would not be in a
6
position at the end of the day to make findings
7
about the role or function or even the minor ways
8
the JAG has discharged -- the JAG as an
9
organization has discharged his duty, I think what
10
Colonel MacGregor is giving us, he is giving us
11
context in conceptual terms, structural terms from
12
an educational standpoint and, if nothing else, to
13
be able to determine for ourselves whether or not
14
the vaguest activities that have been looked at
15
and will be looked at in the weeks ahead, are
16
within the scope of the policy frameworks and
17
regulatory frameworks that he has commented upon.
18
So I don't see the prejudice
19
beyond if any to my friend here, in making sure
20
that we have a full deck of cards and we have full
21
vision as to how the JAG is organized.
22
some aspects are still a mystery to me, how it's
23
organized, how does it function and how does it
24
interrelate among its various parts.
25
Because
If Colonel MacGregor can shed
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light on it I think it'll add assistance
2
ultimately into the pursuit of the truth.
3
does that I don't see why we would object to it.
4
THE CHAIRPERSON:
5
MS RICHARDS:
If he
Ms Richards.
And just to be
6
clear, I am not objecting to the testimony of
7
Lieutenant-Colonel MacGregor.
8
surprising many people, I agree completely with
9
what Mr. Drapeau has just said.
10
At the risk of
This is for context and this is
11
for the purpose of assessing the conduct of the 13
12
members of the Military Police who are subject to
13
the allegations.
14
So to the extent that it's for
15
that purpose; absolutely, and we have no issue.
16
just wanted to be clear on the broader issue about
17
finding some recommendations.
18
THE CHAIRPERSON:
Well, as you are
19
aware from past hearings, certainly we will
20
address -- the number one priority is to address
21
the allegations against the 13 subject members.
22
That's a paramount one.
23
I
But in addition, we may or I may
24
or may not choose to make some observations or
25
findings within our report.
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pre-conclusion as to what they may or may not be.
2
That's long down the road.
3
4
But in terms of, is this a tool to
investigate JAG, the answer to that is no.
5
If there is something that comes
6
out in terms of some of the information whether or
7
not our recommendation is going to be worthwhile
8
to assist down the road, then I may do that but I
9
have no preconceived thoughts on that at this
10
time.
11
I will assess that, I guess, at
12
the end and once I have heard all the evidence and
13
once I have heard all the concluding remarks by
14
counsel -- and there is lots to be said yet in the
15
next -- till November 15th.
16
--- Pause
17
THE CHAIRPERSON:
Sorry for the
18
delay.
We just had a couple of things to talk
19
about.
Thanks.
20
21
We didn't talk about you, though.
--- LCol MacGregor returns to the hearing room
22
MR. FREIMAN:
Colonel MacGregor,
23
before we go further I just want to clarify one
24
matter that, I think, needs a good deal of
25
clarification in this forum.
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As I understand it, an
2
investigation may be conducted in different forums
3
or on different stages.
4
assessment stage and another stage is the
5
investigative stage.
6
One stage is the
Is that division or that
7
differentiation of any -- does that mean anything
8
to you?
9
LCOL MacGREGOR:
Well, I guess I
10
am not exactly clear.
11
conjecture but I'm not so sure that that's useful
12
to this Commission.
13
I mean I can offer
MR. FREIMAN:
We have heard some
14
evidence and I'm sure going to be hearing an awful
15
lot more in the next few weeks about the notion of
16
an assessment stage assisting an investigative
17
stage.
18
The reason I was going to ask was
19
whether -- and I think you have already given me
20
the answer -- whether that difference is of any
21
relevance, from your perspective, in terms of
22
seeking advice from the JAG, whether it's at the
23
assessment stage or it is at the investigative
24
stage.
25
LCOL MacGREGOR:
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the NIS -- I think you are talking about the
2
NIS --
3
MR. FREIMAN:
4
LCOL MacGREGOR:
5
not precluded from -- in fact, they are always
6
encouraged to have an open dialogue with the
7
regional military prosecutors, as well as the
8
embedded prosecutors.
9
Yes.
-- the NIS are
So, at an assessment stage,
10
certainly they would be encouraged to discuss
11
whatever feelings they had about looking at a
12
complaint.
13
If it's the assessment of a
14
complaint, then that is one thing, but usually it
15
becomes the investigative stage, once they have
16
received a complaint.
17
Now, the complaint could come from
18
anybody, and a complaint could be made by an NIS
19
investigator in the first place.
20
So, if that is part of the
21
assessment stage, before they actually launch
22
their own complaint, certainly they wouldn't be
23
precluded from talking to a regional military
24
prosecutor or an embedded prosecutor at all.
25
But you raised another point, sir,
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and while I was just sitting in that room, while I
2
wasn't being discussed, I noticed --
3
And, again, this is absolutely
4
what I want to do, is to make sure that I am
5
completely upfront with this Commission.
6
When I answered one of your
7
questions as to whether or not pre-charge
8
screening was one of the tasks of the embedded
9
prosecutor, I pointed this Commission to Tab 7,
10
page 4, paragraph 16(i) -- and that I will note,
11
just for the sake of clarity.
12
So it is at Tab 7, 16(i), and it
13
says "Pre-charge screening" as one of the tasks
14
that the embedded prosecutor can do.
15
I do note, when I go to Tab 5,
16
page 2 -- this is the Letter of Agreement --
17
paragraph 6, that pre-charge screening is not part
18
of that.
19
So I can't tell you definitely,
20
under oath, why that is missing between the two.
21
One is a public document, the other one is -- I'm
22
not sure if the Letter of Agreement is a public
23
document -- certainly with you.
Pre-charge
24
screening is missing from that.
That is a 17
25
November 2009 document, versus a March 2009
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document.
2
I don't know if that was a typo,
3
but I just wanted to make sure that I'm clear that
4
I'm not misleading you in any way.
5
MR. FREIMAN:
While we are dealing
6
with minutiae, I noticed that the Letter of
7
Agreement is between the DMP and the Canadian
8
Forces Provost Marshal regarding the role and
9
responsibility of the CFNIS legal advisor.
10
LCOL MacGREGOR:
11
MR. FREIMAN:
Right.
Is there any
12
distinction to be drawn between a CFNIS legal
13
advisor and a regional military prosecutor?
14
LCOL MacGREGOR:
I think the CFNIS
15
legal advisor is referring to the embedded
16
prosecutor.
17
18
MR. FREIMAN:
That is the embedded
prosecutor, it's not --
19
LCOL MacGREGOR:
20
MR. FREIMAN:
Yes.
In fact, I was going
21
to ask the question in an even larger framework,
22
which is:
23
whom the NIS should turn to, whether the embedded
24
legal advisor or the RMP?
25
Is there any policy or protocol as to
LCOL MacGREGOR:
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aware of, no.
2
MR. FREIMAN:
Is there, in fact, a
3
policy dealing with the NIS turning to someone
4
outside the JAG; not on prosecution advice, but on
5
any other advice that doesn't have to do with
6
prosecutions?
7
8
LCOL MacGREGOR:
For the Military
Police or the NIS, or both?
9
MR. FREIMAN:
Both.
10
LCOL MacGREGOR:
11
provided here -- and, again, I don't mean to be
12
too pedantic, but at Tab 2 you will see that the
13
Judge Advocate General has the superintendent's
14
role, and he is, by statute, the provider of
15
military law advice to the Canadian Forces,
16
including the Military Police.
17
For both.
As
So if the Provost Marshal or the
18
NIS or the MPs are wanting to go outside, I am
19
sure that there would be some discussion at the
20
Provost Marshal/JAG level to just talk about that
21
and see what is necessary.
22
There is also the proviso,
23
obviously -- and I mentioned this earlier this
24
morning -- that if the Military Police or the NIS
25
are investigating something where they would be
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pursuing it downtown, outside the Code of Service
2
Discipline, then they would be dealing with the
3
local attorney general's office seeking legal
4
advice on that.
5
MR. FREIMAN:
I am going to come
6
back to that.
I would like to ask you a couple
7
more questions about the pre-screening -- or the
8
screening package and the advice given there, but
9
I am just going to put a place-marker and maybe we
10
can pursue that question in a wider framework in a
11
minute.
12
LCOL MacGREGOR:
13
MR. FREIMAN:
Sure.
Before I get to
14
that, though, I noticed -- and I can't point you
15
to the document, although I am sure you could
16
point me to the document -- that one of the things
17
that is noted about pre-charge screening is that
18
when advice is given, it has to be given in
19
writing, and there has to be some note of the
20
advice that is given.
21
22
I think I can find it for you.
--- Pause
23
MR. FREIMAN:
It's at Tab 12, on
24
"Charge Screening Policy", and even as I look at
25
it, I notice that it's a general rule.
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2
Let me see if I can find it in
another statute the might be more specific.
3
LCOL MacGREGOR:
Tab 12 is the JAG
4
charge screening policy vice the CMPS charge
5
screening policy.
6
7
MR. FREIMAN:
Let me see if I can find it
elsewhere.
10
11
Am I wrong that the advice does
not need to be in writing?
12
13
So let's
look at --
8
9
All right.
LCOL MacGREGOR:
It's always
preferable to have a written record.
14
If the advice is not given in
15
writing, I believe -- and I would have to
16
double-check this -- I believe that there is
17
direction from the JAG that if it's oral legal
18
advice that is given, then it should be put into
19
writing afterwards.
20
Sometimes you are in a situation
21
where timing is everything, and if you don't have
22
an ability to sit back and write a memo to be
23
provided to the charge layer, then you give that
24
advice orally, and then you follow up in writing.
25
MR. FREIMAN:
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protocol as to where the written advice should be
2
filed?
3
LCOL MacGREGOR:
4
MR. FREIMAN:
5
By the --
By the JAG and by
the CFNIS.
6
LCOL MacGREGOR:
I don't know
7
where it would be filed within the AJAG's
8
perspective.
9
within the AJAG office itself, if it's legal
I would imagine that it would be
10
advice that is being given to a charge layer,
11
whether that be the commanding officer or the --
12
When we are talking about legal
13
advice going to the MPs, they don't lay charges.
14
So if we are talking about an AJAG lawyer giving
15
legal advice to a charge layer, it probably would
16
just be within -- that legal advice would be
17
maintained within the AJAG office.
18
If you are talking about the CFNIS
19
receiving legal advice on a pre-charge, that would
20
be maintained within the office of the DMP.
21
That is my understanding of it.
22
Now, to pinpoint if that minutiae
23
is within these policies, I would have to
24
double-check, because that certainly hasn't been
25
my focus.
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MR. FREIMAN:
The other question,
2
generally, on charging that I wanted to ask you
3
about is the issue of included charges.
4
responsibility is it, if anyone's, to identify
5
whether there is the potential for a charge
6
different from the one that has initiated the
7
complaint, or that the officers investigating the
8
complaint foresee laying?
Whose
9
LCOL MacGREGOR:
10
legal advice that is being sought is whether or
11
not there is sufficient evidence, and if there is
12
sufficient evidence to pursue a charge, then part
13
of that legal advice that is being given is the
14
appropriate charge, to give legal advice on what
15
the appropriate charge is, and that is at the
16
107.03 level.
17
Under 107.03, the
So that's what both legal officers
18
in the regions -- you know, the non-prosecutors
19
are instructed to do, as well as the prosecutors,
20
as to what is the appropriate charge.
21
Because quite often -- I mean,
22
from my experience, we would get a hockey sock
23
full of charges, and then, through discussions
24
with the investigator, you would be narrowing it
25
down, because some of the extra charges might lead
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to problems, or might lead to other issues, in the
2
sense that, you know, this is duplicitous.
3
4
So you narrow it down, and that is
part of our job.
5
MR. FREIMAN:
I want to switch
6
gears for a minute, then, and talk about something
7
that arises from our earlier discussion of a few
8
minutes ago about if the NIS is looking for advice
9
outside the JAG on a non-charge screening matter.
10
11
It raises the question for me as
to who is JAG's client.
12
13
LCOL MacGREGOR:
Who is JAG's
client?
14
Again, I don't mean to be overly
15
formal, but I am going to take you back to Tab 2,
16
which is the statutory provision for the JAG.
17
Who is the JAG's client?
He is
18
the legal advisor to the Governor General, the
19
Minister, the Department, and the Canadian Forces
20
in matters relating to military law.
21
So that is the client, under 9.1
22
of the National Defence Act.
23
MR. FREIMAN:
The reason I ask is,
24
in the ordinary course, we think of a client being
25
able to make up its own mind about legal
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representation and whom to consult and whom not to
2
consult.
3
You have told us that the statute
4
takes that away, it appoints the JAG as the source
5
of legal advice and representation for the
6
Canadian Forces.
7
8
But you have shown us that the
Governor General and -- I have forgotten --
9
10
LCOL MacGREGOR:
Department, and the Canadian Forces.
11
12
The Minister, the
MR. FREIMAN:
The Minister, the
Department, and the Canadian Forces.
13
Is it the case that any one of the
14
members of that list can be a client, or is there
15
one client that includes all of the others?
16
17
LCOL MacGREGOR:
One client that
includes --
18
MR. FREIMAN:
I know that in this
19
room we have heard about the government speaking
20
with one voice, and I guess this is another
21
representation of that concept, but, again, in the
22
way ordinary people think, there is a difference,
23
or a potential difference, between the Governor,
24
namely, the Government of Canada, the Minister,
25
namely, the Department of National Defence, the
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Forces, and individuals in the Canadian Forces who
2
may be doing a job that needs legal advice.
3
The question I have is whether, on
4
a specific retainer, or a specific file, the
5
client is all of the above, or is it one
6
predominant person?
7
8
Is there one entity capable of
giving advice to the exclusion of the others?
9
LCOL MacGREGOR:
10
going to try to jump ahead of the questioning,
11
because I sort of see where you are going, but I
12
am not going to offer conjecture.
13
Well, I am not
But, at the end of the day, it is
14
very specific under the statute that those are all
15
of the clients that the JAG has.
16
And if there is a conflict -- if
17
this is where you are headed, is there a conflict
18
between the two -- if the JAG feels that he is in
19
a conflict situation, then he is a member of the
20
Nova Scotia Bar, as am I, and we have obligations
21
to deal with conflicts in certain ways, and we
22
have to avoid conflicts.
23
If there is a conflict in and
24
amongst all of that and it can't be resolved, then
25
there are other ways to deal with it by going
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outside.
2
But the thing is, we have
3
obligations to avoid conflicts.
4
day, those are all of the clients that we have,
5
and we generally try to avoid any conflicts.
6
At the end of the
And this is one thing that I am
7
going to take the time to make it very, very clear
8
to this Commission on, because I think it's very
9
important to understand the history of where we
10
are today.
11
In the 1990s we had a very
12
different system in terms of dealing with the
13
police and dealing with the prosecution and
14
dealing with the defence.
15
similar to the U.S., where the chain of command
16
was basically running how prosecutions were under
17
a court martial.
18
prosecutors, they were picking the defence --
19
well, not necessarily defence counsel, but picking
20
the prosecutors and determining whether or not a
21
court martial was going to go ahead.
22
We had a system very
They were picking the
That system wasn't working very
23
well.
Certainly, it was deemed to be inconsistent
24
with the Charter.
25
Also, we had various inquiries,
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including an inquiry by former Chief Justice
2
Dickson that looked into this.
3
As a result of that, what was born
4
in the late 1990s, through Bill C-25, was the
5
creation of the Director of Military Prosecutions
6
under the statute, and you have that section at
7
Tab 4, I believe.
8
9
10
That was the birth of, really, an
independent prosecution service.
there were concerns about conflicts of interest.
11
12
That was because
We also had the birth of the
defence counsel services, now led by a colonel.
13
We had the birth of the Office of
14
the Chief Military Judge, which is independent of
15
the chain of command.
16
And, back to section 9, we had the
17
birth of a statutory provision for the Judge
18
Advocate General, who is independent of the chain
19
of command.
20
So all of these things together
21
are providing some indication as to how far we
22
have gone, from a short time ago, in trying to
23
avoid improper influence by the chain of command
24
on decisions related to military justice and
25
military law.
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That is because of the various
2
inquiries, Chief Justice Dickson, followed up by
3
Chief Justice Lamer, and followed up most recently
4
by former Justice LeSage -- all supportive of
5
these changes to break that potential conflict.
6
MR. FREIMAN:
As I understand it,
7
what has been instituted is a system of
8
independence that safeguards the functioning of
9
the prosecution service and the defence service --
10
if I can use shorthand for them -- from influence
11
by the chain of command.
12
are looking at the client of any justice system,
13
of any criminal justice system, it is always going
14
to be, ultimately, Her Majesty, that is, the
15
public --
In that sense, when we
16
LCOL MacGREGOR:
17
MR. FREIMAN:
18
Right.
-- vindicating their
interest in the proper administration of justice.
19
I want to bring it back, though,
20
to the part of the JAG that isn't covered under
21
military prosecutions or defence.
22
client when advice is being given at the regional
23
level, at the unit level, where someone wants to
24
know about the law of contracts, some issue of
25
property that may affect soldiers under a person's
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command?
2
Who is the client then?
3
MS RICHARDS:
I am just going to
4
object there, because as you very well know, this
5
has been a matter of legal debate between
6
Commission counsel and myself in the course of
7
these proceedings, and it is a legal issue that we
8
don't agree on.
9
So I am concerned that you are
10
getting into the area of attempting to elicit a
11
legal opinion from this JAG officer on a matter
12
that is in dispute.
13
MR. FREIMAN:
No, I am trying to
14
understand what the JAG itself understands in
15
terms of who is the client and what the
16
relationship is.
17
opinion, and Colonel MacGregor is eminently
18
qualified, by virtue of his position, to tell us
19
what the policy is.
20
21
That is not a question of
MS RICHARDS:
I think he has told
you multiple times what the legislation states.
22
MR. FREIMAN:
The question stands.
23
THE CHAIRPERSON:
I am not looking
24
for a legal opinion.
25
just the facts relative to where does it go and --
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MR. FREIMAN:
Yes.
How does the
2
JAG understand who the client is in circumstances
3
that don't involve military justice.
4
COL (RET'D) DRAPEAU:
If I may,
5
Mr. Chair, I would have similar questions.
6
fact, I have a range of questions on exactly the
7
same subject, for enlightening purposes:
8
fact, is the client, and who provides that
9
advice -- in estates, in contracts, any part of
10
Who, in
the civil law.
11
12
In
THE CHAIRPERSON:
Proceed, Mr.
Freiman.
13
MR. FREIMAN:
When we are not
14
dealing with the military justice system, what
15
does the JAG consider to be the client?
16
17
LCOL MacGREGOR:
I will take us
back to the setup of the JAG office.
18
We have a Deputy JAG of Military
19
Justice.
20
now.
21
We are going to put that aside right
We have a Deputy JAG of
22
Administrative Law.
23
administrative law question, then the colonel that
24
is leading that division has a number of legal
25
advisors that advise the chain of command as to
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So, if we have an
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1
what the law is on administrative law.
2
So the chain of command that is
3
asking the question, that would be the particular
4
client at that time.
5
On operational law, we have
6
various legal officers that are working for the
7
DJAG - Operational Law.
8
9
The chain of command has numerous
questions, in and outside Canada, on areas of
10
operational law.
11
command comes and asks us a question on that, we
12
give legal advice to that person.
13
When a client from the chain of
But it's always -- if that legal
14
advice is given to anybody that is asking a
15
question on operational law, administrative law,
16
or what have you, the client, ultimately, is the
17
Department or the Canadian Forces, so it's the
18
Minister, ultimately.
19
MR. FREIMAN:
And I understand
20
that that is reflected in the concept that,
21
regardless of who has asked for the advice, that
22
advice is privileged, unless and until the
23
Minister waives.
24
LCOL MacGREGOR:
25
MR. FREIMAN:
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Absolutely.
Let me ask the
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1
question somewhat differently.
Whose privilege is
2
it that is created by the giving of advice?
3
LCOL MacGREGOR:
4
MR. FREIMAN:
Who owns the
6
MS RICHARDS:
Now I think that we
7
have gotten into asking him a legal opinion.
8
is not asking what he understands his client to
9
be, now you are asking him to give you some
5
Whose --
privilege?
That
10
conclusion on what his legal assessment is of who
11
owns the privilege.
12
13
That is exactly where I was
concerned this was going.
14
15
MR. FREIMAN:
I am mystified as to
why that is an improper question.
16
THE CHAIRPERSON:
I see that as
17
fact more than a legal opinion, who owns the
18
privilege.
19
20
MS RICHARDS:
I don't.
21
22
Well, with respect,
THE CHAIRPERSON:
I guess we had
to many mics on.
23
Col Drapeau?
24
COL (RET'D) DRAPEAU:
25
almost had to repeat myself.
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Again, I
I don't see what the
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1
issue here.
It's a matter of fact who is, in
2
fact, who owns it.
3
be abundantly clear.
It should be clear.
It should
4
It's not; hence the question.
5
THE CHAIRPERSON:
6
COL (RET'D) DRAPEAU:
Ms -It's central
7
to everything that we -- that we are and we do
8
here.
9
10
MS RICHARDS:
Well, first of all,
it's not central to everything that we are and --
11
THE CHAIRPERSON:
No.
12
MS RICHARDS:
13
And second of all, as a matter of
-- that we do here.
14
law, all the lawyers in this room know, the person
15
who owns the privilege is the client, so he's
16
answered that question.
17
THE CHAIRPERSON:
18
MR. FREIMAN:
19
THE CHAIRPERSON:
Yeah, that's why
I -- I agree with that.
22
23
Well, is that the
answer?
20
21
Mr. Freiman?
You're answering Ms Richards, but
I guess I'm looking for yours.
24
LCOL MacGREGOR:
25
think I'm being any -- I don't think I'm being
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inconsistent with what Ms Richards just stated.
2
I have tried to be very clear in
3
setting out the statutory basis for what I would
4
consider to be the client, and there we are.
5
I wouldn't -- I wouldn't want to
6
venture beyond what is statutorily provided.
7
That's where we are.
8
THE CHAIRPERSON:
9
MR. FREIMAN:
Thank you.
In your experience,
10
have there been circumstances where they -- that
11
list of potential clients served by JAG might have
12
different interests as to whether or not to waive
13
privilege?
14
LCOL MacGREGOR:
That may or may
15
not be the case, but I don't think that's the --
16
that's really the --
17
MR. FREIMAN:
18
if there's a difference of opinion, or is it
19
always the Minister, regardless of who else wants
20
to waive?
21
22
LCOL MacGREGOR:
I don't think it
matters.
23
24
Well, does it matter
MR. FREIMAN:
So it's always the
Minister.
25
LCOL MacGREGOR:
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As far as I know.
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That's -- that's my understanding.
2
3
MR. FREIMAN:
And does that extend
into the military justice system as well?
4
LCOL MacGREGOR:
5
waiver of the solicitor-client privilege, yes.
6
MR. FREIMAN:
In terms of the
Okay.
So just so
7
that I'm understanding you, the circumstance that
8
I foresee is that a person who is the recipient of
9
legal advice wishes to disclose that legal advice
10
in order to further some interests -- his or her
11
own interests either in the military justice
12
system or in the disciplinary system, but the
13
ultimate decision as to whether that waiver should
14
be allowed belongs to the Minister.
15
LCOL MacGREGOR:
Well, you have
16
to -- we have to always go back to why that person
17
was there in the first place.
18
they a member of the Canadian Forces?
19
Are they -- are
Yes.
If they're a member of the
20
Canadian Forces, they're put in that position,
21
they're giving that -- receiving that legal advice
22
as a member of the Canadian Forces and the
23
purposes of the Canadian Forces, then ultimately,
24
the way it's established is that the Minister is
25
the one that is receiving that advice.
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It happens to be an individual
2
person. It's not the Minister that's getting it.
3
But if they're working and receiving that advice
4
on the basis of their -- the performance of their
5
duties, then ultimately, the one that can waive is
6
the Minister, and nobody else.
7
MR. FREIMAN:
Okay.
Let me ask
8
the question from a different perspective.
9
it's not the same question, but similar question.
10
When advice is being given to the
11
And
Canadian Forces, whose advice is it?
12
And I'm wondering is, is it the
13
JAG lawyer who gives the actual opinion, is it
14
the -- the DMP, is it the JAG itself or is it
15
someone else?
16
LCOL MacGREGOR:
17
the -- we have a JAG who is -- who is the legal
18
adviser, as we've already discussed ad nauseam, to
19
the Governor General, Minister and department in
20
the CF.
21
is giving the legal advice.
22
Ultimately,
Ultimately, it is he who is the one that
Now, that said, we have separated
23
DMP and the Deputy -- or Director of Defence
24
Counsel Services specifically by statute as a
25
result of Bill C25 to ensure that there is some
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degree of separation between the JAG giving advice
2
to investigating officers or the investigative
3
services and/or the accused.
4
So on -- DDCS, Director of Defence
5
Counsel Services, and the Director of Military
6
Prosecutions work under the general supervision of
7
the JAG, so they both work under the JAG.
8
9
Ultimately, it's the JAG advice
that is -- that is being given.
10
MR. FREIMAN:
Okay.
Taking out of
11
the equation for a moment defence -- I've
12
forgotten the name of the unit, but the -- that
13
entity within the JAG that is charged with looking
14
after the defence of individuals within the
15
military justice system, is it correct, then, to
16
say that advice given is the advice of the JAG
17
and, therefore, is to be taken to be advice given
18
on behalf of the entirety of the JAG?
19
Or let me put it a different way.
20
When advice is given on a legal
21
question, does that advice bind the entirety of
22
the JAG?
23
LCOL MacGREGOR:
24
there can be conflicting opinions as to certain
25
things and legal officers will give legal
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1
opinions, whether it's in writing or orally.
2
Sometimes they -- when the opinion is given, it's
3
given on behalf of the JAG.
4
MR. FREIMAN:
Yes.
5
LCOL MacGREGOR:
Sometimes there
6
will be a difference of opinion and, quite
7
frequently, you have two lawyers in the room, you
8
end up with three different opinions.
9
MR. FREIMAN:
Yes.
10
LCOL MacGREGOR:
11
opinions are better researched than others, so
12
sometimes you'll have differing opinions and
13
they'll have to be -- one will have to be
14
corrected or they both have to be corrected.
15
16
So some legal
But ultimately, it's -- we're all
speaking from the same voice.
17
MR. FREIMAN:
Yeah.
Well, with
18
respect, sir, I don't think I understand how that
19
works.
20
If you have an individual JAG
21
lawyer giving advice, that's the advice of the
22
JAG.
23
LCOL MacGREGOR:
24
MR. FREIMAN:
25
of the lawyer.
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Right.
It's not the advice
It's treated as the advice of the
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JAG.
2
How is it possible for another JAG
3
lawyer to give contrary advice and then have the
4
JAG be responsible for two different opposing
5
opinions?
6
LCOL MacGREGOR:
Well, sir, I
7
don't think -- I don't think it's unreasonable to
8
conceive of a legal office as diverse and as
9
geographically disconnected as ours to think that
10
a lawyer -- say a Major that is working in
11
Geilenkirchen gives a LCol in Geilenkirchen a
12
half-page legal opinion on an administrative law
13
question and it being somewhat different than
14
somebody giving the same advice in Victoria and
15
they just didn't happen to talk to each other or
16
talk to the Colonel that is responsible for all of
17
the AJAG offices.
18
There's going to be some
19
discrepancy in terms of views of opinion, but if
20
it gets -- if it gets seen that legal opinion in
21
one area is somewhat different than the legal
22
opinion of another area, then it would be up to
23
the DJAG Regional Services to clarify that -- that
24
discrepancy of opinion.
25
We try to be as consistent as
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1
possible, but we have to be realistic.
2
MR. FREIMAN:
Yeah.
I'm not
3
suggesting that the situation you describe is
4
anything other than what one would expect.
5
just having trouble, given that reality, with the
6
proposition that advice given by a JAG legal
7
officer is the advice of the JAG rather than of
8
that individual.
9
LCOL MacGREGOR:
I'm
Well, that's --
10
it's ultimately given by the individual, but it's
11
on behalf of the JAG.
12
MR. FREIMAN:
Okay.
13
MS RICHARDS:
Mr. Freiman, you
14
might want to look at Section 10 of the
15
legislation, which specifies that.
16
MR. FREIMAN:
Which tab, please?
17
MS RICHARDS:
Tab 2.
18
Section 10
states that:
19
"The powers of the Judge
20
Advocate General may be
21
exercised and the duties and
22
the functions of the Judge
23
Advocate General may be
24
performed by any other officer
25
who has the qualifications set
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1
out in Section 9(1) that the
2
Minister may authorize to act
3
for the Judge Advocate General
4
for that purpose."
5
LCOL MacGREGOR:
6
MR. FREIMAN:
Yes.
That certainly says
7
that there's a delegation of authority, but it
8
does seem to stand for the proposition that,
9
ultimately, it is the JAG's advice that's being
10
given.
Okay.
