Navigation Links
Annual Report 2004 - Mapping the Future
OPERATIONS
Overview
The operations of the Military Police Complaints Commission can be divided into four primary areas of responsibility:
- monitoring the handling of complaints by the Provost Marshal;
- reviewing investigations of conduct complaints by the Canadian Forces Provost Marshal.
- investigating interference complaints; and,
- conducting its own investigations or hearings of conduct and interference complaints when the Chairperson deems it to be in the public interest.
A conduct complaint or an interference complaint may be made, either orally or in writing, to the Chairperson of the Military Police Complaints Commission, the Judge Advocate General or the Provost Marshal. A conduct complaint may also be made to any member of the military police. Each of these organizations is obliged to assist the complainant in filing their complaint to ensure it is an accurate statement of the complainant's concerns.
The process for dealing with both conduct and interference complaints is set out in Part IV of the National Defence Act. To familiarize the reader with the operations of the Complaints Commission, a summary of the process is presented here, and also depicted in chart form at Annex D of this report.
Monitoring the handling of complaints by the Provost Marshal
While the investigation of complaints about the conduct of military police is the responsibility of the Canadian Forces Provost Marshal, the Provost Marshal is required to notify the Complaints Commission when a conduct complaint is received. The Complaints Commission monitors the handling of complaints by the Provost Marshal.
The Provost Marshal is also required to notify the Chairperson when a complaint is resolved informally, and has agreed to provide the Chairperson with enough information about the complaint and its resolution to allow the Chairperson to determine whether the terms of the informal resolution are fair and appropriate.
The monitoring function also supports the Chairperson's power to cause the Complaints Commission to assume responsibility for the handling of a conduct complaint if the Chairperson deems this to be in the public interest. This power to assume responsibility for dealing with conduct complaints applies even to cases where a complaint has been withdrawn.
Reviewing investigations of conduct complaints
Anyone, whether a civilian or a member of the military, and whether or not they were affected personally, has the right to complain about the conduct of military police members in the performance of their policing duties and functions.
The initial investigation of such conduct complaints is the responsibility of the Canadian Forces Provost Marshal. Anyone who has made a complaint and is not satisfied with the disposition of his or her complaint by the Provost Marshal can ask the Complaints Commission to review the matter.
Interference complaints
The Military Police Complaints Commission has primary jurisdiction for the investigation of interference complaints.
Military police who conduct or supervise an investigation can complain to the Complaints Commission about interference in or obstruction of their investigations by any Canadian Forces member of any rank or by senior officials of the Department of National Defence. Reasonable grounds for an interference complaint include abuse of authority and intimidation.
According to the law, civilians, members of the Canadian Forces who are not members of the military police, and military police members who have not been involved in the conduct or supervision of the investigation in question cannot file complaints of interference.
Public interest investigations and hearings
As noted above, the Chairperson may, at any time in the complaints process, deem it to be in the public interest for the Complaints Commission to assume responsibility for handling a conduct or interference complaint, even in situations where a complaint has been withdrawn.
As part of an investigation undertaken in the public interest, the Chairperson may decide a hearing on the complaint is necessary. The Complaints Commission has considerable authority in the conduct of such hearings, including the power to compel witnesses to give evidence under oath. These hearings are normally open to the public, although exceptions can be made when factors such as the administration of justice or national security are a concern.
Reports, findings and recommendations
The findings of a review by the Chairperson and any recommendations that may flow from it are submitted to the appropriate authorities in the Canadian Forces and the Department of National Defence in the form of an “interim report.
” The National Defence Act requires that the designated authority respond to the interim report with a “Notice of Action,
” setting out any action that has or will be taken with respect to the findings and recommendations of the review.
Although the circumstances of a particular case may dictate otherwise, the Provost Marshal usually prepares the Notice of Action for conduct complaints, while the Chief of the Defence Staff responds to the Chairperson's findings related to interference complaints.
