Third Review of Amendments to the National Defence Act Pursuant to Section 273.601 of that Act: Military Police Complaints Commission Submissions to the Independent Review Authority

A. Introduction

1. To put it plainly, the MPCC’s legal authorities to gain access to information necessary to monitor, review and investigate complaints in an effective and credible manner are inadequate, and have been for some time. Such authorities are too few in number, too narrow in scope and too dependent on the goodwill of the overseen police service leadership. More secure and expanded access to relevant information is necessary for the MPCC to provide credible and effective civilian oversight of military policing, especially in those controversial situations where external oversight is most crucial for ensuring public confidence.

2. The stakes are high. Military Police exercise important policing responsibilities in Canada and they are the only policing authority for Canadian personnel on military deployments abroad. The types of cases that Military Police can become involved with, as we know from the long and intensive mission in Afghanistan, can easily test at least the perceived integrity and professionalism of military policing, and military justice generally. This perception on the part of the larger military community and the Canadian public is vital to upholding the rule of law, and often even to the success or failure of a mission.

3. The Canadian Armed Forces Military Police call themselves ‘Canada’s Front-Line Police Service’, and so they are. They are at once soldiers and law enforcement agents, committed to the success of the chain of command’s operational missions and to upholding the rule of law. They are part of the military chain of command and yet are expected, in fact required, to use independent judgement in performing their policing duties. They need to be prepared to investigate and, in some cases arrest and charge, other military members of higher rank. Needless to say, there can at times be tensions between their duties as soldiers and as police. Reconciling these responsibilities is no doubt often an unenviable task.

4. The Military Police need and deserve an oversight body that has the capacity to independently and credibly address Military Police conduct or interference complaints, identify problems and possible solutions, and dispel unfounded allegations and suspicions.

5. There are two fundamental qualities for such a police oversight body, or indeed, any credible “watchdog”-type body: 1) operational independence from the overseen organization; and 2) clear, legislative authority to command access to relevant information from the overseen entity.

6. It is in the area of authoritative access to information where the MPCC believes there to be considerable need for improvements. Toward that end, the MPCC has developed some specific proposals to enhance its access to information. There are already established precedents for many of these legislative authorities in the area of federal police oversight, specifically in the powers conferred on the Civilian Review and Complaints Commission for the RCMP (RCMP Commission) in the 2013 amendments to the RCMP Act following the recommendations of the Arar Inquiry.

7. The MPCC does not have the power to enforce its will on the Military Police leadership. It makes only non-binding findings and recommendations. Nor does the MPCC seek such authority. Strong authorities for the MPCC to access information could be considered an appropriate trade-off for the lack of authority to intrude on military chain of command relationships.

B. Documentary Disclosure Requirements

8. Presently, the only instances where the MPCC has a statutory right to obtain information in support of its investigative and oversight responsibilities are when a review of a conduct complaint is requested (National Defence Act, s. 250.31(2)(b)), or when it exercises its subpoena power in the context of a public interest hearing (National Defence Act, s. 250.41). There is no statutory right to information in respect of an interference complaint or a public interest investigation, a significant anomaly. Nor is there a statutory right to access documents in the possession of the broader Canadian Armed Forces or the Department of National Defence. The MPCC has had to rely on the goodwill of Military Police Professional Standards for disclosure in interference complaints and public interest investigations. This is unacceptable for an independent, statutory oversight body. As the Federal Court has stated regarding the MPCC: “If the Commission does not have full access to relevant documents, which are the lifeblood of an inquiry, there cannot be a full and independent investigation.”^{Note 4}

9. Furthermore, the courts have indicated that it is not an appropriate use of a discretionary public-hearing power merely to secure cooperation in the disclosure of relevant information.^{Note 5}

10. It would also help the MPCC to better discharge its mandate by allowing it to have access to Military Police records at various stages of the complaints process (Annex A ‑ Complaints Process Chart), as does the RCMP Commission.^{Note 6} Access to records at the earlier, monitoring stage of the conduct complaints process (i.e., when a complaint is first received, or is being dealt with by the office of Military Police Professional Standards) would better enable the MPCC to monitor the internal Military Police treatment of complaints. It would also allow the MPCC to make more timely and better informed decisions on the exercise of its public interest authority to take over the handling of a complaint from the Canadian Forces Provost Marshal (CFPM), which the Chairperson is authorized pursuant to subsection 250.38(1) of the National Defence Act to do “at any time”. More timely and informed decisions for the MPCC to intervene in the public interest would save time and duplication of effort, as between the MPCC and the CFPM.

11. The timely access to information relevant to a complaint would also help the Commission fulfill its duty to deal with all matters before it as informally and expeditiously as the circumstances and the considerations of fairness permit.^{Note 7} An early resolution of a complaint can be considered part of “a general right to procedural fairness, autonomous of the operation of any statute.”^{Note 8} In the case of matters before the Commission, an inordinate delay is unfair to a complainant who wants to see the results of an impartial review as soon as possible as well as to the subject Military Police member who is exposed to a degree of risk to his or her reputation, as well to deployment and career opportunities, while a complaint looms over them.

12. MPCC access to Military Police records after the conclusion of the complaints process would allow the MPCC to monitor the CFPM’s implementation of reforms promised in the Notice of Action under section 250.51 of the National Defence Act. Such knowledge would assist the MPCC in making helpful recommendations in subsequent cases.

13. The MPCC considers that the authority given to the RCMP Commission in subsection 45.39(1) of the Royal Canadian Mounted Police Act offers a good model for the type of provision that the MPCC is proposing. It states that the RCMP Commission is entitled to “any information under the control, or in the possession, of the Force that the Commission considers is relevant to the exercise of the Commission’s powers, or the performance of the Commission’s duties under this Act.”

14. A notable feature of this provision is that it stipulates that it is the oversight body’s view of the relevance of the information which is decisive. In the case of the MPCC, the Federal Court has already stipulated that it should be the MPCC’s perceptions of relevance which guide the fulfillment of disclosure requirements to the MPCC.^{Note 9} Nonetheless, it would be useful to have this principle set out in the legislation in order to preclude time-consuming, and continuing, arguments about relevance with the CFPM, the Canadian Armed Forces, and the Department of National Defence, which only serve to undermine the credibility of the oversight process.

1) The MPCC proposes that Part IV of the National Defence Act be amended to require the Canadian Forces Provost Marshal, the Canadian Armed Forces, and the Department of National Defence to disclose to the MPCC all records under their control which, in the view of the MPCC, may be relevant to the performance of its mandate.

C. Access to Witnesses: Expanded Subpoena Power

15. In addition to its inability to compel access to documentary evidence, the MPCC has an extremely limited power to compel witnesses to provide testimony. Aside from being able to issue a summons to witnesses when conducting a public interest hearing,^{Note 10} the MPCC has no legal authority to oblige witnesses to give evidence. It is reliant upon the good-will of those with knowledge concerning complaints to cooperate voluntarily. The Commission’s lack of authority to compel witnesses cannot be justified in the name of protecting witnesses from potentially adverse legal consequences of their testimony as the Commission is an administrative, not a disciplinary body. As with access to Military Police records, the MPCC’s discretionary public interest hearing powers, and the associated increases in the formality and cost of proceedings, should not be engaged solely to gain access to compelled cooperation.^{Note 11} After all, the MPCC is under a statutory direction to conduct its business as informally and expeditiously as possible, consistent with fairness.^{Note 12}

16. Canada’s other federal police oversight body, the RCMP Commission, has been given the authority to summons witnesses in dealing with any complaint before it in any of its processes, not just its hearings.^{Note 13} The Military Grievances External Review Committee also has a power to issue witness summonses. The Grievance Committee has, in relation to the review of a grievance referred to it, the power “to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things under their control that it considers necessary to the full investigation and consideration of matters before it.”^{Note 14} A further example is that, in conducting an investigation, the Public Sector Integrity Commissioner has all the powers of a commissioner under Part II of the Inquiries Act.^{Note 15}

17. The legal ability to compel testimony would put the Commission into a similar position as the Provost Marshal. Under the Military Police Professional Code of Conduct there is a duty imposed on members of the Military Police to cooperate with Provost Marshal investigations. Under section 8 of the Code, no member of the Military Police is excused from responding to any question relating to an investigation into a breach of the Code unless the member is the subject of the investigation or is the assisting officer for the subject of the investigation. Another duty to cooperate is found in Defence Administrative Order and Directive 5047‑1, Office of the Ombudsman. Annex A of that DAOD contains a Ministerial Directive that imposes a duty on all Canadian Armed Forces and Department of National Defence personnel to cooperate with investigations by the National Defence and Canadian Forces Ombudsman. Refusal or failure to assist the Ombudsman can result in the Ombudsman making a report of the matter to the Minister of National Defence.

18. With compelled testimony comes legal protections. One example is subsection 45.65(3) of the Royal Canadian Mounted Police Act which states that evidence given, or a document or thing produced, by a witness who is compelled by the Commission to give or produce it, may only be used against the witness in perjury proceedings.^{Note 16} As it stands, witnesses who volunteer to provide evidence to the Commission are at risk of having that evidence used against them in other proceedings.

2) The MPCC proposes that Part IV of the National Defence Act be amended to give it the power to summon and enforce the attendance of witnesses before it and compel them to give oral or written evidence on oath and to produce any documents and things that the MPCC considers relevant for the full investigation, hearing and consideration of a complaint.

D. Access to Sensitive Information

19. Due to the policing mandate of MPs, the MPCC has, in the course of its work, encountered the need to gain access to what is called sensitive information^{Note 17} or potentially injurious information.^{Note 18} Parliament in 1998 expected that the MPCC should have access to sensitive information when relevant to its mandate. Paragraph 250.42(a) of the National Defence Act provides that the MPCC may exceptionally hold its public interest hearings in camera if it expects to receive information that “could reasonably be expected to be injurious to the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities.” The Commission has both secure facilities and security-cleared personnel to deal with sensitive information.

20. In the aftermath of the terrorist attacks in the United States on September 11, 2001, Parliament adopted sections 38 through 38.16 of the Canada Evidence Act (CEA) to provide for a special regime of controlling access to this kind of information which may be “potentially injurious” to “international relations or to national defence or security.” Every participant in a proceeding is required to notify the Attorney General of Canada of the possibility of the disclosure of information that they believe is sensitive information or potentially injurious information. Such information shall not be disclosed, but the Attorney General may, at any time and subject to any conditions that he or she considers appropriate, authorize the disclosure of all or part of the information.^{Note 19} While a party or tribunal seeking access to such information for use in proceedings can challenge the Attorney General of Canada’s claim that the information in question is injurious to interests like national security, this requires that the proceedings be delayed while the issue is litigated through the courts.

