Conduct Case MPCC‑2009‑008 Summary
This complaint arose from a service offence investigation against the complainant in respect of a credit card fraud committed by the complainant against a friend and fellow service member. Following this investigation, which was led by a member of the Canadian Forces National Investigation Service (CFNIS), the complainant was charged with a number of offences under the National Defence Act (NDA). At his court martial on the charges, the complainant pled guilty to two counts of committing an act of a fraudulent nature, contrary to NDA section 117, and the remaining charges were withdrawn or not proceeded with by the prosecution. The complainant was sentenced to a severe reprimand and a fine in the amount of $1800.
At the time of both the offences and the investigation, the complainant was suffering from mental health problems, which had recently been exacerbated by the break-up of his marriage and other events and problems, both in his personal life and in his military career. At two points during the CFNIS investigation of him, the complainant was involuntarily committed to hospital under the provincial Mental Health Act.
The complainant took issue with the conduct of the CFNIS investigation in the following respects:
- the investigator executed a search warrant on his personal effects, retrieving one of the fraudulently-obtained credit cards, while the complainant was committed to hospital under the Mental Health Act;
- the investigator refused to interview the complainant more than once and generally failed to probe certain personal factors which, in the complainant’s view, led him to commit the offences; and
- it was inappropriate to charge him, given his personal circumstances and claimed motive for committing the offence (to assist his ex-wife’s family, who were allegedly suffering hardship), as well as the fact that his friend and ship-mate who was the victim of the credit card offences requested that he not be charged.
In concluding that the complaint was unsubstantiated, the Commission found that the CFNIS investigator acted properly in the conduct of the investigation involving the complainant and, in fact, showed appropriate sensitivity and consideration for the complainant’s personal circumstances. Indeed, the Commission found that the investigator dealt with the complainant in an exemplary fashion in the circumstances of the case.
The task of the investigator was to investigate the commission of possible offences by the complainant, and not to explore the circumstances and events which may have led the complainant to commit them. While there is a place in the criminal and military justice system for the consideration of such issues, it is not at the investigative stage, but rather at the trial or sentencing stage. In this case, a number of the mitigating factors cited by the complainant in his complaint were put before his court martial and resulted in at least some degree of leniency in sentencing.
Specifically, on the question of the execution of the search warrant, the Commission noted that the warrant clearly disclosed the location of the search and was duly authorized. Moreover, the search was not conducted in the presence of the complainant, nor would the mental or emotional state of the complainant be independently relevant to the validity of this type of search.
Regarding the decision to lay charges, the offences in question were serious and consequently the enforcement discretion which could be exercised in favour of the complainant was quite limited. While the complainant’s friend, who was the target of the fraudulent activities, did request that he not be charged, the financial institution which issued the credit cards and reimbursed the complainant’s friend, favoured prosecution of the complainant and so advised the CFNIS investigator. Moreover, the decision to lay charges was reviewed and approved within the CFNIS chain of command.
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