Addendum to Final Report - MPCC 2016-040 Concerning the Beamish Public Interest Investigation

On November 28, 2024, the Military Police Complaints Commission (MPCC) received a response from the Minister of National Defence to two recommendations included in its August 31, 2021 Final Report. The MPCC had issued its Final Report in this case after receiving the then-Canadian Forces Provost Marshal (CFPM)’s notice of action, in response to its Interim Report of June 4, 2021. The CFPM deferred responding to recommendations #3 and #5 to the Minister, and the MPCC had noted in its Final Report that once a response from the Minister is received, it will be published along with any comments by the MPCC.

Response from the Minister to MPCC Recommendation #3 and #5

Recommendation #3 reads as follows:

The Military Police Complaints Commission recommends that the Minister of National Defence support the Commission’s access to relevant solicitor-client privileged information in appropriate cases on terms equivalent with those granted to the Civilian Review and Complaints Commission for the RCMP.

Recommendation #5 reads as follows:

The Military Police Complaints Commission recommends that the Minister of National Defence support the Commission’s addition to the list of designated investigative bodies in Schedule II of the Privacy Regulations.

In his response letter dated November 28, 2024, the Minister wrote:

“Recommendation #3 pertains to the access to solicitor-client privilege information while Recommendation #5 pertains to adding the Military Police Complaints Commission of Canada to the list of investigative bodies in Schedule II of the Privacy Regulations.
These recommendations are highlighting issues that have been recommended by Justice Fish in the Third Independent Review of the National Defence Act [IR3]. These two recommendations are currently being addressed as part of the IR3 recommendations, and they will be actively examined in the context of the Comprehensive Implementation Plan.”

The MPCC therefore considers recommendations #3 and #5 as having not been accepted at this stage.

The MPCC reiterates the importance of recommendation #3. As noted by Justice Fish in his Independent Review 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 relates to legal advice sought and received by military police members in performing their policing duties or functions. It is often critical to assessing and justifying actions taken by the military police, who are the subjects of complaints before the MPCC.

The MPCC’s ability to provide effective oversight of police conduct can be impaired by not being granted access to this information when it is necessary for the determination of the complaint. For instance, in cases where the MPCC must verify whether a military police member provided an accurate and reasonable description of the evidence to a prosecutor, and whether the member properly considered the ensuing legal advice from the prosecutor. In such cases, lacking access to solicitor-client privileged information hinders the MPCC’s ability to fully and effectively fulfill its obligations as an oversight body.

The MPCC equally reiterates the importance of recommendation #5, which would remedy a number of disclosure concerns. Because the military police are not administratively separate from the broader Canadian Forces/Department of National Defence, certain relevant documents or records can end up beyond the control of the military police chain of command. In cases where the relevant materials fall within the control of units or offices of the Canadian Forces/Department of National Defence more broadly, these non-military police units or offices may be unable to disclose them to the MPCC since they do not consider themselves bound by the same disclosure obligations as the CFPM. The MPCC has been advised that access to such materials would often be possible if the MPCC were an investigative body designated for the purposes of paragraph 8(2)(e) of the Privacy Act. This provision allows for the disclosure of personal information to investigative bodies set out in Schedule II to the Privacy Regulations. Recommendation #5 is therefore a legislative fix that would allow the MPCC to have access to information that is relevant and necessary for it to fulfill its mandate as an oversight investigative body.

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