Annex M: Military Police Discretion

SCOPE AND APPLICATION

1. Aim. The aim of this policy is to provide guidelines for Military Police (MP) to follow when exercising investigation discretion.

2. General. The exercise of discretion lies at the heart of the policing function. It is undeniable that there is only one law for all: and it is right that this should be so. But it is equally well recognized that successful policing depends on the exercise of discretion on how the law is enforced. Discretion is the art of suiting action to particular circumstances.

POLICY

3. Statement of Policy. Discretion is a central and important feature of every decision by a MP to charge or prefer a charge against a person. MP must consider issues such as fairness, justice, accountability, consistency and wider CF interests and expectations when deciding whether or not to prefer a charge or no charge. By virtue of their appointment all MP are accountable for such decisions. The decision should not display arbitrary and inexplicable differences in the way that different people are treated by the MP. Upon making a decision the MP must then ensure consistency and accordance with statutes and policies.¹

4. Principles. The methods of managing police discretion involve more than the creation of rules. Consideration must be given to all methods, which a police manager has available at his disposal including: the development of guiding principles; training; supervisor evaluations; disciplinary actions; and supervision.²

INVESTIGATION DISCRETION

5. Investigation General. Pursuant to QR&O article I 06.Q2, all complaints alleging that a criminal or service offence may have been committed shall be investigated except where a complaint is determined to be frivolous or vexatious. Not all investigations need to be conducted by the MP. The decision to continue an investigation or not should be established in accordance with the factors listed at Appendix I. The factors set out in Appendix 1 must be considered when considering whether or not to continue an investigation and need to be continually reassessed throughout the investigation.

6. Final Authority. The final authority to decide not to investigate an incident reported to the MP rests with the MP Detachment Commanders. They retain this responsibility unless written direction to the contrary is received from the MP members superior in rank and in the direct or technical chain of command of those mentioned above.

CHARGE LAYING DISCRETION

7. CFNIS. The authority to lay an NDA charge for an officer or non-commissioned member of the MP assigned to investigative duties with the CFNIS is found at QR&O article 107.02 (C).³ Prior to laying a charge, the CFNIS investigator is required to consult with their chain of command and obtain legal advice in most circumstances. Where the CFNIS investigator disagrees with the legal opinion provided, the matter will be referred to the CFNIS and prosecution chains of command for resolution.

8. Priorities listed at Appendix 2 may influence the decision to lay or not a charge. For a priority one offence, for example, if the elements of the offence can be proven then a charge shall be normally laid. As such, the exercise of discretion is severely limited for priority one offences. For priority two and three offences there is signiticantly more latitude for the MP to exercise discretion. Where viable administrative options exist, the CFNIS may consider referring the matter back to the unit with recommendations for remedial or disciplinary action. If unit administrative/disciplinary action is considered the better options, this recommendation must be clearly articulated in the CFNIS report or covering letter. The unit has no obligation to accept a recommendation for administrative or disciplinary follow-up. Therefore, the priority of the offence and the screening criteria must be carefully considered prior to referring matters back to unit level for disposal. For priority three offences that have been investigated by the CFNIS, consideration should be given to the fact that normally the best judge of the effect of a particular incident on the discipline of a unit will be the CO of the unit. CFNIS supervisors in the direct chain of command of the investigator have both the responsibility and the authority to monitor this discretion and, if necessary override the decision of the investigator. The final authority to decide whether or not a charge within the purview of the CFNIS shall be laid rests with the OCs of CFNIS Detachments or those MP superior in rank and in the direct or technical chain of command. If a CFNIS member decides to lay a charge they must always personally have the reasonable belief that the accused committed the offence.

MP Discretion - Non-CFNIS MP Members

9. General. MP operate within a complex environment, consisting of, among other things, the nature of the CF and local community, federal and provincial legislation, policies, procedures and programs, resources and mission. These impact on MP decision-making and police work; thus discretion is at the heart of the MP decision making process.

10. Given these organizational imperatives, it is vital that the individual MP discretion be exercised in an enlightened and infonned manner. The existence of discretion can place MP in a situation where they might be tempted to abuse their powers.⁴

11. Unlike an MP assigned to CFNIS investigative duties the MP Detachment member does not have charge laying authority for offences under the NDA. For offences that will be processed through the civilian courts the MP can prefer a charge and swear an information or proceed through the local crown (civil prosecution) for advice before prosecution through the civilian justice system.⁵ The final authority to decide whether or not a charge within the purview of the MP shall be laid rests with the MP Detachment Commanders or those MP superior in rank and in the direct or technical chain of command. If a MP member decides to prefer or lay a charge they must always personally have the reasonable belief that the accused committed the offence.

