Suggested Legislative Language

I. Classification of Complaints (MPCC Proposal #1)

The implementation of this proposal involves three distinct, but related, elements:

  1. Ensuring that the NDA Part IV complaints processes can capture all relevant complaints made, including those not initially sent to the authorities specified in NDA s. 250.21(1): the MPCC Chairperson, the JAG, the CFPM or (for conduct complaints only) an MP.
  2. Conferring on the MPCC the responsibility for determining whether or not the NDA Part IV conduct or interference complaint processes have been triggered and classifying complaints or possible complaints accordingly.
  3. Ensuring that the relevant CF authorities apply an appropriately broad threshold for referral of matters to MPCC for classification. If there is too much discretion in deciding when someone has made a “complaint”, this could potentially offset the advantages sought to be achieved by conferring a complaint classification authority on the MPCC.

The legislative changes necessary to implement this proposal could take the form of amendments to s. 250.21, the section which deals with the in-take and initial processing of complaints. With the insertion of the new step of referral to MPCC for classification of complaints or potential complaints, it make sense for subject notification to occur after this procedure has been completed. As such, consequential amendments to ss. 250.22 and 250.23 are also being proposed below.

Option 1:

250.21 (1) A conduct complaint or an interference complaint may be made, either orally or in writing, to the Chairperson, the Judge Advocate General or the Provost Marshal. A conduct complaint may also be made to any member of the military police.

(1.1) The Chairperson has the responsibility of determining whether a matter referred to the Chairperson pursuant to subsection (2) constitutes

  1. a conduct complaint;
  2. an interference complaint;
  3. a conduct complaint and an interference complaint; or
  4. neither a conduct complaint nor an interference complaint.

The Chairperson’s determination under this subsection in respect of a particular complaint is, in respect of the complaint and for the purposes of this Part, binding on all persons responsible for dealing with complaints under this Part.

(2) The person who receives, directly or indirectly, a complaint shall

  1. if the complaint is not in writing, put it in writing; and
  2. as soon as practicable, refer the complaint to the Chairperson for a determination pursuant to subsection (1.1).

(3) A complaint for the purposes of subsection (2) includes any communication from someone eligible to make a conduct complaint or an interference complaint, as the case may be, which can reasonably be considered to be a complaint, whether or not a person referred to in subsection (1), other than the Chairperson, considers that the communication relates

  1. in the case of a potential conduct complaint, to the performance of “policing duties or functions” within the meaning of subsection 250.18(1); or
  2. in the case of a potential interference complaint, to improper interference in respect of a military police duty or function to which an interference complaint may relate.

(4) Where the Chairperson makes a determination pursuant to subsection (1.1) that a complaint under this Part has been received, the Chairperson shall

  1. ensure that an acknowledgement of its receipt is sent as soon as practicable to the complainant; and
  2. ensure that notice of the complaint is sent as soon as practicable
    1. in the case of a conduct complaint, to the Chairperson and the Provost Marshal,
    2. in the case of an interference complaint concerning an officer or a non-commissioned member, to the Chairperson, the Chief of the Defence Staff, the Judge Advocate General and the Provost Marshal, and
    3. in the case of an interference complaint concerning a senior official of the Department, to the Chairperson, the Deputy Minister, the Judge Advocate General and the Provost Marshal.

250.22 As soon as practicable after a determination by the Chairperson pursuant to subsection 250.21(1.1) that a conduct complaint has been received, the Provost Marshal shall send a written notice of the substance of the complaint to the person whose conduct is the subject of the complaint unless, in the Provost Marshal’s opinion, to do so might adversely affect or hinder any investigation under this Act.

250.23 As soon as practicable after a determination by the Chairperson pursuant to subsection 250.21(1.1) that an interference complaint has been received, the Chairperson shall send a written notice of the substance of the complaint to the person who is the subject of the complaint unless, in the Chairperson’s opinion, to do so might adversely affect or hinder any investigation under this Act.

Option 2:

250.21 (1) A conduct complaint or an interference complaint may be made, either orally or in writing, to the Chairperson, the Judge Advocate General or the Provost Marshal. A conduct complaint may also be made to any member of the military police.

(1.1) The Chairperson has the responsibility of determining whether a matter referred to the Chairperson pursuant to subsection (2) constitutes

  1. a conduct complaint;
  2. an interference complaint;
  3. a conduct complaint and an interference complaint; or
  4. neither a conduct complaint nor an interference complaint.

