Addendum to Final Report - MPCC 2015-005 Concerning the Anonymous Complaint

On August 1, 2023, the Military Police Complaints Commission (MPCC) received a response from the then-Minister of National Defence to its February 26, 2021 Interim Report. In the interest of timeliness, the MPCC had issued its Final Report in this case on September 2, 2021, after receiving the Canadian Forces Provost Marshal (CFPM)’s notice of action in response to its Interim Report. However, the MPCC had noted in its Final Report that once a response from the Minister was received with respect to its recommendation #12, it would be published along with any comments the MPCC may have.

On October 28, 2021, the MPCC received a response from the CFPM to its Final Report in this matter. On June 20, 2022, the acting MPCC Chairperson wrote to the CFPM indicating that the MPCC continued to await a response from the Minister to one of its recommendations and may include the additional points he provided in his letter of October 28, 2021 regarding this matter when the MPCC publishes the Minister’s response to its recommendation #12.

Response from the Minister to MPCC Recommendation #12

Recommendation #12 reads as follows:

The Commission recommends that the Department of National Defence take steps to have the National Defence Act amended to include provisions regarding information similar to those found in Part VI (Civilian Review and Complaints Commission for the Royal Canadian Mounted Police) of the Royal Canadian Mounted Police Act.

In her response letter dated July 25, 2023 (received at the MPCC on August 1, 2023), the then-Minister wrote:

“To this end, Recommendation 79 of Justice Fish’s report calls for discussions to be conducted by the MPCC, the Judge Advocate General (JAG), the Director of Military Prosecutions, and the Canadian Forces Provost Marshal (CFPM) to consider the “circumstances when the Military Police Complaints Commission should be given access to solicitor-client privileged information, with appropriate limits and safeguards to avoid waiver of the privilege.” It also provides that “the discussions should examine options for consequential amendments to the National Defence Act.” As part of the implementation work already underway, I understand that your office, the Office of the JAG, and the CFPM have—since the date of Ms. McCormack’s letter—established a joint working group to discuss Justice Fish’s recommendations as they pertain to the MPCC, including Recommendation 12, and that standing meetings are now being held to engage on these matters.
In light of the above, I consider that this issue would be most effectively addressed for all concerned stakeholders in the context of the ongoing implementation of Justice Fish’s recommendations, and through the collaborative efforts of this working group.”

After reviewing this response letter, the MPCC Chairperson wrote to the current Minister of National Defence on September 11, 2023, and made the following comments:

“We understand from this response that the Minister does not accept the recommendation.
The working group mentioned by the Minister in her letter only met between July 2021 and June 2022, and did not ultimately bear fruit on the issue of MPCC’s access to solicitor-client privileged information in appropriate cases. Moreover, the MPCC has, over the last five years, repeatedly sought to engage with the Office of the Judge Advocate General and the Canadian Forces Provost Marshal on this issue, but these efforts have not yielded results. For example, on the issue of MPCC access to Crown briefs, the MPCC’s letters to the Canadian Forces Provost Marshal dated May 21, 2020, and to both the Canadian Forces Provost Marshal and the Judge Advocate General dated June 22, 2021 (letters attached), remain unanswered.Footnote 1
As noted by Justice Fish in his report: “there is a strong argument to be made that the MPCC should have access to solicitor-client privileged information where it is relevant to the determination of a complaint.”
Solicitor-client privileged information – that is, the legal advice sought and received by Military Police (MP) members in performing their policing functions – is often critical to assessing and justifying Military Police actions which are the subjects of complaints to the MPCC. The MPCC’s ability to provide effective oversight of police conduct is impaired when it is not granted access to the required relevant information.
Indeed, this approach prevents the MPCC from confirming that a member of the MP provided an accurate and reasonable description of the evidence to a prosecutor, or that the ensuing legal advice was properly considered by the MP member. This information is necessary for the MPCC to consider, particularly in those instances where the information provided to the prosecutors is at the core of the issue. As such, in the absence of the possibility to review this information, the ability of the MPCC to get at the truth is compromised, and its effectiveness as an oversight body is diminished.” (emphasis added)

Response from CFPM to MPCC Final Report

As mentioned above, on October 28, 2021, the CFPM sent a letter to the then-Interim Chairperson of the MPCC in response to the MPCC's final report in this matter. In his letter, the CFPM made the following additional points regarding the MPCC’s recommendations 8 to 10, which he had not accepted in his initial notice of action in response to the MPCC’s interim report in this matter:

“Recommendation #8: Not included within the original response, was the identification of training at the Canadian Forces Military Police Academy (CFMPA) which includes identifying conflicts of interest and lessons on ethics from a policing perspective. Confirmation and validation of the theory of these lessons are assessed through scenario-based situations. My response should have indicated “The resources available do not allow for the creation of a new training program.” I will reiterate this to the CFMPA to ensure the training on conflict of interest continues to remain a consistent component of Military Police/Military Police Officer (MP/MPO) training.
Recommendation #9: The Commanding Officer Canadian Forces National Investigation Service (CO CFNIS) has the resources available to provide many options in terms of capabilities. With six Regional Offices, spread across Canada, the CO CFNIS has the ability to draw from one and deploy to another Area of Operation, both in Canada and overseas. Additionally, and specifically, is the High Readiness capability of CFNIS. Aside from the standard readiness of every CFNIS member, CFNIS has two individuals identified at all times who fill a three-month rotation. These members are identified officially within a database, have the required equipment and this capability is defined by a signed formal document and has been in effect since 2020. Prior to this, was a CFNIS High Readiness Standard Operating Procedure which outlined the capability. This team provides the CO CFNIS and myself with the capability to deploy a team, on short notice, in the event the decision is made which requires CFNIS investigators to assume/commence a file wherein there are no local MP or in the event a team with no bias (real or perceived) is required.
Recommendation #10: I believe the current policy is sufficiently informative and is commonly known. The assumption of an investigation by another police service, although possible and accomplished through direct liaison of myself with that police service, is challenging. No other police service is authorized to conduct investigations into service offences (offences under the National Defence Act). Therefore, although possible, this does not occur often and would likely only be in cases wherein Criminal Code offences are considered.
An observation letter has been sent to the section of concern within the Canadian Forces Military Police Group regarding Recommendation #2 and a plan in regard to note-taking is being developed regarding Recommendation #3.”
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