Louise Cobetto
Chairperson
Military Police Complaints Commission

at the
Annual Symposium
Canadian Forces Military Police Branch

Cornwall, Ontario
February 26, 2003
Electric Theatre
1300 hrs to 1345 hrs

Introduction

I have been looking forward to this opportunity to speak with all of you for some time, and I must thank you, Colonel Cooper, for including me as a speaker at the symposium.

Before I go any farther, allow me to introduce my colleagues: Mr. Bob MacDougall is the Executive Director of the Commission, Ms. Johanne Gauthier is the General Counsel and Director of Legal Services and Mr. Tom Pedersen is our Director of Operations.

It has been a full three years since I spoke at your symposium in 2000.

A few things have changed. I am already on my second Provost Marshal.

The last time I had the opportunity to speak with Canadian Forces Military Police in this way, the Commission was barely three months old. We were just getting to know one another and, as I recall, most of my remarks that day dealt with the mandate of the Commission, and what you could expect from us.

Since we know one another a little better now, I won't spend so much time on how the Commission works. Rather, I would like to talk about some of what I believe each of our organizations has accomplished since civilian oversight came to the Military Police, and where we go from here.

The Canadian Forces

You have pledged yourselves to the service of Canada, to the protection of its citizens and its democracy, and to the defence of peace and freedom wherever your duty may take you.

This past year, as your comrades fell in Afghanistan, we were reminded again of the terrible price so many have paid for the freedom and security we enjoy in our country.

We live in uncertain times, and we cannot predict when the men and women of the Canadian Forces may again be called to the service of global security. Whatever may happen, be assured you and those who serve with you are the pride of all Canadians.

The Role of the Commission

• Because it wanted to ensure the Canadian Forces would continue to be an object of pride for Canadians; and,
• Because it wanted to ensure Canada's Military Police service would always meet the highest standards of professionalism, integrity and independence.

This is our motivation, and a goal we all share. It is set out in the vision statement of the Commission, and I am pleased - but in no way surprised - to see it is a central part of the Canadian Forces Military Police Strategic Plan.

I must congratulate Colonel Cooper and her team for the effort and the thought that has clearly gone into your five (5) year Strategic Plan, entitled: Serving You. To set out a clear vision and clear goals, and the means by which they can be achieved is important to the success of any organization.

I believe, together, we are making progress toward our goals.

At the end of March, I will be submitting the Commission's 2002 Annual Report to the Minister of National Defence for tabling in Parliament.

During the year 2002, the Commission's review of a conduct complaint led to the modification and improvement of Military Police Policies and Technical Procedures Directives with respect to surveillance.

As a result of another review by the Commission, Military Police training and policies in the handling of civil matters have been amended, and now follow practices similar to those employed by other major Canadian police services.

This role - the role of the Commission to recommend changes in policies based on best police practices and the rule of law - is a fundamental goal of civilian oversight in general and of the Commission in particular.

The legislation provides the tools we need to do this. The process for the review of complaints is open and transparent, as it must be. The Commission issues its findings and recommendations in an interim report, and the Provost Marshal or the Chief of the Defence Staff as the case may be, provide a response in a Notice of Action. Neither the Provost Marshal nor the Chief of the Defence Staff is obliged to accept my recommendations.

Nonetheless, I believe it is a measure of our mutual success that, since the inception of Part IV of the National Defence Act, barely a handful of the recommendations stemming from my reviews and investigations have not been accepted.

That the Commission has enjoyed the acceptance it has says a great deal about the willingness of the Canadian Forces Military Police to take up the challenge of a very fundamental change.

As you know, the Canadian Forces Military Police is one of the last police services in Canada to have independent civilian oversight, and the relationship between our two organizations, while maturing, is still in what I would call its formative stages.

By its very nature, the relationship between the overseer and the overseen will be difficult at times. There will be, as there have been already, times when we find we cannot agree.

Nonetheless, I am sure we all understand that disagreement can be a healthy part of the learning process. The National Defence Act provides a forum for such discussion. From the Interim Report, to the Notice of Action and the Final Report, there is allowance for reasoned debate, and a place for both points-of-view.

Making proper use of this forum is crucial to building a strong, professional relationship, and I must thank you, Colonel Cooper and your team, for the investment of time and effort you have made in building a good working relationship with those of us at the Commission.

We should feel free to be frank with one another - the issues that we deal with are far too important for the mincing of words.

It is in the spirit of frankness - and with respect - that I would like to take a few moments to address some issues that are of concern to the Commission.

Outstanding issues

To be effective, and to be seen as effective by the population it serves, a police service must be independent. It must also be seen to be independent.

That is why I have been - and will continue to be - rather insistent on the issue of solicitor-client privilege, and the designated authority to waive this privilege.

When a civilian police agency consults Crown prosecutors, the exchange between them -advice, facts, and legal opinions - is protected by solicitor-client privilege. This solicitor-client privilege belongs to the police. In other words, as the client, the decision to waive solicitor-client privilege rests with the police.

In the Canadian Forces, current administrative procedures do not allow the Provost Marshal the same option; the decision to waive solicitor-client privilege is made by the Minister of National Defence.

For me, this goes to the heart of the independence of the Military Police. It is a well-established principle that police, in the performance of their policing functions, are and must remain independent from the Executive Branch of Government.

In saying this, I am in no way implying that the Minister of National Defence is directing investigations by the Military Police. I am saying that the public perception of the independence of a police service is crucial to fostering confidence and trust in the justice system.