The Chairperson’s determination under this subsection in respect of a particular complaint is, in respect of the complaint and for the purposes of this Part, binding on all persons responsible for dealing with complaints under this Part.

(2) The person who receives, directly or indirectly, a complaint shall

  1. if the complaint is not in writing, put it in writing; and
  2. as soon as practicable, refer the complaint to the Chairperson for a determination pursuant to subsection (1.1).

(3) For the purposes of subsection (2), a complaint includes any communication from a person eligible to make a conduct complaint or an interference complaint, as the case may be, which could reasonably be considered to be a complaint. No communication shall be excluded from the requirements of subsection (2) by reason only that

  1. the communication does not refer to this Part or to any provision thereof;
  2. the communication is not described by its originator as a conduct or interference complaint;
  3. the communication can be construed as merely raising questions or concerns regarding, or requesting an assessment of, the propriety of a person’s acts or omissions;
  4. the communication discloses the possible commission of an offence;
  5. the communication relates to a matter which could also be the subject of another complaint or redress process;
  6. a person referred to in subsection (1), other than the Chairperson, does not consider the communication to relate to
    1. the performance of any “policing duties or functions” within the meaning of subsection 250.18(1); or
    2. improper interference with a military police duty or function to which an interference complaint may relate.

(4) Where the Chairperson makes a determination pursuant to subsection (1.1) that a complaint under this Part has been received, the Chairperson shall

  1. ensure that an acknowledgement of its receipt is sent as soon as practicable to the complainant; and
  2. ensure that notice of the complaint is sent as soon as practicable
    1. in the case of a conduct complaint, to the Chairperson and the Provost Marshal,
    2. in the case of an interference complaint concerning an officer or a non-commissioned member, to the Chairperson, the Chief of the Defence Staff, the Judge Advocate General and the Provost Marshal, and
    3. in the case of an interference complaint concerning a senior official of the Department, to the Chairperson, the Deputy Minister, the Judge Advocate General and the Provost Marshal.

250.22 As soon as practicable after a determination by the Chairperson pursuant to subsection 250.21(1.1) that a conduct complaint has been received, the Provost Marshal shall send a written notice of the substance of the complaint to the person whose conduct is the subject of the complaint unless, in the Provost Marshal’s opinion, to do so might adversely affect or hinder any investigation under this Act.

250.23 As soon as practicable after a determination by the Chairperson pursuant to subsection 250.21(1.1) that an interference complaint has been received, the Chairperson shall send a written notice of the substance of the complaint to the person who is the subject of the complaint unless, in the Chairperson’s opinion, to do so might adversely affect or hinder any investigation under this Act.

Option 3:

250.21 (1) A conduct complaint or an interference complaint may be made, either orally or in writing, to the Chairperson, the Judge Advocate General or the Provost Marshal. A conduct complaint may also be made to any member of the military police.

(1.1) The Chairperson has the responsibility of determining whether a matter referred to the Chairperson pursuant to subsection (2) constitutes

  1. a conduct complaint;
  2. an interference complaint;
  3. a conduct complaint and an interference complaint; or
  4. neither a conduct complaint nor an interference complaint.

The Chairperson’s determination under this subsection in respect of a particular complaint is, in respect of the complaint and for the purposes of this Part, binding on all persons responsible for dealing with complaints under this Part.

(2) The person who receives, directly or indirectly, a complaint shall

  1. if the complaint is not in writing, put it in writing; and
  2. as soon as practicable, refer the complaint to the Chairperson for a determination pursuant to subsection (1.1).

(3) For the purposes of subsection (2), the word “complaint” shall be given a broad and liberal interpretation in order to facilitate access to the complaints processes under this Part and to support the exercise of the Chairperson’s authority under subsection (1.1) and the Complaints Commission’s role of providing independent oversight under this Part. Specifically, but without limiting the generality of the foregoing, the interpretation of the word “complaint” for the purposes of subsection (2) is subject to the following principles:

  1. a communication shall be deemed to be a complaint where the communication purports to be a conduct or interference complaint; and
  2. no communication shall be excluded from the requirements of subsection (2) by reason only that
    1. the communication does not refer to this Part or to any provision thereof;
    2. the communication is not described by its originator as a conduct or interference complaint;
    3. the communication can be construed as merely raising questions or concerns regarding, or requesting an assessment of, the propriety of a person’s acts or omissions;
    4. the communication alleges or discloses a possible offence; or
    5. the communication relates to a matter which could also be the subject of another complaint or redress process;
    6. in the opinion of a person who receives the communication, other than the Chairperson, the communication does not pertain to the performance of policing duties or functions within the meaning of section 250.18; or
    7. in the opinion of a person who receives the communication, other than the Chairperson, the communication does not relate to improper interference in respect of a military police duty or function to which an interference complaint may relate.

