Military police tampered with evidence in sexual assault investigation, Ontario Superior Court judge rules

CBC

28-01-2025

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WARNING: This article may affect those who have experienced​ ​​​sexual violence or know someone affected by it.
Canadian military police tampered with evidence, showed bias and acted beyond the scope of their jurisdiction during an investigation, with the misconduct "so egregious" that an Ontario Superior Court judge stayed assault and sexual assault charges against an active member of the Canadian Armed Forces (CAF).
In a decision earlier this month, Ontario Superior Court Justice Cynthia Petersen of Brampton said that a stay was a "drastic" but necessary measure in the case because the actions by military police ultimately breached the member's Charter rights not to be deprived of his liberty and security of his person except in accordance with principles of fundamental justice.
The decision was issued just days before jury selection and the trial of the active CAF member, who faced four counts of sexual assault and one count of assault, involving incidents alleged to have occurred from 2007 to 2011.
In her written decision, Petersen criticized the Canadian Forces National Investigation Service (CFNIS), stating that its misconduct "in this case is so egregious and systemic that it shocks the community's conscience."
During pretrial testimony, she noted the investigators made numerous attempts to "conceal, downplay and rationalize their misconduct."
In a statement, a spokesperson for the Office of the Canadian Forces Provost Marshal, which oversees the CFNIS, said it respects the decision made in this case and that the CAF's Office of Professional Standards has launched its own investigation.
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The Military Police Complaints Commission, the civilian oversight agency, would not confirm whether it had received a complaint about this matter but said it was "deeply troubled by the findings of the court."
Edmonton-based defence attorney Austin Corbett said he is "gratified by the decision" and his client is considering possible legal action against the CFNIS.
Ontario's Ministry of the Attorney General, which represents the Crown in this case, did not confirm if it intended to appeal the decision.
Investigation began in 2021
According to the undisputed facts in this case, the CFNIS launched an investigation in 2021 after the complainant, a reservist, reported 13 years of intimate partner violence to military police in Edmonton.
The decision outlines the complainant's initial reports, in which she described her husband as both physically and verbally abusive. She said he threatened to kill her twice and recounted several violent altercations. The reservist claimed he "never strangled or raped" her but noted she often drank alcohol to feel comfortable engaging with her husband, who frequently pursued sex with her.
She characterized these experiences as "routine" and "part of a cycle of rage and abuse."
The decision also notes that the couple has since separated and was embroiled in a custody battle during the same period that military police conducted their investigation into the alleged abuse.
Military police officers based in Alberta arrested and charged the defendant with two counts of assault months after the initial report, but the Alberta Crown eventually dropped those charges.
Military police continued to investigate allegations said to have occurred while the couple lived in Ontario. The CFNIS is authorized to investigate and charge a person for alleged offences while they are members of or on a CAF base.
In this case, the couple met in 2007 as civilians while living in Ontario and moved to Alberta in 2013, when the defendant joined the military, according to the undisputed facts included in the judge's decision. The defendant was eventually arrested by Alberta military police officers in May 2022 and charged with four counts of sexual assault and one count of assault in connection with offences alleged to have occurred in Ontario.
During their pretrial testimony, investigators argued that the allegations of abuse, which spanned 13 years across the two provinces, fell under CFNIS jurisdiction because they were part of "a single continuous pattern of offending" and could not be handled separately.
However, the judge sided with the defence, which argued that the service had no right to investigate or pursue charges in Ontario because the alleged abuse occurred before the husband joined the military.
The investigators continued their work despite an announcement by the minister of national defence in November 2021 that allegations of criminal offences of a sexual nature should be handed over to civilian police forces.
Military police showed bias, judge says
In Petersen's decision, she writes how the officers involved admitted to "taking steps during the investigation that were unlike anything they had ever done in any other case." All were done to benefit the complainant, particularly in the concurrent custody battle between her and the defendant, the judge wrote.
All three investigators agreed to interviews by a psychologist for a parenting assessment as part of family court proceedings.
"They did so voluntarily, despite knowing that CAF policy dictates they should not get involved in family court matters," wrote Petersen. In doing so, they also divulged confidential information about the case.
At one point, officers handed over a forensic copy of the complainant's cellphone records, which included not only the original data found on the device but also additional information, including deleted messages from her husband. The judge noted that this could have been used as evidence against the complainant in family court.
At her request, an officer also looked into whether there were outstanding investigations into the complainant's conduct by military police or the RCMP, although he later testified in pretrial hearings that "this was not standard CFNIS practice."
Petersen sided with the defence, stating that one investigator in particular developed a "cosy" and "problematic" relationship with the complainant, failing "to maintain a professional distance."
The decision details how this investigator provided the complainant with free tickets to a basketball game and helped her rehouse a cat left by the defendant, while also maintaining frequent, off-the-record correspondence.
Petersen wrote all these actions "demonstrate a bias in favour of the complainant."
Discussions not properly documented
Petersen also wrote that investigators "systematically failed" in their duty to preserve and disclose relevant evidence in the case.
The judge noted that military officers knowingly used faulty recording equipment during witness interviews. They repeatedly failed to properly document relevant discussions and meetings with each other and the complainant about the investigation.
At one point, an investigator "prompted the complainant to embellish or re-characterize her allegations of sexual offences during a followup interview."
"In your previous statements, you said that [your husband] was not taking no for an answer and that there were about three to four times that you described ... some type of non-consensual sex occurred," reads a segment from that interview's transcript.
The complainant responded with new allegations, including non-consensual oral sex, as well as vaginal and anal intercourse.
Petersen described this as "at best, unacceptable police negligence, and at worst, wilful police misconduct designed to elicit a different statement from the complainant than what she originally provided to the military police."
The judge suggested this was done because investigators disagreed with the Alberta Crown's decision not to lay charges of sexual offences based on the original statement and were hoping to avoid a similar outcome in Ontario "unless they obtained a more inculpatory statement."
Other correspondence such as phone calls and text messages between an officer and the complainant was discovered to have been withheld during disclosure, in which parties are legally obligated to hand over all relevant evidence in a case.
When asked for the missing messages, one investigator "destroyed the original evidence in her possession," citing a technical malfunction, according to the decision.
The officers' "lack of understanding of the scope of their legal duty to document and disclose all communications with the complainant ... is deeply troubling," Petersen wrote.
Calls for transparency, public inquiry
In the wake of Petersen's ruling, legal experts are voicing serious concerns about the operations of the CFNIS and the implications for military justice.
"There was a lot missing," Corbett, the defence attorney in this case, said of the gaps in evidence.
"It took months of work and repeated requests to the Crown prosecutor's office and from the Crown prosecutor to the police in order to slowly sort of piece together a lot of the missing pieces."
He said he and his client were also deeply troubled by the behaviour of the investigators, who "put the thumb on the scales of justice with regards to the family court proceedings."
Retired colonel Michel Drapeau, a military law expert, expressed his astonishment at the level of misconduct.
"I have never seen anything like it."
Drapeau is among the growing number of voices calling for a public inquiry into the operations of military police in Canada. He said this case is just another reason why one is necessary.
"How many other cases have these individuals been involved with?"
Rory Fowler, a retired legal officer based in Kingston, Ont., said misconduct by military police is not a new issue, but called the magnitude of it in this particular case unprecedented.
"What this case represents is an abject example of a failure over the course of many years to hold investigators accountable for misconduct and so it gets repeated."
He echoed the call for a public inquiry — a necessary step, he said, toward transparency and systemic change in Canada's military operations.
Support is available for anyone who has been sexually assaulted through crisis lines and local support services via this Government of Canada website or the Ending Violence Association of Canada database