11
12
So we've talked about privilege
and who can waive privilege.
13
In the ordinary course, if legal
14
advice is disseminated beyond the scope of where
15
it's -- to people beyond the scope of what is
16
necessary in order to give effect to the legal
17
advice or in order to allow the person seeking the
18
legal advice to act on it, the concept of waiver
19
of privilege comes in on that basis.
20
In the military context, is it
21
possible to have a waiver of privilege by virtue
22
of dissemination beyond what is necessary to give
23
effect to the advice?
24
25
LCOL MacGREGOR:
If you're asking
me a legal opinion as to how -- what incorporates
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1
a waiver of privilege, I'm not so sure that that's
2
my area of expertise, to discuss the finer details
3
as to what constitutes or what doesn't constitute
4
a waiver of privilege.
5
MR. FREIMAN:
I was hoping not to
6
do it on the basis of a legal opinion.
7
hoping to do it on the basis of policy and how the
8
JAG operates and the position it takes.
9
I was
If a legal opinion is widely
10
disseminated within the military beyond the person
11
who commissioned the opinion, is it the policy to
12
consider that to be a waiver?
13
consider that no amount of dissemination can get
14
around the fact that only the Minister can waive?
15
16
MS RICHARDS:
Is it the policy to
Objection.
That's
solicitor-client privilege.
17
This is not a policy issue.
This
18
is a legal issue as to whether or not waiver has
19
occurred, and Commission counsel is now asking
20
this witness to give his legal opinion on what
21
constitutes waiver.
22
23
THE CHAIRPERSON:
Mr. Freiman, or
Col Drapeau, if you have any comment.
24
COL (RET'D) DRAPEAU:
25
THE CHAIRPERSON:
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No comment.
Okay.
Mr.
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Freiman?
2
MR. FREIMAN:
I'm asking how the
3
military operates, what the JAG does, what
4
position it takes.
5
6
THE CHAIRPERSON:
Pursuant to
policy.
7
MR. FREIMAN:
Pursuant to policy.
8
MS RICHARDS:
Just to be clear,
9
whether or not something constitutes a waiver is
10
not a policy decision.
11
And so that is the basis for my objection.
12
That's a legal decision.
MR. FREIMAN:
Every bit of policy
13
can be said to be a legal decision of one sort or
14
another because it depends on the legality of
15
what's done.
16
COL (RET'D) DRAPEAU:
But Mr.
17
Chair, I understand the question to be in
18
theoretical term, what -- you know, what are the
19
parameters, what is the universe where you may or
20
may not breach client-solicitor, can apply to any
21
set of circumstances or facts.
22
I trust that the question is not
23
aimed at any specific instances where privilege
24
has been breached.
25
the policy, what are the guidelines, what are the
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But if it were to be, what are
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procedures being used by the JAG in order to
2
arrive at a decision, at their opinion?
3
4
MR. FREIMAN:
much better than I did, Mr. Chair.
5
6
Col Drapeau puts it
MS RICHARDS:
Well, that's not the
question that was asked.
7
The question that was asked is
8
whether or not, if opinions had been circulated,
9
that could amount to a waiver, and that calls for
10
a legal conclusion.
11
12
If --
MR. FREIMAN:
Change the "could"
MS ROBINSON:
If Commission
to "would".
13
14
counsel would like to ask whether or not there are
15
particular policies, procedures or processes that
16
the JAG has in place to address the issue of
17
waiver, I agree.
18
would be procedural.
19
That would be okay because that
But when you're asking about --
20
your previous question asked for a legal
21
conclusion.
22
THE CHAIRPERSON:
I was -- I took
23
it from it that the -- was asking relative to what
24
the policies were surrounding the waiver issue.
25
Mr. Freiman, if you want to
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rephrase.
2
MR. FREIMAN:
What is the policy
3
in terms of the dissemination of legal opinions
4
and whether any dissemination constitutes waiver?
5
LCOL MacGREGOR:
What -- what I
6
can answer, I'm -- I can't speak -- I can't speak
7
generally about waiver -- a waiver policy.
8
what I can direct you to is Tab 6, Annex A, that
9
talks about solicitor-client privilege.
10
11
And so paragraph 2.
But
And that
talks about the waiver:
12
"Consequently, it's not the
13
individual recipient but,
14
rather, the institution who
15
can waiver the privilege."
16
MR. FREIMAN:
17
understand that and I understand the policy.
18
my question has to do with waiver by conduct
19
rather than express waiver.
20
Yeah.
And I
But
And maybe a different way of
21
asking the question is whether JAG recognizes the
22
concept of waiver by conduct in terms of overly
23
broad dissemination of legal opinions.
24
25
LCOL MacGREGOR:
that question.
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I can't answer
I'm sorry.
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MR. FREIMAN:
Okay.
We've talked
2
about different opinions and the human result,
3
that some variations can occur.
4
Let me ask you, if a JAG lawyer
5
takes a legal position in the context of civil
6
litigation on behalf of the Canadian Forces, is
7
JAG bound by that position?
8
9
10
LCOL MacGREGOR:
sorry, are you asking from policy perspective or
are --
11
MR. FREIMAN:
12
LCOL MacGREGOR:
13
Again, I guess,
Yes.
-- you asking
from a legal perspective?
14
MR. FREIMAN:
15
LCOL MacGREGOR:
16
have a policy that says if somebody is taking a
17
civil litigation perspective on a certain case
18
then we're bound.
19
Policy perspective.
I don't think we
I don't think we have any policy
20
on that.
21
basis, and it's determined by the law.
22
That would have to be on a case by case
And I can't offer you a legal
23
opinion on a certain thing, but I certainly know
24
that from a prosecution perspective, we were very
25
cognizant of taking certain positions on different
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1
cases because of the precedent that it sets in
2
criminal law.
3
When you have a prosecution
4
service that is arguing one line of cases and
5
then, all of a sudden, on a very similar case,
6
they take a very different tact (sic), that can be
7
very difficult to explain to a military Judge that
8
is hearing you.
9
So consistency is one thing.
10
at any -- at any given point, there can be a
11
change of circumstances or a change of the law or
12
what have you to make a right turn on a certain
13
institutional perspective.
14
MR. FREIMAN:
Okay.
But
I was trying
15
to approach the question from the point of view,
16
again, of our previous discussion of who the
17
client is and given the fact that JAG can, from
18
time to time, represent the Canadian Forces in
19
civil litigation issues, whether that, by policy,
20
is considered to be binding on the JAG, the
21
position that's taken.
22
LCOL MacGREGOR:
I'll say one
23
thing.
Canadian Forces legal adviser is the --
24
they -- I don't know of any discussion that's
25
taken place previously in the testimony.
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There is a Canadian Forces legal
2
adviser that assists on the -- assists the
3
Canadian Forces and the department on issues
4
related to claims and civil litigation.
5
Those aren't uniformed lawyers.
6
They work with the JAG office or in the same
7
building, but they are part of Department of
8
Justice.
9
in terms of dealing with civil claims to or by the
10
Canadian Forces.
11
12
They are working for the Canadian Forces
So they are responsible for
providing the legal services on civil claims.
13
MR. FREIMAN:
14
LCOL MacGREGOR:
15
Yeah.
They're not part
of the JAG office.
16
MR. FREIMAN:
And at the moment,
17
I'm not concerned with any DOJ lawyers who may
18
serve as counsel in litigation.
19
time, members of the JAG take positions on civil
20
litigation claims and express a view on behalf of
21
the client with respect to civil litigation
22
claims.
23
24
But from time to
We've seen a number of instances
in this case of such a thing occurring.
25
And my question, again, was
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1
whether the JAG is bound by such civil litigation
2
positions.
3
LCOL MacGREGOR:
I can't -- I
4
can't speak to you on that.
I'm here to offer as
5
much assistance as I can, but I can't speak to you
6
on that one.
7
MR. FREIMAN:
All right.
8
Are you aware of any policy that
9
entitles a member of the JAG to take a contrary
10
view to the one that was expressed by -- in the
11
context of civil litigation by a member of JAG?
12
LCOL MacGREGOR:
13
No, I'm not aware
of that.
14
MR. FREIMAN:
Now, we've mentioned
15
the rules of professional conduct and the fact
16
that the lawyers who comprise the JAG are bound by
17
the rules of professional conduct of their
18
respective provincial jurisdictions.
19
20
For those purposes, is the JAG a
firm?
Is the JAG a law firm?
21
LCOL MacGREGOR:
It is an office.
22
It is -- it is a unit within the Canadian Forces
23
by Ministerial order, so -- would I say it's a law
24
firm?
25
but it's actually a military unit.
Somebody may wish to call it a law firm,
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MR. FREIMAN:
Well, I know that
2
you're telling us the situation in terms of the
3
military's self perception.
4
You have in front of you, I think,
5
the rules of professional conduct for the Law
6
Society of Upper Canada and I think, also, the
7
rules of professional conduct for the Law Society
8
of Alberta.
9
realized that that was your home jurisdiction.
I'd have brought Nova Scotia if I had
10
But for our purposes, most of the
11
action occurs either in Alberta or in Ontario,
12
with a side trip to British Columbia.
13
But if you look at the rules of
14
professional conduct, Rule 1, which consists of
15
definitions, 1.02, Definitions, and you look at
16
"law firm", the definition in the Law Society of
17
Upper Canada is:
18
"...one or more lawyers
19
practising (a) in a sole
20
proprietorship, (b) in a
21
partnership, (c) as a legal
22
clinic under the Legal
23
Services Act (1998), (d) in a
24
government or Crown
25
corporation or any other
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public body, and (e) in a
2
corporation or other body."
3
And so I was going to ask you
4
whether, from a policy point of view, the JAG
5
accepts that for purposes of the rules of
6
professional conduct it is a law firm.
7
LCOL MacGREGOR:
Well, I'm -- I
8
mean, what you're asking me is a legal position on
9
this without having had a chance to read through
10
this entire document and look at how it relates to
11
our own unit organization.
12
13
I'm a bit in an unfair position to
answer that question.
I'm sorry.
14
MR. FREIMAN:
Okay.
15
MS RICHARDS:
And again, Mr.
16
Chair, this goes beyond the discussion we've had
17
about the purpose for this evidence.
18
evidence is to provide context to consider what
19
the subjects did.
20
itself a law firm or not, with respect, is
21
irrelevant to the mandate of this Commission and
22
to the conduct of those MP members.
This
Whether the JAG considers
23
MR. FREIMAN:
Quite the contrary.
24
MS ROBINSON:
And again, then we
25
get back into my concern that I expressed
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1
previously.
2
this Commission to investigate how the JAG is
3
structured or its independence and that, indeed,
4
appears to be exactly what Commission counsel is
5
attempting to do.
6
It is not the role or the mandate of
This witness gave you his answer
7
as to how the JAG saw itself, and Commission
8
counsel said, "Well, that may be your perception".
9
Well, that's exactly what he's here to tell you
10
about, what the -- how the JAG sees itself.
11
And when you go beyond that, you
12
are starting to investigate how the JAG branch
13
conducts itself, and its independence.
14
THE CHAIRPERSON:
Colonel Drapeau.
15
COL (RET'D) DRAPEAU:
Mr. Chair, a
16
significant proportion of the discussion this
17
morning, and the testimony, is that, first and
18
foremost, what I can get from it, is lawyers,
19
whether in uniform or not, are each subject to a
20
provincial body, such as the Ontario Law Society,
21
and our ethical obligations are defined by the
22
society, whether from Nova Scotia or British
23
Columbia or whatever it is.
24
25
In these guidelines or Rules of
Professional Conduct, the term "firm", for the
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purpose of ethical obligations and ethical
2
conduct, is defined as one of the keystone terms
3
from which we can assess whether or not this fits
4
the particular circumstances.
5
It particularly provides, and
6
we've just seen it in the definition, that "law
7
firm" applies to government.
8
were to look at the Nova Scotia rules, there's
9
probably something very, very, very similar to it.
10
I'm certain, if we
So, hence, if we are to have a
11
discussion, and have the testimony assessed at its
12
full value, then need to go outside what the
13
Queen's Regulations or National Defence Act or
14
even the JAG policies are, because all of our
15
respective obligation, whether in private
16
practice, government or in uniform, stems from
17
these professional and these ethical procedures
18
and rules of conduct.
19
So, of course, it's appropriate
20
that we define and we understand whether or not
21
the JAG embraces, incorporates, obeys by the
22
totality of these rules of conduct, as
23
professionals, or they pick and choose.
24
25
If "law firm" does not apply, then
we would have to ask:
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in order to apply the various rules?
2
definition is at chapter 1, and "law firm" issues
3
throughout, and it's my understanding that "law
4
firm" is, in fact, applicable in a government
5
setting, whether or not it's in uniform or not
6
uniform.
7
Because this
I think the question is to -- so
8
that the question and the comments that I make
9
does not raise your emotion level.
So let's be
10
clear what is the Bible and what are we
11
responsible for?
12
on what the definitions are, basic definitions.
13
THE CHAIRPERSON:
14
Mr. Freiman
first.
15
16
At the very least, let's agree
MR. FREIMAN:
I have the benefit
of agreeing entirely with Colonel Drapeau.
17
THE CHAIRPERSON:
18
Ms Richards.
19
MS RICHARDS:
Okay.
First of all, I
20
think it's offensive, and I'd ask my friend to
21
withdraw his comment that JAG lawyers may be
22
picking and choosing which portions of the ethical
23
obligations they abide by, because I'm sure my
24
friend is going to tell you they absolutely do
25
not.
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As to whether or not there can be
2
a disagreement amongst lawyers as to what the
3
rules mean and what the interpretation of them is,
4
absolutely, and that is a matter of legal opinion.
5
He's given you his information as
6
to what he understands the JAG view to be.
7
friend is trying to challenge him on that and
8
cross-examine him on what the legal meaning is of
9
the Rules of Professional Conduct, and, with
10
Now my
respect, that is inappropriate.
11
COL (RET'D) DRAPEAU:
I need to
12
comment, Mr. Chair, on this, because I take
13
offence to Ms Richards' offence to my comments.
14
My comments were not meant denigrate, to reduce,
15
to devalue the JAG, for whom I have the upmost
16
respect, professional and otherwise.
17
But for the purpose of answering
18
this question, which to me is pretty -- it's
19
normally banal, it's pretty basic, then if the
20
answer is a none answer or the answer is, "We
21
don't recognize the term 'law firms'", then I will
22
have to ask:
23
the procedures?
24
you follow?
25
what are the guidelines?
What are
What are the ethical rules that
Because a number of these rules,
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then, will drop by the wayside, because "law firm"
2
is a fundamental foundational definition of the
3
rules overall.
4
the same within any one of the provinces or
5
territories in Canada.
6
And as I said, it'd probably be
So don't take offence.
I'm asking
7
the question, and my question is certain, and not
8
aimed to denigrate and not aimed to offend and not
9
aimed to receive an emotional discharge.
10
THE CHAIRPERSON:
11
Mr. Freiman.
12
MR. FREIMAN:
Thank you.
I think if this
13
discussion is to go any further, it probably does
14
make sense to excuse the witness.
15
keep the discussion of the objection at a level of
16
generality, but if we have to get to a level of
17
specificity, then it's probably more appropriate
18
not to have the witness in the room.
I've tried to
19
THE CHAIRPERSON:
That's fine.
20
We're going to, when we finish
21
this discussion, probably have a break for lunch,
22
and we'll have a shortened lunch.
23
know how much time you have left, Mr. Freiman.
24
25
MR. FREIMAN:
I don't have
Not that much.
I
should be able to -- I mean, I have a number of
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questions, but they're all dominos, and if one
2
domino falls, the rest may follow very quickly.
3
THE CHAIRPERSON:
4
We'll excuse you as a witness for
Yeah.
5
now, and say we'll come back at 1:30, and that
6
way --
7
MR. FREIMAN:
Well, you know,
8
unless there's going to be more discussion, maybe
9
we should just proceed with your ruling as to
10
whether the question is proper or not.
11
that there might be more involved discussion,
12
but --
13
14
THE CHAIRPERSON:
I thought
I would have,
but you sounded like you had much more to say.
15
MR. FREIMAN:
Are we done?
17
MS RICHARDS:
No.
18
THE CHAIRPERSON:
19
MS RICHARDS:
16
I
think we're --
Okay.
I'll just say this,
20
no, we're not done, because I have a heightened
21
concern, based on what Mr. Drapeau has said and
22
Commission counsel's comments to date, that this
23
is turning into an investigation into JAG
24
officers, the JAG Branch, and how they conduct
25
themselves.
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That's been my concern from the
2
beginning, and I am even more concerned, given the
3
line of questioning that has been proceeding.
4
Again, it's our position.
We
5
understand, Mr. Chairman, that you have latitude.
6
As we've discussed previously, in terms of context
7
and background, when you look at allegations
8
regarding the MPs, of course, Lieutenant-Colonel
9
MacGregor is here to assist this Commission.
But
10
this is now turning into an investigation into how
11
the JAG Branch is structured and what ethical
12
obligations apply to JAG officers, and that's
13
inappropriate, in my submission.
14
THE CHAIRPERSON:
15
investigating or overseeing an investigation of
16
JAG, but there are things that need to be answered
17
relative to some of the questions around JAG.
18
I am not
The issue that sparked this
19
particular one was whether or not "law firm" would
20
be seen as included as in a government.
21
understand that -- I heard the witness's -- the
22
Lieutenant-Colonel's answer, but the -- I guess
23
I'll have a question, then.
24
25
And I
Are you governed by these Rules of
Professional Conduct?
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LCOL MacGREGOR:
2
THE CHAIRPERSON:
3
As a lawyer in
the --
4
5
Those are the --
LCOL MacGREGOR:
this on?
I have to turn
Sorry.
6
There we go.
7
Am I governed by these particular
8
Sorry.
rules?
9
THE CHAIRPERSON:
10
LCOL MacGREGOR:
Those.
These are the Law
11
Society of Upper Canada.
12
those.
13
Scotia.
14
ethics of the Canadian Forces as well.
I'm bound by the Code of Ethics in Nova
But I'm also bound by our own values and
15
16
No, I'm not bound by
I'm not a Law Society of Upper
Canada member.
17
THE CHAIRPERSON:
The laws that
18
you're bound by, do they include such a definition
19
as to whether or not it would be "law firm"?
20
you have any idea?
Do
21
LCOL MacGREGOR:
I have no idea.
22
I can tell you that I'm bound by
23
the Nova Scotia Code of Ethics and the regulations
24
and act that deals with Nova Scotia barristers.
25
THE CHAIRPERSON:
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Mr. Freiman, I believe you asked
2
the question whether or not section (d) in a
3
government part of the answer to the law firm, and
4
he answered he couldn't answer that.
5
MR. FREIMAN:
6
THE CHAIRPERSON:
7
Okay.
So can you ask
it in a different format?
8
9
That's fine.
MR. FREIMAN:
Well, it's very
difficult, but I'm going to try, and then I'm just
10
going to go to a series of questions that I think
11
may bring us to a conclusion.
12
Do I understand your evidence to
13
be that you do not know whether the JAG is
14
considered to be a law firm by the JAG itself for
15
purposes of the Rules of Professional Conduct,
16
whichever provincial rules may apply?
17
I can tell you that each set of
18
Rules of Professional Conduct includes a
19
definition of "law firm" because it's a necessity
20
in order to be an introduction to the issue of
21
conflicts.
22
23
LCOL MacGREGOR:
I can't answer
that.
24
MR. FREIMAN:
25
So let me ask you questions that
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1
may allow you to address the concerns that are
2
relevant to the current proceedings.
3
hoped that dealing with "law firm" would have been
4
of assistance, but we can do it otherwise.
I would have
5
Is it proper, according to JAG
6
policy, for JAG to give advice as to whether a
7
member of the JAG has given negligent advice?
8
9
LCOL MacGREGOR:
Is it proper for
the JAG to give legal advice as to whether or not
10
a member has been...,let me answer that by being
11
very clear.
12
Service Discipline, they are subject to being
13
prosecuted within our system.
14
prosecuted JAG officers before for breaches of the
15
Code of Service Discipline.
16
If a JAG officer breaches the Code of
And we have
One of the charges under the Code
17
of Service Discipline is section 124, which is
18
"Negligible Performance of a Military Duty".
19
is one of the potential charges that a JAG officer
20
could be charged with under the Code of Service
21
Discipline.
22
laid against JAG officers, but that is a potential
23
that could happen.
24
25
That
I'm not aware of that charge being
So how are we going to get to a
court-martial, where the DMP is going to be using
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his independent position to make a determination
2
as to whether or not there's sufficient evidence
3
for it go ahead, and, if so, is it in the public
4
interest for it to proceed to court-martial?
5
So those would be done by legal
6
officers within the Office of the JAG, so I guess
7
the short answer is yes.
8
MR. FREIMAN:
Okay.
9
This is really the crucial
10
question:
11
a matter of policy, consider it a conflict to
12
offer an opinion about the legal opinions given by
13
other members of the JAG?
14
to your knowledge, the JAG does not, as
LCOL MacGREGOR:
The JAG, as a
15
matter of policy, doesn't have it's hands tied to
16
make a determination as to an assessment of a
17
legal opinion that is given.
18
I'm not sure that it's a written
19
policy, but what I can tell you is that sometimes
20
a legal opinion that might be offered could be
21
retracted or could be amended with a bit of
22
further research or a better understanding as to
23
what was the question that was to be answered.
24
sometimes legal opinions change.
25
MR. FREIMAN:
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Well, the question I had was in
2
the context of giving legal advice, with respect
3
to a potential charge.
4
that as a matter of policy, the JAG sees no
5
impediment to providing that advice, even when it
6
touches the possibility that previous JAG legal
7
advice had been negligent.
I think you've told me,
8
And let me just be clear as to --
9
LCOL MacGREGOR:
10
11
MR. FREIMAN:
Yeah.
-- the context, and
why I asked you about a firm.
12
LCOL MacGREGOR:
13
MR. FREIMAN:
Right.
My question really
14
was going to whether the JAG saw itself as a firm,
15
and as a firm whether it saw any conflict of
16
interest between the task assigned to it to
17
evaluate the conduct in question and its own
18
interest in collegiality and in supporting its own
19
members.
20
LCOL MacGREGOR:
21
MR. FREIMAN:
22
Supporting as
lawyers.
23
24
In supporting?
LCOL MacGREGOR:
Okay.
There's an
awful lot of innuendo in that potentially.
25
What I will tell you, sir, is that
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1
we have painstakingly made some efforts to create
2
a DMP which is separate and apart or is
3
independent from, essentially, the rest of the JAG
4
under the general supervision of the JAG.
5
The DMP is responsible for making
6
decisions based on complaint -- or decisions that
7
are quasi-judicial in nature to determine whether
8
or not a charge should go ahead to court-martial,
9
et cetera, et cetera.
10
We've gone through what the DMP
11
does, and what the DDCS does, Defence Counsel
12
Services.
13
of the JAG in order to avoid conflicts of
14
interest, in that sense, and any perception that
15
one JAG officer is going to be covering up for
16
another JAG officer or covering up for the
17
institution.
18
incorrect assumption.
There are statutory breakups of members
That's absolutely incorrect, an
19
I will show you, in the sense
20
that -- because I think what's hidden in your
21
question is that, when determinations are being
22
made by both prosecutors and the JAG officers in
23
terms of whether or not a charge should proceed,
24
there are certain things that shall not be taken
25
into consideration when giving legal advice.
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I'll take you to the JAG Charge
2
Screening Policy, at Tab 12, paragraph 9.
3
pre-charge advice.
This is
4
"When providing the advice
5
referred to in this policy..."
6
-- and this advice would be going to a
7
charge-laying authority --
8
"...a legal officer must
9
clearly not be influenced by
10
any of the following:
11
rank of the accused...
12
the
-- and then I'll bring you down to (d) --
13
"...possible political
14
advantage or disadvantage to
15
the CF, the government or any
16
political group or party."
17
(As read)
18
If a legal officer is giving legal
19
advice on a pre-charge, he or she shall not take
20
into consideration those aspects.
21
22
MR. FREIMAN:
Okay.
Now, I think
we're probably on a misunderstanding.
23
It was you who introduced the
24
notion that negligent legal advice could be the
25
subject of a charge.
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1
LCOL MacGREGOR:
2
didn't say that.
3
military duty".
4
No, I didn't.
I
I said "negligent performance of
MR. FREIMAN:
"Negligent
5
performance of duty", and I took you to be saying
6
that negligent legal advice might be negligent --
7
8
LCOL MacGREGOR:
I didn't say
that, sir.
9
MR. FREIMAN:
Okay, fine.
Because
10
I don't want you to address it from the point of
11
view that any charges being proposed as against a
12
legal officer, but rather that the legal advice in
13
question is an element in making out a charge
14
against another person, and whether that advice is
15
correct or not is an element in that decision.
16
That's the circumstance, that I'm
17
interested in knowing whether the JAG does have
18
any policies or views as to whether a JAG officer
19
ought to be reviewing the correctness of such a
20
decision.
21
LCOL MacGREGOR:
I'm sorry for
22
being obtuse, but if what you're asking me is that
23
is there a policy for one legal officer, who is
24
doing a pre-charge -- because you wanted to focus
25
on pre-charge --
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1
MR. FREIMAN:
Yes.
2
LCOL MacGREGOR:
-- legal
3
advice -- if the officer who was giving the
4
pre-charge advice is obliged to follow advice from
5
somebody else in order to make a decision as to
6
how the pre-charge screening advice is to be
7
given, there's not such policy.
8
MR. FREIMAN:
Okay.
9
THE CHAIRPERSON:
10
hold our thought for a second, we need to take a
11
five-minute health break.
12
MR. FREIMAN:
13
THE CHAIRPERSON:
If we could just
Okay.
I'll stay in the
14
room, so feel free.
15
--- Upon recessing at 1230 / Suspension à 1230
16
--- Upon resuming at 1235 / Reprise à 1235
17
18
MS RAHAL:
Veuillez prendre place.
19
20
Please take your seats.
THE CHAIRPERSON:
all being prompt.
21
Thank you for
Thank you.
MR. FREIMAN:
My last few
22
questions, Colonel, have to do with a portion of
23
the JAG that we haven't talked about at all.
24
25
By statute the JAG is made the
Director of Estates and there is a fancy title to
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1
it.
Are you familiar with that position?
2
3
LCOL MacGREGOR:
Estates --
4
5
Director of
MR. FREIMAN:
Director of -- I
have taken this just off the website:
6
"The Minister of National
7
Defence, in Ministerial Order
8
MCU2000-03830 of 3 August
9
2000, appointed the JAG as
10
Director of Estates.
11
behalf of the JAG, the Estates
12
and Elections Section of the
13
Directorate of
14
Law/Compensation, Benefits,
15
Pensions & Estates carries out
16
the administration and
17
disbursement of military
18
Service Estate entitlements in
19
relation to Canadian Forces
20
members who die while serving
21
full time in the Canadian
22
Forces (CF)."
23
LCOL MacGREGOR:
24
MR. FREIMAN:
25
On
Correct.
Are you familiar
with that position?
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LCOL MacGREGOR:
I am vaguely
2
familiar.
3
civilian and some military legal officers that
4
look at the estates, especially our soldiers that
5
are killed in uniform.
6
work that is going on within our office to
7
administer those estates.
8
I know that there is -- we have
There is an awful lot of
The MCU you were just referring
9
to, I'm not personally familiar with that; myself.
10
I do know vaguely that we do, do that service, but
11
I have never done it myself.
12
MR. FREIMAN:
13
This may be very
short then.
14
My first question is do you know
15
in what division this function is carried out?
16
Does it have its own unit or is it part of
17
operations, part of something else?
18
LCOL MacGREGOR:
I believe it's
19
under the DJAG, military justice and
20
administrative law.
21
MR. FREIMAN:
Okay.
So that's the
22
portion of the military justice that isn't
23
concerned with criminal prosecutions?
24
25
LCOL MacGREGOR:
military justice.
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It is not
It is administrative law.
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It used to -- like I mentioned
2
earlier, until April 1st, 2011, we had sort of a
3
much larger division, which was the DJAG military
4
justice and administrative law.
5
banging the table and saying that my colonel is
6
not getting enough of my attention, we had that
7
large division.
Until I started
8
Since April 1st, 2011 we have
9
broken that up into two; military justice and
10
administrative law in two separate kernels.
11
MR. FREIMAN:
Do you know, sir,
12
whether the decisions of the Director of Estates
13
which is ultimately attributed to the JAG are
14
considered to be legal advice or are they
15
administrative law decisions?
16
17
LCOL MacGREGOR:
I can't tell you
that.
18
MR. FREIMAN:
If I wanted to know
19
the answer to that question or to know more about
20
how the Office of the Director of Estates fits
21
into the framework of JAG, whom would I ask?
22
LCOL MacGREGOR:
23
certainly -- it could be filtered down from the
24
DJAG administrative law, which is Colonel Joshi,
25
and ultimately -- I'm not sure if -- well, anyway,
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1
that's how it would be filtered through.