21. Alternatively, a body may be added to a Schedule of Designated Entities to the CEA, as provided for in paragraph 38.01(6)(d) and subsection 38.01(8). In these cases, the disclosure restrictions do not apply and the body can receive the sensitive information in question. The idea of access to sensitive information by certain bodies was addressed by Justice O’Connor in the Arar Inquiry. In his recommendations for an RCMP oversight body, Justice O’Connor recommended that the oversight body “must have access to all relevant information and should not be refused information on the basis that it is secret or sensitive.”^{Note 20} The concomitant obligation for investigative bodies receiving sensitive information was to put in place stringent non-disclosure requirements. Oversight bodies that do have full access to all information include the Security Intelligence Review Committee and the Communications Security Establishment Commissioner. According to the information provided to Justice O’Connor, neither of those review bodies has breached security obligations.

22. Thus, the MPCC’s ‘sister’ oversight body in the area of federal policing, the RCMP Commission, was added to the CEA Schedule as a Designated Entity in 2013 as a result of recommendations in the Arar Inquiry. Other designated entities include the Privacy Commissioner, the Information Commissioner and the Public Sector Integrity Commissioner.^{Note 21}

23. From the list of currently designated entities, it seems that a body must have a reasonable prospect that it will encounter such sensitive information and must have in place sufficient safeguards against uncontrolled public disclosure of such information. If and when a body considers it necessary to make sensitive information public, the regular safeguards kick in, and such disclosure must be negotiated or litigated with the Attorney General of Canada.

24. In effect, therefore, being a designated entity for the purposes of the CEA Schedule does not remove, so much as defer, the special disclosure protections applicable to such sensitive information. Yet the effect of this change would be immensely beneficial in terms of the efficiency of the proceedings in question. For one thing, being on the CEA Schedule would significantly narrow, and possibly eliminate, the scope of information whose public disclosure would need to be negotiated or litigated. This is because, having access to the information up front, the MPCC would, over the course of its investigation, inevitably acquire a more refined understanding as to what records are truly relevant to the resolution of the complaint before it. In some cases, it may turn out to be unnecessary to refer to sensitive information in its report. In those cases, being on the CEA Schedule would obviate the need for Federal Court litigation altogether. In other cases, the MPCC could issue a provisional Final Report on a complaint with some information redacted pending the results of litigation in the Federal Court.

25. MPCC access to sensitive or potentially injurious information is not an academic or speculative concern. These provisions were invoked in the MPCC’s public interest hearing related to the treatment of Afghan detainees (MPCC 2008‑042). In that case, protracted negotiations with the government and litigation were necessary to obtain access to documents. The government took the position that the MPCC could only receive documents after they were vetted and redacted. In practice, this resulted in significant delays of many months for the MPCC in obtaining documents required for the conduct of its hearings. For instance, there was a period of twenty months, between March 2008 and November 2009 where the MPCC received no documents. Moreover, in 2010, then-Chairperson Stannard was forced to adjourn the hearing for a few weeks because of further problems with document production. The Government declined Commission offers to assist in identifying records of potential relevance, and thus expedite the vetting process. The MPCC was also obliged to call witnesses and spend valuable hearing time dealing with document production and vetting issues. Indeed, it can fairly be said that disputes and delays over document production hijacked the hearing process to a significant extent. All of which made it significantly more difficult and time-consuming for the Commission to carry out its mandate. This could have been substantially avoided by having the MPCC on the Canada Evidence Act Schedule.

26. Nor were these problems with production of potentially sensitive documents confined to the especially politically sensitive Afghan detainee public interest hearing. More recently, in the current Anonymous Public Interest Investigation (based on an anonymous complaint about an allegedly illegal training exercise conducted by MPs in the Detainee Transfer Facility in Afghanistan in 2011), the MPCC confronted a delay of nine months before receiving disclosure from the CFPM. Much like justice, the delay of necessary oversight can be the denial of oversight.

27. Moreover, given the policing jurisdiction of the Canadian Armed Forces Military Police, it is only too easy to think of other scenarios where sensitive international relations or military information would be involved. For instance, it seems highly likely that a Military Police investigation into the operational conduct of members of the Canadian Armed Force’s special forces units would involve sensitive information. Indeed, the Canadian Forces National Investigation Service did investigate the conduct of members of JTF2 in respect of operations in Afghanistan.^{Note 22} The MPCC received no complaints about these investigations. If it had, it is difficult to see how the MPCC could have dealt with such complaints without access to this type of information.

28. At the conclusion of the Afghanistan Public Interest Hearing from a complaint by Amnesty International/BC Civil Liberties Association, the MPCC recommended that it be added to the Canada Evidence Act Schedule, both in its December 2011 Interim Report and in its June 2012 Final Report (MPCC 2008‑042). This recommendation was rejected. However, the MPCC has persisted in its efforts to advance this issue. The present Chairperson included a recommendation in the MPCC Annual Report for 2015 to have the Commission added to the CEA Schedule. This recommendation has been reiterated in subsequent Annual Reports.

29. There have also been petitions to Parliament from individuals (one law professor and one Member of Parliament) seeking the CEA scheduling of the MPCC. The Minister of Justice and Attorney General in response to one of these petitions to have the MPCC added to the CEA schedule, stated that the impediment to adding the MPCC to this list was that:

“While the mandate of the MPCC allows it to conduct in camera (i.e., closed) proceedings if information identified in section 250.42 of the National Defence Act is likely to be disclosed, the scope of section 250.42 does not fully encompass “sensitive information” or “potentially injurious information.”…^{Note 23}

30. The solution is a two-step process: (1) Amend s. 250.42 of the NDA to encompass fully “sensitive information” and “potentially injurious information”. This would be in keeping with Parliament’s intention when the MPCC was created in 1998. (2) Add the MPCC to the CEA schedule. (Annex B ‑ Government Response to Petition). It is within the Government’s authority, rather than the Commission’s, to provide the necessary legislative authorities, particularly related to the conduct of hearings, which would enable the Commission to be safely added to the Schedule. This is indeed what the Government and Parliament did with the RCMP Commission in the 2013 amendments to the RCMP Act.

31. In his 2011 report, the Second Independent Review Authority, former Justice Lesage, declined to support the MPCC’s proposal to be added to the CEA Schedule. He did so based on the sensitivity and complexity of the issue, and his not having the benefit of more extensive submissions on the matter.^{Note 24} However, it must be noted that Justice Lesage’s report was submitted prior to the issuance of the MPCC’s Final Report in the Afghanistan Public Interest Hearing, and its related recommendation regarding CEA scheduling, as well as the petitions to Parliament, noted above. It must also be noted that the addition of the RCMP Commission to the CEA Schedule, along with the corresponding modifications to its hearing and evidence-handling procedures, through the enactment of Bill C‑42 in 2013, had not yet occurred. Thus, the public policy and legal landscape have shifted since Justice Lesage issued his report in December 2011.

3) The MPCC proposes that it be added to the Canada Evidence Act schedule by first amending s. 250.42 of the National Defence Act to fully address the hearing procedures and handling requirements necessary to receive “sensitive information” and “potentially injurious information”; and second, that it be added to the Schedule of Designated Entities pursuant to paragraph 38.01(6)(d) and subsection 38.01(8) of the Canada Evidence Act.

E. Access to Solicitor-Client Privileged Information

32. At present, the MPCC is unable to access solicitor-client privileged information from the CFPM. This is the case, even though the CFPM has access to such information in initially disposing of the complaint, a distinction in treatment which undermines the value of the right to independent review of complaints. Despite this present legal restriction, it is nonetheless the case that the legal advice sought and provided to members of the Military Police is often highly pertinent to resolving complaints.

33. The MPCC receives many complaints about actions taken, or not taken, with the benefit of legal advice from either military or civilian prosecutors: searches and seizures, arrests, and the laying (or not laying) of charges. Two prominent categories of complainants are: 1) those charged with offences who believe they should not have been charged; and 2) alleged victims who do not understand why charges were not laid against their alleged perpetrator.

34. Based on their experiences, many complainants in such cases are dubious as to the professional competence and independence of the Military Police. In the view of the MPCC, it is not possible to fully and fairly explain Military Police members’ charge-laying decisions without some knowledge of the pre-charge consultations between them and civilian or military legal advisors. While it can usually be assumed that members’ charging decisions reflect the pre-charge legal advice they received, the status quo does not permit the MPCC to confirm that a Military Police subject member provided an accurate description of the evidence to the prosecutor, or that the ensuing legal advice was properly considered.

35. Nor is it appropriate for the MPCC to simply substitute its own assessment of the grounds for a charging decision, or the exercise of prosecutorial discretion, for that of Military Police subject members. Such exercises of a member’s independent policing discretion and judgment are only properly and fairly reviewable on a standard of reasonableness, rather than correctness. While it is true that merely following legal advice does not operate as a complete defence to the consequential actions or decisions of a Military Police member, it is of critical importance in establishing the reasonableness of a member’s decision.

36. Therefore, denying the MPCC access to solicitor-client privileged information in these types of case undermines the MPCC’s ability to effectively and fairly review such complaints. At the same time, the MPCC considers that such access is unlikely to discourage Military Police members from being candid with their legal advisors or to avoid seeking legal advice altogether.

37. Beyond the challenge posed to the credibility and fairness of its complaints process by lack of access to solicitor-client privileged information, there is the further, significant burden of disputes with the CFPM as to the scope or applicability of privilege to a given situation.

38. For instance, it is well known that when, in the course of litigation, a party justifies its position on the basis of legal advice received, it is deemed, out of fairness, to waive that privilege for the purposes of that litigation. However, the position taken by the JAG legal advisors to the CFPM is that any privilege in legal advice provided to Military Police members in the course of their policing duties belongs to the Minister of National Defence, and that only the Minister’s actions can result in its loss or waiver. Under this analysis, the CFPM himself could not disclose the legal advice received by any of his MPs, even if he wished to do so. In fact, generally speaking, the manner in which the privilege is asserted in the context of the MP complaints process appears to be based more on obscuring the involvement of JAG and other legal advisors for the Crown, than on promoting MP candor when seeking legal advice.

39. Another area of dispute relates to the CFPM’s  assertion of privilege over ‘Crown briefs’ – a compilation of materials reflecting the fruits of a Military Police investigation, which is forwarded to Crown counsel (or a military prosecutor) and is later disclosed to an accused person when charges are laid. The MPCC used to receive such briefs as part of its regular disclosure from the CFPM on complaint files. The brief is intended to enable a prosecutor to formulate advice for the investigating Military Police member as to whether charges should, or should not, be laid, and if so, which ones. While prosecutors may be asked for their assessment as to whether there are grounds for criminal or National Defence Act charges based on the elements of the offence(s), the Crown brief is also prepared and sent to the prosecutor in order to obtain advice on the exercise of prosecutorial or police discretion: that is to say, assuming that charges can be laid, should they be laid? The relevant factors here are whether the case presents a reasonable prospect of conviction and whether a prosecution is in the public interest. These are strictly policy questions, rather than legal advice. Where charges proceed, the Crown brief forms the basis for the disclosure provided to the accused.

