Legislative Issues

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Third Independent NDA Review

On November 5, 2020, the Minister of National Defence appointed the Honourable Morris J. Fish, CC, QC, retired Justice of the Supreme Court of Canada, to conduct the Third Independent Review of the National Defence Act (NDA).

The review deals with the changes made by Bill C‑25 to the National Defence Act in 1998. The National Defence Act requires the Minister of National Defence to conduct an independent review of the provisions and operation of the Bill every seven years, and to table a report of the review in Parliament. Bill C‑25 made important amendments to the National Defence Act concerning the military justice system, the Canadian Forces grievance process and the military police complaints process.

On January 7, 2021, the Commission submitted a comprehensive brief to the Independent Review Authority on various suggested changes to Part IV of the National Defence Act, which deals with the military police complaints process.

Justice Fish submitted his report on the legislative review to the Minister of National Defence on April 30, 2021. The Minister tabled the report in Parliament on June 1, 2021.

Bill C‑15 Strengthening Military Justice

Bill C‑15 was tabled in the House of Commons on October 7, 2011. It proposes a number of amendments to the National Defence Act (NDA) primarily related to the military justice system for the Canadian Forces. While the Bill does not directly address the jurisdiction or authorities of the Commission, one provision of the Bill of concern to the Commission relates to the proposed authority of the Vice Chief of the Defence Staff (VCDS) to direct military police investigations: s.18.5 (3) (in Clause 4). The Commission regards this proposal as highly problematic and it submitted a brief on this matter to the House of Commons Standing Committee on National Defence on October 26, 2011.

This proposed authority would effectively abrogate key provisions of the March 2, 1998 Accountability Framework signed by the VCDS and the CFPM of the day. The purpose of this Framework was to adapt the command relationship of the VCDS and CFPM such that the latter would retain appropriate independence from the chain of command in the conduct of individual law enforcement investigations.

More recently, the independence and integrity of military policing have been further supported through changes to the Military Police command structure. Effective April 1, 2011, all Military Police members when performing their policing duties are under the command of the CFPM. The proposed authority for the VCDS in subsection 18.5 (3) in Clause 4 of the Bill is thus out of step with efforts over the past 15-20 years to recognize and support the independence of the Military Police within the CF, particularly when conducting law enforcement investigations. Perhaps more importantly, however, the authority in question runs counter to Canadian law and practice regarding the independence of police investigations generally.

As far as the Commission is aware, there have been no problems with the VCDS-CFPM Accountability Framework which justify its revocation and the proposed subsection 18.5 (3) runs counter to various efforts over the years to shore up public confidence in the independence of military policing. For these reasons, and for other legal and constitutional reasons, the Commission is of the view that this subsection should be deleted from Bill C‑15.

Second Independent NDA Review

In 2011, the Minister of National Defence appointed the Honourable Patrick J. LeSage, retired Chief Justice of the Ontario Superior Court, to conduct the Second Independent Review of the National Defence Act (NDA).

The review deals only with the changes Bill C‑25 made to the National Defence Act, not the entire Act. Bill C‑25 requires the Minister of National Defence to conduct an independent review of the provisions and operation of the Bill every five years, and to table a report of the review in Parliament. The Bill made important amendments to the Act concerning the military justice system, the Canadian Forces grievance process and the military police complaints process.

On June 23, 2011, the Commission submitted a comprehensive brief to the Independent Review Authority.

Previous Bills

Bill C‑41 (40th Parliament) Strengthening the Military Justice in the Defence of Canada Act

Bill C‑45 Amendments to the National Defence Act

Implications for Independent Oversight of Military Policing

Overview

Bill C‑45 reintroduces many of the proposed legislative changes contained in Bill C‑7.

However, amendments in Bill C‑7 which would have most directly impaired the Commission’s ability to perform its intended oversight role have not been retained in the new bill. Those provisions would have:

  • Effectively eliminated MPCC’s jurisdiction to intervene in the public interest;
  • Rendered MPCC’s monitoring function purposeless;
  • Limited MPCC access to military police files;
  • Denied MPCC access to information regarding informally resolved complaints; and
  • Denied MPCC access to information subject to privilege.

The MPCC is pleased that these proposed changes have been left out of this bill, however, in the Commission’s view, there are further desirable improvements to the proposed legislation.

Significant Concern: Authorized Interference by VCDS

Most significantly, the Commission is concerned that the authority proposed to be conferred on the Vice Chief of the Defence Staff in clause 3 (subsection 18.5(3)), to issue instructions or guidelines in respect of particular military police investigations, would amount to legislatively authorized interference:

  • Is in direct contradiction to the existing Part IV provisions relating to interference.
  • Not recommended by the Lamer Review.
  • No parallel in civilian policing and is contrary to existing norms.

Missed Opportunities to Improve Oversight

In addition, the bill ignores opportunities for strengthening oversight of military policing which the Commission put forward in its “Brief to the Standing Committee on National Defence on Bill C‑7” in May 2006.

In that brief, the Commission outlined a number of specific amendments which would have significantly improved the legislation in respect of military policing oversight. These proposals included amendments which would:

  • Provide a right to request a review by MPCC to subjects of complaints.
  • Extend independent oversight to all who perform military police duties in the Canadian Forces.
  • Allow anyone, on reasonable grounds, to file an interference complaint.
  • Enhance MPCC’s access to relevant information needed to do its job by:
    • providing a subpoena power for MPCC public interest investigations;
    • imposing a duty to cooperate with MPCC investigations on CF members and DND employees; and
    • requiring the CF Provost Marshal to produce to MPCC all information and materials relevant to a complaint.
  • Require MPCC notification and approval of terms of informal complaint resolutions by the CF Provost Marshal.
  • Define military police duties subject to oversight in the Act instead of the regulations.

Inconsistencies in French and English Versions of Part IV Remain

Finally, the Commission also remains concerned about a number of inconsistencies between the French and English versions of NDA Part IV. A few have been addressed in Bill C‑45, but a number of others remain outstanding. The Commission has identified the various linguistic inconsistencies in a document which it prepared for the First Independent Review of the legislation. Such inconsistencies in meaning can give rise to significant obstacles to implementing the will of Parliament.

Bill C‑7

Bill C‑7 is an Act to amend the National Defence Act and has been recently tabled before Parliament. It presents serious concerns for the MPCC.

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