2
MS RICHARDS:
And on that point I
3
would note that this Commission's already had a
4
witness who talked about how the DJAG Estates was
5
structured --
6
MR. FREIMAN:
Yes.
7
MS RICHARDS:
-- and what his
MR. FREIMAN:
Yes, and refused to
8
functions were.
9
10
answer questions that were relevant to anything
11
about which he had any background or any
12
experience.
13
MS RICHARDS:
Well, with respect
14
on the issue of what his responsibilities were and
15
how that section was structured, he did answer
16
questions and he did give you evidence in terms of
17
whether he provided legal advice in certain areas
18
or whether he was just performing administrative
19
functions.
20
21
MR. FREIMAN:
say what it says.
22
23
Thank you.
Those are my
questions.
24
25
The transcript will
THE CHAIRPERSON:
Colonel Drapeau?
EXAMINATION BY
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1
2
COL (RET'D) DRAPEAU:
morning, Colonel.
3
4
Good
LCOL MacGREGOR:
Good morning, Mr.
Drapeau.
5
COL (RET'D) DRAPEAU:
Can you give
6
me your definition of military justice?
7
it encompass?
8
9
What does
What is the universe?
LCOL MacGREGOR:
What is the
universe of military justice?
10
Well, military justice is, I
11
guess, subsumed into what we have under the code
12
of service discipline within the National Defence
13
Act, Part 3 of the National Defence Act.
14
COL (RET'D) DRAPEAU:
So it does
15
not include board of inquiries or summary
16
investigations?
17
18
LCOL MacGREGOR:
Military justice
is not board of inquiry or summary investigations.
19
COL (RET'D) DRAPEAU:
Because in
20
some of the terms that we have used and is
21
reflected in the law, if I need to go there, we
22
use a term separate from military law.
23
LCOL MacGREGOR:
24
COL (RET'D) DRAPEAU:
25
Right.
Which is not
defined.
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I'll ask what is your definition
2
of that, military justice.
3
between the two?
4
What is the difference
LCOL MacGREGOR:
What is the
5
difference between military law and military
6
justice?
7
COL (RET'D) DRAPEAU:
8
LCOL MacGREGOR:
9
much broader.
Right.
Military law is
In many ways, I guess one example
10
or one illustration of the breadth of military law
11
the one we have broken up with in the JAG office.
12
We have operations.
13
We have military justice.
14
law.
15
We have international law.
We have administrative
These are all facets of military
16
law, writ large.
17
done in the civilian world.
18
It's not exclusive of what is
Having military justice is
19
actually one -- one good way of -- you can exclude
20
military justice from criminal justice because
21
they are two distinct things.
22
but they are two distinct things.
23
They have overlap
But military law is so large in
24
terms of what it entails.
25
that affects the military.
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2
COL (RET'D) DRAPEAU:
You'll see
where I'm coming to in a moment.
3
And also, just in your answer
4
right now, you allude to administrative law.
5
I'm aware and you're surely most aware that the
6
JAG publishes and it's available on the net
7
military administrative law.
8
9
10
Now,
Can you make the link between the
two?
Is there any difference between and military
administrative law and administrative law?
11
LCOL MacGREGOR:
What I would see
12
that as administrative law, as it pertains to the
13
military.
14
15
COL (RET'D) DRAPEAU:
Okay.
Where
does civil litigation fit into it?
16
LCOL MacGREGOR:
17
is I guess if we're talking terminology, civil
18
litigation is going into Federal Court, Ontario
19
Superior Court or what have you dealing with
20
matters that aren't dealing with criminal justice
21
or matters of military justice.
22
Civil litigation
That's civil litigation.
That's
23
the process of trying to deal with matters through
24
the court system that are unrelated to the
25
criminal justice system or the military justice
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system.
2
COL (RET'D) DRAPEAU:
But I'm
3
trying to put the DND CF Legal Advisor which you
4
broached briefly in your testimony on a continuum
5
sort of as to, first of all is their duplication?
6
Is there a doubling of albeit two roles from two
7
different offices dealing with, say, civil
8
litigation; DND CF Legal Advisor and the JAG
9
office?
10
LCOL MacGREGOR:
No, what we do
11
have, we have some legal advice or legal officers
12
that work -- we call it the 10th Floor because
13
it's the 10th Floor of the Constitution Building
14
where CFLA is located.
15
16
COL (RET'D) DRAPEAU:
So they are
part and parcel of DND CFLA?
17
LCOL MacGREGOR:
They work with
18
DND CFLA on certain aspects but there is no
19
duplication of effort, no.
20
COL (RET'D) DRAPEAU:
So when they
21
speak and when they act in, say, civil litigation
22
matters they act as seconded to Justice or
23
attached to Justice?
24
25
LCOL MacGREGOR:
really seconded.
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They work for the office of the
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JAG and they work for the JAG and under 4.081 they
2
are under the command of the JAG.
3
So they -- but they work with CFLA
4
and CFLA offers their guidance and they can make
5
the ultimate decision on certain claims issues.
6
7
COL (RET'D) DRAPEAU:
the --
8
9
10
THE CHAIRPERSON:
So I understand,
are you referring to a few DOJ advisors?
Is
that --
11
LCOL MacGREGOR:
12
THE CHAIRPERSON:
13
LCOL MacGREGOR:
14
If I come to
That's right.
Okay.
Our DOJ lawyers.
CFLA is from Department of Justice.
15
THE CHAIRPERSON:
Yes.
16
COL (RET'D) DRAPEAU:
In civil
17
litigation who has the lead, the JAG, DND CF Legal
18
Advisor or both?
19
20
LCOL MacGREGOR:
On civil
litigation it would be CFLA.
21
COL (RET'D) DRAPEAU:
Okay.
22
One of your earlier comments,
23
earlier in your testimony in response to a
24
question being asked by Mr. Freiman you said,
25
"This was not part of the questions I was given".
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Were you given questions by the Commission to
2
answer?
3
LCOL MacGREGOR:
4
given was this outline of all of the documents.
5
think there was a will-say that was also provided.
6
So that's what I'm referring to, Mr. Drapeau.
7
8
COL (RET'D) DRAPEAU:
I
Who actually provides advice to
the CDS, the Chief of Defence Staff?
11
12
Okay.
I
thought so.
9
10
Well, what I was
LCOL MacGREGOR:
Who provides
legal advice?
13
14
COL (RET'D) DRAPEAU:
15
LCOL MacGREGOR:
16
Right.
To the Chief of
the Defence Staff?
17
That can -- well, it's the Office
18
of the JAG, but the JAG primarily.
19
legal advice in the sense that you know on certain
20
matters by giving briefs and those types of
21
things.
22
I've given
But I'm speaking on behalf of the JAG.
COL (RET'D) DRAPEAU:
Could the
23
Director of Military Prosecutions give advice to
24
CDS?
25
LCOL MacGREGOR:
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Military Prosecutions can give an update as to
2
what a prosecution has done in terms -- I mean
3
there are certain -- there are certain things that
4
a DMP is going to do in terms of preferring a
5
charge perhaps.
6
So if they prefer a charge to a
7
court martial administrator, asking the court
8
martial administrator to convene a court martial,
9
sometimes in order for the -- the chain of command
10
still has very much a vested interest in
11
discipline.
12
COL (RET'D) DRAPEAU:
13
LCOL MacGREGOR:
14
think the Supreme Court of Canada has been very
15
clear on that within the general case.
16
Okay.
Of course.
And I
If the DMP prefers a highly
17
contentious charge to court martial and it's going
18
to affect, you know, the discipline within the
19
chain of command, the CDS is obviously very
20
interested in that and the Minister is too.
21
So after a referral goes through
22
sometimes there might be a quick note that would
23
go up to either the CDS or the Minister or both to
24
say, by the way, this just went through to the
25
court martial administrator to ask for a convening
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of a court martial, just so you know, which I
2
think would be -- which is entirely expected so
3
that the senior leadership of the military would
4
have an understanding as to what's going on so
5
it's not hearing it from the CTV news.
6
COL (RET'D) DRAPEAU:
Yeah, I am
7
not disputing that at all.
Having acted as a
8
former serving officer I can well understand that.
9
But the CDS could use its position.
They could
10
use other positions, perhaps even a deputy
11
minister.
12
But the CDS and the impacts of the
13
hierarchy and he is responsive on a day to day
14
basis to the minister and to the government and
15
the Canadian public and he gets a lot of news from
16
CTV and others who will report to him; board of
17
inquiries, arrests and charges, investigations by
18
the police and so on and so forth that he thinks
19
and obtains legal advice separate from, maybe,
20
from the minister but he does get advice and this
21
advice comes from the lips of the JAG.
22
23
LCOL MacGREGOR:
yeah.
24
25
From the JAG,
COL( RET'D) DRAPEAU:
Who in turn,
the JAG -- correct me if I'm wrong -- but the JAG
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1
also receives -- I wouldn't call it advice but
2
receives feedback, right, from his various
3
directors and various others and imbued into it,
4
being a legal transaction for the sake of not
5
calling it legal advice -- provided.
6
So when the JAG speaks to the CDS
7
he is reasonably well informed what's happening
8
within the prosecution office, would he be?
9
LCOL MacGREGOR:
In terms of what
10
legal advice is given by prosecutors, that's not
11
necessarily going up to the JAG in terms of the
12
legal advice that is going to the NIS, no.
13
COL( RET'D) DRAPEAU:
Would the
14
JAG be reasonably well informed of déroulement of
15
the board of inquiry for instance of such a
16
significant and some public reporting taking place
17
on it?
18
19
LCOL MacGREGOR:
Well, the JAG
20
would be reasonably informed as to a board of
21
inquiry and the continuation, I would suspect, if
22
necessary.
23
and the legal advisors to boards of inquiry would
24
fall under the DJAG Regional Services.
25
And that would be -- boards of inquiry
That's a colonel that is here in
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Ottawa and works at headquarters.
2
to provide legal advisors to ensure that a board
3
of inquiry is done with procedural fairness and it
4
covers the right -- it covers what the convening
5
order is for that particular board of inquiry.
6
His duties are
We'll actually take a look at the
7
convening orders as well to make sure that it's
8
not overly broad and it's not getting into areas
9
where it shouldn't, like criminal investigation.
10
I know that in your years of
11
service I'm sure that the boards of inquiry
12
sometimes would fall into the pointing of blame at
13
certain people.
14
procedural fairness on boards of inquiry.
15
16
That was part of my problem with
COL( RET'D) DRAPEAU:
Yeah, I see
nothing similar.
17
The Chief of Defence Staff for
18
sake of reason of estates or reason of leadership
19
as to being only informed as to make decisions
20
have to -- if not all to the courts, certainly
21
come and take a position on some issues and I
22
would presume it does so on the advice of the JAG
23
with a full deck of cards.
24
25
LCOL MacGREGOR:
That they would
make --
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COL( RET'D) DRAPEAU:
2
LCOL MacGREGOR:
He would --
-- his positions.
3
4
5
COL (RET'D) DRAPEAU:
Not an
apology?
6
LCOL MacGREGOR:
I'm not so sure
7
that the president of a board would take a
8
position based on the legal advice.
9
that's up to them.
I think
They would certainly ask for
10
the legal advice to see if the direction that they
11
are intending on going is consistent with the
12
evidence that is --
13
COL (RET'D) DRAPEAU:
Yes, but
14
you're saying the CDS would seek advice from this
15
legal advisor to himself is incarnate and he is
16
the reservoir of all the legal advice given to all
17
the Canadian Forces members on all of the issues
18
dealing with a specific file?
19
20
LCOL MacGREGOR:
looking for legal advice he is going to the JAG.
21
22
The CDS if he's
COL( RET'D) DRAPEAU:
That's where
they go to.
23
A question I was going to ask you
24
and I may modify it a bit because I was so
25
concerned and so happy to see Mr. Freiman ask you
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about law firms, could you for the sake of this
2
question only, assume that the rules of Nova
3
Scotia has something similar to -- you may not see
4
it often and it may say corporation or whatever,
5
but if that were to be the case, because my
6
question is precise, contrary to many government
7
organizations the JAG is, you said, diverse and
8
distributed geographically across the land, across
9
in fact the globe in many respects.
10
When I listen to your own
11
testimony with your own very impressive and very
12
detailed curriculum vitae, it shows one thing that
13
I retained from it.
14
changed jobs frequently.
You moved about and you
15
LCOL MacGREGOR:
M'hmm.
16
COL( RET'D) DRAPEAU:
In the Law
17
Society there are rules concerning movement
18
between a firm to another as to how lawyers in
19
fact can be -- and it goes right to the core of
20
ethical breaches.
21
What does happen within the
22
military if someone is elected to go from the
23
Directorate of Counsel Services to the Directorate
24
of Military Prosecution or Administrative Law?
25
Are there ethical structures being
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1
put in place in accordance with the various law
2
societies in order to make sure that these are not
3
or these are absurd -- I'm not going to say
4
breached but are absurd, and is that a concern?
5
LCOL MacGREGOR:
6
policy directives from the JAG office that talk
7
about, that I can recall -- I could be wrong but I
8
don't think so -- in terms of going from one
9
posting to the next.
10
There are no
Certainly, if there is an issue
11
which a legal officer feels that I'm going down a
12
road where I think there is a conflict of interest
13
there would be an obligation on that legal officer
14
to raise that to their chain of command and have
15
it dealt with.
16
COL( RET'D) DRAPEAU:
17
obligation is on the shoulders of the
18
professional, not the organization?
19
LCOL MacGREGOR:
So that
Well, if the
20
organization sees that they may be putting
21
somebody in a conflict of interest, then I would
22
say that the organization would have to look at
23
that and try to avoid that at all costs.
24
office of the JAG is diverse.
25
giving legal advice on behalf of the JAG.
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But we're all
So in a
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1
sense there should be very few conflicts of
2
interest, if any, from moving one -- from within
3
one place in the JAG to another.
4
But we do see that it would be
5
very difficult for us to send a prosecutor right
6
over into defence and expect that that defence
7
counsel is going to give a defence on a case that
8
he has just been involved with on a prosecution
9
side.
I mean that would be crazy and that -- if
10
that posting actually did happen, which would be
11
very rare, the expectation would be placed on the
12
DDCS to ensure that -- and the DMV to ensure that
13
that wasn't happening.
14
COL( RET'D) DRAPEAU:
I would
15
assume so and thank you for your response, but I
16
mean there would be other cases that are not so
17
clear cut and of a public nature sought out as
18
prosecution.
19
LCOL MacGREGOR:
Yeah, quite
20
possibly.
Quite possibly but within the office of
21
the JAG I don't think that it's a similar position
22
as, say, two downtown firms where you might have
23
one civil litigator against another type of thing.
24
Certainly, that is an often --
25
often a concern with the merging of firms in a
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civilian area.
2
COL( RET'D) DRAPEAU:
Yeah.
3
My last question, is there
4
conflict, built-in conflict overlapping interests
5
between the CFLA and the JAG particularly in areas
6
of civil litigation?
7
or is there unity of decisions there and if the
8
DND CF Legal Advisor makes a decision you are
9
bound by it?
10
If so, who has got the lead
LCOL MacGREGOR:
Well, the CFLA
11
has the ultimate decision, I think.
12
there can be concerns raised by the JAG office as
13
to the effect that certain civil litigation may
14
have on the military and on behalf of the military
15
justice system.
16
CFLA and JAG.
17
But certainly
But those are worked out between
COL( RET'D) DRAPEAU:
At the end
18
if they only want a purpose of civil litigation
19
CFLA would have the lead?
20
21
LCOL MacGREGOR:
in a civil litigation portion, yes.
22
23
CFLA has the lead
COL( RET'D) DRAPEAU:
Okay, thank
you.
24
That's all my questions.
25
LCOL MacGREGOR:
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THE CHAIRPERSON:
2
MS RICHARDS:
Thank you.
MS RICHARDS:
Lieutenant Colonel
3
Ms Richards.
EXAMINATION BY
4
5
MacGregor, I just have a few follow-up or
6
clarification questions.
7
Mr. Drapeau was asking you about
8
potential conflict when there are internal
9
transfers within JAG and you go from one branch to
10
another.
11
LCOL MacGREGOR:
12
MS RICHARDS:
Right.
In those cases is it
13
a different client when you go from DJAG Admin to
14
DJAG Military Justice?
15
LCOL MacGREGOR:
Ultimately, we
16
know who the client is.
Under the statute it's
17
different people that we would be dealing with.
18
If I go from admin law position to
19
an operational position I might be dealing with --
20
I might be dealing with somebody at CEFCOM or on
21
international or rules of engagement issue whereas
22
I used to be dealing with somebody on a personnel
23
side and giving administrative law advice.
24
that often happens, but it's still ultimately the
25
same client, the Canadian Forces.
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MS RICHARDS:
Okay.
And you have
2
been referred to the Ontario rules and I
3
understand you're not a member of the Ontario Bar.
4
LCOL MacGREGOR:
5
MS RICHARDS:
Right.
I just want to ask
6
you whether or not this commentary, and I'll just
7
read you a portion of the commentary, is
8
consistent with your understanding of the policy
9
or approach within the JAG branch to conflict.
10
And I'm looking at page 33 and
11
under the commentary portion there is a big box
12
there and it states -- and this is under the
13
portion on conflicts from transfer between law
14
firms that Mr. Drapeau had referred you to and it
15
states that:
16
"Thus, the rule applies to
17
lawyers transferring to or
18
from government services and
19
into or out of the in-house
20
counsel position but does not
21
extend to purely internal
22
transfers in which after
23
transfer the employer remains
24
the same."
25
(As read)
I'm just asking you if you have
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any comment or if that's at all consistent with
2
the JAG approach?
3
4
LCOL MacGREGOR:
That would seem
to be consistent with the JAG approach.
5
MS RICHARDS:
Okay.
6
I want to go back for some
7
clarification on the issue of what would happen --
8
I'm going to be careful here because I objected to
9
this line of questioning but you gave some answers
10
I want to clarify.
11
And that was the question asked to
12
you by Mr. Freiman about what would happen when a
13
prosecutor as part of a pre-charge brief received
14
information -- received portions of the board of
15
inquiry or some inquiry in that pre-charge brief.
16
Do you recall you were asked a number of questions
17
about that?
18
LCOL MacGREGOR:
19
MS RICHARDS:
Yes, I do.
And you referred to
20
that and you said any good prosecutor would see
21
that as fruit from a poisoned tree.
22
I just wonder if you could explain
23
that a little bit more and the sense in which
24
you -- what you meant when you said that.
25
LCOL MacGREGOR:
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information came from a board of inquiry that a
2
witness was compelled to give evidence on, and
3
gave a certain statement to the Board, and an
4
investigator used that information, the testimony
5
from that board of inquiry, to get other
6
information that didn't exist until they were able
7
to rely upon this statement, then that, through a
8
good Charter argument by defence counsel, would --
9
they would have a Charter section 24(2)
10
application to have that evidence -- the statement
11
that was made at the board of inquiry, and any
12
information that flowed from that statement,
13
excluded from the disciplinary trial, or the court
14
martial.
15
That is the danger of any
16
investigator relying upon a board of inquiry
17
transcript to form part of their service
18
investigation -- or the disciplinary
19
investigation.
20
That is what we are talking about.
21
Now, one way to avoid that was
22
always to -- advice that seemed reasonable to me,
23
would be having the NIS investigators go and
24
interview witnesses before they gave testimony at
25
a board of inquiry.
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That way you have a statement that
2
you can rely upon, that was given after their
3
Charter rights were given.
4
that statement, but you are not relying upon the
5
evidence that was given at a board of inquiry.
6
Then you can rely upon
MS RICHARDS:
And that's what I
7
wanted to clarify.
When you talk about it in
8
terms of fruit of the poison tree, you are looking
9
at it from an evidentiary point of view.
10
LCOL MacGREGOR:
11
MS RICHARDS:
Absolutely.
And you are not
12
commenting on it -- as you say, you are not saying
13
that there can be no overlap in terms of the
14
investigation.
15
LCOL MacGREGOR:
16
Actually, as I just alluded to,
17
you can have a board of inquiry going on at the
18
same time as a disciplinary investigation, it's
19
just that you have to be careful about doing that
20
because you could really taint some evidence.
21
MS RICHARDS:
No, not at all.
I want to go back to
22
some questions that you were asked about negligent
23
legal advice being provided by a JAG officer.
24
25
Generally, is there a process in
place, separate from the bar societies, within the
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JAG branch for a review of services that are
2
provided and legal advice that is provided by JAG
3
officers?
4
5
LCOL MacGREGOR:
that I ever said negligent legal advice.
6
MS RICHARDS:
I'm sorry, that was
7
put to you by Commission counsel.
8
used that example.
9
10
I am not sure
LCOL MacGREGOR:
Mr. Freiman
So I am not sure
what your question, then, is.
11
MS RICHARDS:
Is there any policy
12
or process in place within the JAG branch,
13
separate from codes of professional conduct, which
14
we have talked a lot about, to monitor
15
professional standards within the branch?
16
LCOL MacGREGOR:
Absolutely, and
17
that is at Tab 10.
18
Directive on Professional Standards Review that
19
allows for us to take a look at the actions of a
20
JAG officer, and how that can be dealt with, and
21
does it have to be sent off to a provincial bar to
22
deal with, or can it be dealt with internally,
23
with a legal review.
24
25
That is the JAG Policy
But you have to also note the
proviso that paragraph 1 provides, that this is
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good for all legal officers, except for those
2
legal officers serving in DDCS and DMP.
3
4
MS RICHARDS:
So what happens in
the case of legal officers at DMP or DDCS?
5
LCOL MacGREGOR:
If that
6
happens -- and I have had to deal with this myself
7
as DDMP -- if there is a complaint made about a
8
military prosecutor, about their conduct, if it
9
became a problem, then you could always say,
10
"Well, just refer it to the NIS," and then the NIS
11
can investigate it.
12
If it was not to that extent, but
13
it was certainly conduct unbecoming of a
14
prosecutor, then we would deal with it similarly,
15
but not necessarily exactly the same way.
16
would be dealt with by DMP.
17
It
I will give you one example.
I
18
had a complaint against one of our prosecutors,
19
and the way I dealt with it was, I talked to the
20
DMP, and we came out with the view that this is
21
not something that is a disciplinary offence, but
22
it is questionable conduct, and I contacted the
23
provincial bar of where that lawyer was from, told
24
them the circumstances of the complaint, and they
25
interviewed witnesses, they interviewed the
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1
prosecutor in question, and then they came back
2
and gave me a determination, based on their own
3
investigation, as to whether or not it was in
4
breach of that person's provincial code of
5
conduct.
6
In that case it wasn't.
It wasn't
7
highly recommended to take that action, but that's
8
how we dealt with it.
9
10
But there is no specific policy in
that regard.
11
MS RICHARDS:
There has been an
12
assertion in this proceeding that there may be a
13
public perception that there is a lack of
14
independence in the legal advice that is available
15
to the National Investigation Service.
16
if you have any comment or observations on that.
17
LCOL MacGREGOR:
18
for somebody to sit back and say:
19
appear that it's not independent.
20
I wonder
It is very easy
Well, it could
But to throw around public
21
perception, what one could perceive, that's not
22
how we deal with it in law.
23
the legal standard, is one who is reasonably
24
informed, and if you go through all of the policy
25
documents that I have provided, as best I can, to
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this Commission, and you read through all of
2
those, you listen to the testimony as to how it
3
works, and you look at the statute, you look at
4
the QR&Os, you look at what has been created to
5
try to deal with the various independence levels
6
within the JAG office and to the Military Police
7
and the NIS -- if, after reading all of that
8
information and being informed of all of that,
9
there is a perception, then that's fine, but you
10
can't throw out:
11
perception that it's not independent legal advice.
12
Well, there is a public
You can't make that from a legal
13
standard unless you have informed yourself
14
reasonably of all of the things that are in place,
15
including the policies, the statute, and the
16
regulations.
17
MS RICHARDS:
Finally, do you know
18
if the current structure that is in place for the
19
JAG and in place for providing legal advice to the
20
Military Police has been the subject of any
21
independent review?
22
LCOL MacGREGOR:
Absolutely.
Mr.
23
Justice LeSage's report -- he received information
24
about the issue, to see what he thought.
25
an independent review, and he didn't make any
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conclusions that this was problematic.
2
The Lamer report -- a former Chief
3
Justice of the Supreme Court, Justice Lamer, had
4
an opportunity to look at how the system was
5
working from an independence perspective, and did
6
not find that there was a problem with respect to
7
that.
8
9
10
Chief Justice Dickson was the one
who said that this was how our system should be
set up.
11
12
And following those
recommendations, we went down that road.
13
So three extremely knowledgeable
14
and independent jurists found that this was an
15
independent system that should work, and so far so
16
good.
17
18
MS RICHARDS:
Thank you, those are
my questions.
19
THE CHAIRPERSON:
20
Colonel Drapeau, a clarification
21
Mr. Freiman?
only.
22
23
clarification.
24
EXAMINATION BY
25
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COL (RET'D) DRAPEAU:
A short
COL (RET'D) DRAPEAU:
In answer to
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1
a question from my friends concerning the
2
intramural posting within DND -- the question was:
3
"Is it a different client," to which you replied,
4
"Ultimately, it's the same client."
5
LCOL MacGREGOR:
6
COL (RET'D) DRAPEAU:
7
And then you
added that, also, the employer remained the same.
8
9
Yes.
Can I draw from your answer, then,
that somebody being posted to, say, the
10
directorate of counsel of defence services, or to
11
anyplace else in the organization, it's the same
12
client?
13
14
LCOL MacGREGOR:
No, with respect
to defence counsel services, I don't think --
15
And when I was trying to answer
16
your earlier question, Mr. Drapeau, I think we all
17
agree that there is a little bit of a different
18
species here with defence counsel services.
19
20
COL (RET'D) DRAPEAU:
be the accused.
21
22
LCOL MacGREGOR:
The client is the
accused.
23
24
So it would
COL (RET'D) DRAPEAU:
Thank you.
EXAMINATION BY
25
THE CHAIRPERSON:
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Lieutenant-Colonel, I just have one question.
2
Tab 6, Annex B, it says that a complete pre-charge
3
screening package consists of the RMP brief, and
4
then (b), (c), (d) and --
5
LCOL MacGREGOR:
6
THE CHAIRPERSON:
7
anything that defines what is to be included in
8
the brief?
9
LCOL MacGREGOR:
At
Correct.
Is there
I don't believe
10
so.
This was done after -- this service Letter of
11
Agreement was done after I had left DMP.
12
think that there is.
13
I don't
I think what is behind the scenes
14
is that there is an awful lot of work that has
15
been done to try to organize that RMP brief, so
16
that the elements of the offence are included in
17
it, the statements of all witnesses, et cetera, et
18
cetera.
19
That is what was intended, and
20
that was what we were working on when I was in
21
DMP.
22
THE CHAIRPERSON:
I take it from
23
your c.v. and your experience -- and not to insult
24
you, but your experience with reviewing these
25
kinds of briefs would be?
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LCOL MacGREGOR:
2
THE CHAIRPERSON:
3
LCOL MacGREGOR:
4
THE CHAIRPERSON:
5
LCOL MacGREGOR:
All the time.
Is that current,
Is my experience
current?
8
9
All the time.
as well?
6
7
All the time.
THE CHAIRPERSON:
Or reasonably
current?
10
LCOL MacGREGOR:
11
would have looked at that would have been late
12
2008 and early January 2009.
13
14
THE CHAIRPERSON:
The last time I
Would you expect
that a brief would include a summary?
15
LCOL MacGREGOR:
That was one of
16
the things that we had arguments over.
17
that it should have a summary.
18
19
THE CHAIRPERSON:
I felt
It makes sense
to me, but --
20
LCOL MacGREGOR:
I certainly was
21
used to that when I was doing federal
22
prosecutions.
23
Actually, when I was defence
24
counsel, I expected to see that, because that made
25
it easier for me as a defence counsel to talk to
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my client.
2
THE CHAIRPERSON:
3
that a brief would include, by the investigator,
4
an analysis of the investigation?
5
LCOL MacGREGOR:
Would you expect
I guess that an
6
analysis of the investigation would be in the
7
sense that -- what I would expect from an analysis
8
is a breakdown of the elements of the offence, an
9
understanding of what the elements of the offence
10
are, and how the evidence meets each of those
11
elements.
12
13
THE CHAIRPERSON:
them.
14
15
LCOL MacGREGOR:
THE CHAIRPERSON:
Yes, that's
correct.
18
19
Well, it if
doesn't, then hopefully there is no charge.
16
17
Or does not meet
But you would get a brief even if
there was no charge, correct?
20
LCOL MacGREGOR:
21
charge whatsoever, no, I wouldn't get a brief,
22
because there is no need to have pre-charge
23
advice.
24
25
THE CHAIRPERSON:
If there was no
So the only time
that you would get a brief is if it was submitted
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to you for pre-charge.