40. Even apart from the ensuing prosecutorial advice on the exercise of charge-laying discretion, the Crown brief itself can be an important source of information for the MPCC. It can directly address complainants’ allegations that prosecutors’ charge-laying advice to the Military Police was the result of incomplete, inaccurate or biased information supplied by Military Police investigators. One significant example of the utility of MPCC access to Crown briefs arose in the MPCC’s first public interest hearing case, MPCC File # 2005-024. This was a complaint by the parent of a youth who was investigated for sexual assault against a fellow cadet at a cadet camp. The complaint was about the conduct of the principal CFNIS investigators. In that case, MPCC access to the Crown brief – over which the CFPM had not claimed solicitor-client privilege – enabled the MPCC to discover and report on the fact that a number of important exculpatory pieces of evidence had been omitted from the Crown brief by the CFNIS investigators. The MPCC’s Final Report in this case may be found at: https://www.mpcc-cppm.gc.ca/public-interest-investigations-and-hearings-enquetes-et-audiences-dinteret-public/final-reports-rapports-finals/hearing-audience-2005-024-final-report-rapport-final-eng.html  (see Part V).

41. Parliament seems to have accepted the arguments for giving access to privileged communications for police oversight purposes, as it has already extended access to solicitor-client privileged information to a police oversight body. With Bill C-42, the RCMP Commission has been given wide powers of access to information – including solicitor-client privileged information – in order to carry out its oversight role. Moreover, these powers extend to the RCMP Commission’s original police complaints mandate – that which it shares with the MPCC – as well as its more recently acquired national security oversight and proactive review roles. Subsection 45.4(2) of the Royal Canadian Mounted Police Act states: “Despite any privilege that exists and may be claimed, the Commission is entitled to have access to privileged information under the control, or in the possession, of the Force if that information is relevant and necessary to the matter before the Commission.” While there are a number of other caveats, the principle of access to privileged information in the cause of a proper investigation of police conduct has been established.

42. One of the factors motivating Parliament to grant the RCMP Commission access to solicitor-client privileged information was explained by the former head of the Commission for Public Complaints Against the RCMP. He pointed out that one of the reasons the Arar inquiry was initiated was the fact that the RCMP oversight body of the day had been unable to obtain key information in support of its mandate. If the oversight body had broad rights of access, as did the public inquiry, that might obviate the need to create ad hoc commissions of inquiry.^{Note 25}

43. It should be noted that in proposing the selective penetration of solicitor-client privilege, we are not suggesting the complete sacrifice of that privilege. The privilege would still be in  place vis-à-vis other proceedings. This is where the concept of a limited waiver comes in. A limited waiver means that otherwise privileged information may be used for a particular purpose or proceeding, but is not lost vis-à-vis other parties or fora.^{Note 26} The doctrine of limited waiver, which is increasingly widely accepted, challenges the traditional, but overstated and outmoded adage that waiver to one necessarily means waiver to all.

44. The creation and scope of a limited waiver of solicitor-client privilege can be defined in three ways. One of these is by statute. A number of statutes require that information must be disclosed for a certain narrow purpose prescribed by the statute. When such information is provided, the statute can explicitly provide that this does not constitute a general waiver of solicitor-client privilege. One example is found in subsection 36(2.2) of the Access to Information Act.^{Note 27} Under the Act, the head of a government institution may be obliged to disclose to the Information Commissioner a record that contains information subject to solicitor-client privilege. Subsection 36(2.2) states that this disclosure does not constitute a waiver of that privilege. Similarly, the Ontario Legal Aid Services Act, 1998^{Note 28} can compel the disclosure of privileged information to Legal Aid Ontario. Subsection 89(3) of the Act makes it clear that “Disclosure of privileged information to the Corporation [Legal Aid Ontario] that is required under this Act does not negate or constitute a waiver of privilege.”

45. A limited waiver of solicitor-client privilege may also be established and defined by agreement. Though well protected in law, solicitor-client privilege, at the end of the day, belongs to the client, and the client is free to voluntarily waive privilege and to set terms and limits for doing so.

46. Finally, the circumstances which give rise to the loss of privilege in certain information will themselves generally suggest the scope and limits of that loss. So that, in a scenario where fairness demands that privilege is waived with respect to certain information in one proceeding, that privilege may still hold vis-à-vis other parties in other fora.

47. The MPCC considers that, as with the RCMP Commission, legislated access to solicitor-client privileged information, where necessary for the determination of a complaint, is required to address this issue. The Office of the JAG has generally been disinclined to ever advise in favour of waiving privilege, and as noted, takes the view that only the Minister’s actions may lead to a waiver of privilege. More than that, we often differ over the scope of what information is actually privileged (Crown briefs, mentioned above, is an example). Worse still, the vetting of MP material disclosed to the MPCC pursuant to NDA Part IV is done by staff who are not legally trained, and who tend to redact any references relating to legal counsel. This has resulted in MPCC personnel being involved in numerous discussions and negotiations with CFPM legal advisors to have the redactions revisited and (sometimes) corrected. Indeed, the MPCC had set up a joint working group with the CFPM’s legal advisors on redactions to CFPM disclosure with a view to ironing out such problems. But our success with minimizing and rationalizing redactions to disclosure is largely a function of the outlook of the particular JAG officers advising the CFPM at any given time.

48. The MPCC has made numerous efforts over the years to resolve, or work around, the issue of privilege in a way that respects the importance of privilege, while allowing access for limited purposes in certain cases. The Chairperson has met personally with RAdm Bernatchez, as well as her predecessor, on this issue. In a letter dated June 6, 2018, following up on her meeting with RAdm Bernatchez, the Chairperson raised the issue of MPCC access to solicitor-client privileged information on a limited basis, as well as the need for the MPCC to be able to have access in certain cases to sensitive information by being added to the Canada Evidence Act Schedule. On May 21, 2020, the Chairperson wrote to the JAG and the CFPM on the issue of MPCC access to Crown briefs, and is presently awaiting a response. In order to address their concerns about the complete loss of privilege in MP legal advice, the MPCC has sought to assuage those concerns by sharing the results of our legal research into the doctrine of limited waiver of privilege. The MPCC has also developed, and shared with the CFPM (on July 26, 2019), a template letter for requests for waiver certifying the Chairperson’s belief in the necessity of the privileged information and setting out the applicable terms, limits and safeguards for the secure sharing of the relevant information. We are presently awaiting feedback from the CFPM and have followed up on several occasions with the JAG legal advisor to the CFPM. However, without a basic legislative right of access, we consider that these types of measures can bring only limited relief to the problem.

4) The MPCC proposes that Part IV of the National Defence Act be amended so as provide the MPCC with access to solicitor-client privileged information in cases where it is relevant to a fair disposition of the complaint.

F. Easing Certain Evidentiary Restrictions for Public Interest Hearings

49. In the context of a public interest hearing, the MPCC is authorized by paragraph 250.41(1)(c) of the National Defence Act “to receive and accept any evidence and information that it sees fit, whether admissible in a court of law or not.” Such a relaxation of traditional rules of evidence is typical for administrative tribunals, especially those with an investigative versus adjudicative mandate like the MPCC. The modern focus is on the principles of the reliability and the necessity of evidence, rather than on traditional rules of evidence that can serve to exclude valuable evidence.^{Note 29}

50. In the next subsection of the Act, a number of exceptions to this general principle are enumerated. Subsection 250.41(2) of the National Defence Act prohibits the MPCC from receiving in a hearing the following categories of evidence:

1. any evidence or other information that would be inadmissible in a court of law by reason of any any answer given or statement made before a board of inquiry or summary investigation;
2. any answer or statement that tends to criminate the witness or subject the witness to any proceeding or penalty and that was in response to a question at a hearing under this Division into another complaint;
3. any answer given or statement made before a court of law or tribunal; or
4. any answer given or statement made while attempting to resolve a conduct complaint informally under subsection 250.27(1).

51. If the proposal discussed in the previous section (E) were adopted, then paragraph (a) above would need to be modified with respect to solicitor-client privilege. The MPCC has no issue with the restrictions in paragraphs (c) or (e). However, in the MPCC’s view, the bolded restrictions in paragraphs (b) and (d) above are overbroad and unnecessary.

52. The intent of these two provisions is to protect witnesses who have been subject to compelled testimony in other proceedings from having this evidence admitted in an MPCC public interest hearing. However, such a blanket prohibition has the potential to exclude highly relevant information from an MPCC hearing, except through the time-consuming and cumbersome means of calling such witnesses in order to obtain their evidence directly. This is hardly the expeditious and informal type of proceeding envisioned by National Defence Act section 250.14 and paragraph 250.41(1)(c). These prohibitions are overbroad in that they are not confined to a witness’s self-incriminating information. In any event, given that the MPCC’s proceedings are non-penal, non-disciplinary, and indeed non-adjudicative, in nature, it is difficult to see how someone could be truly incriminated in an MPCC proceeding. Moreover, the prohibitions apply equally to uncontested factual background matters and to contested issues. To the extent that they even preclude cross-examination on such earlier evidence, these prohibitions reduce the tools available to assess witness reliability, and thereby impede the MPCC’s ability – and that of the parties to the hearings – to uncover the truth.

53. The provenance and purpose of paragraphs 250.41(2)(b) or (d) are not apparent. Their inflexibility is at odds with the admonition to the MPCC to deal with all matters before it as informally and expeditiously as the circumstances and considerations of fairness permit. In other courts and tribunals, statements made before other adjudicative bodies are admissible, so long as their authenticity can be proved. The weight given to those statements is a separate issue, but it is for the body assessing the out-of-court statement to make that assessment and not have it excluded from consideration altogether. The ability of the MPCC to assess evidence for itself is reflected in paragraph 250.41(c) of the National Defence Act which gives the Commission the power to receive and accept any evidence and information that it sees fit.

54. If the issue is one of the reliability of statements made outside of a Commission hearing, paragraphs 250.41(1)(a) and (b) of the National Defence Act give the MPCC the power to compel a witness to appear before it and give testimony under oath. Such a power can be invoked if there is any question about accepting into evidence prior testimony. Furthermore, section 250.44 of the National Defence Act affords complainants and subjects at a hearing the opportunity to present evidence, cross-examine witnesses, and make representations. These powers can be used if needed to prevent the improper use of statements from prior proceedings.

