CITATION: Merrifield v. The Attorney General, 2017 ONSC 1333

COURT FILE NO.: CV-13-00333733-00OT

DATE: 20170228

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PETER MERRIFIELD

Plaintiff

– and –

THE ATTORNEY GENERAL OF CANADA, INSPECTOR JAMES JAGOE, SUPERINTENDENT MARC PROULX

Defendant

Ms. L. Young and Mr. J. Phillips, Counsel for the Plaintiff

Mr. S. Gaudet, Mr. J. Gorham, Mr. A. Law, Counsel for the Defendant

HEARD: November 17 to 21, 24-28, December 1 to 4, 2014, May 19, 20, 21, 22, 25, 26, 27, 29, June 1, 2, 3, 4, 5, November 16, 17, 18, 19, 20, 30, December 1, 2, 3, 4, 2015, March 30, 31, April 1, 2016

Table of Contents

Introduction........................................................................................................................... 7

Issues…………………………………………………………………………..................... 7

Leave Without Pay…………………………………............................................................ 9

INSET/TAG 2004................................................................................................................. 16

Operation Bridgeout………………………………………………………………….......... 20

Barrie Nomination Meeting - May 14, 2005.......................................................................... 21

Stronach Investigation - May 19, 2005................................................................................. 30

London Meeting - May 27, 2005…………………………………………………………... 34

Criminal Intelligence - June 2005.......................................................................................... 41

The Bob Pritchard Radio Show - July 9, 2005...................................................................... 41

The Secret File 2005-1117..................................................................................................... 49

The Special Operations Center - October 23, 2005............................................................... 57

The Promotion Process.......................................................................................................... 64

Loss of Income Due to Delayed Promotional Opportunities................................................ 65

Transfer to Customs and Excise - January 2006.................................................................... 67

Mr. Merrifield’s American Express Card.............................................................................. 68

Code of Conduct Part IV Investigation – Preceding Events................................................ 76

The Investigation................................................................................................................... 79

The Administrative Review - Ottawa Citizen Article January 17, 2006............................... 86

Mr. Merrifield’s Work at Customs & Excise......................................................................... 89

Meeting with CO Seguin - The October 3, 2006................................................................... 92

Mr. Merrifield’s Email to C.O. Seguin – January 19, 2007................................................... 98

Mr. Merrifield’s Email to D/Commr. Bourduas – May 11, 2007.......................................... 103

The RCMP’s Internal Grievance Procedure.......................................................................... 105

Waterloo Police Speaking Event........................................................................................... 107

Witness ‘X’............................................................................................................................ 107

Mr. Merrifield’s Email to Senior Management...................................................................... 109

Follow Up Regarding Mr. Merrifield’s Email....................................................................... 114

Serious and Organized Crime................................................................................................ 115

Senate Standing Committee - May 27, 2013......................................................................... 118

RCMP Media Release - May 28, 2013.................................................................................. 120

Harassment Complaint - July 7, 2015.................................................................................... 121

Should the Statement of Defence be Struck for Late Disclosure............................................. 125

The Test............................................................................................................................ 125

The Plaintiff’s Position……………………………...………………………………….. 128

The Defendants’ Position................................................................................................. 133

Analysis............................................................................................................................ 134

Conclusion........................................................................................................................ 136

Mr. Merrifield’s Credibility and the Reliability of his Evidence........................................... 136

Failure to Call a Witness....................................................................................................... 138

Failure to Call Medical Evidence………………………………………………………..... 138

Unreasonable Perceptions of Harassment............................................................................. 139

In Ontario, is harassment recognized as a tort upon which a civil cause of action may be

based……………………………………………………………………………………….. 139

The Plaintiff’s Position…………………………………………………………………. 139

The Defendant’s Position………………………………………………………………. 140

Analysis……………………………………………………………………………........ 141

Test for Harassment……………………………………………………………………….. 142

What constitutes outrageous behaviour in the context of harassment.............................. 143

What constitutes causing emotional stress or having a reckless disregard for causing a

plaintiff to suffer from emotional stress........................................................................... 144

What constitutes severe or extreme emotional distress.................................................... 145

Do the defendants’ actions toward the plaintiff constitute harassment................................... 146

Leave Without Pay........................................................................................................... 146

The Barrie Nomination Meeting....................................................................................... 147

Special Operations Center................................................................................................ 150

The Part IV Investigation................................................................................................. 152

The Ottawa Citizen Article............................................................................................... 155

Mr. Merrifield’s Communication with C.O. Seguin and D/Commr. Bourduas............... 155

Serious and Organized Crime........................................................................................... 156

Senate Committee............................................................................................................. 157

Ktabi Harassment Complaint............................................................................................ 158

Conclusion........................................................................................................................ 159

Do the actions of the RCMP constitute a breach of Mr. Merrifield’s Charter rights.............. 159

The Plaintiff’s Position..................................................................................................... 159

The Defendants’ Position................................................................................................. 159

Analysis............................................................................................................................ 160

Conclusion........................................................................................................................ 160

Has the RCMP breached its contract of employment with Mr. Merrifield............................. 160

The Plaintiff’s Position..................................................................................................... 160

The Defendants’ Position................................................................................................. 160

The Plaintiff’s Position..................................................................................................... 161

Analysis and Conclusion.................................................................................................. 161

Do the actions of the RCMP regarding Mr. Merrifield constitute abuse of/misfeasance in

public office........................................................................................................................... 161

The Plaintiff’s Position..................................................................................................... 163

Analysis............................................................................................................................ 163

Do the actions of the RCMP regarding Mr. Merrifield constitute intentional infliction of

mental suffering...................................................................................................................... 165

Was the defendants’ conduct flagrant............................................................................. 165

Was that conduct calculated to cause harm...................................................................... 165

Is medical evidence required............................................................................................ 166

Conclusion........................................................................................................................ 166

Does the RCMP have a fiduciary duty to Mr. Merrifield? If so, do its actions constitute

a breach of fiduciary duty...................................................................................................... 167

The Plaintiff’s Position..................................................................................................... 167

The Defendants’ Position................................................................................................. 169

The Plaintiff’s Position..................................................................................................... 169

Analysis and Conclusion.................................................................................................. 169

Has Mr. Merrifield suffered a loss of income related to the actions taken by the RCMP....... 170

The Defendants’ Position................................................................................................. 170

Analysis............................................................................................................................ 170

Conclusion........................................................................................................................ 171

What amount should be awarded to Mr. Merrifield for general damages............................. 171

Analysis................................................................................................................................. 171

Conclusion ............................................................................................................................ 173

Is Mr. Merrifield entitled to punitive and or aggravated damages......................................... 173

Analysis............................................................................................................................ 173

Conclusion........................................................................................................................ 174

Summary................................................................................................................................ 174

Costs...................................................................................................................................... 174

REASONS FOR DECISION

VALLEE J.

Introduction

[1] Peter Merrifield[^1] joined the Royal Canadian Mounted Police in 1998 and continues to serve as a member. He alleges that after he participated in a Barrie nomination meeting for the Progressive Conservative Party in 2005, his superiors made certain unjustified and unwarranted decisions about him based on allegations that had no merit. He was investigated and punitively transferred. His reputation was tarnished. He was not permitted to work during a national security emergency because his superior officers believed he was “not the appropriate resource.” Mr. Merrifield states that he was accused of committing criminal offences and subjected to an internal investigation which was groundless. He states that his superiors harassed and bullied him. They damaged his reputation, impaired his career advancement, and caused him to suffer severe emotional distress including depression. As a result, he was off work for significant periods of time. Mr. Merrifield states that his superiors intentionally caused him emotional distress or had a reckless disregard for causing him to suffer emotional distress. Mr. Merrifield claims damages for harassment, intentional infliction of mental suffering, loss of income and general damages, among other things.

[2] The Attorney General, on behalf of the RCMP, states that Mr. Merrifield violated the Royal Canadian Mounted Police Regulations 1988, SOR/88-361; however, he was never formally disciplined for any of the matters raised in this action. None of the decisions made by his superiors nor their actions taken constitute harassment or intentional infliction of mental suffering. Mr. Merrifield is a well-respected member of the RCMP. He is regarded as a very skilled officer and an asset to the organization. His superiors were entitled to make their decisions. He was not treated inappropriately. Mr. Merrifield’s career has not been impacted. He has been promoted twice and is now a Sergeant. His compensation has increased. He is a valued and respected member of the Force.

Issues

1. Should the statement of defence be struck for late disclosure?

2. In Ontario, is harassment recognized as a tort upon which a civil cause of action may be based?

3. If it is, do the actions taken by the RCMP regarding Mr. Merrifield constitute harassment?

4. Do the actions of the RCMP constitute a breach of Mr. Merrifield’s rights under the Canadian Charter of Rights and Freedoms?

5. Has the RCMP breached a contract of employment with Mr. Merrifield?

6. Do the actions of the RCMP regarding Mr. Merrifield constitute abuse of public office?

7. Do the actions of the RCMP regarding Mr. Merrifield constitute intentional infliction of mental suffering?

8. Does the RCMP have a fiduciary duty to Mr. Merrifield? If so, do its actions constitute a breach of fiduciary duty?

9. Has Mr. Merrifield suffered a loss of income related to the actions taken by the RCMP? If so, what amount should be awarded to Mr. Merrifield for his loss of income?

10. If Mr. Merrifield is entitled to general damages, what amount should be awarded to him?

11. Is Mr. Merrifield is entitled to punitive and or aggravated damages? If so, what amount should be awarded?

[3] To properly consider these issues, a review of Mr. Merrifield’s career with the RCMP and the various decisions made by his superiors is required.[^2]

[4] Mr. Merrifield’s first posting was the Wynyard Detachment in central Saskatchewan. In January 2002, he was transferred to Ontario. He successfully applied to the Air Marshall program in April, 2002. The program was set up in response to the terrorist attacks in the United States on September 11, 2001. As an Air Marshall, Mr. Merrifield’s duties were to operate covertly as a passenger on aircraft in order to provide security and respond to any potential terrorist situations. In the same year, Mr. Merrifield joined the Mounted Police Association (MPA). It provides representation to members experiencing issues with management.

[5] In November 2003, Mr. Merrifield had a performance evaluation. It covered the time from his arrival in the Air Marshall unit up to November 2003. The evaluation was very positive. It stated:

Constable Merrifield has designed and prepared lectures on CACPP [Canadian Air Carrier Protection Program] and presented to outside agencies, and has been involved in designing and presenting APO [Aircraft Protective Officers] training program of tactical skills to seconded members, he planned and prepared in-service training terrorism lectures for APO Unit.

Cst Merrifield is a highly motivated, confident member who is an asset to this program. Cst. Merrifield is a team player and is a value added member to the program. His enthusiasm, dedication, commitment to duty has [sic] a positive influence on others and this along with his positive attitude, out going [sic] personality will serve him well in his future endeavours. A pleasure to have this member in the program.

[6] Mr. Merrifield enjoyed public speaking. His superior, Insp. Josey supported his speaking engagements and interest in national security work.

Leave Without Pay

[7] Mr. Merrifield had been interested in politics since the 1980s. At that time, he was the co-founder of a Liberal youth riding association. He became involved in politics again in 2004. No member of the RCMP had ever run for political office; however, the RCMP had applicable rules and policies if a member wanted to do so.

[8] Early in 2004, Mr. Merrifield explored running in a nomination meeting[^3] to be held in the York-Simcoe riding. He downloaded the paperwork two weeks before the application deadline.

[9] Mr. Merrifield requested guidance and direction regarding the RCMP’s policies and process from the Policy Center. On February 3, 2004, he exchanged emails with Sgt. Wendy Verecchia, (Advisor, Harassment, Human Rights, Conflicts of Issue, Central Region). She advised him that she thought he would need to be placed on leave without pay (“LWOP”) and that she would contact Policy Center to confirm.

[10] Section 58.4(1) of the Royal Canadian Mounted Police Regulations SOR/88 – 361 states that:

A member who is a peace officer may, only while on leave without pay granted for that purpose, (a) run for nomination or stand as a candidate in a federal…election”

[11] The March 19, 1999 Administrative Manual states in section F.4 that:

LWOP ensures separation between the member and the RCMP: consequently, annual leave, RTO [regular time off] and LTO [lieu time off] cannot be used for political activities when LWOP is warranted.

[12] Mr. Merrifield sent a memo to Insp. Josey, requesting LWOP to participate in political activities on February 11, 2004 and March 31, 2004. March 31, 2004 was the date for another nomination meeting to be held in Richmond Hill. Mr. Merrifield stated that this memo was actually back-dated. It was prepared after the first nomination meeting because Sgt. Verecchia’s memo dated February 11, 2004 was attached to it.

[13] Cpl. DuPuy, who was an operations support officer, filled out the forms for Mr. Merrifield to apply for LWOP. A transfer authorization, form A-22A, was required to change his status to LWOP.

[14] Mr. Merrifield requested one day of LWOP. The completed forms indicated only LWOP, not any particular type. Mr. Merrifield was directed to put “personal needs” LWOP on the form. He did not know at the time when he completed the forms that he could take only two personal needs LWOPs in his career. Due to time constraints, the LWOP for Mr. Merrifield to participate as a candidate in the York-Simcoe nomination meeting was actually requested and granted after the nomination was held.

[15] Sgt. Verecchia received a formal response from the Policy Center. She sent an email to Mr. Merrifield dated February 11, 2004 which stated, “while running for nomination, a member must be on LWOP but once the nomination process is completed and the electoral campaigning has not begun, the member may return to his usual employment. When the member stands as a candidate in an election, LWOP would have to be taken again.” Mr. Merrifield interpreted “while running for nomination” to mean the date of the nomination meeting.

[16] After February 11, 2004, Mr. Merrifield prepared paperwork to run in a number of other ridings, which included York-Simcoe, Richmond Hill and Mississauga-Brampton-South. He stated that all of his paperwork was submitted between February 11, 2004 and March 31, 2004. After that, the PC Regional Co-ordinator approached him and advised against using this shot gun approach to secure a nomination.

[17] Mr. Merrifield participated as a candidate in the nomination meeting for York-Simcoe on February 11, 2004. He did not make any efforts in advance to be nominated. He simply attended the meeting. Accordingly, he was not successful in obtaining the nomination. Mr. Merrifield participated in this nomination meeting without proper approval (which came after the fact) because he decided to run on short notice; however, he stated that he did so but with full knowledge of the RCMP. He stated that he obtained informal approval from Insp. Josey to attend.

[18] At the end of the meeting, he was approached to run as a candidate at the Richmond Hill’s riding’s nomination meeting.

[19] Mr. Merrifield then attempted to withdraw his papers relating to the other nomination meetings; however, it was too late to withdraw from the Mississauga-Brampton-South nomination meeting. He did not request LWOP to attend this meeting. He stated that he spoke with Cpl. DuPuy who advised that he should submit the paperwork for two nomination meetings, being York-Simcoe and Richmond Hill, even though he had attended more than two, and that would be enough.

[20] On March 13, 2004, Mr. Merrifield attended the nomination meeting for Mississauga-Brampton-South. He stated that he attended as a courtesy. The ballots had been printed and he did not want to be a “no show”.

[21] Mr. Merrifield requested LWOP for the Richmond Hill nomination meeting and the related election period at the same time that he requested LWOP for the York-Simcoe nomination meeting. No election date had been set yet. Mr. Merrifield’s application for these LWOPs was granted.

[22] On March 31, 2004, Mr. Merrifield participated as a candidate in the nomination meeting for Richmond Hill and was successful. He sent a memo to Insp. Josey dated May 5, 2004 requesting LWOP to run in the upcoming election. He included a partially completed form A-22A because the election date had not yet been set.

[23] On the same day, Insp. Josey sent a memo to the Assistant Commissioner for “O” Division, Bradley Holman, stating that the request for LWOP was not processed in timely fashion because of time constraints. He stated, “I am submitting it to you for review and favourable consideration.”

[24] On May 13, 2004, Sgt. Steven Boos, Advisor to the Career Development and Resourcing Unit (CDR), called Mr. Merrifield to discuss the rules for fundraising. He advised that LWOP would be required for active campaigning and attending meetings as a candidate. Two days later, Mr. Merrifield received LWOP approval for the election.

[25] Sgt. Boos sent an email to Insp. Josey on May 18, 2004 discussing the two LWOP dates, February 11, 2004 (for the York-Simcoe nomination meeting) and March 31, 2004 (for the Richmond Hill nomination meeting). The email states that transfer authorizations were issued for these dates and it requests transfer authorizations be prepared showing Mr. Merrifield going on “personal needs” LWOP for these dates. The two transfer authorizations showing just “leave without pay” were attached.

[26] Mr. Merrifield stated that from May to June 2004, he campaigned for the election. He had a campaign manager, a support team and campaign materials. They set out his rank and work experience which was permitted according to s. 57(2) of the RCMP Regulations, as set out in X.2 of the Administrative Manual. It states that a member who is running for nomination or standing as a candidate in a federal election, may for identification purposes, disclose his or her rank, level and work experience in the force. He ran in the federal election which was held on June 28, 2004 but he was not elected. None of his superiors had any concerns regarding his campaign materials.

[27] After the election, Mr. Merrifield returned to work as an Air Marshall. He was very interested in terrorism. As a result, he developed other areas of work in addition to just doing his job as an Air Marshall. He gathered open source intelligence on terrorism and did some restricted outside speaking engagements which he enjoyed.

[28] Subsequently, there was a lot of confusion regarding Mr. Merrifield’s LWOPs. On June 30 2004, Sgt. Sergeant, RCMP Policy Analyst Human Resources, sent an email directing Cathy Jenion, District Manager for London, Central Region Compensation Services, to re-identify the three “personal needs” LWOP to “special leave without pay.” Sgt. Verecchia had stated that Mr. Merrifield’s leaves were to be shown as regular LWOP but no such type of leave was identified in the HRMIS program for members.[^4]

[29] Mr. Merrifield stated that he did not know why the three personal needs LWOPs were shown or why they were re-coded to special LWOP. These decisions were made at the policy level. He never received a copy of this email during the course of his employment. In July 2004, he understood from a conversation with Sgt. Boos that he was entitled to only two personal needs LWOPs in his career. He thought he had used both of them.

[30] Mr. Merrifield stated that sometime between July and the end of September, Sgt. Boos called him and said that he had good news. Only one LWOP was being used for the election so he could run again because he still had one LWOP remaining. Mr. Merrifield stated that, at this point, he understood that LWOPs had not been used and were not required for nomination meetings.

[31] Cpl. DuPuy recalled that between January and June 2004, Mr. Merrifield approached him and Insp. Josey about needing LWOP because he had political ambitions. He recalled that they contacted Sgt. Verecchia and Sgt. Boos and sought their guidance as to what to do and how the process worked. Cpl. DuPuy stated that all of this was new to him. Insp. Josey directed him to look into it, see what was required and make sure it was done. He stated that he knew Mr. Merrifield was attempting to get a nomination for the PC party.

[32] Cpl. DuPuy knew that Mr. Merrifield needed LWOP to run for a nomination. He contacted Sgt. Verecchia prior to preparing the documents. He knew that Mr. Merrifield had run at another nomination meeting but could not recall which riding.

[33] Cpl. DuPuy was familiar with transfer reports. If a person’s duties changed, these had to be filled out. He had never prepared a LWOP application for political reasons. He completed one for Mr. Merrifield which stated “LWOP – Personal Needs”. He signed the document dated January 11, 2004 because at that time he was acting for Insp. Josey.

[34] Later, Cpl. DuPuy learned that an Inspector could not sign the form. LWOP had to be requested from the Commanding Officer (C.O.). This meant that the forms had to be redone, backdated and resubmitted.

[35] Cpl. DuPuy stated that Mr. Merrifield was quite helpful. He was did not conceal his political activities and in fact was very open about them. He wanted to do everything properly. He still wanted to be employed by the RCMP if he was not elected. It was in his interest to make sure everything was done right.

[36] Sgt. Verecchia was responsible for coordinating harassment complaints and providing human resource advice to the members in 2004. On February 3, 2004, she received an email from Mr. Merrifield requesting conflict of interest advice. He wanted to run for political office and was seeking clarification on exactly what the regulations and policies stated.

[37] Sgt. Verecchia stated that ss. 56 to 58(7) of the RCMP Regulations cover political activities, when members need LWOP and how they are to act. She looked up the regulations and responded to Mr. Merrifield with her interpretation. She sent him an email stating that because he was presenting himself for nomination to eventually run in a federal election, the policy stated that he must be on LWOP to run for the nomination. A member could not be on annual leave or regular time off for this purpose. The LWOP would be continuous and without pay. In the case of the nomination process, it would begin on the day he entered the process and end on the day he withdrew or the process was concluded. Sgt. Verecchia sent a request to the Policy Branch, for their interpretation. The Policy Branch’s interpretation was the same as hers. A member cannot voice his or her political opinion or solicit support while working for the RCMP. There has to be a separation.