2
LCOL MacGREGOR:
That's right.
3
If we received, as a regional
4
military prosecutor -- as the Deputy Director, I
5
rarely would have received, upfront, an
6
investigation package that didn't have a charge
7
attached with it, but sometimes as an RMP I would,
8
because they would say:
9
are going.
10
I'm not sure where this should head.
What do you think?
11
12
Look, this is where we
And then you go back and offer
suggestions as to where they should go.
13
But with a pre-charge, you are
14
given an RDP, a Record of Disciplinary
15
Proceedings, with a charge in it, saying, "These
16
are what the charges are," and then you have this
17
package that breaks it down as to what is --
18
THE CHAIRPERSON:
So, under the
19
circumstances where the JAG has forwarded
20
documents -- and, in this case, there were
21
documents forwarded -- are all of those
22
documents --
23
24
Obviously, it's requesting
solicitor-client advice.
25
I know that.
LCOL MacGREGOR:
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You said that the
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1
JAG was forwarding it, it would be the NIS --
2
3
THE CHAIRPERSON:
forwarding documents.
4
LCOL MacGREGOR:
5
THE CHAIRPERSON:
6
The NIS would be
Right.
I'm sorry if I
said the JAG.
7
If the NIS was forwarding
8
documents, on all of the documents that were
9
forwarded, they would be asking for
10
solicitor-client advice.
I understand that.
11
LCOL MacGREGOR:
12
THE CHAIRPERSON:
Absolutely.
Would all of
13
those documents, then, be subject to
14
solicitor-client information?
15
LCOL MacGREGOR:
All of those
16
documents -- well, until a charge -- if a charge
17
is laid, then there is a disclosure obligation.
18
THE CHAIRPERSON:
19
LCOL MacGREGOR:
Correct.
So a lot of the
20
information that is in there is going to be
21
disclosed to the accused, and --
22
THE CHAIRPERSON:
23
As per
Stinchcombe.
24
LCOL MacGREGOR:
25
THE CHAIRPERSON:
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Right.
So everything
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1
outside of solicitor-client would be disclosed.
2
LCOL MacGREGOR:
3
If there was solicitor-client
Exactly.
4
information like -- you know, as a former
5
investigator yourself, you had to take copious
6
notes, and you would be taking notes as to a
7
discussion that you might have had with a lawyer,
8
or Crown counsel.
9
forwarded on to the defence counsel, that would be
10
maintained -- the solicitor-client privilege would
11
be maintained in that aspect.
12
That stuff wouldn't be
But the rest of -- the fruits of
13
the investigation would be disclosed as per
14
Stinchcombe.
15
THE CHAIRPERSON:
But things such
16
as a summary or an analysis of the investigation,
17
as they related to potential facts in issue --
18
LCOL MacGREGOR:
19
disclosed.
20
21
THE CHAIRPERSON:
-- that would
all be part of disclosure --
22
LCOL MacGREGOR:
23
THE CHAIRPERSON:
24
That would be
Yes.
-- and should be
part of the GO file.
25
LCOL MacGREGOR:
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it should be.
2
THE CHAIRPERSON:
Should be.
3
So, I guess my next question is:
4
Does your office request, or expect to see things
5
such as analyses of investigations -- of the
6
investigators, so that they come to some
7
conclusion as to how they feel relative to the
8
facts in issue?
9
Is that an expectation of yours?
10
11
LCOL MacGREGOR:
DDMP and DMP 3 I did.
12
13
I can't speak for the current DMP
right now.
I wouldn't expect anything less.
14
15
Back when I was
THE CHAIRPERSON:
You don't know
if that would be policy or not at this time.
16
LCOL MacGREGOR:
I don't know, I
17
would have to -- we would have to take a look at
18
what the NIS say.
I mean, all we have is this.
19
We also have an opportunity to
20
send it back to the NIS and tell the NIS that:
21
You have to do more investigation or give us more
22
information.
23
We can certainly do that.
24
THE CHAIRPERSON:
25
Absolutely, I
understand that.
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1
LCOL MacGREGOR:
But if the
2
investigator hasn't taken the time to assess the
3
elements of the offence and how the facts relate
4
to that, or the evidence relates to that, then --
5
THE CHAIRPERSON:
It would be the
6
responsibility of the JAG to send it back and ask
7
for more information.
8
LCOL MacGREGOR:
9
THE CHAIRPERSON:
Yeah, to DMP -Or -- yes.
10
I said the JAG, I know that you were always
11
referring to the JAG as a whole and --
12
13
LCOL MacGREGOR:
When
That's right,
yes.
14
THE CHAIRPERSON:
15
that somebody may have some additional help, so
16
feel free.
17
18
Okay.
Out of
MS RICHARDS:
I do.
MS RICHARDS:
You have been asked
EXAMINATION BY
19
20
a lot of questions about the pre-charge review
21
stage.
22
LCOL MacGREGOR:
23
MS RICHARDS:
Right.
Is there a stage
24
prior to that when DMP prosecutors can be asked to
25
provide legal advice to NIS investigators?
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1
LCOL MacGREGOR:
2
MS RICHARDS:
3
Absolutely.
Can you explain what
that would be?
4
LCOL MacGREGOR:
5
a look at what I discussed a bit earlier, as to
6
what the embedded prosecutor can do, it is
7
enormously useful to an investigator to have some
8
sense as to how to organize the investigation,
9
particularly if it's a larger investigation.
10
Well, if you take
And this comes out from the LeSage
11
report, that it is very useful to have a
12
prosecutor in-house to help assist in terms of
13
understanding the legal requirements for a
14
particular investigation, or preparing the
15
information to obtain a search warrant.
16
I often would give legal advice on
17
whether or not the information to obtain was
18
sufficient.
19
That's an ongoing process, giving
20
legal assistance pre-charge.
21
MS RICHARDS:
In those
22
circumstances where there is legal assistance
23
sought pre-charge, and it is not part of the
24
pre-charge review, is there a requirement that an
25
RMP brief be provided?
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1
LCOL MacGREGOR:
No, no, not at
2
all.
I mean, that is just ongoing investigation
3
and, "Here, this is the type of information that
4
we need," or what have you.
5
MS RICHARDS:
And then, to follow
6
up on the Chairman's question, if that type of
7
legal advice is sought at the preliminary stage of
8
an investigation, is that legal advice and the
9
communications around that legal advice disclosed
10
as part of the Stinchcombe disclosure obligations?
11
LCOL MacGREGOR:
12
MS RICHARDS:
13
LCOL MacGREGOR:
No.
Why not?
Well, because
14
it's solicitor-client privilege, in the sense that
15
you have to have a free and frank ability to
16
discuss certain things, and sometimes an
17
investigator might be going down a road that isn't
18
the best legal path to take, and you have to be
19
able to sit there and --
20
You have to have an open and frank
21
dialogue between an investigator and a prosecutor,
22
and if everything that is being said between the
23
investigator and the prosecutor is ultimately
24
going to be disclosed outside that
25
solicitor-client privilege, then you are not going
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to get freedom of thought from the investigator,
2
because they are going to be afraid that anything
3
they say is going to be up in lights and they are
4
going to be misjudged.
5
MS RICHARDS:
Is there any
6
requirement that you are aware of in the policies
7
for the NIS, as a result of that preliminary
8
advice that they receive -- if they decide not to
9
proceed further with the investigation or with
10
charges, is there any requirement for them to
11
report back to the DMP on that decision or provide
12
anything for pre-charge screening?
13
14
LCOL MacGREGOR:
I don't believe
so.
15
MS RICHARDS:
Thank you.
16
THE CHAIRPERSON:
Yes, I have no
17
problem relative to Stinchcombe and the
18
understanding of the workings of that, and
19
solicitor-client -- what gets included in
20
disclosure.
21
I understand that.
I think, just simply to say that
22
the Military Police, on one stream, and the NIS on
23
another stream, at any time in an investigation
24
have access to legal advice.
25
LCOL MacGREGOR:
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2
THE CHAIRPERSON:
including a hearing.
3
4
LCOL MacGREGOR:
THE CHAIRPERSON:
Colonel Drapeau,
do you have any questions flowing from mine?
7
8
Yes, that's
right.
5
6
Right up to and
COL (RET'D) DRAPEAU:
No, thank
you.
9
THE CHAIRPERSON:
10
MR. FREIMAN:
11
THE CHAIRPERSON:
Mr. Freiman?
No, thank you.
Sir, I want to
12
thank you for your evidence.
13
a tremendous amount of experience, and I knew when
14
I saw that you were testifying today -- not that
15
it was you in particular, but I knew that, coming
16
out of the JAG, it would elicit interesting
17
discussions amongst the lawyers, and I am sure
18
this won't be the last time that we have some of
19
the same kind.
20
Certainly, you have
I appreciate your tolerance and
21
hearing through that, and I thank you for your
22
attendance today and your service.
23
24
LCOL MacGREGOR:
Thank you very
much.
25
THE CHAIRPERSON:
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1
after one.
2
In terms of the panel this
3
afternoon, do we have a sense, Mr. Freiman, of
4
timing?
5
6
MR. FREIMAN:
[Off microphone /
Sans microphone]
7
THE CHAIRPERSON:
Would anyone
8
have an objection -- counsel or reporters -- if we
9
came back at two o'clock?
10
Okay.
We will adjourn until two
11
o'clock, and thank you, Lieutenant-Colonel.
12
--- Upon recessing at 1322 / Suspension à 1322
13
--- Upon resuming at 1405 / Reprise à 1405
14
SWORN:
S/SGT WILLIAM CLARK
15
SWORN:
INSP BRENDAN FITZPATRICK
16
SWORN:
DET. INSP. WILLIAM OLINYK
17
THE CHAIRPERSON:
18
MS COUTLÉE:
Ms Coutlée.
Mr. Chairman, this
19
afternoon we have a panel of three witnesses, Det.
20
Inspector Olinyk from the MP -- sorry, from the
21
OPP, Inspector Fitzpatrick from the RCMP and S/Sgt
22
Clark from the Edmonton Police Service.
23
THE CHAIRPERSON:
Okay.
I just
24
want to make sure I get the names properly.
25
MS COUTLÉE:
613-521-0703
Absolutely.
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2
THE CHAIRPERSON:
Go ahead while
I'm typing it.
3
Welcome, gentlemen.
4
Could you -- I just have the names
5
again because I don't know?
6
MS COUTLÉE:
7
So we have Detective --
8
THE CHAIRPERSON:
9
MS COUTLÉE:
Det. Inspector Olinyk
from the OPP.
12
THE CHAIRPERSON:
13
DET. INSP. OLINYK:
14
THE CHAIRPERSON:
16
MS COUTLÉE:
That's
Thank you.
Inspector Fitzpatrick
from the RCMP.
18
THE CHAIRPERSON:
19
MS COUTLÉE:
20
Is that Olinyk?
correct.
15
17
Please be
seated.
10
11
Absolutely.
Okay.
And S/Sgt Clark from
the Edmonton Police Service.
21
THE CHAIRPERSON:
Thank you, and
22
welcome.
23
this morning, but hopefully we'll get her all in
24
today, so I appreciate your being here for the
25
hearing.
613-521-0703
I think we're a little bit delayed from
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Ms Coutlée?
2
MS COUTLÉE:
Thank you for
3
waiting.
And I will be -- just to set some ground
4
rules before we begin, I will be asking general
5
questions about the practices of your respective
6
police services and the conduct of death
7
investigation, so I will be introducing general
8
topic areas and then I will ask each of you in
9
turn to explain the practices of your service.
10
But if, at any time, something
11
that another member of the panel says jogs your
12
memory and you want to add something or, you know,
13
clarify something, feel free to jump in at any
14
time to give us all the information you think we
15
should have.
16
Now, for --
17
THE CHAIRPERSON:
18
I just want to make sure that we're looking for
19
purposes of the practices, and I want to be
20
careful relative to they've not been declared
21
experts pursuant to our rules, so in terms of them
22
giving opinion evidence relative to the facts of
23
our hearing can't be permitted for that purpose,
24
as --
25
MS COUTLÉE:
613-521-0703
Before we start,
Mr. Chairman, it's
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1
not my intention to ask these witnesses to comment
2
in any way on the facts of our hearing.
3
purposes of the record, I have also not provided
4
information to these witnesses about the facts of
5
our hearings.
6
THE CHAIRPERSON:
Okay.
And for
It's just
7
for counsel, the rules of ours would have provided
8
if we're looking to do expert, 14 days, et cetera,
9
and CVs and a variety of things and report, so I
10
just wanted to ensure we're all on the same page.
11
MS COUTLÉE:
And for clarification
12
purposes, so I will be asking about your own
13
knowledge of the practices that are followed by
14
your police force, so basically to speak only from
15
your own experience.
16
EXAMINATION BY
17
MS COUTLÉE:
Now, first I would
18
ask each of you to provide a description of your
19
current functions and an outline of your career.
20
So starting with you, Det. Insp.
21
Olinyk.
22
DET. INSP. OLINYK:
Okay.
I'm
23
presently with the Ontario Provincial Police.
24
current position is a Detective Inspector,
25
specifically one of two Deputy Directors for our
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Criminal Investigation branch.
2
What we do is supervise a total of
3
26 Inspectors throughout the province of Ontario.
4
Their main function is to case manage major cases
5
such as homicides, suspicious deaths, some
6
extraditions.
7
We also have a provincial mandate
8
to supply assistance to other municipalities
9
within the province of Ontario as well as outside
10
the province of Ontario throughout Canada.
11
12
So in a nutshell, that's what we
do.
13
MS COUTLÉE:
And in terms of the
14
history of your own career, can you provide us
15
with an outline?
16
DET. INSP. OLINYK:
17
I'm completed 27 years with the
18
Ontario Provincial Police.
19
28th year this month.
20
Certainly.
I'm going to start my
In the last 14 years, I've been a
21
member of CIB as a Detective Inspector working
22
primarily homicide investigations throughout --
23
again, primarily through northwest Ontario.
24
25
My unit was -- I was assigned to
the Kenora unit, so that's what I've been doing
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for the last 14 years.
2
The last 14 months, specifically,
3
I've taken on the Deputy Director role, so I no
4
longer do fresh cases.
5
offer assistance, guidance, supervision and
6
support to our other Detective Inspectors through
7
cases throughout Ontario.
What I do primarily now is
8
MS COUTLÉE:
Thank you.
9
And Insp. Fitzpatrick, if you
10
could provide us with a description of your
11
functions and an outline of your career.
12
INSP. FITZPATRICK:
Thank you.
13
I'm the Operations Officer for
14
what we call the E Division, Major Crimes section
15
in British Columbia.
16
My responsibility includes three
17
district Major Crime units in the north district
18
of British Columbia, which is the northern
19
two-thirds of British Columbia, the southeast
20
district, which is the southeast portion of
21
British Columbia, and then the Vancouver Island
22
Integrated Major Crime Unit on Vancouver Island,
23
which is integrated with Victoria City Police.
24
25
Our mandate is to oversee and
investigate threshold offences such as homicide
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investigation, suspicious deaths, missing persons
2
where foul play is suspected, any police-involved
3
fatality or serious injury and other
4
investigations that come up such as kidnappings
5
and so forth.
6
MS COUTLÉE:
And in terms of your
7
own career with the RCMP, can you provide us an
8
outline?
9
INSP. FITZPATRICK:
10
RCMP in 1986.
11
service.
12
I joined the
I'm coming up to my 26th year of
I was posted from Regina to North
13
Vancouver detachment, which is one of the larger
14
municipal detachments in the lower mainland of
15
British Columbia.
16
duty Constable in uniform for approximately four
17
years.
18
Major Crime investigation in 1990.
I worked there as a general
Then I went into the plainclothes part of
19
By 1993, I was posted to the
20
Serious Crime Unit of North Vancouver detachment,
21
which was responsible for robberies and serious
22
offences, serious assaults all the way up to
23
homicide.
24
25
And in 1995, I was transferred to
the E Division Serious Crime Unit, which is
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responsible for investigating and assisting in
2
investigations with respect to homicide,
3
primarily.
4
I've remained in the E Division
5
Major Crime section until 2005, where I went to
6
the Integrated Homicide Investigation Team as an
7
operations NCO in the lower mainland.
8
went -- I took a commission in 2007 to the E
9
Division Major Crime section as the Operations
10
And then I
Officer, to which I currently hold.
11
MS COUTLÉE:
12
And S/Sgt Clark, if you could
13
provide us with a description of your current
14
functions and an outline of your career.
15
Thank you.
S/SGT CLARK:
My career and
16
functions, I'm a S/Sgt in charge of the Homicide
17
section for the Edmonton Police Service.
18
of three S/Sgts.
19
have two of us there now.
20
hasn't been filled for about a year.
21
I am one
Currently it's only -- we only
The third position
We supervise 24 active detectives
22
and two cold case detectives along with civilian
23
personnel.
24
25
Our Homicide unit works on three
teams of eight detectives on a rotating basis for
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each homicide call.
2
Prior to that, my career, I've
3
been on the police force in Edmonton for 33 years
4
as of last week.
5
Constable working out of the north end for the
6
first nine years of my career.
I started in 1979 as a patrol
7
I then spent one year as -- on a
8
directed activity team, which was a plainclothes
9
unit just targeting known criminals in our area.
10
I then transferred to the Ident
11
section for just over seven years.
12
crime scenes examination unit where we do all the
13
photography, fingerprinting, exhibit collection
14
where I, at that time, attended numerous death
15
scenes, including homicide scenes, on a regular
16
basis.
17
Ident is the
After that, I was promoted to
18
Detective and served my time at a North Division
19
station, which is one of the five sub-stations in
20
the Edmonton Police Service, where I was a General
21
Investigations Detective, so handling crimes such
22
as break and enters, robberies, assaults, things
23
of that nature.
24
were handled by the Criminal Investigative
25
Division.
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The serious crimes, of course,
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I then transferred to the -- I
2
worked -- started in my job as a General Services
3
Detective helping out Homicide section on a
4
variety of homicide files starting in about 2002,
5
where I was actively involved in about 20 to 25
6
homicide investigations a year as a task
7
investigator.
8
I then transferred to the Homicide
9
unit in 2006 and -- as a Detective, where I worked
10
there until last year, 2011, where I became a
11
S/Sgt and now in charge of that unit.
12
MS COUTLÉE:
Thank you.
13
And by way of background and -- I
14
know that your areas of jurisdiction differ, so
15
you may not all be able to provide me with an
16
answer.
17
just to give us an idea, are you able to give us a
18
sense of how many death cases occur within your
19
jurisdiction or come to the attention of your
20
service in any given week or given month?
But to the extent that you're able and
21
22
And I'll ask Insp. Fitzpatrick if
you could start.
23
INSP. FITZPATRICK:
24
am not able to provide you with that information.
25
Regretfully, I
One of the number one reasons is
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we have a vast amount of units and jurisdictions
2
and different contracts within British Columbia,
3
and my area of responsibility would not include a
4
number of the larger detachments and even some of
5
the smaller detachments, so I wouldn't readily be
6
given that information.
7
8
I can only speak for what I'm
responsible for.
9
MS COUTLÉE:
10
Absolutely.
And can you provide us with a
11
description of what your area of responsibility is
12
in the sense in what circumstances would your
13
division be called upon to get involved in a death
14
case?
15
INSP. FITZPATRICK:
Primarily, we
16
are the provincial police force.
17
we're part of the provincial police force
18
contract, which means that all homicide
19
essentially outside of the lower mainland of
20
British Columbia, which would include from Holt
21
all the way to the Sunshine Coast and to Whistler,
22
and the majority of the population in the
23
province.
24
25
We have the --
The E Division Major Crimes
section would be responsible for oversight and
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actual investigation of the major crime threshold
2
offences throughout the rest of the province.
3
That would include all the -- and unfortunately, I
4
have to divide it into population areas.
5
We are directly responsible for
6
areas of population up to 5,000.
7
assistance role with areas of population from
8
5,000 to 15,000.
9
We have an
And with populations over 15,000,
10
they're classified as municipal contracts and
11
usually go to the larger detachments.
12
the detachment's jurisdiction to investigate their
13
offences in their municipalities.
14
And it's
So in answer to your question, we
15
touch most major crime outside of the lower
16
mainland.
17
our district Major Crime offices in each district.
18
And depending on the level of difficulty and the
19
manpower that's required, we will get involved
20
with the larger municipalities as well.
We have firsthand involvement through
21
MS COUTLÉE:
Thank you.
22
And S/Sgt Clark, I suspect that
23
the definition of your jurisdiction is going to be
24
a little bit easier.
25
Are you able to provide us with a
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sense of the numbers in terms of how many death
2
cases occur within your jurisdiction?
3
S/SGT CLARK:
4
Edmonton has a population of 800,000 and our
5
police force, of course, only polices the city, so
6
the rural area is handled by the RCMP.
7
just dealing with the City of Edmonton.
8
9
Yes.
The City of
So we're
We average, I would say, one to
two death investigations per day.
Now, this is
10
not just, of course, homicides.
11
everything in there from natural causes to
12
suicides to accidental to homicidal deaths.
13
I'm including
And as an example, over this past
14
weekend we had nine cases that I had to review,
15
reporting-wise.
16
of -- it was a three-day, Friday, Saturday, Sunday
17
period -- sorry, it would be the weekend before
18
last weekend.
19
which were suicide and one of which was a
20
homicide.
21
or other reasons.
22
Of those nine cases, in a matter
There were nine cases, three of
And the rest are either natural causes
So I would say in the area of one
23
to two per day, and that is not investigated by
24
our Homicide section, necessarily.
25
investigated by most of our investigators or by
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patrol officers in their initial response, and we
2
aren't involved in those investigations unless
3
they're believed to be criminal.
4
MS COUTLÉE:
Thank you.
5
And Det. Insp. Olinyk?
6
DET. INSP. OLINYK:
Yes.
And
7
again, regrettably, I'm not able to give you the
8
numbers within our organization in terms of death
9
investigations, but I -- with respect to
10
homicides, we have, on an average -- on an average
11
of about 35 a year in the OPP jurisdiction.
12
Along with that, we may be called
13
in to assist other municipalities or larger police
14
forces as well.
15
MS COUTLÉE:
And can you provide
16
us with a general description of what your
17
jurisdiction covers?
18
DET. INSP. OLINYK:
Certainly.
19
Of course, we're mandated
20
provincially for the Province of Ontario, save and
21
except the cities and towns that have their own
22
police services.
23
within our area of responsibility.
24
25
So where they don't, it lies
So from the province of Ontario
right from the Manitoba-Ontario border all the way
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through to the Ontario-Quebec border, all the way
2
north including all of our remote First Nation
3
territories and, of course, south to the Minnesota
4
border and onward.
5
So it's a -- geographically, a
6
very large, diverse area that we're responsible
7
for.
8
9
So through the -- our Criminal
Investigation branch, we have Detective Inspectors
10
assigned to various parts of the province.
11
course, our furthest west unit would be in Kenora.
12
Of
We have a unit here in Kanata.
13
have our main headquarters on Orillia.
14
some Detective Inspectors in London, Ontario, as
15
well as one in North Bay and Thunder Bay.
We
16
We have
So we have the province pretty
17
much covered.
We're there to lead investigations,
18
any death investigations that have an air of
19
suspicion and homicide, attempt murder, that sort
20
of thing will be assigned.
21
MS COUTLÉE:
Thank you.
22
DET. INSP. OLINYK:
23
MS COUTLÉE:
Okay.
Now, in terms of
24
death investigations, for starters, I would like
25
each of you to describe the initial steps that are
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taken by your respective services in terms of
2
responding to a death and in terms of what will be
3
done first and who will be called in, and in what
4
circumstances will the assistance of your branch
5
or section be requested.
6
7
If we could start with you, Staff
Sergeant Clark.
8
9
S/SGT CLARK:
Any death
investigation, the initial call and response is
10
made by a patrol officer, the officers working the
11
patrol cars.
12
to all the initial calls.
13
death, they would be the initial responder, and go
14
to the scene.
15
It'll be a constable.
They respond
So on any call of a
Their job at the scene is to
16
determine at that time, based on the information
17
they received at the initial report, as to whether
18
that death is criminal or non-criminal.
19
Again, that can take various
20
steps, depending on each scene.
21
determine the death to be criminal, then they
22
would immediately lock that scene down, and,
23
basically, they don't do a lot of investigating at
24
that time.
25
But if they
They would call in the homicide
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detectives, and that's the time when my unit would
2
respond.
3
often, you know, in the middle of the night.
And that's 24/7, so we are called out
4
If they respond a death scene,
5
which is the most -- most of the ones they respond
6
to, much more than homicides, are just natural
7
deaths or suicidal deaths.
8
scene, it's still the same criteria.
9
there is obviously still to determine if that
10
If they go to that
Their job
death scene is criminal or non-criminal.
11
Obviously, the first priority is
12
preservation of life, and, if there's any signs of
13
life in that victim, to get them help or get them
14
to hospital.
15
go after suspects, and, obviously, to secure
16
witnesses.
17
Then, you know, if it's criminal, to
But once the constable gets to
18
a -- well, as an example, a sudden-death scene,
19
where it's considered to be non-criminal or
20
suicidal, that constable would then do an analysis
21
of that crime scene.
22
investigator for that death scene.
23
They're basically the
So they still wouldn't be touched,
24
they shouldn't be touching anything.
25
that's their training.
613-521-0703
I mean
They should be making
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notes and analyzing the scene, you know figuring
2
out basically why this is not a criminal scene.
3
And they have to call their
4
sergeant -- or a supervisor has to respond to all
5
death scenes in Edmonton, so his sergeant, which
6
would be a senior man, would be coming to that
7
scene.
8
is a staff sergeant, or the duty inspector who's
9
working that area.
It could also be a watch commander, which
10
In consultation between them, they
11
make a decision, based on their observations and
12
the facts they are finding, whether, in fact, this
13
death is criminal or non-criminal.
14
Proceeding along the lines that
15
they feel it's non-criminal, then the death is
16
left up -- the final report and everything would
17
be done by the constable.
18
death scene non-criminal, it's just a sudden
19
death, as I said natural causes or suicidal, they
20
would call the medical examiner.
21
If they consider the
This would be done usually fairly
22
quickly.
23
because of our proximity and our geographic
24
locations, it's usually 45 minutes to an hour for
25
a medical examiner to attend the scene once
613-521-0703
So the medical examiner in Edmonton,
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they've been called.
2
If the death is, as I said, deemed
3
to be non-criminal, the medical examiner is now in
4
charge of the death scene and the victim.
5
basically are leading the investigation at that
6
point.
7
usually they take photographs, they do their
8
notes, and then they make arrangements for the
9
removal of the victim.
So they
The medical examiner would respond there,
10
The victim is taken to the city
11
morgue in Edmonton, and the medical examiner
12
becomes a lead agency.
13
agency, although we submit an initial report on
14
the death.
15
We become the secondary
In the cases of a criminal death,
16
the procedure is much different, in that we are
17
the lead agency.
18
be called in as quick.
19
examinations, which sometimes can take hours,
20
days, and, ultimately, when our ident team has,
21
you know, responded in a criminal death, our
22
forensic team would respond.
23
on non-criminal deaths in Edmonton, only on
24
criminal deaths.
25
The medical examiner would not
We would do our scene
They do not respond
So once they respond on a criminal
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death, they would conduct their scene examination
2
and, as I said, it may be many hours and that
3
before they would call the medical examination for
4
removal of the victim, that type of thing.
5
MS COUTLÉE:
Are steps taken to
6
secure the scene in the beginning, regardless of
7
what type of death appears to be involved?
8
9
S/SGT CLARK:
It's the standard
training that all the officers have, absolutely,
10
to secure the scene right at the start until they
11
know what they're dealing with.
12
observations and note-taking are a high priority.
Obviously,
13
If it's obvious from the -- you
14
know, the initial reporter is a very big person
15
that needs to be interviewed at any death scene.
16
The person who called it in can be very important.
17
Obviously, statements have to be taken from those
18
people.
19
time.
20
secured until they know what they're doing.
21
MS COUTLÉE:
Those type of things are done all the
But, yes, the scene should definitely be
And when we say
22
"secure the scene", for those who may not have as
23
much knowledge, what does that mean?
24
25
S/SGT CLARK:
Basically, what
you're doing is you're cordoning off the scene so
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that nobody else has entry to the scene.
2
For example, if you go to a house
3
and it's a natural death, and an elderly female,
4
for example, has died in her bed, the bedroom may
5
just be the scene at that point.
6
be a matter of keeping people out until you know
7
exactly what's going on.
8
9
So it would just
In other cases it may be a house,
where there's a person lying in the middle of a
10
living room, for example.
11
causes, passed out, and you may want to cordon off
12
the whole house, remove everybody from the house.
13
They've died of natural
By securing the scene, it could be
14
done a multiple of ways.
Basically, it'd be
15
policemen at doors blocking access, police tape
16
around scenes, things like that.
