Military Police                                         Commission d'examen des
Complaints                                              plaintes concernant
Commission                                              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/
            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

Mr. Glenn Stannard                                      Chairperson/Président
Ms Raymonde Cléroux                                     Registrars/Greffières
Ms Hanan Rahal

Ms Geneviève Coutlée                                    Commission counsel/
Mr. Mark Freiman                                        Avocats de la Commission
Mr. Rob Fairchild

Ms Elizabeth Richards                                   For/pour Sgt Jon Bigelow, MWO Ross
Ms Korinda McLaine                                      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                           For/pour Mr. Shaun Fynes and
Ms Marie-Christine Fortin                               Mrs. Sheila Fynes

HELD AT:                                                TENUE À:
10th Floor                                              10e étage
270 Albert Street                                       270, rue Albert
Ottawa, Ontario                                         Ottawa (Ontario)
10 September 2012                                       10 septembre 2012
                                         Volume 44

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                         - ii -



EXAMINATION BY MR. FREIMAN                              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:     S/SGT WILLIAM CLARK                       163
SWORN:     INSP BRENDAN FITZPATRICK                  163
SWORN:     DET. INSP. WILLIAM OLINYK                 163

EXAMINATION BY MS COUTLÉE                            166

EXAMINATION BY COL (RET'D) DRAPEAU                   302

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                           - iii -

NO.                      DESCRIPTION                   PAGE

P-151    Witness Book for Lieutenant
         Colonel Bruce MacGregor                           1

P-152    Accountability, Independence
         and Consultation Documents
         provided by Ms Richards                          61

P-153    Director of Military Prosecutions'
         Policy Directive 009/00,
         Communications with Unit Legal
         Advisors                                         61
P-154    Director of Military Prosecutions'
         Policy Directive 005/99,
         Communications with Service
         Authorities                                      61

613-521-0703              StenoTran

1                        Ottawa, Ontario / Ottawa (Ontario)

2    --- Upon resuming on Monday, September 10, 2012

3           at 0931 / L'audience reprend le lundi

4           10 septembre 2012 à 0931

5                        THE CHAIRPERSON:     Good morning.

6                        Mr. Freiman...

7                        MR. FREIMAN:     Good morning,
8    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                       MS RAHAL:   It will be Exhibit

13   P-151.

14                           EXHIBIT NO. P-151:      Witness

15                           Book for Lieutenant-Colonel

16                           Bruce MacGregor

17                       MR. FREIMAN:     Thank you very much.

18                       Our witness for this morning is

19   Lieutenant-Colonel Bruce MacGregor.

20                       THE CHAIRPERSON:     Good morning,

21   sir.     Welcome.



24                       MR. FREIMAN:     Good morning,
25   Lieutenant-Colonel MacGregor.

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1                         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                         LCOL MacGREGOR:   Good morning, Mr.

6    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.         I was

11   admitted to the Nova Scotia Bar Society in 1991,

12   and I practised for six years in New Glasgow, Nova

13   Scotia.        My primary area of law that I practised

14   was criminal law.        I did, primarily, criminal

15   defence, although I was a federal prosecutor.             I

16   was a Town of New Glasgow prosecutor.        I did

17   environmental prosecutions, I did drug

18   prosecutions, I did some administrative law.          I

19   was the junior counsel involved in the Westray

20   matter, as counsel for Curragh, until they no

21   longer were a company.

22                        So I have an extensive criminal

23   defence background.

24                        And then I joined the military and
25   went to Victoria for my first posting in 1997.                I

     613-521-0703              StenoTran

1    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                   I, in fact, deployed with the Navy

5    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.       One

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                  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.    That was for a

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

     613-521-0703        StenoTran 

1    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.        My

7    focus on that was administrative law, and my major
8    paper was "Procedural Fairness of Military Boards

9    of Inquiry".

10                   In 2006 I graduated, and they put

11   me back as the Deputy Director of Military

12   Prosecutions.   I was the Deputy Director of

13   Military Prosecutions from 2006 until January

14   2009.

15                   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.     There were 10,000

21   troops, and I was the sole legal advisor to the

22   Force in Khartoum.   That was a deployment of six

23   months.

24                   Following that I came back in
25   August of 2009 and became the Director of Military

     613-521-0703         StenoTran 

1    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                      I did that until we changed the

9    operations' dynamic of the Military Justice -

10   Policy and Research, and I became the Director of

11   Military Justice - Operations.       That was a new

12   position, established April 1st, 2011.

13                     Then, in the summer of 2011 I

14   became the Director of Military Justice -

15   Strategic.     So that, again, was looking at the

16   legislative reform of -- basically, our fourth

17   attempt at trying to get legislation through in

18   response to the 2003 Lamer Report.

19                     My career has been very much on

20   the military justice side.       My pre-military career

21   had very much been on the criminal justice side.

22   So here I am today.

23                     MR. FREIMAN:     If it weren't a

24   conflict, I would ask you to talk a little bit
25   more about procedural fairness.       I'm giving a

     613-521-0703           StenoTran 

1    paper on it tomorrow --

2    --- Laughter / Rires

3                    MR. FREIMAN:       -- and I could use

4    all the help I can get.    But I won't ask about

5    that.

6                    What I will ask, though, is about

7    your current position.
8                    This may or may not strike you as

9    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                   It's not just the operation, but

14   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.

     613-521-0703           StenoTran 

1                    So I have a plethora of all three,

2    I think.

3                    MR. FREIMAN:       You run the gamut.

4                    LCOL MacGREGOR:       I do.

5                    MR. FREIMAN:       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:       Without taking up

13   the entire morning, we start off with the Judge

14   Advocate General, who is appointed, obviously.             I

15   think you are familiar with it.

16                   We have the documentation that has

17   been provided to me -- thank you -- at Tab 2.

18                   The JAG is appointed by the

19   Governor in Council.

20                   MR. FREIMAN:       Yes.

21                   LCOL MacGREGOR:       His appointment

22   is set out in section 9 of the National Defence

23   Act.

24                   His role is set out in
25   "Superintendence of military justice", under 9.2

     613-521-0703           StenoTran    

1    of the National Defence Act.

2                       But we have the JAG, and then we

3    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.    I was part of the internal advocacy to say:

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

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.     We

16   have Operations.     We have Regional Services.    That

17   colonel is responsible for all of the AJAG offices

18   across the country and in Europe.

19                      And we have a chief of staff, who

20   is also a colonel.

21                      I think there are seven in total.

22   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

     613-521-0703           StenoTran

1    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                  That's Military Justice -

13   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:      I would like you to

     613-521-0703        StenoTran  

1    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

     613-521-0703          StenoTran

1    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.   We have an

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 AJAG in Geilenkirchen,

24   Germany, that supports our troops in Europe.       That
25   is actually AJAG - Europe, which deals with the

     613-521-0703        StenoTran  

1    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?        The NIS has one source and the Military

11   Police, non-NIS, have a different source.

12                        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

     613-521-0703              StenoTran  

1    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.     We have a number

7    of -- we have the DMP and, I believe, two DDMPs
8    here in Ottawa.

9                      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.     We have one of -- one

14   of the regional DDMPs in Victoria.

15                     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,

     613-521-0703          StenoTran

1    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.      I did a

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                      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

     613-521-0703           StenoTran

1    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:    M'hmm.

13                    MR. FREIMAN:    -- from legal

14   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.   It's not -- those legal

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                    MR. FREIMAN:    Okay.   So their

     613-521-0703         StenoTran  

1    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                       LCOL MacGREGOR:    Absolutely.    As I

6    did in Victoria.

7                       MR. FREIMAN:    All right.
8                       So I want to turn to military

9    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.       Absolutely,

23   they have an opportunity to talk to prosecutors.

24                      And we have -- if the focus of
25   your question is asking how do prosecutors deal

     613-521-0703           StenoTran 

1    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:      Can you give us the

10   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:      Yes.

21                    LCOL MacGREGOR:      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:      Okay.   Well, in

     613-521-0703           StenoTran  

1    words of -- or in brief, what is the protocol for

2    that sort of communication?

3                   Is it direct, is it indirect?        How

4    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.

     613-521-0703          StenoTran

1                     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                    They being the prosecutors and

12   unit legal advisers:

13                          "...ensure proper coordination

14                          while still maintaining the

15                          independence necessary to

16                          exercise prosecutorial

17                          discretion."

18                    LCOL MacGREGOR:      Correct.

19                    MR. FREIMAN:      So that's the goal

20   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:      Okay.     Well, I

     613-521-0703           StenoTran    

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.      You're

6    not disclosing that legal advice to the -- to the

7    legal advisers in the AJAG offices.
8                   The AJAG offices, they give their

9    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:     Okay.   And I think I
25   got us off on the wrong foot by calling them

     613-521-0703        StenoTran  

1    silos, which is the term I'm used to looking in

2    terms of government operations.      But let's look at

3    it from a legal point of view.

4                      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.    But in private practice,

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

     613-521-0703          StenoTran  

1    sort of documentation.

2                      Is that degree of formality

3    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:     Okay.   I --

22                     LCOL MacGREGOR:     -- mentioned

23   ethics, though, sir, and I think that's very

24   important.
25                     Just because we're legal officers

     613-521-0703           StenoTran  

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:        Yeah.
8                   LCOL MacGREGOR:        -- in terms of

9    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                  What I was intending to ask you

20   is, is that the practice --

21                  LCOL MacGREGOR:        Yes.

22                  MR. FREIMAN:        -- within the

23   Prosecution Service?

24                  And so for any given file, or is
25   for all prosecution files that listed people have

     613-521-0703           StenoTran   

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                  And I'll see if I can point that

12   out to you.

13                  MR. FREIMAN:        Yes, I'd like to see

14   that, if you don't mind.

15                  LCOL MacGREGOR:        Okay.

16   --- Pause

17                  LCOL MacGREGOR:        Okay, I'm going

18   to take you, sir, to the Accountability,

19   Independence and Consultation Policy.

20                  MR. FREIMAN:        Yes.

21                  LCOL MacGREGOR:        And I'll refer

22   you to paragraph 27.    Okay.

23                  And I'll go through that for the

24   record:
25                          "Generally, legal advice given

     613-521-0703           StenoTran    

1                          by a prosecutor to

2                          investigative agencies is

3                          protected by solicitor-client

4                          privilege.    A prosecutor may

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

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.      But it was my

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

     613-521-0703          StenoTran 

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:     Okay.     Well, I'll
8    take you through -- if I may, I'll just take a

9    quick look at the service level agreement.

10                       MR. FREIMAN:     That's Tab 6 of your

11   book.

12                       LCOL MacGREGOR:     Yeah.     That's

13   Annex A.       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

     613-521-0703             StenoTran    

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:       Right.

16                  MR. FREIMAN:       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

     613-521-0703          StenoTran  

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                  MR. FREIMAN:      I -- believe me, I

13   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.

     613-521-0703         StenoTran    

1                      There's a certain independent

2    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                     MR. FREIMAN:     Okay.   Maybe I can

19   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

     613-521-0703           StenoTran  

1    accused -- or who face military justice.

2                      LCOL MacGREGOR:     Right.

3                      MR. FREIMAN:     Can you explain how

4    that's organized and what its relationship is to

5    the other units within the JAG?

6                      LCOL MacGREGOR:     Sure.     And that's

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

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.     I believe seven -- there's seven legal

16   officers that provide defence counsel services to

17   military members.

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.       And it's four years as

22   well.

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

     613-521-0703           StenoTran    

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.       Generally, it's members who are
8    suspected of or have been charged with a service

9    offence.       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:     Well, because

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                       But there are policies that speak

     613-521-0703             StenoTran  

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.     What we're looking

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   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

     613-521-0703        StenoTran   

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.    If there aren't, I'll just go on,

     613-521-0703          StenoTran 

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.      I understand

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.

17                  MR. FREIMAN:       Well, Ms Richards

18   attributes a degree of subtly to me that I'm

19   afraid I can never live up to.      I have no other

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                  THE CHAIRPERSON:       Colonel Drapeau,

     613-521-0703          StenoTran 

1    do you have anything you wish to add?             I didn't

2    want to leave you out.

3                         COL (RET'D) DRAPEAU:     No.

4                         THE CHAIRPERSON:     Okay.

5                         MR. FREIMAN:     Mr. Chairman, I

6    think I'm going to volunteer to go on, because I

7    can ask similar questions.          I thought this would
8    be an easy way of understanding the structural

9    makeup.        If we can't do it this way --

10                        THE CHAIRPERSON:     Yeah.

11                        MR. FREIMAN:     -- we'll do it a

12   different way.

13                        THE CHAIRPERSON:     And I understand

14   where you are, Ms Richards, but it also helps me

15   understand some of the structure to it.             JAG isn't

16   an area that I have had an education background in

17   myself.        I understand where we're going and what

18   we need to do, but it does help me in

19   understanding a little more about JAG, too.

20                        MR. FREIMAN:     Okay.

21                        THE CHAIRPERSON:     Go ahead.     Go

22   ahead say.        You have something on your mind.

23                        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

     613-521-0703              StenoTran  

1    and reached certain conclusion upon in a different

2    forum.     So our concern is not having those issues

3    overlap, or having any appearance that there's

4    overlapping in those issues.

5                       THE CHAIRPERSON:    I agree.

6                       MR. FREIMAN:    Fine.   And I can

7    assure Ms Richards that my retainer is restricted
8    to this inquiry.     I have no interest and I have

9    mandate to stray into any other areas.

10                      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:    Okay.