55. There does not appear to be any parallel to the evidentiary restrictions in paragraphs 250.41(2)(b) or (d) in other federal legislation, including in Part VII of the RCMP Act regarding the RCMP Commission’s authority to receive evidence at its public interest hearings. The equivalent Royal Canadian Mounted Police Act provision to the prohibition on receiving into evidence any statements made before a board of inquiry or summary investigation (paragraph 45.45(8)(b)), is limited to incriminating information. There is no corresponding Royal Canadian Mounted Police Act equivalent whatever to paragraph 250.41(2)(d) of the National Defence Act which forbids the MPCC from taking into evidence any answer given or statement made before a court of law or tribunal.

5) The MPCC proposes that Part IV of the National Defence Act be amended such that the evidentiary restrictions in National Defence Act paragraph 250.41(2)(a) be modified with respect to solicitor-client privilege, and that paragraphs 250.41(2)(b) and (d) be repealed.

G. Addition of the MPCC to Privacy Regulations Schedule II

56. A special challenge confronted by the MPCC flows from the fact that the Canadian Forces Military Police Group is not administratively separate from the broader Canadian Armed Forces/Department of National Defence. One consequence of this is that information and records that are not scanned into the Group’s Security and Military Police Information System (SAMPIS) by members of the Military Police may be beyond the control of the CFPM, because the CFPM does not control the broader Canadian Armed Forces/Department of National Defence information technology and management systems.

57. As a result, the CFPM may be unable to disclose relevant Military Police information to the MPCC, even though it may be stored on workplace computer networks or devices. The broader Canadian Armed Forces/Department of National Defence do not consider themselves bound by the CFPM’s disclosure obligations under Part IV of the National Defence Act. As such, records inevitably contain some amount of personal information and offices in the broader Canadian Armed Forces/Department of National Defence feel bound to resist disclosure to the MPCC in accordance with the Privacy Act. This has led to relevant information not being made available to the MPCC, or at least to significant delays in obtaining such information.

58. For instance this has been an issue in the ongoing Public Interest Investigation in Beamish (MPCC 2016-040). In this case the complainant was able to obtain certain information via a Privacy Act request which was not part of disclosure provided to the MPCC by the CFPM. The reason given for this discrepancy was that some military police members failed to scan relevant emails into their investigation file, rendering them outside the control of the CFPM despite the fact that they were on DND servers.

59. Moreover, it is not difficult to envision other situations where records containing personal information, which is beyond the control of the CFPM, would be relevant to an MPCC investigation. Records relating to a member of the Military Police which are under the control of another part of the Department of National Defence could be relevant. This could even encompass Military Police-related records that are under the control of the CFPM, but the CFPM is reluctant to provide them, such as disciplinary records. Records relating to non-Military Police Canadian Armed Forces members could be highly pertinent to the investigation of interference complaints which often involve non-Military Police members as subjects of the complaint. Records relating to Military Police members or operations may be in the hands of Global Affairs Canada in the case of overseas operations. In domestic operations records may be with the Ministry of Public Safety and Emergency Preparedness. In the case of joint policing operations, records may be with the RCMP.

60. In situations where non-Canadian Forces Military Police Group records have been unsuccessfully sought, or where the request has caused significant delay, the MPCC has been advised that access to such material would have been possible if the MPCC had been an investigative body designated for the purposes of paragraph 8(2)(e) of the Privacy Act. Under that paragraph, personal information may be disclosed to an investigative body specified in the regulations, on the written request of the body, for the purpose of enforcing any law of Canada or a province or carrying out a lawful investigation, if the request specifies the purpose and describes the information to be disclosed. The investigative bodies able to receive personal information are set out in Schedule II to the Privacy Regulations.

6) The MPCC proposes that it be added to the list of designated investigative bodies in Schedule II of the Privacy Regulations.

A. Introduction

61. In addition to seeking more robust and modern legal authorities for accessing information, the MPCC also sees a number of ways to update the procedures for dealing with complaints so as to render the process for dealing with them more efficient and fair.

B. Authority to Identify and Classify Complaints

1) Overview of the Problem

62. Part IV of the National Defence Act is silent as to when the MP conduct complaints process, including the oversight mandate of the MPCC, has been triggered. Standing to make an interference complaint is limited to Military Police members conducting an investigation or in the supervisory chain of command with respect to the investigation. These are easier to identify and interference complainants are more knowledgeable about the complaints process and how to engage it. As such, the question of complaint classification and identification is largely one that pertains to conduct complaints.

63. A valid conduct complaint is a complaint about the conduct of an MP member in the course of the performance, or purported performance, of his or her “policing duties or functions”. “Policing duties or functions” is defined in section 2 of the Complaints Against the Conduct of Members of the Military Police Regulations (the Regulations). This provision reads as follows:

2. (1) For the purpose of subsection 250.18(1) of the Act, any of the following, if performed by a member of the military police, are policing duties or functions:

1. the conduct of an investigation;
2. the rendering of assistance to the public;
3. the execution of a warrant or another judicial process;
4. the handling of evidence;
5. the laying of a charge;
6. attendance at a judicial proceeding;
7. the enforcement of laws;
8. responding to a complaint; and
9. the arrest or custody of a person.

(2) For greater certainty, a duty or function performed by a member of the military police that relates to administration, training, or military operations that result from established military custom or practice, is not a policing duty or function.

64. Such a definition is needed of course because Military Police are soldiers as well as police. They perform a variety of duties that do not, and ought not, attract the special oversight regime established in Part IV of the National Defence Act for their policing duties.

65. The problem of complaint classification and identification also arises at least in part because the MPCC is not the only portal for MP conduct complaint. Conduct complaints may also be made to: the Judge Advocate General, the CFPM or to any member of the Military Police. If another recipient of a complaint were to determine that it was not a valid conduct or interference complaint, they could choose unilaterally not to forward a copy to the MPCC and not to engage the National Defence Act Part  IV process.

66. Indeed, this has happened. There have been times when the CFPM has failed to notify the MPCC of complaints received because the complaint was not initially addressed to one of the authorized complaint recipients per NDA s. 250.21 (this issue is addressed in the next subsection), or because it was (unilaterally) determined not to be related to “policing duties or functions.” Sometimes the MPCC would only find out about such complaints when the complainant sought to request a review under NDA s. 250.31. Obviously, this is problematic for oversight purposes. Complaints that ought reasonably to be subject to MPCC review may not get that opportunity, and the MPCC may be unaware of complaints that should trigger public interest consideration under NDA s. 250.38.

67. While an alternative solution might be to require all conduct complaints to be addressed to the MPCC, such a reform is not advised for a number of reasons.

68. First, it would not provide the required authoritative determination as to whether or not a complaint is a valid conduct complaint. CFPM Professional Standards might still take a different view of a complaint from the MPCC, which would mean that Professional Standards would not conduct its initial review or investigation of the complaint. The result would be, in many cases, that the MPCC would, on review, have to undertake a full investigation of a complaint, rather than simply review the complaint, with the benefit of the Professional Standards investigation, as the legislation intends.

69. Second, it should be recognized that there is, within the military, a cultural norm or tradition against raising concerns with external agencies or institutions. In fact, there is a prohibition on Canadian Armed Forces members making what are called “improper comments”. It is stated in the following terms: “No officer or non-commissioned member shall do or say anything that if seen or heard by any member of the public, might reflect discredit on the Canadian Forces or on any of its members.”^{Note 30} Canadian Armed Forces members are also ordered not to communicate with other government departments unless authorized to do so.^{Note 31}

70. As such, it is suggested that the current authorized addressees for conduct complaints, as set out in NDA subsection 250.21(1) be preserved.

2) Complaint Classification: Is it about “Policing Duties or Functions” (NDA s. 250.18(1) / Regulations s. 2)?

71. At the present time, while we usually agree with CFPM Professional Standards on the classification of complaint, compared with some previous eras, such fundamental matters should not be left to depend on the personalities of incumbents of positions within the CF MP Group HQ and their legal advisors. Moreover, there are still areas of disagreement as to what constitutes a “policing duty or function”, such as the conduct of CFPM Professional Standards investigations and the responsibility of MP supervisors in investigations. The question of whether or not complaints fall within NDA Part IV is an area of ongoing discussion and disagreement, and the MPCC values the perspective of the CFPM in this area. However, there should be, subject to judicial review, someone in the NDA Part IV process who is charged with making the judgment call as to whether or not a matter is properly an NDA Part IV complaint.

72. From the perspective of preserving the integrity of independent oversight, in the MPCC’s view, it is the only logical candidate for this role. Allowing members of the overseen police service to make such a decision raises at least the perception of a conflict of interest. A number of jurisdictions in Canada have taken steps to avoid this problem. In those jurisdictions where the admissibility of a complaint, or the role of the external oversight body, hinges on how a complaint is characterized, it is uniformly the oversight body to whom this responsibility is assigned.^{Note 32} The only exception appears to be the Military Police complaints process in Part IV of the National Defence Act.

73. Clearly, for an overseen police service to have the role of deciding which complaints against its members were and were not subject to outside scrutiny is illogical and inappropriate from an oversight perspective. It is a non-starter. The most logical way to avoid concerns about the misidentification, or disputed identification, of National Defence Act Part IV complaints is to have the issue determined by the MPCC, subject to the supervisory jurisdiction of the Federal Court.

74. Having the MPCC involved in classifying and construing complaints at the outset would have other benefits as well. There would less likely be significant differences in the interpretation of a complaint, as between CFPM Professional Standards and the MPCC. This would reduce the number of instances where MP subject members need to be named as subject members at the review stage when CFPM Professional Standards did not consider them subjects in the first instance, which is more fair to such subjects. In fact, this recently occurred in three conduct review cases; namely, MPCC 2016‑037, 2018‑022 and MPCC 2019‑038.

3) Indirectly Received Complaints (NDA s. 250.21)

75. Turning to NDA section 250.21, there is a further complaint identification problem relating to how complaints come to be received by the designated addressees in subsection 250.21(1). In the past, there have been instances where complaints admittedly about MP conduct in the course of “policing duties or functions” have nonetheless been treated as non-NDA Part IV, “internal” complaints, by CFPM Professional Standards: the reason being that the complaints were not received by the subsection 250.21(1) recipient directly from the complainant. In such instances, complainants who were unaware of the NDA Part IV process have addressed complaints to the Minister of National Defence, the Chief of the Defence Staff, or their Member of Parliament.