17
In sudden deaths, or non-criminal
18
deaths, you know, they may not put up police tape
19
because they realize it's non-criminal, but
20
they're still going to take steps to keep --
21
family wouldn't be allowed in and all that until
22
the victim's been removed and they've found out
23
exactly what's going on.
24
25
MS COUTLÉE:
You were mentioning
that a determination is made by the patrol officer
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1
and/or supervisor as to whether or not the death
2
is suspicious.
3
apparent suicide, and specifically hanging.
4
I'm interested in cases of
What type of factors would the
5
patrol officer and their supervisor be looking at
6
to determine if this is suspicious or not?
7
S/SGT CLARK:
Well, I think in
8
any -- in any death investigation, there's three
9
things you're looking at.
One is the scene:
does
10
the scene match what you're seeing?
So if you
11
walked into a suicide by hanging, for example, is
12
it possible the person -- you know, could someone
13
have placed that person up there?
14
for things like that.
You're looking
15
Like, for example, if they're way
16
off the ground, was there a means for them to get
17
in the position they were in?
18
times they're not, they're down lower.
19
looking for things like that.
20
telling you a lot, and they have to be making
21
notes of that.
22
You know, many
So you're
So the scene is
Does it all make sense?
The other part is the history of
23
the victim.
24
going to have right at the start of an
25
investigation, but you're going to want to know
613-521-0703
That is always not information you're
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what was the background of this victim.
2
going on in that person's head as to what may have
3
led them to do this, which in suicides is probably
4
one of the most important parts of the
5
investigation is that background.
6
What was
Again, that always can't obtained
7
in the first, you know, minutes or hours of your
8
investigation because you may have to talk to a
9
lot of people:
10
people that they knew, family,
people that they worked with, things like that.
11
And then the other part of the
12
triangle in a death investigation is the actual
13
body:
14
victim telling you at that time?
15
positioned in a position that is normal for what
16
would look like a suicide?
Is there something
17
that's out of whack there?
Is there something
18
that's not right?
what is the body telling you?
19
What is the
Are they
If at any time the constable or
20
the sergeant in Edmonton, when they respond to a
21
death scene, anything seems out of whack or isn't
22
right, they feel that, Hey, this just isn't right,
23
it's suspicious, then they would call us.
24
25
They would call us out, and I may
send out a whole team of detectives or I may --
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you know, I would ask a bunch of questions as to
2
what they think is suspicious about it, and then I
3
would send out maybe a couple of detectives to
4
take a look that are a little more experienced.
5
We could always call the medical examiner in, who
6
has great expertise, obviously, in death
7
investigations, too, and get their opinions.
8
9
And a lot of times we do treat it
as suspicious.
So we would treat it as a
10
full-blown possible homicide until we know
11
otherwise.
12
ident team, doing the whole thing with the
13
photographs, recording the scene, you know,
14
obtaining exhibits, everything of that nature.
So that would mean calling out the
15
MS COUTLÉE:
Is the presence or
16
absence of a suicide note a factor that you would
17
be or that the patrol officer and their supervisor
18
would be looking at, in terms of making that
19
initial determination of whether it's suspicious?
20
S/SGT CLARK:
No.
I would say,
21
no.
I mean, look, I've been to, I would say,
22
hundreds of suicides myself over my career as a
23
police officer, and in less than half I've seen
24
suicide notes.
25
people do.
613-521-0703
It's not a common thing that
Sometimes you'll get a note, sometimes
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you won't.
2
So I wouldn't say that would be a
3
determining factor as to whether it's suspicious
4
or not.
5
MS COUTLÉE:
Thank you.
6
Detective Inspector Olinyk, can
7
provide us with an outline of the initial steps
8
that are taken by your service in responding to a
9
death?
10
DET INSP OLINYK:
Yeah, certainly.
11
Well, any death investigation,
12
again, will be attended initially by a frontline
13
officer, those who work in uniform, shift work,
14
and that's your initial point of contact.
15
will attend, take the initial information.
16
that, they will secure the scene the way it is.
17
They will make immediate notification to their
18
respective supervisor.
19
They
With
Within the OPP, we have six
20
regions, and each region will have assigned what
21
is referred to as a duty officer.
22
the time they are a commissioned officer, at times
23
they're staff sergeants.
24
to be notified of every death investigation.
25
through the initial attendance at the scene
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The majority of
They are in a position
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notification will go through their supervisor, at
2
which, then, it will go up through the duty
3
officer.
4
but that notification will be made.
5
So they may not be notified immediately,
With respect a forensic
6
identification officer, the unit commander,
7
generally a sergeant, will, again, be notified of
8
the death investigation.
9
another forensic officer to attend.
He or she may assign
He or she may
10
not.
They may, depending on the scene, may
11
request that a scenes of crime officer attend,
12
depending on the case.
13
Again, you know, I would like to
14
open with the caveat that, you know, each case is
15
different.
16
objectively, and being mindful that you don't know
17
what you have until the investigation has been
18
complete.
19
Clearly, we approach each case very
But with respect to a death
20
investigation, where there's no identified element
21
of suspicion at that time, that is basically what
22
happens.
23
The coroner, as well, in Ontario,
24
is notified immediately as well.
25
comes within the authority of the coroner.
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scene becomes the authority of the coroner.
We,
2
as police officers in the Province of Ontario will
3
act as an extension of that authority.
4
coroner will provide us with that exact authority.
5
So, in other words, when we secure
So the
6
a scene of a death, upon the removal of the
7
body --and I have to say that before any body in
8
any death investigation, regardless of suspicious
9
or not, we do speak and develop a game plan with
10
respect the coroner, as well was a our forensic
11
officers with respect to how that body's going to
12
be removed, being mindful that, you know, we want
13
to ensure that we do everything we can not to
14
interfere or compromise the integrity of any
15
evidence, whether it's evidence that we see or
16
evidence that we don't see.
17
the case, that there's integral evidence that we
18
don't see.
19
Quite often that is
So the approach to the body and
20
the removal of the body is of the utmost
21
importance, so we want to be very mindful of that
22
and go from there.
23
MS COUTLÉE:
In terms of the
24
attendance of either a forensic team or scenes of
25
crime officer, how is the determination made as to
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which of the two will attend?
2
DET INSP OLINYK:
3
MS COUTLÉE:
4
Right.
What is that based
on?
5
DET INSP OLINYK:
6
you know, where there's no element of suspicion,
7
that determination will be made by the forensic
8
officer.
9
forensic officers attend, and more often than not.
10
Right.
Again,
Quite often they'll have one of the
Some factors that come into play
11
is the availability immediately of a forensic
12
officer, particular in Ontario, where we're
13
responsible for the northern, remote locations.
14
Obviously, we don't have people immediately there,
15
so that will fact into the decision process.
16
I know that we have spoken with
17
the coroner's office at length with respect to,
18
you know, how best can we investigate this and how
19
best can we bring to the coroner's office, you
20
know, information on a remote scene.
21
So what we have -- not "we", the
22
coroner's office has come up with satellite video
23
and photography, where we could actually pipe in
24
the chief coroner's office in Toronto the regional
25
coroner's office in Thunder Bay, for example, and
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a remote location so the pathologist or the
2
coroner could actually, if they had any questions
3
with respect to a certain death investigation or a
4
certain deceased, we could actually bring that
5
right out to them immediately, as opposed to
6
waiting for a post-mortem.
7
8
So those are some of the
progression that we see right now.
9
MS COUTLÉE:
Is it that case that
10
in every death, suspicious or not, there will be
11
either a forensic officer or a scenes of crime
12
officer that will attend the scene?
13
DET INSP OLINYK:
14
MS COUTLÉE:
Yes.
Yes.
And you've spoken
15
about the notification process up the chain.
16
within that chain, who makes the determination,
17
the initial determination, as to whether the death
18
is suspicious or not, and how it will be
19
investigated going forward?
20
DET INSP OLINYK:
Right.
Now
So I'll
21
just back to the initial officer at the scene, who
22
will make his or her initial notification to his
23
or her supervisor.
24
25
There will be a detective sergeant
also brought into the formula here.
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any suspicion, or even any concern, not even
2
necessarily suspicion, the area crime supervisor,
3
the detective sergeant, as it will, will be
4
notified.
5
So if that is the case, the
6
detective sergeant will then we invoked with that
7
responsibility, in terms of the command and
8
control of that scene.
9
assess it and make the determination whether or
So he or she will then
10
not it fits the criteria for a criminal
11
investigation member, a detective inspector, being
12
assigned.
13
He will or she will have to go
14
through their duty office, in other words their
15
staff sergeant or inspector who is assigned.
16
Then, that determination will be made whether or
17
not to invoke the services of a CIP major case
18
manager.
19
MS COUTLÉE:
Is it possible for
20
the supervisor of the first responder to conclude
21
that it's not necessary to take this up to a
22
detective sergeant, that there's not level of
23
suspicion requiring that?
24
25
DET INSP OLINYK:
Yeah.
Yeah, I
suppose in certain cases that may be the case.
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You know, if you have an elderly individual who's
2
been found deceased, and you are notified of his
3
or her background and medical condition and that
4
sort of thing, and there's indicia of any criminal
5
culpability or concern anyway, then, yeah, I could
6
see how that could take place, yeah.
7
MS COUTLÉE:
In cases of possible
8
or apparent suicide, and particularly hanging,
9
what types of factor would the person making the
10
determination about suspicion be looking for?
11
DET INSP OLINYK:
Yeah.
Well,
12
with any suicide investigation, first of all, you
13
know, one has to be very careful, in terms of
14
coming to any conclusion too early, obviously.
15
an approach to a suicide will be the same approach
16
that we would use if it was a known homicide,
17
quite frankly.
18
So
So with that, you know, the scene
19
would be very carefully looked at, would be very
20
carefully -- a very careful approach to the body,
21
first and foremost.
22
initial approach by our forensic officers.
23
once the initial officers have attended, they back
24
out, it is secured.
25
And when I say that, the
So
And "secured", again, just to
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reiterate my friend's comments, you know, that is
2
being secured in terms of there's nobody in or
3
nobody out and whatever evidence is in there is
4
locked down, so to speak.
5
So that's the first thing.
The
6
coroner, obviously, comes into play, and we will
7
have discussions with the coroner.
8
coroner will attend.
9
Ontario, in some of our more populated areas, the
Sometimes the
Obviously, in southern
10
coroners, in fact, will attend.
11
sometimes not possible.
12
we are still conversing with the coroner with
13
respect to the scene, so a plan, then, is made in
14
terms of the approach to the body.
15
Up north, that's
Where it's not possible,
A number of thing we're looking at
16
specific to suicide, obviously, if, if in fact,
17
we're even thinking that way, because, you know,
18
we have to be very objective on our approach
19
because what may appear to be today may be
20
completely different tomorrow, depending on the
21
results of the investigation.
22
So that's how we would certainly
23
approach a suicide.
24
the body is removed and it is brought to the
25
respective morgue where the post-mortem
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examination will be conducted, again, that scene
2
will be secured until the completion of the
3
post-mortem examination.
4
The post-mortem examination will
5
clearly have answers for us that may turn the
6
scene completely different than what we'd
7
initially think, so that is one of the reasons why
8
there's no searching at the scene until the
9
completion of a the post-mortem, until we actually
10
have the answers.
11
So once that is done and the
12
evidence -- you know, we base our decisions on the
13
evidence that is available to us at the time.
14
once we're satisfied that there's no evidence of
15
suspicion, that it in fact appears to -- the
16
deceased appears to have died at his or her own
17
hands, then we, once satisfied, will conclude it
18
being a suicide.
19
So
But not until then, not until the
20
investigation has been exhaustively done, and then
21
we're in a position to make that determination.
22
MS COUTLÉE:
So do I understand
23
correctly, then, that in all cases that appear to
24
be suicides, you will bring in your forensic
25
identification team?
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1
DET INSP OLINYK:
2
MS COUTLÉE:
3
Now, Inspector Fitzpatrick, if you
4
could describe the initial steps that are taken by
5
your force, in terms of responding to the scene of
6
a death?
7
Absolutely.
Thank you.
INSP FITZPATRICK:
Much of what my
8
friends have said is very similar to what the RCMP
9
would do, mindful of the fact that, like Detective
10
Inspector Olinyk, the RCMP deals with some
11
pretty -- with some areas in the hinterland that
12
may be manned by a one- or two-man or a one-man
13
detachment and it may take time to get to the
14
actual scene and so forth.
15
So we run the gamut from large
16
municipalities right to the very small
17
detachments, and that creates challenges with
18
respect to response.
19
The number one rule would be that
20
any death investigation is suspicious until proven
21
otherwise, and one of the issues in British
22
Columbia is that the coroner office is responsible
23
for all deaths in British Columbia.
24
25
We have parallel responsibilities
with the coroner's office, so they will be
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1
involved from the outset, in terms of the report
2
that a death has occurred, and it will be a
3
collaborative effort with respect to the evolution
4
of the information that comes in.
5
A normal situation would be
6
nothing different, where a uniformed constable or
7
investigator would arrive at the scene, he would
8
make a determination on what witnesses were
9
present or the circumstances with respect to the
10
report of the death.
11
His responsibility would be to
12
take steps with respect to preservation of
13
evidence.
14
suspects, he would have to react to those
15
circumstances.
16
we would call an non-commissioned officer, an NCO,
17
if available, to attend the scene.
18
If there was a situation with people or
He would be expected to have what
The scene would be secured, the
19
information that comes in would be analyzed and,
20
depending on what the direction is from there,
21
would dictate as to what the next steps would be.
22
In the case of a non-suspicious
23
death, it would probably remain with that
24
constable or that investigator to follow through
25
with the coroner.
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1
One of the biggest issues in this
2
situation is that the deceased cannot be touched
3
or tampered with until the coroner has given the
4
police that authority to do so.
5
Depending on the remoteness of the
6
location, it may be that the coroner does a lot of
7
this over the telephone based on what the
8
circumstances are.
9
Once the coroner had given the
10
authority to the police officer to deal with the
11
deceased, they can gather more information.
12
Again, going in a non-suspicious
13
situation, the coroner would be involved.
14
encourage -- if an ident or a scenes of crime
15
investigator was not available, I would encourage
16
the first responder to take their own photographs.
17
I would expect that they would make neighbourhood
18
or they would conduct neighbourhood inquiries to
19
find out if there were any circumstances that
20
needed to be documented.
21
I would
I would expect that they would
22
take or interview and take a statement from the
23
last person who saw the deceased alive.
24
would take all the normal steps that my friends
25
have articulated with respect to scene
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preservation and of course preservation of life.
2
As far as crime scenes concerned,
3
again, maybe in a not suspicious situation where
4
you simply have to close the door to the residence
5
it's a common sense approach.
6
When there is any doubt that there
7
this is a suspicious event, then more resources
8
are expected to be called in.
9
that situation we have advisory NCOs that are
In that case or in
10
similar to the other situations like duty officers
11
and so forth that will attend.
12
The detachment commander in a
13
small location or even the coroner, will
14
collaboratively kind of look at things.
15
starts to go in another direction the suspicious
16
circumstances or circumstances that aren't
17
readily -- we can't conclude readily then it gets
18
back to the same.
19
If it
It's suspicious until proven
20
otherwise.
21
specialists should be called.
22
the scene.
23
respect to what actions are being taken and at
24
what level we can disturb the remains.
25
In that case then the forensic IDENT
They will examine
The coroner will be consulted with
The forensic IDENT specialist
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1
would be required to take videotape, photograph
2
whatever swabs for DNA, potential evidence that is
3
there, anything with respect to bloodletting.
4
may call in a blood spatter person in the case of
5
a suicide.
6
We
Obviously, as my friends have
7
said, the mechanism of death is a major issue and
8
all that has to be treated with the utmost of
9
forensic analysis to ensure that we don't find out
10
later that this -- there was something untoward.
11
I should preface on many occasions
12
it's very difficult to determine whether the
13
situation is in fact a homicide or a suspicious
14
death in that there is degradation of the remains
15
depending on how long it took to discover the
16
deceased.
17
like a suicide when, in fact, it turns out to be a
18
homicide, those types of things.
19
The mechanism of death sometimes looks
So when you get to that situation
20
all the appropriate forensic people, the coroner
21
has to be involved and the utmost care is taken
22
with respect to the crime scene investigation and
23
the follow-up investigation.
24
juncture then more resources are brought in.
25
When you get to that
In the British Columbia
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1
application we would have either a general
2
investigation plainclothes unit that would be able
3
to attend depending on the location.
4
be -- in a larger location they would be there
5
almost immediately.
6
bring a regional team in and it would be an
7
assessment of the information that's coming from
8
the scene back to a major crime investigation
9
investigator as to the number of resources for
10
They would
More remote we would have to
that application that were required.
11
At that point and where the
12
investigation will kind of come to a crossroad is
13
that if it's not suspicious then we are, as the
14
RCMP in British Columbia are working for the
15
coroner, on behalf of the coroner for their
16
investigation.
17
If there is any degree of
18
suspicion or any outright homicide then it is an
19
RCMP investigation or a British Columbia police
20
investigation.
21
The evidence on a non-suspicious
22
death is all seized at the direction of the
23
coroner.
24
comes to that in that the coroner will or may not
25
want things seized whereas the police will seize
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1
them at an abundance of caution.
With respect to
2
any sort of suspicious circumstances then all the
3
evidence is collected by the police.
4
At some juncture down the road, if
5
it's deemed to be non-suspicious, then the coroner
6
takes conduct of the remainder of the
7
investigation and we're at the direction of the
8
coroner with respect to dealing with the exhibits
9
and the follow up that's required and the
10
statements and so forth.
11
On a normal non-suspicious death
12
the attending constable will remain in conduct of
13
that investigation and that would include taking
14
first and foremost a next of kin notification.
15
would also include the follow up of any issues
16
that come up, whether it be with respect to assets
17
or possessions that would have to be secured, any
18
exhibits, and then they would be required to
19
prepare what is commonly referred to as a sudden
20
death report which goes to the coroner.
21
It
It would be a detailed report that
22
lists a number of boiler plate issues, everything
23
from medications on scene right down to a
24
narrative of the event and the follow-up
25
investigation.
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On a suspicious death if it's
2
remains, that type of situation, it would probably
3
go into the hands of a more experienced
4
investigation team or it would be a situation in a
5
smaller place where more of the detachment would
6
be involved and consultation would be made with
7
the appropriate investigative units and so forth.
8
9
One of the things that really
dictate the response model is the level of
10
resourcing and time and travel that is required to
11
get to scenes.
12
MS COUTLÉE:
Now, in terms of the
13
initial determination of whether there is
14
suspicion and additional resources need to be
15
called in, who is it that makes that
16
determination?
17
INSP FITZPATRICK:
18
said, the NCO or more senior investigator officer
19
will be part of that decision-making process.
20
reporting that goes in is audited, whether it be
21
the next morning or in that afternoon that our
22
quality assurance-type people are looking at this
23
and they're asking questions.
24
25
Usually, as I
The
Those questions should be already
answered by the on-scene members.
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stage where more resources are required the
2
advisory NCO or the detachment commander would
3
notify one of our major crime units, whether it be
4
in the north district, in Prince George or in
5
Kelowna or in Victoria.
6
They would get a hold of the NCO
7
or the head of the unit.
8
information and make a determination of what
9
resources he feels needs to be assigned to that
10
He would then take the
example.
11
MS COUTLÉE:
And in cases of
12
apparent suicides and particularly hangings what
13
type of factors would these making the
14
determination of whether they are suspicious and
15
should be looking at it?
16
INSP FITZPATRICK:
Generally, as
17
in all suicides, you would probably be looking
18
first and foremost for information with respect to
19
the hours preceding the death or the taking of
20
that person's life.
21
You would be looking for evidence
22
at the scene.
23
neighbours, looking for a background on that
24
particular person with respect to their state of
25
mind.
613-521-0703
You would be talking to relatives,
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You would obviously be looking for
2
evidence that would indicate maybe abuse, some
3
sort of abuse whether it be alcohol, drugs,
4
prescription medications, things like that.
5
Often, you can walk into a crime
6
scene and you'll find a lot of medication with
7
respect to what you perceive or you can determine
8
is with respect to depression and those types of
9
things.
10
You would look into the person's
background, police background.
11
Obviously, if there is evidence of
12
a note or the mechanism with which they would have
13
taken their life you have to, as my friends have
14
indicated, corroborate everything to make sure
15
that it's not a situation where it's been staged
16
or there has been someone assisting in this
17
particular event.
18
as it is presented and as it is in the crime
19
scenes.
20
You would follow the evidence
MS COUTLÉE:
And do you bring in a
21
forensic identifications specialist for all death
22
scenes or only when there is suspicion?
23
24
INSP FITZPATRICK:
That's a very
difficult answer or question to answer.
25
My experience when I was actually
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1
attending these types of things as a young
2
constable would have been, yes, but then again I
3
was in a large place where we have all the various
4
resources.
5
Now, 25 years later, I think the
6
answer to the question is likely not unless there
7
is some reason, whether it be you wanted to
8
document the scene for your investigation.
9
would call in the forensic people.
10
You
They would
likely respond if they could.
11
However, all bets are off when it
12
comes to any sort of suspicion.
13
person who has inexplicably passed away would
14
cause -- and you know a young person found passed
15
out in their bed in the morning with no particular
16
explanation but probably natural causes or
17
something along that idea, definitely you would
18
have the option.
19
expectation would be that the investigator would
20
call in an IDENT person to document that scene.
21
You know, a
I would expect -- and my
It may just be photographs.
It
22
may just be to have a second opinion because our
23
forensic people are usually very experienced with
24
these types of things and can give that more
25
inexperienced constable the reassurance that the
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1
investigation is proceeding in the right
2
direction.
3
Answering your question, any
4
suspicious circumstances there will be forensic
5
IDENT that comes in and processes what the
6
available evidence is.
7
MS COUTLÉE:
And what about
8
apparent suicides?
9
identification specialist be brought in all cases?
10
Would a forensic
INSP FITZPATRICK:
And again very
11
situational.
12
that if there was a suicide note and the
13
family-related information that indicated that
14
this person was probably in that state of mind,
15
that the evidence was consistent with that, I
16
would expect that the constable would conduct
17
neighbourhood inquiries.
18
The minimum expectation would be
I would hope that he would perhaps
19
take his own photographs and seize all the
20
evidence that's there whether it be for
21
preservation of an asset or whether it be for
22
further investigation.
23
The coroner is also involved and
24
the coroner will probably direct that person as to
25
where the investigation is likely going.
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1
MS COUTLÉE:
Thank you.
2
Now, moving on to a question that
3
I'm not sure if it's easier but it may require a
4
shorter answer.
5
I would like to first get
6
clarification from each of you as to, within your
7
jurisdiction who has the authority to determine
8
when the body can be moved or touched, starting
9
with you, Detective Inspector Olinyk.
10
DET INSP OLINYK:
11
Well, with respect to all death
12
investigations whether they are a natural death
13
investigation, whether there is some evidence of
14
culpability, some evidence that a criminal offence
15
has been committed, that body is going to be
16
decided on with a coroner.
17
Okay.
Even with a criminal
18
investigation, that body is still the
19
responsibility with respect to the coroner's
20
office because it goes to the more subsequent
21
post-mortem examination.
22
So with that what's very important
23
here is -- and I really stress its importance --
24
and that is with every approach to every deceased
25
a very definitive plan be put in place with
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respect to the approach to the deceased, the
2
removal of the deceased and the way out.
3
4
I'll just sort of elaborate a bit
on that.
5
With the coroner's office we speak
6
with the attending coroner whether in person or in
7
the event of a remote location at the very least
8
over the telephone and/or on video, whatever the
9
case may be.
10
We discuss with them the removal.
11
There are times where the coroner may want to
12
attend.
13
want to attend and there are times where their
14
attendance is very beneficial depending on the
15
scene of, I believe, my friend had mentioned a
16
bloodstain for example, positioning of a body, you
17
know in the case of an object such as a robe with
18
a knot.
There are times where the pathologist may
19
All of these things are very, very
20
important that our approach is methodical so as to
21
not compromise or do anything that may compromise
22
that.
23
24
So with that once the plan is in
effect then we remove the body.
25
Sometimes the pathologist and/or
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coroner may want to go in.
2
with the forensic identification officer leading
3
the way.
4
trained scene investigators in that regard so it's
5
very critical that they do so, you know, with our
6
identification people who know how to approach a
7
scene.
8
9
So if they do it'll be
The coroners, the pathologists are not
There is never any issues with
that.
We work as a team in that regard or we
10
bring the scene out to them via video when the
11
officers will videotape their initial -- their
12
initial entrance into the scene and then to the
13
body so that everything is captured and situative
14
if it were and they have the benefit of seeing.
15
So any scene entry is better with
16
less.
With less people in, it's better.
17
case manager, very seldom will go in unless it's
18
critically important and usually not because
19
they'll bring the scene up to me.
20
21
I, as a
So I won't go into a scene until
we do what we refer to as a walkthrough.
22
MS COUTLÉE:
Just for
23
clarification purposes when we speak of moving
24
and/or touching the body which requires coroner's
25
authority, in the case of a hanging does that
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include cutting down the body?
2
the body without the coroner's approval?
3
Can you cut down
DET INSP OLINYK:
Yes.
Then,
4
again, we would be consulting with the coroner and
5
discussing that with the coroner.
6
You know, every case again is
7
going to be approached you know based on the
8
circumstances of that particular case.
9
anytime we remove the body whether it be a hanging
But
10
or whether it be in whatever position, we will
11
discuss that with the coroner and of course the
12
forensic officers.
13
See, what's also very important
14
depending on the location and depending on the
15
type of scene and depending on the type of death
16
investigation we're in we may -- depending on the
17
location it may be beneficial for our officers to
18
seize certain evidence off the deceased
19
immediately or prior to removal in the best
20
interests of preservation.
21
That sometimes occurs.
I know
22
that we work with our coroner's office in Ontario
23
and our chief pathologist with that very issue,
24
particularly as it applies to the remote locations
25
where a deceased is going to be some time in
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transit, sometime being transported out of the
2
community and into a morgue.
3
So if there is any at all -- any
4
potential risks or potential compromise with that,
5
we will deal with it at the scene.
6
And again, that is with the team,
7
with the coroner, with the investigators, with the
8
forensic officers.
9
every investigation regardless of what it is, you
10
know, maintaining true objectivity until you have
11
the evidence to make that conclusion, you have
12
your witnesses.
13
investigation.
14
investigation and then you have the anatomical
15
findings at the post-mortem.
16
Because at the end of the day
You have all of your ground
You have your scene -- your scene
When you look at those three key
17
areas of investigation and they go like that, then
18
you're not too far off.
19
that, then you may have an issue.
Where they don't go like
20
MS COUTLÉE:
Thank you.
21
And Inspector Fitzpatrick, could
22
you set out in your jurisdiction who has authority
23
to determine when the body can be touched or
24
moved?
25
INSP FITZPATRICK:
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earlier, the coroner in British Columbia has the
2
absolute authority over all the deceased people
3
and we have a parallel investigation or parallel
4
investigation or responsibilities.
5
What happens usually is the
6
coroner will attend.
In cases where there is some
7
suspicion or an obvious homicide then it will be a
8
collaborative effort between the investigation
9
team, whether it be the advisory NCO or whoever is
10
in contact with the coroner and the coroner will
11
let the investigation unfold without even entering
12
the crime scene.
13
They will be given the opportunity
14
at their request.
15
they likely won't attend until they absolutely
16
have to and at that point they are responsible and
17
they are responsible in all deaths to arrange for
18
the removal of the remains.
19
But the common practice is that
They will come in.
It's one
20
particular company in whatever region of the
21
province that it is and they are responsible
22
for -- the coroner that is, is responsible to
23
order an autopsy and often that becomes a
24
discussion between the police and the coroner
25
whether or not an autopsy will take place.
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More often than not, an autopsy is
2
not taking place in this day of financial
3
restraint and so forth.
4
of death is apparent, then the body will be
5
removed at the coroner's direction by the
6
coroner's specialized people and it will be taken
7
to the local morgue.
8
9
So if the obvious cause
If an autopsy is requested then
the police will retain continuity of the remains
10
to preserve the evidence.
They will follow the
11
remains to the morgue and lock the remains for
12
preservation and continuity of evidence.
13
In some instances -- there are
14
only a number of locations in British Columbia
15
that conduct autopsies.
16
Mainland and perhaps one in the interior of
17
British Columbia.
18
plane or by car, the body down to either Vancouver
19
or the interior of British Columbia.
20
There is one in the Lower
So that entails sending, by
So all of that is arranged and
21
dealt with by the coroner, and the police have to
22
retain continuity, where required, and often it
23
becomes a struggle when the police have reason, or
24
they would like to see an autopsy take place, and
25
we have to enter into those discussions with the
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coroner.
