Facts and Complaint
The complainant submitted a letter to the Deputy Provost Marshal Professional Standards claiming that a Military Police member refused to conduct an investigation into allegations that a Member of Parliament had committed a criminal offence, namely perjury.
Decision of the Canadian Forces Provost Marshal
In this case, the Deputy Provost Marshal Professional Standards held that no investigation would be ordered because she was of the opinion that the complaint was frivolous according to section 250.28(2)(a) of the National Defence Act. In communicating her decision to the complainant, the Deputy Provost Marshal Professional Standards explained that it was the mandate of the RCMP, not the Military Police, to investigate allegations involving a Member of Parliament. She also found that a previous investigation by another police body had determined that no criminal activity had taken place.
The complainant asked the Military Police Complaints Commission (“
Complaints Commission”) to review his case.
Findings and Recommendations of the Chairperson of the Complaints Commission
A- Conduct of the Military Police Member & Explanation to Complainant
The Military Police member's decision to take no further action was deemed reasonable because the allegations made by the complainant had been investigated and researched previously, resulting in the conclusion that no criminal offence had been committed by the Member of Parliament.
Further, the decision of the Deputy Provost Marshal Professional Standards not to start an investigation was supported because the complainant's allegations of perjury by the Member of Parliament could not be investigated by the Military Police. In addition, for an offence of perjury to exist, there must be proof of a false declaration or statement made under oath or solemn declaration with the intent to mislead. The subject member had every reason to believe that the statement was true.
Nevertheless, it would have been appropriate to provide the complainant with a detailed explanation of past investigative activity and research undertaken by the Military Police, as well as an explanation of the elements constituting the criminal offence. Informing the complainant that it was the mandate of the RCMP (and not the Military Police) to investigate his allegations was not an adequate response to his concerns.
The complainant should be informed in a timely manner and be provided with an explanation of the reason(s) when the decision not to start a Military Police investigation is taken.
B- Was the Complaint Frivolous?
Any person has the right to make a complaint about the conduct of a member of the Military Police in the performance of their policing duties or functions. The present complaint was not found to be frivolous or vexatious. To hold it as such, the threshold must be much higher; otherwise, it would be equivalent to denying the right of persons to make conduct complaints. In the present case, it would have been reasonable for the Deputy Provost Marshal Professional Standards to have held that “
in having regard to all the circumstances, investigation or further investigation is not necessary or reasonably practicable”.
The Canadian Forces Provost Marshal should establish a higher threshold for categorizing a conduct complaint as “
frivolous, vexatious or made in bad faith” and directing that no investigation of a conduct complaint be started or that an investigation be ended.
Chairperson's Reply following the Canadian Forces Provost Marshal Notice of Action
The Canadian Forces Provost Marshal accepted all the findings and recommendations made by the Chairperson; there were no further findings or recommendations.
The Chairperson noted that the terminology “
frivolous, vexatious or made in bad faith” is used in various federal statutes. It may be helpful in the development of a policy for the Canadian Forces Provost Marshal to consult, for instance, Federal Court or other decisions, which establish guidelines for determining a threshold for using such criteria.
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