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Annual Report 2008 - Meeting the Challenges of Oversight
Challenges in Oversight
Over the years, the Commission has encountered a range of challenges that have had the potential to affect its ability to carry out its mandate. In some instances, these challenges have been addressed successfully, such as the development of an innovative protocol for parallel investigations by the Commission and the CFNIS. In other instances, these challenges involve more complex matters and require considerable time and effort by the Commission and its stakeholders to resolve. In the following section of this report, three such challenges are highlighted: challenges to mandate, to gathering evidence and to transparency and accountability.
Challenges to Mandate
In 2008, the Commission continued to pursue its mandate in relation to two sets of complaints about military police involvement in detainee transfers in Afghanistan. (Please see sidebar for a summary of these complaints.) There have been significant challenges to carrying out the Commission’s mandate in investigating the complaints filed by Amnesty International and the BC Civil Liberties Association.
Through 2007 the Government of Canada (“the Government
”) refused to comply with Commission requests to provide certain key information. Subsequently,
- In March 2008, the Commission Chairperson decided to call a public interest hearing in order to compel production of all relevant information.
- In April 2008, the Government responded to this decision by filing an application in the Federal Court to prevent the Commission’s further investigation of this complaint.
- In June 2008, a further complaint from Amnesty International and BC Civil Liberties Association was filed with the Commission. This complaint expanded upon the original complaint in terms of both the time-frame of concern and the nature of the military police conduct implicated. As with the original complaint from these organizations, the complainants requested that the Commission investigate these complaints under its public interest jurisdiction.
- In September 2008, after consideration of submissions from the Government and the complainants, the Commission Chairperson decided that it would be in the public interest to investigate the new complaint and to hold hearings.
- In October 2008, the Government filed a further application in the Federal Court challenging the Commission’s jurisdiction to deal with these complaints.
- In December 2008, the Commission held a public Procedural Overview session with the interested parties to address certain preliminary procedural matters in advance of Commission hearings about the complaints. At this time, the Chairperson announced plans to commence its public interest hearings into these matters in mid-February 2009.
- At the close of 2008, the Government’s applications for judicial review of the Commission’s mandate related to these complaints remained pending before the Federal Court.
The decision of the Military Police Complaints Commission Chairperson to proceed with its investigation into complaints involving high-ranking officers in Canada’s military and the torture of detainees by Afghan authorities is a good one.
Globe and Mail Editorial, October 6, 2008
Commission Cases Related to Military Police conduct in handling detainees in Afghanistan:
Since 2007, the Commission has been investigating two sets of complaints regarding military police conduct in handling detainees in Afghanistan.
One is a complaint from Professor Amir Attaran regarding the transfer of a particular group of detainees with apparent injuries in April 2006 (Commission file 2007-003). This complaint alleges that the military police failed to investigate suspicious injuries to detainees while in Canadian custody. The Commission conducted a public interest investigation and completed its Interim Report in 2008. Once the Canadian Forces Provost Marshal provides the Commission with his Notice of Action responding to the Commission’s findings and recommendations, the Commission will be able to publish its final report on the matter.
The other complaint is from Amnesty International Canada and the British Columbia Civil Liberties Association regarding the transfer of detainees generally by military police to Afghan security forces. Specifically, the complaint alleges that such transfers have taken place without due regard to possible post-transfer mistreatment such as torture, and that those ordering such transfers should have been investigated for breaches of national or international law (Commission files 2007-006, 2008-024 and 2008-042). Progress on this public interest investigation and hearing has been complicated by various developments in 2008. Please see “Challenges to Mandate
” for further information.
Challenges to Gathering Evidence
Solicitor-client privilege, while a vital doctrine of our legal system, has, in the Commission’s view, unnecessarily worked as a long-standing impediment to gathering evidence for the resolution of certain complaints. The Commission’s access to the legal advice provided to a military police member is highly relevant in assessing the appropriateness of military police actions and critical to refuting allegations that the member had acted unreasonably or had knowingly exceeded authority. Central to this issue is one of fairness to the parties in the complaint, in particular to the military police members, where such privileged communications will often demonstrate the member’s good faith and due diligence in the taking of certain actions and decisions.