2
Again, it gets down to, if there
3
is no suspicion, or at least no perceived
4
suspicion, then the coroner will not order an
5
autopsy, and it is our position that, again, we
6
want to make sure that all of the information is
7
available, so that we can make that determination,
8
because often things can come out of an
9
investigation after the autopsy is complete.
10
MS COUTLÉE:
In the case of a
11
hanging, can you make the decision to cut down the
12
body without approval from the coroner?
13
INSP FITZPATRICK:
Again, that is
14
all very situational.
15
coroner will direct you, or the coroner will
16
assist in having that done, whether it be through
17
their body removal people or whatever.
18
The easy answer is no, the
But the reality of it is, if there
19
is evidence that -- a first responder gets there
20
and there could be a preservation of life issue,
21
then that first responder will get that person
22
down, to provide whatever steps -- first aid that
23
is required.
24
25
That would be a situation where
you would take it upon yourself.
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discussions take place with the coroner over the
2
telephone, and they give you the authority to do
3
it.
4
scene-of-crime people, they can do that.
Then, between the investigator -- or the
5
But, again, it goes back to
6
preserving what evidence there may be.
7
want to preserve the ligatures.
8
preserve and swab whatever was used in the
9
mechanism of death, and swab the hands of the
10
You may
You may want to
deceased, those types of things, forensically.
11
Again, you would have the
12
authority to do that based on your coroner
13
consultation and the fact that it is suspicious
14
until further determined.
15
MS COUTLÉE:
16
Staff Sergeant Clark, in Edmonton,
17
can you tell us who has the authority to determine
18
when the body can be touched or moved, or cut down
19
in the case of a hanging?
20
Thank you.
S/SGT CLARK:
It is much the same
21
as my colleagues here.
22
Edmonton -- and just to clarify for the
23
Commission, a medical examiner is the same thing
24
as a coroner.
25
examiners.
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The one big difference in
In Alberta we call them medical
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But, ultimately, it rests with the
2
medical examiner, the authority to cut down the
3
body, or deal with the body in any fashion at any
4
death scene.
5
So, in the case of a non-criminal
6
death, of whatever nature, the officer conducts
7
his investigation.
8
is a non-criminal death, that has been overseen by
9
his supervisor, he would call the medical
10
examiner.
11
12
Once he is satisfied that this
As I said before, their response
is 45 minutes to an hour normally in Edmonton.
13
They would attend the scene.
They
14
would go right into the scene and, in the case of
15
a non-criminal death, they have the investigation,
16
so they would take their own pictures at that
17
time, officers would not be taking pictures.
18
don't send an ident team out to non-criminal
19
deaths.
20
We
And they make their specific
21
notes, seize medications, things like that, and
22
then they call a body removal service that is
23
contracted out by the Medical Examiner's Office in
24
Edmonton.
25
The body removal service would
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1
come.
In the case of a non-criminal death, they
2
would simply remove the body.
3
suicide by hanging, it would be the medical
4
examiner's responsibility to cut the body down.
5
In the case of a
Again, that cut is still done in a
6
special way, where you don't physically untie the
7
person.
8
cutting the rope or ligature in a spot where it
9
doesn't affect any knots or anything like that,
10
and that is the noose -- whatever is around the
11
person's neck would remain on that person until
12
autopsy.
You don't untie the knot, you would be
13
Ultimately, the medical examiner
14
determines an autopsy.
15
non-criminal death, it is up to them whether they
16
conduct an autopsy.
17
at that point in Edmonton.
18
In the case of a
The police are not involved
We don't go to them.
If it's a criminal death, it's a
19
different story, in that we lead the
20
investigation.
21
Our ident team -For example, if the body were in
22
the middle of this room -- in any death
23
investigation you always work from the outside in.
24
So you work from the exterior of the scene,
25
wherever you determine that to be, toward the
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body.
2
As my colleagues have said, there
3
is a path of contamination, so officers have to be
4
very aware of that and realize that in criminal,
5
or suspicious death investigations, they are going
6
to take a path to the body to determine if there
7
is life in that person in their initial response,
8
and take a path that wouldn't be travelled by
9
normal -- and watch where they are going, you
10
know, for trace evidence.
11
In a criminal death, eventually,
12
once the ident team gets there and does all of
13
their examinations, as I said, which could take
14
hours or days --
15
I mean, we try not to leave the
16
body there too long, because there is obviously a
17
deterioration, you know, depending on the
18
environmental conditions and that type of thing,
19
but it could be there for several hours.
20
Once they have worked their way to
21
the body and they have gathered from the exterior
22
scene to the body, they will call the medical
23
examiner on a criminal death.
24
25
The medical examiner will then
come in, and they will go into the scene.
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1
will also do some very basic photos of what they
2
find, and they will remove the body.
3
as my colleagues said, very carefully, to make
4
sure that you don't lose any trace evidence on
5
that person.
6
It is done,
And, again, there are
7
circumstances, as they have alluded to, where you
8
may see obvious evidence, in the case of a
9
criminal death, that you may have to seize at that
10
time, and that is done with the medical examiner
11
there.
12
In the case of a suicide by
13
hanging, they would simply cut the person down,
14
and then they would be bagged up by the body
15
removal service and then removed from the premise.
16
Once the body leaves the premise,
17
in a non-criminal death, they are transported by
18
the body removal services with the medical
19
examiner to the City Morgue.
20
criminal death, we have the same procedure as the
21
RCMP, where our member would follow that body
22
removal service, go right to the morgue, ensure it
23
is locked up, and then that member would attend
24
the next day, or whenever the autopsy is ordered
25
on that investigation.
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1
MS COUTLÉE:
Thank you.
2
Along the same lines, Detective
3
Ispector Olinyk, I was wondering if you could
4
describe, from your perspective as the Police
5
Service, what are the steps that you consider
6
essential before a body is moved or touched.
7
What are the things that, in all
8
cases, you think should always be done before the
9
body is moved?
10
DET INSP OLINYK:
The first thing
11
is just maintaining the integrity of the body, and
12
with that, you know, every square inch of the
13
initial approach to that body is of critical
14
importance.
15
So the first step that we would
16
certainly do, or ensure is taken rather, is to
17
formulate -- and, again, I sound like a broken
18
record, but to have a game plan in terms of how
19
the approach is going to be, how that body is
20
going to be manipulated.
21
And, again, before any of that
22
takes place, the entire approach on the body is
23
videotaped.
24
25
That is very important.
And when I say that, the focus is
just that.
613-521-0703
The focus isn't around to encapsulate
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the other areas of the scene, it is strictly to
2
approach the deceased, so --
3
MS COUTLÉE:
I am sorry to
4
interrupt; can you explain why that is, that the
5
focus is only on that area?
6
DET INSP OLINYK:
Absolutely.
7
Firstly, again, you know, to follow the
8
fundamental -- I always refer to it as my number
9
one, main fundamental rule, and that is, you know,
10
you follow the evidence.
11
12
And you don't know what you have
until your investigation has been exhausted.
13
14
So we have to be very mindful that
what appears to be may not be at all.
15
So, with that, you want to ensure
16
that everything is preserved the best way it could
17
possibly be.
18
So, with our approach, our
19
officers are suited up with a biohazard suit, to
20
ensure that there is going to be nothing left
21
behind by them, and nothing picked up by them, or
22
disturbed.
23
certainly do your best not to do that.
24
25
Sometimes it happens, but you
So it's all about preserving the
integrity of the deceased, to ensure that there is
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going to be nothing manipulated, nothing
2
compromised, because there may be things such as
3
impression evidence that may not even be
4
noticeable at the time.
5
spatter that may be of critical importance, so we
6
have a blood stain pattern analyst attend before
7
we manipulate or move the body.
8
9
There may be some blood
Those sorts of things have to be
considered and not rushed.
10
Now, there are also environmental
11
factors that we all have to consider, depending on
12
the scene -- if it's an outdoor scene, if it's an
13
indoor scene -- depending on the temperature.
14
may end up, through exigent circumstances, having
15
to move that body sooner than later to, again,
16
maintain the integrity of it.
We
17
These are all of the things that
18
we have to be mindful of and discuss and come up
19
with some plan before we do that.
20
MS COUTLÉE:
As part of the
21
essential steps before the body is moved, you have
22
mentioned videotaping the area around the body.
23
Do you also need photographs?
24
25
DET INSP OLINYK:
Yes, quite often
they do, but in this digital age, with the
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1
forensics officers, they will pretty much
2
videotape, and photograph digitally, as well,
3
absolutely.
4
MS COUTLÉE:
Now, in terms of --
5
again, I am always talking about the steps that
6
you consider necessary before the body is moved.
7
Is it also considered necessary, in addition to
8
photographs or videotaping, to write down a
9
description of the scene?
10
DET INSP OLINYK:
11
identification officers will certainly do that.
12
That is part of what they do.
13
Yes, the
You see, the whole purpose is to
14
record the scene as accurately as they can, and to
15
record it as it is.
16
That is critical.
So they work by whatever means,
17
you know, is available to them to ensure that
18
happens.
19
In terms of writing notes in an
20
approach to a body, again, I am not with them at
21
that point.
22
with the video, or whatever the case may be, which
23
is quite often the case.
24
25
I wait out -- I let them come to me
One thing that we do is ensure
that there is a flat plan drawing of the residence
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1
or of the scene, so that will take place following
2
the removal of the body.
3
MS COUTLÉE:
In terms of seizing
4
exhibits of the scene, is this normally something
5
that you do before removal of the body or after,
6
or does it matter?
7
DET INSP OLINYK:
Generally it is
8
after, unless there are exhibits, that one of my
9
friends alluded to just a while back, that we have
10
to seize to, you know, in the circumstances that
11
not doing so may compromise the exhibit.
12
outdoors, if it is on the body, we may end up
13
having to seize it to preserve it.
14
15
If it is
So, in certain circumstances, we
will.
However, for the most part, we won't.
16
Once the body has been removed and
17
the post-mortem examination is pending, that scene
18
is locked down, and the reason it is locked down,
19
or secured, or preserved at that point is because,
20
quite frankly, we don't know what we are looking
21
for at this point.
22
There are many answers that,
23
hopefully, we will get following a post-mortem
24
examination.
25
particular ligature, that may be referring to a
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particular instrument that may be instrumental in
2
the death of this individual, whether it's a
3
single-edged instrument, whether it's a
4
double-edged instrument, whether there are
5
footwear impressions that we find on the body.
6
That will certainly provide us
7
with information in terms of what we should be
8
looking for at the scene.
9
10
So, for those reasons, we would
wait for that.
11
Secondly, following the
12
post-mortem examination, that will, again, tell us
13
whether or not we are going in a criminal
14
investigation or we are going in a non-criminal
15
investigation.
16
So those things are very important
17
to us, because that will dictate the process that
18
we proceed with that scene examination.
19
So if it's a non-criminal
20
investigation, clearly we will be operating under
21
the authority of the Coroners Act.
22
out to be a criminal investigation, clearly we go
23
through the Criminal Code processes.
24
25
If it turns
So it is for those reasons why we
do not search for those items at that time.
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MS COUTLÉE:
Do I understand
2
correctly that prior to removal of the body, your
3
focus in terms of processing the scene is on the
4
area surrounding the body --
5
DET INSP OLINYK:
6
MS COUTLÉE:
Correct.
-- and you wait until
7
the post-mortem is completed prior to processing
8
the remainder of the scene?
9
DET INSP OLINYK:
10
11
MS COUTLÉE:
When you speak of the
post-mortem, does that mean autopsy?
12
13
That's correct.
DET INSP OLINYK:
That's correct,
that's what I am referring to.
14
MS COUTLÉE:
Now, Inspector
15
Fitzpatrick, if I could ask you the same question,
16
in terms of the steps that you consider essential
17
prior to a body being moved, or removed.
18
INSP FITZPATRICK:
19
Detective Inspector Olinyk has said would apply.
20
Much of what
I think what I would reinforce is
21
the fact that until it is determined whether it is
22
natural or suspicious, or whatever the case may
23
be, we go back to that golden rule that we do
24
everything until we know, and not only for
25
investigational purposes, but down the road, for
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court purposes, for the benefit of the potential
2
accused, as well as the gathering of evidence
3
against the accused.
4
5
So you have to be extremely
careful right from the very beginning.
6
If we go down that suspicious
7
death avenue, in our application, we would likely
8
be having these game plans and these discussions
9
with what we would term a major case management
10
command triangle, which would include a team
11
commander, a primary investigator and a file
12
coordinator.
13
accountable for the investigation, accountable for
14
the speed, the flow and direction of the
15
investigation, and a lot of this information would
16
be dealt with at the front end.
17
They would be the lead group
The normal procedure would be, you
18
know, to videotape, approach the scene in the
19
appropriate ways, with every effort not to
20
contaminate whatever potential evidence is
21
available.
22
It would get down to having
23
somebody where the scene is secured, documenting
24
who is coming and going, that type of thing, all
25
the way through to examining and picking up those
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exhibits.
2
3
Often what you find is, there is
more than one crime scene.
4
So it's very situational when you
5
ask the question:
6
seized.
7
When do the exhibits get
My position on that is very
8
similar, in that we are not going to give up the
9
scene until after an autopsy has taken place.
10
Often, at autopsy, we will come back with an
11
inconclusive situation, where it is not concluded
12
what the cause of death was right there, and we
13
have to go the next route, to toxicology, and that
14
sometimes can take up to months to determine.
15
So, at some level, you have to
16
make a determination of how long you are going to
17
keep that scene, what type of scene it is, if it's
18
an outdoor scene, an indoor scene.
19
However, the rule of thumb would
20
be that, until that autopsy is concluded, we are
21
not going to give up the scene.
22
I would venture that we would
23
likely collect exhibits and have the scene mostly
24
complete by the time we go to autopsy.
25
the luxury of going back and seizing additional
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things that come up as a result of the autopsy
2
after that.
3
A lot of it gets down to
4
degradation of the exhibits and so forth.
A big
5
issue, of course, is decomposition with the
6
remains.
7
controlled environment to preserve evidence that
8
you are going to get at autopsy, or that you don't
9
want to lose before it gets to autopsy.
10
Things as simple as the
You may have to get the remains into a
11
positioning on the gurney that they take, and the
12
way they position the body in the morgue, are all
13
issues that have to be dealt with, and that
14
command triangle and the investigators at the
15
scene should have input into, as well as the
16
coroner, because, at the end of the day, if it's
17
not suspicious, then it's a coroner's
18
investigation, and they will want the appropriate
19
exhibits and the appropriate autopsy results and
20
so forth.
21
So it really gets back to the
22
integrity and the best evidence that you can
23
possibly get; and to be able to, at the very
24
minimum, provide two years, six years, one year
25
down the road, a story that you can corroborate
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1
and that you can paint a picture for in a court
2
situation.
3
MS COUTLÉE:
In terms of the steps
4
that you consider necessary before the body is
5
moved, you have mentioned videotaping.
6
be only of the area surrounding the body, or the
7
entire scene at this point, before the body is
8
removed?
9
INSP FITZPATRICK:
Would that
It would start,
10
as Staff Sergeant Clark mentioned, from the
11
outside in.
12
have always said, and I think that our forensic
13
specialists have the outlook that the more
14
information the better, as early as possible,
15
because what can happen is, the scene can
16
change -- environmentally, somebody could
17
inadvertently kick something or whatever.
It would include the approach.
I
18
So the first order of business
19
would be to totally videotape the outside, the
20
inside, close-ups, from every angle that you can
21
think of.
22
some form for three-dimensional purposes,
23
depending on what type of abilities you have in
24
that regard, all to document the evidence and all
25
to paint that picture that is required down the
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1
road.
2
So, in terms of video, that would
3
probably be one of the very first things, and
4
often we have to wait to get into crime scenes, if
5
it is a search warrant situation or something.
6
our ident people will take the steps to do some of
7
these peripheral things on the outside of scenes,
8
and so forth, to get that out of the way.
9
So
Outdoor crime scenes will be dealt
10
with and processed, and then it will work its way
11
toward the actual deceased person.
12
MS COUTLÉE:
Now, again in terms
13
of the steps that you consider essential prior to
14
the body being removed, you have mentioned the
15
videotaping, and I would imagine that that can, at
16
times, make the need for other steps, but would
17
steps like photographing or writing down a
18
description of the scene also be considered
19
essential prior to moving the body?
20
INSP FITZPATRICK:
21
I'm sorry, I obviously didn't
22
Absolutely.
answer the question originally.
23
Yes, the whole gamut, whether it
24
be fingerprinting the door handles, things like
25
that, to ensure that there were no other people
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1
that secured the doors or the windows, that type
2
of thing.
3
You would be talking about
4
photography.
You would be talking about swabbing
5
different items, swabbing what you could around
6
the body.
7
Without touching the remains, or
8
without having the authority from the coroner to
9
do that, you would do all of the things that can
10
be done around that body.
11
Obviously there is going to be
12
evidence -- you may have to alter the remains in
13
order to find out the identity, things like that.
14
So those are all issues that are
15
worked through, but in answer to your question,
16
photography, blood spatter analysis, if required,
17
videotaping, fingerprinting, DNA swabbing, the
18
seizing of items -- it may be that you have to cut
19
out parts of the rug, or cut out pieces of the
20
wall, or do, depending on the application,
21
projectile, directional analysis for firearms and
22
that type of thing.
23
So there is a myriad of issues
24
that have to be done, and it's very applicable to
25
whatever the situation is.
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MS COUTLÉE:
And in terms of
2
seizing exhibits, is this something that needs to
3
be done before the body is moved, or does it
4
matter?
5
INSP. FITZPATRICK:
In my view,
6
it's kind of an individual crime scene
7
investigator or often in a homicide situation we
8
would have a crime scene manager and we would have
9
a -- what we would call an exhibit person.
10
The exhibit person is responsible
11
for picking up those exhibits, documenting the
12
time, the location, what he or she has done with
13
them.
14
can take those and what number may be applied to
15
those in order to paint that picture and to
16
appropriately collate everything so that you can
17
use them down the road in a presentation purposes.
18
So it may be that you do not seize
And it's really up to them as to when they
19
everything.
You've got -- you see the -- on TV,
20
you see the little numbers next to little bullet
21
casings on the street, things like that.
22
The crime scene would be
23
completely covered in those things from 1 to
24
whatever, and at some level they would physically
25
seize those after they've been photographed.
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1
Each exhibit would be photographed
2
as to its location.
3
will be produced.
4
They'll have to bring in people to take the
5
measurements of where that exact exhibit was in
6
relation to a benchmark.
7
dropped into a floor plan that can be produced for
8
investigational purposes.
9
Often a floor plan drawing
They will take measurements.
And then it's all
So it's a difficult question.
10
It's not a case of black and white where body's
11
removed and you just gather everything up.
12
likely going to be a process that takes place over
13
the course of the scene examination.
14
It's
I would suggest the last thing
15
that happens in most cases is that that exhibit
16
person collects everything and has it all
17
documented before the final walk-through that Det.
18
Insp. Olinyk referred to takes place, and then
19
that scene is secured, an autopsy takes place and
20
then we go back if we need to.
21
MS COUTLÉE:
And you mentioned
22
earlier the fingerprinting of the doors and that
23
sort of examination.
24
25
Again, is this something that
needs to be done before the body is removed, or
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1
does it matter?
2
INSP. FITZPATRICK:
It doesn't
3
really matter as long as it's been preserved
4
properly.
5
Again, it gets down to time
6
management in some cases.
7
crime scene investigator can't do anything until
8
the actual body has been removed so he can work
9
around or he can, you know, do some more kind of
10
invasive searching.
11
12
And it may be that that
So it gets down to how they manage
their crime scene.
13
MS COUTLÉE:
And S/Sgt Clark, if I
14
could ask you from your perspective, what are the
15
steps that you can consider essential before the
16
body is moved or removed?
17
18
S/SGT CLARK:
Well, I think you
have two scenarios here.
19
If you're dealing with -- like
20
when you have your first investigator go there,
21
the first patrol officer, and the supervisor shows
22
up and they deem this death to be like a
23
non-criminal, for example, the elderly female
24
who's had the medical conditions, everything's
25
pointing to that, the family's there.
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1
"Yes, she came home to die", basically.
2
I mean, we still have to
3
investigate that death scene and we still have to
4
make sure, but obviously they're leaning right
5
away towards it being a non-criminal death.
6
So there's quite a bit of
7
different approach to the scene than there is in
8
any death, as my colleagues have said, where we
9
find any type of suspicion or we deem it criminal
10
right away, right?
11
You walk in and there's a knife
12
sticking out of somebody, obviously we have an
13
issue here.
14
So there's a different approach.
15
If -- in the case of a
16
non-criminal death where the officers are there,
17
they've made their determination in the time
18
they've been there after talking to people or
19
whoever they've interviewed that this is a
20
non-criminal death, the approach to the body --
21
they still should be securing the scene and
22
calling the medical examiner.
23
The approach to the body would be
24
done by the medical examiner at that time.
25
basically, we do -- always use the same thing in
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any death scene, as I alluded to earlier, about
2
pathic contamination, so not walking where
3
everybody else would walk, necessarily.
4
5
But again, we're considering this
a non-criminal investigation at this time.
6
So the medical examiner would walk
7
in, they would deal with the body and simply
8
remove the body.
9
removal in Edmonton.
10
We don't do videotaping of that
We don't -- as I said, no
11
photographs would be taken by the police service.
12
Photographs would be taken by the
13
medical examiner basically of the location of the
14
body and the area around the body.
15
own photographs.
16
They do their
In the case of a suspicious or
17
criminal death, again, the Ident team would
18
normally work -- well, they would work from the
19
outside in, but normally work towards the body in
20
an effort to remove the body, you know, as quickly
21
as possible.
22
But as my colleague said, that's
23
not the be all/end all.
24
different.
25
depends on a lot of circumstances.
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Every scene is different.
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1
could play into that, you know, everything going
2
on around that scene.
3
But generally, they wouldn't be
4
doing exhibit seizing or anything except on the
5
path to the body, so they would be looking at how
6
are we going to remove this body from this house
7
or this scene and what way are we going to go.
8
So we're going to obviously clear
9
that path for the people to come in to remove the
10
body.
11
So if that requires -- in
12
Edmonton, we would send three Ident investigators
13
to a scene, so a photographer, an exhibit
14
collector and a Sergeant.
15
oversees and manages the crime scene.
Sergeant basically
16
In the case of where they approach
17
the body at a criminal scene, once they've cleared
18
that path, they would call the medical examiner
19
down, medical examiner would come, basically
20
remaining on that path that's been cleared of
21
exhibits or possible -- you know, whatever trace
22
evidence has been found.
23
pictures and have that body removed.
24
25
And they would do their
Once that body's removed, then the
Ident team would begin their examination of the
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1
entire crime scene, which would be cataloguing
2
exhibits, recording where they are, photographing
3
where they are in position.
4
You often see it where they've
5
placed numbers down, you know, in little triangle
6
form on each exhibit, that type of thing.
7
That's when all the further
8
examinations would be done, the fingerprinting,
9
whether it includes doors, windows, walls.
It
10
could be the whole house needs to be fingerprinted
11
or -- depending on -- again, on the scene.
12
13
All that stuff would then take
place at that time.
14
15
And that would continue for hours
after the removal of the body.
16
Again, like my colleague said, we
17
would hold that scene until the autopsy's done in
18
the case of a criminal or suspicious
19
circumstances.
20
21
We don't hold the scene in the
case of a non-criminal.
22
There can be cases where they want
23
to just secure it in a non-criminal 'cause there's
24
family issues.
25
We could put a lockbox on the door, and that has
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1
been done.
2
In the case of a suspicious or
3
criminal investigation, we would physically leave
4
a police officer at the scene to guard the scene
5
to make sure no one entered it.
6
And again, we -- as my colleague
7
stated, we would wait until after autopsy and then
8
normally we would go back.
9
A lot of times in Edmonton because
10
we get the autopsy so quick, it -- for example, if
11
we had a suspicious death or a criminal death
12
today, we would have an autopsy tomorrow morning.
13
So our crime scene isn't even
14
close to done anyway, so we end up going back
15
after the autopsy.
16
The Ident team goes to the autopsy and then comes
17
back.
18
They have to take a break.
Weekends, you know, it -- we don't
19
do autopsies on weekends, so it's a little bit
20
different that way.
21
MS COUTLÉE:
When you mentioned a
22
path to the body that's done by the Ident team
23
prior to removing the body, does that include
24
steps like videotaping, photographing and writing
25
down descriptions of the area?
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1
S/SGT CLARK:
Absolutely.
2
Everything my colleagues have described, we do the
3
same procedures.
4
Ident team would normally
5
videotape first, photograph second and then start
6
looking for exhibits, photographing them in
7
position and then seizing them.
8
the cataloguing.
9
That includes all
The Sergeant in charge of the
10
crime scene will normally do the detailed outlay
11
of the house, so he's taking detailed notes of
12
where everything is in the house.
13
This is in the suspicious or
14
criminal deaths.
In the case where they determine
15
it to be non-criminal, it would be the Constable's
16
responsibility, the first responding officer.
17
His Sergeant would come there.
18
They would agree that yes, this doesn't appear
19
suspicious or criminal in nature.
20
to document.
21
So it's his job
So we have the elderly female in
22
her bedroom.
23
basically taking notes of everything he sees.
24
25
He needs to document her position,
We teach our officers to do what
we call a three-level room scan, so as an ex-Ident
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1
officer, I would walk into a room.
2
at the door if the death was in this room and I
3
would scan the room clockwise, you know, looking
4
at the floor, noting everything I saw.
5
eye level, noting everything I saw, and looking
6
ceiling level, noting everything I saw.
7
8
should be doing.
It doesn't happen in every case.
The Constables often aren't as well trained.
11
12
Looking
And that's what our investigators
9
10
I would stop
But at the suspicious death or
criminal deaths, it does happen.
13
MS COUTLÉE:
Now, I'd like to ask
14
about the treatment of the body before -- Mr.
15
Chairman?
16
THE CHAIRPERSON:
Yeah, I was just
17
waiting until you finished with all the -- that --
18
with all the persons on the same question so we
19
could take about a five or 10-minute health.
20
21
MS COUTLÉE:
Absolutely.
Now is
the time.
22
THE CHAIRPERSON:
23
just take, if we could, five, 10, seven or eight
24
minutes just so that we can have a quick health
25
break.
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Let's
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1
--- Upon recessing at 1546 / Suspension à 1546
2
--- Upon resuming at 1558 / Reprise à 1558
3
THE CHAIRPERSON:
Just before we
4
start, I'm -- we're going to have to make every
5
effort to conclude today because we have one of
6
the members that will be returning home at 7
7
o'clock in the morning tomorrow, I believe.
8
Was it 7:00 in the morning?
9
just for purposes of timing, so thank you.
10
MS COUTLÉE:
So
Now, I was wondering,
11
in terms of the treatment of the body before it is
12
removed, and I'd like to specifically focus on the
13
situation of a body that is found hanging.
14
Are any steps taken to cover the
15
body or hide it from view while you await the
16
removal?
17
18
I would ask you, Insp.
Fitzpatrick, if you could start?
19
INSP. FITZPATRICK:
I can't see a
20
situation where you would actually cover the
21
remains unless it was in plain view to the public
22
or something.
23
there are other ways to conceal the body.
24
25
And at that, I would suggest that
So my answer would be that you
wouldn't drape it or anything like that.
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would be contaminating evidence.
2
You would have to do it under the
3
authority of the coroner in British Columbia, for
4
one thing.
5
exigent circumstance and there was no other means
6
to do it, I wouldn't -- I wouldn't think it would
7
happen.
And unless there was some sort of
8
MS COUTLÉE:
9
S/SGT CLARK:
And S/Sgt Clark?
I agree.
You
10
wouldn't be covering the body per se with
11
anything.
12
If you're -- in the case of a
13
suicide by hanging -- it, again, depends on the
14
scene, though.
15
Like for example, in Edmonton
16
we've had persons hang themselves from the High
17
Level Bridge, a bridge that there's nothing you
18
can do.
19
It's open to the public.
All you can do is basically stop
20
as much traffic as you can from viewing it, but
21
you're going to have persons on the ground there
22
looking up that can see it.
23
We've had people hanging in trees
24
and what we is simply move our police tape back to
25
try and keep the -- any public or gawkers away
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1
from seeing it.
2
In the case of an indoor scene,
3
it's a lot more controlled.
4
per se cover the body with anything at the time of
5
removal or at any point.
6
off from any persons viewing into the scene.
7
So while we wouldn't
We would block the scene
If it's outdoor -- or, sorry,
8
inside a house or a room, I mean, you could easily
9
just close the door or put something in the way or
10
stop traffic.
11
For example, if someone hung
12
themselves in this building, we would simply close
13
the door, obviously, and nobody would be able to
14
see in, or we could just stop access to the floor.
15
16
MS COUTLÉE:
Olinyk?
17
18
And Det. Insp.
DET. INSP. OLINYK:
Yeah, much the
same.