15                      As mentioned earlier, we have the

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.        That's really the

21   structure of the Canadian Military Prosecution

22   Service.

23                      We have the National Investigation

24   Service, we have a CO of the National
25   Investigation Service, and we have national

     613-521-0703           StenoTran    

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.   I was the sole Deputy Director of

13   Military Prosecutions at that point.     They didn't

14   decide to make it into three different deputy

15   directors until after I left, kindly enough.

16                   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                   MR. FREIMAN:     Okay, can I just

23   stop there?

24                   We're talking about providing
25   advice to the NIS via the Embedded Prosecutor.

     613-521-0703         StenoTran 

1    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                   LCOL MacGREGOR:      Actually, I'm

6    referring to both.

7                   MR. FREIMAN:      Okay.
8                   LCOL MacGREGOR:      Okay?     So you

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                  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.     We also have

17   Regional Military Prosecutors that give legal

18   advice to the NIS investigators in those regions.

19                  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

     613-521-0703         StenoTran    

1    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.     Even process.    The Charter.       All

7    of those types of things were legal advice given
8    by prosecutors.

9                       MR. FREIMAN:    Okay.    But we're

10   talking about a single Embedded Prosecutor.           What

11   sort of support does that prosecutor have in

12   dealing with questions that may arise?         Because,

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.

18                      LCOL MacGREGOR:    No.    If I was

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,

     613-521-0703           StenoTran   

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                     LCOL MacGREGOR:    Are you talking

12   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:    Sure, yeah.
25                     Well, if you're talking those

     613-521-0703          StenoTran    

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.    But if we had a concern about

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                     MR. FREIMAN:      All right.    Let me

10   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".    In almost every case the issue is:

15   what legal advice is necessary before the police

16   are ready to propose a charge?

17                    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.        In some provinces there

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                    I understand that there is a

     613-521-0703          StenoTran   

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.     Now you

10   just said "police".        Are you talking Military

11   Police or are you talking the NIS?

12                        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.        The third group of persons that can lay a

23   charge under the Code of Service Discipline are

24   NIS investigators, not the Military Police writ
25   large.

     613-521-0703              StenoTran    

1                   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.     As peace officers under

7    the Criminal Code, they can lay charges outside
8    of --

9                   MR. FREIMAN:       Yes.

10                  LCOL MacGREGOR:       -- the Code of

11   Service Discipline, and you've probably had

12   evidence on that already.       If they do do that,

13   they have an ability to talk to Crown counsel

14   outside of the military.

15                  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.

     613-521-0703        StenoTran    

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.    We're not talking

18   about the Embedded Prosecutor right now, we're

19   talking about a different sort of advice.      Is that

20   right?

21                  LCOL MacGREGOR:     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

     613-521-0703        StenoTran 

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.

     613-521-0703        StenoTran

1                   MR. FREIMAN:     Okay.     And that's

2    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?      If, from their
8    own analysis, they decide that there is no reason

9    to lay a charge, is there any need to get legal

10   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:     Yes.     And I want

22   to go back, because I just wanted to make sure

23   that I was not misleading in any way this hearing.

24                  If I can take you to Tab 7 of the
25   documents here, and I'll take you to page 4, and

     613-521-0703        StenoTran    

1    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.    So in addition to the Regional
8    Military Prosecutors, the Embedded Prosecutor can

9    also give pre-charge screening advice in

10   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.     But under 107.03,

20   before they lay a charge, if they meet that

21   criteria of 107.03, they have to seek legal

22   advice --

23                    MR. FREIMAN:     Right.

24                    LCOL MacGREGOR:     -- of somebody
25   from CMPS.

     613-521-0703          StenoTran  

1                     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.       They don't

6    need to vet their own legal research with anyone

7    in the JAG, do they?
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.    They have to present the

24   relevant member of the Military Prosecution
25   Service with a brief.

     613-521-0703           StenoTran 

1                   Can you tell us what's in that

2    brief?

3                   LCOL MacGREGOR:        Oh, in terms of

4    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.        That's given towards,

9    you know, the prospect that there will be a charge

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.        We are just

20   going to talk about pre-charge screening.

21                  LCOL MacGREGOR:        Okay, all right.

22                  So then this, fair enough, this is

23   directly on point to your question.        So this is at

24   Annex B, sir, at Tab 6.
25                  MR. FREIMAN:        Yes.

     613-521-0703        StenoTran     

1                   LCOL MacGREGOR:     And this is the

2    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."    (As read)

23                  So that affords the prosecutor the

24   opportunity to have sufficient information to be
25   able to give that legal advice under 107.03.

     613-521-0703        StenoTran 

1                      MR. FREIMAN:     What's in the RNP

2    brief?

3                      LCOL MacGREGOR:     In the RNP brief

4    that could be statements.       That could be

5    information about the witness.       You know,

6    generally the witness's address, phone number, et

7    cetera, et cetera.
8                      The RNP brief can really -- that

9    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:     Is there any

13   standard that you could refer us to for what

14   should be in an RNP brief?

15                     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.

     613-521-0703           StenoTran 

1                      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                      I'm not sure exactly where they

9    are specifically on the format and the information

10   contained in the RNP brief.      But certainly it's

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                     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.    Is the RNP brief the same as or

21   different from one of the GO files?

22                     LCOL MacGREGOR:    I haven't seen

23   what you're talking about.

24                     MR. FREIMAN:    We'll get you one in
25   a second.

     613-521-0703          StenoTran 

1                   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.       I'm

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                   LCOL MacGREGOR:        Well, I mean,

9    that's a difficult question without me seeing

10   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.     They tried to -- I'll give

21   you specifically, sir --

22                  MR. FREIMAN:        Here is a GO file.

23                  LCOL MacGREGOR:        Thank you.

24                  MS RICHARDS:        Just to declare on
25   the record because we have had evidence on what

     613-521-0703           StenoTran 

1    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                       MR. FREIMAN:    Well, then I take it

9    we don't have a GO file.        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:    Okay.
25                      LCOL MacGREGOR:    Okay.

     613-521-0703           StenoTran    

1                    So I have just taken a very

2    cursory view, sir, of this document that you

3    provided me.   And GO file, just for the record, is

4    a general occurrence file.     That's what GO means

5    or GO stands for.

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.     And that led us

15   to strive for a more organized management of this.

16                   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

     613-521-0703         StenoTran  

1    computer like that, but unless it's formatted

2    properly it's not very helpful.     If it's printed

3    off like that it would give somebody the first

4    impression that they are very disorganized.

5                   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.     That's what we

11   were striving for when I was in DMP and I think

12   that that's -- they have come a long way since.

13                  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

     613-521-0703        StenoTran  

1    compiled by someone else?

2                     LCOL MacGREGOR:     I don't think --

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?    We've got to stop.    We can't -- we're not

13   going down this road where we can get into a

14   criminal investigation or a disciplinary

15   investigation.

16                    MR. FREIMAN:     Well, I am aware of

17   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                    LCOL MacGREGOR:     Well, I guess

24   that is going to be on a case by case basis.
25                    I mean Westray was actually a good

     613-521-0703          StenoTran 

1    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                     MR. FREIMAN:      But that's in fact

13   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:      Right.

19                     MR. FREIMAN:      Is the product of

20   that process capable of forming part of the

21   screening package?

22                     MS RICHARDS:      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

     613-521-0703           StenoTran  

1    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                  LCOL MacGREGOR:      There is nothing

12   wrong with that question.

13                  MS RICHARDS:      That's fine, as long

14   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.   This is stuff that's not going

24   to assist us in making a determination as to
25   whether or not all of the elements of the offence

     613-521-0703         StenoTran 

1    are met".

2                        MR. FREIMAN:     Okay.   I think this

3    is probably a good time to take a break.

4                        MS RICHARDS:     But before we break,

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:     No, we --

10                       MS RICHARDS -- as testimony goes

11   on, maybe we should do that before the break.

12                       THE CHAIRPERSON:     Okay.     We can do

13   it now.

14                       MS RICHARDS:     So we --

15                       The CHAIRPERSON:     I don't know

16   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.       I provided them to counsel.

20                       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:     Exhibit P-152.
25                            EXHIBIT NO. P-152:

     613-521-0703             StenoTran    

1                        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:     Exhibit P-153.

9                        EXHIBIT NO. P-153:     Director

10                       of Military Prosecutions'

11                       Policy Directive 009/00,

12                       Communications with Unit Legal

13                       Advisors

14                  MS RICHARDS:     And the third would

15   be Director of Military Prosecutions' Policy

16   Directive 005/99, Communications with Service

17   Authorities.

18                  MS RAHAL: Exhibit P-154.

19                       EXHIBIT NO. P-154:     Director

20                       of Military Prosecutions'

21                       Policy Directive 005/99,

22                       Communications with Service

23                       Authorities

24                  MS RICHARDS:     Oh, I am told
25   there's already a 152, although I think --

     613-521-0703        StenoTran 

1                       MS RAHAL:    That wasn't entered.

2                       MS RICHARDS:    Pardon me?

3                       MS RAHAL:    That wasn't entered.

4                       MS RICHARDS:    Yes, okay.

5                       Thank you.

6                       THE CHAIRPERSON:    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:    Yes, Mr. Chair.

13                      There is just an issue I wanted to

14   address briefly.     It follows up from an objection

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                      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

     613-521-0703           StenoTran 

1    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.     Indeed, you won't be

5    making recommendations or findings on that issue.

6                    THE CHAIRPERSON:     Mr. Freiman?

7                    MR. FREIMAN:     In my submission the
8    mandate that you have is to investigate the

9    complaints before you.   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.   It is certainly the case that your

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.

23                   COL (RET'D) DRAPEAU:     If I may?

24                   THE CHAIRPERSON:     Yes, Colonel
25   Drapeau.

     613-521-0703         StenoTran 

1                    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.     Because

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                   If Colonel MacGregor can shed

     613-521-0703        StenoTran  

1    light on it I think it'll add assistance

2    ultimately into the pursuit of the truth.           If he

3    does that I don't see why we would object to it.

4                       THE CHAIRPERSON:    Ms Richards.

5                       MS RICHARDS:    And just to be

6    clear, I am not objecting to the testimony of

7    Lieutenant-Colonel MacGregor.       At the risk of
8    surprising many people, I agree completely with

9    what Mr. Drapeau has just said.

10                      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.             I

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                      But in addition, we may or I may

24   or may not choose to make some observations or
25   findings within our report.       I have no

     613-521-0703           StenoTran    

1    pre-conclusion as to what they may or may not be.

2    That's long down the road.

3                         But in terms of, is this a tool to

4    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                        We didn't talk about you, though.

21   --- 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.

     613-521-0703             StenoTran 

1                   As I understand it, an

2    investigation may be conducted in different forums

3    or on different stages.     One stage is the

4    assessment stage and another stage is the

5    investigative stage.

6                   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.     I mean I can offer

11   conjecture but I'm not so sure that that's useful

12   to this Commission.

13                  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:        If we are talking

     613-521-0703           StenoTran 

1    the NIS -- I think you are talking about the

2    NIS --

3                   MR. FREIMAN:     Yes.

4                   LCOL MacGREGOR:     -- the NIS are

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                   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,

     613-521-0703        StenoTran 

1    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

     613-521-0703        StenoTran

1    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:     Right.

11                      MR. FREIMAN:     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                      MR. FREIMAN:     That is the embedded

18   prosecutor, it's not --

19                      LCOL MacGREGOR:     Yes.

20                      MR. FREIMAN:     In fact, I was going

21   to ask the question in an even larger framework,

22   which is:      Is there any policy or protocol as to

23   whom the NIS should turn to, whether the embedded

24   legal advisor or the RMP?
25                      LCOL MacGREGOR:     Not that I am

     613-521-0703            StenoTran   

1    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                    LCOL MacGREGOR:     For the Military
8    Police or the NIS, or both?

9                    MR. FREIMAN:     Both.

10                   LCOL MacGREGOR:     For both.   As

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                   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

     613-521-0703        StenoTran  

1    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:     Sure.

13                     MR. FREIMAN:     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                     I think I can find it for you.

22   --- 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.

     613-521-0703           StenoTran    

1                   Let me see if I can find it in

2    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                   MR. FREIMAN:       All right.   So let's

7    look at --
8                   Let me see if I can find it

9    elsewhere.

10                  Am I wrong that the advice does

11   not need to be in writing?

12                  LCOL MacGREGOR:       It's always

13   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:       Are you aware of any

     613-521-0703          StenoTran 

1    protocol as to where the written advice should be

2    filed?

3                    LCOL MacGREGOR:     By the --

4                    MR. FREIMAN:     By the JAG and by

5    the CFNIS.

6                    LCOL MacGREGOR:     I don't know

7    where it would be filed within the AJAG's
8    perspective.   I would imagine that it would be

9    within the AJAG office itself, if it's legal

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.

     613-521-0703         StenoTran 

1                    MR. FREIMAN:    The other question,

2    generally, on charging that I wanted to ask you

3    about is the issue of included charges.    Whose

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?

9                    LCOL MacGREGOR:    Under 107.03, the

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                   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

     613-521-0703        StenoTran 

1    to problems, or might lead to other issues, in the

2    sense that, you know, this is duplicitous.

3                       So you narrow it down, and that is

4    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                      It raises the question for me as

11   to who is JAG's client.

12                      LCOL MacGREGOR:    Who is JAG's

13   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

     613-521-0703           StenoTran 

1    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                       But you have shown us that the
8    Governor General and -- I have forgotten --

9                       LCOL MacGREGOR:    The Minister, the

10   Department, and the Canadian Forces.

11                      MR. FREIMAN:    The Minister, the

12   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                      LCOL MacGREGOR:    One client that

17   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

     613-521-0703           StenoTran 

1    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                   Is there one entity capable of
8    giving advice to the exclusion of the others?

