Facts and Complaint
During the course of a Court Martial proceeding, a Military Defence Counsel became aware that a Military Police member had signed and postdated a Record of Disciplinary Proceedings, which was to be served on the accused. Following the court martial a conduct complaint was lodged alleging that by postdating the Record of Disciplinary Proceedings the Military Police member undermined the Charter rights of the accused and by willfully or negligently making a false statement in an official document he breached the National Defence Act and the Military Police Professional Code of Conduct.
In the military justice system a charge is considered to have been laid when it is set down in writing in a Record of Disciplinary Proceedings. In this instance, the date on which the charge was laid is significant as defence counsel was arguing for a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms which guarantees an accused the right to be tried within a reasonable time.
Decision of the Canadian Forces Provost Marshal
The Deputy Provost Marshal National Investigation Services reviewed the allegations and advised the Deputy Provost Marshal Professional Standards that a service offence investigation would not be directed at that time, but the matter would be fully reviewed by the Deputy Provost Marshal Professional Standards Evaluation Section. A decision would then be made as to what course of action would be taken. The evaluation concluded that there had been no breach of the Military Police Professional Code of Conduct and therefore no further investigation was warranted.
The complainant was not satisfied with the disposition of his complaint and requested a review by the Complaints Commission.
Findings and Recommendations of the Complaints Commission
#1. Was the postdating of the Record of Disciplinary Proceedings unprofessional conduct on the part of the member and did it breach the National Defence Act and/or the Military Police Professional Code of Conduct?
The Commission Member found that the subject member's actions were unprofessional and did not constitute best police practices. However, there was no indication of any intention to willfully or negligently make a false statement on an official document and the subject member was not found to be in violation of the Military Police Professional Code of Conduct. The subject member did not have the benefit of clear and detailed procedures to follow and since this incident the Canadian Forces Provost Marshal has revised the Standard Operating Procedures to clarify best practices regarding the dating of Record of Disciplinary Proceedings forms. It is unlikely that such incidents will occur in future.
#2. Did the Military Police member's conduct undermine the rights of the accused under the Canadian Charter of Rights and Freedoms?
In this instance, Defence Counsel (the complainant) was informed about the postdating of the Record of Disciplinary Proceedings and was able to include this information in his argument alleging an infringement of the Charter rights of the accused. At the hearing the Military Judge ruled that the charges were laid on the date the Record was signed, that being the one most advantageous to the defendant's application. In addition, in this case, the allegation that the administration of military justice was brought into disrepute was not supported because the prosecution took care to ensure that the error was disclosed in a timely manner to both the defence counsel and the Military Judge.
#3. Section 250.28(2)(c) of the National Defence Act.
Under section 250.28(2)(c) of the National Defence Act, the Canadian Forces Provost Marshal has the discretion to decline to investigate or to end an investigation of a conduct complaint when “
having regard for all the circumstances, investigation or further investigation is not necessary or reasonably practicable”. Previously, the Chairperson has urged that this subsection should be held to a high threshold and used only in exceptional cases. The Commission Member found that, in this instance, having the complaint evaluated by Professional Standards and then acting to clarify the procedures for dating the Record of Disciplinary Procedures met the higher threshold. Therefore, the use of section 250.28(2)(c) in this instance was appropriate.
Reply of the Complaints Commission following the Canadian Forces Provost Marshal Notice of Action
The Commission Member was pleased that the Canadian Forces Provost Marshall generally agreed with all the Findings and Recommendations made in the Interim Report and was satisfied with the remedial action taken by the Canadian Forces Provost Marshal.
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