76. Complaints of this nature are invariably forwarded for action to the CFPM. In the view of the MPCC, such complaints should be treated as MP conduct complaints pursuant to NDA subsection 250.18 regardless of their routing. After all, Parliament clearly intended the broadest possible range of people to be complainants. “Any person”, as used in NDA subsection 250.18(1) should surely include people who, for whatever reason, have addressed their complaint in the first instance to someone other than one of the designated recipients in subsection 250.21(1).  There is no principled reason for treating such complaints as falling outside the scope of MPCC oversight. On the contrary, considering that the complainant has gone to the trouble of engaging senior external authorities, there is every reason to ensure that such complaints are included in the NDA Part IV process. In the mind of such complainants at least, their complaints raise matters of public interest, and so they should be subject to the public complaints process, including independent oversight by the MPCC.

77. The necessary legislative fix for this problem may be as simple as extending NDA subsection 250.21(1) to include complaints received directly or indirectly.

4) Complaint Classification: “Internal” Versus “Public” Complaints

78. Another problem is the category of “internal” complaints itself. The MPCC recognizes there to be a legitimate need for a category of “internal” complaints that may be dealt with entirely by the CFPM Professional Standards. These would be those complaints which reflect concerns about MP conduct and performance raised by and through the MP chain of command. Naturally, MP conduct and performance are constantly subject to monitoring and assessment by supervisors and the rest of the MP chain of command. CFPM Professional Standards also conducts periodic audits of MP units. So there are myriad ways in which MP conduct and performance is commented and reported on within the CF MP Group chain of command. It is neither practical nor in the public interest to inject MPCC oversight into MP command and performance management systems.

79. As such, there is a need for an “internal” category of matters for the CFPM Professional Standards to deal with, which fall outside the “public” NDA Part IV process. Indeed, there has always been such a category operating on a de facto basis. However, because it has been a purely de facto category, and one administered entirely by the CFPM Professional Standards, the “internal” complaints category has become an unaccountable repository for all those complaints which the CFPM Professional Standards has deemed, often unilaterally, not to fall within NDA Part IV for one reason or another.

80. In the view of the MPCC, the integrity of the public oversight regime established in NDA Part IV requires that the CFPM be given legislative guidance on the use of the “internal” complaint classification. This should, as noted above, be limited to issues of conduct or performance which have arisen within the MP chain of command. Moreover, it should be made clear that, as stated above, the MPCC should be ultimately responsible for determining whether a matter truly falls within the proposed legislative definition of the “internal” complaint classification.

5) The CFPM Framework Recommendation

81. Both previous Independent Reviews have recommended that the CFPM be required to develop a framework for the determination of whether conduct complaints triggered the jurisdiction of the MPCC. With all due respect, this recommendation makes no sense in the context of a MP complaints regime featuring external oversight. The notion that the overseen police service should determine the role of the oversight body is contrary to the very idea of independent oversight. Moreover, it seems apparent, from reading this recommendation in context, that it was unfortunately made erroneously, based on a misconception of the underlying issues. This subsection is intended to demonstrate this point.

82. In his Report of the First Independent Review, in a subsection entitled “Framework for Determining Public Oversight,” former Chief Justice Lamer recommended that:

the Canadian Forces Provost Marshal draft a framework that would set out the criteria to be applied by the Canadian Forces Provost Marshal to conduct complaints in order to determine whether or not the conduct complained of triggers the jurisdiction of the Military Police Complaints Commission.^{Note 33}

83. The purpose of this framework was to assist the CFPM with differentiating between those matters of MP conduct that fell “within the oversight of the MPCC,” versus those which should remain “solely with the office of the Provost Marshal,”^{Note 34} referring to internal complaints. The question flowed from Chief Justice Lamer noting that the CFPM’s Professional Standards office and the MPCC had differing MP complaint statistics. With due respect to the former Chief Justice, he seems to have misattributed the cause of the discrepancy in the complaint figures. Chief Justice Lamer seems to have assumed that CFPM Professional Standards kept, as “internal” complaints (versus the “public” complaints, subject to MPCC oversight), MP conduct issues of lesser seriousness. For he went on to observe that:

Many breaches of administrative policy are deemed to be offences under the Code of Service Discipline by virtue of section 129 of the NDA and therefore a strict division between complaints that trigger independent oversight and those that do not would be impossible. Therefore, I feel that a framework for designation could be drafted by the Provost Marshal which would articulate those complaints that are most definitely breaches of an administrative nature, and allow for the establishment of criteria to be applied to conduct complaints which would assist in the designation of a complaint as one being subject to independent oversight.^{Note 35}

84. While the former Chief Justice makes an apt observation about the potential, literal reach of the military justice system, including the military police, that is not the issue at play with respect to the distribution of complaints as between “internal” and “public”. In fact, the distinction between “internal” and “public” complaints within the CFPM’s office of Professional Standards has to do with the sourcing of the complaint, rather than its seriousness. MP conduct issues that come up through the MP chain of command, regardless of their nature or relative seriousness, are treated as “internal” complaints; whereas complaints about MP conduct originating from a complaint by a member of the “public” (which, in this context, can mean civilian or military personnel) are treated as complaints, properly speaking, within the meaning of NDA subsection 250.18(1), and subject to MPCC oversight – again, regardless of relative seriousness.

85. Two points become clear about this recommendation when it is construed in its proper context. First, it was aimed exclusively at the CFPM for his or her internal application to complaints that are potentially of an “internal” nature. It is nowhere suggested that it should apply to the MPCC. Second, it focused on the seriousness of the underlying conduct being investigated by MPs, rather than on the nature of the impugned MP conduct. It cannot surely be doubted that a police officer can commit serious misconduct (falsifying records or evidence, abuse of authority) while investigating trivial misconduct, such as a traffic stop for a minor infraction. Thus, even properly confined to the issue of “internal” versus “public” complaint, as opposed to the application of the definition of “policing duties or functions”, this recommendation makes no policy sense.

86. Thus the purpose of the framework proposed by the former Chief Justice was not to determine whether a complaint fell within the MPCC’s oversight purview based on the subject-matter, or substance, of the complaint. This assessment is reinforced by the fact that Chief Justice Lamer addressed the matter of the definition of “policing duties or functions” in a separate subsection of his report (at pages 75‑77). On the question of subject-matter classification of complaints (i.e., whether a complaint involves MP performance of “policing duties or functions”), Chief Justice Lamer only commented that he was “inclined to believe” that the handling of complaints by the CFPM’s office of Professional Standards was indeed a “policing duty or function” (a long-standing area of difference between the CFPM and the MPCC), but declined to make a final pronouncement on the issue until the CFPM’s position and role were set out in the NDA.^{Note 36}

87. Unfortunately, the Second Independent Review Authority adopted the Lamer Report recommendation extracted above, with little comment or analysis of it.^{Note 37} Even more unfortunately, and with all due respect to former Justice Lesage, the latter did so while conflating the issue of “internal” versus “public” complaint (sourcing of the complaint) with that of subject-matter classification – that is, the application of the definition of “policing duty or function” to determine whether a complaint is a conduct complaint within the meaning of NDA section 250.18 and the above regulations.

88. But as discussed above, it is a conflict-of-interest, and would undermine the integrity of the MP oversight system, for the MPs themselves to determine when NDA Part IV applied to a complaint, and when the jurisdiction of the MPCC was triggered. As also noted above, such an arrangement would conflict with norms now established in civilian oversight of police.

7) The MPCC proposes that Part IV of the National Defence Act be amended to stipulate that:

C. Right of Review for Conduct Complaint Subjects

89. During its outreach program of visits to Canadian Armed Forces bases and Military Police units, a recurrent complaint from members of the Military Police about the current conduct complaints system is that only a dissatisfied complainant may request a review of a complaint following initial disposition by the CFPM. This is viewed as a fairness issue by many Military Police members. 

90. The MPCC appreciates the rationale behind the legislative decision to extend a right of review only to complainants. If a member of the Military Police is sanctioned in any way as a result of a conduct complaint found to be substantiated by the CFPM, that member has internal Military Police and Canadian Armed Forces means of challenging those sanctions (the Military Police Credentials Review Board, the Canadian Armed Forces grievance process, etc.) which are not available to a complainant.

91. On the other hand, while there may be internal mechanisms for Military Police members to challenge sanctions imposed on them, these do not necessarily apply to findings by the CFPM which merely reflect adversely on a member’s conduct, but which do not lead to further action. A right of review for subjects would give them the opportunity to challenge adverse findings regarding their conduct, independent of any challenges to remedial measures taken against them.

92. It is of vital importance for the Commission to be seen as independent of the Canadian Armed Forces in general and the Military Police command in particular. This has to do with the respect for and acceptance of Commission decisions. While one side of a complaint is likely to be disappointed by the Commission’s decision, the goal of the Commission is to ensure that both sides agree that the process leading to the result was a fair one. The perception of fairness will be enhanced if the tribunal is not only seen as independent, but also impartial. If subjects of complaints were provided with a right to request a review by the Commission, it would serve to promote balance in the complaints process.

93. A right to request a review for subjects of complaints would also enhance morale among Military Police members. In a system where the Commission cannot compel people to furnish evidence, there is no incentive for Military Police members to do so if they are not allowed to bring matters to the Commission themselves. If the Commission gives them no recourse, there may seem less of an incentive for them to participate.^{Note 38} Those findings do not take the form of legal sanctions, but they can have important consequences if they reflect negatively on a Military Police member’s reputation. The stress of waiting for a decision on the performance of their duties can also weigh on subject members. Any feeling that the Commission, or at least its legislative mandate, is biased in favour of complainants can only add to that stress.

94. The idea that the subject of a conduct complaint before the CFPM should have the right to request a review was adopted in the First Independent Review. Recommendation 66 of the former Chief Justice Lamer was that the National Defence Act be amended such that once a conduct complaint has been resolved by the Canadian Forces Provost Marshal, the complainant or the member of the military police whose conduct was the subject of the complaint would have a right to request a review.

8) The MPCC proposes that a right to request a review by the MPCC of a conduct complaint be extended to the Military Police member who is the subject of a complaint.

D. Extend Complaints Process to All Persons Posted to Military Police Positions

95. The present definition of “military police” which applies to the complaints process is set out in subsection 2(1) of the National Defence Act. That provision, when read with section 156 of the Act and Article 22.02 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), refers to Canadian Armed Forces members posted to Military Police positions who possess a Military Police Badge and a Military Police Identification Card, collectively referred to as “MP credentials.” While this definition may be suitable for general National Defence Act purposes, it would be helpful if it were broadened to at least include persons seconded to Military Police positions.

96. There are two main reasons why the MPCC considers such a change to be desirable. One is that civilian police officers, who have regularly been seconded to Military Police positions with the CFNIS, are often assigned to the more challenging and sensitive cases. Such persons are in an ideal position to both recognize improper interference in investigations, and to come forward as interference complainants under subsection 250.19(1) of the National Defence Act. Yet, under the present definition of “military police,” they are precluded from doing so.