9                   LCOL MacGREGOR:      Well, I am not

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                  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

     613-521-0703          StenoTran

1    outside.

2                       But the thing is, we have

3    obligations to avoid conflicts.       At the end of the

4    day, those are all of the clients that we have,

5    and we generally try to avoid any conflicts.

6                       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.       We had a system very

15   similar to the U.S., where the chain of command

16   was basically running how prosecutions were under

17   a court martial.     They were picking the

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                      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,

     613-521-0703           StenoTran 

1    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                    That was the birth of, really, an

9    independent prosecution service.   That was because

10   there were concerns about conflicts of interest.

11                   We also had the birth of the

12   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.

     613-521-0703        StenoTran

1                   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.        In that sense, when we

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 --

16                  LCOL MacGREGOR:        Right.

17                  MR. FREIMAN:        -- vindicating their

18   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.        Who is the

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

     613-521-0703        StenoTran     

1    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.     That is not a question of

17   opinion, and Colonel MacGregor is eminently

18   qualified, by virtue of his position, to tell us

19   what the policy is.

20                      MS RICHARDS:    I think he has told

21   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.     As I understand it, they are
25   just the facts relative to where does it go and --

     613-521-0703           StenoTran 

1                        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.             In

6    fact, I have a range of questions on exactly the

7    same subject, for enlightening purposes:             Who, in
8    fact, is the client, and who provides that

9    advice -- in estates, in contracts, any part of

10   the civil law.

11                       THE CHAIRPERSON:        Proceed, Mr.

12   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                       LCOL MacGREGOR:     I will take us

17   back to the setup of the JAG office.

18                       We have a Deputy JAG of Military

19   Justice.       We are going to put that aside right

20   now.

21                       We have a Deputy JAG of

22   Administrative Law.       So, if we have an

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

     613-521-0703             StenoTran    

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                       The chain of command has numerous

9    questions, in and outside Canada, on areas of

10   operational law.     When a client from the chain of

11   command comes and asks us a question on that, we

12   give legal advice to that person.

13                      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:    Absolutely.
25                      MR. FREIMAN:    Let me ask the

     613-521-0703           StenoTran 

1    question somewhat differently.        Whose privilege is

2    it that is created by the giving of advice?

3                       LCOL MacGREGOR:    Whose --

4                       MR. FREIMAN:    Who owns the

5    privilege?

6                       MS RICHARDS:    Now I think that we

7    have gotten into asking him a legal opinion.          That
8    is not asking what he understands his client to

9    be, now you are asking him to give you some

10   conclusion on what his legal assessment is of who

11   owns the privilege.

12                      That is exactly where I was

13   concerned this was going.

14                      MR. FREIMAN:    I am mystified as to

15   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                      MS RICHARDS:    Well, with respect,

20   I don't.

21                      THE CHAIRPERSON:    I guess we had

22   to many mics on.

23                      Col Drapeau?

24                      COL (RET'D) DRAPEAU:    Again, I
25   almost had to repeat myself.       I don't see what the

     613-521-0703           StenoTran  

1    issue here.    It's a matter of fact who is, in

2    fact, who owns it.     It should be clear.      It should

3    be abundantly clear.

4                     It's not; hence the question.

5                     THE CHAIRPERSON:      Ms --

6                     COL (RET'D) DRAPEAU:        It's central

7    to everything that we -- that we are and we do
8    here.

9                     MS RICHARDS:      Well, first of all,

10   it's not central to everything that we are and --

11                    THE CHAIRPERSON:      No.

12                    MS RICHARDS:      -- that we do here.

13                    And second of all, as a matter of

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:      Mr. Freiman?

18                    MR. FREIMAN:      Well, is that the

19   answer?

20                    THE CHAIRPERSON:      Yeah, that's why

21   I -- I agree with that.

22                    You're answering Ms Richards, but

23   I guess I'm looking for yours.

24                    LCOL MacGREGOR:      Well, I don't
25   think I'm being any -- I don't think I'm being

     613-521-0703           StenoTran   

1    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:        Thank you.

9                   MR. FREIMAN:        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:        Well, does it matter

18   if there's a difference of opinion, or is it

19   always the Minister, regardless of who else wants

20   to waive?

21                  LCOL MacGREGOR:        I don't think it

22   matters.

23                  MR. FREIMAN:        So it's always the

24   Minister.
25                  LCOL MacGREGOR:        As far as I know.

     613-521-0703           StenoTran 

1    That's -- that's my understanding.

2                   MR. FREIMAN:     And does that extend

3    into the military justice system as well?

4                   LCOL MacGREGOR:     In terms of the

5    waiver of the solicitor-client privilege, yes.

6                   MR. FREIMAN:     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.    Are they -- are

18   they a member of the Canadian Forces?     Yes.

19                  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.

     613-521-0703        StenoTran  

1                         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.             And

9    it's not the same question, but similar question.

10                        When advice is being given to the

11   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:     Ultimately,

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.        Ultimately, it is he who is the one that

21   is giving the legal advice.

22                        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

     613-521-0703              StenoTran  

1    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                   Ultimately, it's the JAG advice

9    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:     Oh, sometimes

24   there can be conflicting opinions as to certain
25   things and legal officers will give legal

     613-521-0703        StenoTran  

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:    So some legal

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                    But ultimately, it's -- we're all

16   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:    Right.

24                    MR. FREIMAN:    It's not the advice
25   of the lawyer.   It's treated as the advice of the

     613-521-0703         StenoTran  

1    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

     613-521-0703        StenoTran

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.            I'm

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:    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.    Section 10

18   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

     613-521-0703           StenoTran   

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:    Yes.

6                       MR. FREIMAN:    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                      So we've talked about privilege

12   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                      LCOL MacGREGOR:    If you're asking
25   me a legal opinion as to how -- what incorporates

     613-521-0703           StenoTran   

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.         I was

7    hoping to do it on the basis of policy and how the
8    JAG operates and the position it takes.

9                   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?      Is it the policy to

13   consider that no amount of dissemination can get

14   around the fact that only the Minister can waive?

15                  MS RICHARDS:       Objection.    That's

16   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                  THE CHAIRPERSON:       Mr. Freiman, or

23   Col Drapeau, if you have any comment.

24                  COL (RET'D) DRAPEAU:       No comment.
25                  THE CHAIRPERSON:       Okay.    Mr.

     613-521-0703          StenoTran 

1    Freiman?

2                   MR. FREIMAN:      I'm asking how the

3    military operates, what the JAG does, what

4    position it takes.

5                   THE CHAIRPERSON:      Pursuant to

6    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.   That's a legal decision.

11   And so that is the basis for my objection.

12                  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.   But if it were to be, what are
25   the policy, what are the guidelines, what are the

     613-521-0703         StenoTran 

1    procedures being used by the JAG in order to

2    arrive at a decision, at their opinion?

3                       MR. FREIMAN:    Col Drapeau puts it

4    much better than I did, Mr. Chair.

5                       MS RICHARDS:    Well, that's not the

6    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.     If --

11                      MR. FREIMAN:    Change the "could"

12   to "would".

13                      MS ROBINSON:    If Commission

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.     That would be okay because that

18   would be procedural.

19                      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

     613-521-0703           StenoTran 

1    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.       But
8    what I can direct you to is Tab 6, Annex A, that

9    talks about solicitor-client privilege.

10                    And so paragraph 2.     And that

11   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:    Yeah.   And I

17   understand that and I understand the policy.        But

18   my question has to do with waiver by conduct

19   rather than express waiver.

20                    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                    LCOL MacGREGOR:    I can't answer
25   that question.   I'm sorry.

     613-521-0703         StenoTran  

1                        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                        LCOL MacGREGOR:     Again, I guess,

9    sorry, are you asking from policy perspective or

10   are --

11                       MR. FREIMAN:     Yes.

12                       LCOL MacGREGOR:     -- you asking

13   from a legal perspective?

14                       MR. FREIMAN:     Policy perspective.

15                       LCOL MacGREGOR:     I don't think we

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                       I don't think we have any policy

20   on that.       That would have to be on a case by case

21   basis, and it's determined by the law.

22                       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

     613-521-0703             StenoTran  

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.        But

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.   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.

     613-521-0703           StenoTran  

1                        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.       They are working for the Canadian Forces

9    in terms of dealing with civil claims to or by the

10   Canadian Forces.

11                       So they are responsible for

12   providing the legal services on civil claims.

13                       MR. FREIMAN:     Yeah.

14                       LCOL MacGREGOR:     They're not part

15   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.         But from time to

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                       We've seen a number of instances

24   in this case of such a thing occurring.
25                       And my question, again, was

     613-521-0703             StenoTran 

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:     No, I'm not aware

13   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                    For those purposes, is the JAG a

20   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?    Somebody may wish to call it a law firm,
25   but it's actually a military unit.

     613-521-0703          StenoTran  

1                       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.    I'd have brought Nova Scotia if I had

9    realized that that was your home jurisdiction.

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                          " 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

     613-521-0703           StenoTran 

1                         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                  I'm a bit in an unfair position to

13   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.      This

18   evidence is to provide context to consider what

19   the subjects did.   Whether the JAG considers

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.

23                  MR. FREIMAN:      Quite the contrary.

24                  MS ROBINSON:      And again, then we
25   get back into my concern that I expressed

     613-521-0703         StenoTran  

1    previously.    It is not the role or the mandate of

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                     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                    In these guidelines or Rules of
25   Professional Conduct, the term "firm", for the

     613-521-0703          StenoTran

1    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.    I'm certain, if we
8    were to look at the Nova Scotia rules, there's

9    probably something very, very, very similar to it.

10                  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                  If "law firm" does not apply, then
25   we would have to ask:   what definition do you use

     613-521-0703        StenoTran  

1    in order to apply the various rules?       Because this

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                       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?     At the very least, let's agree

12   on what the definitions are, basic definitions.

13                      THE CHAIRPERSON:    Mr. Freiman

14   first.

15                      MR. FREIMAN:    I have the benefit

16   of agreeing entirely with Colonel Drapeau.

17                      THE CHAIRPERSON:    Okay.

18                      Ms Richards.

19                      MS RICHARDS:    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.

     613-521-0703           StenoTran 

1                      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.       Now my

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   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:   what are the guidelines?     What are

23   the procedures?    What are the ethical rules that

24   you follow?
25                     Because a number of these rules,

     613-521-0703          StenoTran 

1    then, will drop by the wayside, because "law firm"

2    is a fundamental foundational definition of the

3    rules overall.   And as I said, it'd probably be

4    the same within any one of the provinces or

5    territories in Canada.

6                     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:    Thank you.

11                    Mr. Freiman.

12                    MR. FREIMAN:    I think if this

13   discussion is to go any further, it probably does

14   make sense to excuse the witness.     I've tried to

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.

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.     I don't have

23   know how much time you have left, Mr. Freiman.

24                    MR. FREIMAN:    Not that much.     I
25   should be able to -- I mean, I have a number of

     613-521-0703         StenoTran  

1    questions, but they're all dominos, and if one

2    domino falls, the rest may follow very quickly.

3                     THE CHAIRPERSON:      Yeah.

4                     We'll excuse you as a witness for

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.         I thought

11   that there might be more involved discussion,

12   but --

13                    THE CHAIRPERSON:      I would have,

14   but you sounded like you had much more to say.

15                    MR. FREIMAN:    Are we done?     I

16   think we're --

17                    MS RICHARDS:    No.

18                    THE CHAIRPERSON:      Okay.

19                    MS RICHARDS:    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.

     613-521-0703         StenoTran   

1                   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:    I am not

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                  The issue that sparked this

19   particular one was whether or not "law firm" would

20   be seen as included as in a government.    And I

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                  Are you governed by these Rules of
25   Professional Conduct?

     613-521-0703        StenoTran

1                             LCOL MacGREGOR:    Those are the --

2                             THE CHAIRPERSON:    As a lawyer in

3    the --

4                             LCOL MacGREGOR:    I have to turn

5    this on?        Sorry.

6                             There we go.    Sorry.

7                             Am I governed by these particular
8    rules?

9                             THE CHAIRPERSON:    Those.

10                            LCOL MacGREGOR:    These are the Law

11   Society of Upper Canada.           No, I'm not bound by

12   those.     I'm bound by the Code of Ethics in Nova

13   Scotia.        But I'm also bound by our own values and

14   ethics of the Canadian Forces as well.

15                            I'm not a Law Society of Upper

16   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"?                Do

20   you have any idea?

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:    Okay.

     613-521-0703                 StenoTran  

1                   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:     That's fine.   Okay.

6                   THE CHAIRPERSON:     So can you ask

7    it in a different format?
8                   MR. FREIMAN:     Well, it's very

9    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                  LCOL MacGREGOR:     I can't answer

23   that.

24                  MR. FREIMAN:     All right.
25                  So let me ask you questions that

     613-521-0703        StenoTran 

1    may allow you to address the concerns that are

2    relevant to the current proceedings.      I would have

3    hoped that dealing with "law firm" would have been

4    of assistance, but we can do it otherwise.

