Charging the Wrong Person – A ‘Rookie’ Mistake

Those of you who follow this blog will know that I have reservations concerning the quality, timeliness, and objectivity of Military Police investigations.  This week, various Canadian media outlets reported on a story that tends to reinforce my concerns.

In August 2019, a very senior (but now retired) non-commissioned member (NCM) of the Canadian Forces was charged by the Canadian Forces National Investigation Service (CFNIS) for an alleged ‘historical’ sexual assault that purportedly occurred in 1996 in Kingston, Ontario.

The problem is that the CFNIS charged the wrong person.  The person they charged bore the same middle name and surname as their suspect, but had a different first name.

Although the CFNIS announced the charges with a degree of notoriety, their withdrawal of the charges approximately 3 weeks later was done in a low-key fashion and did not indicate the reason – they had charged the wrong person.

On Monday, 20 April 2020, various media outlets reported that the falsely charged person had brought an action for malicious prosecution against the federal Crown in the Manitoba Court of Queen’s Bench.

Much as was done with the CBC online article that reported this matter, I have chosen not to state the gentleman’s name in this blog.  His reputation has suffered enough due to apparent negligence, and I do not wish to add to his difficulties.  I refer to him below as the ‘plaintiff’.

While the facts alleged in the action for malicious prosecution have not yet been proven in court, it has been possible to gather information that was published at the time of his arrest, and the subsequent withdrawal of the charge, much of it provided by CFNIS media releases.  The assertions in those media articles present factors that are worthy of discussion for anyone interested in military justice.

Here is what I have been able to discover:

• The complaint alleged sexual assault at Canadian Forces Base (CFB) Kingston in 1996. The complaint was made approximately 20 years later.  Due to the passage of time between the date of the allegations and the date of the complaint, this is typically described as an ‘historical’ sexual assault.
• The complaint was made to the Military Police at CFB Edmonton in January 2017 and the CFNIS assumed responsibility for the investigation that same month.
• The charges were laid in late August 2019.
• The charges were withdrawn approximately 3 weeks later. No reason was given.  The CFNIS media release stated:

Further to ongoing investigative actions by the CFNIS, [RANK] [NAME] is no longer considered a suspect, or person of interest, in relation to this offence.  As such, the charge against [RANK] [NAME] has been withdrawn by military authorities and proceedings against the member were terminated.

• According to the recent coverage of the plaintiff’s action against the Crown, the CFNIS never acknowledged, publicly, that they had charged him because they had made a mistake with his name.

If the plaintiff’s allegations are true – specifically, that the Military Police erred and charged him because he shared the same middle name and surname with their suspect, this raises some alarming concerns with how the CFNIS conduct their investigations and how those investigations are reviewed.

We must remember that the CFNIS have certain advantages over civilian law enforcement who conduct similar investigations.  The Canadian Forces collects a great deal of information on its personnel.  This data includes typical data that an employer will possess, such as date of birth, home address, Social Insurance Numbers, Service Number (employee number), employment history (i.e. where each person was posted and when), even photos.  I suggest that the extent to which the CF collects information on its personnel exceeds the degree to which a typical civilian employer collects data on its employees.  Consider, for example, the need to conduct background checks for security clearances as well as the degree of information collected over a lengthy career with the same institutional employer.  In light of the nature of the CF functions, this is understandable.

Now, the CFNIS do not have open access to this information; however, they can, and do, obtain this information by obtaining production orders.  Arguably, the CFNIS have a ‘data rich environment’ in which to conduct their investigations.  Also, unlike civilian criminal investigators, they will typically not encounter difficulty identifying where military suspects reside or work.

Based upon the plaintiff’s allegations, the CFNIS neglected to show the complainant a photo of their alleged suspect in order to obtain confirmation of his identity.  Nor do they appear to have taken appropriate steps to confirm his name.  Frankly, the circumstances described in the recent media coverage depict some rudimentary errors that should never have occurred.