97. The second reason to broaden the definition of “military police” is that it seems unfair to all concerned that a person performing the role of a member of the Military Police cannot, for technical reasons, be made a subject of a conduct complaint. This is unfair to the complainant who is able to implicate one investigator in a complaint, but not another even though they carried out the same duties. In cases where both the seconded officer and a Regular Force Military Police member are implicated in the conduct complained of, there would also be unfairness to the Regular Force member who can be required to face allegations of misconduct in a complaint while their seconded partner, who shared in their actions, does not have to face them. It is also unfair to the MP chain of command who would be deprived of being able to resolve issues relating to both individual or systemic conduct involving their subordinates for the sole reason that they are seconded members.

98. Not having seconded police officers be considered to be “military police” also deprives them of the rights afforded to subject Military Police members, such as being sent status reports on the progress of an investigation as well as receiving the MPCC’s final report. Subject members are always afforded an opportunity to speak with Commission investigators and thereby give their version of their actions that are the subject of a complaint. It is important to note that even if a seconded police officer is made the subject of an MPCC complaint, they are still subject to whatever disciplinary actions their home service may wish to take since the MPCC is not a disciplinary body.

99. In the First Independent Review, Recommendation 71 was that “the National Defence Act be amended to provide that persons seconded to or working for the military police are deemed to be military police for the purposes of Part IV of the National Defence Act.” In the Second Independent Review, Recommendation 51 was to the effect that subsection 250.19(1) of the National Defence Act should be amended to allow persons seconded to Military Police positions to make interference complaints.

9) The MPCC proposes that the National Defence Act be amended to expand the definition of “military police” for the purposes of Part IV of that Act to include persons seconded to Military Police positions.

E. Expand Availability of Informal Resolution

100. The MPCC supports a greater use of informal resolution to resolve complaints under Part IV of the National Defence Act. At present, section 3 of the Complaints Against the Conduct of Members of the Military Police Regulations precludes the use of informal resolution by the CFPM in respect of the following categories of conduct complaints:

1. excessive use of force;
2. corruption;
3. the commission of a service or civil offence;
4. policies of the Canadian Forces Military Police;
5. the arrest of a person;
6. perjury;
7. abuse of authority; or
8. conduct that results in injury.

101. In the MPCC’s view, these restrictions are overbroad and should be revisited. Many conduct complaints involve Military Police conduct that can be said to relate to Military Police policies (item (d) above). Moreover, the blanket prohibitions on informally resolving complaints regarding “excessive use of force” and “the arrest of a person” potentially cover situations that may not be so serious that they ought to preclude the possibility of informal resolution. Furthermore, the precluded category of complaints concerning “abuse of authority” can be construed as covering fairly minor complaints about the exercise of police enforcement discretion, such as in the issuance of parking or traffic tickets.

102. However, greater use of informal resolution of conduct complaints must not come at the expense of the intended oversight of the handling of Military Police conduct complaints. The MPCC must continue to be advised of all complaints, including those resolved informally, as well as the terms of such resolutions. Under subsection 250.27(6) of the National Defence Act, the CFPM must notify the MPCC of the fact that a complaint has been informally resolved, but the provision is silent about sharing the terms of the resolution. How a complaint was resolved is important because even where individual complainants may be satisfied with a resolution, broader systemic concerns may require further action; and the MPCC’s public interest mandate is not contingent on the complainant’s continued participation in the process (subsection 250.38(2) of the National Defence Act allows the Chairperson to investigate a complaint even if it has been withdrawn). The RCMP Commission moreover is expressly required to be provided with a copy of the terms and signified agreement for any informally resolved complaint (see subsection 45.56(3) of the Royal Canadian Mounted Police Act). The MPCC should be put in the same position.

103. The MPCC also considers that it should have the explicit power to informally resolve interference complaints. In a number of instances where interference complaints have triggered formal MPCC investigations and reports, issues of the lack of communication between the parties to the complaint and misunderstanding of command motivations and intentions, as well as of Military Police duties and responsibilities, clearly contributed to the filing of the complaint. An opportunity in appropriate cases for informal discussion between the affected parties could increase mutual understanding and appreciation of roles, responsibilities and intentions, and possibly avoid the need for formal investigations and findings in some cases.

104. Support for the MPCC’s position on informal resolution can be found in the report of the Second Independent Review. Recommendation 52 of that report reads: “The categories of matters not eligible for informal resolution should be reduced. With respect to complaints informally resolved, I recommend the MPCC be advised of the terms of the informal resolution.”

10) The MPCC proposes that section 3 of the Complaints About the Conduct of Members of the Military Police Regulations be amended to reduce the categories of conduct complaints for which informal resolution is precluded.

11) The MPCC proposes that it be notified of the terms of any informal resolutions of conduct complaints.

12) The MPCC proposes that it be expressly authorized to have recourse to informal resolution in respect of interference complaints.

F. Time Limits for Requesting a Review and for Providing the Notice of Action

105. Pursuant to section 250.2 of the National Defence Act, there is a time limit of one year (after the events giving rise to the complaint) for a person to make a conduct or interference complaint, which can be extended by the Chairperson when considered reasonable in the circumstances. However, there is no time limit for requesting a review of a conduct complaint following the CFPM’s disposition. The MPCC considers that the stipulation of a default time-limit for requesting a review of the CFPM’s disposition of a conduct complaint under section 250.31 of the National Defence Act would be appropriate, subject to the MPCC Chairperson’s discretionary authority to extend any such time limit, where it was considered reasonable to do so.

106. Given the mobility of potential complainants and subjects in the Canadian Armed Forces, and their liability to be deployed around the world for months at a time in difficult and dangerous environments, a relatively generous default time limit would be appropriate, relative to, for example, the 30-day deadline for seeking judicial review from a decision of a federal board or tribunal under subsection 18.1(1) of the Federal Courts Act. Subsection 45.7 (1) of the Royal Canadian Mounted Police Act requires a complainant who is not satisfied with a decision of the Force concerning their complaint to refer the complaint to the RCMP Commission within 60 days, if they want it to be reviewed.

107. Both the First and Second Independent Reviews endorsed the idea of a time limitation on requests for reviews. In Recommendation 66 of the First Independent Review, former Chief Justice Lamer suggested both the complainant and the subject would have 60 days to request a review. If a review was not requested within that period, the case would be deemed closed. In Recommendation 53 of the Second Independent Review, former Justice Lesage held that there ought to be a time limit of 90 days for requesting a review of a conduct complaint after it has been investigated by the CFPM. The Commission recommends a 90-day time limitation.

108. Another stage of the process where timeliness is presently unregulated is the issuance of the Notice of Action in response to the MPCC’s Interim Report. The MPCC is unable to proceed to its Final Report and conclude its process without having first considered the Notice of Action.

109. It is the CFPM who prepares the Notice of Action in response to the MPCC’s Interim Reports in the case of all conduct complaints, except where the CFPM himself or herself is a subject of the complaint. The Chief of the Defence Staff is responsible for the Notice of Action for conduct complaints where the CFPM is a subject of the complaint,^{Note 39} and for all interference complaints where the subject of the complaint is a member of the Canadian Armed Forces.^{Note 40} Where the subject of an interference complaint is a senior official of the Department of National Defence, the Deputy Minister is responsible for the Notice of Action.^{Note 41} Finally, where the subject of an interference complaint is either the Chief of the Defence Staff or the Deputy Minister, the review of the MPCC Interim Report and the preparation of the Notice of Action falls to the Minister.^{Note 42}

110. A number of details would need to be worked out in order to implement such a time limit for the production of the Notice of Action: the length of the permitted delay; whether the time limit should be the same for all the officials who are required to produce Notices of Action (or if the more senior departmental officials – the Chief of the Defence Staff, the Deputy Minister and the Minister – should automatically have a longer deadline); whether there should be the possibility of obtaining an extension of the time limit from the MPCC; and, what should be the consequences for a failure to comply with the deadline. However, the priority for purposes of this review should be on establishing the principle of a deadline for production of the Notice of Action, in order that representatives of the overseen police service cannot unnecessarily delay the MPCC’s Final Report. The Commission recommends a 90 day time limit for the production of the Notice of Action subject to extension by the Chairperson. The Commission is of the view that where the time limit is not adhered to and no request to extend is received, that the Commission be permitted to issue its Final Report.

111. The potential negative consequences of not requiring a Notice of Action to be furnished within a certain period of time can be seen in what has happened with the RCMP Commission. Similar to the MPCC situation, the Royal Canadian Mounted Police Act does not set a time limit on the Commissioner of the RCMP’s response to RCMP Commission interim reports.^{Note 43} In the RCMP Commission’s 2019-2020 Annual Report, the Chairperson writes of her dismay about the length of time that it takes for the Commissioner of the RCMP to provide a response to RCMP Commission interim reports, with the average length of time for a response having risen to 17 months (the CFPM’s normal delay is nowhere near this length). This issue is of significant concern to her, as lengthy delays serve to obscure transparency, dilute the effects of findings and reduce or eliminate the value of recommendations.^{Note 44} The Chairperson goes on to say that Canadians have a right to know if the RCMP Commission's findings and recommendations have been accepted and if RCMP policies, procedures and training have been adjusted as a result.

13) The MPCC proposes that a 90 day time limit for requesting a review of a conduct complaint, subject to extension by the MPCC Chairperson, be adopted.

14) The MPCC proposes that a 90 day time limit be imposed for the production of the Notice of Action, subject to extension by the MPCC Chairperson. In the absence of a Notice of Action within the stipulated time frame or an application to extend, the MPCC may proceed to issue its Final Report.

G. Chair-Initiated Complaints

112. The MPCC believes that it has the implicit authority to initiate complaints on its own authority by the fact that “any person” pursuant to 250.18 may file a conduct complaint. The Commission seeks greater clarity on this important matter and is requesting explicit authority to do so which is in line with the MPCC’s ‘sister’ organization, the RCMP Commission.

113. From time to time, issues arise in the news media which cast military policing in a negative light. Yet, for whatever reason (lack of awareness of the complaints process, e.g.), those involved in the events may not bother to file a complaint. This is rather unsatisfactory from the MPCC’s perspective, given that, as we see it, our mandate is to help support public confidence in the military police. Important issues about military policing may be raised in the public domain, issues which could benefit from treatment by an independent and impartial body. Yet arguably, the MPCC must depend on complaints from individuals in order to become involved in a situation where MP actions have been impugned.

114. An oversight body has a greater capacity to discern systemic problems than does an individual complainant. An individual complainant may perceive a problem in one event but the tribunal may determine that this problem is common to numerous events. It is by means of a tribunal-initiated complaint that a wider policy or training issue can be examined.