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                     LCOL MacGREGOR:    Is it proper for

9    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.    If a JAG officer breaches the Code of

12   Service Discipline, they are subject to being

13   prosecuted within our system.      And we have

14   prosecuted JAG officers before for breaches of the

15   Code of Service Discipline.

16                    One of the charges under the Code

17   of Service Discipline is section 124, which is

18   "Negligible Performance of a Military Duty".        That

19   is one of the potential charges that a JAG officer

20   could be charged with under the Code of Service

21   Discipline.    I'm not aware of that charge being

22   laid against JAG officers, but that is a potential

23   that could happen.

24                    So how are we going to get to a
25   court-martial, where the DMP is going to be using

     613-521-0703          StenoTran 

1    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:      to your knowledge, the JAG does not, as

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                      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.           So

24   sometimes legal opinions change.
25                      MR. FREIMAN:     Okay.

     613-521-0703            StenoTran 

1                   Well, the question I had was in

2    the context of giving legal advice, with respect

3    to a potential charge.   I think you've told me,

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.
8                   And let me just be clear as to --

9                   LCOL MacGREGOR:     Yeah.

10                  MR. FREIMAN:     -- the context, and

11   why I asked you about a firm.

12                  LCOL MacGREGOR:     Right.

13                  MR. FREIMAN:     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:     In supporting?

21                  MR. FREIMAN:     Supporting as

22   lawyers.

23                  LCOL MacGREGOR:     Okay.     There's an

24   awful lot of innuendo in that potentially.
25                  What I will tell you, sir, is that

     613-521-0703        StenoTran    

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.      There are statutory breakups of members

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.      That's absolutely incorrect, an

18   incorrect assumption.

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.

     613-521-0703            StenoTran

1                   I'll take you to the JAG Charge

2    Screening Policy, at Tab 12, paragraph 9.         This is

3    pre-charge advice.

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:       the

11                          rank of the accused...

12   -- 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                  MR. FREIMAN:        Okay.   Now, I think

22   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.

     613-521-0703           StenoTran  

1                       LCOL MacGREGOR:    No, I didn't.     I

2    didn't say that.     I said "negligent performance of

3    military duty".

4                       MR. FREIMAN:    "Negligent

5    performance of duty", and I took you to be saying

6    that negligent legal advice might be negligent --

7                       LCOL MacGREGOR:    I didn't say
8    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 --

     613-521-0703           StenoTran 

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:           If we could just

10   hold our thought for a second, we need to take a

11   five-minute health break.

12                  MR. FREIMAN:        Okay.

13                  THE CHAIRPERSON:           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                  MS RAHAL:        Please take your seats.

18   Veuillez prendre place.

19                  THE CHAIRPERSON:           Thank you for

20   all being prompt.     Thank you.

21                  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                  By statute the JAG is made the
25   Director of Estates and there is a fancy title to

     613-521-0703           StenoTran    

1    it.   Are you familiar with that position?

2                    LCOL MacGREGOR:      Director of

3    Estates --

4                    MR. FREIMAN:      Director of -- I

5    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.      On

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:      Correct.

24                   MR. FREIMAN:      Are you familiar
25   with that position?

     613-521-0703          StenoTran 

1                       LCOL MacGREGOR:     I am vaguely

2    familiar.      I know that there is -- we have

3    civilian and some military legal officers that

4    look at the estates, especially our soldiers that

5    are killed in uniform.      There is an awful lot of

6    work that is going on within our office to

7    administer those estates.
8                       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:     This may be very

13   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                      LCOL MacGREGOR:     It is not
25   military justice.      It is administrative law.

     613-521-0703            StenoTran  

1                      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.      Until I started

5    banging the table and saying that my colonel is

6    not getting enough of my attention, we had that

7    large division.
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                     LCOL MacGREGOR:    I can't tell you

17   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:    Well, that

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,

     613-521-0703          StenoTran 

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
8    functions were.

9                      MR. FREIMAN:     Yes, and refused to

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                     MR. FREIMAN:     The transcript will

21   say what it says.

22                     Thank you.     Those are my

23   questions.

24                     THE CHAIRPERSON:        Colonel Drapeau?

     613-521-0703          StenoTran     

1                      COL (RET'D) DRAPEAU:    Good

2    morning, Colonel.

3                      LCOL MacGREGOR:   Good morning, Mr.

4    Drapeau.

5                      COL (RET'D) DRAPEAU:    Can you give

6    me your definition of military justice?      What does

7    it encompass?     What is the universe?
8                      LCOL MacGREGOR:   What is the

9    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                     LCOL MacGREGOR:   Military justice

18   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:   Right.

24                     COL (RET'D) DRAPEAU:    Which is not
25   defined.

     613-521-0703           StenoTran

1                       I'll ask what is your definition

2    of that, military justice.       What is the difference

3    between the two?

4                       LCOL MacGREGOR:    What is the

5    difference between military law and military

6    justice?

7                       COL (RET'D) DRAPEAU:    Right.
8                       LCOL MacGREGOR:    Military law is

9    much broader.   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.     We have international law.

13   We have military justice.       We have administrative

14   law.

15                      These are all facets of military

16   law, writ large.     It's not exclusive of what is

17   done in the civilian world.

18                      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.        They have overlap

22   but they are two distinct things.

23                      But military law is so large in

24   terms of what it entails.       So it's any type of law
25   that affects the military.

     613-521-0703           StenoTran  

1                     COL (RET'D) DRAPEAU:   You'll see

2    where I'm coming to in a moment.

3                     And also, just in your answer

4    right now, you allude to administrative law.      Now,

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                     Can you make the link between the

9    two?    Is there any difference between and military

10   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                    COL (RET'D) DRAPEAU:   Okay.    Where

15   does civil litigation fit into it?

16                    LCOL MacGREGOR:   Civil litigation

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                    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

     613-521-0703          StenoTran

1    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                      COL (RET'D) DRAPEAU:   So they are

16   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                      LCOL MacGREGOR:   No, they're not
25   really seconded.     They work for the office of the

     613-521-0703           StenoTran

1    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                       COL (RET'D) DRAPEAU:       If I come to

7    the --
8                       THE CHAIRPERSON:    So I understand,

9    are you referring to a few DOJ advisors?           Is

10   that --

11                      LCOL MacGREGOR:    That's right.

12                      THE CHAIRPERSON:    Okay.

13                      LCOL MacGREGOR:    Our DOJ lawyers.

14   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                      LCOL MacGREGOR:    On civil

20   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".

     613-521-0703           StenoTran    

1    Were you given questions by the Commission to

2    answer?

3                         LCOL MacGREGOR:   Well, what I was

4    given was this outline of all of the documents.             I

5    think there was a will-say that was also provided.

6    So that's what I'm referring to, Mr. Drapeau.

7                         COL (RET'D) DRAPEAU:    Okay.     I
8    thought so.

9                         Who actually provides advice to

10   the CDS, the Chief of Defence Staff?

11                        LCOL MacGREGOR:   Who provides

12   legal advice?


14                        COL (RET'D) DRAPEAU:    Right.

15                        LCOL MacGREGOR:   To the Chief of

16   the Defence Staff?

17                        That can -- well, it's the Office

18   of the JAG, but the JAG primarily.          I've given

19   legal advice in the sense that you know on certain

20   matters by giving briefs and those types of

21   things.        But I'm speaking on behalf of the JAG.

22                        COL (RET'D) DRAPEAU:    Could the

23   Director of Military Prosecutions give advice to

24   CDS?
25                        LCOL MacGREGOR:   The Director of

     613-521-0703              StenoTran 

1    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:      Of course.

13                     LCOL MacGREGOR:   Okay.     And I

14   think the Supreme Court of Canada has been very

15   clear on that within the general case.

16                     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

     613-521-0703          StenoTran   

1    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                  LCOL MacGREGOR:   From the JAG,

23   yeah.

24                  COL( RET'D) DRAPEAU:      Who in turn,
25   the JAG -- correct me if I'm wrong -- but the JAG

     613-521-0703        StenoTran  

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?


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.     And that would be -- boards of inquiry

23   and the legal advisors to boards of inquiry would

24   fall under the DJAG Regional Services.
25                     That's a colonel that is here in

     613-521-0703           StenoTran

1    Ottawa and works at headquarters.      His duties are

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                       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.     That was part of my problem with

14   procedural fairness on boards of inquiry.

15                      COL( RET'D) DRAPEAU:   Yeah, I see

16   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                      LCOL MacGREGOR:   That they would
25   make --

     613-521-0703           StenoTran

1                   COL( RET'D) DRAPEAU:    He would --

2                   LCOL MacGREGOR:    -- his positions.


4                   COL (RET'D) DRAPEAU:    Not an

5    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.    I think

9    that's up to them.    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                  LCOL MacGREGOR:    The CDS if he's

20   looking for legal advice he is going to the JAG.

21                  COL( RET'D) DRAPEAU:    That's where

22   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

     613-521-0703          StenoTran

1    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.   You moved about and you

14   changed jobs frequently.

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

     613-521-0703          StenoTran

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:    There are no

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                    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:    So that

17   obligation is on the shoulders of the

18   professional, not the organization?

19                    LCOL MacGREGOR:    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.       But the

24   office of the JAG is diverse.      But we're all
25   giving legal advice on behalf of the JAG.       So in a

     613-521-0703           StenoTran

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

     613-521-0703            StenoTran

1    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?    If so, who has got the lead

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                     LCOL MacGREGOR:   Well, the CFLA

11   has the ultimate decision, I think.      But certainly

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.    But those are worked out between

16   CFLA and JAG.

17                     COL( RET'D) DRAPEAU:   At the end

18   if they only want a purpose of civil litigation

19   CFLA would have the lead?

20                     LCOL MacGREGOR:   CFLA has the lead

21   in a civil litigation portion, yes.

22                     COL( RET'D) DRAPEAU:   Okay, thank

23   you.

24                     That's all my questions.
25                     LCOL MacGREGOR:   Thank you.

     613-521-0703           StenoTran

1                     THE CHAIRPERSON:    Ms Richards.

2                     MS RICHARDS:    Thank you.


4                     MS RICHARDS:    Lieutenant Colonel

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:    Right.

12                    MS RICHARDS:    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.      So

24   that often happens, but it's still ultimately the
25   same client, the Canadian Forces.

     613-521-0703         StenoTran 

1                   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:     Right.

5                   MS RICHARDS:     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."    (As read)
25                  I'm just asking you if you have

     613-521-0703        StenoTran  

1    any comment or if that's at all consistent with

2    the JAG approach?

3                   LCOL MacGREGOR:      That would seem

4    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:      Yes, I do.

19                  MS RICHARDS:      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:      Well, if

     613-521-0703         StenoTran 

1    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.

     613-521-0703          StenoTran

1                     That way you have a statement that

2    you can rely upon, that was given after their

3    Charter rights were given.      Then you can rely upon

4    that statement, but you are not relying upon the

5    evidence that was given at a board of inquiry.

6                     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:    Absolutely.

11                    MS RICHARDS:    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:    No, not at all.

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:    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                    Generally, is there a process in
25   place, separate from the bar societies, within the

     613-521-0703         StenoTran  

1    JAG branch for a review of services that are

2    provided and legal advice that is provided by JAG

3    officers?

4                   LCOL MacGREGOR:        I am not sure

5    that I ever said negligent legal advice.

6                   MS RICHARDS:        I'm sorry, that was

7    put to you by Commission counsel.       Mr. Freiman
8    used that example.

9                   LCOL MacGREGOR:        So I am not sure

10   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.     That is the JAG Policy

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                  But you have to also note the
25   proviso that paragraph 1 provides, that this is

     613-521-0703           StenoTran 

1    good for all legal officers, except for those

2    legal officers serving in DDCS and DMP.

3                   MS RICHARDS:       So what happens in

4    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.       It

16   would be dealt with by DMP.

17                  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

     613-521-0703          StenoTran 

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                   But there is no specific policy in

10   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.     I wonder

16   if you have any comment or observations on that.

17                  LCOL MacGREGOR:      It is very easy

18   for somebody to sit back and say:     Well, it could

19   appear that it's not independent.

20                  But to throw around public

21   perception, what one could perceive, that's not

22   how we deal with it in law.   The perception, by

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

     613-521-0703        StenoTran  

1    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:     Well, there is a public

11   perception that it's not independent legal advice.

12                      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.        It was
25   an independent review, and he didn't make any

     613-521-0703           StenoTran 

1    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                     Chief Justice Dickson was the one

9    who said that this was how our system should be

10   set up.

11                    And following those

12   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                    MS RICHARDS:    Thank you, those are

18   my questions.

19                    THE CHAIRPERSON:    Mr. Freiman?

20                    Colonel Drapeau, a clarification

21   only.

22                    COL (RET'D) DRAPEAU:    A short

23   clarification.

25                    COL (RET'D) DRAPEAU:    In answer to

     613-521-0703         StenoTran 

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:    Yes.

6                      COL (RET'D) DRAPEAU:      And then you

7    added that, also, the employer remained the same.
8                      Can I draw from your answer, then,

9    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                     LCOL MacGREGOR:    No, with respect

14   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                     COL (RET'D) DRAPEAU:      So it would

20   be the accused.

21                     LCOL MacGREGOR:    The client is the

22   accused.

23                     COL (RET'D) DRAPEAU:      Thank you.

25                     THE CHAIRPERSON:

     613-521-0703          StenoTran   

1    Lieutenant-Colonel, I just have one question.        At

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:    Correct.

6                     THE CHAIRPERSON:    Is there

7    anything that defines what is to be included in
8    the brief?

9                     LCOL MacGREGOR:    I don't believe

10   so.    This was done after -- this service Letter of

11   Agreement was done after I had left DMP.        I don't

12   think that there is.

13                    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?