19
I mean, clearly we're, you know,
20
mindful of, you know, preserving the dignity of
21
any deceased, and so where you can -- we can, you
22
know, put up barricades or cover the area off so
23
that -- do our best so that the public doesn't
24
have, you know, any view on it, then we'll clearly
25
do that.
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In terms of literally covering the
2
body per se, no, we wouldn't do that, either, for
3
obvious reasons.
4
MS COUTLÉE:
And I'd like to ask
5
now, in terms of your determination about the
6
steps that you consider necessary before the body
7
is moved, what would be the impact of the views
8
expressed by the medical examiner or the coroner
9
attending the scene as to whether or not the death
10
is suspicious?
11
If I could ask you, S/Sgt Clark?
12
S/SGT CLARK:
Oh, very -- their
13
opinion is very important and very highly regarded
14
in Edmonton.
15
The medical examiners are -- I
16
mean, they attend death scene, multiple death
17
scenes, every day.
18
people in that office and we value their opinion
19
with, you know, high credibility.
20
21
We have some very senior
I would say they have with all of
us.
22
So if they ever came to any
23
scene -- and a lot of times we bring them -- when
24
it's a suspicious one and we're not too sure, I
25
will often say -- I'll get a phone call.
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1
tell the Constable, "Look, I'm going to send a
2
medical examiner out there.
3
Let him have a look".
You're concerned about some
4
bruising or something that just isn't right, let
5
him have a look.
6
He's more of a medical expert than you are.
7
He'll have a much better idea.
And they'll come out and make a
8
determination.
9
this is suspicious to me".
10
And they may say, "You know what,
We'll say okay, we're going to
11
back you out and we're going to treat this as a
12
homicide scene or suspicious death scene -- same
13
thing -- until we know more.
14
If they come there and they -- and
15
we've had cases, like I said, where they see some
16
odd bruising and they're not too sure what that's
17
about and the medical examiner goes there and
18
goes, "Okay, this is why, this is why this would
19
be.
No, there's nothing here that's suspicious".
20
Then we would go with that opinion
21
and we would -- if we were already leaning towards
22
not criminal, that's the way we would treat it.
23
MS COUTLÉE:
And Det. Insp.
24
Olinyk, if I could ask the impact of the coroner's
25
views?
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DET. INSP. OLINYK:
2
coroner views, clearly, we're very much interested
3
in that, obviously.
4
until we have a post-mortem examination, until we
5
have those definitive answers, you know, it's very
6
difficult for some coroners to, you know, give us
7
information in terms of what they think is --
8
could have caused this death.
9
Yeah.
The
But I just have to say that
So we're very careful with that.
10
Although, you know, they will provide information
11
to us that's clearly important, I leave it until
12
the completion of the post-mortem because clearly
13
that's where the answers are more definitive,
14
so...
15
MS COUTLÉE:
And Insp.
16
Fitzpatrick, if you could comment on the impact of
17
the coroner's views?
18
INSP. FITZPATRICK:
It's difficult
19
in British Columbia because the coroner -- the
20
coroners are not medically trained.
Most of them,
21
at best, are nurses, former nurses.
Some of them
22
are retired police officers, that type of thing.
23
It's very rare that I've seen that
24
a pathologist who is the actual medical expert who
25
is a contractor for the coroner service would come
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1
out to a death scene.
2
I've -- in certain homicide
3
situations, we ask that they attend so that they
4
can have an indication and have a firsthand look
5
at some of the evidence with respect to the body,
6
whether it be, you know, bloodletting or whatever.
7
So the answer to the question
8
would be that there's collaboration.
We're
9
directed by our experience, not necessarily the
10
experience of the coroner, with respect to our
11
investigation.
12
And if there is question, then we
13
would take it above that level.
14
issues come out with whether or not an autopsy is
15
going to take place, and the reasons why the
16
police -- we, as the police, want an autopsy to
17
take place.
18
MS COUTLÉE:
And a lot of our
Now, if possible at
19
all -- and I understand that in E Division and for
20
the OPP there's going to be issues associated with
21
geographical distance that may interfere.
22
would ask you, excluding those issues associated
23
with travel times, are you able to give me a sense
24
of, on average, in a non-suspicious suicide case
25
how much time would elapse between your service's
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first attendance at the scene and the removal of
2
the body?
3
Det. Insp. Olinyk?
4
DET. INSP. OLINYK:
5
Yeah.
Again,
depending on the location.
6
Generally, we would -- we would, I
7
suppose, on an average, probably have the --
8
bearing in mind it's not remote -- have the body
9
out probably within six hours.
Could be eight
10
hours.
But somewhere where we don't have to
11
travel too far, I think that would be a reasonable
12
guess.
13
MS COUTLÉE:
Insp. Fitzpatrick?
14
INSP. FITZPATRICK:
The majority
15
of medium-sized or larger centres have a
16
detachment located within a very short distance.
17
You know, half an hour response time I think would
18
probably be very conservative.
19
So it would be something that a
20
Constable would be dispatched to, they would
21
arrive within a half an hour.
22
have their NCO come in within a short period of
23
time.
They would then
24
My guess would be that the coroner
25
would maybe come from another distance or they can
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1
discuss the thing over the telephone.
Direction
2
can be made, and it would be a case of however
3
long it took to get some body removal personnel
4
there.
5
The only thing that would slow
6
things down would be if we had to go and bring
7
other resources in, and it may be that they have
8
to fly in or they have to come from, you know,
9
several hours away.
10
If it's non-suspicious and it's
11
straightforward, it would just be a case of
12
getting the initial investigation complete and a
13
decision made in collaboration with the coroner to
14
deal with it and within hours it could be
15
completed.
16
MS COUTLÉE:
17
S/SGT CLARK:
S/Sgt Clark?
On a non-criminal
18
death in Edmonton, I would say from the time the
19
first member arrived it would be anywhere from one
20
to three hours that the medical examiner would
21
come and remove the body.
22
MS COUTLÉE:
Now, I'd like to
23
discuss the handling of suicide notes found at a
24
death scene.
25
So if you could describe what your
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process is in terms of how you deal with suicide
2
notes that are found at the scene and who do you
3
divulge them to, and at what point?
4
S/Sgt Clark?
5
S/SGT CLARK:
Suicide note, are we
6
now talking the death is considered a suicide;
7
it's non-criminal, then?
8
9
MS COUTLÉE:
Well, you can tell me
if there's a difference.
10
S/SGT CLARK:
Okay.
On a -- where
11
we believe it's a suicide and things point to a
12
suicide and we believe it to be non-criminal, the
13
medical examiner leads the investigation, so they
14
would take any suicide notes found at the scene.
15
That is their responsibility, to
16
seize those exhibits and all exhibits.
17
Really, the only exhibits we would
18
take at one of those scenes would be illicit drugs
19
as in marijuana, cocaine or something that has to
20
be properly disposed of.
21
would take all the medications, including the
22
suicide note.
Other than that, they
23
Our policy is our members are to
24
obtain a copy of that suicide note, whether they
25
make a photocopy at the time or it's obtained
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1
later from the medical examiner's office.
2
can be done.
3
That
In the case where they can't get a
4
copy right then and there, we advise our members
5
to record word for word in their notes what the
6
suicide note says, how -- you know, how it -- word
7
for word what the person has written or typed or
8
whatever it is, and submit that with their report.
9
They would then, in their
10
narrative of their death report that they submit,
11
detail what the notes they've taken on the suicide
12
note or they would attach a copy if they have the
13
photocopy of the note.
14
15
So in non-criminal, the suicide
note goes with the medical examiner.
16
In the case of a suspicious or
17
criminal death where we think this may be staged
18
or, you know, we've got to determine authenticity
19
of the note just 'cause we consider the death
20
suspicious, it's not adding up, police would seize
21
the note.
22
So the Ident team would seize that
23
exhibit.
24
examiner.
25
an exhibit.
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It would not go with the medical
We would retain continuity of that as
It would ultimately, you know, end
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up -- could end up in Court if someone was ever
2
charged.
3
4
MS COUTLÉE:
interrupt.
5
6
And I'm sorry to
In those cases, do you proceed to
do testing on the note for authenticity?
7
S/SGT CLARK:
Oh, absolutely.
I
8
mean, if it's determined to be suspicious or
9
criminal, that's obviously one of the things that
10
would have to be done in that investigation, if
11
we're learning towards homicide, as to who wrote
12
it or, you know, if it's a handwritten note, is
13
that their handwriting, items of that nature.
14
Obviously, the note would have to
15
be fingerprinted, so there's a delicate handling
16
procedure that the Ident members would deal with
17
in any case.
18
MS COUTLÉE:
And in terms of
19
advising the family about the note, do you have
20
any policies as to whether you tell the family
21
there is a note and, if so, at what point?
22
S/SGT CLARK:
We have no specific
23
policies, but I always operate on -- I try to
24
operate on common sense.
25
non-criminal death, it's a suicide, I think the
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I mean, if it's a
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family, if they want to know, I would tell them.
2
Absolutely.
3
I would tell my investigators or
4
tell the Constable to let them know that, you
5
know, there was a note.
6
contents, absolutely.
7
If they want to know the
I mean, I wouldn't physically give
8
them a copy of the note.
There would be no
9
problem if it's non-criminal, it's not going to
10
Court, with providing them a photocopy if they so
11
want that.
12
Not every family does.
13
families do.
14
others.
Some
Some families need more closure than
I mean it's a case-by-case basis.
15
I wouldn't hide the fact that
16
there's a note.
17
suspicious or criminal death.
18
wouldn't be telling them -- I would be giving them
19
very limited information.
20
them there's a note, because we don't know who the
21
suspects are.
22
It's different if it's a
Absolutely, I
I would not be telling
Probably at that point in the
23
investigation that your first seize the note, the
24
family could -- is just as big a suspect as
25
anybody else around that person.
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they wouldn't be told there was a note.
2
If at some point down the road we
3
ended up charging a third party not related to the
4
family, they request to know the contents of the
5
note, I wouldn't have a problem releasing the
6
contents of the note.
7
by any means, because it's needed for court, but
8
just elaborating to as what's going on.
9
Not giving them the exhibit
Kind of like I said, work on
10
common sense, and that if you were in that
11
position you would want to know a little bit about
12
a loved one's death.
13
MS COUTLÉE:
Are you aware if
14
there's any process to deal with cases where the
15
note contains information about funeral wishes or
16
that sort of thing that could be time-sensitive?
17
S/SGT CLARK:
I don't recall any
18
specific cases recently that I've dealt with.
19
have heard of ones where they have had -- you
20
know, they've said, "I want to be cremated", or
21
whatever.
22
non-criminal, absolutely, I'd pass that on --
23
information on to the family.
I would pass those on.
I
If it's
24
If it's a criminal investigation,
25
I really wouldn't be saying a lot to them, again,
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about that until we make sure that they're not
2
involved.
Because you just don't know.
3
MS COUTLÉE:
Detective Inspector
4
Olinyk, if you could explain how your service
5
handles suicide notes?
6
DET INSP OLINYK:
Yeah.
Very
7
similar as to what Bill says.
8
case again, you know, on its own merit and set of
9
circumstances and so forth.
10
We look at each
But no one -- or, I mean, if we're
11
into a situation where we believe, and the
12
evidence is such, that it's a suicide, clearly
13
that information is of critical importance to the
14
family, and (a) that they know the existence of
15
it, and (b) if they, in fact, choose to know the
16
contents and/or even a copy, then clearly we'd
17
entertain that.
18
Again, everything that we seize
19
with respect to a suicide investigation clearly is
20
at the extension of the coroner's authority, so
21
the coroners will not be seizing the physical
22
exhibits. We'll, clearly, seize the physical
23
exhibits, including notes, on their behalf.
24
25
Then, again, before we debrief the
family, in terms of setting up a meeting where,
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1
you know, we'll try to answer every question that
2
they have, that is always done in consult with our
3
regional coroner's office as well, just to let
4
them know.
5
If the families request a copy or
6
the content of the post-mortem report, the autopsy
7
report, again, that's not ours to give.
8
from the regional coroner's office.
9
ones that are responsible for releasing that.
10
That is
They're the
So that's how we basically do it
11
here with our organization.
12
MS COUTLÉE:
Is there a process to
13
return the actual original note to the family at
14
the end of the investigation?
15
DET INSP OLINYK:
No, I don't
16
think a -- I don't think there's a process.
17
Again, every single case is different, and you
18
just mentioned that, that last part of the
19
question.
20
I was talking to a forensic
21
officer who, in fact, had a suicide years ago, and
22
a note that was very special, and it was made for
23
the family, and that was an instance where he
24
actually provided -- they provided the actual note
25
to the family.
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So there are circumstances where,
2
you know, that may be the case.
3
left, you know, depending on the case.
4
MS COUTLÉE:
I think it's
In terms of
5
timelines, about how soon after the death would
6
the family be told about the note or provided a
7
copy?
8
9
DET INSP OLINYK:
it's case-specific.
Well, again,
It all depends on where we
10
are with the investigation and how long it takes
11
to, you know, gather the evidence to put us in a
12
position where we determined it's a suicide.
13
So it all depends.
More often
14
than not, they go sooner rather than later.
15
there are times where, you know, depending on the
16
complexity of the case, it may be a considerable
17
time.
18
all depends on the evidence that we have.
19
can't really make that...
It may be weeks.
20
But
It could be months.
MS COUTLÉE:
It
So
We spoke earlier
21
about the initial determination that takes place
22
early on after the body is found as to whether the
23
death is suspicious or not.
24
DET INSP OLINYK:
25
MS COUTLÉE:
613-521-0703
Right.
So in cases where
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that early determination is made that this is not
2
a suspicious death, does that have an impact, in
3
terms of how long the rest of the process will
4
before the family is advised?
5
DET INSP OLINYK:
Well, yeah.
I
6
mean if we're satisfied that there's no
7
criminality at all to the investigation or to the
8
case, clearly, it'll be sooner than later, once
9
we've exhausted and satisfied ourselves.
10
MS COUTLÉE:
And in terms of
11
whether cases where there is some suspicion, do
12
you also perform testing on the notes to confirm
13
authenticity?
14
DET INSP OLINYK:
15
every note -- I mean the one thing that we would
16
be very careful on is to look at any note and
17
assume right off the get go that it might be at
18
the hands of the deceased.
19
you know, we would gather samples, most often
20
provided to us from the family, and submit it for
21
examination at our Centre of Forensic Sciences.
22
Yeah.
You know,
So having said that,
Having said that, that type of
23
evidence now is being looked at as sort of it
24
could be, it may not be sort of thing.
25
very careful, in terms of what conclusions they
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can draw based on the handwriting analysis.
2
having said that, we would still do that.
3
4
MS COUTLÉE:
Inspector
Fitzpatrick --
5
6
But
S/SGT CLARK:
Could I just clear
up one thing just he brought up, that kind of...?
7
Just to clarify, in Edmonton, with
8
the medical examiner, if the medical examiner
9
takes a note in a non-criminal death, and the
10
family is asking the police, we would defer them
11
to the Medical Examiner's Office.
12
I just wanted to clear that up,
13
that we would tell them to contact the Medical
14
Examiner's Office and ask "them" for the note or
15
the contents of the note.
16
lead agency.
17
can give a copy, then we would then do that.
18
Because they are the
If we're directed by them that we
MS COUTLÉE:
And I didn't ask you
19
if you returned the original in non-suspicious
20
cases because I understand that you --
21
22
S/SGT CLARK:
recall --
23
MS COUTLÉE:
24
S/SGT CLARK:
25
No, I don't
-- don't have it.
Sorry.
Yeah, we
don't have it in non-suspicious, but we wouldn't
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do it in the other cases.
2
MS COUTLÉE:
Inspector
3
Fitzpatrick, if you could describe the handling of
4
suicide notes?
5
INSP FITZPATRICK:
Obviously, the
6
differentiation between a suspicious and
7
non-suspicious, in a non-suspicious situation, and
8
there's not criminality, then essentially, in
9
British Columbia, the police agency is working for
10
the coroner on behalf of the coroner's
11
investigation.
12
Normally, something such as an
13
exhibit like a note would be seized as part of the
14
initial investigation, along with other items,
15
perhaps prescription drugs, perhaps pertinent
16
items to the sudden death, and often under the
17
direction of the coroner.
18
other articles, like valuable jewellery, that type
19
of thing, that will have to be dealt with down the
20
road.
Sometimes it can be
21
But in answer to the question
22
regarding a suicide note, it would be seized.
23
would expect that it would be up to the coroner to
24
articulate to the family that there was a note.
25
would expect that if there was any content in the
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note that it would have to be reviewed as to what
2
can be given or what can be said.
3
I've heard of coroners reading the
4
note to the family within hours, within days.
5
would expect that our organization would have a
6
photocopy of the note on file and the original
7
would go back to the coroner, and the coroner,
8
then, would do with the note what they saw fit,
9
whether it would be to provide it to the family...
10
I
At some level, because that item
11
has been entered as an exhibit in a police
12
investigation, we would have to complete the
13
all-round investigation by returning the exhibits
14
to where they're rightfully supposed to go.
15
would include the suicide note.
16
That
So at some level it would be an
17
investigator's job to either provide that original
18
to the coroner or, if he's dealing with the
19
family, he would directly return that as an
20
exhibit to the family, and they would sign a
21
relinquishment or sign for the exhibit so that we
22
can account for all that.
23
The only place that I could see
24
that there would be some issue on the part of the
25
police would be if there are issues contained in
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1
the content of the narrative of that suicide note:
2
Could it compromise an ongoing investigation?
3
Could it compromise the identity of an informant?
4
Are there other issues, national security issues?,
5
and the RCMP have policy with respect to that.
6
Even in view of those things, it
7
would be my position, on a non-suspicious thing,
8
that the suicide note be provided to the family,
9
in a vetted form if necessary, but they need to be
10
given that information if they want it.
11
Often there's a struggle between
12
the investigator and the coroner when the content
13
of the note is controversial, and out of
14
compassion the whatever party may feel that that's
15
not an appropriate thing to do.
16
call in a non-suspicious situation would be the
17
coroner, and the coroner would come up with that.
18
Again, going the other direction,
But the ultimate
19
in
a suspicious situation, it would be handled
20
like any other exhibit, and it would be put
21
through a number of different processes, including
22
fingerprinting, DNA swabbing, handwriting
23
analysis.
24
of paper that it came from, even as far as the
25
pens in the house, that type of thing, to discount
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You would want to seize the actual pad
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1
or corroborate the fact that you have some other
2
involvement in this.
3
I guess an extension of that would
4
be some of the issues we get with assisted
5
suicides.
6
that would have to be reconciled to determine if
7
there's any criminality in that aspect of it.
Often that would have to be something
8
MS COUTLÉE:
Thank you.
9
I'd like to go over the steps now.
10
We've spoken about that initial determination of
11
suspicious versus not suspicious.
12
where the death is initially assessed as not
13
suspicious, you've each told us who carries on
14
with the investigation from now on.
15
So in cases
If you could just give us an
16
overview, what are the steps in a non-suspicious
17
death investigation, what kind of final report has
18
to be submitted, and how long does this process
19
normally take?
20
21
And if we could start with you,
Staff Sergeant Clark.
22
S/SGT CLARK:
In a non-suspicious
23
death, the original patrol officer would make his
24
determination, along with his supervisor.
25
determine non-suspicious.
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So they
They would submit a
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report.
2
We require same-day reporting in
3
Edmonton, so the report has to be submitted that
4
shift before he goes home.
5
computer-generated reports.
6
They're all
Part of his duties would be to
7
contact next of kin.
That's a major part of,
8
obviously, any death investigation.
9
be left up to that constable to contact the next
10
of kin.
11
day you may not be able to speak to next of kin,
12
and he would have to do a follow-up then, but he
13
would have to indicate that in his report.
14
Or make attempts.
But it would
A lot of times that
Once his report is submitted by
15
the end of his shift, it's approved by his
16
sergeant, and it's then a copy is sent to the
17
Criminal Investigative Division staff -- or,
18
sorry, the Criminal Investigative Section, staff
19
sergeant of that station he works out of.
20
have five stations.
21
it goes to the staff sergeant, who runs the
22
detectives there, for review, and a copy is sent
23
to the homicide staff sergeant.
24
25
So we
If he works out of downtown,
So when I come into work the next
day, I review all the death reports that have been
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reported overnight.
2
report.
3
determine that they have covered their bases:
4
they have indicated why this death is non-criminal
5
or -- you know, if it was criminal, we would have
6
a whole homicide team out, so it'd be a different
7
story.
8
9
My job is to review that
Basically, I'm reading that report to
But he basically has to convince
me, as I'm reading the report, that this death is
10
non-criminal, and why it's non-criminal.
11
looking for those things in his report.
12
looking for the next-of-kin contact, that he's
13
made attempts to contact next of kin, steps have
14
been taken in that method, and, if he hasn't
15
contacted them, what he's doing about it.
16
And I'm
I'm also
And if I'm satisfied with that, I
17
simply write that I've reviewed it.
18
happy, I send it back and say, "Listen, I need
19
more explanation".
20
not regularly, but it does happen.
21
If I'm not
And that happens, you know,
MS COUTLÉE:
So do I understand
22
correctly that for a non-suspicious death the
23
whole process can be concluded within days of the
24
death?
25
S/SGT CLARK:
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In Edmonton, yes,
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it's fairly quickly.
2
their initial report.
3
answers as to the death, absolutely.
4
don't. And there may be history that has to be
5
followed up on in regards to the victim, and,
6
obviously, if there's an autopsy, the results of
7
that.
8
9
I mean they will submit
They may not have all the
We normally
So normally they submit the
initial report that night with their findings.
I
10
concur that the next day, or whenever I get to it,
11
it could be two days, depending on the weekends
12
and that, that I concur that this does appear to
13
be non-criminal.
14
the medical examiner, if they have any findings,
15
and then the officers would submit follow-up
16
reports if there's anything to add to the initial
17
report.
18
And then we ultimately wait for
MS COUTLÉE:
Detective Inspector
19
Olinyk, if I could ask about the main steps in a
20
non-suspicious death investigation?
21
DET INSP OLINYK:
Yeah.
22
Again, the main steps, clearly the
23
first contact of any death investigation would be
24
the officer, patrol officer, on the road.
25
there it goes immediately to his supervisor.
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area crime supervisor or detective sergeant would
2
also be notified of every death investigation.
3
he or she may invoke for their assistance at that
4
time as well, and sometimes just to consult to
5
make sure that all the steps are, in fact -- you
6
know, have been undertaken.
7
So
From that, the report, obviously,
8
is file.
The detective sergeant will review it.
9
If there's ever any inkling at all that this is
10
anything but a non-suspicious death, then the
11
notifications go up, and, ultimately, to a CIB
12
major case manager.
13
But along with the report, again,
14
depending on the types of investigation, because
15
it's very hard to say, it could be wrapped up in a
16
couple of days.
17
Depending on, you know, the post-mortem report,
18
obviously, that's going to be months away.
19
toxicology report, if, in fact, that factors in,
20
could be some time.
21
reports as well that we're waiting for, so --
22
footwear examination, that sort of thing, for
23
example.
24
25
Some absolutely, some not.
The
There could be some other
So those things may take some
time, but, at the end of the day, a non-suspicious
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death investigation, where there's no evidence to
2
the contrary, then it very well may be wrapped up
3
sooner than later.
4
MS COUTLÉE:
And while you wait
5
for those reports from the coroner's office from
6
the autopsy, do you continue your investigation or
7
are you just waiting for the reports?
8
9
DET INSP OLINYK:
depends.
Well, it all
I mean it depends on how much there is:
10
how many people there are to interview, how much
11
background are we, you know, into.
12
a lot longer than others.
13
circumstances for that specific investigation.
14
Some can take
It all depends on the
MS COUTLÉE:
Inspector
15
Fitzpatrick, if you could provide an overview of
16
the main steps for a non-suspicious death
17
investigation.
18
INSP FITZPATRICK:
I did mention
19
it earlier today.
20
required at the end of the investigation is the
21
Sudden Death Report.
22
what I would term a Crown counsel report:
23
were to charge somebody, you would put a report
24
into the Crown counsel.
25
One of the reports that is
That's a report similar to
if you
And there's set forms.
There's a set form in British
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Columbia for the coroner's office called the
2
Sudden Death Report, and that officer will
3
document that report, answer all the boiler-plate
4
questions as part of his kind of final job.
5
So typically, a suspicious
6
death -- or sorry, non-suspicious death, that
7
member goes there, he spends his time at the
8
scene, he liaises with the coroner, that's going
9
to be what we call an SUI file, still under
10
investigation, for him to finish his paperwork,
11
and that would include returning the exhibits,
12
dealing with whatever issues come up.
13
was an autopsy and the lab results came in, that
14
file would remain open and he would have carriage
15
of that investigation.
16
If there
It would all move toward his
17
preparation of this final report, that then is
18
signed off by his supervisor and goes over to the
19
coroner.
20
back with whatever questions are necessary.
21
The coroner then will review it and come
In a perfect world that member,
22
depending on the level of investigation and
23
follow-up that's required, could have that done
24
the same afternoon.
25
typing and that type of thing, the normal
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administrative process, and it would be within
2
days that that was concluded.
3
The only problem with that
4
sometimes is these members are very busy and
5
they're running around and they're only able to
6
attend to these things on downtime, so it gets to
7
a point where it may get into several weeks.
8
after a certain diary date, a supervisor is
9
alerted and that member is informed that they need
10
But
to get that report done.
11
MS COUTLÉE:
Now in terms of cases
12
where the death is suspicious, I won't ask you to
13
describe all the steps because, obviously, we can
14
all imagine that any suspicious or homicide-type
15
investigation would have many steps depending on
16
circumstances.
17
have you comment on certain investigative steps
18
and tell me how important these steps are in
19
suspicious cases.
20
So what I would like to do is to
So starting first, Detective
21
Inspector Olinyk, interviewing the person who
22
called in the death, how important is it, when is
23
it done and are there any measures taken to
24
isolate that person pending interviewing?
25
DET INSP OLINYK:
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I mean that's one of the first things that we're
2
going to do.
3
will be separated and interviewed sooner than
4
later, absolutely, without knowing -- really, it's
5
at its infancy stages, so, clearly, that's how we
6
investigate.
7
Whoever calls that in, that person
So we start off with the first
8
source of potential information, and that's how
9
we'll do that.
10
11
MS COUTLÉE:
Will that interview
normally be recorded?
12
DET INSP OLINYK:
Oh, it'll be
13
definitely recorded.
14
methods of recording, obviously:
15
handwritten, rather, statement, there's audio
16
statements, and then, of course, there's
17
audio-video statements.
18
There's, you know, different
handwriting -- a
So depending on the type of
19
witness that we are interviewing, clearly, key
20
witnesses we certain would prefer having a
21
audio-video statement of key witnesses.
22
obvious advantages to that.
23
and geography will preclude us from that,
24
depending on where we are.
25
least, audio.
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There's
Sometimes location
But, at the very
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So I'd like to say that on a key
2
witness's reporting a death, which is a key
3
witness, obviously, we would have videotaped.
4
MS COUTLÉE:
Now, what about
5
neighbourhood inquiries?
How important are they
6
and how extensive are those inquiries?
7
example, if the death occurs in a building, are we
8
talking about everybody living in the building,
9
everybody on the same floor, that sort of thing?
10
DET INSP OLINYK:
For
No, they're very
11
critical.
12
canvassing, and the subsequent interviews of
13
neighbours.
14
an apartment building, we will interview -- we
15
will canvass everyone that we can.
16
I never underestimate the importance of
There's really no limit.
If it's in
And not only that, every
17
apartment, but those who are in the apartment,
18
because unless you ask you're not quite often
19
going to get the answer.
20
extensive measures to interview and -- well, at
21
the very least, start off with canvassing, and
22
then subsequently interview those people.
23
24
So we will take fairly
MS COUTLÉE:
How soon after the
death is this done?
25
DET INSP OLINYK:
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our canvas teams very shortly after.
2
of the first things that we set up.
3
assigned to the case, we'll put a canvas team
4
together.
5
That's one
Being
If there's a major case management
6
investigations -- and my colleagues have already
7
mentioned it previously -- we start off with a
8
command, a triangle under major case management,
9
and that's, you know, the major case manager, we'd
10
have a lead investigator.
11
that we've identified early on, in terms of what
12
we're going to do, a canvas team being one of
13
them.
14
We have various roles
So we will set that out and have a
15
number -- and generally it's a number of people
16
assigned to that, depending on the area.
17
have 20 homes to canvas, well, that's a little
18
less complex.
19
blocks of homes to canvas, it's a different story.
20
It'll all dictate -- that will dictate the numbers
21
that we actually assign.
22
If we
If we have an apartment block or
But sooner than later.
MS COUTLÉE:
Finally, what about
23
establishing the chronology of exactly when the
24
body was found, when the police was called and
25
what, if anything, happened in between, is that an
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important aspect?
2
DET INSP OLINYK:
Well, yeah,
3
everything's important.