[38] Part of Sgt. Boos’ responsibilities was the administration of LWOP policies. As part of the protocol, he would interview a member requesting LWOP to ensure that the member was fully aware of the conditions. He stated that LWOP is a separation of the member’s employment from RCMP. Even though the member is separated, the member still has obligations with respect to conduct. A member had to be fully advised of conditions regarding other employment.

[39] Sgt. Boos’ general understanding of LWOP with respect to political activities was that LWOP was required for nomination, soliciting funds, the actual period of campaigning and running in the election. Sgt. Boos explained that in 2004, there were six kinds of LWOP. Two were potentially applicable to Mr. Merrifield. Personal needs LWOP could be granted for two periods during a member’s career for a specific cumulative length. Special LWOP required exceptional circumstances and it had to be in the best interests of the RCMP. There were no conditions regarding the number of times that special LWOP could be taken. The C.O. of a division was the person who had authority to approve LWOP.

[40] Sgt. Boos explained that his responsibility was to identify the type of leave that Mr. Merrifield required and then to make a recommendation to the C.O. for approval. If a member wanted LWOP, he would submit a request through his Line Officer (immediate superior) setting out the need for it. It would come to Sgt. Boos’ department. A staffing interview would be conducted to advise the member of the LWOP conditions followed by a recommendation to the Officer in Charge (OIC) of CDR, who was his superior. The OIC would then forward the recommendations to the C.O. for approval or denial of LWOP. If it was approved, the recommendation would come back. The OIC of CDR could authorize a transfer notice. Once it was issued, it would be distributed to various sections involved. One would be the Compensation Branch so that they could stop payment of the member’s salary and physically separate the member from the organization. The transfer notice would also be sent to the member’s Line Officer.

[41] Sgt. Boos stated that he had a telephone discussion with Insp. Josey. They discussed that there had been a previous occasion when Mr. Merrifield had stood for nomination as a federal election candidate. Sgt. Verecchia had provided direction with respect to LWOP on the same day as the nomination meeting. There was not enough time to go through the full LWOP application process.

[42] Sgt. Boos noted that Sgt. Verecchia said that “regular” LWOP was required. In fact there is no such thing as regular LWOP.

[43] Sgt. Boos looked through the six types of LWOP. He stated that only two potentially applied to Mr. Merrifield, being personal needs LWOP and special LWOP. He explained that special LWOP is for exceptional circumstances. He did not consider Mr. Merrifield’s running as a candidate to be an exceptional circumstance. He thought exceptional circumstances would be a death in the family or something beyond the member’s control. Special LWOP had to be in the best interests of the RCMP. Sgt. Boos acknowledged that he did not have training regarding interpretation of policy. He had no previous experience with personal needs or special LWOP. This was the one and only political leave that he ever had to deal with.

[44] Sgt. Boos stated that he had a formal interview with Mr. Merrifield to explain LWOP to him. Prior to this time, Mr. Merrifield did not know that personal needs LWOP was limited to two terms. Mr. Merrifield provided information as to what constituted campaigning and what did not. He described what he thought he could do without LWOP. Sgt. Boos described when LWOP was required. He described the nature of personal needs LWOP. A member could take it two times in his career up to a period of 15 months cumulative. Mr. Merrifield said he would need 35 to 40 days of leave for the election. They discussed some possible start dates. The election call was expected in the very near future. Since LWOP was subject to approval by the C.O., Sgt. Boos told Mr. Merrifield that he would make the recommendation to go forward with LWOP. Sgt. Boos stated that he went through the policy line by line with Mr. Merrifield. He said the election could be called on Sunday May 23, 2004. Monday May 24th was a holiday. The party wanted him to start campaigning on May 25th. Mr. Merrifield agreed to call and let Sgt. Boos know as soon as he learned that the election had been called. Mr. Merrifield would also call his OIC. A system would be put in place where theoretical approval would be obtained and then Mr. Merrifield could be on LWOP before the documents were actually signed.

[45] Sgt. Boos made a note of this discussion and spoke to Insp. Josey the next day. They discussed the first two occasions when Mr. Merrifield sought nomination without LWOP. Insp. Josey was going to deal directly with the C.O. They decided that the two days when Mr. Merrifield should have had LWOP would be considered one day.

[46] On May 18, 2004 when he had the approval from the C.O., Sgt. Boos sent an email to Insp. Josey with a copy to Mr. Merrifield. He provided his work cell and personal home number. He was working diligently to make LWOP in two periods work. Sgt. Boos’ strategy was to consider the earlier two days to be one first request for LWOP, even though they were not continuous, and the election period to be the second request for LWOP. He prepared the transfer authorizations and submitted them.

[47] One of the transfer documents shows Mr. Merrifield’s transfer from the Air Marshalls to LWOP. At the bottom of the form it says, “personal needs without pay – no relocation expenses.” The implementation date was to be May 22, 2004. Sgt. Boos learned that the first two requests, being the request to consider two non-consecutive days as one request for LWOP, had been approved by C.O. Holman on May 17, 2004. Sgt Boos advised Mr. Merrifield that the LWOP for the electoral period had also been approved by the C.O.

[48] Sgt. Boos explained that when Mr. Merrifield did not have LWOP, steps were taken to retroactively approve LWOP for the two dates, February 11 and March 30, 2004, and to stop Mr. Merrifield’s pay for them. The LWOP was put into effect.

[49] After the two personal needs LWOPs were granted, Sgt. Boos reflected on the situation and began to wonder whether personal needs LWOP was the right type of LWOP to use. He did not share this concern with Mr. Merrifield. Upon making an inquiry on June 23, 2004, he learned that the compensation department was having some difficulty with the fact that there were three time periods that had to be coded to personal needs but the system only allowed for two. This issue was addressed by re-coding the two personal needs LWOPs to three special LWOPs. Since a special LWOP had no restrictions with respect to the cumulative length or number of approved requests, it appeared to be a better fit when LWOP was required for three dates. Sgt. Boos learned about this re-coding in an email but he did not forward it to Mr. Merrifield.

[50] Sgt. Boos recalled that he had a conversation with Mr. Merrifield following the election, after Mr. Merrifield returned to work. He could not recall where the conversation occurred and whether it was in person or over the phone. He advised Mr. Merrifield that the LWOPS were re-coded to special LWOPs so the two personal needs LWOPs remained for future use. He stated that this was the only conversation that he had with Mr. Merrifield about the re-coding. He could not find any notes or documents with respect to this conversation.

[51] Mr. Seguin was the C.O. of “O” Division. He retired from the RCMP on March 31, 2008. He testified that he became the C.O. of “O” Division beginning on October 12, 2004. He was aware of the regulations governing participation in political activities. He understood that members could participate but they had to apply for a leave during campaigns. Requirements with respect to running for nomination in a party were also included in the regulations. Mr. Seguin was familiar with the Administrative Manual and appendix 12.12 regarding the leave requirements. The C.O. had to approve requests for LWOP.

[52] The Administrative Manual states that LWOP can be approved for education, spousal relocation, care of pre-school children and personal needs. With respect to special LWOP, in contrast to personal needs LWOP, it was granted for exceptional circumstances. Furthermore, the Division had to be in a position to allow someone to go on leave without impact on its operations. Mr. Seguin did not receive an application from Mr. Merrifield for LWOP to run for a political party, either for special LWOP or personal needs LWOP. In his term as C.O., he never received a request by a member for LWOP for political activities.

[53] Mr. Seguin became aware at some point that Mr. Merrifield had run in the 2004 election for the Conservative Party. He understood that Mr. Merrifield had applied for LWOP and had received it for the election.

[54] Mr. Merrifield had another performance evaluation for the period February 2004 to October 2004. This covered the time when he was participating in political activities. Some excerpts are as follows:

As a member of this unit who is particularly passionate about counter-terrorism, Cst. Merrifield took the initiative to provide instructional lectures to the Peel Regional Police Airport Division via their training section. These lectures included topics such as The History of Aviation and Airport Terrorism and an authorized explanation of the Canadian Air Carrier Protection Program…

Cst. Merrifield recognizes the importance of keeping abreast of terrorist trends, profiles and recent intelligence. He is very passionate about this issue and in addition to reviewing all of the intelligence information that is forwarded to our office from various agencies, he researches and seeks out materials related to terrorism. He also readily shares this information with other members of the unit and applies it to his work on a daily basis…

Cst. Merrifield is a highly motivated, dedicated, productive member of this unit. Cst Merrifield has the respect of his peers and supervisors and his positive attitude influences others to perform at higher levels. Cst. Merrifield’s input is value added, demonstrating many of the qualities necessary for a supervisor role. Cst. Merrifield is an asset and credit to the force and will do well in his future endeavours. A pleasure to have on the unit.

INSET/TAG 2004

[55] In addition to the Air Marshalls unit, the Integrated National Security Enforcement Team (INSET) was also established after the terrorist attack that occurred in the United States on September 11, 2001. It was responsible for all criminal investigations in Ontario relating to people who posed a threat to Canada. There were two sides to INSET: investigations and intelligence information gathering. It carried out long-term investigations and had a quick response team for day-to-day investigations. It also had an intelligence component comprised of analysts.

[56] During his time as an Air Marshall, Mr. Merrifield expressed an interest in working at INSET.

[57] Mr. Merrifield was transferred to INSET on October 17, 2004. He then reported to S/Sgt. King and Insp. Jagoe. On October 19, 2004, after being at INSET for two days, he participated in a radio talk show hosted by Michael Coren. The topic was “What is terrorism?” Apparently, someone made a complaint to INSET about Mr. Merrifield’s participation on the show.

[58] Two days later, S/Sgt. King learned that Mr. Merrifield had been on the show. S/Sgt. King asked him about comments that he provided on the radio show. Subsequently, S/Sgt. King asked him to review a security information sheet and sign it, which he did. S/Sgt. King asked Mr. Merrifield not to make any more appearances while he was working at INSET. Mr. Merrifield stated that he respected this direction and agreed to it.

[59] Mr. Merrifield stated that early in 2005, he was doing open source work with the Jewish community. Speaking at events was considered community outreach. He did this approximately six times in the course of his duties. He never requested permission to attend these speaking engagements. The Indo-Canadian Community in Mississauga recognized him at an awards dinner and named him Police Officer of the Year.

[60] Mr. Merrifield explained that within INSET was a small unit known as the Threat Assessment Group (TAG). The members of TAG carried out threat assessments on international people who came to visit Canada including heads of state and special dignitaries. Mr. Merrifield explained that in addition to investigators, TAG also had analysts. They did tactical analysis on active investigations. The analysts looked at trends, predictors and human intelligence.

[61] Mr. Merrifield expressed an interest in working in TAG. On January 20, 2005, Sgt. Rick Cousins carried out a “file review” at Headquarters to consider whether Mr. Merrifield would be suitable for TAG. Mr. Merrifield did not meet with Sgt. Cousins. In the written review, Sgt. Cousins’ point form notes state: “able to handle any type of investigation; very intelligent person, learns and comprehends quicker than most; Commanding Officers Certificate of Appreciation for apprehending dangerous offender in trying circumstances; ability to express himself verbally/written are [sic] exceptional; well rounded police officer with unlimited potential.” He concluded, “It is recommended Cst Merrifield be planned to INSET TAG”

[62] On February 2, 2005, Mr. Merrifield was invited to and attended an event at B’nai Brith, a Jewish organization, where he gave a short speech as a member of the RCMP. Julian Fantino, (then Chief of Police for Toronto Police Service), among others, gave a speech as well.

[63] On February 10, 2005, Mr. Merrifield was permanently posted to TAG. His work consisted of monitoring criminal extremist and terrorist groups. He gathered open source information, carried out community outreach and worked to recruit confidential informants. He investigated threats to national security and Very Important Persons (VIPs) such as the Prime Minister. He also looked after threat assessments of official visitors like the Royal Family and Members of Parliament. At times, he travelled with the Prime Minister’s protective detail when the Prime Minister made visits to various places. For example, he travelled with the Prime Minister to four or five media outlets in the Greater Toronto Area (GTA) where the Prime Minister was addressing issues arising from the sponsorship scandal.

[64] Mr. Merrifield was required to have top secret security clearance to perform this job. He was also a top level marksman. His work at TAG was an achievement of a career goal. It was his dream job.

[65] In February or early March, 2005, a threat was made against then Liberal Prime Minister Paul Martin and U.S. President George W. Bush. Mr. Merrifield was the lead investigator for the team that investigated this threat. They successfully located the person who made the threat. As a result of Mr. Merrifield’s work, that person was arrested, tried and convicted of a criminal offence.

[66] Up until May 2005, Mr. Merrifield got along well with everyone at TAG. He was asked to train others. He loved the work. An incident occurred when a person penetrated the U.S. Oval Office’s electronic inbox and bombarded it with emails. Mr. Merrifield carried out an extensive internet tracing operation through numerous countries. He and TAG located the person who was subsequently convicted.

[67] No concerns were ever raised about Mr. Merrifield’s earlier political activities, involvement with the Conservative Party and any impact they might have on his ability to do his job at TAG, which included providing protection for a Liberal Prime Minister.

[68] In June or July 2004, Supt. Proulx became the “O” Division Intelligence Officer (DIO) for the Criminal Intelligence branch. He held that position until June 2006 and was the Superintendent responsible for TAG. As DIO, he reported to C/Supt. Mazerolle whose superior officer was the C.O. Supt. Proulx retired on May 15, 2009.

[69] Mr. Proulx explained that TAG was an anomaly. TAG reported in a straight line directly to him but Insp. Jagoe, who was in charge of INSET, had authority over TAG’s day-to-day operations. TAG took their day-to-day tasks from INSET. Mr. Proulx described his role in TAG as primarily administrative.

[70] Mr. Proulx learned of Mr. Merrifield in January 2005. There was a vacancy in TAG. He was approached by someone who stated that there was a member who wanted to come to TAG. He received a staffing note about Mr. Merrifield. He came highly praised. The transfer was subsequently authorized. Supt. Proulx agreed to the transfer. He stated that anyone would want to take on Mr. Merrifield, given the contents of the staffing note.

[71] Prior to May 2005, Supt. Proulx did not know anything about Mr. Merrifield’s political activities. He did not learn about them until May 16, 2005.

[72] In December 2002, Insp. Jagoe was promoted to run INSET and was its OIC until 2007. Insp. Jagoe was promoted to Superintendent in December 2007. Insp. Jagoe reported to C/Supt. Mazerolle. Subsequently, he reported to Insp. Van Doren whose portfolio included national security and border integrity.

[73] All employees at INSET reported to Insp. Jagoe except for the people in TAG who reported to Supt. Proulx. Insp. Jagoe received regular briefings from A/Sgt. Crane who worked in TAG. Insp. Penny was Insp. Jagoe’s second in command.

[74] Supt. Jagoe recalled that shortly after Mr. Merrifield arrived at INSET, S/Sgt. King spoke to him about his participation in a radio interview. Supt. Jagoe understood that S/Sgt. King told Mr. Merrifield that speaking about national security matters was not appropriate and he agreed that he would discontinue it. Insp. Jagoe did not hear the interview. He briefed Insp. Van Doren about Mr. Merrifield’s participation in the radio show.

[75] A/Sgt. Crane explained that he was acting as Sgt. with respect to TAG. It had existed since at least 2000 when he joined it. In January 2005, it had seven members although they were not at the office all the time. In addition, there were two TAG members who provided personal protection to VIPs when they visited. TAG was the intelligence side to the VIP visits. A/Sgt. Crane reported to Supt. Proulx who was his Line Officer. A/Sgt. Crane also reported to Insp. Jagoe daily so that he had an operational awareness of TAG’s activities.

[76] TAG members would monitor known subjects of interest with potential to cause any danger or embarrassment to any VIPs coming to the area. They would also perform Order in Council checks which were requests from the government to carry out background checks on certain people with respect to criminal activity. A check could be requested with respect to anyone who was going to be appointed to do something. TAG also did risk assessments for the criminal intelligence branch and the federal government.

[77] When Mr. Merrifield joined INSET, TAG was understaffed and had a vacancy. A/Sgt. Crane spoke to Mr. Merrifield about joining TAG and suggested that he apply. At the time, A/Sgt. Crane knew that Mr. Merrifield had offered himself for political candidacy previously but he did not know the details of his political background. He was aware that Mr. Merrifield had run in an election in 2004 but he did not recall the party that he represented. The fact that Mr. Merrifield had run for office previously did not cause A/Sgt. Crane any concerns whatsoever.

[78] A/Sgt. Crane stated that initially, he did not know much about LWOP. He just knew that a member could not participate in politics without it.

[79] In April 2005, A/Sgt. Crane had a conversation with Mr. Merrifield about his future participation in politics because there was another upcoming federal election. A/Sgt. Crane asked Mr. Merrifield, out of curiosity, whether he had any ambition to run in the next federal election. A/Sgt. Crane thought that if Mr. Merrifield did have ambitions, he could have a conflict of interest because the RCMP’s primary duty was to serve the elected Liberal party. The RCMP had duties to the other parties but to a lesser degree. A/Sgt. Crane said Mr. Merrifield’s answer was “none whatsoever. It was too expensive.” He did not differentiate between running at a nomination meeting and running as a candidate in a Federal election.

[80] In spring 2005, there were a lot of high level VIP visits. Mr. Merrifield had no limits on the work that he could do. A/Sgt. Crane stated that he had an excellent working relationship with Mr. Merrifield. He was a good member and who showed a lot of promise. In fact, on May 3, 2005, he asked Mr. Merrifield to mentor another member and help raise his standard of performance.

[81] Supt. Jagoe stated that he was aware that Mr. Merrifield had investigated death threats against Prime Minister Martin and U.S. President George Bush. He read somewhere that Mr. Merrifield had done a good job. Nobody was concerned about his investigating these threats. Nobody was concerned about Mr. Merrifield’s working in TAG after running in an election.

[82] Mr. Merrifield had another performance evaluation covering the period August 1 2004 to August 1, 2005. On the evaluation, A/Sgt. Crane stated that “his educational background and expertise in world politics are well suited for the TAG environment.” Mr. Merrifield’s role as lead investigator with respect to the threat against the Prime Minister and the U.S. President, which concluded with charges being laid, was also noted.

Operation Bridgeout

[83] Sgt. Park worked at INSET from 2003 to 2007. He was in charge of Operation Bridgeout, a complex tactical exercise held in May 2005. Mr. Merrifield helped to organize it which required several months of intensive planning. He did this in addition to his regular duties.

[84] Sgt. Park had a lot of interaction with Mr. Merrifield during the planning for the exercise. They drove back and forth to Sault Ste. Marie, London and Sarnia to attend meetings so that they could keep abreast of the project.

[85] Sgt. Park recalled that Mr. Merrifield had mentioned running for a Conservative seat in either Newmarket or Barrie. This came up during a trip to Sault Ste. Marie. Sgt. Park could not recall exactly when this occurred. There was not much conversation about it. Sgt. Park knew that Mr. Merrifield had run for a seat a year earlier.

[86] Mr. Merrifield had worked a minimum of twenty hours of voluntary overtime on the Operation Bridgeout. He was not paid for these hours nor did he receive any additional time off. Sgt. Park stated that Mr. Merrifield was enthusiastic about national security work and he put more time and effort into Operation Bridgeout than even Sgt. Park did.

[87] At the conclusion of the project, Sgt. Park signed a performance log dated May 17, 2005 with respect to Mr. Merrifield. He described Operation Bridgeout as follows:

Operation bridge out was a multi-agency/bi-national exercise that took place between Sault Ste. Marie, Michigan and Sault Ste. Marie, Ontario. It was the largest exercises between Ontario and the State of Michigan and possibly the largest in Canadian and US history of its kind. Three separate exercises were occurring simultaneously, Detroit/Windsor, Sarnia and Sault Ste. Marie, Ontario and Michigan. The operation commenced May 9 and terminated in the evening of May 11, 2005. The exercise was designed to challenge agencies on both sides of the border to react to a national, state and local emergency, namely a terrorist incident. Canadian, U.S. federal, state and local agencies would be participating in Operation Bridgeout, more than 70 agencies in the U.S. and Canada in the Sault Ste. Marie region.

During the scenario Constable Merrifield wore many hats. He acted as a referee/marshal along with Sergeant Park. He assisted in coordinating and controlling the scenario to ensure the script and timelines were on track. He was diligent in his duties and along with Sergeant Park worked 16 hour days back-to-back. Although Constable Merrifield came down with flu-like symptoms, he pushed forward and at the end of the day the scenario proved to be a big success. Sergeant Park received comments from several personnel involved in the exercise stating that this had been the best planned scenario that they had been involved in, in recent times and for some it was the best ever. Much of the success is attributed to the hard work and dedication of Constable Merrifield.