     613-521-0703           StenoTran

1                    LCOL MacGREGOR:    All the time.

2                    THE CHAIRPERSON:    All the time.

3                    LCOL MacGREGOR:    All the time.

4                    THE CHAIRPERSON:    Is that current,

5    as well?

6                    LCOL MacGREGOR:    Is my experience

7    current?
8                    THE CHAIRPERSON:    Or reasonably

9    current?

10                   LCOL MacGREGOR:    The last time I

11   would have looked at that would have been late

12   2008 and early January 2009.

13                   THE CHAIRPERSON:    Would you expect

14   that a brief would include a summary?

15                   LCOL MacGREGOR:    That was one of

16   the things that we had arguments over.     I felt

17   that it should have a summary.

18                   THE CHAIRPERSON:    It makes sense

19   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

     613-521-0703        StenoTran  

1    my client.

2                   THE CHAIRPERSON:      Would you expect

3    that a brief would include, by the investigator,

4    an analysis of the investigation?

5                   LCOL MacGREGOR:      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                  THE CHAIRPERSON:      Or does not meet

13   them.

14                  LCOL MacGREGOR:      Well, it if

15   doesn't, then hopefully there is no charge.

16                  THE CHAIRPERSON:      Yes, that's

17   correct.

18                  But you would get a brief even if

19   there was no charge, correct?

20                  LCOL MacGREGOR:      If there was no

21   charge whatsoever, no, I wouldn't get a brief,

22   because there is no need to have pre-charge

23   advice.

24                  THE CHAIRPERSON:      So the only time
25   that you would get a brief is if it was submitted

     613-521-0703        StenoTran  

1    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:     Look, this is where we

9    are going.     I'm not sure where this should head.

10   What do you think?

11                     And then you go back and offer

12   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                     Obviously, it's requesting

24   solicitor-client advice.     I know that.
25                     LCOL MacGREGOR:    You said that the

     613-521-0703           StenoTran  

1    JAG was forwarding it, it would be the NIS --

2                    THE CHAIRPERSON:    The NIS would be

3    forwarding documents.

4                    LCOL MacGREGOR:    Right.

5                    THE CHAIRPERSON:    I'm sorry if I

6    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:    Absolutely.

12                   THE CHAIRPERSON:    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:    Correct.

19                   LCOL MacGREGOR:    So a lot of the

20   information that is in there is going to be

21   disclosed to the accused, and --

22                   THE CHAIRPERSON:    As per

23   Stinchcombe.

24                   LCOL MacGREGOR:    Right.
25                   THE CHAIRPERSON:    So everything

     613-521-0703        StenoTran 

1    outside of solicitor-client would be disclosed.

2                   LCOL MacGREGOR:     Exactly.

3                   If there was solicitor-client

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.   That stuff wouldn't be

9    forwarded on to the defence counsel, that would be

10   maintained -- the solicitor-client privilege would

11   be maintained in that aspect.

12                  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:     That would be

19   disclosed.

20                  THE CHAIRPERSON:     -- that would

21   all be part of disclosure --

22                  LCOL MacGREGOR:     Yes.

23                  THE CHAIRPERSON:     -- and should be

24   part of the GO file.
25                  LCOL MacGREGOR:     That's correct,

     613-521-0703           StenoTran

1    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                      LCOL MacGREGOR:    Back when I was

11   DDMP and DMP 3 I did.

12                      I can't speak for the current DMP

13   right now.     I wouldn't expect anything less.

14                      THE CHAIRPERSON:    You don't know

15   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:    Absolutely, I
25   understand that.

     613-521-0703           StenoTran 

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:    Yeah, to DMP --

9                     THE CHAIRPERSON:    Or -- yes.     When

10   I said the JAG, I know that you were always

11   referring to the JAG as a whole and --

12                    LCOL MacGREGOR:    That's right,

13   yes.

14                    THE CHAIRPERSON:    Okay.   Out of

15   that somebody may have some additional help, so

16   feel free.

17                    MS RICHARDS:    I do.


19                    MS RICHARDS:    You have been asked

20   a lot of questions about the pre-charge review

21   stage.

22                    LCOL MacGREGOR:    Right.

23                    MS RICHARDS:    Is there a stage

24   prior to that when DMP prosecutors can be asked to
25   provide legal advice to NIS investigators?

     613-521-0703         StenoTran 

1                     LCOL MacGREGOR:    Absolutely.

2                     MS RICHARDS:    Can you explain what

3    that would be?

4                     LCOL MacGREGOR:    Well, if you take

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                    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?

     613-521-0703         StenoTran    

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:     No.

12                    MS RICHARDS:     Why not?

13                    LCOL MacGREGOR:     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

     613-521-0703          StenoTran    

1    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                    LCOL MacGREGOR:     I don't believe

14   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.    I understand that.

21                    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:     Absolutely.

     613-521-0703          StenoTran 

1                     THE CHAIRPERSON:      Right up to and

2    including a hearing.

3                     LCOL MacGREGOR:      Yes, that's

4    right.

5                     THE CHAIRPERSON:      Colonel Drapeau,

6    do you have any questions flowing from mine?

7                     COL (RET'D) DRAPEAU:      No, thank
8    you.

9                     THE CHAIRPERSON:      Mr. Freiman?

10                    MR. FREIMAN:      No, thank you.

11                    THE CHAIRPERSON:      Sir, I want to

12   thank you for your evidence.       Certainly, you have

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                    I appreciate your tolerance and

21   hearing through that, and I thank you for your

22   attendance today and your service.

23                    LCOL MacGREGOR:      Thank you very

24   much.
25                    THE CHAIRPERSON:      It is twenty

     613-521-0703           StenoTran 

1    after one.

2                       In terms of the panel this

3    afternoon, do we have a sense, Mr. Freiman, of

4    timing?

5                       MR. FREIMAN:    [Off microphone /

6    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




17                      THE CHAIRPERSON:    Ms Coutlée.

18                      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:    Absolutely.

     613-521-0703           StenoTran 

1                        THE CHAIRPERSON:     Go ahead while

2    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:   Absolutely.

7                        So we have Detective --
8                        THE CHAIRPERSON:     Please be

9    seated.

10                       MS COUTLÉE:   Det. Inspector Olinyk

11   from the OPP.

12                       THE CHAIRPERSON:     Is that Olinyk?

13                       DET. INSP. OLINYK:     That's

14   correct.

15                       THE CHAIRPERSON:     Thank you.

16                       MS COUTLÉE:   Inspector Fitzpatrick

17   from the RCMP.

18                       THE CHAIRPERSON:     Okay.

19                       MS COUTLÉE:   And S/Sgt Clark from

20   the Edmonton Police Service.

21                       THE CHAIRPERSON:     Thank you, and

22   welcome.       I think we're a little bit delayed from

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             StenoTran 

1                        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:   Before we start,

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:   Mr. Chairman, it's

     613-521-0703             StenoTran

1    not my intention to ask these witnesses to comment

2    in any way on the facts of our hearing.         And for

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.     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.


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.           My

24   current position is a Detective Inspector,
25   specifically one of two Deputy Directors for our

     613-521-0703           StenoTran

1    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                      So in a nutshell, that's what we

12   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:   Certainly.

17                      I'm completed 27 years with the

18   Ontario Provincial Police.       I'm going to start my

19   28th year this month.

20                      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                      My unit was -- I was assigned to
25   the Kenora unit, so that's what I've been doing

     613-521-0703           StenoTran 

1    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.    What I do primarily now is

5    offer assistance, guidance, supervision and

6    support to our other Detective Inspectors through

7    cases throughout Ontario.
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                  Our mandate is to oversee and
25   investigate threshold offences such as homicide

     613-521-0703           StenoTran

1    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:   I joined the

10   RCMP in 1986.     I'm coming up to my 26th year of

11   service.

12                     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.     I worked there as a general

16   duty Constable in uniform for approximately four

17   years.     Then I went into the plainclothes part of

18   Major Crime investigation in 1990.

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                     And in 1995, I was transferred to
25   the E Division Serious Crime Unit, which is

     613-521-0703           StenoTran

1    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.          And then I
8    went -- I took a commission in 2007 to the E

9    Division Major Crime section as the Operations

10   Officer, to which I currently hold.

11                      MS COUTLÉE:    Thank you.

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                      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.          I am one

18   of three S/Sgts.     Currently it's only -- we only

19   have two of us there now.        The third position

20   hasn't been filled for about a year.

21                      We supervise 24 active detectives

22   and two cold case detectives along with civilian

23   personnel.

24                      Our Homicide unit works on three
25   teams of eight detectives on a rotating basis for

     613-521-0703           StenoTran  

1    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.     I started in 1979 as a patrol

5    Constable working out of the north end for the

6    first nine years of my career.

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.     Ident is the

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                      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.     The serious crimes, of course,

24   were handled by the Criminal Investigative
25   Division.

     613-521-0703           StenoTran

1                         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.        But to the extent that you're able and

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?

21                        And I'll ask Insp. Fitzpatrick if

22   you could start.

23                        INSP. FITZPATRICK:   Regretfully, I

24   am not able to provide you with that information.
25                        One of the number one reasons is

     613-521-0703              StenoTran

1    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                       I can only speak for what I'm
8    responsible for.

9                       MS COUTLÉE:   Absolutely.

10                      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.        We have the --

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                      The E Division Major Crimes
25   section would be responsible for oversight and

     613-521-0703           StenoTran  

1    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.      We have an

7    assistance role with areas of population from
8    5,000 to 15,000.

9                       And with populations over 15,000,

10   they're classified as municipal contracts and

11   usually go to the larger detachments.         And it's

12   the detachment's jurisdiction to investigate their

13   offences in their municipalities.

14                      So in answer to your question, we

15   touch most major crime outside of the lower

16   mainland.      We have firsthand involvement through

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.

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

     613-521-0703            StenoTran

1    sense of the numbers in terms of how many death

2    cases occur within your jurisdiction?

3                       S/SGT CLARK:     Yes.   The City of

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.          So we're

7    just dealing with the City of Edmonton.
8                       We average, I would say, one to

9    two death investigations per day.          Now, this is

10   not just, of course, homicides.        I'm including

11   everything in there from natural causes to

12   suicides to accidental to homicidal deaths.

13                      And as an example, over this past

14   weekend we had nine cases that I had to review,

15   reporting-wise.      Of those nine cases, in a matter

16   of -- it was a three-day, Friday, Saturday, Sunday

17   period -- sorry, it would be the weekend before

18   last weekend.      There were nine cases, three of

19   which were suicide and one of which was a

20   homicide.      And the rest are either natural causes

21   or other reasons.

22                      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.          It would be
25   investigated by most of our investigators or by

     613-521-0703            StenoTran   

1    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.     So where they don't, it lies

23   within our area of responsibility.

24                      So from the province of Ontario
25   right from the Manitoba-Ontario border all the way

     613-521-0703           StenoTran  

1    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                    So through the -- our Criminal

9    Investigation branch, we have Detective Inspectors

10   assigned to various parts of the province.      Of

11   course, our furthest west unit would be in Kenora.

12                   We have a unit here in Kanata.        We

13   have our main headquarters on Orillia.     We have

14   some Detective Inspectors in London, Ontario, as

15   well as one in North Bay and Thunder Bay.

16                   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:   Okay.

23                   MS COUTLÉE:   Now, in terms of

24   death investigations, for starters, I would like
25   each of you to describe the initial steps that are

     613-521-0703         StenoTran 

1    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                      If we could start with you, Staff

7    Sergeant Clark.
8                      S/SGT CLARK:    Any death

9    investigation, the initial call and response is

10   made by a patrol officer, the officers working the

11   patrol cars.    It'll be a constable.    They respond

12   to all the initial calls.      So on any call of a

13   death, they would be the initial responder, and go

14   to the scene.

15                     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.      But if they

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                     They would call in the homicide

     613-521-0703          StenoTran 

1    detectives, and that's the time when my unit would

2    respond.       And that's 24/7, so we are called out

3    often, you know, in the middle of the night.

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.        If they go to that
8    scene, it's still the same criteria.        Their job

9    there is obviously still to determine if that

10   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.       Then, you know, if it's criminal, to

15   go after suspects, and, obviously, to secure

16   witnesses.

17                       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.       They're basically the

22   investigator for that death scene.

23                       So they still wouldn't be touched,

24   they shouldn't be touching anything.        I mean
25   that's their training.       They should be making

     613-521-0703             StenoTran

1    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.     It could also be a watch commander, which
8    is a staff sergeant, or the duty inspector who's

9    working that area.

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.         If they consider the

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                       This would be done usually fairly

22   quickly.       So the medical examiner in Edmonton,

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             StenoTran 

1    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.        So they

5    basically are leading the investigation at that

6    point.     The medical examiner would respond there,

7    usually they take photographs, they do their
8    notes, and then they make arrangements for the

9    removal of the victim.

10                      The victim is taken to the city

11   morgue in Edmonton, and the medical examiner

12   becomes a lead agency.     We become the secondary

13   agency, although we submit an initial report on

14   the death.

15                      In the cases of a criminal death,

16   the procedure is much different, in that we are

17   the lead agency.     The medical examiner would not

18   be called in as quick.     We would do our scene

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.       They do not respond

23   on non-criminal deaths in Edmonton, only on

24   criminal deaths.
25                      So once they respond on a criminal

     613-521-0703           StenoTran 

1    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                         S/SGT CLARK:     It's the standard

9    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.          Obviously,

12   observations and note-taking are a high priority.

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.        Those type of things are done all the

19   time.     But, yes, the scene should definitely be

20   secured until they know what they're doing.