I cannot over-emphasize the importance of this issue to the Commission, and to me personally. This is an issue on which there can be no compromise. Military Police, when performing policing duties and functions, must be independent.

2) Interference

The same standard must be applied where questions of interference are concerned.

For Military Police, this will always be a challenge.

Military Police members are responsible to their Military Police superiors, and they are also to respect the Chain of Command. It is said "no one can serve two masters," yet that is precisely what we expect Military Police to do.

My colleagues at the Commission and I appreciate the challenge members of the Military Police undertake in playing this dual role, and the sometimes difficult situations and decisions you can face as a result.

Whether we like it or not, this situation means that, in some eyes, the freedom from interference for Military Police could be an issue. Thus, extra effort must be made to demonstrate that Military Police truly are free from interference in the performance of their policing duties, and in the conduct of their investigations.

Indeed, concern over interference with Military Police investigations was a primary consideration in the creation of the Commission.

It is the rationale for section 250.19 of the National Defence Act. This is the section that allows Military Police members to submit complaints to the Commission when they believe a member of the Canadian Forces or a senior official of the Department of National Defence has interfered or attempted to interfere with their investigations.

As the Act currently reads, only the Military Police member conducting the investigation or the Military Police member supervising the investigation can file interference complaints.

It is essential that Military Police members are familiar with their right to file interference complaints. With this in mind, I have brought two pamphlets with me today for your information: one on interference complaints, the other on the overall role of the Commission.

The Commission receives very few complaints of interference, and I continue to question whether this reflects reality.

3) Complaint Process

The Commission was created to ensure transparency and fairness in the handling of complaints about the conduct of Military Police, and interference in their investigations.

We must remember whom it is we are meant to serve. Regardless of the nature of the complaint, we have a duty to deal with each issue and each person who comes to us in the same transparent, fair and professional manner.

We must strive to make sure that both the complainant and subject of complaint are treated fairly and equitably. Transparency and fairness must be part of the process from beginning to end.

Civilian oversight

I believe they are also fundamental to achieving our goal of a Military Police service that is independent, and that meets the highest standards of integrity and professionalism.

Ultimately, these are the types of issues the Government of Canada sought to address when it created the Commission to bring civilian oversight to the Canadian Forces Military Police.

This is a point on which we should be clear - the Government of Canada created the Commission as one of the mechanisms that would ensure the military justice system met all of the current legal, judicial and law enforcement practices in Canada. It is a matter of accountability. We are all accountable - doctors, lawyers, accountants - police are no different. Indeed, that police are accountable in this way is recognition of the vital role you play in our society. Like doctors and lawyers, by virtue of your status and the power you hold, you are held to a higher standard.

It is a simple equation: with power comes responsibility, with responsibility comes accountability.

Monitoring

Section 250.38 of the Act gives me the power to assume responsibility for the investigation of a conduct complaint at any time during the process. If I invoke this power, the Provost Marshal's duty to deal with the conduct complaint under subsection 250.38(5) is suspended.

We continue, at the Complaints Commission, to study the proper extent of our role in monitoring the complaints process.

Conclusion

If we consider the history of civilian oversight of law enforcement in Canada, or any other jurisdiction, there is always a period of adjustment at the beginning, and there are always a few bumps along the road.

As Mr. Ward Elcock, the Director of the Canadian Security Intelligence Service (CSIS) has said about the Security Intelligence Review Committee, the agency that oversees CSIS:

Quote:

"It is by definition a slightly adversarial process…(we) were not meant to be close friends. We are mutually respectful professionals…."

It is worth noting, that after close to 20 years of civilian oversight of CSIS, Mr. Elcock goes on to say:

Quote

"…this kind of review makes for a very disciplined organization…most people would see the Review Committee as an important part of the Service and why we are where we are."

I believe the Commission is well equipped to make this same kind of contribution to the Canadian Forces Military Police although, the sudden passing of Mr. Tom Flanagan last Fall was a severe blow.

Mr. Flanagan was a good friend and comrade, and his long career in police services brought a necessary and valuable perspective to the Commission's work. While we will continue to miss him, I am happy to say that two new members were appointed to the Commission in December, bringing with them a total of 65 years of police experience.

Mr. Odilon Emond began his career as a police officer in Sherbrooke, Quebec in 1963. Looking for a new challenge, Mr. Emond joined the RCMP in 1975. Twenty years later, in 1995, Mr. Emond was appointed Commanding Officer of "C" Division and assumed command of all RCMP activities in the Province of Quebec. Mr. Emond retired as Assistant Commissioner of the RCMP in 1998.

Mr. Henry Kostuck served with the Ontario Provincial Police for 30 years, and was Chief of Field Operations when he retired in 1988. Before his appointment to the Commission he worked as an investigator and special advisor to the Commission for Public Complaints Against the RCMP.

I should also mention Mr. Peter Seheult, who was appointed to the Commission last May. Mr. Seheult is a practising lawyer, with substantial experience in civilian oversight, arbitration and mediation.

Together with colleagues like Ms. Johanne Gauthier, Mr. MacDougall and Mr. Pedersen, we have a good team at the Commission; a team with the skills and experience to pursue and achieve the goals set for us by the people and the Government of Canada.

I see a similar team here today, with strong leadership and skilled Military Police members. I look forward to the good things we shall accomplish together in the months and years ahead.

Thank you again for inviting me and members of my team. I would be happy to take any questions you may have.