During the actual exercise and the months of planning leading to the exercise I was very impressed with the above average abilities and strong work ethic displayed by Constable Merrifield. He presented himself professionally throughout the exercise and was a good ambassador for the force. In my opinion, Constable Merrifield was the best selection I could have made in planning and preparing a scenario of this magnitude. Should something of this nature arise in the future he would no doubt be my number one selection. Outstanding job!!

[88] Sgt. Park stated that there was general talk on the floor that Mr. Merrifield was going to run for a seat for the Conservative Party; however, he did not pay much attention to it.

[89] Supt. Jagoe stated that he did not have any concerns about Mr. Merrifield’s entering TAG. The first significant conversation he had with Mr. Merrifield was in Sault Ste. Marie during Operation Bridgeout. Mr. Merrifield sat next to him when a large group of people went out for dinner at the end of the exercise. At that point, he and Mr. Merrifield got into a discussion about Mr. Merrifield’s interest in politics. They discussed Mr. Merrifield’s previous run for the Conservative Party and that when he did this, he had to take a leave of absence from the Force. There was some conversation about the upcoming election. Mr. Merrifield said it was very expensive to be involved in campaigns and running for politics. Insp. Jagoe did not ask Mr. Merrifield whether he was going to be running in the upcoming election.

Barrie Nomination Meeting - May 14, 2005

[90] Mr. Merrifield stated that after he ran unsuccessfully for the Richmond Hill seat, he was still interested in politics but mostly from a policy, criminal justice reform and national security perspective. He wanted to contribute to the direction of the Party in a non-partisan way.

[91] He had been to events as the candidate of record for Richmond Hill. They were hosted by Belinda Stronach and Peter Van Loan. It was public knowledge that he had stood for election as a Conservative in 2004. Mr. Merrifield’s personal friendship with Belinda Stronach was also well known. He would openly attend a lunch or breakfast with her and her staff.

[92] Mr. Merrifield recalled that before May 12, 2005, at the end of Operation Bridgeout, all the participants went out for dinner. He was sitting near Insp. Jagoe, Sgt. Park and A/Sgt. Crane. He received a call and left the table to take it. The Richmond Hill riding association was offering him a candidacy. He returned to the table and mentioned the call. He was asked if he would run again in election and said he would not do that “anytime soon.” It was too expensive and he had issues with the process.

[93] Mr. Merrifield stated that some things were happening in the Barrie riding that he did not think were proper. The riding association was not following the rules. He was told that the only way he could speak to the riding association was by being a candidate at a nomination meeting. He had to renew his party membership. He stated that he did not want to pursue candidacy in another election.

[94] Mr. Merrifield stated that he mentioned to Sgt. Park, during one of their many car trips that he would participate in another nomination meeting. The nomination meeting was not discussed at the Bridgeout dinner. He did not tell Insp. Jagoe that he would be running at a nomination meeting.

[95] Based on his earlier conversation with Sgt. Boos, when he learned his LWOPs were re-coded such that only one had been used for the Richmond Hill nomination meeting and the election, Mr. Merrifield concluded that he did not need LWOP to participate in a nomination meeting. Furthermore, s. 3.2 of the Administrative Manual, part XII.12, entitled Political Activities stated, “If LWOP is not required to participate in political activities, a member must conduct any politically related activities on his/her own time.” At the end of April 2005, just prior to the deadline, Mr. Merrifield put in his name for the Barrie riding nomination meeting which was to be held on Saturday, May 14, 2005.

[96] On May 2, 2005, Mr. Merrifield sent a letter to members of Conservative Party National Council regarding his concerns, specifically that the nomination process was being abused. He asked the Council to take control of the nomination selection.

[97] While he was away at Operation Bridgeout, Mr. Merrifield’s wife and his former Richmond Hill campaign manager sent out three hundred campaign cards. They were recycled from the Richmond Hill election.

[98] On May 6, 2005, Mr. Merrifield was part of Prime Minister Paul Martin’s protective detail for his visit to Hamilton and Brantford. Around the same time, he spoke to Cpl. Frith, who worked at INSET, about his running at the nomination meeting. Cpl. Frith was a member of the Conservative Party and had received a campaign card.

[99] On Friday May 13, 2005, the day before the Barrie nomination meeting, Mr. Merrifield had the flu and took the day off. He stated that several RCMP members were fully aware in advance of the date that he intended to run at the Barrie nomination meeting. They included C/Supt. Mazerolle, Sgt. Gilchrist, S/Sgt. Smith and Insp. Jagoe. None of them expressed any concerns to him about it prior to the event.

[100] Mr. Merrifield stated that on Saturday May 14 2005, which was a day off for him, he ran at the Barrie nomination meeting. He stated that mathematically, he could not have won the nomination. It was all about selling memberships. The only point to his attending was to try and draw votes away from the leading candidate and throw the election in favour of the second candidate.

[101] When Mr. Merrifield returned to work on Monday, May 16, 2005, A/Sgt. Crane said that Insp. Jagoe was upset. A co-worker said he was in trouble. He understood that there were three issues: first, he had run in the meeting without LWOP, second, he had identified himself as working in national security, and third, the campaign literature mentioned defending the traditional concept of marriage and challenging the gun registry.

[102] A/Sgt. Crane stated that he first learned of Mr. Merrifield’s running at the Barrie nomination meeting on Friday May 13, 2005, the day before the meeting, when Cpl. Frith came into his office and said, “Did you hear Merrifield is running for nomination?” A/Sgt. Crane said that Cpl. Frith told him about the campaign literature. He had joined the party so he had received it. A/Sgt. Crane stated that he scoffed at this suggestion because he had already spoken to Mr. Merrifield about it. Cpl. Frith had the literature with him. A/Sgt. Crane stated that he had a look at it for a couple of minutes and asked if he could keep it. Cpl. Frith said no. He wanted it back. A/Sgt. Crane returned it. Cpl. Frith also advised him that the nomination meeting was being held the next day, on Saturday, May 14, 2005.

[103] A/Sgt. Crane said that he was shocked by the campaign literature. Mr. Merrifield had said that he was not going to run in an election but now he was doing so. He felt that Mr. Merrifield had lied to him.

[104] A/Sgt. Crane then had a brief conversation with Insp. Jagoe in his office. A/Sgt. Crane said, “Are you aware that Cst. Merrifield is running for nomination in the Barrie riding?” Insp. Jagoe was not pleased. He told A/Sgt. Crane to contact Supt. Proulx.

[105] Supt. Proulx was not in the office that day so A/Sgt. Crane spoke to Sgt. Gilchrist on the phone. He was acting for Supt. Proulx. Mr. Merrifield was not on duty that day either so A/Sgt. Crane did not have an opportunity to speak with him at the office. A/Sgt. Crane did not recall whether he attempted to call Mr. Merrifield at home. He stated that he had Mr. Merrifield’s phone number and could have called him.

[106] A/Sgt. Crane discussed the matter at length with Sgt. Gilchrest. They both agreed that they should review the provisions of the RCMP Regulations so that they would have the information when they had an opportunity to speak to Supt. Proulx.

[107] A/Sgt. Crane stated that he had not received from Mr. Merrifield a request for LWOP for the nomination meeting. If Mr. Merrifield had obtained LWOP for the nomination meeting, he would have known about it.

[108] A/Sgt. Crane stated that he was shocked, hurt and annoyed when he learned that Mr. Merrifield was running for the nomination. He felt that Mr. Merrifield had told him one thing and then had done the opposite. He thought Mr. Merrifield had lied to him. He testified that he still believes that Mr. Merrifield lied to him.

[109] A/Sgt. Crane agreed that if he was aware that a member was going to act contrary to policy, he should stop the member. Section 37(e) of the Royal Canadian Mounted Police Act R.S.C. 1985 c. R-10R states, “It is incumbent on every member…to ensure that any improper or unlawful conduct or of any member is not concealed or permitted to continue.” A/Sgt. Crane stated that he did not know where Mr. Merrifield was in the process with respect to the nomination meeting. He had not attended it yet. A/Sgt. Crane felt he had to update himself on the rules. He believed he did not have all of the facts.

[110] A/Sgt. Crane stated that after the nomination meeting, a lot of members in INSET were upset and dismayed that Mr. Merrifield had referred to himself as an RCMP officer in his political materials. There were approximately eighty-five people at the office. They understood that he was promoting himself an expert. A/Sgt. Crane stated that he would never say that he, himself, was an expert on anything. It seemed that Mr. Merrifield had taken an air of authority. A/Sgt. Crane acknowledged that the term “expert” was not used in any of Mr. Merrifield’s campaign materials.

[111] C/Supt. Mazerolle was the Criminal Operations (CROPS) officer for “O” Division from 2004 until the end of the April 2012. From August 2010 until the end of May 2011 he was acting C.O. Both Supt. Proulx and Insp. Van Doren reported directly to him. All three of them, as well as C.O. Seguin, had offices on the same floor near each other in London.

[112] C/Supt. Mazerolle stated that on May 13, 2005, Insp. Van Doren told him that there was a concern with respect to a nomination pamphlet relating to Mr. Merrifield. Insp. Van Doren said that he had directed Insp. Jagoe to address the matter with Supt. Proulx.

[113] C/Supt. Mazerolle stated that he did not know that Mr. Merrifield had run in an election in 2004 when he spoke to Insp. Van Doren on Friday, May 13. He learned about it after the brochure came to his attention. The 2004 election did not present any issues because policies and procedures were followed at that time.

[114] C/Supt. Mazerolle said that he did not see the pamphlet prior to the nomination meeting. On Sunday, May 15, 2005 he first spoke to Supt. Proulx about it. He was shopping and ran into Supt. Proulx. He took him aside and asked him if he was aware of the pamphlet and that Mr. Merrifield had been seeking a nomination. Supt. Proulx was not aware of it and said that he would look into when he got back to the office.

[115] C/Supt. Mazerolle stated that if Mr. Merrifield had gone through the right procedure, there would have been no concern about his running at the Barrie nomination meeting. C/Supt. Mazerolle said that he did not have all of the information but believed there was no need to intervene because matter had been sent to a competent Superintendent, being Supt. Proulx.

[116] A/Sgt. Crane stated that he spoke to Mr. Merrifield when he returned to work on Monday, May 16, 2005. Mr. Merrifield said that he had concerns about the Conservative party and had issues with people who were standing for the nomination. The only way that he could speak out about it was to put his name forward at the nomination. Mr. Merrifield said it was not going any further. He said his campaign manager had sent out literature without his knowledge while he was working on Operation Bridgeout. A/Sgt. Crane reviewed the provisions of the RCMP Regulations with Mr. Merrifield and told him that he still had to meet the requirements, which included being on LWOP or resigning from the Force. Mr Merrifield felt that he had done nothing wrong. A/Sgt. Crane described the tone of the meeting as cordial. He stated that after he reported the matter, it was out of his mind. He was on holidays for the following week and did not have any further involvement in the matter until he returned on May 24, 2005.

[117] Supt. Jagoe stated that he was aware that Mr. Merrifield had previously run for political office and had obtained the approvals. It was general knowledge that Mr. Merrifield had run as a Conservative. Supt. Jagoe stated that on Friday, May 13, 2005, he was not aware that the Barrie nomination meeting was happening the next day. If Cpl. Frith gave a statement saying that he told him about the upcoming nomination meeting, it would be wrong. If A/Sgt. Crane stated that he told him about the upcoming nomination meeting, he would also be wrong. Supt. Jagoe stated that he had no information as to the date of the nomination meeting. If he was aware that Mr. Merrifield’s conduct was potentially improper, he would have been required to take steps to prevent it in accordance with Part IV, s. 37(e) of the RCMP Act. He understood that if a person were to participate in a full campaign, some special leave would be required. He had to obtain approval from his Line Officer.

[118] Supt. Jagoe stated that a few days after the Operation Bridgeout dinner, Cpl. Frith, an INSET employee, came into his office. Cpl. Frith showed him Mr. Merrifield’s pamphlet. Supt. Jagoe stated that he was busy at the time and asked Cpl. Frith if he could have the pamphlet. Cpl. Frith declined but offered to get one for him. Supt. Jagoe stated that he did not order Cpl. Frith to get it.

[119] Insp. Jagoe asked Cpl. Frith for the pamphlet because was interested in looking at the content. He knew that the Assistant Commissioner had to approve investigations into sensitive sectors such as politics. Supt. Jagoe stated that he did not know that the pamphlet was going to be used at a private political function. He also stated that he did not know that the pamphlet had been distributed for a campaign

[120] A couple of days later, Cpl. Frith brought him the pamphlet and then he took the time to read it. He stated that he was surprised by the content. Mr. Merrifield had identified himself as a member of the RCMP. There was information in the pamphlet that was critical of the sitting government and the gun registry. Supt. Jagoe stated that this concerned him because Mr. Merrifield’s duties in TAG included conducting threat assessments on internationally protected people including the Prime Minister. Supt. Jagoe questioned whether this was appropriate. If the Force had a member conducting a threat assessment and if that member was very critical of the government and if something happened to an internationally protected person such as the Prime Minister, this would be a conflict. It would result in an inquiry.

[121] Insp. Jagoe wanted to ensure that Mr. Merrifield had sought the appropriate authority. He called Supt. Proulx and asked him if he was aware of Mr. Merrifield’s interest in politics. Supt. Proulx stated that he was not. Insp. Jagoe said that he would send the pamphlet to him.

[122] Supt. Jagoe stated that he was not familiar with section 57(2) of the Regulations which states that a member who is running for nomination may disclose his rank, level, position and work experience. He stated that he was more concerned about whether Mr. Merrifield had approval to attend the meeting. He stated that he did not know whether Mr. Merrifield needed approval with respect to the platform he was advancing because he did not have that level of detail. Nevertheless, he was concerned about the platform. He drew that concern without looking at the Administration Manual.

[123] Supt. Jagoe recalled that within a few days of receiving the pamphlet, A/Sgt. Crane and Sgt. Gilchrist came into his office and told him that they were aware that Mr. Merrifield was interested in running for politics. Supt. Jagoe stated that he told them that the information they had should be shared with Supt. Proulx and that it was a matter between A/Sgt. Crane, Mr. Merrifield and Supt. Proulx.

[124] On Wednesday May 18, Insp. Jagoe sent a memo to Supt. Proulx. The email begins with, “further to our discussions and emails…” (None of the emails that preceded this one were produced.) Supt. Jagoe stated that he kept all the emails related to making decisions of substantive value. There may have been previous emails that he deleted. Supt. Jagoe stated the archival system at the RCMP keeps documents for ninety days. He searched for other emails but did not find any in his deleted box. He did not obtain archived tapes or take any other steps to look for them.

[125] In addition to sending the email to Supt. Proulx, Insp. Jagoe also briefed his superior, Insp. Van Doren who was happy with the steps he had taken. Supt. Jagoe said he had two or three phone conversations with Insp. Van Doren specifically regarding the pamphlet and that Mr. Merrifield might be considering running. Supt. Jagoe stated that he did not take any notes of these conversations.

[126] Mr. Van Doren retired from the RCMP as a Superintendent. He was the Assistant Criminal Operations Officer (CROPS) for border integrity and national security. In May of 2005 he was an Inspector acting as a Superintendent. He oversaw responses to national security for Ontario. Insp. Van Doren was the Line Officer for INSET. He stated that Insp. Jagoe reported to him. His own superior was C/Supt. Mazerolle. He would speak to Insp. Jagoe daily in briefings on operational issues and sometimes on human resources issues.

[127] Mr. Van Doren had a vague recollection of a conversation with Insp. Jagoe on Friday May 13, 2005. Insp. Van Doren took notes dated Friday May 13, 2015. At 11:30 a.m. there is a reference to Insp. Jagoe. In his point form notes, Insp. Van Doren stated, “Re: Peter Merrifield - ran in the last election as a conservative – lost - proper authorities previously sought - pamphlet identifies RCMP’s role – NS team – INSET- background in NS. Threat Assessment group – Marc Proulx – OIC CROPS advised.” Insp. Van Doren spoke to Insp. Jagoe about Mr. Merrifield. He was seeking a nomination for a political position. Mr. Van Doren recalled there was a pamphlet. Mr. Merrifield was part of TAG under the authority of Supt. Proulx. Mr. Van Doren recalled that he told Insp. Jagoe to deal with Supt. Proulx regarding any concerns relating to Mr. Merrifield. He stated that he briefed C/Supt. Mazerolle about the telephone call and then took no further steps. He left Insp. Jagoe and Supt. Proulx to deal with the matter.

[128] Supt. Jagoe stated that he was familiar with the Ministerial direction regarding investigations into sensitive sectors dated November 4, 2003. It was issued after the terrorist attacks on September 11, 2001. Insp. Jagoe knew about the policy when he spoke to Cpl. Frith about the pamphlet. Investigations into political parties required Ministerial approval. Supt. Jagoe was aware that allegations had been made that he violated the policy and that he ordered Cpl. Frith to attend a political meeting. He stated that he never ordered Cpl. Frith to attend any meeting. The allegation was not true.

[129] Mr. Frith retired from the RCMP in 2010 as a Corporal. He worked in the National Security section from 2002 to 2008. He worked in the same building and on the same floor as Mr. Merrifield did when he was in TAG. In 2005, he lived in the Barrie riding.

[130] Mr. Frith stated that he became a member of the Conservative Party to support Mr. Merrifield at the nomination meeting. Since Mr. Merrifield was in his riding, Mr. Frith volunteered to vote for him. Mr. Merrifield did not ask him to do it. Mr. Frith stated that he received Mr. Merrifield’s nomination meeting campaign brochure. He brought it to the office before the election and showed it to several people. He was impressed by it because there was a good picture of Mr. Merrifield’s family on it. He stated that he thought it was sharp. He was proud of the brochure which is why he brought it to the office. Mr. Frith stated that he was not sure whether he showed the brochure to A/Sgt. Crane. They all worked in the same area.

[131] Insp. Jagoe had an open door policy. Mr. Frith stated that he showed the brochure to Insp. Jagoe on Thursday, May 12 or Friday, May 13 2005. Mr. Frith said that he told Insp. Jagoe about the nomination meeting to be held on Saturday, May 14 2005.

[132] Mr. Frith said that Insp. Jagoe wanted the brochure for his personal use. Mr. Frith did not give it to him. It was his property. They discussed the upcoming nomination meeting. Insp. Jagoe knew that Cpl. Frith was going to the nomination meeting. Cpl. Frith told him that the only place he could get a brochure for Insp. Jagoe was the nomination meeting location. Mr. Frith stated that he was comfortable getting a brochure for Insp. Jagoe if it was only for his personal use and not for any other use. Insp. Jagoe stated that it would be for his personal use only. Mr. Frith stated that his understanding of personal use was whatever a person might want to do with the brochure in his own house, such as displaying it. Sending the brochure to headquarters for scrutiny would not be personal use. Mr. Frith testified that if Insp. Jagoe had wanted it for any other purpose beyond personal use, he would not have obtained a campaign brochure for him. He would have had to get his own if he wanted it for other reasons.

[133] There were three candidates at the nomination meeting: Mr. Merrifield, Mr. Brian Broley and Mr. Patrick Brown. Mr. Frith stated that he attended the nomination meeting with his wife and went for the sole purpose of voting for Mr. Merrifield. He obtained a brochure for Insp. Jagoe, took it home and gave it to Insp. Jagoe on the following Monday. He told Insp. Jagoe that the brochure was only for his personal use.

[134] Cpl. Frith did not know anything about the rules regarding participation in political events. He did not know whether Mr. Merrifield had applied to participate. Mr. Frith stated that he went to vote because he thought Mr. Merrifield might win. He did not want the other candidate to win. He was not ordered by Insp. Jagoe to attend. He stated he had always planned to attend.

[135] Supt. Proulx stated that prior to the Barrie nomination meeting, no one mentioned to him that Mr. Merrifield had investigated a threat made against President Bush and Prime Minister Martin. He did not recall discussing this with anyone after Mr. Merrifield ran in the 2004 election. It never came up.

[136] On Monday, May 16 2005, A/Sgt. Crane called Supt. Proulx and told him that Mr. Merrifield had run in a nomination meeting over the weekend. A/Sgt. Crane told him that Mr. Merrifield had a previous career as a politician. Supt. Proulx asked A/Sgt. Crane if Mr. Merrifield had followed the correct process. A/Sgt. Crane said that Mr. Merrifield had told him that he did not need leave because the nomination meeting occurred on a Saturday and he did not want to win. He just wanted to make a speech. Supt. Proulx asked A/Sgt. Crane whether Mr. Merrifield had permission to attend the nomination meeting and A/Sgt. Crane stated that he did not think so.