21                        MS COUTLÉE:    And when we say

22   "secure the scene", for those who may not have as

23   much knowledge, what does that mean?

24                        S/SGT CLARK:     Basically, what
25   you're doing is you're cordoning off the scene so

     613-521-0703              StenoTran 

1    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.    So it would just

6    be a matter of keeping people out until you know

7    exactly what's going on.
8                   In other cases it may be a house,

9    where there's a person lying in the middle of a

10   living room, for example.    They've died of natural

11   causes, passed out, and you may want to cordon off

12   the whole house, remove everybody from the house.

13                  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                  MS COUTLÉE:    You were mentioning
25   that a determination is made by the patrol officer

     613-521-0703        StenoTran 

1    and/or supervisor as to whether or not the death

2    is suspicious.    I'm interested in cases of

3    apparent suicide, and specifically hanging.

4                     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?      You're looking

14   for things like that.

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?      You know, many

18   times they're not, they're down lower.      So you're

19   looking for things like that.      So the scene is

20   telling you a lot, and they have to be making

21   notes of that.    Does it all make sense?

22                    The other part is the history of

23   the victim.    That is always not information you're

24   going to have right at the start of an
25   investigation, but you're going to want to know

     613-521-0703          StenoTran 

1    what was the background of this victim.     What was

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                     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:    people that they knew, family,

10   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:    what is the body telling you?   What is the

14   victim telling you at that time?     Are they

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?

19                    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                    They would call us out, and I may
25   send out a whole team of detectives or I may --

     613-521-0703          StenoTran

1    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                      And a lot of times we do treat it

9    as suspicious.     So we would treat it as a

10   full-blown possible homicide until we know

11   otherwise.     So that would mean calling out the

12   ident team, doing the whole thing with the

13   photographs, recording the scene, you know,

14   obtaining exhibits, everything of that nature.

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.     It's not a common thing that
25   people do.     Sometimes you'll get a note, sometimes

     613-521-0703           StenoTran  

1    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.     They

15   will attend, take the initial information.     With

16   that, they will secure the scene the way it is.

17   They will make immediate notification to their

18   respective supervisor.

19                  Within the OPP, we have six

20   regions, and each region will have assigned what

21   is referred to as a duty officer.    The majority of

22   the time they are a commissioned officer, at times

23   they're staff sergeants.   They are in a position

24   to be notified of every death investigation.      So
25   through the initial attendance at the scene

     613-521-0703        StenoTran 

1    notification will go through their supervisor, at

2    which, then, it will go up through the duty

3    officer.       So they may not be notified immediately,

4    but that notification will be made.

5                        With respect a forensic

6    identification officer, the unit commander,

7    generally a sergeant, will, again, be notified of
8    the death investigation.       He or she may assign

9    another forensic officer to attend.       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.       Clearly, we approach each case very

16   objectively, and being mindful that you don't know

17   what you have until the investigation has been

18   complete.

19                       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.       Now that body
25   comes within the authority of the coroner.        The

     613-521-0703             StenoTran

1    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.     So the

4    coroner will provide us with that exact authority.

5                   So, in other words, when we secure

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.   Quite often that is

17   the case, that there's integral evidence that we

18   don't see.

19                  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

     613-521-0703         StenoTran 

1    which of the two will attend?

2                        DET INSP OLINYK:   Right.

3                        MS COUTLÉE:   What is that based

4    on?

5                        DET INSP OLINYK:   Right.   Again,

6    you know, where there's no element of suspicion,

7    that determination will be made by the forensic
8    officer.       Quite often they'll have one of the

9    forensic officers attend, and more often than not.

10                       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

     613-521-0703             StenoTran

1    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                   So those are some of the
8    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:    Yes.     Yes.

14                  MS COUTLÉE:    And you've spoken

15   about the notification process up the chain.        Now

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.      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                  There will be a detective sergeant
25   also brought into the formula here.   If there's

     613-521-0703         StenoTran  

1    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.   So he or she will then

9    assess it and make the determination whether or

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                  DET INSP OLINYK:     Yeah.   Yeah, I
25   suppose in certain cases that may be the case.

     613-521-0703        StenoTran 

1    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.       So

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 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.   And when I say that, the

22   initial approach by our forensic officers.     So

23   once the initial officers have attended, they back

24   out, it is secured.
25                    And "secured", again, just to

     613-521-0703          StenoTran

1    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.     Sometimes the
8    coroner will attend.    Obviously, in southern

9    Ontario, in some of our more populated areas, the

10   coroners, in fact, will attend.     Up north, that's

11   sometimes not possible.     Where it's 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                  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.    Now, again, depending on when

24   the body is removed and it is brought to the
25   respective morgue where the post-mortem

     613-521-0703           StenoTran

1    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.        So

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                   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?

     613-521-0703           StenoTran

1                   DET INSP OLINYK:      Absolutely.

2                   MS COUTLÉE:      Thank you.

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                   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                  We have parallel responsibilities
25   with the coroner's office, so they will be

     613-521-0703           StenoTran

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.      If there was a situation with people or

14   suspects, he would have to react to those

15   circumstances.      He would be expected to have what

16   we would call an non-commissioned officer, an NCO,

17   if available, to attend the scene.

18                      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.

     613-521-0703            StenoTran

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.      I would

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 expect that they would

22   take or interview and take a statement from the

23   last person who saw the deceased alive.     They

24   would take all the normal steps that my friends
25   have articulated with respect to scene

     613-521-0703         StenoTran 

1    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.      In that case or in

9    that situation we have advisory NCOs that are

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.      If it

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                     It's suspicious until proven

20   otherwise.     In that case then the forensic IDENT

21   specialists should be called.      They will examine

22   the scene.     The coroner will be consulted with

23   respect to what actions are being taken and at

24   what level we can disturb the remains.
25                     The forensic IDENT specialist

     613-521-0703           StenoTran

1    would be required to take videotape, photograph

2    whatever swabs for DNA, potential evidence that is

3    there, anything with respect to bloodletting.           We

4    may call in a blood spatter person in the case of

5    a suicide.

6                       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.      The mechanism of death sometimes looks

17   like a suicide when, in fact, it turns out to be a

18   homicide, those types of things.

19                      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.        When you get to that

24   juncture then more resources are brought in.
25                      In the British Columbia

     613-521-0703            StenoTran 

1    application we would have either a general

2    investigation plainclothes unit that would be able

3    to attend depending on the location.       They would

4    be -- in a larger location they would be there

5    almost immediately.       More remote we would have to

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   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.       There is a collaborative effort when it

24   comes to that in that the coroner will or may not
25   want things seized whereas the police will seize

     613-521-0703             StenoTran

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.       It

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 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.

     613-521-0703         StenoTran

1                      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                     One of the things that really

9    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:    Usually, as I

18   said, the NCO or more senior investigator officer

19   will be part of that decision-making process.        The

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                    Those questions should be already
25   answered by the on-scene members.     If it gets to a

     613-521-0703         StenoTran 

1    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.    He would then take the
8    information and make a determination of what

9    resources he feels needs to be assigned to that

10   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.   You would be talking to relatives,

23   neighbours, looking for a background on that

24   particular person with respect to their state of
25   mind.

     613-521-0703          StenoTran

1                         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.        You would look into the person's

10   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.        You would follow the evidence

18   as it is presented and as it is in the crime

19   scenes.

20                        MS COUTLÉE:   And do you bring in a

21   forensic identifications specialist for all death

22   scenes or only when there is suspicion?

23                        INSP FITZPATRICK:   That's a very

24   difficult answer or question to answer.
25                        My experience when I was actually

     613-521-0703              StenoTran

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.        You

9    would call in the forensic people.     They would

10   likely respond if they could.

11                      However, all bets are off when it

12   comes to any sort of suspicion.     You know, a

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.     I would expect -- and my

19   expectation would be that the investigator would

20   call in an IDENT person to document that scene.

21                      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

     613-521-0703           StenoTran

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?   Would a forensic

9    identification specialist be brought in all cases?

10                   INSP FITZPATRICK:    And again very

11   situational.   The minimum expectation would be

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                   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.

     613-521-0703         StenoTran

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:   Okay.

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                     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

     613-521-0703          StenoTran

1    respect to the approach to the deceased, the

2    removal of the deceased and the way out.

3                         I'll just sort of elaborate a bit

4    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.        There are times where the pathologist may

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.

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                        So with that once the plan is in

24   effect then we remove the body.
25                        Sometimes the pathologist and/or

     613-521-0703              StenoTran

1    coroner may want to go in.        So if they do it'll be

2    with the forensic identification officer leading

3    the way.       The coroners, the pathologists are not

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                        There is never any issues with

9    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.        I, as a

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                       So I won't go into a scene until

21   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

     613-521-0703             StenoTran 

1    include cutting down the body?    Can you cut down

2    the body without the coroner's approval?

3                   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.       But

9    anytime we remove the body whether it be a hanging

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

     613-521-0703         StenoTran   

1    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.    Because at the end of the day

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.    You have all of your ground

13   investigation.    You have your scene -- your scene

14   investigation and then you have the anatomical

15   findings at the post-mortem.

16                     When you look at those three key

17   areas of investigation and they go like that, then

18   you're not too far off.    Where they don't go like

19   that, then you may have an issue.

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:   As I indicated

     613-521-0703          StenoTran

1    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.     But the common practice is that

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                      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.

     613-521-0703           StenoTran

1                   More often than not, an autopsy is

2    not taking place in this day of financial

3    restraint and so forth.     So if the obvious cause

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                   If an autopsy is requested then

9    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.     There is one in the Lower

16   Mainland and perhaps one in the interior of

17   British Columbia.   So that entails sending, by

18   plane or by car, the body down to either Vancouver

19   or the interior of British Columbia.

20                  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

     613-521-0703           StenoTran 

1    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.   The easy answer is no, the

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                  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                  That would be a situation where
25   you would take it upon yourself.   Often those

     613-521-0703        StenoTran  

1    discussions take place with the coroner over the

2    telephone, and they give you the authority to do

3    it.   Then, between the investigator -- or the

4    scene-of-crime people, they can do that.

5                    But, again, it goes back to

6    preserving what evidence there may be.      You may

7    want to preserve the ligatures.     You may want to
8    preserve and swab whatever was used in the

9    mechanism of death, and swab the hands of the

10   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:    Thank you.

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                   S/SGT CLARK:     It is much the same

21   as my colleagues here.   The one big difference in

22   Edmonton -- and just to clarify for the

23   Commission, a medical examiner is the same thing

24   as a coroner.   In Alberta we call them medical
25   examiners.

     613-521-0703         StenoTran 

1                   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.   Once he is satisfied that this
8    is a non-criminal death, that has been overseen by

9    his supervisor, he would call the medical

10   examiner.

11                  As I said before, their response

12   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.     We

18   don't send an ident team out to non-criminal

19   deaths.

20                  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

     613-521-0703         StenoTran

1    come.     In the case of a non-criminal death, they

2    would simply remove the body.         In the case of a

3    suicide by hanging, it would be the medical

4    examiner's responsibility to cut the body down.

5                         Again, that cut is still done in a

6    special way, where you don't physically untie the

7    person.        You don't untie the knot, you would be
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.

13                        Ultimately, the medical examiner

14   determines an autopsy.        In the case of a

15   non-criminal death, it is up to them whether they

16   conduct an autopsy.        The police are not involved

17   at that point in Edmonton.         We don't go to them.

18                        If it's a criminal death, it's a

19   different story, in that we lead the

20   investigation.        Our ident team --

21                        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

     613-521-0703              StenoTran

1    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                      The medical examiner will then
25   come in, and they will go into the scene.      They

     613-521-0703           StenoTran

1    will also do some very basic photos of what they

2    find, and they will remove the body.    It is done,

3    as my colleagues said, very carefully, to make

4    sure that you don't lose any trace evidence on

5    that person.

6                   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.    In the case of

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.

     613-521-0703        StenoTran 

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.     That is very important.

24                     And when I say that, the focus is
25   just that.     The focus isn't around to encapsulate

     613-521-0703           StenoTran

1    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                     And you don't know what you have

12   until your investigation has been exhausted.

13                     So we have to be very mindful that

14   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.     Sometimes it happens, but you

23   certainly do your best not to do that.

24                     So it's all about preserving the
25   integrity of the deceased, to ensure that there is

     613-521-0703           StenoTran

1    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.    There may be some blood

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                   Those sorts of things have to be

9    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.        We

14   may end up, through exigent circumstances, having

15   to move that body sooner than later to, again,

16   maintain the integrity of it.

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                  DET INSP OLINYK:      Yes, quite often
25   they do, but in this digital age, with the

     613-521-0703        StenoTran  

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:    Yes, the

11   identification officers will certainly do that.

12   That is part of what they do.

13                    You see, the whole purpose is to

14   record the scene as accurately as they can, and to

15   record it as it is.    That is critical.

16                    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.    I wait out -- I let them come to me

22   with the video, or whatever the case may be, which

23   is quite often the case.

24                    One thing that we do is ensure
25   that there is a flat plan drawing of the residence

     613-521-0703          StenoTran  

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.      If it is

12   outdoors, if it is on the body, we may end up

13   having to seize it to preserve it.

14                    So, in certain circumstances, we

15   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.    That may be referring to a
25   particular ligature, that may be referring to a

     613-521-0703          StenoTran

1    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                     So, for those reasons, we would

10   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.     If it turns

22   out to be a criminal investigation, clearly we go

23   through the Criminal Code processes.

24                    So it is for those reasons why we
25   do not search for those items at that time.

     613-521-0703         StenoTran 

1                   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:     Correct.