The findings and recommendations contained in an interim report are not binding; however, if they are not acted on, the responsible official must include an explanation for not acting in the Notice of Action, which is submitted to the Minister and the Chairperson.
After considering the Notice of Action responding to the interim report, a “final report
” is issued by the Chairperson of the Complaints Commission. The final report, including findings and recommendations, is provided to the Provost Marshal and other senior officials, including the Minister of National Defence, as well as the person who filed the complaint and the military police member or members against whom the complaint was made.
The Complaints Commission and the Canadian Forces Provost Marshal
In order to conduct its reviews and investigations effectively and efficiently, the Complaints Commission must at all times maintain a cooperative relationship with the office of the Canadian Forces Provost Marshal.
Given the nature of civilian oversight of law enforcement in general, it is only natural that there will be disagreement from time-to-time. In addition, the legislation that governs the complaints process includes a number of grey areas that have been interpreted differently by the Complaints Commission and the Provost Marshal, and this has been the source of some difficulties between the two organizations as well.
Disagreements over the jurisdiction of the Complaints Commission and its authority to monitor investigations by the Provost Marshal have been especially difficult to resolve, and have, on occasion, threatened to blur the transparency that is the very heart of the credibility of the complaints process.
Concrete steps have been taken to fulfill this joint commitment. Among others, members of the Complaints Commission staff now meet on a regular basis with representatives of the Judge Advocate General, the Vice-Chief of the Defence Staff and the Provost Marshal to discuss problems as they arise.
By maintaining open lines of communication, it is hoped any future difficulties that may arise between the Complaints Commission and the office of the Provost Marshal can be addressed in a mutually respectful manner, to ensure due process.
Implementation of the Review of the National Defence Act
The five-year independent review of the National Defence Act in 2003, led by former Chief Justice Antonio Lamer, included a number of recommendations concerning, among others, much-needed clarification of some areas of Military Police Complaints Commission jurisdiction. Staff of the Complaints Commission continues to work with, and through, the office of the Vice-Chief of the Defence Staff to provide input and analysis in the development of draft amendments to the Act.
At the same time, the Complaints Commission has ongoing concerns with some recommendations contained in the five-year review. The issues in question affect the ability of the Complaints Commission, in certain situations, to provide credible oversight in a way that is in keeping with its statutory obligation to resolve matters before it as informally and expeditiously as the circumstances and considerations of fairness permit.
Among others, one recommendation of the five-year review would forbid the Complaints Commission from being advised of the terms of any informal resolution of a complaint reached between a complainant, the subject member(s), and the office of the Provost Marshal. In its current form, the National Defence Act requires the Provost Marshal to provide this information to the Complaints Commission, and a protocol has been negotiated with the office of the Provost Marshal to facilitate this transfer of information - information that is necessary if the Complaints Commission is to determine whether the terms of an informal resolution are indeed fair and reasonable.
Another recommendation would place significant restrictions on the information the Complaints Commission can request from the Provost Marshal about an investigation of a complaint.
This would reduce the monitoring powers of the Complaints Commission, and represents a major departure from what has become accepted practice to date. Unless a complainant filed a request for review, the Complaints Commission would no longer be able to request investigative reports and other pertinent material without the Chairperson calling a public hearing and exercising the power of subpoena. Even more fundamentally, it would hinder an investigation or the ability of the Chairperson to assess whether the public interest requires that a hearing be directed.
The Complaints Commission also believes its power of subpoena should be extended to include investigations undertaken in the public interest.
It is interesting to note that, in their submissions to the five-year review of the National Defence Act, both the Complaints Commission and the Canadian Forces Grievance Board requested this expanded power of subpoena. The review recommended the additional power for the Grievance Board, but made no mention of the Complaints Commission in this regard.
The Complaints Commission has brought these concerns to the attention of the Minister of National Defence and hopes that, when asked to consider legislation dealing with changes to the National Defence Act, it will have the opportunity to comment on these issues during the drafting or committee stage.