[137] Right after he spoke with A/Sgt. Crane, Supt. Proulx called Insp. Jagoe and asked him to send the campaign materials to him so that he could review them.

[138] Mr. Proulx recalled that Insp. Jagoe did not express any concerns prior to the nomination meeting. He received Insp. Jagoe’s comments on May 18 or 19, 2005. Supt. Proulx was not concerned about what happened in 2004 because it was approved. He was concerned about Mr. Merrifield’s attendance at the 2005 nomination meeting, possibly without LWOP.

[139] Mr. Proulx stated that on Monday, May 16 2005, he reviewed the Operations Manual and determined that members were allowed to run in politics but they had to have approved leave. At that time he did not quite understand the various types of leave. He stated that he still does not really understand them. He just knew that Mr. Merrifield needed permission.

[140] Mr. Proulx stated that he also either looked in the HRMIS system or asked his assistant to look into it. He stated that all of the holidays, leave and sick days are recorded in this system for all of the members. He did not find anything in the HRMIS system that indicated that Mr. Merrifield had been granted leave. Then he made a call to Sgt. Cousins in Career Resource Development.

[141] Sgt. Cousins told him that the coding for Mr. Merrifield’s leave in the previous year was done improperly. It would have to be re-done. Sgt. Cousins also told him that Mr. Merrifield would have to ask permission for the recent nomination meeting after it occurred and this would have to be approved by the C.O.

[142] Mr. Proulx stated that at some point in the same week, he spoke to Sgt. Verecchia. She was very familiar with Mr. Merrifield and believed that he had been granted leave in 2004. Sgt. Verecchia told him she had outlined the process to Mr. Merrifield in 2004. Mr. Proulx testified that at some point in the same week, Insp. Jagoe sent him the campaign brochure. He read it and had a conversation on the Thursday or Friday with Mr. Merrifield. He told Mr. Merrifield that he had run without authority and that he would have to ask for retroactive permission. He should write a memo to explain the fact that his name had been in the nomination. Mr. Proulx stated that he told Mr. Merrifield that Sgt. Cousins had explained to him that there were errors in the coding of his leave in 2004. Sgt. Cousins had said that Mr. Merrifield’s two opportunities for elections had been used. Mr. Proulx stated that he told Mr. Merrifield that if he wanted to run again, he should not bypass the policy. Rather, he should write a memo to him. They would then visit the C.O. Supt. Proulx thought that this would be the end of the matter, and that Mr. Merrifield would write the memo.

[143] Supt. Proulx attended a briefing meeting with C/Supt. Mazerolle and C.O. Seguin in C.O. Seguin’s office on May 26, 2005. He discussed his concerns about Mr. Merrifield’s involvement in the Barrie nomination meeting without LWOP. He did not tell them that he was planning to have a meeting with Mr. Merrifield on the 27th.

[144] Mr. Seguin stated that his earliest recollection of Mr. Merrifield was in May 2005. The nomination meeting in Barrie came to his attention. Mr. Merrifield had put his name forward for the riding nomination. He first heard of this from Supt. Proulx. He did not make any notes of the discussion. He did not know that Mr. Merrifield had previously run in an election. Mr. Seguin stated that when Mr. Merrifield ran for office in 2004, he was not the C.O.

[145] Mr. Seguin stated that he was not aware of any concern about Mr. Merrifield’s working in TAG and, in the previous year, having run as a Conservative candidate in a federal election. He stated that he subsequently learned that other officers knew about the nomination meeting before it occurred. He learned this from Supt. Proulx and by reading statements. Mr. Seguin stated that he was not aware that anybody took any steps to prevent Mr. Merrifield from attending the Barrie nomination meeting. He would have expected someone to take action if that person knew of Mr. Merrifield’s involvement.

[146] Mr. Seguin stated that he asked Supt. Proulx whether Mr. Merrifield had submitted a request for leave and he told him to make sure the policy was being followed. He left the issue with Supt. Proulx to follow up and report to C/Supt. Mazerolle.

[147] Mr. Seguin stated that he was unsure of whether he knew, at the time, that Mr. Merrifield attended the nomination meeting. Mr. Seguin stated that he did not discuss these activities with Insp. Jagoe then. It was probably a year or two afterwards when they discussed it. He recalled that he was at INSET one day and Insp. Jagoe still had the brochure regarding Mr. Merrifield’s nomination meeting attendance. Mr. Seguin stated that he glanced at it but did not read it. He had not seen it previously.

[148] Mr. Seguin stated that in the end, a review was done. Mr. Merrifield was given a memo dated September 28, 2005, was advised of policy and was reminded of his obligations. The memo resulted in no discipline. Mr. Seguin stated that the memo satisfied him. The issue was resolved. Mr. Seguin testified, “I wasn’t concerned that Mr. Merrifield attended the nomination without my consent.”

Stronach Investigation - May 19, 2005

[149] Mr. Merrifield stated that after the nomination meeting, he returned to work on either May 18 or 19, 2005. TAG received a request for an Order in Council check on Belinda Stronach because she was going to be a Liberal cabinet minister. Mr. Merrifield stated that he declined to do the check because he was friends with her.

[150] Shortly afterwards, Ms. Stronach received a death threat. She had received a number of threatening emails after she crossed the floor and became a Liberal. One of the threats was, “You just signed your death sentence, you German whore.” This was taken seriously. A/Sgt. Crane stated that after he returned from holidays, he learned about the death threat. The investigation was assigned to Mr. Merrifield.

[151] Mr. Merrifield stated that on May 19, 2005, A/Sgt. Crane called him at home. The protective unit was going to extend security to Ms. Stronach and A/Sgt. Crane needed to find her. Mr. Merrifield had Ms. Stronach’s cell number. He gave it to A/Sgt. Crane.

[152] A/Sgt. Crane was the officer who assigned the investigation to Mr. Merrifield. Mr. Merrifield stated that he worked on it for six days. On the first day, he went to Ms. Stronach’s constituency office and reviewed many emails. Mr. Merrifield stated that he contacted Ms. Stronach directly on that day to ask her if she was comfortable with his doing the investigation. Mr. Merrifield said that she stated that she had no concerns. She said that she would prefer that he do the investigation because she knew that he would take care of her and her children. Mr. Merrifield said he was going above and beyond expectations. It was about the victim.

[153] Mr. Merrifield stated that he received information regarding the location of the phone where the death threat had been made. It was a payphone. He went to the area to see if there was any video surveillance. He went to Ms. Stronach’s home, spoke to the person responsible for security and made arrangements to install a panic button. He organized a special level response for this. He worked many hours on the investigation. He stated that everyone in TAG was aware that he was handling the investigation. His information was turned into briefing notes that were sent up to his superiors.

[154] A/Sgt. Crane wondered whether Mr. Merrifield should be working on the file as he had just run for the Conservative nomination in Barrie. A/Sgt. Crane stated that he was concerned about it. His specific concern was that there was a potential for a conflict of interest as Ms. Stronach had gone from being a Conservative to a Liberal. A/Sgt. Crane stated, “You can’t have a Conservative candidate guarding a Liberal MP.” Furthermore, A/Sgt. Crane stated that he learned that Mr. Merrifield had called Ms. Stronach. Mr. Merrifield said that he called her and that she had no problem with his conducting the investigation. This call raised a red flag with A/Sgt. Crane. The issue was that Mr. Merrifield was seeking the opinion of the complainant. This did not sit well with him. A/Sgt. Crane stated that he told Supt. Proulx about the situation. Supt. Proulx had the same concerns. Therefore, Mr. Merrifield was removed from the Stronach file. It was re-assigned. A/Sgt. Crane said that his instructions were that Mr. Merrifield was not to deal with any VIP visits. All of the files were taken away from him, not just those relating to politics.

[155] Mr. Merrifield testified that on May 24, 2005 he met with A/Sgt. Crane who told him that he was being removed from the Stronach investigation on Supt. Proulx’s instructions. A/Sgt. Crane may have said that this was due to a conflict of interest. The next day he was actually removed from the investigation. Mr. Merrifield stated that he had also been doing a threat assessment for the Royal Family. He was removed from this assessment as well as a Prime Minister’s visit.

[156] Mr. Merrifield testified that he was upset that he had been removed from the investigation and that other work was taken away from him. There was certainly no conflict regarding the Royal Family. Everyone knew that he had been removed from the Stronach death threat investigation. It was unusual. There was an appearance that he had done something wrong.

[157] Mr. Merrifield stated that Insp. Jagoe alleged he had broken a policy by having direct communication with a victim, Ms. Stronach. He spoke to Sgt. Boos who referred him to the local MPA representative, Sgt. Nicota.

[158] Supt. Jagoe stated he was concerned that a junior Constable would be phoning a Member of Parliament and having a conversation. He did not feel that this was appropriate. He believed that officers must remain an arm’s length from victims. Otherwise, it would appear that Ms. Stronach was deciding who was doing the investigation and this could be viewed as a conflict. Supt. Jagoe stated that he was not aware of any policy that would have prevented Mr. Merrifield from contacting Ms. Stronach.

[159] Mr. Proulx stated that in February 2005, he was not aware of Mr. Merrifield’s past political activities. When he was in charge of TAG, he could not recall deaths threats being made against Prime Minister Martin and President Bush. Later on he became aware that Mr. Merrifield had investigated the threats. He learned that Mr. Merrifield had received a related commendation. He agreed that Mr. Merrifield’s 2004 election activities were probably well known. Nobody at that time suggested that there was a conflict. Mr. Proulx stated that if he had known about the 2004 election activities back then, he would have seen them as a conflict. Mr. Proulx said that Mr. Merrifield’s running against Prime Minister Martin in 2004 and then at a nomination meeting in 2005 meant that he could not investigate a death threat. He did not know that a nomination meeting takes place at a private party event. He did not see the distinction between this and running in an election.

[160] Mr. Proulx stated that when he discussed the Stronach matter with A/Sgt. Crane, A/Sgt. Crane said that he felt there was a conflict of interest. Mr. Proulx shared his concern, specifically that Mr. Merrifield was a member of the Conservative party. Most members of the Conservative party were upset with Ms. Stronach. If something were to happen to her, the RCMP’s threat assessment would be reviewed. If Mr. Merrifield’s name was attached to it, the RCMP would be blamed regardless of whether Mr. Merrifield had done a perfect job. Someone might think he was happy that something happened to her. (Mr. Proulx was confused. He thought Mr. Merrifield was doing a threat assessment. As noted above, he was investigating a death threat.) Mr. Proulx stated that he instructed A/Sgt. Crane to take the file away from Mr. Merrifield. He then asked A/Sgt. Crane what kind of work could be assigned to Mr. Merrifield if he could not work on a political file because of his past. A/Sgt. Crane said “not much”. Anyone could make a point of it. They agreed to schedule a meeting on Friday morning in London to discuss the matter. Mr. Proulx stated that prior to the meeting in London, he did not know that Mr. Merrifield had spoken with Ms. Stronach. He said that this heightened the conflict and it was not acceptable.

[161] Mr. Proulx stated that he had a second conversation with Sgt. Verecchia on May 24, 2005. He wanted to ask her about the Stronach issue and whether he was wrong to think that there was a conflict. Sgt. Verecchia told him that he was correct and that she would send him the policies. She said the conflict could be real, apparent or potential. She sent him a copy of the email that she had received from Mr. Merrifield on February 3, 2004 and the response from Professional Standards.

[162] Mr. Merrifield said that he explained to Supt. Proulx that he had already spoken to Ms. Stronach and that she had no issue with him carrying out the investigation. Mr. Proulx stated that this was also a conflict. One is not supposed to talk with a Member of Parliament. He stated that if the RCMP does a threat assessment on a U.S. President, the RCMP does not speak to him.

[163] In his testimony, Mr. Proulx subsequently agreed that Mr. Merrifield was assigned to investigate a death threat against Ms. Stronach. It was not a threat assessment. A threat assessment is about gathering information and determining a threat. He stated that A/Sgt. Crane described it as a threat and risk assessment. Mr. Proulx stated that even if it was only a death threat, he would still have seen a conflict. A/Sgt. Crane said there was a conflict.

[164] Mr. Proulx agreed that there was no policy that would prohibit a member from speaking to a Minister. Mr. Proulx then changed his testimony and stated that he did not see anything wrong with an officer’s contacting a victim of a potential death threat.

[165] Mr. Proulx stated that his concern was not about Mr. Merrifield’s integrity or the quality of his work. It was about what would be perceived if something happened. Mr. Proulx stated that he told Mr. Merrifield that he had asked A/Sgt. Crane to remove him from the Stronach investigation.

[166] C/Supt. Mazerolle recalled that there was one meeting with Insp. Proulx and C.O. Seguin close to the end of May in C.O. Seguin’s office about the issues relating to the Stronach investigation. After the meeting in the C.O.’s office, C/Supt. Mazerolle recalled that Insp. Proulx told him that he intended to remove Mr. Merrifield from TAG and assign him to Criminal Investigations North.

[167] Mr. Seguin stated that the Stronach investigation was an operational matter and that C/Supt. Mazerolle was taking care of it. He was not sure if there was a policy would prevent Mr. Merrifield from contacting Ms. Stronach. There was perception of conflict and a decision was made to remove Mr. Merrifield from the investigation. He agreed with the decision. He stated that the actions taken were within the authority of the officers who made the decisions. He was not aware that Mr. Merrifield had been taken off a 2005 Royal Family visit. He agreed that this visit was not a political matter.

[168] Sgt. Verecchia stated that on May 26, 2005, Supt. Proulx sent her a request for guidance regarding the conflict of interest policy and whether Mr. Merrifield had contravened the policy on this issue. He provided Mr. Merrifield’s brochure for the Barrie nomination event. Sgt. Verecchia stated that it was not just a coincidence that Supt. Proulx contacted her. He contacted her because he already knew that she had provided advice to Mr. Merrifield in 2004.

[169] Sgt. Verecchia explained that Supt. Proulx had asked her for the information that she had given to Mr. Merrifield earlier regarding LWOP and political activities. She sent it to him. She understood Supt. Proulx wanted an opinion as to whether Mr. Merrifield had contravened the conflict of interest policy and whether his campaign material was contrary to the requirements in the RCMP Regulations.

[170] Supt. Proulx then sent her an email with respect to Mr. Merrifield’s website and information about the Stronach investigation. She told Supt. Proulx that Mr. Merrifield’s investigation of Ms. Stronach’s death threat was a conflict. He was partisan and his objectivity might be questioned. The RCMP had to be objective especially with respect to political investigations. Sgt. Verecchia stated she believed that objectively, it was an apparent conflict for Mr. Merrifield and the RCMP. If something had happened, Mr. Merrifield’s integrity could be questioned and the Force’s objectivity could be questioned as well. His involvement in the Stronach investigation created both perceived and apparent conflicts.

[171] Sgt. Verecchia stated that she had some concerns about the material that Supt. Proulx sent her. Mr. Merrifield was not on LWOP at this time and was still working for the RCMP. She was concerned that the pamphlet had been distributed. Mr. Merrifield was speaking against some of the laws of the day, including the gun registry, while not on LWOP. The gun registry was a law of Canada and it had to be enforced. Mr. Merrifield was voicing political opinions and undertaking political activities contrary to the RCMP Regulations and the conflict policy. She discussed four specific concerns with Supt. Proulx:

(a) speaking about the gun registry;

(b) the distribution of the campaign material;

(c) an active website in which it appeared that Mr. Merrifield was campaigning; and

(d) his involvement in a political investigation with respect to Ms. Stronach.

[172] She stated that he should not be involved in any of them. She stated that she felt Mr. Merrifield had crossed a line, that he was using the RCMP to further his political activities and to sell himself as a nominee. While working as an RCMP officer, he should not have taken a public stance against the government and its existing laws. He had an obligation to enforce the laws and remain objective. Mr. Merrifield was proceeding contrary to the advice that she had given him in 2004.

[173] Sgt. Verecchia stated that section 12.12 F of the Conflict of Interest Policy states that once a member returns from LWOP, the officer is to determine a suitable assignment taking into account political opinions expressed, political impact that may result from the posting and investigations with political overtones being conducted by the proposed unit. Sgt. Verecchia stated that she advised Supt. Proulx that Mr. Merrifield should not be doing any political investigations as it was a conflict.

London Meeting - May 27, 2005

[174] Mr. Merrifield stated that he and A/Sgt. Crane were summoned to a meeting on May 27, 2005 at the London office. He was led to believe that Supt. Proulx wanted to discipline him for his participation in the Barrie nomination meeting and deal with his removal from the Stronach investigation. Two days before the meeting, he contacted Sgt. Nicota, who was a part-time Staff Relations Representative (SRR) because he wanted a SRR with him at the meeting. Mr. Merrifield explained that SRRs help to guide members through policy issues and provide advice regarding grievance matters, among other things.

[175] Mr. Merrifield stated that he met with Sgt. Nicota for an hour. He in turn contacted Sgt. Bohus who had a full-time SRR position. Sgt. Nicota wanted Sgt. Bohus to be at the meeting.

[176] The meeting was held on May 27, 2005. Mr. Merrifield recalled that he, Supt. Proulx, Sgt. Smith, Sgt. Bohus and Sgt. Nicota attended. The meeting was approximately two hours long and centered around Mr. Merrifield’s participation in politics, the Barrie nomination meeting, the Stronach matter and the alleged conflict in TAG. Supt. Proulx asked him if he had obtained LWOP. The meeting started out in a professional manner but deteriorated after Sgt. Bohus excused himself to attend another matter.

[177] Mr. Merrifield stated that he showed Supt. Proulx s. 3.2 of the Administration Manual, XII.12, the same section that he had shown to A/Sgt. Crane. He said he believed that LWOP was not required for nomination meetings based on his discussion with Sgt. Boos.

[178] Mr. Merrifield stated that Supt. Proulx became condescending and belligerent as he made a series of allegations: that he was using the Force to advance his political career; that a Conservative policy was in contravention of the Force policy, being the position on the firearms registry; and that the Conservative position on the traditional definition of marriage was hate literature. Mr. Merrifield stated that the views on the traditional definition of marriage were his own. The conversation went in circles. Supt. Proulx attacked his personal integrity. He did not understand or would not accept the difference between running in a nomination meeting which was a private event open to only members of the Conservative Party in contrast to running in a public election. Mr. Merrifield stated that he explained the difference at least twice.

[179] Mr. Merrifield stated that Supt. Proulx asked him why he had run in the nomination meeting. He explained that it was to protest. Supt. Proulx did not believe that he would be involved only for reasons of ethics and integrity. Supt. Proulx stated that he would have to choose between politics and the RCMP.

[180] Mr. Merrifield said that he was very upset by Supt. Proulx’s accusation that he was using the Force to further his political career. He stated that in his seven years as a police officer, he had been shot at, attacked with a knife and steel bar, run off the road and left for dead. He had a strong commitment to the RCMP.

[181] At one point, Supt. Proulx stood up and leaned across the table, balancing himself on his fingers. He then went into the partisan aspect of politics and stated that Ms. Stronach was a Liberal and Mr. Merrifield was a Conservative. If anything happened when he was investigating a threat, there would be a big problem. Mr. Merrifield stated that he reminded Supt. Proulx that he had investigated the threat related to Prime Minister Martin who was a Liberal and there was no issue. He disclosed his political views before he became part of TAG. Supt. Proulx stated that he would forward the campaign literature to headquarters for review and he would be looking into it. Mr. Merrifield had the impression that he would be under investigation.

[182] Mr. Merrifield stated that Supt. Proulx had already made a decision before the meeting started. He told him to clean up his things at TAG and report to Toronto. Mr. Merrifield stated that he felt intimidated. He had worked in the private sector before he became a member of the RCMP. He had not been on the Force long enough to qualify for a pension. He had three young children. The prospect of being unemployed was very stressful.

[183] Mr. Nicota retired from the Force in August 2009 as a Sergeant. He recalled attending the meeting on May 27, 2005 and said it was two hours long. Going into the meeting, he believed that Mr. Merrifield had followed all of the relevant policies. He was aware that Mr. Merrifield had run as a candidate in Richmond Hill during the 2004 election.

[184] Mr. Nicota’s recollection of the meeting was that it started with a discussion of the Stronach situation. Mr. Merrifield had been investigating a threat to her life. After Sgt. Bohus left, the meeting turned into an attack on Mr. Merrifield by Supt. Proulx. He started looking at Mr. Merrifield’s resume and questioned its validity. It was a trenchant attack on Mr. Merrifield’s character, on everything that he had done prior to joining the Force and during his career with the Force. Mr. Nicota recalled that Sgt. Smith quietly took notes. A/Sgt. Crane looked flushed and upset. Supt. Proulx was agitated, his voice was elevated and his tone was sarcastic.

