Military Police Complaints Commission

Military Police Complaints Commission

FYNES PUBLIC INTEREST HEARINGS

held pursuant to section 250.38(1) of the National Defence

Act, in the matter of file 2011004

LES AUDIENCES D'INTÉRÊT PUBLIQUE SURE FYNES

tenues en vertu du paragraphe 250.38(1) de la Loi sure la

défense nationale pour le dossier 2011004

TRANSCRIPT OF PROCEEDINGS

held at 270 Albert St., Ottawa, Ontario

on Monday, May 14, 2012

lundi, le 14 mai 2012

VOLUME 21

BEFORE:

Mr. Glenn Stannard Chairperson

Ms Raymonde Cléroux Registrar

APPEARANCES:

Ms. Dana Cernacek Commission counsel

Ms Genevieve Coutlée

Mr. Rob Fairchild

Ms Elizabeth Richards For Sgt Jon Bigelow, MWO Ross Tourout,

Ms Korinda McLaine LCol Gilles Sansterre, WO Blair Hart, PO 2 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 Mr. Shaun Fynes

Mr. Joshua Juneau and Mrs. Sheila Fynes

200 Elgin Street, Suite 1105 333 Bay Street, Suite 900

Ottawa, Ontario K2P 1L5 Toronto, Ontario M5H 2T4

(613) 564-2727 (416) 861-8720

(ii)

INDEX

PAGE

SWORN: LCdr CHARLES GENDRON 14

ExaminationinChief by Ms. Cernacek 14

Cross examination by Col. (Ret=d) Drapeau 49

Cross examination by Ms. Richards 55

ReExamination by Ms. Cernacek 57

Further Cross examination by Col (Ret=d) Drapeau 58

Questions by the Chairperson 59

SWORN: WO (ret=d) CAROLINE DOUCETTE 60

ExaminationinChief by Ms. Cernacek 60

Continued Examinationinchief by Ms Cernacek 97

(iii)

LIST OF EXHIBITS

NO. DESCRIPTION PAGE

P 74 Directorate of Casualty Support Management Guides 13

P 75 Annexes and references to summary investigation into circumstances surrounding administrative actions taken by the unit after the death of Corporal Langridge 13

P 76 Witness Book Index for Lieutenant Commander Gendron 14

P 77 Witness Book Index for Warrant Officer (ret=d) Doucette 14

Ottawa, Ontario

Upon resuming on Monday, May 14, 2012

at 9:44 a.m.

THE CHAIRPERSON: Good morning. Ms. Coutlée.

MS. COUTLÉE: Mr. Chairman, I understand that Colonel Drapeau has some issues that he wants to raise this morning.

COL. (RET'D) DRAPEAU: Mr. Chair, good morning to you.

THE CHAIRPERSON: Good morning.

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COL. (RET'D) DRAPEAU: It's a followthrough with the discussion we had last week concerning the allegation made by Mrs. Fynes during her testimony that one of the video or transcript or both had shown some irregularity in the transcript. We're almost completed in looking at what we undertook to do. We have found the transmitting letter from the Directorate of Access to Information and Privacy, the defence department, which claims some redaction or severances, to use the access languages, first, and second, to transmit to us not one but two CD ROMs, one containing the audio of the May 2010 interview, which is what the allegation was all about; and second, a police report. We have a hard copy of this police report, which we will produce to you as soon as we can get our hands on the second CD ROM that is on its way from Vancouver. We will have that either today or tomorrow. By the time we have that, we will also we'll be more precise in what the allegations are. We also have received a copy of the video correction, of the CD ROM from the commission.

THE CHAIRPERSON: Just so I have it, the video and the police report are two separate issues.

COL. (RET'D) DRAPEAU: But they were both transmitted to us in the same covering letters. The covering letters talk of severances. We believe the severance applies to the second video, not the first one.

THE CHAIRPERSON: So these are severances, cuts from the video?

COL. (RET'D) DRAPEAU: That's right.

THE CHAIRPERSON: Cuts from the video?

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COL. (RET'D) DRAPEAU: No. That point has not been established. I have to wait until we have it to know whether or not what the covering letter states as severances under section 19 and 23, 19 being personnel information, 23 being clientsolicitor. I have to compare them and to see to what it applies. It is not distinctive as to which one it applies to.

Item 1. We'll be communicating that to the commission tomorrow or the day after at the latest. My request is that Mrs. Fynes be allowed to return to testify in order to show this video and in order to indicate clearly that there is a foundation for her having made the allegation. She's not going to go through the merit whether or not the cuts or irregularities, as I call them, are or are not nefarious, too soon to say that, but that's what gave rise to her apprehension and hence her allegations.

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The best way I would propose to do that would be on Thursday, because on Thursday we will also be hearing the testimony of Ms. Julie Jansen, director of the access to information and privacy directorate at National Defence headquarters. If required, we could also ask her and she can be asked to be prepared to also comment on redactions to either the police report or the video.

THE CHAIRPERSON: Okay, but the police report, why would she have to reappear and testify on the police report?

COL. (RET'D) DRAPEAU: She doesn't have to.

THE CHAIRPERSON: You're just talking about the video issue. The police report you're talking about are the two different ones that have different pages and whatnot?

COL. (RET'D) DRAPEAU: I believe so. I'm not a hundred per cent.

THE CHAIRPERSON: There are, through SAMPIS, explanations in terms of when reports are produced, on the date you get it this is what you get, and if you get a next FOI, that's the report you get. As they've added things, you get different reports.

COL. (RET'D) DRAPEAU: Yes. I'm not concerned about the police report itself.

THE CHAIRPERSON: The police report is not an issue?