Precedent exists for a waiver of solicitor-client privilege for the Commission in specific cases. However, the Commission is seeking from the Canadian Forces a broader approach and solution to the issue. The Commission’s investigation of complaints should proceed on the same footing as those of Professional Standards, in terms of access to information, including the legal advice obtained by military police in relation to their duties.
A more recent challenge confronting the Commission has been the challenge of gathering information from Government departments in the post-9/11 security environment.
Shortly after the attacks of September 11, 2001, Canada significantly strengthened legislation to prevent the disclosure of information whose release “could injure international relations or national defence or security
” (s. 38, Canada Evidence Act).
While primarily intended to address the risk of disclosure of sensitive information to the public, these legislative requirements pose significant challenges to the Commission’s ability to access sensitive information in the course of its complaint investigations. Yet, in the post-9/11 security environment in which military police are operating, it has become much more likely that complaints regarding military policing will involve information pertaining to international relations or national security.
The Commission is looking for practical ways to ensure that it can efficiently access relevant information in its investigations in the present security context. One option, the consideration of which was requested in 2008, is the inclusion of the Commission on the list of agencies permitted by the Canada Evidence Act to receive such sensitive information and to treat it accordingly.
It is hoped that both of these challenges of evidence gathering in the interest of effective oversight will be favourably addressed by the government in the near future.
Challenges to Transparency and Accountability
The Commission has a duty to ensure transparency and accountability in its processes and to serve the public’s right to know. In doing so, it must appropriately balance privacy rightsand the public interest. This is a unique challenge framed by both the Privacy Act and the Access to Information Act. Section 8 of the Federal Privacy Act allows the deputy head of an institution to disclose personal information where “the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure.
”
Nearly all of the Commission’s cases are conduct complaint reviews where the complainant, who is dissatisfied with the Professional Standards investigation and/or result, asks the Commission to conduct a review. In such cases, the Commission publishes brief depersonalized case summaries on its website. This practice is accepted by the office of the Privacy Commissioner of Canada.
For those investigations which the Commission Chairperson deems to be in the public interest (through investigations or hearings), the entire decision is posted on the Commission website with the full names of the complainants and the subjects except in specific cases, such as those involving minors where initials or other vetting is used.
These practices have not been accepted by the office of the Privacy Commissioner, which has communicated its preference for random initials instead of actual names and its view that informed public debate about, and confidence in, the integrity of tribunal proceedings are not hindered by the limits the Privacy Act places on disclosure of participants’ names. This position extends to a recent Commission public hearing for which the Privacy Commissioner took the position that the Commission did not provide compelling reasons as to how the public interest would be served by publishing names, in spite of the fact that this hearing was open to the public.
“He (‘
”the ombudsman
’) can….focus the light of publicity on his concern as to the injustices and needed change … he can bring the lamp of scrutiny to otherwise dark places, even over the resistance of those who would draw the blinds. If his scrutiny and observations are well-founded, corrective measures can be taken in due democratic process. If not, no harm can be done in looking at that which is good.
Chief Justice James V. H. Milvain (1904 – 1993) Alberta Supreme Court (1968 – 1979)
The Commission respects the role of the office of the Privacy Commissioner; however, the Commission’s approach is rooted in the basis for its creation in 1999: “to provide independent civilian oversight of the Canadian Forces military police
”; and “to provide for greater public accountability by the military police and the chain of command in relation to military police investigations.
” Public trust and confidence are essential ingredients for effective policing.
The Commission’s mandate and obligations under governing legislation contemplates that personal information can and will be used in public interest Final Reports for a consistent purpose as per the Privacy Act. Moreover, the National Defence Act specifically requires the Commission Chairperson to release a report outlining his findings and recommendations following a public interest investigation and/or hearing.
The Commission is continuing to pursue a constructive dialogue with the office of the Privacy Commissioner in order to find common ground for a balanced resolution of their respective positions. The Commission is also working with other administrative tribunals to examine approaches to this issue and has initiated changes to its website to protect personal information from unnecessary exposure through on-line searches.
“Justice is rooted in confidence. How tribunals operate has an overall impact on how government as a whole is perceived.
”
Lord Alfred Thompson Denning (1899 – 1999) Internationally recognized, distinguished British Jurist