[185] Mr. Nicota stated that it was the most unusual meeting that he had ever seen in the Force. He said it was like watching a totally unforeseen, bad train wreck. After Sgt. Bohus left, the atmosphere completely changed and the meeting became out of hand. The tone went from professional and collegial to disrespectful. Supt. Proulx stated that he did not believe anything that Mr. Merrifield said about his previous work. He questioned Mr. Merrifield’s political motives and asked what he was doing in the Force. Supt. Proulx could not seem to understand the difference between Mr. Merrifield’s putting forward his name as candidate at a nomination meeting and actually running for office. Mr. Nicota understood that Mr. Merrifield did not intend to win the nomination meeting. He attended because he had a problem with one of the other candidates.

[186] Mr. Nicota stated that other people will say that Sgt. Bohus never left the meeting. Mr. Nicota said that they are incorrect and that Sgt. Bohus did leave half way through. He noted this in an email one year later because he found it was suspicious and interesting that Supt. Proulx would change his tone after Sgt. Bohus left. It was as if he waited for Sgt. Bohus to leave and then went into attack mode.

[187] Mr. Nicota stated that Supt. Proulx’s demeanor and questioning was intrusive, inappropriate and unprofessional. He was questioning Mr. Merrifield’s campaign literature and waving his hands. He was not behaving the way a Superintendent should behave.

[188] At the meeting, an issue regarding Cpl. Frith was discussed. Mr. Merrifield believed that Cpl. Frith had been directed to attend the political meeting where Mr. Merrifield was standing as candidate. He was directed to bring back materials and report on the meeting. Mr. Nicota stated that this was a gross violation of RCMP Policy and the law.

[189] Prior to the meeting, Mr. Nicota thought that the issues between A/Sgt. Crane, Supt. Proulx and Mr. Merrifield could be resolved; however, Supt. Proulx said Mr. Merrifield should choose between politics or the RCMP. Mr. Nicota stated that based on his own experience with the RCMP and how it works, he believed that Supt. Proulx had commenced an investigation. Mr. Nicota stated, “You have a feeling when something just doesn’t add up.” He stated that after he left the meeting, he wondered where the matter would be going. To him, it seemed like it was heading toward disciplinary action rather than an informal resolution. He stated that Supt. Proulx’s manner of dealing with the issues at the meeting came right out of left field and was totally unexpected.

[190] Mr. Nicota stated that after the May 27, 2005 meeting, he called C.O. Seguin, who was a troop mate and personal friend. He asked C.O. Seguin to contact an officer from outside of the Division to come in and conduct an investigation, to try to unravel what other issues might be at hand. He wanted to make sure C.O. Seguin had all of the information from an independent investigator.

[191] Sgt. Nicota sent an email later on to SRR Ford and Mr. Merrifield. It states:

…in my 32 years, I never witnessed an “Accused” (let alone a serving member of the RCMP) confronted in the manner as Peter MERRIFIELD was subjected to by Supt. PROULX….Mr. PROULX’S manner of questioning was the epitome of harassment and could be used for classic textbook lecture material example. Supt. PROULX’S questions ridiculed, demeaned and embarrassed MERRIFIELD.

[192] Mr. Proulx’s recollection of May 27, 2005 was that prior to the meeting, he spoke to Sgt. Bohus. Sgt. Bohus told him, “Be careful with this member. You’re treading on thin ice.” Sgt. Bohus said that he would support Supt. Proulx at the meeting arranged for May 27, 2005. Mr. Proulx stated he believed that Mr. Merrifield’s work on the Stronach investigation was a clear conflict.

[193] Mr. Proulx stated that he called the May 27, 2005 meeting because he wanted to personally explain to Mr. Merrifield why he had removed him from the Stronach file and also to get his side of the story. Mr. Proulx said that he was considering transferring Mr. Merrifield from TAG and wanted to hear from him. He also wanted to discuss the nomination meeting, the fact that Mr. Merrifield had run without LWOP and the contents of the pamphlet.

[194] Mr. Proulx stated that at the outset of the meeting, he initiated the discussion and said that he wanted to address three things: running in the election without approval, the Stronach investigation and what to do with Mr. Merrifield with respect to TAG. Mr. Proulx had a very different recollection of the tone of the meeting in contrast to that of Mr. Merrifield and SRR Nicota. He stated that overall the tone of the meeting was very good. There was no shouting or finger pointing. It was a civilized meeting.

[195] Mr. Proulx stated that he told Mr. Merrifield that he should have had permission from the C.O. to attend the “election”. Mr. Merrifield replied that he had no intention to win the nomination. He was just there to speak. The nomination meeting was not an election. Mr. Merrifield stated that A/Sgt. Crane had only asked him whether he would be running in another election. Mr. Proulx said that he told Mr. Merrifield that he was playing on words and that A/Sgt. Crane would not know the difference between a “nomination election” and a federal election. Mr. Merrifield stated that he wanted to speak at the nomination meeting because he had a concern about one of the candidates. He did not want to win the nomination meeting. Mr. Proulx conceded that the tone of the meeting was raised at this point. Mr. Merrifield stated that he had distributed only 300 pamphlets whereas in the previous year, when he was running in the Federal election, he distributed 50,000. Mr. Merrifield stated that he understood he did not need LWOP because the nomination meeting was on a Saturday. Mr. Proulx commented that Mr. Merrifield had invested money in the pamphlets but said he did not want to win. This did not make sense to Mr. Proulx.

[196] Mr. Proulx told Mr. Merrifield that his website was open and that he was running for election. There was a lot of discussion between the difference between running at a nomination meeting and in an election. Mr. Proulx told Mr. Merrifield he was splitting hairs and that regardless of which it was, he had to be on LWOP. At the same time, Sgt. Nicota was saying that the nomination meeting was not an election. Mr. Proulx stated that voices were raised at this point as three people were trying to talk over each other. Mr. Merrifield was not seeing things the way he did.

[197] With respect to the pamphlet and the website, Mr. Proulx said he asked Mr. Merrifield about the contents. He stated, “Don’t you think you’re criticizing the Commissioner if you say you’re going scrap the gun registry? You’re a member, you can’t do it.” Mr. Proulx stated that he was not a politician and that he did not follow politics at all. He had no idea of what the Conservative platform was for the upcoming election. In the pamphlet, Mr. Merrifield stated that he had received numerous awards. Mr. Proulx stated that he asked Mr. Merrifield about his awards and that they discussed a couple of them. The pamphlet said that Mr. Merrifield had worked across North America. Mr. Merrifield told him that he had travelled as an Air Marshall to numerous locations. Mr. Proulx said, “Don’t you think you’re misleading your constituents?” Mr. Merrifield said no.

[198] On the last page of the pamphlet, there was a statement that the traditional definition of marriage would be defended. Mr. Proulx stated he was concerned about this because an RCMP officer has to treat everybody equally. He stated to Mr. Merrifield, “Doesn’t this show your views against gay marriage?” He also asked Mr. Merrifield, “Didn’t you think that this was in conflict with your position?” Mr. Merrifield was not on LWOP. Mr. Proulx stated that Mr. Merrifield did not see a conflict in any of these issues. Mr. Proulx stated that as far as he was concerned, nominations and elections were all in the same group. They were the same thing. Mr. Merrifield had different definitions.

[199] Mr. Proulx stated that he may have questioned Mr. Merrifield about his objectivity. At the end of the meeting, he stated that he was going to forward the campaign materials to headquarters for review.

[200] Mr. Proulx stated that he subsequently had a telephone conversation with Supt. Dubeau. Mr. Dubeau told him to be careful about issues relating to political activity and human rights. Politics was a touchy issue in the Force.

[201] Mr. Proulx said that he stated to Mr. Merrifield that ninety-five percent of TAG’s work dealt with politicians. TAG members have to interview them. It was important to get the best information available from the subject of a threat. Mr. Proulx stated that they might be reluctant to give information to Mr. Merrifield. He was recognizable because he was a candidate for three nomination meetings and one election.

[202] Mr. Proulx stated that Mr. Merrifield told him that he wanted to continue to work at INSET. Mr. Proulx said that INSET was not in line of command. He told Mr. Merrifield that TAG was an issue and that he did not see Mr. Merrifield staying there. Mr. Proulx said the meeting did not provide him with any evidence that he could leave Mr. Merrifield at TAG. Mr. Proulx stated that at the end of the meeting, he told Mr. Merrifield that he would make a decision about it and get back to him. He did not threaten Mr. Merrifield’s employment. He said, “You’ve chosen a hobby that comes in conflict with TAG duties. You can’t be on TAG.” He stated that he never said that Mr. Merrifield would have to choose between the RCMP and politics.

[203] Mr. Proulx stated that he returned to his office and made some notes of the meeting. Neither Sgt. Bohus nor Sgt. Nicota came to him on that day to raise any concerns about the meeting.

[204] Mr. Smith retired from the RCMP in April, 2008 as a Staff Sergeant. He now provides contract services to the RCMP.

[205] Mr. Smith stated that, prior to retirement, when he was in charge of Criminal Analysis, he worked at London headquarters. His line officer was Supt. Proulx.

[206] Mr. Smith stated that he did not know Mr. Merrifield until spring 2005. He did not know that Mr. Merrifield had been involved in politics, that he had attended a political event without LWOP or that he was involved in the Stronach investigation.

[207] He first met Mr. Merrifield at the May 27, 2005 meeting. Supt. Proulx asked him to attend in absence of another member, Sgt. Gilchrist. He recalled that copies of pages from Mr. Merrifield’s website and a pamphlet were at the meeting.

[208] Mr. Smith recalled that Mr. Merrifield responded to Supt. Proulx’s concerns. He said emphatically that it was not his intention to run for nomination. He was there just to speak publicly to members of the Conservative party. He had concerns about one particular candidate that was running and wanted to speak about him.

[209] Mr. Smith stated that the exchange between Supt. Proulx and Mr. Merrifield went on for some time and became heated. The tone was argumentative on both sides. Mr. Merrifield may have felt that his integrity was being challenged. He did not recall Supt. Proulx’s standing up and leaning over the table during the meeting. There was a perception that Mr. Merrifield was not being honest and forthright.

[210] Mr. Smith stated that Supt. Proulx was concerned about Mr. Merrifield’s exercising poor judgment. Supt. Proulx said that Mr. Merrifield would have to make a choice between his career or politics. Mr. Smith testified that Supt. Proulx did not say Mr. Merrifield could not work at TAG, only that he was considering it. He said he would consult with various policy centers in Ottawa. The meeting lasted approximately two and a half hours and ended at this point.

[211] Mr. Smith stated that he would expect steps to be taken against an officer who was not forthright with a superior officer. No Code of Conduct proceedings were initiated against Mr. Merrifield, nor was he disciplined in any way regarding the issues discussed at the meeting.

[212] Mr. Smith stated that Sgt. Nicota’s comments in his email to SRR Ford were false.

[213] Mr. Smith stated that Supt. Proulx was on leave in August 2005 and previously had assigned to him full acting duties as Superintendent in charge of the Criminal Intelligence branch. He prepared an email dated August 12, 2005 to Cpl. Dunn, the OIC of the Conflict Resolution Team. He had obtained a cassette video regarding Mr. Merrifield’s appearance on the Michael Coran radio show ten months earlier, on October 19, 2004. Mr. Smith stated that Supt. Proulx had asked him to send the tape to Cpl. Dunn for review because Supt. Proulx wanted her comments.

[214] Mr. Merrifield had another performance review for the period August 1, 2004 to August 1, 2005 which included the time period when he participated on the Coren show, when he ran in the Barrie nomination meeting, and when he was at TAG. Mr. Smith noted that in the review, Supt. Proulx stated, “Cst. Merrifield is a great asset to the RCMP. His leadership skills and overall communication abilities were quite apparent during his stay with TAG.” A/Sgt. Crane stated:

[Cst. Merrifield’s] personable character, dedicated work ethic and tireless ambition are several of the notable qualities of this member…Though only in the Force for a limited number of years, he has continually stepped to the forefront and exhibited a willingness to apply himself to the tasks presented to him. He assimilated into the TAG quickly and was tasked to become a team leader and develop a program to establish a balanced reporting of the seven Strategic Criminal Extremist Groups…He was also the lead investigator involving an individual who was sending threatening letters to the Prime Minister Canada/President of the U.S. This file involved several local Police Services and a foreign agency. Cst. Merrifield directed the file and mentored several other members who had less experience in criminal code investigations. The file was concluded with charges and the unit benefited by his professionalism and mentoring. Cst. Merrifield is a forward thinking individual who seeks innovation and solutions to resolve operational requirements.

[215] Regarding the questions that Supt. Proulx asked Mr. Merrifield in the London meeting, Mr. Seguin agreed that if Supt. Proulx had questioned Mr. Merrifield about the pamphlet’s contents, this would amount to a sensitive sector investigation because the questions would be about a private political event. Mr. Seguin stated that questions should have been asked about policy compliance. Mr. Merrifield should not have been asked about the contents of the pamphlet.

[216] Mr. Seguin stated that his direction to Supt. Proulx was to follow up with respect to the Administrative Manual, as to whether Mr. Merrifield sought authority to attend the nomination meeting. He was not aware that an Internal Complaint file had been opened nor was he aware of the actions that Supt. Proulx was taking. He knew that no actions were ultimately taken with respect to Mr. Merrifield’s failure to obtain LWOP to attend the nomination meeting. Mr. Seguin said that there was no Code of Conduct investigation with respect to the LWOP issue because it was not a big deal. Mr. Merrifield’s comments on the Coran radio show were also not a big deal. He expected that there would be follow up on the LWOP issue and that it would be addressed.

[217] Mr. Merrifield stated that after the May 27, 2005 meeting, he had a lot of medical issues. He had headaches and dizziness. He was nauseous and felt very stressed and intimidated. He was fearful for his employment. He felt that Supt. Proulx was targeting him. He felt isolated from his peers and most members of the Force. He stated that there is a perception of two tiered justice in the Force: one for Commissioned ranks and one for the others. Those who are not commissioned officers fear reprisal for stepping out of line.

[218] Mr. Merrifield stated that his colleagues perceived that he had done something wrong. He was stripped of his investigative role in TAG. A/Sgt. Crane had told people that he was in trouble. After that, he was transferred. It was an embarrassing, stressful situation. It left him in doubt about his future with the Force.

Criminal Intelligence - June 2005

[219] Mr. Merrifield stated that in June 2005, Supt. Proulx transferred him from TAG to Toronto North Criminal Intelligence. It had no vacancies. He was considered “surplus to establishment.” This unit was under Supt. Proulx’s line of command. Mr. Merrifield stated that he had no choice in the transfer. He discussed it with Sgt. Nicota. He asked Insp. Jagoe if he could stay on the investigative side of INSET where there were vacancies. Nobody had said that the conflict concern extended beyond TAG’s work. Even though INSET was under Insp. Jagoe’s command, not Supt. Proulx’s command, Insp. Jagoe said that it was Supt. Proulx’s decision.

[220] Mr. Merrifield stated that the other members in Criminal Intelligence were gracious and supportive. He became a recruiter of confidential informants and a source handler. The investigations were restricted to criminal enterprise, organized crime, biker gangs, immigration and passports. He obtained approval to probe intelligence in areas of his interest. This included criminal organizations and firearms, and to identify high risk gangs using smuggled firearms.

[221] Mr. Merrifield stated that there was a homicide at the Phoenix night club in Toronto. He had obtained related confidential information about firearms smuggling. Some individuals were stopped at the border and were arrested. Mr. Merrifield stated that while he was travelling to Niagara Falls to interview them, INSET asked him to return. Mr. Merrifield believed that this was an interference with the performance of his duties. He had top level security clearance. He was never told the reason why he was called off the interview.

The Bob Pritchard Radio Show - July 9, 2005

[222] Mr. Merrifield stated that in the summer of 2005, he had knee surgery and was off work. Shortly after the terrorist attacks in London, England, he was contacted by an acquaintance to participate in a talk show regarding the history of terrorism. He agreed to do it but said clearly that he could not be identified as a member of the RCMP nor would he speak in any official capacity. He spoke on the radio as a private citizen.

[223] Mr. Merrifield stated that he was not aware of s. 1.1, Part 27 of the Operations Manual which stated that all media contacts were to be reported to the detachment or unit commander and to a Division Media Relations non-commissioned officer as soon as possible.

[224] Mr. Merrifield recalled commenting on the talk show that Al Qaeda indicated that Canada was a potential target for terrorism. This was not a secret. It was widely reported.

[225] Mr. Merrifield stated that Supt. Proulx called him at home the next week. He accused him of disclosing top secret information. Mr. Merrifield stated that he tried to reason with Supt. Proulx. He said that the information that he had provided was about the historical development of terrorism which he had learned from self-study. Mr. Merrifield said that he had not disclosed any RCMP information. Supt. Proulx was not satisfied. He said several times that C.O. Seguin and C/Supt. Mazerolle were very upset. He recited several complaints that Insp. Jagoe had made and said that Insp. Jagoe was making calls about him. Mr. Merrifield said that the conversation was direct, terse and accusatory. Supt. Proulx said that there would be an investigation and disciplinary proceedings.

[226] Mr. Merrifield stated that disclosing top secret information would be a violation of the Security of Information Act, R.S.C. 1985, c. O-5 (SOIA). The penalty for this offence was up to 14 years of imprisonment. The only person who could investigate this was the officer in charge of INSET, being Insp. Jagoe. This represented a glaring conflict because he had made the complaint and he would be investigating it.

[227] Regarding the Pritchard show, Supt. Jagoe testified that he was on his way to work one morning in July 2005, after Mr. Merrifield had been transferred to Criminal Intelligence, when he received a phone call from Cpl. Oliver asking him if he was listening to the radio. He said that Mr. Merrifield was doing an interview on the radio and that he was talking about national security. Supt. Jagoe said that when he got to the office he called Supt. Proulx to ask him if he was aware of it. He was not. Supt. Jagoe stated that his immediate concern was national security. There are clear protocols and processes that have to be followed to do media interviews. National Headquarters was very concerned about providing a message in a consistent manner. It wanted only certain people to speak on behalf of the RCMP. Supt. Jagoe said he thought that Mr. Merrifield should have obtained the approvals to do an interview. He knew that Mr. Merrifield had not sought approval through him.

[228] Supt. Jagoe received a recording of the show from Supt. Proulx. He listened to the entire interview. Mr. Merrifield was described as a consultant, someone who works within the field. He was not identified as an RCMP member but his name was clearly mentioned. Supt. Jagoe stated he was concerned because the discussion was about the history of terrorism. There were questions about Toronto and Canada as targets for terrorists. He believed that this information was getting into some very sensitive areas. The fact that Mr. Merrifield was not identified as member of the Force did not allay his concerns. He was readily identifiable as a member and therefore his comments would be viewed as credible.

[229] Supt. Jagoe stated that shortly after listening to the CD, he wrote a memo dated July 20, 2005 to Supt. Proulx in which he outlined his concerns. He stated he believed that Mr. Merrifield was aware that approval was required to do media interviews because S/Sgt. King had spoken to him about this shortly after his arrival at INSET. He believed that Mr. Merrifield had spoken about sensitive topics. Even if the information was available in the public domain, having a member validate it was potentially harmful to the Force’s ability to collect information in the future.

[230] Supt. Jagoe stated that people who work in the intelligence field at the RCMP are bound by SOIA. They are required to sign documents stating that they will not talk about secret information in the public domain. Supt. Jagoe stated that after he listened to the CD, he concluded that Mr. Merrifield had not violated the legislation. Nevertheless, he had concerns.

[231] Supt. Jagoe stated that the information that Mr. Merrifield had provided on the radio show was widely known but in the circumstances, Mr. Merrifield, as a member of the RCMP, was validating the information for the public. Supt. Jagoe stated that he was not aware of any investigation that had been done to determine whether Mr. Merrifield had violated SOIA. He was not aware of any steps taken by Supt. Proulx after their conversation. He was not involved in this matter after he spoke to Supt. Proulx. He agreed that in the briefing note from Supt. Proulx to the Commissioner dated January 17, 2006, Supt. Proulx stated, “Merrifield didn’t reveal any classified information.” Supt. Jagoe stated that he did not know that Supt. Proulx had made this determination.

[232] Mr. Merrifield stated that while he was at Criminal Intelligence, Supt. Proulx attended at the unit to give a briefing about an upcoming restructuring. The meeting took place in a small boardroom. All the members of the unit were there. Supt. Proulx said, “All of you have a job, except for you Peter.” His expectation was that everyone would toe the line. Then he said, “You know what toeing the line is like eh Peter?” Mr. Merrifield stated that he took this as a reference to his adhering to the Conservative platform. He said that Supt. Proulx told a story about when he was a non-commissioned officer and how a commissioned officer was rude to him. Supt. Proulx stated that he was subsequently promoted and got even. Mr. Merrifield stated that this sense of retaliation bothered him. Supt. Proulx did not spend any time with him personally and did not say anything about the disciplinary investigation that he had threatened earlier.