115. Currently, the scope of the Commission Chairperson’s ability to call for a public interest investigation is not as clear as it is for some other tribunals. Subsection 250.38(1) of the National Defence Act (NDA) can be read as requiring there to be an existing complaint before the Chairperson can call for a public interest investigation. This impression is reinforced by subsection 250.38(3) of the Act which requires the Chairperson to notify the complainant and the subject of the complaint if there is to be a public interest investigation. On the other hand, as noted at the outset, since “any person” may make a conduct complaint under subsection 250.18(1) of the Act, the Chairperson – or any other personnel of the MPCC – may well technically be allowed to make a conduct complaint.

116. Further, the NDA Part IV complaints process does not make any particular accommodation for a Chairperson-initiated complaint. It would be treated like any other complaint, which could be problematic. For instance, it is arguable that the provisions requiring that informal resolution be considered and allowing the CFPM to screen out certain complaints as being inappropriate for the complaints process (respectively, NDA subsections 250.27(1) and 250.28(2)) should not apply to an MPCC Chairperson-initiated complaint. Yet under the current NDA Part IV process, the Chairperson’s complaint would be treated like that of “any person”.

117. This is in contrast to the situation with the Chairperson of the RCMP Commission. In addition to being expressly authorized to initiate a complaint, pursuant to subsection 45.59(1) of the Royal Canadian Mounted Police Act (RCMP Act), the RCMP Act exempts CCRC Chairperson-initiated complaints from RCMP Act section 45.61, which is the equivalent of NDA subsection 250.28(2) (which provides for the screening out of complaints that are deemed frivolous and vexatious, etc.).

118. In British Columbia, the police complaint commissioner can order an investigation if information comes to its attention concerning conduct that, if substantiated, would constitute misconduct, regardless of whether a complaint is made.^{Note 45}

119. Other non-policing oversight bodies also have a clear self-initiating complaint power.^{Note 46}

120. The power to initiate complaints is common to the office of an ombudsman and, according to a 2007 task force, was recommended as a feature of independent RCMP oversight in order to avoid having to create a separate ombudsman service.^{Note 47}

121. An entirely complainant-driven system depends on those complainants being willing to come forward and put their name on a complaint. This may be asking too much if it is a question of a subordinate complaining about their superior, particularly in a hierarchical organization such as the Canadian Armed Forces.

122. A concrete example of the importance of clarifying the Chairperson’s power to initiate conduct complaints is the Commission’s first self-initiated complaint (file MPCC 2020-013 (MPCC Registrar)). The subject matter of this public interest investigation came to the attention of the Commission by means of an interference complaint. While looking into the facts of that complaint, a Commission investigator was alerted to important questions that could be raised about the conduct of a number of Military Police members and their supervisors. Yet that conduct was not the subject of a complaint before the Commission, nor was it ever likely to be brought before the Commission. One of the potential complainants was medically incapable of launching a complaint while the other potential complainant had been left vulnerable by events, such that it would have been highly unlikely that this person would have brought the matter forward. The result was that the Commission had knowledge of potential misconduct by members of the Military Police but no complaint from those most affected. In order to carry out its mandate to investigate the conduct of the Military Police in carrying out policing duties or functions, the Commission for the first time, has decided to launch its own conduct complaint.

123. Chairperson-initiated complaints are certainly in keeping with the scope of authorities granted to the Commission by Parliament. Subsection 250.18(1) of the National Defence Act states that “any person” may make a conduct complaint, while subsection 250.18(2) of the Act states that a conduct complaint may be made whether or not the complainant is affected by the subject-matter of the complaint. Moreover, when the Commission receives a conduct complaint, subsection 250.32(2) of the National Defence Act empowers the Chairperson to investigate any matter relating to the complaint. At any time the Chairperson may declare a complaint to be a matter of public interest and can even continue a public interest investigation if the complaint has been withdrawn.^{Note 48}

124. So Parliament has already granted to the Commission the power to act in the public interest. It would be consistent with this power for Parliament to grant the Chairperson the express power to self-initiate complaints, as it has done for the RCMP Commission. Such a move would assure the legitimacy of MPCC-initiated complaints, and would provide the opportunity to make necessary accommodations to the complaints process, as described above.

125. In the First Independent Review, former Chief Justice Lamer stated: “It is in keeping with the goal of independent oversight that the MPCC Chairperson have the authority to initiate an independent conduct complaint” while then cautioning that this authority must be used judiciously. Recommendation 62 of the Lamer Report read that “the National Defence Act be amended to allow the Chairperson of the Military Police Complaints Commission to submit a conduct complaint for investigation by the Canadian Forces Provost Marshal where the Military Police Complaints Commission Chairperson is satisfied that there are reasonable and probable grounds for such an investigation.”

15) The MPCC proposes that Part IV of the National Defence Act be amended to make express provision for MPCC Chairperson-initiated conduct complaints and that National Defence Act subsections 250.27(1) and 250.28(2) should not apply to such complaints.

H. Additional Discretionary Authorities for Disposing of Complaints

1) Authority to Screen Out Conduct Complaints at the Review Stage

126. In the case of Military Police conduct complaints, it is the CFPM who, absent an MPCC declaration of public interest, is charged with disposing of them in the first instance.^{Note 49} One of the options given to the CFPM for disposing of a complaint is to decline to deal with it on the basis that:

1. the complaint is frivolous, vexatious or made in bad faith;
2. the complaint is one that could more appropriately be dealt with according to a procedure provided under another Part of this Act or under any other Act of Parliament; or
3. having regard to all the circumstances, investigation or further investigation is not necessary or reasonably practicable.^{Note 50}

Such a disposition is reviewable by the MPCC at the request of the complainant.^{Note 51}

127. With respect to interference complaints, the MPCC has the same screening authority that the CFPM has regarding conduct complaints.^{Note 52} The MPCC does not, however, have the authority – at least not explicitly – to screen out conduct complaints at the review stage.

128. By the time a complaint is at the MPCC review stage, the CFPM should be deemed to have already considered and rejected the application of the above-noted screening criteria to the complaint. This does not, however, diminish the need for the MPCC to be able to revisit the issue at the review stage. New information generated by the CFPM’s investigation, or the contents of the complainant’s request for review, may cast the complaint in a different light from what it seemed to be at the time of its initial submission. In such cases, the strictures against wasting time and resources on complaints that do not merit them still apply.

16) The MPCC proposes that it be given the authority to screen out conduct complaints at the review stage.

2) ‘Satisfied’ Reports

129. Another category of cases which warrants more limited expenditure of effort and resources on the part of the MPCC would be where – after having reviewed the complaint, the CFPM’s treatment of the complaint, and the request for review – the MPCC is satisfied with the CFPM’s disposition of the matter, without seeing the need to take any further steps. In such cases, the MPCC should have the option of concluding the complaint review with a brief report or letter indicating its satisfaction with the CFPM’s disposition of the complaint. This ‘satisfied’ report would be the MPCC’s final disposition on the complaint and would avoid the additional time and effort in having to produce an Interim Report, and then wait for the Notice of Action before producing the Final Report.

130. At the RCMP, as with the MP complaints process, complaints about the conduct of a member are first considered by the Force itself. If a complainant is not satisfied with the Force’s disposition of their complaint, they may bring it forward to the RCMP Commission for review. Under subsection 45.71(2) of the Royal Canadian Mounted Police Act, if, after reviewing a complaint, the RCMP Commission is satisfied with the Commissioner’s report, it prepares and sends a report in writing to that effect to various parties, including the complainant and the member or other person whose conduct is the subject matter of the complaint. The MPCC believes that it should be afforded a power to express its satisfaction with a report of the CFPM that is similar to that already afforded to its ‘sister’ oversight body.

17) The MPCC proposes that it be authorized to dispose of a conduct complaint review by issuing a report indicating its satisfaction with the CFPM’s disposition of the complaint.

3) Authority to Remit Conduct Complaint back to the CFPM for Further Investigation

131. Part IV of the National Defence Act makes it clear that the CFPM is to have the primary responsibility for dealing with conduct complaints. At the review stage, the MPCC “may investigate any matter relating to the complaint.”^{Note 53} However, the clear intent of the legislation is that, in the normal case, the MPCC should be able to complete its review of a conduct complaint without conducting a de novo investigation. In practice, however, it regularly occurs that the CFPM’s investigative effort has been constrained by an unduly narrow interpretation of the complaint or of its mandate relative to the complaint.

132. In situations where the MPCC disagrees with the CFPM’s more limited understanding of a complaint, its only option at present is to itself fill the void left by the CFPM’s investigation – or lack thereof – with its own investigation. However, when done routinely, this approach can lead to the MPCC expending greater resources – including time, as well as person-hours ‑ in fulfilling its review mandate than what Parliament intended.

133. A solution to this problem would be to give the MPCC the authority, at the review stage, to remit a conduct complaint, or an aspect thereof, back to the CFPM for further investigation. Where the MPCC chose to remit only part of complaint back to the CFPM, it would have the option of proceeding to review the unremitted aspects of the complaint.

18) The MPCC proposes that it be given the authority, at the review stage, to remit a conduct complaint back to the CFPM with directions as to further areas or avenues of investigation.

4) Discretion to Continue to Deal with a Complaint Despite Withdrawal

134. The way that Part IV of the National Defence Act is presently constructed, the complainant has the unrestricted right to withdraw a complaint by simply sending a written notice to this effect to the MPCC Chairperson.^{Note 54} After this point, the only means by which the MPCC can continue to address the complaint is by invoking its public interest investigation or hearing authorities.^{Note 55}

135. This situation is not entirely desirable. There are reasons other than the public interest significance of a complaint which can militate in favour of the MPCC completing a conduct complaint review or interference complaint investigation. An obvious one would be situations where the MPCC is concerned that a decision to withdraw a complaint has been improperly influenced by external pressures, inducements, or considerations not based on the public interest. Another reason to do so, would be that the withdrawal has come so late in the process that it would represent a considerable waste of the MPCC’s resources and efforts if it were not allowed the option of completing its treatment of the complaint. Indeed, this very situation arose in a recent case (MPCC 2017-026).

136.  The MPCC considers that it should not be necessary for it to dilute its conception of public interest significance, per subsection 250.38(1) of the National Defence Act, in order to retain authority to complete a complaint. It should also be noted that the RCMP Commission already has the authority to investigate a complaint even though it has been withdrawn. Subsection 45.55(5) of the Royal Canadian Mounted Police Act states that despite the withdrawal of a complaint, it may be the subject of an investigation, review or hearing conducted by the RCMP Commission.  

19) The MPCC proposes that it be given the authority, when it considers it appropriate in the circumstances, to complete its treatment of a conduct or interference complaint notwithstanding that the complainant has purported to withdraw the complaint.