And we must also remember that, as a matter of both law and policy, before the CFNIS lay serious charges such as sexual assault, their investigative file will be reviewed by a prosecutor with Director Military Prosecutions (DMP).  In light of the purported factual context of this investigation, and pursuant to QR&O article 107.03, an officer or a NCM having authority to lay charges (such as an officer or NCM of the CFNIS) would have been obliged to obtain advice from a legal officer before laying the charge of sexual assault.  Among other potential reasons, the offence was one that could not be tried by summary trial and more than six months had passed since it was alleged to have occurred.

The CFNIS obtain their pre-charge legal advice from prosecutors working on behalf of DMP.  DMP Policy Directive 002/00 states:

7. The practice and procedure for Prosecutors providing pre-charge screening advice will be different depending upon whether Prosecutors are providing advice to the CFNIS or are providing advice to unit legal advisors.

8. The Director of Military Prosecutions (DMP), the regional Deputy Directors of Military Prosecutions (DDMPs) and the DDMP – Sexual Misconduct Action Response Team (SMART) retain final authority regarding pre-charge advice in certain cases but in the majority of cases the Prosecutor will be responsible for providing such advice.

…

14. When seeking pre-charge advice, the CFNIS investigator will first submit all the available relevant investigative material to the nearest RMP office as expeditiously as possible. Once a request for pre-charge advice has been made the senior Regional Military Prosecutor shall assign the file to a Prosecutor within his or her office. Once assigned, the Prosecutor from that RMP office shall then determine if there is a reasonable prospect of conviction, whether or not in the circumstances a charge should be laid and, where a charge should be laid, the appropriate charge

15. When the available investigative material is sufficient, the Prosecutor shall forward the pre-charge advice to the CFNIS investigator in writing as set out in Annex A to this policy directive unless, in the opinion of the Prosecutor, a more detailed memorandum is required due to the complexity and/or the seriousness of the proposed charge(s). Whether Annex A or a detailed memorandum is used, the Prosecutor shall clearly advise as to the recommended course of action and shall provide the basis for that advice. After providing pre-charge legal advice, the Prosecutor shall follow up with the CFNIS investigator and address any questions or concerns arising from that advice.

I would not wish to suggest that the prosecutors reviewing the file are held to a standard of perfection.  Indeed, in the same Policy Directive, DMP states:

6. Often when a Prosecutor is called upon to provide pre-charge advice the file may be incomplete as compared to the file at the time of court martial. It is not always the case that the Prosecutor will require a complete file before giving pre-charge advice. When providing pre-charge advice, Prosecutors are not expected to achieve a standard of perfection. With the important goal of providing advice in an efficient and timely manner Prosecutors should confidently make the necessary decisions at the pre-charge stage based on the limited available information provided by the investigator.

However, in practice, the CFNIS only forward their investigative file to DMP for pre-charge screening once the investigation has been concluded and reviewed by the investigator(s)’s supervisor within the CFNIS.  With some matters, there may be more than one level of review within the CFNIS.  It would not be unreasonable to assume that, where an ‘historical’ sexual assault is being investigated – with the challenges that such investigations may face – there may have been more than one review conducted by CFNIS supervisors.

The crucial points are these:

1. The CFNIS took over 2 ½ years to conduct this investigation and lay the charge against the plaintiff.
2. They were investigating an alleged ‘historical’ sexual assault. There will be challenges with such investigations.  However, they also had potential access to significant institutional data.
3. We do not know how long the ‘screening prosecutor’ from DMP had the file or how long the prosecutor spent reviewing it. However, in my experience, such charge screening typically takes one to three months.
4. By any measure of process, the decision to charge the plaintiff was not made in haste. The CFNIS and DMP prosecutor had an opportunity to act in a deliberative manner.  After all, none of this delay would be counted as ‘pre-charge delay’, even if the eventual accused was subject to restrictive conditions imposed by a Custody Review Officer (and there is nothing to indicate that the plaintiff was subject to any release conditions).

Therefore, despite the luxury of time and space to review the investigation file, and the benefit of review by a prosecutor from DMP (and, quite possibly, a SMART prosecutor), the CFNIS still managed to charge the wrong person.  And they did so publicly.