[233] A/Sgt. Crane stated he had no involvement in Mr. Merrifield’s reassignment out of TAG. He was not consulted about where Mr. Merrifield should go. He stated he did not talk with anyone about it and had nothing to do with it. He said it was up to Insp. Jagoe to determine whether Mr. Merrifield could go to the investigative side of INSET. A/Sgt. Crane stated that he was not prepared to continue to work with Mr. Merrifield after he misrepresented his intentions. He had asked Mr. Merrifield if he would be running in an election and Mr. Merrifield said no. He put his name up for the nomination. At that point the trust was broken. He stated that Mr. Merrifield had to work somewhere else, notwithstanding the fact that Mr. Merrifield told him that he was just at the meeting to make a speech. A/Sgt. Crane said that Mr. Merrifield was transferred because he participated in the nomination meeting. He did not recall asking for Mr. Merrifield to be removed from TAG. It was not within his purview to do this. A/Sgt. Crane stated that he had nothing to do with the transfer and that it was Supt. Proulx’s decision based on the information that he collected.

[234] Supt. Jagoe stated that even though he did not know how Supt. Proulx was going to deal with his concerns and even though there was no discussion with Mr. Merrifield about the information provided on the radio show, he decided that Mr. Merrifield was not coming back to INSET. In addition, there was the situation with Ms. Stronach. Supt. Jagoe believed that Mr. Merrifield’s contacting her directly and asking her if it was okay to conduct the investigation was inappropriate. In Supt. Jagoe’s opinion, Mr. Merrifield showed very poor judgment.

[235] Supt. Jagoe stated that he did not discuss his concerns about Mr. Merrifield with the officers who administered Criminal Intelligence because he did not want to tarnish Mr. Merrifield’s reputation. Regardless of whether a Code of Conduct proceeding had been initiated, it did not alter his belief that Mr. Merrifield had poor judgment.

[236] C/Supt. Mazerolle took some notes regarding Mr. Merrifield’s remaining in TAG or potentially being transferred to INSET. His note dated June 2, 2005 states “Jagoe called to say he tried to accommodate Merrifield at INSET.” C/Supt. Mazerolle stated that he took this to mean that Mr. Merrifield was seeking a position at INSET. The note went on to say, “he was concerned about the review and hoped the C.O. in CROPS knew what they were doing.” C/Supt. Mazerolle stated that this was about the pamphlet. He knew that Mr. Merrifield wanted to be in INSET. He did not recall having any concerns about Mr. Merrifield’s working at INSET.

[237] C/Supt. Mazerolle stated that several months later, Insp. Jagoe told him that he would not have Mr. Merrifield at INSET. He said that Mr. Merrifield has not been truthful with him. Insp. Jagoe did not tell him whether he or Supt. Proulx had asked Mr. Merrifield for an explanation.

[238] C/Supt. Mazerolle stated from June 2, 2005, Mr. Merrifield wanted to return to INSET and that INSET probably had vacancies. C/Supt. Mazerolle was asked whether there was any reason why Mr. Merrifield could not return to INSET. He stated it was not his call. There were no findings against Mr. Merrifield. By this time, Insp. Jagoe said that Mr. Merrifield could not go to INSET. He would not support it. Insp. Jagoe would not support it then or even in 2006.

[239] Mr. Proulx stated that on May 30, he was not sure whether he had authority to remove Cst. Merrifield from TAG. He met with Insp. Brine, who was in charge of Human Resources in London, to ask him what he could do and what the best approach would be. Mr. Proulx stated that he learned that he could transfer Mr. Merrifield to another one of his units as long as it did not involve a lot of extra travel for Mr. Merrifield. He knew that Mr. Merrifield lived in Barrie at that time and that the drive to Criminal Intelligence in Newmarket was less than the drive to Steeles where TAG was located. Mr. Proulx stated that he could not transfer Mr. Merrifield to INSET because it was not one of his units. That would require full staffing transfer. Mr. Proulx stated that he decided to transfer Mr. Merrifield to Criminal Intelligence. He was still being paid through TAG. It was a temporary, good solution. It allowed him to properly assess the matter before making a final or radical decision. Mr. Proulx stated that he also spoke to C.O. Seguin and C/Supt. Mazerolle on May 30.

[240] Mr. Proulx stated that on June 1, he travelled to Toronto and met with Mr. Merrifield and A/Sgt. Crane. He confirmed that he was transferring Mr. Merrifield to Criminal Intelligence temporarily. He explained that the reason for this was because there were hardly any duties for Mr. Merrifield in TAG. Mr. Merrifield was concerned about the optics of the transfer and what others would think. Mr. Proulx stated that he met with the other people in TAG to advise them that he was transferring Mr. Merrifield to Newmarket temporarily and that he had done nothing wrong. He was not under investigation.

[241] Mr. Proulx stated that Mr. Merrifield was in fact not under investigation. He had not interviewed anyone and had all of the information he needed. He knew that Criminal Intelligence in Newmarket was busy but there were no Constable vacancies there.

[242] Mr. Proulx stated that he sent an email to A/Sgt. Crane to ask him some questions. A/Sgt. Crane answered the questions in his email to Supt. Proulx. Mr. Proulx stated that he wanted to be precise in the memo that he would be sending to C/Supt. Brown, head of Human Resources for Central Region.

[243] Mr. Proulx stated that on June 6, he received another email from A/Sgt. Crane. Mr. Proulx stated that his writing is at the bottom of this email. It was a summary of the information that he had. It states:

Early March 2005 not running, May 13 NCO found out, PMRTO [regular time off] 14 NOM (lost) no intention of winning a seat 300 pamphlets delegate, website open April 29, no LWOP as per last year’s running from NCPC [National Compensation Policy Centre] SGT Boos not of opinion that AM [administrative manual] 2.5.H.3 special leave applied.

[244] Mr. Proulx stated that on June 7, 2005, he sent his email to C/Supt. Brown. He did not fully understand the various types of leave without pay. He set out the issue in his memo and figured Human Resources could make a ruling. Making this type of decision was not his job. Mr. Proulx set our four questions:

1. By his actions has Constable Peter Merrifield contravened the RCMP regulation 58.4(1) taking into the account the policy ruling from 2004? This includes reactivating its website and distributing pamphlets.

2. By his “public” views on certain topics as outlined in his campaign platform, has he placed himself in a conflict of interest situation?

3. Should the special leave of 2004 be modified to reflect two (2) periods of LWOP personal leave as per AM.II.5.S.5? Meaning, Constable Merrifield’s entitlement for two periods of LWOP in his career has been expanded. [sic expended]

4. By his actions, has Constable Merrifield contravened the RCMP regulation 56.1 and impaired his ability to be impartial with a view to work within national security investigations within the RCMP (INSET)?

[245] This memo shows that Supt. Proulx thought that Mr. Merrifield originally had special LWOP and wondered if it should be classified as personal needs. This is the opposite of what happened.

[246] Mr. Proulx said that he did not initiate a Code of Conduct investigation regarding the fact that Mr. Merrifield attended a nomination meeting without LWOP. He stated that he felt it was a misinterpretation of policy. It was not a conduct matter. He saw it as an administrative issue.

[247] Mr. Proulx stated that he made a decision to transfer Mr. Merrifield out of TAG. Mr. Merrifield was concerned about how this would be perceived. Mr. Proulx stated that he wanted to make sure it was not perceived negatively. He recalled making an announcement. He could not recall who was there. He thought there were five members in TAG.

[248] Mr. Proulx was asked whether he could have seconded Mr. Merrifield to INSET with Insp. Jagoe’s concurrence. He stated that Insp. Brine told him that he could transfer Mr. Merrifield within only his unit. He agreed that Mr. Merrifield had asked to go to INSET but he did not ask Insp. Brine about it. He did not recall asking Insp. Jagoe whether he would accommodate it.

[249] Mr. Proulx stated that in June 2005, he did not think that the 2004 LWOP coding issue had been fixed. He did not know whether it would be re-coded to the kind of leave that a member could take only two times. He did not really understand LWOP.

[250] Sgt. Sim is a serving member of the RCMP. He has worked in the Criminal Intelligence section since 2003. He worked with Mr. Merrifield when he was there in 2005 along with Cst. Brown. He recalled that Mr. Merrifield first came into the section in the summer of 2005. At that time, Sgt. Penny was the OIC of the Criminal Intelligence section. When Mr. Merrifield was transferred to the Criminal Intelligence section he was “surplus to establishment” meaning that there was no vacancy in the section.

[251] Sgt. Sim knew that Mr. Merrifield had previously been at TAG. Sgt. Sim recalled that he and Cst. Brown were told to take over a file relating to threats against Belinda Stronach. Mr. Merrifield had been the previous investigator. Sgt. Sim understood that there was some conflict of interest with Mr. Merrifield and the file.

[252] Sgt. Sim stated that he and Cst. Brown were handling human sources and getting information from them. They introduced Mr. Merrifield to their sources. Sgt. Sim said that Mr. Merrifield had a knack for intelligence work. He was one of the best. His work was exemplary. He was invaluable to the section, especially with respect to intelligence probes regarding criminal groups. Sgt. Sim stated that they never had to explain anything to him.

[253] Mr. Brown retired from the RCMP as a Constable. He first met Mr. Merrifield when he and Sgt. Sim were assigned the Stronach file. He stated that he did not know why Mr. Merrifield was transferred from TAG to Criminal Intelligence. He thought that something was going on between Mr. Merrifield and his superiors.

[254] Mr. Brown stated that at Criminal Intelligence, he, Sgt. Sim and Mr. Merrifield were developing sources and they were working on issues relating to guns. Mr. Brown stated that Mr. Merrifield was innovative and sharp. He was good at getting information out of people who did not want to provide it.

[255] Supt. Proulx stated that he received a phone call from Insp. Jagoe on July 11, 2005. Mr. Merrifield had been on the Bob Pritchard show on Saturday July 9, 2005. He understood that Mr. Merrifield had talked for a few hours on counter-terrorism and Insp. Jagoe had some concerns about it. He did not know why Mr. Merrifield would do this. He told Insp. Jagoe that he would look into it, get a copy of the tape and listen to it and then speak to Mr. Merrifield.

[256] Mr. Proulx stated that the RCMP is sensitive about public speaking. Members were not allowed to go out and speak on their own initiative. Public speaking on local issues had to be authorized by a line officer or him. Public speaking on national issues had to be authorized by the C.O. The C.O. should have authorized this interview.

[257] Mr. Proulx stated that he researched the show on the internet. He was able to listen to the first part of it and recognized Mr. Merrifield’s voice. He had identified himself as a consultant in terrorism. The whole interview was not available on the website.

[258] Mr. Proulx then called Sgt. Penny, the officer in charge of Criminal Intelligence where Mr. Merrifield was working. He wanted to know whether Sgt. Penny was aware of the interview. Sgt. Penny told him that it was not the first time that Mr. Merrifield had spoken. He said that Supt. Proulx only needed to Google Mr. Merrifield’s name and he would find other occasions. Sgt. Penny told Supt. Proulx that he had not authorized it.

[259] Mr. Proulx then called Mr. Merrifield at home where he was recovering from knee surgery. Mr. Merrifield said that Bob Pritchard was a friend of his and he had spoken on the show on Saturday. He stated that Bob Pritchard had called him 45 minutes in advance. Mr. Proulx told Mr. Merrifield he should not have done it because terrorism is a sensitive issue and public speaking on the issue had to be pre-approved. Mr. Proulx stated that he told Mr. Merrifield that Insp. Jagoe was very concerned and that he would have to listen to the tape and determine whether Mr. Merrifield’s comments were from open sources. His concern was that people who listened to the show would want to identify Mr. Merrifield. They would Google him and they would find out that he was an RCMP officer. They would think his comments were coming from the RCMP. Mr. Merrifield had to refrain from doing this without proper authorization.

[260] Mr. Proulx stated that the next morning he sent an email about the interview to Insp. Schmidt (because C/Supt. Mazerolle was on holidays) and to C.O. Seguin to give them some notice. Mr. Proulx stated that he copied the email to Insp. Jagoe keep him updated.

[261] Mr. Proulx stated that on July 13, 2005, Mr. Merrifield called him and wanted a clarification of their discussion. He asked if he was under investigation. Mr. Proulx stated that he was not but he had to ascertain that Mr. Merrifield had not divulged any secrets in the interview.

[262] On July 18, 2005, Supt. Proulx received the DVD of the show. A copy of it was made and sent to Insp. Jagoe so that he could listen to it and determine whether Mr. Merrifield said anything that was top secret. Mr. Proulx testified that in his view, it was a huge conflict of interest for a member to speak about national security in the media. He was concerned that Mr. Merrifield might have released top secret information to the public.

[263] On the same day, Supt. Proulx sent an email to Sgt. Paradis. He wanted a transcript of the show and wanted to know if a search could be done to see if Mr. Merrifield had participated in other shows. In addition, Supt. Proulx wanted to know if Mr. Merrifield had permission to speak on these shows and whether he did this regularly.

[264] On July 18 or 20, 2005, Supt. Proulx received an email from Sgt. Paradis. She advised him that she had requested a transcript and could not identify any other shows in her search through the media system. Mr. Proulx stated that he received the transcript and read it before July 27, 2005.

[265] Mr. Proulx stated that by July 21, 2005 he had not received an answer from C/Supt. Brown regarding his email dated June 7, 2005 setting out the four questions. He sent a follow up email. Mr. Proulx testified that he was in the process of cataloguing the other shows and they would be forwarded to C/Supt. Brown. The tape was being analyzed to determine if there was a Code of Conduct breach. He did not know if anything on the tape was outside of public knowledge. Mr. Proulx stated that regardless of whether Mr. Merrifield had released information that was not public, he was still considering whether Mr. Merrifield had breached the Code of Conduct.

[266] Mr. Proulx stated that he did not order an investigation under Part IV of the Code of Conduct at that time. He believed that the matter could be resolved at the lowest level and that this was preferable because Code investigations “make people uneasy.” At that point, he had not made a final decision yet as to whether a Code of Conduct investigation was warranted and was still waiting for an answer from C/Supt. Brown. He thought that talking about national security publicly without authorization might have been a breach of the Code.

[267] Mr. Proulx stated that on July 26, 2005, he received a copy of two emails between from Supt. Trueman and Sgt. Davis of Professional Standards and Employee Relations. He did not know who Sgt. Davis was. It appears that Sgt. Davis was providing advice to Supt. Trueman regarding the relevant policy sections to consider.

[268] On July 27, 2005, Supt. Proulx sent a memo to Supt. Trueman in Ottawa. It states, “As per my discussion with Cpl. Dunn of your unit last week, here is a summary of the preliminary research I have conducted on the parallel activities of Cst. Peter Merrifield as a “panelist” or as a “host” of a radio/TV show.” Supt. Proulx provided details regarding Mr. Merrifield’s speaking on the Coran show, on the Pritchard show and at a B’nai Brith event. He stated:

I strongly believe that Mr. Merrifield has placed himself in a conflict of interest situation by appearing on those shows and may cause some embarrassment for the RCMP as a result of his views, actions or comments. However, I am seeking your view on this from a National Policy Center’s perspective regarding the “Conflict of Interest” policy/guidelines.” Transcripts and media articles were attached to the memo.

[269] Supt. Trueman was located at the National Policy Center and was an expert on conflict issues. Mr. Proulx stated that he wanted his advice before making a harsh decision. Mr. Proulx stated that he sent an email to Supt. Trueman dated July 27, 2005 with a number of attachments. One was the end of the transcript of the Pritchard show. He was seeking review from the National Policy Centre with respect to conflict issues. The fourth paragraph in the memo noted the B’nai Brith panel discussion on February 2, 2005. Supt. Proulx stated in the memo to Supt. Trueman that Mr. Merrifield had attended a panel with police chiefs and was referred to as a security expert with RCMP’s INSET. Mr. Proulx said that he was seeking advice from Supt. Trueman because Mr. Merrifield had appeared on other shows. Mr. Proulx stated, “I’m not a Code of Conduct guy. I wanted to take a different approach with other actions.”

The Secret File 2005-1117

[270] On July 26 2005, Supt. Proulx opened a file marked “Secret”. It was coded as a Professional Standards matter, “XX82”. The word “Secret” was written on the file jacket. Mr. Merrifield stated that he was never served with notice of a Professional Standards investigation relating to this file. He obtained this file jacket in 2014 on the eve of trial from the Professional Standards unit, (which investigates allegations of misconduct made against members), only because he made an access to information request after several years of litigation. This document was not produced by the Attorney General. There were no contents in the file jacket.

[271] Mr. Proulx stated that he had a number of documents regarding the inquiries that he was making with respect to Mr. Merrifield. On July 25 or 26, 2005, he gave all of the documents to his assistant, Ms. Robson, and asked her to open an official file. He was going away on holidays and wanted all of the documents to be accessible to others while he was away. He explained that an Occurrence Report (form 2500) is the first page of any file that is opened. An Occurrence Report was prepared for this file. In the upper right hand corner there is a file number, 2005-1117. In the left hand corner, there is a reported date which is July 26, 2005. An “OSR” classification is noted on the document. Mr. Proulx did not know what OSR stood for. He stated that he reviewed a code cheat sheet with Ms. Robson and decided that the file would be coded XX82 which indicates an internal complaint against a RCMP member. He chose this classification because Insp. Jagoe had brought some concerns to him regarding Mr. Merrifield’s participation in the radio talk show. The form shows that the complaint was “taken by Supt. Marc Proulx”. In the details section, two allegations are set out being, “S-1 alleged to seek federal election nomination seat without prior authorization” and “S-1 alleged to have appeared on TV and radio talk shows discussing national security terrorism without prior authorization”. Mr. Proulx stated that he provided this information to Ms. Robson. At the bottom of the form on the left is a due date, September 14, 2005. This is a diary date for the file to come up for review.

[272] Mr. Proulx stated that his initials are on the file jacket. In the middle at the bottom it says “05-10-05” and there is a slash across it. Mr. Proulx stated that this shows the date that the file was concluded. This was the day after Supt. Proulx had given Mr. Merrifield the administrative memo setting out his expectations.

[273] “Secret” is written in the centre of the file jacket. Mr. Proulx stated that secret files can be accessed by only certain people. He did not know why this file was considered secret. He stated that he did not write this word on the file. He was not aware of any special coding for a Code of Conduct investigation. There were no Occurrence Reports (16-24) in the file because it was not an investigation file. Mr. Proulx explained that this was an administrative file and was used to hold documents in order to keep track of them.

[274] Mr. Proulx stated that he did not know why the file was marked secret. Mr. Proulx then stated that he did know why the file was marked secret. A security classification on a file is related to the highest document in the file. If there was a top secret document in a file, even if it was only one out of five documents, then the file has to be classified as top secret. Mr. Proulx then stated that there were a few pages in this file that were classified as secret and this is why the notation Secret was placed on the file.

[275] Although Mr. Proulx initially testified that the Secret file was simply a file to hold documents and that he had advised Mr. Merrifield that he was not under investigation, he subsequently stated that he had carried out a fact-finding investigation. He denied that he interviewed Mr. Merrifield at the London meeting on May 27, 2005. He described it as a discussion between a boss and an employee.

[276] Mr. Proulx did not know that the Secret file was not produced until 2014, on the eve of trial. He had no explanation for this. He never indicated to Mr. Smith, the person in charge of gathering the documents for this action, that a document might be missing.

[277] Sgt. Verecchia examined file XX82 and the related occurrence report. She stated that XX82 means there was an internal complaint made by Supt. Proulx and that one of the allegations was “alleged to seek federal election and nomination seat without prior authorization”. In her view, this meant that a Code of Conduct investigation was underway.

[278] Sgt. Nicota reviewed the Occurrence Report with respect to the Secret file. He recognized it and stated that it is a form that commences an investigation. It shows that there was an internal complaint against a member. Supt. Proulx had opened the file and Mr. Merrifield was the subject of the investigation. Mr. Nicota also reviewed the file jacket. He stated that he was familiar with it. He said that it was curious that the file had an access restriction. Sgt. Nicota was familiar with the classification of documents for the RCMP. He testified that a secret file denotes a national security investigation. An investigation against a member should fall within the administrative or criminal side. An “A” file is a confidential file, a “B” File is a secret file and a “C” file is a threat to life file. Sgt. Nicota stated that the fact that “Secret” was written on the file folder shows that someone believed the allegations were a threat to national security. It indicates a very sensitive investigation. Sgt. Nicota stated that he would expect to see occurrence reports, exhibit reports, surveillance, investigators’ comments and evidence in a file like this. An investigative report (Form 16-24) outlines every action taken by an investigator. It is a mandatory form. Without it, one does not know what has occurred in the investigation.