6                   MS COUTLÉE:     -- and you wait until

7    the post-mortem is completed prior to processing
8    the remainder of the scene?

9                   DET INSP OLINYK:     That's correct.

10                  MS COUTLÉE:     When you speak of the

11   post-mortem, does that mean autopsy?

12                  DET INSP OLINYK:     That's correct,

13   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:     Much of what

19   Detective Inspector Olinyk has said would apply.

20                  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

     613-521-0703        StenoTran 

1    court purposes, for the benefit of the potential

2    accused, as well as the gathering of evidence

3    against the accused.

4                    So you have to be extremely

5    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.   They would be the lead group

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                   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

     613-521-0703           StenoTran

1    exhibits.

2                   Often what you find is, there is

3    more than one crime scene.

4                   So it's very situational when you

5    ask the question:   When do the exhibits get

6    seized.

7                   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.     We have
25   the luxury of going back and seizing additional

     613-521-0703         StenoTran 

1    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.       You may have to get the remains into a

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

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

     613-521-0703             StenoTran

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.      Would that

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:   It would start,

10   as Staff Sergeant Clark mentioned, from the

11   outside in.      It would include the approach.    I

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.

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.      That video can then be manipulated in

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

     613-521-0703            StenoTran

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.        So

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                   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:      Absolutely.

21                  I'm sorry, I obviously didn't

22   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

     613-521-0703        StenoTran  

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.

     613-521-0703          StenoTran

1                      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.     And it's really up to them as to when they

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

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.

     613-521-0703           StenoTran

1                   Each exhibit would be photographed

2    as to its location.     Often a floor plan drawing

3    will be produced.     They will take measurements.

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.     And then it's all

7    dropped into a floor plan that can be produced for
8    investigational purposes.

9                   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.       It's

12   likely going to be a process that takes place over

13   the course of the scene examination.

14                  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                  Again, is this something that
25   needs to be done before the body is removed, or

     613-521-0703           StenoTran

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.       And it may be that that

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                     So it gets down to how they manage

12   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                     S/SGT CLARK:    Well, I think you

18   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.       They say,

     613-521-0703          StenoTran  

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.     And
25   basically, we do -- always use the same thing in

     613-521-0703         StenoTran

1    any death scene, as I alluded to earlier, about

2    pathic contamination, so not walking where

3    everybody else would walk, necessarily.

4                       But again, we're considering this

5    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.     We don't do videotaping of that

9    removal in Edmonton.

10                      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.     They do their

15   own photographs.

16                      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.     Every investigation is

24   different.     Every scene is different.    So it
25   depends on a lot of circumstances.     Environmental

     613-521-0703           StenoTran 

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.     Sergeant basically

15   oversees and manages the crime scene.

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.    And they would do their

23   pictures and have that body removed.

24                  Once that body's removed, then the
25   Ident team would begin their examination of the

     613-521-0703        StenoTran  

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                    All that stuff would then take

13   place at that time.

14                    And that would continue for hours

15   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                    We don't hold the scene in the

21   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.   There could be valuables in there.
25   We could put a lockbox on the door, and that has

     613-521-0703          StenoTran

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.    They have to take a break.

16   The Ident team goes to the autopsy and then comes

17   back.

18                  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?

     613-521-0703          StenoTran

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.       That includes all
8    the cataloguing.

9                       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.       So it's his job

20   to document.

21                      So we have the elderly female in

22   her bedroom.   He needs to document her position,

23   basically taking notes of everything he sees.

24                      We teach our officers to do what
25   we call a three-level room scan, so as an ex-Ident

     613-521-0703           StenoTran 

1    officer, I would walk into a room.      I would stop

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.         Looking

5    eye level, noting everything I saw, and looking

6    ceiling level, noting everything I saw.

7                       And that's what our investigators
8    should be doing.

9                       It doesn't happen in every case.

10   The Constables often aren't as well trained.

11                      But at the suspicious death or

12   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                      MS COUTLÉE:   Absolutely.    Now is

21   the time.

22                      THE CHAIRPERSON:   Yeah.    Let's

23   just take, if we could, five, 10, seven or eight

24   minutes just so that we can have a quick health
25   break.

     613-521-0703           StenoTran

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?         So

9    just for purposes of timing, so thank you.

10                   MS COUTLÉE:   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                   I would ask you, Insp.

18   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.   And at that, I would suggest that

23   there are other ways to conceal the body.

24                   So my answer would be that you
25   wouldn't drape it or anything like that.      You

     613-521-0703         StenoTran 

1    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.        And unless there was some sort of

5    exigent circumstance and there was no other means

6    to do it, I wouldn't -- I wouldn't think it would

7    happen.
8                         MS COUTLÉE:    And S/Sgt Clark?

9                         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.        It's open to the public.

19                        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

     613-521-0703              StenoTran    

1    from seeing it.

2                      In the case of an indoor scene,

3    it's a lot more controlled.     So while we wouldn't

4    per se cover the body with anything at the time of

5    removal or at any point.    We would block the scene

6    off from any persons viewing into the scene.

7                      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                     MS COUTLÉE:   And Det. Insp.

16   Olinyk?

17                     DET. INSP. OLINYK:   Yeah, much the

18   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.

     613-521-0703          StenoTran

1                       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.     We have some very senior

18   people in that office and we value their opinion

19   with, you know, high credibility.

20                      I would say they have with all of

21   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.        I'll

     613-521-0703           StenoTran 

1    tell the Constable, "Look, I'm going to send a

2    medical examiner out there.      Let him have a look".

3                       You're concerned about some

4    bruising or something that just isn't right, let

5    him have a look.     He'll have a much better idea.

6    He's more of a medical expert than you are.

7                       And they'll come out and make a
8    determination.     And they may say, "You know what,

9    this is suspicious to me".

10                      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

     613-521-0703           StenoTran

1                   DET. INSP. OLINYK:      Yeah.      The

2    coroner views, clearly, we're very much interested

3    in that, obviously.    But I just have to say that

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                   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

     613-521-0703           StenoTran  

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.    And a lot of our

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:   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.       So I

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

     613-521-0703         StenoTran

1    first attendance at the scene and the removal of

2    the body?

3                      Det. Insp. Olinyk?

4                      DET. INSP. OLINYK:   Yeah.    Again,

5    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.      They would then

22   have their NCO come in within a short period of

23   time.

24                     My guess would be that the coroner
25   would maybe come from another distance or they can

     613-521-0703           StenoTran

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:     S/Sgt Clark?

17                  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

     613-521-0703          StenoTran 

1    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                    MS COUTLÉE:    Well, you can tell me

9    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.   Other than that, they

21   would take all the medications, including the

22   suicide note.

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

     613-521-0703        StenoTran  

1    later from the medical examiner's office.         That

2    can be done.

3                        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                       So in non-criminal, the suicide

15   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.       It would not go with the medical

24   examiner.       We would retain continuity of that as
25   an exhibit.       It would ultimately, you know, end

     613-521-0703             StenoTran

1    up -- could end up in Court if someone was ever

2    charged.

3                   MS COUTLÉE:    And I'm sorry to

4    interrupt.

5                   In those cases, do you proceed to

6    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.   I mean, if it's a
25   non-criminal death, it's a suicide, I think the

     613-521-0703        StenoTran 

1    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.        If they want to know the

6    contents, absolutely.

7                         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.     Some

13   families do.        Some families need more closure than

14   others.        I mean it's a case-by-case basis.

15                        I wouldn't hide the fact that

16   there's a note.        It's different if it's a

17   suspicious or criminal death.          Absolutely, I

18   wouldn't be telling them -- I would be giving them

19   very limited information.          I would not be telling

20   them there's a note, because we don't know who the

21   suspects are.

22                        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.          So, absolutely,

     613-521-0703              StenoTran 

1    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.      Not giving them the exhibit

7    by any means, because it's needed for court, but
8    just elaborating to as what's going on.

9                       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.           I

19   have heard of ones where they have had -- you

20   know, they've said, "I want to be cremated", or

21   whatever.      I would pass those on.    If it's

22   non-criminal, absolutely, I'd pass that on --

23   information on to the family.

24                      If it's a criminal investigation,
25   I really wouldn't be saying a lot to them, again,

     613-521-0703            StenoTran 

1    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.       We look at each
8    case again, you know, on its own merit and set of

9    circumstances and so forth.

10                      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                      Then, again, before we debrief the
25   family, in terms of setting up a meeting where,

     613-521-0703            StenoTran

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.     That is
8    from the regional coroner's office.     They're the

9    ones that are responsible for releasing that.

10                    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.

     613-521-0703         StenoTran 

1                     So there are circumstances where,

2    you know, that may be the case.       I think it's

3    left, you know, depending on the case.

4                     MS COUTLÉE:      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                     DET INSP OLINYK:      Well, again,

9    it's case-specific.    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.           But

15   there are times where, you know, depending on the

16   complexity of the case, it may be a considerable

17   time.    It may be weeks.    It could be months.       It

18   all depends on the evidence that we have.        So

19   can't really make that...

20                    MS COUTLÉE:      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:      Right.
25                    MS COUTLÉE:      So in cases where

     613-521-0703          StenoTran  

1    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:     Yeah.   You know,

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.    So having said that,

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                   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.       So they're
25   very careful, in terms of what conclusions they

     613-521-0703        StenoTran  

1    can draw based on the handwriting analysis.           But

2    having said that, we would still do that.

3                      MS COUTLÉE:    Inspector

4    Fitzpatrick --

5                      S/SGT CLARK:     Could I just clear

6    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.       Because they are the

16   lead agency.     If we're directed by them that we

17   can give a copy, then we would then do that.

18                     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                     S/SGT CLARK:     No, I don't

22   recall --

23                     MS COUTLÉE:    -- don't have it.

24                     S/SGT CLARK:     Sorry.    Yeah, we
25   don't have it in non-suspicious, but we wouldn't

     613-521-0703           StenoTran   

1    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.      Sometimes it can be

18   other articles, like valuable jewellery, that type

19   of thing, that will have to be dealt with down the

20   road.

21                    But in answer to the question

22   regarding a suicide note, it would be seized.           I

23   would expect that it would be up to the coroner to

24   articulate to the family that there was a note.             I
25   would expect that if there was any content in the

     613-521-0703         StenoTran    

1    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.     I

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                  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.     That

15   would include the suicide note.

16                  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

     613-521-0703        StenoTran

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.      But the ultimate

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,

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.      You would want to seize the actual pad

24   of paper that it came from, even as far as the
25   pens in the house, that type of thing, to discount

     613-521-0703            StenoTran

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.      Often that would have to be something

6    that would have to be reconciled to determine if

7    there's any criminality in that aspect of it.
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.        So in cases

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                      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                      And if we could start with you,

21   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.         So they
25   determine non-suspicious.        They would submit a

     613-521-0703            StenoTran 

1    report.

2                         We require same-day reporting in

3    Edmonton, so the report has to be submitted that

4    shift before he goes home.         They're all

5    computer-generated reports.

6                         Part of his duties would be to

7    contact next of kin.        That's a major part of,
8    obviously, any death investigation.         But it would

9    be left up to that constable to contact the next

10   of kin.        Or make attempts.   A lot of times that

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                        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.          So we

20   have five stations.        If he works out of downtown,

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                        So when I come into work the next
25   day, I review all the death reports that have been

     613-521-0703              StenoTran

1    reported overnight.        My job is to review that

2    report.        Basically, I'm reading that report to

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                         But he basically has to convince

9    me, as I'm reading the report, that this death is

10   non-criminal, and why it's non-criminal.           And I'm

11   looking for those things in his report.          I'm also

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 if I'm satisfied with that, I

17   simply write that I've reviewed it.          If I'm not

18   happy, I send it back and say, "Listen, I need

19   more explanation".        And that happens, you know,

20   not regularly, but it does happen.

21                        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:     In Edmonton, yes,

     613-521-0703              StenoTran 

1    it's fairly quickly.    I mean they will submit

2    their initial report.    They may not have all the

3    answers as to the death, absolutely.     We normally

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                    So normally they submit the

9    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.   And then we ultimately wait for

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                   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.      So from
25   there it goes immediately to his supervisor.       The

     613-521-0703           StenoTran

1    area crime supervisor or detective sergeant would

2    also be notified of every death investigation.           So

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                        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.       Some absolutely, some not.

17   Depending on, you know, the post-mortem report,

18   obviously, that's going to be months away.         The

19   toxicology report, if, in fact, that factors in,

20   could be some time.       There could be some other

21   reports as well that we're waiting for, so --

22   footwear examination, that sort of thing, for

23   example.

24                       So those things may take some
25   time, but, at the end of the day, a non-suspicious

     613-521-0703             StenoTran

1    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                        DET INSP OLINYK:    Well, it all

9    depends.       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.         Some can take

12   a lot longer than others.         It all depends on the

13   circumstances for that specific investigation.

14                       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.       One of the reports that is

20   required at the end of the investigation is the

21   Sudden Death Report.       That's a report similar to

22   what I would term a Crown counsel report:            if you

23   were to charge somebody, you would put a report

24   into the Crown counsel.       And there's set forms.
25                       There's a set form in British

     613-521-0703             StenoTran   

1    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.       If there

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                       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.       The coroner then will review it and come

20   back with whatever questions are necessary.

21                       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.       It would then have to go to
25   typing and that type of thing, the normal

     613-521-0703             StenoTran

1    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.       But
8    after a certain diary date, a supervisor is

9    alerted and that member is informed that they need

10   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.   So what I would like to do is to

17   have you comment on certain investigative steps

18   and tell me how important these steps are in

19   suspicious cases.