And after they realized their error – presumably because the plaintiff pointed out that they charged the wrong person – they did not even have the courtesy to acknowledge their error in a similarly public manner.  There may have been investigative reasons why they did not mention their specific error immediately.  They may have wanted to avoid signalling certain facts to the true suspect (however weak such an excuse might be).  However, there is a marked imbalance between how the CFNIS treated the announcement of the laying of the charge and how they treated the withdrawal.

So why did this error occur?

Undoubtedly, more facts will arise, whether from an ‘internal’ investigation by the CF Provost Marshal, or as a result of the plaintiff’s action.  If there is an early settlement of the action – and I suspect that litigators from the Department of Justice are rather rapidly exploring such a possibility in order to mitigate the adverse media scrutiny that could arise – hopefully it will not stifle the opportunity for a public examination of what went wrong.  I suggest that it would be difficult to maintain confidence in the ‘military justice system’ if members of the CF and the broader Canadian public are not provided an explanation about what went wrong.

The error may have been a result of inexperience on the part of the investigator(s).  However, I would have difficulty accepting that excuse.  Investigative files are reviewed by supervisors within the CFNIS before they are sent off to DMP for pre-charge screening.  The file is then reviewed by a prosecutor.  It is difficult to accept that everyone involved in this process would be ‘inexperienced’.  If that is the case, then I suggest that lacuna should be addressed.

The source of the error may be more subtle and complicated.  The sexual assault complainant may have had limited recollection of key details.  It had been over 20 years since the alleged assault took place.  Identification may have been difficult.  However, if that were the case, then we must question whether there was even a reasonable prospect of conviction in the first place.  Granted, the legal standard to lay a charge is ‘reasonable suspicion’.    However, when a legal advisor screens a charge, they typically examine whether there is a reasonable prospect of conviction, which is a slightly higher standard.

Unfortunately, there is one likely explanation for the error: over-zealousness.  Frankly, unchecked, and sometimes unreasonable, zeal in pursuing the investigation and prosecution of sexual misconduct in the CF has been problematic under Op HONOUR.  Charges have been prosecuted where there is no reasonable prospect of conviction.  Where the evidence against a person is dubious, the chain of command turns to administrative measures as punishment, believing (erroneously) that the reduced burden of proof in administrative proceedings will compensate for the dubious quality of the evidence.  However, the chain of command is able to impose these administrative punishments – and, contrary to assertions by the chain of command to the contrary, I suggest that the true intent of the measures is to punish the members – because there is no external scrutiny of these decisions until after the affected CF member exhausts the CF grievance process, which can take several years.  I elaborate on this disingenuous approach to administrative remedial measures here, here, here, and here.

I anticipate that, if there is a transparent investigation of what went wrong in this investigation – and I truly hope that such an inquiry is undertaken – a significant contributing factor, and potentially the most significant factor, will be an over-zealous approach that blinded the investigators and legal advisors to facts that were clearly available to them.

This should never have happened.  The responsible CF decision-makers owe the plaintiff an apology, and so much more.  Those same decision-makers need to take stock of all that is ‘going wrong’ under Op HONOUR.

As a ‘post script’, I reviewed the Chief Military Judge’s website recently to try to determine if the CFNIS eventually charged their actual suspect.  Perhaps it would be more accurate to characterize my action as reviewing the Deputy Chief Military Judge’s website, since the Governor in Council has still not appointed a new Chief Military Judge.  As an aside, the “Organizational Structure” page of the website was updated on 22 April 2020 to include the following:

Due to the retirement of the Chief Military Judge (CMJ) that was effective on 20 March 2020, it is the Deputy Chief Military Judge, Lieutenant-Colonel Louis-Vincent d’Auteuil, who under section 165.29 of the National Defence Act, exercises and performs the powers, duties and functions of the Chief Military Judge.

In any event, I reviewed the website to try to identify whether anyone has been charged or is being prosecuted for the alleged offence for which the plaintiff was initially charged.  It does not appear to be the case.

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