(4) Where the Chairperson makes a determination pursuant to subsection (1.1) that a complaint under this Part has been received, the Chairperson shall

  1. ensure that an acknowledgement of its receipt is sent as soon as practicable to the complainant; and
  2. ensure that notice of the complaint is sent as soon as practicable
    1. in the case of a conduct complaint, to the Chairperson and the Provost Marshal,
    2. in the case of an interference complaint concerning an officer or a non-commissioned member, to the Chairperson, the Chief of the Defence Staff, the Judge Advocate General and the Provost Marshal, and
    3. in the case of an interference complaint concerning a senior official of the Department, to the Chairperson, the Deputy Minister, the Judge Advocate General and the Provost Marshal.

250.22 As soon as practicable after a determination by the Chairperson pursuant to subsection 250.21(1.1) that a conduct complaint has been received, the Provost Marshal shall send a written notice of the substance of the complaint to the person whose conduct is the subject of the complaint unless, in the Provost Marshal’s opinion, to do so might adversely affect or hinder any investigation under this Act.

250.23 As soon as practicable after a determination by the Chairperson pursuant to subsection 250.21(1.1) that an interference complaint has been received, the Chairperson shall send a written notice of the substance of the complaint to the person who is the subject of the complaint unless, in the Chairperson’s opinion, to do so might adversely affect or hinder any investigation under this Act.

II. Expanding Access to Informal Resolution (MPCC Proposal #14)

In order to implement this proposal, two approaches could be adopted. On the one hand, the Act could be amended to do away altogether with a list of excluded types of complaints, replacing the exclusions with a general criterion based on the seriousness of the complaint. On the other hand, the current list of excluded complaints found in the Regulations could be revised and be incorporated in the Act. We provide suggested language here for both options. In both cases, subsection 250.27(2) of the NDA would have to be amended. The relevant subsections currently read:

250.27 (1) On receiving or being notified of a conduct complaint, the Provost Marshal shall consider whether it can be disposed of informally and, with the consent of the complainant and the person who is the subject of the complaint, the Provost Marshal may attempt to resolve it informally.

(2) Subsection (1) does not apply if the complaint is of a type prescribed in regulations made by the Governor in Council.

Option 1

Subsection 250.27(2) could be amended to read as follows:

(2) Subsection (1) does not apply if, in the opinion of the Provost Marshal, the allegations in the complaint relate to misconduct that is of a serious nature.

This is inspired by the Police Services Act, R.S.O. 1990, chap. P.15, s. 66(4), as recently amended (Tab 15 of MPCC Book of Authorities), with modifications to reflect the different context and stage when the decision to use informal resolution is made in the two models.

Option 2

Subsection 250.27(2) could be amended to read as follows:

(2) Subsection (1) does not apply to a conduct complaint of any of the following types:

  1. corruption;
  2. the commission of a service or civil offence;
  3. perjury; or
  4. conduct that results in injury.

This incorporates the current list of excluded complaints from the Regulations, but eliminates 4 types: complaints about policies of the Canadian Forces Military Police, complaints about abuse of authority, complaints about the arrest of a person and complaints about excessive use of force.

III. Extending Terms of Members Automatically (MPCC Proposal #22)

In order to implement this proposal, a subsection would have to be added in section 250.1 of the NDA, which deals with the appointment of Commission members. We suggest this section could be added immediately following subsection 250.1(4). Relevant subsections currently read as follows:

250.1 (3) Each member holds office during good behaviour for a term not exceeding five years but may be removed by the Governor in Council for cause.

(4) A member is eligible to be re-appointed on the expiration of a first or subsequent term of office.

The subsection to be added could read as follows:

(4.1) If the term of office of a member who has participated in a hearing or investigation expires before a final report is produced, the term shall be deemed to continue, but only for the purpose of producing the report and for no other purpose.

This is inspired by the Statutory Powers Procedure Act, R.S.O. 1990, chap. S.22, s. 4.3, with modifications to reflect the specific MPCC process.

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