20                    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:    Oh, absolutely.

     613-521-0703         StenoTran 

1    I mean that's one of the first things that we're

2    going to do.     Whoever calls that in, that person

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                      So we start off with the first
8    source of potential information, and that's how

9    we'll do that.

10                     MS COUTLÉE:   Will that interview

11   normally be recorded?

12                     DET INSP OLINYK:   Oh, it'll be

13   definitely recorded.     There's, you know, different

14   methods of recording, obviously:      handwriting -- a

15   handwritten, rather, statement, there's audio

16   statements, and then, of course, there's

17   audio-video statements.

18                     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.      There's

22   obvious advantages to that.      Sometimes location

23   and geography will preclude us from that,

24   depending on where we are.      But, at the very
25   least, audio.

     613-521-0703           StenoTran

1                       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?        For

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:   No, they're very

11   critical.      I never underestimate the importance of

12   canvassing, and the subsequent interviews of

13   neighbours.      There's really no limit.    If it's in

14   an apartment building, we will interview -- we

15   will canvass everyone that we can.

16                      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.      So we will take fairly

20   extensive measures to interview and -- well, at

21   the very least, start off with canvassing, and

22   then subsequently interview those people.

23                      MS COUTLÉE:   How soon after the

24   death is this done?
25                      DET INSP OLINYK:   Well, we set up

     613-521-0703            StenoTran 

1    our canvas teams very shortly after.     That's one

2    of the first things that we set up.     Being

3    assigned to the case, we'll put a canvas team

4    together.

5                    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.     We have various roles

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                   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.        If we

17   have 20 homes to canvas, well, that's a little

18   less complex.   If we have an apartment block or

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.    But sooner than later.

22                   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

     613-521-0703         StenoTran 

1    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:      Oh, absolutely;

13   absolutely.    I mean it's -- we want to get the

14   answers to everything.

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.    That's of critical

19   importance to us.

20                     MS COUTLÉE:   Now, Inspector

21   Fitzpatrick, I will ask you about the same

22   investigative steps, if you could comment on their

23   importance?    Interviewing the person who called in

24   the death how important is it, when is it done,
25   how is it done?

     613-521-0703          StenoTran   

1                      INSP FITZPATRICK:   Absolutely

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                     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.     They will take steps as far as if it is a

24   larger group of people to get a piece of ID from
25   them and retain it so that they don't lose the

     613-521-0703           StenoTran

1    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                   It gets down to demographics and

9    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.      You

15   can't put these things off.

16                  MS COUTLÉE:      And what about

17   neighbourhood inquiries?    How important are they?

18   How extensive are they?    How are they conducted?

19                  DET INSP OLINYK:      Again, I would

20   echo Detective Inspector Olinyk's view on that.

21   We have canvass teams.

22                  Obviously, or one of the big

23   things, we will canvass right at the outset as

24   early as possible is a video canvass.     We'll send
25   investigators out to actually try and identify the

     613-521-0703        StenoTran  

1    last time this person was seen.     Perhaps they were

2    in a gas station or in the drug store or something

3    that led to the death.     That would be one issue

4    that would be dealt with very quickly.

5                      But in terms of neighbourhood

6    physical door knocking it would be something that

7    was at the front end.     We often talk about front
8    end loading our investigations.     That would be one

9    of the issues that would be part of the

10   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.     They are trained,

17   knowing just what questions to ask and things like

18   that.    We can assemble that and get them on the

19   ground within short order.

20                     Or it could be the detachment

21   plainclothes section that are assembled.      They

22   document everybody and every house and/or

23   apartment.     If there is anything relevant it's

24   brought back to the command triangle and
25   statements are taken from them.

     613-521-0703           StenoTran

1                       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.      You know, if there is

5    any sort of a view, you follow your evidence.

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.        Then you

9    would follow your evidence and you would continue

10   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.        And the

19   best evidence is all the evidence.

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                      So, yes, absolutely critical for a
25   timeline and if there is any kind of suspicion

     613-521-0703            StenoTran

1    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:   Any number of

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                  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.

     613-521-0703        StenoTran 

1                   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.      Really,

10   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.      The

19   interviewing of the first person is critical and,

20   in our cases -- and we are dealing now with

21   suspicious deaths.

22                  Normally, the first responding

23   officer may run into that person.     They have

24   called in and they are probably there.
25                  So it would be normally a quick

     613-521-0703         StenoTran 

1    verbal statement from that officer.      Should be

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                       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.         You

13   don't let them get their stories straight.        You

14   want everybody to be independent of one another.

15                      So witnesses have to be -- they

16   basically have to be triaged.      They would have to

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                      So the first person may write out

22   a statement.     But if it's a suspicious death as

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

     613-521-0703           StenoTran

1    down to the closest police station; normally,

2    police headquarters because the homicide unit in

3    Edmonton works out of there.        And we would do an

4    audio/videotaped interview with that person

5    because they are a critical person.

6                       MS COUTLÉE:    And what about

7    neighbourhood inquiries?      How important are they?
8    How extensive are they?      How are they done?

9                       S/SGT CLARK:     Every scene is

10   different.      They are very important, extremely

11   important.

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.      They are usually started before I'm

20   even notified.      If it's suspicious death I could

21   get the call within 15 minutes to half-hour of the

22   crime once they determine its suspicious.

23                      And usually when I'm on the call

24   we start the door to door inquiries.        The
25   sergeants on scene know.      They will have the

     613-521-0703            StenoTran 

1    constables.     They will have extra patrolmen

2    brought in, extra detectives from their division

3    could be helping out and they're already

4    canvassing the neighbourhood.

5                      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.       If they're not

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                     And again, every scene, every

16   crime scene is different.       So it's tough to say

17   how large an area you would cover.       It all depends

18   on the scene.

19                     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.       That's a

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

     613-521-0703           StenoTran 

1    at that.

2                        So they can be quite extensive

3    and, depending, you know, you can enlarge the

4    area.    I you find out suspects have moved or they

5    ran through a neighbourhood, you may enlarge that

6    area and continue on.

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.       Again, we've had the investigations in

12   apartment buildings.       If it's happened on one

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                       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.       It was like in a

22   barracks or something like that.         And based on the

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

     613-521-0703             StenoTran 

1    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                     So when you're looking at

6    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:    And -- yes.

11                    INSP. FITZPATRICK:    Oh, okay.

12   Sorry.

13                    I just wanted to make a

14   clarification.   I thought you were finished.

15   Sorry.

16                    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.      Or we may even go as

20   far as putting them before a polygraph, things

21   like that.

22                    So the importance is very

23   critical.

24                    MS COUTLÉE:    And in terms of
25   establishing the chronology of when the body was

     613-521-0703         StenoTran  

1    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:     Absolutely critical.

6    Again, the time line is extremely important.

7                      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".     In reality, that doesn't happen.

12                     Coroners or medical examiners

13   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?"     "Well, last time they were seen alive to

18   the time you found them.     It's somewhere in

19   there".

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.     Who was the last person to see
25   them?

     613-521-0703           StenoTran 

1                     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.     So he would

5    stay with that body, the first police officer.

6    He's not to leave the body.

7                     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.     So that's critical.

11                    So we basically need a time line

12   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?        Do we have

17   people with proper alibis for specific times?

18                    So it is a critical part of the

19   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.        Is there

24   anything you'd like to add to what your colleagues
25   have said on this topic?

     613-521-0703         StenoTran 

1                     DET. INSP. OLINYK:    No, I think

2    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                     And no, I think they've got it
8    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                    And I will ask S/Sgt Clark for

18   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.

     613-521-0703         StenoTran 

1                       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.     So a lot of times our

5    investigations overlap, so we're always liaising

6    with those agencies.

7                       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.       And then we're

13   directed by our Chief to either go assist in this

14   investigation or, you know, whatever expertise we

15   can provide.

16                      Sometimes we send a full team out.

17   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?

     613-521-0703           StenoTran 

1                      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.     And you know, I have

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                      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.     I wouldn't be able to answer

12   that.

13                     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.       But quite often, we
25   will be called on to provide assistance with

     613-521-0703           StenoTran 

1    respect to what's primarily homicides, but major

2    cases.     And it's not only in Ontario.    We have

3    folks out in Nova Scotia as we speak and Cape

4    Breton Island and Vancouver.       We've been out there

5    a couple of times.

6                      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                     We work with, actually, our

22   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

     613-521-0703           StenoTran 

1    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.     I believe it was in Trenton.

5    They --

6                       MS COUTLÉE:   And you don't have to

7    provide details.
8                       DET. INSP. OLINYK:   Yeah.

9                       MS COUTLÉE:   I don't want you to

10   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

     613-521-0703           StenoTran   

1    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.   And also, a large part of what

16   they do is review investigations for best

17   practices, for, you know, the basic review.

18                    Are they on the right track, have

19   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

     613-521-0703         StenoTran

1    Accreditation Program that comes under the

2    Office -- the OISP office.      And we have a lot of

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                      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:   Personally, I

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                     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.    But I can't state specifically

24   any particular knowledge.
25                     I know that our -- if we, in

     613-521-0703          StenoTran 

1    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.      But I

15   want to make sure that I have this clear in my

16   head.

17                  Just simply about the wearing of

18   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:     No.   I mean,

     613-521-0703        StenoTran  

1    more often than not, our forensic officers will

2    be, in fact, gowned in biohazard suits pretty much

3    on any scene examination.

4                      MS COUTLÉE:   Including

5    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                      So not only just on an evidentiary

10   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.    Well, probably more -- all the

14   time, I would venture to say.

15                     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?      Can you explain

19   in what circumstances they're worn?

20                     INSP. FITZPATRICK:   I think it's

21   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.    But anything to do with

     613-521-0703          StenoTran   

1    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.    They will be removing the

5    footwear any time they go in and out.

6                    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:     That's a

18   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.     It's dependent on

22   the situation that they're going into.

23                   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

     613-521-0703          StenoTran

1    given.

2                    THE CHAIRPERSON:     If I could add,

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:     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.

     613-521-0703        StenoTran  

1                     MS COUTLÉE:    For cases of apparent

2    suicide, would they use the suits?

3                     S/SGT CLARK:      We wouldn't send our

4    Ident teams out to a suicide complaint.       Just too

5    many and too busy.     We don't have the manpower.

6                     MS COUTLÉE:    Thank you.

7                     THE CHAIRPERSON:      Thank you.
8                     Col Drapeau?

9                     Do we need a five-minute health

10   break, or is everybody okay to go?

11                    Okay, carry on.


13                    COL (RET'D) DRAPEAU:      Inspector,

14   S/Sgt, go afternoon.

15                    I've got a question for you, Insp.

16   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                    INSP. FITZPATRICK:      I'm sorry.

23   Maybe I didn't state that properly.

24                    It's a death where an RCMP member
25   has some involvement, i.e. a police-involved

     613-521-0703           StenoTran 

1    shooting or a police-involved serious injury.           If

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.        He gets in a
8    struggle, breaks his arm and we have to have an

9    independent investigation with respect to that

10   incident.

11                      A lot of times, there's a

12   statutory investigation that goes along with that

13   incident.      It would be the local jurisdiction that

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:     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.      I mean, we look at

24   the deaths that we have, Mayor Thorpe, that type
25   of thing, all investigated by the RCMP and the

     613-521-0703            StenoTran 

1    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                      COL (RET'D) DRAPEAU:     And if it

9    occurred on RCMP property?

10                     INSP. FITZPATRICK:     It would

11   likely be -- if it was a suspicious death,

12   absolutely.    The jurisdiction that it occurred in,

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.    And we would

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                     COL (RET'D) DRAPEAU:     Okay.    Det.

21   Insp. Olinyk, would you comment on it, please?

22                     DET. INSP. OLINYK:     Yes, very much

23   the same.

24                     We -- if there's a member of the
25   Ontario Provincial Police that, you know, died as

     613-521-0703          StenoTran  

1    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.    But yeah, we would definitely do the
8    investigation.

9                     COL (RET'D) DRAPEAU:      Okay.

10   That's all.

11                    DET. INSP. OLINYK:      If it's in --

12   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                    COL (RET'D) DRAPEAU:      Of course.

17   That's what my question is.

18                    Thank you.

19                    MS RICHARDS:      No questions.     Thank

20   you.

21                    THE CHAIRPERSON:      Okay.   I'm

22   assuming no re-exam.

23                    MS. COUTLÉE:      I have no questions,

24   thank you.
25                    THE CHAIRPERSON:      Gentlemen, I

     613-521-0703           StenoTran 

1    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                         S/SGT CLARK:     Three in the last

7    six days, yes.
8                         THE CHAIRPERSON:     Yeah, I can

9    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.         And thanks to each of

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.    Please convey that

21   thanks.        I'm sure we will by way of a letter at

22   some point, so thank you.

23                        That concludes for today.       We're

24   all set for tomorrow morning at 9:30.
25                        Do we have -- maybe you could help

     613-521-0703              StenoTran 

1    me.     What do we have tomorrow?

2                       MS. COUTLÉE:    We have two

3    witnesses, Mr. Chairman.     And I know that now I've

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                       THE CHAIRPERSON:    Okay.     Thank
8    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








23                          We hereby certify:

24                          That the foregoing is a true
25                          and correct transcript of the

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1                          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.





15   ___________________

16   Lynda Johansson


18   ___________________     ______________________

19   Monique Mahoney         Susan Villeneuve


21   ___________________     ______________________

22   Karen Paré              Beverley Dillabough

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