[279] Supt. Jagoe stated that he would expect to find investigative reports and exhibit reports (Form 16-24) in this type of file. These types of allegations are investigated by the Professional Standards unit. They maintain the documents and hold them separately.

[280] C.O. Seguin testified that he was not familiar with the Secret file and did not recall if Supt. Proulx had told him that he had opened such a file. C.O. Seguin stated that he had never previously seen the related Occurrence Report. The purpose of such a report was to collect data for the opening of an operational file. He had no involvement in the opening of this file and did not know to what it related. He did not know whether Supt. Proulx had initiated a Code of Conduct investigation. If Supt. Proulx had done so, it would not have come to C.O. Seguin’s office because Supt. Proulx would be within his authority to order it. If a Code of Conduct investigation was referred to a disciplinary hearing it, would come to his office. He stated that he was not aware of the action that Supt. Proulx was taking.

[281] Commr. Paulson stated that if he saw a document like the Occurrence Report in a file, it would suggest that a Code of Conduct investigation was underway. He said a member should be notified as soon as possible of a Code of Conduct investigation. Commr. Paulson stated that the allegations on the Occurrence Report were poorly written explanations. They seemed to be significant suggestions of misconduct. He stated if an individual ordered a Code of Conduct investigation, he would expect that it would be appropriately documented.

[282] Commr. Paulson testified that a person could use a document such as an Occurrence Report and assign a file number to it without having an issue move forward as a Code of Conduct matter. This could happen because, in an early assessment, there might be a determination that it is no longer a Code of Conduct matter or it might be informally resolved. He stated he would expect that the person who was making these determinations would document them in the file. Subject to canvassing alternative explanations for where some documented analysis and accounting considerations were placed, Commr. Paulson said he would be concerned if there were no Occurrence Reports or evidence lists in file 2005-1117. He would still expect to see a record of the investigation maintained in some form. This would include detailed notes as to statements or investigative steps taken and the provenance of exhibits.

[283] Mr. Smith stated that in 2008, he started requesting documents for production in this action. He generated a document list in 2010. The first supplementary document list was provided on June 16, 2010 in advance of examinations for discovery. The second supplementary document list was provided on February 21, 2014. The third supplementary document list was provided on September 30, 2014. The fourth supplementary document list was provided on October 31, 2014. From June 2010 up to the pre-trial conference in June 2014, the AG produced no additional documents. No additional documents were produced until the trial began.

[284] Mr. Smith stated that he received the Secret file between 2008 and 2010. Access to it was restricted to himself as S/Sgt., C.O. Seguin, Supt. Proulx, Sgt. Gilchrist and the office manager Ms. Robson.

[285] Mr. Smith stated that he was not privy to the contents of the file. When he received it, he skimmed through the file to see if any information should be redacted before disclosure. He stated that hand writing on the file jacket states, “conclude file” Oct 12, 2005.

[286] Mr. Smith then referred to a different copy of the file jacket that has a further notation on it. It shows a further entry in 2010, under the 2005 “conclude file” entry. The day and month next to 2010 are illegible. The writing next to this date appears to be “Annual Review by civ lit” although the entry has a line through it and is difficult to read. The word “Secret” is not on this copy of the file jacket with the 2010 entry.

[287] The copy of the file jacket with the word “Secret” written on it predates the copy of the file jacket with the 2010 entry and without the word “Secret” on it. “Secret” could not have been easily removed later on because there is a background pattern on the document that is intact. No explanation was provided for the fact that the word “Secret” is not on the copy of the file jacket that contains the 2010 notation “Annual Review by civ lit”.

[288] Mr. Smith stated that the copy of the file jacket with the word “Secret” was made prior to 2010. He provided it to the Department of Justice prior to 2010. It was not produced in this action until 2014.

[289] Mr. Smith reviewed the related Occurrence Report. He said that it could have been attached to the inside cover of the file. He did not recall when it was produced. He did recall that Mr. Merrifield’s counsel requested the documents in file jacket. The Occurrence Report was provided only after that request was received. Mr. Smith stated that he did not see the Occurrence Report on his initial review because it was produced by someone else. He assumed the contents of the file had been produced to the Department of Justice.

[290] Mr. Smith stated that by looking only at “occurrence 2005-1117” on the file jacket, he could not determine the nature of the file. He stated that prior to becoming the file manager, he was not aware of the details of allegation S1 (alleged – seeking election without authorization, on TV). Between 2008 and 2010, before the commencement of the trial, he was aware that Supt. Proulx had made these allegations against Mr. Merrifield and that there was an internal investigation. Mr. Smith stated that someone identified that there was a “wallet”, which was like an accordion file that would contain the contents of the file 2005 – 1117. He became aware of the wallet in 2010. He stated that he went through it briefly and sent it to the Criminal Intelligence branch. He asked them to review it prior to disclosure to determine if any redactions were required. Criminal Intelligence returned the wallet. He then provided the wallet and its contents to the Department of Justice. Mr. Smith could not recall whether he thought that the wallet, its contents and a cassette were produced before November 2014.

[291] Mr. Smith stated that file 2005 – 1117 was reviewed in 2014 because it related to Mr. Merrifield’s political activities and speaking to the media on several occasion. It was relevant to this action. He did not know that the file number was provided in response to an access to information request made by Mr. Merrifield.

[292] Mr. Proulx stated that he received an email from Cpl. Dunn on September 22, 2005, which contained references to policy. He stated that he thought that this email was in response to his June 7, 2005 memo to C/Supt. Brown in which he set out the four specific questions. Mr. Proulx stated he assumed that the issue regarding the appropriate type of leave had been resolved internally. He was not privy to it. With respect to the question of whether Mr. Merrifield had contravened RCMP Regulation 58.4(1), the answer was not clear. There was no answer regarding whether Mr. Merrifield had placed himself in a conflict by stating his public views on topics outlined in his campaign brochure. There was no response as to whether Mr. Merrifield had contravened the Regulation. There was no ruling on anything. Mr. Proulx stated that he still wanted to resolve this “for Mr. Merrifield”. There were new chapters regarding the policy. He had not made a final decision.

[293] Mr. Proulx testified that he received an email from Mr. Merrifield dated September 23, 2005, in which he had stated that 19 weeks had passed without any resolution as to whether he had violated the RCMP Act. Supt. Proulx took offence to this follow up email from Mr. Merrifield because he was Mr. Merrifield’s superior. His view was that superior officers do not respond to diary date inquiries from junior officers. Mr. Merrifield asked whether he was the “subject of an internal investigation”. Supt. Proulx responded and advised Mr. Merrifield that he was not under investigation. He had not interviewed anyone. He said, “I sent some documents to HQ in Ottawa (as I told you) because the “conflict of interest” is not in the manual as of yet and wanted to get guidance from the policy center.” Mr. Proulx stated that in his mind he was not investigating. He just wanted direction so he could he could make the right decision.

[294] Although Mr. Proulx stated that he was not “investigating”, at a minimum, he was doing research regarding Mr. Merrifield’s public speaking. The Coran show and the B’nai Brith event preceded the Barrie nomination meeting. The Pritchard show occurred after Mr. Merrifield had been transferred to Criminal Intelligence.

[295] Mr. Proulx stated that Mr. Merrifield sent him a response dated September 23, 2005 indicating that he meant no offence by his follow up email. He said he was operating under a cloud with the stress of not knowing the result of a serious allegation. He had been suffering from symptoms that he believed were stress related. Mr. Proulx stated that he was not aware of Mr. Merrifield’s stress before he received the email. He thought he acted as quickly as he could and was waiting for Ottawa to respond.

[296] SRR Nicota sent an email to Supt. Proulx in which he stated:

Five months is a long time to wait living under the gun or a very dark cloud. He [Cst. Merrifield] was the subject of rumour and inuendo [sic] despite your trip to INSET-TAG to deal with his situation. When his investigations were turned over to another Unit, further questions arose as to his character and work ethic. I am suggesting your reaction to his message was an overreaction.

[297] Sgt. Nicota said that he was under the impression that Mr. Merrifield was being investigated.

[298] Mr. Proulx stated that he did not respond to Sgt. Nicota’s email.

[299] On September 23, 2005 at 11:30 a.m., right after he had sent his email to Mr. Merrifield, Supt. Proulx spoke to Supt. Trueman about how to close the matter. Supt. Trueman said that the policies were not clear in the past. The best way to close out the matter was to write an administrative memo to go into Mr. Merrifield’s file which would set out Supt. Proulx’s expectations as to media relations, conflict of interest and how not to get into a conflict. Supt. Trueman did not state that Mr. Merrifield had any conflict.

[300] Supt. Proulx took Supt. Trueman’s advice and provided a memo to Mr. Merrifield dated September 28, 2005. It is entitled “Potential Conflict of Interest relevant to Political Activities/Outside Activities”. It states:

This memorandum is prepared in order to address certain concerns I have with your “outside activities”. More specifically, I am concerned you may have unwittingly placed yourself in a conflict of interest position relevant to your political activities. Your participation at various TV/Radio shows as a guest speaker or panelist when dealing with sensitive issues, such as terrorism, clearly has the potential to place you in contravention of existing policy.

Sections 56 to 58.7, RCMP regulations outline your rights and obligations when contemplating engaging or participating in political activities. I encourage you to carefully read those sections prior to engaging in any further activities. Prior approval must be sought by the appropriate officer before engaging in a “political campaign”.

In so far as your participation at various TV/Radio talk shows or discussion panel, I would refer you to A.M. XII.12 Secondary employment/Outside activities published 2005-08-12. Furthermore, all media releases, media interviews or press conferences which are likely to be controversial and are of National Interest must be pre-approved by the Commanding Officer of the Division (O.M. – Divisional policy, 27.1).

While you are conducting those activities, concerns for conflict of interest will ensure:

1. that the member is not representing himself as an RCMP member to the public while doing the activity

2. that he is not providing a service that competes with the RCMP

3. that it is the member’s responsibility to ensure that he avoids any actual, apparent or potential conflict of interest

While this serves only as a reminder of your obligations and rights as a member of the RCMP, I am confident that if you keep those guidelines in sight while conducting outside activities, you will continue to be a valuable member of the RCMP and contribute to our organizational goals and mission.

Be assured of my continued support with your future career endeavors, and I remain available to further discuss these issues should you wish.

[301] It should be noted that A.M. XII.12 was published on August 12, 2005, a month after Mr. Merrifield’s appearance on the Pritchard show. C.O. Seguin said it was actually a new administrative chapter.

[302] Mr. Seguin stated that he did not order anything to be done regarding Mr. Merrifield’s participation in the radio show on terrorism. Insp. Schmidt had already directed Supt. Proulx to follow up and get the details. Mr. Seguin stated that when something was in the media, normally a briefing note would be provided to Ottawa. As of July 12, 2005, he was not aware of any other media appearances. He never listened to the radio interview or read a transcript of it. He said that the radio address was not a big deal.

[303] C.O. Seguin stated that he reviewed the memo dated September 28, 2005 from Supt. Proulx to Mr. Merrifield. C.O. Seguin stated that Supt. Proulx was within his authority to prepare this. He did not provide any direction to Supt. Proulx regarding the specific steps that he was to take.

[304] Mr. Brown stated that on December 12, 2005, he and Sgt. Sim met in a boardroom with Supt. Proulx. He and Sgt. Sim were trying to make a bid to have Mr. Merrifield stay in Criminal Intelligence. He was fun to work with and they were getting things done. They questioned why Mr. Merrifield was leaving Criminal Intelligence. Mr. Brown recalled that Supt. Proulx said that someone had it out for Mr. Merrifield but it was not him. Mr. Brown said that he prepared a statement setting this out. Supt. Proulx said that Mr. Merrifield’s transfer from Criminal Intelligence was out of his hands.

[305] Mr. Proulx’s recollection of the meeting confirmed Mr. Brown’s testimony.

[306] Mr. Proulx stated that he had no involvement in the ultimate staffing process for Mr. Merrifield once he determined that Mr. Merrifield could no longer be in TAG. Mr. Proulx stated he did not have any positions available in Newmarket.

[307] A/Sgt. Crane stated that honesty is a core value in the RCMP and that a breach of it is reportable. He told Supt. Proulx that Mr. Merrifield lied to him and that he did not believe Mr. Merrifield. This was not reflected in Mr. Merrifield’s performance report dated October 11, 2005. There are no comments in the report that say Mr. Merrifield was dishonest and a liar.

[308] Commr. Paulson reviewed Mr. Merrifield’s performance evaluation for the period August 1, 2004 to August 1, 2005. He understood that the document was signed by A/Sgt. Crane, Insp. Jagoe and Supt. Proulx. Commr. Paulson stated that if a line officer thought that a junior that he was evaluating had lied to him about the use of leave without pay or unauthorized public speaking, he would expect it to be set out in the performance review. He stated that appraisals are supposed to be evidence-based, accurate and actionable. They were to help people improve rather than to criticize and punish them. If the writer of a performance evaluation felt that someone was not truthful, the reference in the performance review should be linked to some work related issue that might have some consequences for the work.

[309] Mr. Proulx stated that by the time the performance report was written, the issues were concluded. He had given Mr. Merrifield the memo dated September 28, 2005. Mr. Proulx felt that the issues were dealt with on October 4, 2005 when he gave Mr. Merrifield the memo.

[310] Mr. Merrifield stated that after the summer of 2005, he submitted multiple search warrants, production orders, one-party consents and 540 affidavits containing evidence with respect to nuclear proliferation prosecutions. The Public Prosecution Service elected to proceed based on his 540 sworn submissions. He was the chief witness in this prosecution.

[311] In January 2006, Mr. Merrifield was transferred to a permanent position in the Customs and Excise section at the airport.

[312] Mr. Proulx said that he could not keep Mr. Merrifield in TAG “because he was a candidate in a federal election”.

[313] Mr. Seguin stated that Supt. Proulx prepared a Briefing Note to the Commissioner dated January 17, 2006. It was written on the recommendation of C/Supt. Mazerolle in order to provide a review of Mr. Merrifield’s transfers from INSET to TAG and then to the Criminal Intelligence Branch. C.O. Seguin approved the Briefing Note. It states:

During the summer, while this review was ongoing, Cst. Merrifield participated in a radio talk show where he identified himself as a “Security and Counter-terrorism consultant”. Although Cst. Merrifield did not reveal any classified information or his affiliation with the RCMP, his line officer once more brought the issue of a potential conflict of interest to his attention. The review of this matter revealed that the new conflict of interest policy came into effect in September 2005. It was therefore determined by Supt. Proulx than an administrative memorandum would resolve any ambiguity regarding this issue with Sgt. Merrifield, specifically regarding his behaviour and demeanour. In October 2005, he was given an administrative memo outlining clearly the expectation of his line officer and a copy of the appropriate related policies.

[314] Mr. Seguin noted that the recommendation section of the Briefing Note to the Commissioner states:

It is clear that the member has placed himself in a position of at least a perceived conflict of interest which jeopardizes the effectiveness and reputation of both the RCMP and the member. As a result, measured and reasonable steps have been taken to minimize the conflict and ensure the effectiveness of the RCMP.

[315] Supt. Proulx concluded that Mr. Merrifield had a conflict issue even though Supt. Trueman, who was an expert on these issues, did not concur. He said the policy was unclear.

[316] Mr. Seguin signed the Briefing Note. It was forwarded to Ottawa. He did not recall receiving any response from the Commissioner’s office to the briefing note. He knew that Mr. Merrifield had been removed from TAG and had been transferred to Toronto North Customs and Excise. He did not make the decision. Rather he was briefed on it. The decision was made by the Criminal Intelligence branch.

[317] Mr. Proulx stated that Mr. Merrifield was not disciplined regarding his participation at the Barrie nomination meeting without LWOP or his participation on the radio show.

[318] Mr. Proulx’s evidence that he had nothing to do with Mr. Merrifield’s transfer is contradicted by Mr. Seguin’s evidence. The Criminal Intelligence branch was under Supt. Proulx’s command.

The Special Operations Center - October 23, 2005

[319] Mr. Merrifield testified that on September 11, 2005, he received a call from Sgt. Sim. A terrorist threat had been made against Toronto. Accordingly, the Special Operations Center (SOC) was “stood up.” The SOC was a large room with a number of TV screens and twenty desks for use by various police agencies across Toronto. Each agency would have one or two desks to use during national security events. The purpose of the SOC was to facilitate information sharing. The situation required “all hands on deck”. Mr. Merrifield was directed to report to the SOC. While he was en route, Sgt. Sim called him and told him to turn around and go home.

[320] Mr. Merrifield stated that he was the only member in the Division ordered to not attend the national emergency. He testified that this meant he was not trusted by the organization and his days were numbered. He could not comprehend why, in the middle of efforts to thwart a national terrorist attack, Insp. Van Doren, the incident commander, would have the presence of mind to direct that he be ordered to not attend the SOC. This would mean that two other members would have to work twelve hour shifts rather than eight hour shifts. Mr. Merrifield contacted SSR Bohus about this. Mr. Merrifield had the highest of security clearance.

[321] Mr. Merrifield requested an explanation from Supt. Proulx. The response was that Insp. Van Doren believed that he was “not the appropriate resource.” He said this response was essentially “none of your business.”

[322] Mr. Merrifield stated that he felt destroyed after he was called back from the SOC and was told that he was not the appropriate asset when “all hands on deck” were required for a national emergency.

[323] Sgt. Sim was in charge of the SOC investigators. Sgt. Penny told him to stand up the unit and staff the desks. He contacted Mr. Merrifield and Cst. Brown to tell them that he was doing this. Subsequently, Sgt. Penny told him that Mr. Merrifield was not allowed to go to the SOC and be part of the team. Sgt. Sim believed that Mr. Merrifield was not allowed to go because of perceived conflicts with politics. He was a black sheep among the higher ups. He had been blackballed. Sgt. Sim stated that when this type of thing happens, you are not going anywhere in the force. He recalled that Mr. Merrifield was extremely upset when he was told he could not work at the SOC.

[324] C/Supt. Mazerolle was overall commander of a project known as Obolt. It concerned the bomb threats to various locations in the Greater Toronto Area. This was the reason why the SOC was stood up. C/Supt. Mazerolle stated that on one day, during the evening, Insp. Van Doren came into his office and said he had dealt with a minor issue. He said that Mr. Merrifield had been called into work in the SOC and Insp. Van Doren had decided to stand him down. C/Supt. Mazerolle stated that he had no reason to question Insp. Van Doren. It was his call to make these decisions.

[325] Mr. Van Doren is retired. He explained that the RCMP was responding to what appeared to be a serious threat to the country. They had information that there were two stashes of explosives and that the first people on the scene would be subject to car bombs. This required a multi-jurisdictional response involving chiefs of police from various police forces. Insp. Van Doren stated he was second in command and was looking after the national security part. He was in the London headquarters when all of this was happening.

[326] Insp. Van Doren’s notes show that on October 23, 2005, Sgt. McIntyre contacted him for relief for the overnight shift. Sgt. Penny, Mr. Merrifield’s supervisor, had recommended him. Insp. Van Doren requested that someone else be selected instead of Mr. Merrifield. He knew that Mr. Merrifield had been removed from INSET and felt that it was not fair to him or to the organization that he be at the SOC. He believed that if something bad happened and if Mr. Merrifield had been responsible for it by either doing something or not doing something, the RCMP would be blamed for it. Insp. Van Doren agreed that a decision to not allow someone to work at the SOC was significant. He stated that this was a critical situation and he did not think that Mr. Merrifield should be put in the situation because he had recently been removed from INSET.

[327] On the next day, October 24, 2005, SRR Bohus, came to his office and wanted to talk about Mr. Merrifield. Insp. Van Doren stated that he took time to speak to SRR Bohus because he felt that Mr. Merrifield deserved an explanation as to why he had been stood down. He told SRR Bohus that his decision was based on the fact that it was a national security incident. He was aware that Mr. Merrifield had been removed from INSET and did not feel it was appropriate for Mr. Merrifield or the RCMP to “force him back into the situation.” He believed that Mr. Merrifield “was not the appropriate resource”.

[328] Insp. Van Doren recalled a conversation with Supt. Proulx on the same day. Supt. Proulx came into his office and stated that Sgt. Penny had told him the previous night that Mr. Merrifield believed that the decision to exclude him from the SOC was workplace harassment. Insp. Van Doren stated that his discussions with Insp. Jagoe did not have any bearing on his decision that Mr. Merrifield should not report to the SOC.

[329] The inquiry about Mr. Merrifield’s working at the SOC would not normally have come to Insp. Van Doren’s attention. Generally, he did not make decisions as to who manned the SOC but Sgt. McIntyre had called him. It was unusual for someone to request staffing advice from him. Insp. Van Doren said he knew that Mr. Merrifield had been removed from INSET but he did not know how that information had come to him. He stated that probably Insp. Jagoe or Supt. Proulx told him.