JURISDICTIONAL CONCERNS

12. MP are to be cognizant of the fact that except for cases of drinking and driving occurring on Defence Establishments, the default will normally be to deal with offences through the Military Justice System. The simple fact that a civilian is involved in a matter does not automatically dictate that it should be referred to the civilian system.

MP Notebook/SAMPIS

13, Any intervention by the MP technical chain of command shall be recorded in the MP notebook and an entry entered on the applicable GO within SAMPIS. This applies to both the CFNIS investigator and the MP Detachment member.

Appropriate/Inappropriate Discretion

14. For a priority one offence, for, example if the clements of the offence can be proven then a charge shall normally be recommended. As such, the exercise of discretion is severely limited for priority one offences. For priority two and three offences there is significantly more latitude for the MP to exercise discretion. Where viable administrative options exist, the MP member may consider referring the matter back to the unit with recommendations for remedial or disciplinary action. If unit administrative/disciplinary action is considered the better option, this recommendation must be clearly articulated in the MP report or covering letter.

15. MP must consider issues such as fairness, justice, accountability, consistency and wider CF/community interests and expectations when deciding whether or not to charge. Factors such as sex, race, ethnic origin or colour will not influence the discretionary process of the MP.

16. There may be rare cases whereby matters referred to the MP involving personnel who are subject to the Code of Service Discipline would be better dealt with outside of the Military Justice System, but the decision to do so will occur as the result of consultation and decision making at the Senior MP Advisor level.

CONCLUSION

17. It cannot be overstated that everyone who has committed an offence does not have to be charged with that particular offence. Discretion is an inescapable element of MP employment arising from the ever-present reality of scarce resources and the ambiguity of the law. Care must be used in the exercise of discretion to ensure it is done with fairness and consistency.

APPENDIX I

EXERCISE OF INVESTIGATIVE DISCRETION

APPENDIX 2

PRIORITY OF INVESTIGATION

Chapter 2 Annex H Appendix 1
Exercise of Investigative Discretion
Categories of Factors to Consider

1. Mandate
   1. Jurisdiction
   2. CFNIS Mandate
   3. Trivial, Vexatious, Bad Faith
   4. Require Specialist Skills
   5. Location of Offence
2. Resources needed
   1. Human resources
   2. Material resources
   3. Other expenditures
3. Expediency
   1. Minor offence
   2. Need to interview a suspect
4. Solvability factors
   1. suspects known
   2. Identifiable suspect vehicle or license plate
   3. Identifiable suspect description
   4. Investigative leads known
   5. Witness to Crime
   6. Physical evidence present
   7. Multiple occurrences with same MO (Serial offence)
   8. Public sentiment requires immediate action
5. DND Specific Factors
   1. Impact on unit morale or cohesion
   2. Superior / Subordinate Relationship
   3. Whether the rank or position of subject makes it important to pursue
   4. High monetary value of crime
   5. Military Exigency
   6. Prejudice good order and discipline

Alternative means of resolution (administrative action, unit investigation, harassment policy)

Chapter 2 Annex H Appendix 2

Footnotes

¹ Bordner, Diance. "Routine Policing, Discretion, and the Definition of Law, Order, and Justice in Society." Criminology, Vol. 21, No. 2, May 1983. pp. 294-304.

² Domonoske, Clair. "Towards an integrated theory of police management." International Journal of Police Science and Management. Vol. 8, No. 4, 2006, pp. 326-341.

³ NOTE: There must be an actual belief on the part of the person laying a charge that the accused has committed the alleged offence and that belief must be reasonable. A "reasonable belief" is a belief, which would lead any ordinary prudent and cautious person to the conclusion that the accused is probably guilty of the offence alleged.

⁴ Marin, Rene. Policing In Canada: Issues For The 21^st Century. Aurora: Canada Law Book Inc., 1997.

⁵ Refer to local Provincial Crown Regulations for preferring a Charge within your Jurisdictional Area. Provinces such as British Columbia, New Brunswick and Quebec require a "Pre-Charge Screening".