I. Extension of Members’ Terms Where Cases Ongoing

137. The MPCC believes that it is inefficient and unfair to parties to have the Commission Member(s) assigned to their case changed part-way through, or to have to redo certain stages of the process, in order to deal with the untimely expiration of a Member’s term. The MPCC considers that it would be fair, efficient and appropriate for Members’ terms to be automatically extended, at the Chairperson’s discretion, in respect of any outstanding files that are still pending before them at the time of the expiration of their terms. This issue is a particular concern in the context of public interest hearing files and other complex complaint investigations which are at an advanced stage at the end of a Member’s term.

138.  Such provision would also enhance the integrity of the MPCC’s processes by countering any possible perception of political interference. A precedent at the federal level for such a legislative provision may be found in subsection 8(3) of the Canada Transportation Act, which authorizes the Chair of the Canadian Transportation Agency to allow a Member of that Agency to finish disposing of any matter that was before him or her on the expiry of that member’s term of office.

139. The extension of members’ terms where cases are ongoing was supported in both the First and Second Independent Reviews. Recommendation 70 of the First Independent Review was to the effect that the National Defence Act be amended to provide authority to members of the MPCC whose terms have expired to complete their caseloads. In the Second Independent Review, Recommendation 55 stated that the term of MPCC Members should be automatically extended in respect of complaint files assigned to them prior to their notification that their term is not to be renewed.

20) The MPCC proposes that the terms of Commission Members be extendable, at the discretion of the Chairperson, in respect of complaint files pending before them at the time of the expiration of their terms.

J. Expanding Scope of Interference Complaints

140. At present, an interference complaint may only be made against alleged improper interference with a “military police investigation.”^{Note 56} While the concept of an “investigation” can be construed broadly, it is important that the legislation not convey the impression that improper interference with other policing functions is appropriate, or may not warrant a complaint to the MPCC. Interference with the handling of evidence, attempts to improperly interfere with Military Police decisions relating to the laying of charges, or attempts to interfere with a Military Police member’s intended testimony in court proceedings, for example, could all impact significantly on the ability of the Military Police to carry out its duties.

141. The Part IV interference complaints process should be available to address situations that may be considered beyond the bounds of an investigation. The independence and integrity of Military Police members’ policing discretion and judgment must be protected in all phases of the process.

142. An expansion of the scope of an interference complaint gained the support of former Justice Lesage in the report of the Second Independent Review. Recommendation 51 of that report states, in part, that subsection 250.19(1) of the National Defence Act should be amended to include improper interference with a policing duty or function.

21) The MPCC proposes that the scope of an interference complaint as set out in subsection 250.19(1) of the National Defence Act be amended to allow for complaints about improper interference with any policing duty or function carried out by a member of the Military Police.

K.  CFPM to Report back to MPCC on Implementation of Recommendations

143. The key external accountability feature of the MP complaints process, for the Military Police as an organization, is that the CFPM must accurately advise the MPCC of the measures he or she is taking, or planning to take, in response to a complaint in the Notice of Action, and that the MPCC then is able to assess this response in its Final Report. In order to properly hold the CFPM accountable, the MPCC must be able to rely on the CFPM implementing his or her commitment in the Notice of Action. The MPCC must be able to assume, absent notification to the contrary, that accepted recommendations have been, or will be, implemented. If for some reason an accepted recommendation is not implemented, or not implemented as proposed and accepted, then the MPCC will need to be aware of this, and the reason, when contemplating future recommendations, in order to ensure that its recommendations are informed and useful. Accurate information about MPCC recommendation implementation is also important in allowing the MPCC’s impact on military policing to be assessed.

144. Naturally, the MPCC is not in a position to track the implementation of the commitments made by the CFPM as to changes in MP orders, policies, and training, etc. As such, it makes sense to impose a duty on the CFPM to provide details to the MPCC on the implementation of its accepted recommendations, both in terms of timing and content.

145. The present CFPM has been very diligent about keeping the MPCC updated on the actions taken in response to a complaint, whether as a result of one of our recommendations or his own initiative. However, keeping the MPCC informed in this manner should not depend on the good will of the incumbent CFPM.

22) The MPCC proposes that the CFPM be required to advise the MPCC on the timing and manner of the implementation of the MPCC’s recommendations as accepted by the CFPM.

L.   Legislative Consultation with MPCC

146. While the MPCC is considered to be part of the National Defence Portfolio, that status does not mean that it has any input on the decisions made concerning its governing legislation. The MPCC has had no ability to internally (i.e., within the portfolio) advance its own legislative proposals, or even to argue for adoption of previous Independent Review recommendations (to be clear, the MPCC has no control over which Independent Review recommendations have been implemented versus those which have not), beyond a direct appeal to Parliament and the public. The MPCC has done this on occasion, through its Annual Report and other publications as well as parliamentary appearances. The MPCC has never been consulted on the various bills that have been submitted to implement previous independent legislative reviews, or to otherwise amend Part IV of the National Defence Act: Bill C-7, Bill C-41, Bill C-45, Bill C-15. Even the commencement of the Independent Review process was kept from us until the last minute, despite our regular inquiries.

147. However, the lack of any mechanism or practice of prior consultation with the MPCC before legislation affecting it is tabled is problematic, for the Department of National Defence, as well as for the MPCC. In order to draw attention to possible improvements to legislation the MPCC is forced to go public after the fact and put itself in the position of challenging the Department’s legislative agenda.

148. The lack of consultation of the MPCC on bills that concern how it operates runs counter to such government policies as the Cabinet Directive on Law-Making. This document states that the decision to address a matter through a bill or regulation is made by Cabinet on the basis of information developed by a Minister's departmental officials. To provide this information, a department is urged to engage in consultation with those who have an interest in the matter. In the case of a bill, the principal means for conveying this information is a Memorandum to Cabinet, which should address the type of public consultation, if any, that the sponsoring Minister has held or expects to hold.

149. A companion government-wide policy document is the Cabinet Directive on Regulation. This document states that departments and agencies are responsible for identifying stakeholders affected by regulations, and meaningfully consulting and engaging with them throughout the development, management, and review of regulations. In doing so, they should follow the Government of Canada’s policies and guidance for consultation and engagement. These directives should be applied in the case of proposed bills or regulations that affect the Commission. A process of meaningful consultation of Commission staff would ensure that those with the greatest knowledge of how the Commission operates have an input into proposals that may affect how it carries out its mandate.

150. This Department’s practice, at least with respect to the MPCC, appears to be out of step with best practices in terms of legislative development.

23) The MPCC proposes that the Department of National Defence be required to consult with the MPCC prior to tabling legislation, or promulgating regulations, specifically affecting the MPCC or Part IV of the National Defence Act.

A. CFPM-VCDS Reporting Relationship

151. Subsection 18.5 of the National Defence Act establishes in statute the reporting relationship between the CFPM and the Vice Chief of the Defence Staff (VCDS). It is entirely appropriate that the CFPM report to, and be accountable to, a very senior officer of the Canadian Armed Forces for the overall conduct of military policing. This has been the case since the establishment of the office of CFPM in 1997. However, prior to the 2013 amendments contained in Bill C-15, it was deemed inappropriate for the VCDS to issue directions in respect of a particular MP investigation. This prohibition was formalized in writing in the 1998 VCDS-CFPM Accountability Framework which was signed by the VCDS and CFPM of the day.

152. This Framework, while confirming the authority of the VCDS to “give orders and general direction to the CFPM to ensure professional and effective delivery of policing services…”, also stipulated that “[t]he VCDS shall not direct the CFPM with respect to specific military police operational decisions of an investigative nature….”, and also that “[t]he VCDS will have no direct involvement in individual ongoing investigations but will receive information from the CFPM to all necessary management decision making.” The Framework went on to say that the CFPM would monitor individual investigations and provide a general overview of investigations to the VCDS, but it was in the purview of the CFPM to decide what information to share with the VCDS.

153. This aspect of the Framework was abrogated by the adoption of subsection (3) of NDA section 18.5, and the VCDS became expressly authorized to direct the CFPM in respect of specific MP investigations. While this provision has yet to be invoked, it raises an obvious concern regarding the independence of police investigations. Not only does subsection 18.5(3) run directly counter to the Accountability Framework, but it also runs counter to Canadian law and practice regarding police investigations generally. In its 1999 decision in R. v. Campbell, the Supreme Court affirmed that when engaged in the investigation of offences, police officers are answerable only to the law and do not act on behalf of the broader government.^{Note 57} The Court’s statement that the principle of police independence in the conduct of investigations “underpins the rule of law,”^{Note 58} while significant in itself, is even more so in light of the fact that in its decision a few months before in the Quebec Secession Reference case, the same Court indicated that “the rule of law” was itself a binding unwritten constitutional principle.^{Note 59}

154. The Commission has consistently opposed the adoption of NDA subsection 18.5(3): in Bill C-45, then Bill C-41, and finally in Bill C-15 which was given Royal Assent in 2013. The Commission’s then-Chairperson made submissions to parliamentary committees studying the bill and appeared before the House of Commons Standing Committee on National Defence and Veterans Affairs (SCONDVA) on this issue, a copy of which is attached for your reference, along with an independent research opinion by Professor Kent Roach, which was commissioned by the MPCC. (Annex C – MPCC Submissions)

155. The authority conferred upon the VCDS is specifically and exclusively aimed at the heart of military policing duties, i.e., the investigation of offences. The fact that Military Police members have a dual role as police officers and as soldiers does not diminish the applicability of the legal principle of police independence to the Military Police when conducting law enforcement investigations. If it were otherwise, then questions must be raised as to why Parliament created the interference complaint mechanism in the 1998 National Defence Act amendments that established the Commission.

156. It is true that the First Independent Review Authority recommended that the position of CFPM be established and described in the NDA, like other key figures in the military justice system.^{Note 60} However, Chief Justice Lamer did so out of concern for protecting the CFPM’s independence “from influence or interference.”^{Note 61} The Chief Justice reviewed the 1998 VCDS and CFPM Accountability Framework, in part to get a better idea of the scope of the CFPM’s duties and role. The only concern he expressed with the Framework was that its non-legislative status provided insufficient protection of the CFPM's policing independence, and that it did not “set out clearly Parliament’s intent in creating the role of Provost Marshal... [which] leads to practical difficulties when interpreting laws and regulations regarding the Provost Marshal.”^{Note 62} Chief Justice Lamer said nothing in his report about the need for the CFPM to be subject to direction in specific investigations by the VCDS or anyone else, quite the contrary. Therefore, it can in no way be maintained that NDA subsection 18.5(3) specifically was created in order to implement former Chief Justice Lamer’s recommendations.

24) The MPCC proposes that subsection 18.5(3) of the National Defence Act, authorizing the VCDS to issue directions to the CFPM in respect of specific military police investigations, be repealed.