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COL. (RET'D) DRAPEAU: The transcript of the tape is the issue. We have three things. We have the video, we have a transcript of the video and then we have the police report. The police report is not an issue on my plate.

THE CHAIRPERSON: Okay. And the transcript of the tape is the transcript of the video?

COL. (RET'D) DRAPEAU: That's correct. And by the way, we have received the audio tape from the commission, not a video from the commission. I'm certain it will all be clear by the end of the day.

THE CHAIRPERSON: I'm still not certain I have it all, but maybe tomorrow we'll provide some final.

Ms. Richards.

MS. RICHARDS: Did Ms. Coutlée have something to say before?

MS. COUTLÉE: Just very briefly on the issue of the video. The commission does have the video, and because of a technical problem in copying, it didn't get on the CD ROM provided to Mr. Drapeau, and probably similar to the one provided to Ms. Richards, so we're working on it to make sure the parties receive the video that is in the possession of the commission.

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COL. (RET'D) DRAPEAU: My purpose this morning is only to reserve the time, with your approval, for Mrs. Fynes to come and return to the table to testify on Thursday. We'll get everything else, the ducks in order, between now and then.

THE CHAIRPERSON: I'm not certain what it is she's going to testify to.

COL. (RET'D) DRAPEAU: She will testify to the video that she has received, which formed the foundation, the basis for her making allegations. They were irregularities between the transcript and actually what she said, or what she is alleged to have said to the police during her interview with her and Mr. Fynes.

THE CHAIRPERSON: Ms. Richards.

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MS. RICHARDS: Yes. We object to recalling Mrs. Fynes on this issue. First of all, the video that's in her possession from ATIP in our submission is relatively irrelevant. The transcripts that are before this commission were prepared by the MPCC based on the audios and videos that they had. So the video that she has that she got through another source is not the source that was used to prepare the transcripts that are before this proceeding. The source that was used are the videos and the audios, as I understand it, that have now been filed.

Until we add, as you've said, I think, more smoke than light to this, I think we need to do the due diligence to go back and look at the recordings and see if there is any merit whatsoever to these allegations that things have been removed from the recordings. It's unfortunate that this has been raised at the first time in the middle of this hearing and that my clients had not been informed previously that there were these concerns, but I can tell you that I am consulting with Commission counsel, we are moving to see what we can do to provide some evidence that will assist the commission on this issue.

THE CHAIRPERSON: Okay. Colonel Drapeau, I'll wait until I hear what you have to say tomorrow to finalize or to firm up a couple of things, but in terms of the foundation, I'm not concerned with the foundation. Mrs. Fynes said what she said, and we need to check out what the issue is. So I don't question the issue whether it be foundation or whatever word. We'll deal with it. Whether or not we decide to bring Mrs. Fynes back, I'll make that decision not today but after tomorrow, we'll go from there.

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COL. (RET'D) DRAPEAU: To assist you in your decision making, there is two sets of allegations. Allegation Mrs. Fynes made under oath that it was something irregular and an allegation made by my friends that there is no foundation for it. That allegation may not be of concern to you. It is a concern to us, because now Mrs. Fynes has been pictured as someone who has made wild allegations, no foundation for it. There is a foundation. The foundation may be found to arrive at a plausible explanation for it, but she should be allowed to make the case. This is what I said, what I said during examinationinchief, under oath. The tape that she received from it's not irrelevant. An official source. The Government of Canada access to information directorate at National Defence headquarters. She doesn't know there are three or two copies circulating, one being different from the others. We will compare the video that the Commission will send to us we haven't received it yet to see if there is any difference between the two. Hopefully there isn't. But if there is, then she should be allowed in my respectful submission, to be able to show cause as to why she made those allegations, which came and surfaced as she testified.

THE CHAIRPERSON: At this stage, she said what she said. You call it your friends. You're referring to counsel, I take it.

COL. (RET'D) DRAPEAU: Exactly.

THE CHAIRPERSON: What they had to say is not evidence. What she had to say is evidence, and I'll deal with that. But I'll let you finish tomorrow. But what they had to say is really not evidence here. They made a comment. What Mrs. Fynes said is more concerning to me, which should be more which should be

COL. (RET'D) DRAPEAU: Mr. Chair, I will close on that. I don't want to blindside you. The video, as otherwise I wouldn't be arguing here. The video will show that Mrs. Fynes had cause to apprehend something happened, and that's what we're saying and the video ought to be shown in order that she can make formed the reasonable belief that if something happened with the video. That is what I am saying.

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THE CHAIRPERSON: It may well be shown, but it doesn't need to be that we have to go through it and do all the research to get the facts of it. At the end of the day, it may be shown, but right now we have copies and different things. I'm not disputing what Mrs. Fynes said. Mrs. Fynes said what she said. I'm not saying she didn't have a right to say it. She made that statement. I'm not going to argue I'm not going to go on and argue this. We have witnesses to hear.

The difference between what she said and what Ms. Richards or Ms. McLaine I don't know which; I can't remember now it's her evidence that concerns me, and that's what we need to take to heart. I think we're doing that. So you're arguing something that I don't know you really need to argue with me. I'm not disagreeing with you.

COL. (RET'D) DRAPEAU: Good.

MS. RICHARDS: I think there's a proper way to look into this issue and those steps are underway and everybody will make all best efforts to do that as quickly as possible.

THE CHAIRPERSON: These things don't happen overnight to review these tapes and do all the things that need to be done. It's not a quick process.

Exhibits?

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Just on one other issue on scheduling, I have a variety of I have a whack of correspondence here, and I think there's still some more to come. I'm going to be reviewing the whole issue relative to scheduling and whether I deal with it today or tomorrow, but sometime in the next sooner than later.