[330] Mr. Van Doren stated that he received an email from SRR Bohus on December 14, 2005 in which he requested a meeting with Supt. Proulx, the C.O. and himself to clear the air. In the email, SRR Bohus stated:

I also believe it prudent at this time to request a meeting between yourself, Supt. Proulx, the C.O. and the SR/OPS officer with myself and my client to clear up once and for all any misinformation that might be floating about in regards to my client’s past political activities. In my view, there has been a great deal of innuendo that is circulating about and I strongly believe we have to have a roundtable discussion to clear the air once and for all.

[331] Insp. Van Doren sent an email to SRR Bohus in response on December 19, 2005. He stated:

I was managing an “O” Division response to a N.S. incident that had the potential for serious consequences for Canada and her citizens.

As a line officer O INSET, I was aware the Constable Merrifield was recently transferred from the O INSET (TAG) site. That decision was based on concerns about his suitability to carry out O INSET work. Supt. Proulx as the line officer for CID was dealing with that aspect.

Further to my responsibility to manage the O INSET response to the above noted N.S. incident, I directed that Constable Merrifield be advised not to report for duty at the SOC. My decision was based on the need to select the most appropriate resources for that assignment. I concluded, based on the information available at the time, the Constable Merrifield was not the most appropriate resource.

As regards your request to arrange a meeting with division senior management, that request should be directed to Supt. Proulx, as Constable Merrifield’s line officer, for his consideration and response.

[332] Insp. Van Doren stated that he was not asked to attend a meeting with Mr. Merrifield after this.

[333] Even though Supt. Proulx’s memo to Mr. Merrifield dated September 28, 2005 resolved all outstanding issues, no one ever told Insp. Van Doren that there were no concerns about Mr. Merrifield.

[334] Mr. Proulx stated that he had a conversation with Mr. Merrifield about his being stood down from the SOC. Mr. Merrifield was concerned and wanted a reason for why this had happened. Mr. Proulx stated that he had spoken with Insp. Van Doren about it. Insp. Van Doren told him that he was aware that Mr. Merrifield had been pulled from TAG and had said that he would wait until that was resolved before he put him back in the SOC.

[335] Mr. Proulx stated that he did not tell Insp. Van Doren that the election and radio program issues were resolved because he did not know whether Insp. Van Doren was aware of them. Insp. Van Doren never asked him about Mr. Merrifield’s working at INSET or at the SOC. Supt. Proulx only learned of Mr. Merrifield’s callback from the SOC after it happened. Mr. Proulx said that he did not tell Insp. Van Doren that the matter was resolved because there was still a Human Resources question as to where Mr. Merrifield was going to be posted. Insp. Van Doren thought the matter was not resolved and Supt. Proulx did not correct him.

[336] C/Supt. Mazerolle recalled Insp. Van Doren’s briefing him about standing down Mr. Merrifield from the SOC. The reason was something about a conflict of interest. By that time, C/Supt. Mazerolle had read Supt. Proulx’s September 28, 2005 memo to Mr. Merrifield. He did not tell Insp. Van Doren that Mr. Merrifield had done nothing wrong. He did not make inquiries as to what the conflict was. He did not want to know why Mr. Merrifield was stood down from the SOC. Insp. Van Doren had made the decision. C/Supt. Mazerolle did not question it. He was not aware of the information Insp. Van Doren had when he made the decision.

[337] C/Supt. Mazerolle stated that a couple of days later, Insp. Van Doren told him that he had been questioned about his decision by SSR Bohus and he gave him the reason for it. C/Supt. Mazerolle did not ask about the reason. The issue had been addressed by Insp. Van Doren and he had confidence in his abilities. C/Supt. Mazerolle stated that even though the SRR had spoken to him about concerns with respect to Mr. Merrifield and he knew that Mr. Merrifield had been stood down from the SOC, he was not concerned. He stated he had no contact with Mr. Merrifield. The decision had been made by others. Even though he knew that Mr. Merrifield had been cleared, he did not inform Insp. Van Doren.

[338] C/Supt. Mazerolle had the authority to intervene in a decision made by a Superintendent who reported to him, when that Superintendent was within his authority to make the decision. He could have told Insp. Van Doren that Mr. Merrifield was cleared of conflict issues.

[339] There is no logical explanation for the fact that both Supt. Proulx and C/Supt. Mazerolle neglected to tell Insp. Van Doren that all concerns about Mr. Merrifield had been resolved a month earlier. Mr. Proulx said that a decision still had to be made about Mr. Merrifield’s transfer. This was an excuse. The transfer was an administrative matter resulting from Supt. Proulx’s decision that Mr. Merrifield could not work in TAG. It had no bearing on whether Mr. Merrifield was suitable to work in the SOC. C/Supt. Mazerolle chose to ignore the matter. He knew that Supt. Van Doren had made a decision based on incorrect information. C/Supt. Mazerolle was indifferent. Both Supt. Proulx and C/Supt. Mazerolle had opportunities to set the matter straight but they neglected to do so. They allowed the perception of Mr. Merrifield’s tarnished reputation to continue.

[340] Supt. Jagoe stated that in the early fall of 2005, SRR Bohus called him one day. He asked him whether he would accept Mr. Merrifield as a transfer to INSET from TAG. Supt. Jagoe stated that he could not accept Mr. Merrifield as a transfer because of his involvement in the media. He stated that INSET had to be able to investigate all threats to national security. It was clear to him that he needed people to follow procedures and protocols in everything they did. At that time, he was thinking only about the radio interview that Mr. Merrifield had done. Supt. Jagoe stated that this was Supt. Proulx’s decision to make as he was Mr. Merrifield’s line officer.

[341] Supt. Jagoe stated that he did not typically use words such as “Merrifield had burned his bridges”; however, SRR Bohus could have understood him to say that. Mr. Merrifield’s public speaking and political activities caused him to have this view; however, he did not consider his refusal to have Mr. Merrifield at INSET as discipline. When he spoke to SRR Bohus in the fall of 2005, he did not know what had become of his concerns with respect to the nomination meeting. He assumed that they had been dealt with. He also assumed that the matter regarding the Pritchard radio show interview was concluded. Nevertheless, he remained concerned enough to tell SRR Bohus that he was not going to have Mr. Merrifield back at INSET.

[342] Supt. Jagoe stated, “he did not demonstrate to me that it was appropriate for him to come back.” Supt. Jagoe stated that he made this determination without knowing the outcome of any steps that Supt. Proulx might have taken. Even as of the date of his testimony, Supt. Jagoe’s view of Mr. Merrifield’s appearance on the Pritchard show was that he went too far and disclosed sensitive issues. He knew that Supt. Proulx’s memo to Mr. Merrifield dated September 28, 2005 did not result in any discipline.

[343] Supt. Jagoe stated that he knew Mr. Merrifield had been temporarily transferred to Criminal Investigations and ultimately, about six months later, that he was formally transferred to Customs and Excise under the command of Insp. Johnson. He was aware that the Customs and Excise unit did some counter proliferation work.[^5] He knew that Mr. Merrifield had been the lead on one case that had an excellent result. This did not surprise Supt. Jagoe. Mr. Merrifield was a talented investigator. Supt. Jagoe stated that he knew that this type of work would require access to sensitive information. He was not aware that Mr. Merrifield’s security clearance was ever reduced nor did he ask for it to be. He knew that the work in Customs and Excise touched on international security. The unit would prepare affidavits for search warrants and mutual legal assistance treaties. Members, including Mr. Merrifield, would give evidence give at preliminary inquiries, trials and before administrative tribunals. He was not concerned about Mr. Merrifield’s believability. Counter proliferation investigations fell under Border Integrity which was under the command of Insp. Van Doren. Supt. Jagoe stated that he never advised Insp. Johnson about his concerns regarding Mr. Merrifield’s judgment. He never advised Insp. Andy White, who was in charge of Serious Organized Crime, of his concerns about Mr. Merrifield’s judgment. He knew that Insp. White ran counter proliferation investigations.

[344] C/Supt. Mazerolle recalled that SRR Bohus had approached him about Mr. Merrifield. He said that senior management was missing an opportunity because Mr. Merrifield was a good member and should be moving up the ranks. C/Supt. Mazerolle recalled that SRR Bohus mentioned this a number of times while Mr. Merrifield was still at TAG. When he went to Customs and Excise, SRR Bohus mentioned it. He was a strong supporter of Mr. Merrifield. SRR Bohus said that Mr. Merrifield was not happy with how he was being treated.

[345] In October, 2005, Supt. Proulx sent an email to Insp. Brine in Human Resources to request a staffing interview so that Mr. Merrifield could be re-posted. He stated, “I am convinced at this moment that Cst. Merrifield cannot work within the TAG…it would be in the best interest of the RCMP and of Cst. Merrifield if he was assigned to other duties not related to “politics”.”

[346] Mr. Merrifield stated that staffing interviews are usually conducted to determine a member’s interests and abilities and to provide an opportunity for the member to learn about vacancies. A recommendation is made. Everyone knew about his participation in the 2004 federal election. He had been posted to TAG less than three months after he stood for election. He believed that his work relating to Liberal Prime Minister Martin after he had stood for the election showed that he did not have a conflict.

[347] Mr. Merrifield had a personnel interview with Sgt. McCann on November 7, 2005. He stated that he wanted to work on the investigative side of INSET which had vacancies. In fact, a workshop was held on October 18, 2005, the topic of which was how to attract and retain qualified members to work in national security because there were many vacancies. There were retention issues. Working on the investigative side of INSET would involve investigating terrorists. Mr. Merrifield’s previous political activities would have been irrelevant because the work did not involve VIPs with political affiliations. Mr. Merrifield would not consider a posting that required moving because he had a young family. Sgt. McCann told him that he would make an inquiry “through the back door” about the possibility of Mr. Merrifield’s working at INSET.

[348] When Supt. McCann began the staffing interview, he knew that Supt. Proulx had decided that Mr. Merrifield could not work in TAG. He could not recall whether he contacted Insp. Jagoe to see if Mr. Merrifield could be transferred to INSET. His notes dated November 23, 2005 show that he had a conversation with Insp. Jagoe and that Insp. Jagoe was familiar with Mr. Merrifield. His notes also state, “INSET inquiry.” Based on this, Supt. McCann stated that he likely made the inquiry.

[349] Mr. Merrifield stated that he believed he was well qualified to do investigative work at INSET. His performance evaluation that covered the period from August 1, 2004 to August 1, 2005 was drafted by A/Sgt. Crane. Insp. Jagoe and Supt. Proulx added comments. They were extremely positive. He had been doing community outreach because he thought that the RCMP was relying on dated information. Mr. Merrifield explained that doing community outreach was essential if you wanted people to provide information. He attended various events outside of his shifts. He went to communities that he thought could provide the most useful information. He recruited sources. Some of this was an extension of the relationships that he had through politics. It allowed him to collect information from a wider spectrum of human sources. His performance evaluation noted that his planning and organization skills were good and that he had worked a lot of voluntary overtime on Operation Bridgeout to the disadvantage of his family. Regarding his interpersonal skills, he was noted to be a popular and respected member of INSET. A/Sgt. Crane signed this evaluation on September 12, 2005.

[350] Mr. Merrifield stated that he was told Insp. Jagoe would not have him back at INSET, given the security level required for their work. This made no sense because Mr. Merrifield had the top secret security level which was required to work at INSET. No additional security level would have been required to do the work.

[351] Mr. Merrifield said that “unofficially, the wall had gone up.” He stated that Sgt. McCann made every effort for him. He was candid. A transfer to Customs and Excise, which had a vacancy, was going to happen whether Mr. Merrifield wanted it or not. There was nothing else.

[352] Supt. McCann disagreed that if Insp. Jagoe had agreed to have Mr. Merrifield at INSET, he likely would not have been transferred to Customs and Excise. He stated that Customs and Excise was an appropriate fit for Mr. Merrifield.

[353] This is completely illogical. Supt. McCann knew that Mr. Merrifield’s interest was in national security work. He had received high praise for the work that he had done at TAG. The fact that Supt. McCann contacted Insp. Jagoe shows that Supt. McCann thought that transferring Mr. Merrifield to the investigative side of INSET made sense. It had a number of vacancies.

The Promotion Process

[354] Insp. MacKinnon was the Promotion Co-ordinator. He introduced a new promotion system in 2006. The new promotion system had five stages: 1) a job simulation exercise exam (JSE exam), 2) line officer/supervisor support, 3) advertisement, 4) validation/competency and 5) line officer selection. Insp. MacKinnon explained that the job simulation exercise JSE exam would typically be held in February. Usually in November of each year, there would be a publication alerting members interested in promotion regarding when the next JSE exam would be held. It was a voluntary system. Members had to identify their interest to Insp. MacKinnon’s office regarding which exam they wanted to write and state how many years of service they had within the RCMP.

[355] Sometime in 2005, a notice went out entitled “NCO Promotion Exams Job Simulation 2006.” Insp. MacKinnon stated that this would alert members that they had to register to write an exam. Members had to have seven years of service by April 1, 2008 before they could write the JSE exam in 2006. This was because the RCMP adopted a two year cycle for writing the exam. Members were allowed to write the exam without having to wait for the two years if they would have the amount of service before the expiry of the two year period.

[356] Mr. Merrifield expressed an interest in writing the Corporal exam. He sent an email to Insp. MacKinnon’s office dated December 8, 2005 to register to write the JSE exam in February 2006.

[357] Insp. MacKinnon explained that a member who was interested in writing the JSE exam would submit a competency resume. For example, a position might require the ability to develop resources and obtain judicial authorizations. Candidates would have to supply examples of their work in that area. If appropriate, these examples would be validated as sufficient for the requirements of a promotion.

[358] Various job vacancies with required ranks and relevant criteria were listed on the Force’s intranet. If Mr. Merrifield wanted to apply for one of these jobs, he would have to pass the JSE exam and submit a package outlining his various competencies to show that he had the ability to do the job. Then, the application would be forwarded to the line officer for selection. Insp. MacKinnon stated that initially, only three validated candidates were forwarded. The line officer would determine which one was the best for the position.

[359] Under the new promotion system, the line officer who had the vacancy would be the person to select the best candidate for it. If the line officer felt that there was any conflict, he could ask another line officer to make the selection. That would be up to him or her.

[360] If Mr. Merrifield had wanted to move into a promotion in INSET in 2006, he would have had to go to the line officer of INSET to be selected. This was Insp. Jagoe. If Mr. Merrifield was in one position and wanted to go into another, there was a way to do it without a staffing interview but it was not the correct process. A secondment could have accomplished this back in 2005 and 2006.

Loss of Income Due to Delayed Promotional Opportunities

[361] Mr. Merrifield stated that he wanted to write the JSE exam as soon as possible. He obtained some practice exams to help him prepare. He explained that once he passed the JSE exam, he would receive a four percent pay raise to the level of a senior Constable even if he was not yet promoted.

[362] Mr. Merrifield explained that he was not eligible to write the exam until his seventh year of service. He had to write it to be promotable in his eighth year. Mr. Merrifield provided a list of his competencies up to December 2013. Effective April 30, 2009, he had the following competencies: “prepare/present testimony; develop/manage human sources; obtain judicial authorizations; conduct invest-general; concern for safety; and records/information management”. As of December 16, 2013, he had additional competencies: “legis-no specific context and legis-border integrity-IBET”. Competencies are rated on a scale from 1 to 4. Mr. Merrifield’s rating for prepare/present testimony was rated two. All of the rest were rated three. In addition, Mr. Merrifield had firearms training. He was a top level marksman.

[363] Mr. Merrifield was unable to write the JSE exam in 2006 because he was off duty sick. He claims that as a result, he has suffered a loss of income. If he had been able to write the exam, he should have been promoted to Corporal effective July 1, 2006. Instead, he was actually promoted to Corporal on July 1, 2009. Similarly, if he had been promoted to Corporal on July 1, 2009, he should have been promoted to Sergeant effective July 1, 2008. Instead, he was actually promoted to Sergeant on March 1, 2014.

[364] Stephen Raine was the chair of the National Staffing Committee for the RCMP. He is now retired. He was qualified as an expert in the RCMP’s hiring process, including the means by which potential candidates demonstrate their credentials and methods by which potential candidates are identified and qualified in relation to promotions. A Statement of his Expert Opinion dated May 8, 2014 was filed.

[365] Mr. Raine was provided with a list of twelve job postings for Corporal positions for the period April 2007 to January 2013. He was also provided with a list of nine job postings for Sergeant positions for the period April 2007 and January 2013. These are found in Appendix 1 of his Statement of Expert Opinion.

[366] Mr. Raine was asked to make the following assumptions:

a. Mr. Merrifield would have applied for these positions had he been able to;

b. Mr. Merrifield would have had the qualifications set out in his NCO application dated November 2013 with the exception of rank when he applied for the Corporal positions;

c. Mr. Merrifield would have had the qualifications including the rank of Corporal when applying for Sergeant positions;

d. Mr. Merrifield would have applied for each of the positions identified;

e. The job summary, job requirements and competency profile for each position were as set out in each of the Corporal and Sergeant postings; and,

f. Mr. Merrifield was not subject to any Code of Conduct investigations.

[367] Mr. Raine was asked to provide his opinion regarding whether Mr. Merrifield would have been qualified for the above noted positions. He was not asked to provide an opinion as to whether Mr. Merrifield “would have been awarded the position but simply whether, all else being equal, he would not have been disqualified.”

[368] Mr. Raine’s expert opinion, set out on page 4 of his Statement of Expert Opinion, is:

Based on the items I received, I am satisfied that Peter Merrifield had all the necessary qualifications and Competencies required to perform the positions as set out in Appendix 1 and that, providing his [sic] submitted his application on time, and to the right location and with the assumption that he was not under any discipline investigation or formal sanction, he would have been able to compete for the positions noted.

[369] Mr. Raine noted that he could not make an assessment of whether Mr. Merrifield would have been successful in his application for any particular position because he did not have access to the packages of other applicants who applied for those positions. Nevertheless, he stated that Mr. Merrifield’s application would have been competitive.

[370] Ian Wollach is a member of the Canadian Institute of Chartered Accountants and is designated as a specialist in forensic and investigative accounting. He was qualified as an expert in quantifying damages. His Income Loss Report regarding Mr. Merrifield dated March 24, 2014 was filed.

[371] Mr. Wollach stated that initially, he was provided with certain documents including a series of Mr. Merrifield’s T4 slips, the RCMP pay scale and Mr. Merrifield’s pension statement. He was asked to determine Mr. Merrifield’s income losses due to delayed promotional opportunities. In doing so, he made certain assumptions that are set out on pages two and three of his report. They are the following:

a. Mr. Merrifield’s income losses commence effective July 1, 2006 (when he should have been promoted to a Corporal), and cease as of March 1, 2015 (the projected date he will reach the top pay step on the salary scale for Sergeants);

b. The difference between his post-incident earnings (per his T4 slips) and his annual salary (per salary scales provided) is assumed to be additional income earned primarily through overtime opportunities;

c. his pre-incident earnings should be determined as the sum of his annual salary and estimated overtime income; and,

d. His pre-incident overtime income was estimated assuming he would have worked the same amount of overtime as he did in the past (for example, in 2011, his overtime income as a Corporal was estimated at approximately 11.7% of his salary, and therefore, we assume his pre-incident earnings as a Sergeant in 2011 should be 11.7% greater than his applicable salary).

[372] Mr. Wollach compared Mr. Merrifield’s pre-incident earnings (the amount he would have earned had he been promoted to Corporal on July 1, 2006 and to Sergeant on July 1, 2008) to his post-incident earnings (the amount he actually earned given his promotion to Corporal on July 1, 2009 and to Sergeant on March 1, 2014). A number of charts are contained in Mr. Wollach’s report showing how he considered the amounts set out in Mr. Merrifield’s T4 slips, the RCMP pay scale and Mr. Merrifield’s pension statement and how he applied the above noted assumptions to calculate Mr. Merrifield’s loss of income due to delayed promotional opportunities. His opinion is that Mr. Merrifield’s loss is $71,913.

Transfer to Customs and Excise - January 2006

[373] Mr. Merrifield left Supt. Proulx’s chain of command on January 16, 2006 when he was transferred to Customs and Excise.

[374] Mr. Merrifield stated that from January to July 2006, he was on sick leave supported by his family doctor. He was suffering from stress, dizziness, nausea. He was angry and frustrated. He inappropriately lashed out at his family. He feared that he would lose his job. He was ill, depressed and scared. It was a very dark spot in his life. He turned in his service pistol. The RCMP Health Services unit did not challenge his need for sick leave.

[375] Mr. Merrifield could not write the JSE examination.

Mr. Merrifield’s American Express Card

[376] In January 2006, Supt. Proulx ordered a Part IV Code of Conduct investigation against Mr