And just may be for
4
clarification, you're talking the chronology,
5
could you just repeat that, please?
6
MS COUTLÉE:
Sure.
7
Establishing the chronology of
8
when the body was found, when the death was
9
actually called in and whether anything happened
10
in between those two events is that something
11
that's important?
12
DET INSP OLINYK:
13
absolutely.
14
answers to everything.
Oh, absolutely;
I mean it's -- we want to get the
15
I mean, from the immediate time of
16
notification to the body being located to the time
17
of the body being reported, absolutely and
18
everywhere in between.
19
importance to us.
That's of critical
20
MS COUTLÉE:
21
Fitzpatrick, I will ask you about the same
22
investigative steps, if you could comment on their
23
importance?
24
the death how important is it, when is it done,
25
how is it done?
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Now, Inspector
Interviewing the person who called in
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INSP FITZPATRICK:
2
can't underestimate the importance of that step.
3
It would be done as soon as possible in order to
4
get the information from that person as to a
5
myriad of issues whether there is, you know,
6
public safety issues, things like that that first
7
responders need to know; to the very least some
8
sort of recorded statement as on paper or
9
ultimately a videotaped recording.
10
Absolutely
We would expect that that would
11
take place, depending on what's available in a
12
detachment in an interview room, something like
13
that and would be done as soon as possible to set
14
the stage for the continuation of this
15
investigation.
16
MS COUTLÉE:
And are steps taken
17
to isolate that person from other potential
18
witnesses prior to interviewing?
19
INSP FITZPATRICK:
Absolutely.
20
That's one of the first responders' kind of main
21
things, is to identify the witnesses, ensure that
22
they are separated and cannot contaminate each
23
other.
24
larger group of people to get a piece of ID from
25
them and retain it so that they don't lose the
They will take steps as far as if it is a
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witness.
2
But very quickly the first
3
responders will get those witnesses and start the
4
interview process because the major crime team are
5
going to need all that information in order to
6
efficiently get in the direction that they need to
7
get into.
8
9
It gets down to demographics and
things like that, even as far as things like
10
sobriety of witnesses or whether they're going
11
to -- whether they are transient and things like
12
that.
13
So all those things are taken into
14
account and done as quickly as possible.
15
can't put these things off.
16
MS COUTLÉE:
17
neighbourhood inquiries?
18
How extensive are they?
You
And what about
How important are they?
How are they conducted?
19
DET INSP OLINYK:
20
echo Detective Inspector Olinyk's view on that.
21
We have canvass teams.
22
Again, I would
Obviously, or one of the big
23
things, we will canvass right at the outset as
24
early as possible is a video canvass.
25
investigators out to actually try and identify the
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last time this person was seen.
2
in a gas station or in the drug store or something
3
that led to the death.
4
that would be dealt with very quickly.
5
Perhaps they were
That would be one issue
But in terms of neighbourhood
6
physical door knocking it would be something that
7
was at the front end.
8
end loading our investigations.
9
of the issues that would be part of the
10
We often talk about front
That would be one
discussion.
11
And depending on the size and the
12
location and what parameters we had to deal with,
13
we would -- it would dictate who we'd get to do
14
that neighbourhood canvas, whether it would be --
15
we have a canvas team on call which is really a
16
Tac troop that we can call out.
17
knowing just what questions to ask and things like
18
that.
19
ground within short order.
They are trained,
We can assemble that and get them on the
20
Or it could be the detachment
21
plainclothes section that are assembled.
22
document everybody and every house and/or
23
apartment.
24
brought back to the command triangle and
25
statements are taken from them.
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If there is anything relevant it's
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In regards to how extensive you
2
would go, obviously an apartment situation you
3
would be knocking on many of the doors in that
4
apartment if they apply.
5
any sort of a view, you follow your evidence.
You know, if there is
6
If one of the neighbours said that
7
somebody on the fourth floor constantly walks past
8
here or maybe visits the deceased often.
9
would follow your evidence and you would continue
10
Then you
that until it's exhausted.
11
MS COUTLÉE:
In terms of
12
establishing the chronology of exactly when the
13
body was found and when the police was called and
14
what if anything happened in between, is that also
15
an aspect that's important?
16
INSP FITZPATRICK:
Absolutely
17
critical.
Our job at the very least is to gather
18
all the evidence and the best evidence.
19
best evidence is all the evidence.
And the
20
You have to account for every
21
minute by minute to paint the picture of what
22
happened and to put the pieces of the puzzle
23
together.
24
25
So, yes, absolutely critical for a
timeline and if there is any kind of suspicion
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involved then often that timeline is physically
2
put up on the wall and minute by minute account
3
for everybody to refer to, so that you can use
4
that information as the investigation unfolds.
5
MS COUTLÉE:
And I probably should
6
have asked Detective Inspector Olinyk earlier as
7
well, but can you explain to us, it's not
8
difficult to understand why the timeline of every
9
minute right before the death would matter but why
10
does the timeline of after the death matter?
11
INSP FITZPATRICK:
12
reasons to account for what happens with respect
13
to who came and went from the crime scene, for
14
example, what aspects of that time delay would
15
have influenced the decomposition of the remains,
16
for example.
17
Any number of
Who could have had opportunity to
18
come and go or witness something or see somebody
19
or what kind of timeline are we talking about in
20
order to gather video evidence if there is some
21
suspects that we need to account for?
22
It all gets down to the goal down
23
the road, trying to account for if there is a
24
suspect involved obviously with a suspicious
25
death, we will be interviewing them down the road.
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We all need to know exactly minute
2
by minute what too place so that when we interview
3
that individual we know whether his information is
4
valuable, whether it's deceptive, whether you know
5
he can account for that particular time.
6
So every piece of information is
7
useful down the road as part of the investigation
8
whether it be forensically, whether it be
9
physically for any number of reasons.
10
Really,
that's it.
11
MS COUTLÉE:
Thank you.
12
And Staff Sergeant Clark, if you
13
could comment on the same steps, so interviewing
14
the person who called in the death, how important
15
is it, how soon is it done; how is it done?
16
S/SGT CLARK:
Absolutely as my
17
colleagues said, all the points you're bringing
18
out are critical to any investigation.
19
interviewing of the first person is critical and,
20
in our cases -- and we are dealing now with
21
suspicious deaths.
22
The
Normally, the first responding
23
officer may run into that person.
24
called in and they are probably there.
25
They have
So it would be normally a quick
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verbal statement from that officer.
2
asking him, "Well, what happened, you know?" a
3
quick verbal, just probably memorizing what
4
they're being told and things are going on.
5
Should be
You can call in additional
6
resources.
That person right away should be
7
secured or basically separated from any other
8
witnesses so there is no contamination.
9
Witnesses are just major case
10
management as Edmonton works, as the other
11
agencies do, on a major case management model.
12
You don't let witnesses talk to one another.
13
don't let them get their stories straight.
14
want everybody to be independent of one another.
15
You
You
So witnesses have to be -- they
16
basically have to be triaged.
17
call in extra manpower to do that, whether it's
18
put them in their police car -- a lot of times we
19
tell our guys to keep them busy, get them to write
20
out a statement.
21
They would have to
So the first person may write out
22
a statement.
23
soon as we're contacted in the homicide unit we
24
would be telling the constables or they would
25
know -- they would already be transporting him
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But if it's a suspicious death as
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down to the closest police station; normally,
2
police headquarters because the homicide unit in
3
Edmonton works out of there.
4
audio/videotaped interview with that person
5
because they are a critical person.
6
MS COUTLÉE:
7
neighbourhood inquiries?
8
How extensive are they?
9
And we would do an
And what about
How important are they?
How are they done?
S/SGT CLARK:
10
different.
11
important.
Every scene is
They are very important, extremely
12
It's unbelievable the information
13
you get out of people that really don't even think
14
they saw anything and they tell you a critical
15
piece that could, you know, help you with a
16
vehicle, could help you with many things, the time
17
of death, all kinds of things.
18
We go door to door inquiries in
19
Edmonton.
20
even notified.
21
get the call within 15 minutes to half-hour of the
22
crime once they determine its suspicious.
23
They are usually started before I'm
If it's suspicious death I could
And usually when I'm on the call
24
we start the door to door inquiries.
25
sergeants on scene know.
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The
They will have the
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1
constables.
2
brought in, extra detectives from their division
3
could be helping out and they're already
4
canvassing the neighbourhood.
5
They will have extra patrolmen
We do extensive canvassing due to
6
the fact that we would go to every door to door.
7
As the inspector stated, we would be checking
8
businesses for video, that type of thing.
9
If people aren't home we record --
10
we have specific sheets on door to door inquiries.
11
We fill one out for every house.
12
home they would simply put "not home" and we would
13
know to follow up on that either later that day or
14
the next day or the next week.
15
If they're not
And again, every scene, every
16
crime scene is different.
17
how large an area you would cover.
18
on the scene.
19
So it's tough to say
It all depends
I can give you an example.
This
20
past weekend we had a homicide on Friday night in
21
front of a Chinese elders' mansion.
22
12-floor building where they all speak Chinese.
23
It happened right outside their windows and we had
24
to interview everyone that faced that crime scene.
25
That takes two full days, three detectives working
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at that.
2
So they can be quite extensive
3
and, depending, you know, you can enlarge the
4
area.
5
ran through a neighbourhood, you may enlarge that
6
area and continue on.
I you find out suspects have moved or they
7
MS COUTLÉE:
And if the deceased
8
is found in an apartment, would you interview
9
everybody in the building?
10
S/SGT CLARK:
Not necessarily.
It
11
depends.
12
apartment buildings.
13
floor and we made -- we usually would interview
14
above and below that floor determining noise, that
15
type of thing, what people have heard.
16
Again, we've had the investigations in
If it's happened on one
If we find out the building may --
17
noise may carry further, we may go further on
18
that.
Everyone is different.
19
I know this is a Military Police
20
Commission and I was in the military before I
21
joined the police force.
22
barracks or something like that.
23
military style of life if it happened something
24
like that, I would interview the whole building
25
because of the fact that the military guys tend to
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It was like in a
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know everybody on every different floor, whereas
2
apartment buildings in a big city, you probably
3
don't know anyone else in that building or you may
4
only know one or two people.
5
6
So when you're looking at
something like that, you may want to go further.
7
Again, every case is different and
8
it depends what information you have coming into
9
you.
10
MS COUTLÉE:
11
INSP. FITZPATRICK:
12
And -- yes.
Oh, okay.
Sorry.
13
I just wanted to make a
14
clarification.
15
Sorry.
16
I thought you were finished.
Talking to that initial witness,
17
it may be that we go back to them two or three
18
times and expand on that or have another
19
interviewer talk to them.
20
far as putting them before a polygraph, things
21
like that.
22
23
So the importance is very
critical.
24
25
Or we may even go as
MS COUTLÉE:
And in terms of
establishing the chronology of when the body was
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found, when the police was called and what, if
2
anything, happened in between, can you comment on
3
what's the important of that and -- the
4
importance, sorry, and why?
5
S/SGT CLARK:
6
Again, the time line is extremely important.
7
Absolutely critical.
You're trying to establish a time
8
of death, for one thing.
I mean, it's -- this
9
isn't like TV where they come to the -- you see
10
CSI Miami and they come there and they go, "Oh, he
11
died at 12:05".
12
13
In reality, that doesn't happen.
Coroners or medical examiners
can't tell you with any degree of certainty.
14
Basically, the information we
15
always get told by the medical examiners is we
16
ask, "Well, have you got a time of death for us,
17
doc?"
18
the time you found them.
19
there".
"Well, last time they were seen alive to
It's somewhere in
20
That's what they give you.
21
So the time line can be critical
22
in establishing that and we want to know what the
23
victims -- you know, what they were up to leading
24
up to their death.
25
them?
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And then, until the police take
2
over that investigation -- so once the first
3
police officer arrives on scene, his job is as a
4
diarist or continuity of the body.
5
stay with that body, the first police officer.
6
He's not to leave the body.
7
So he would
That way, we can always go to
8
Court and state that no, after police got there,
9
no one tampered with the body, nothing else
10
happened to that crime scene.
11
12
So that's critical.
So we basically need a time line
right up to when that police officer arrived.
13
And as the Inspector stated, it's
14
basically to -- further on down the investigation,
15
when we're interviewing witnesses, are they lying
16
to us, are they telling us the truth?
17
people with proper alibis for specific times?
18
19
Do we have
So it is a critical part of the
investigation.
20
MS COUTLÉE:
Thank you.
21
And Det. Insp. Olinyk, I did
22
neglect to ask you why it was important to
23
establish chronology after the death.
24
anything you'd like to add to what your colleagues
25
have said on this topic?
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2
DET. INSP. OLINYK:
No, I think
they covered it off very -- in a fulsome way.
3
You know, you have telephone calls
4
coming in, potentially, into the person's
5
residence, that sort of thing, that it all goes to
6
establishing a time line.
7
8
And no, I think they've got it
pretty much covered off.
9
MS COUTLÉE:
And I'd like to ask
10
now -- you've shared with us your knowledge and
11
expertise about the conduct of death
12
investigation.
13
Are you aware of any programs or
14
process to provide assistance to other police
15
forces who may have less expertise or who may
16
request it within your area?
17
18
And I will ask S/Sgt Clark for
starters.
19
S/SGT CLARK:
Oh, absolutely.
20
I mean, if we have smaller
21
jurisdictions around that have questions, we will
22
get calls -- you know, not every day, by any
23
means, but you know, perhaps every couple of
24
months requesting information about this or what
25
would you guys do in this situation.
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We liaise closely with the RCMP.
2
We have K Division right out of Edmonton, and we
3
have Shore Park and St. Albert, you know, major
4
urban areas outside.
5
investigations overlap, so we're always liaising
6
with those agencies.
7
So a lot of times our
Many times, we are requested by
8
other agencies to assist in -- actually in
9
investigations.
10
That usually comes through the
11
Chief of Police, though -- has to come through the
12
Chief of Police, actually.
13
directed by our Chief to either go assist in this
14
investigation or, you know, whatever expertise we
15
can provide.
16
17
And then we're
Sometimes we send a full team out.
Sometimes we send two investigators out.
18
As an example, we were sent to
19
Saskatchewan for an RCMP member who shot a person,
20
and we conducted a follow-up investigation in
21
regards to that.
22
MS COUTLÉE:
And to your
23
knowledge, has the Military Police sought
24
assistance from your service with respect to death
25
investigations in the past?
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S/SGT CLARK:
You know, in the
2
time I've been in Homicide, I haven't heard of one
3
that they've requested.
4
talked to Military Police officers in Edmonton,
5
but I don't recall one where we've actually
6
assisted them on it or been called out in the
7
Homicide section.
8
And you know, I have
Now, I don't know if they've had
9
sudden deaths and perhaps called patrolmen out or,
10
you know, requested and just a street level police
11
officer's gone.
12
that.
13
I wouldn't be able to answer
MS COUTLÉE:
And Det. Insp.
14
Olinyk, similarly, I would like you to provide us
15
with whatever knowledge you have of any process to
16
provide assistance to other Forces?
17
DET. INSP. OLINYK:
M'hmm.
18
First of all, we have -- in the
19
OPP, we have a provincial mandate, responsibility
20
to assist municipalities of municipal police
21
departments whenever they request it.
22
And again, you know, it goes from
23
the Chief to the Commissioner, the Chief of the
24
respective police agency.
25
will be called on to provide assistance with
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But quite often, we
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respect to what's primarily homicides, but major
2
cases.
3
folks out in Nova Scotia as we speak and Cape
4
Breton Island and Vancouver.
5
a couple of times.
And it's not only in Ontario.
6
We have
We've been out there
So it all depends on the request,
7
but that happens on a regular basis and we'll
8
provide that assistance.
9
First Nation police services, we
10
have a lot of still some fairly small municipal
11
departments still in Ontario where, of course,
12
we'll be providing assistance on a major case
13
management basis as well.
14
In terms of more formal training,
15
that sort of thing, there's a number of
16
conferences and major case management courses and
17
the like that go on in our province, and there are
18
representatives of pretty much all the departments
19
at some time or another that will attend, so --
20
but that's how we do it.
21
22
We work with, actually, our
municipal partners on a regular basis.
23
MS COUTLÉE:
And to your
24
knowledge, has the Military Police sought
25
assistance from your service in death
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investigations in the past?
2
DET. INSP. OLINYK:
Yeah, I can
3
think of one, and that was a case up here in
4
southern Ontario.
5
They --
6
7
I believe it was in Trenton.
MS COUTLÉE:
And you don't have to
provide details.
8
DET. INSP. OLINYK:
9
MS COUTLÉE:
10
Yeah.
I don't want you to
have to get into something --
11
DET. INSP. OLINYK:
That's the
12
only one that I'm aware of, and we did have a
13
member assigned to that, so...
14
MS COUTLÉE:
And Insp.
15
Fitzpatrick, if I could ask you the same question?
16
INSP. FITZPATRICK:
I think my
17
colleagues are pretty consistent with what my
18
answer's going to be.
19
A lot of the investigations I
20
think they're referring to would be as a result of
21
the RCMP policy that an independent agency now
22
investigates any police involved serious injury or
23
death involving an RCMP member, so it requires us
24
to go outside of our organization and have an
25
independent external agency come and investigate
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it.
2
And from that perspective, that
3
happens a lot in -- up until, actually, today
4
British Columbia has -- September 10th, they have
5
an independent investigative office similar to the
6
SIU or ASERT starting.
7
What we have with respect to E
8
Division and its policy throughout the country,
9
but was started in E Division, is the Offices of
10
Investigative Standards and Practices, so I think
11
in answer to your question, that would be a venue
12
or a unit that any external agency could come to
13
for advice on best practices, on getting involved
14
in Major Crime courses, different avenues of
15
investigation.
16
they do is review investigations for best
17
practices, for, you know, the basic review.
18
19
And also, a large part of what
Are they on the right track, have
they done the things they're supposed to do?
20
So we often get external agencies
21
right from the Province of British Columbia, the
22
income tax people, things like that, will turn to
23
us and they can go to the Offices of Investigative
24
Standards and Practices.
25
We have the Team Commander
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Accreditation Program that comes under the
2
Office -- the OISP office.
3
other agencies and other members from agencies
4
with terrific amounts of experience that are
5
accredited team commanders, and we do have sharing
6
of information.
7
And we have a lot of
They are part of a whole major
8
case management program that they take part and
9
have an equal influence over.
10
MS COUTLÉE:
And are you aware of
11
any requests by the Military Police for assistance
12
in death investigations cases in the past?
13
INSP. FITZPATRICK:
14
can only provide a couple of examples because I've
15
known people that have worked on them or had some
16
involvement.
17
Personally, I
Being the national police force, I
18
think that here in Ottawa there's a large
19
contingent of liaison people with the military.
20
I know of a number of
21
investigations that the RCMP have done on behalf
22
of the military in various parts of the world and
23
here in Canada.
24
any particular knowledge.
25
But I can't state specifically
I know that our -- if we, in
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British Columbia, are involved with anything to do
2
with a member of the Canadian Forces that there's
3
protocol and policy with respect to an
4
investigation that would follow up and what
5
reporting procedures would take place.
6
Very simply, I think it would be
7
that we would be in contact with the CO of the
8
base.
9
MS COUTLÉE:
And finally -- and
10
this is entirely my fault for not getting this
11
completely clear earlier.
12
You've all provided extensive
13
explanations about what's done at the scene, so I
14
don't want to go over that ground again.
15
want to make sure that I have this clear in my
16
head.
17
18
But I
Just simply about the wearing of
protective forensic gear.
19
If you could just confirm -- I'll
20
start with you, Det. Insp. Olinyk -- is it the
21
case that this type of gear is worn to enter the
22
scene every time there is suspicion and that it is
23
not worn when there is no suspicion, or is it more
24
complicated than that?
25
DET. INSP. OLINYK:
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No.
I mean,
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more often than not, our forensic officers will
2
be, in fact, gowned in biohazard suits pretty much
3
on any scene examination.
4
5
MS COUTLÉE:
Including
non-suspicious?
6
DET. INSP. OLINYK:
Oh,
7
absolutely, because there's also all kinds of
8
biohazardous issues that they may be going into.
9
10
So not only just on an evidentiary
note, but also on a biohazard note as well.
11
So these -- all these things
12
factor into that, but they're wearing them more
13
often than not.
14
time, I would venture to say.
15
Well, probably more -- all the
MS COUTLÉE:
And Insp.
16
Fitzpatrick, for the RCMP, is it the case that the
17
forensic suits are worn in all cases or are they
18
worn just when there's suspicion?
19
in what circumstances they're worn?
20
21
INSP. FITZPATRICK:
Can you explain
I think it's
very similar situation.
22
Obviously, if it's just a case of
23
going in and taking photographs, then that
24
forensic specialist will have -- he can make that
25
judgment call himself.
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But anything to do with
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any kind of major crime investigation where
2
there's going to be extensive crime scene, they
3
will be gowned up with what we call the bunny
4
suits and the footwear.
5
footwear any time they go in and out.
6
They will be removing the
Policy would state that they
7
frequently change their gloves, rubber gloves.
8
And if there's anything to do with any kind of
9
biohazard, blood, anything, they would be masked
10
and even as far as having the breathing apparatus
11
and so forth.
12
MS COUTLÉE:
So am I understanding
13
correctly, any time there's suspicion, the suits
14
will be worn, and when it's not suspicious, they
15
will not always be used?
16
Is that -- am I clear, or...?
17
INSP. FITZPATRICK:
18
That's a
difficult question.
19
I mean, situationally, if you're
20
outside in pouring rain type thing, would you --
21
it's more often than not, yes.
22
the situation that they're going into.
23
It's dependent on
They would do everything in their
24
training and I guess best practice that they would
25
use all those avenues and equipment that they're
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given.
2
THE CHAIRPERSON:
3
would it not be -- the scene will tell you more
4
specifically what type of footwear and suiting
5
you're going to wear versus anything else.
6
INSP. FITZPATRICK:
If I could add,
Exactly.
Like
7
S/Sgt Clark's example, someone off a bridge,
8
you're likely not going to be using those things.
9
MS COUTLÉE:
And S/Sgt Clark, if
10
you could comment on, generally, whether the suits
11
are worn all the time in suspicious cases and
12
whether they're also worn in cases where there is
13
no suspicion?
14
S/SGT CLARK:
Suspicious cases,
15
they are worn in Edmonton all the time, head to
16
toe.
17
Non-suspicious, we don't send our
18
Ident teams out, so the elderly female who dies in
19
the room, Ident teams don't go out to that, so
20
it's a non-issue.
21
Again, it depends on the scene.
22
As I went -- alluded in my example the other day
23
about the outdoor scene, outside the Chinese
24
elder's mansion, it's an outdoor scene in a
25
parking lot, so they didn't suit up in that scene.
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2
MS COUTLÉE:
For cases of apparent
suicide, would they use the suits?
3
S/SGT CLARK:
We wouldn't send our
4
Ident teams out to a suicide complaint.
5
many and too busy.
Just too
We don't have the manpower.
6
MS COUTLÉE:
7
THE CHAIRPERSON:
8
Col Drapeau?
9
Do we need a five-minute health
10
Okay, carry on.
EXAMINATION BY
13
14
COL (RET'D) DRAPEAU:
Inspector,
S/Sgt, go afternoon.
15
16
Thank you.
break, or is everybody okay to go?
11
12
Thank you.
I've got a question for you, Insp.
Fitzpatrick, and Det. Insp. Olinyk.
17
Insp. Fitzpatrick, you said, if I
18
heard you correctly, that the policy within the
19
RCMP, if a sudden death were to occur of an RCMP
20
member either at the workplace or whatever, that
21
the RCMP does not investigate it?
22
23
INSP. FITZPATRICK:
Maybe I didn't state that properly.
24
25
I'm sorry.
It's a death where an RCMP member
has some involvement, i.e. a police-involved
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shooting or a police-involved serious injury.
2
somebody was injured while being arrested, then an
3
independent agency is required to come and
4
investigate that part of the -- or that injury or
5
death.
6
And an example would be Fort St.
7
John detachment, a man is arrested.
8
struggle, breaks his arm and we have to have an
9
independent investigation with respect to that
10
If
He gets in a
incident.
11
A lot of times, there's a
12
statutory investigation that goes along with that
13
incident.
14
would investigate the statutory thing or the
15
statutory offence, and it would be an independent
16
police agency that would investigate the event
17
that led to the injury or the death.
18
COL (RET'D) DRAPEAU:
It would be the local jurisdiction that
Okay.
If it
19
were the death of an RCMP member, either at the
20
detachment or at the College, would the RCMP
21
assume jurisdiction then, investigate the death?
22
INSP. FITZPATRICK:
If it was an
23
on duty situation, absolutely.
24
the deaths that we have, Mayor Thorpe, that type
25
of thing, all investigated by the RCMP and the
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agency of jurisdiction.
2
If it was a death in another
3
jurisdiction for -- in my application, if it was a
4
death in Vancouver of, say, an off-duty RCMP
5
member, it would be Vancouver Police -- Vancouver
6
City Police's jurisdiction and they would
7
investigate it.
8
9
COL (RET'D) DRAPEAU:
And if it
occurred on RCMP property?
10
INSP. FITZPATRICK:
It would
11
likely be -- if it was a suspicious death,
12
absolutely.
13
we have the luxury of, in that instance, we would
14
probably bring investigators from my unit, the E
15
Division Major Crimes section.
16
likely handle it with some form of independence to
17
keep the investigation objective and out of the --
18
I guess the hands of the local Major Crime
19
investigators.
20
21
Okay.
Det.
Insp. Olinyk, would you comment on it, please?
DET. INSP. OLINYK:
Yes, very much
the same.
24
25
And we would
COL (RET'D) DRAPEAU:
22
23
The jurisdiction that it occurred in,
We -- if there's a member of the
Ontario Provincial Police that, you know, died as
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a result of whatever in the OPP jurisdiction, then
2
clearly the OPP would investigate that.
3
Quite often, again, in terms of a
4
local crime unit, for example, or local
5
investigators, we would try to, you know, go
6
outside the local area to have those investigators
7
brought in.
8
investigation.
9
10
COL (RET'D) DRAPEAU:
Okay.
That's all.
11
12
But yeah, we would definitely do the
DET. INSP. OLINYK:
If it's in --
I'm sorry, just one more thing.
13
Of course, if it's in a
14
municipality, another area of jurisdiction, then
15
it goes --
16
17
COL (RET'D) DRAPEAU:
That's what my question is.
18
Thank you.
19
MS RICHARDS:
20
THE CHAIRPERSON:
Thank
Okay.
I'm
assuming no re-exam.
23
24
No questions.
you.
21
22
Of course.
MS. COUTLÉE:
I have no questions,
thank you.
25
THE CHAIRPERSON:
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Gentlemen, I
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want to say thank you very much for attending and
2
taking yourself from your busy work lives.
3
S/Sgt, by the time you get back
4
home, you'll probably have another eight or nine
5
cases on your desk to do, so --
6
7
S/SGT CLARK:
six days, yes.
8
9
Three in the last
THE CHAIRPERSON:
Yeah, I can
appreciate that.
10
But I want to thank you all.
You
11
all possess the experience of -- I didn't add it
12
up, but it's getting close to 100 years of police
13
experience, and that is a valuable asset that
14
we're able to use in this inquiry, so thank you
15
very much for your time.
16
your commanders, whether it be the Commissioner of
17
the RCMP, the Commissioner of the OPP and the
18
Chief of Police from Edmonton for allowing you to
19
be here.
20
Thanks.
21
thanks.
22
some point, so thank you.
23
24
And thanks to each of
Please convey that
I'm sure we will by way of a letter at
That concludes for today.
We're
all set for tomorrow morning at 9:30.
25
Do we have -- maybe you could help
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me.
What do we have tomorrow?
2
MS. COUTLÉE:
We have two
3
witnesses, Mr. Chairman.
4
lost all credibility about time estimates, but I
5
will still say that I don't expect either of them
6
will be long.
7
8
And I know that now I've
THE CHAIRPERSON:
Okay.
Thank
you.
9
So we're adjourned until tomorrow
10
morning at 9:30.
11
--- Whereupon the hearing adjourned at 1709
12
to be resumed on Tuesday, 11 September 2012
13
at 0930 / L'audience est ajournée à 1709,
14
pour reprendre le mardi 11 septembre 2012
15
à 0930
16
17
18
19
20
21
22
23
We hereby certify:
24
That the foregoing is a true
25
and correct transcript of the
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reporting notes and recordings
2
so taken.
3
We further certify that none
4
of the reporting staff is
5
related to or an employee of
6
any attorney or of any of the
7
parties, nor financially
8
interested in the action.
9
We declare that the foregoing
10
is true and correct.
11
12
13
14
15
___________________
16
Lynda Johansson
17
18
___________________
______________________
19
Monique Mahoney
Susan Villeneuve
21
___________________
______________________
22
Karen Paré
Beverley Dillabough
20
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