Introduction

Mr. Paul Monty, President of CACOLE,
Members of the Board,
Dear delegates,

I am happy to speak to you today during the annual meeting of the Canadian Association for Civilian Oversight of Law Enforcement (CACOLE).

CACOLE conferences are important for the Military Police Complaints Commission ("the Complaints Commission") and we are a proud participant.

The Complaints Commission plays an active role in this Association; it is for us, an important source of data and of information about trends relating to the role of civilian oversight organizations.

I would like to take advantage of this opportunity to talk to you for a few minutes about the Military Police Complaints Commission, which I have had the honour of chairing since its inception in December 1999.

Many of you have little or no knowledge about the Complaints Commission and I am pleased to speak to you about its origin, its mandate and its role. I would also like to give you an overview of the activities that have preoccupied the Complaints Commission over the last 12 months.

The Complaints Commission's mandate and its role

The Complaints Commission is a federal civilian oversight body, which is external to, and independent of, the Department of National Defence and the Canadian Forces. It performs quasi-judicial functions in accordance with the powers conferred by Part IV of the National Defence Act.

The Complaints Commission was established on December 1, 1999, as part of a major overhaul of the Act. It was the most comprehensive review of the Act in 50 years and it focused nearly exclusively on the military justice system.

Among the events leading to this revision, and certainly the most important, I should mention the humanitarian mission of the Canadian Forces in East Africa, namely in Somalia, in the early 90's, which created serious doubts about the administration of justice within the Canadian Military Police.

The Government of Canada set up a Commission of Inquiry on the mission to Somalia, which was chaired by the Honourable Justice Gilles Létourneau. Furthermore, former Chief Justice of the Supreme Court, the late Brian Dickson, was invited to chair two special advisory groups that reviewed the military justice system.

The Commission of Inquiry report, as well as the reports of the special advisory groups clearly demonstrated the urgent need to reform the military justice system. Former Chief Justice Dickson was particularly insistent in stating the need for an independent review mechanism of the Military Police to ensure confidence and respect for the military justice system.

In fact, by establishing the Complaints Commission, the federal government wanted to ensure that the Canadian Forces would continue to be the pride of Canadians and that the Canadian Military Police would always meet the highest possible standards of professionalism, integrity and independence.

The Complaints Commission has many features in common with other civilian oversight organizations; however it is unique in various ways.

It is independent of the Department of National Defence; it is accountable to the citizens of Canada by tabling its annual report to Parliament. The Chairperson and the members of the Complaints Commission are civilians. It is both an investigative body and an administrative tribunal.

The Complaints Commission's jurisdiction includes Canada and all the areas of the world where the Canadian Forces Military Police may be deployed. It is important to note that there is approximately 1200 Military Police members in the Canadian Forces.

There is another characteristic which makes the Complaints Commission's mandate distinctive. Not only does its mandate include overseeing and reviewing complaints of misconduct by members of the Military Police in the performance of their policing functions, but the Act also confers to the Chairperson the exclusive power to review and investigate complaints related to interference with investigations conducted by the Military Police. This means that if a member or a senior executive of the Department of National Defence tries to interfere with an investigation conducted by a member of the Military Police, the investigator or the supervisor can file a complaint with the Complaints Commission.

Annual Report

Pursuant to the Act, each year, the Complaints Commission must report on its activities by tabling a report to Parliament through the Minister of National Defence. In its Annual Report tabled in April 2002, the Complaints Commission notes that it dealt with 65 complaints of misconduct involving 145 allegations of misconduct, six requests for reviews and two interference complaints. It also conducted two public interest investigations related to conduct complaints.

The review by the Complaints Commission of conduct complaints in 2002 resulted in changes to the training and policies of the Military Police in dealing with civil and oversight matters. The practices, which the Military Police must now follow, are similar to those of similar main police services across Canada.

The role thus played by the Complaints Commission, namely that of recommending changes to policies based on the best police practices, is a fundamental objective of civilian oversight in general and of the Complaints Commission in particular.

The role to inform and to increase awareness

On another note, the Complaints Commission has also assumed the role of informing and increasing awareness of the Military Police.

Over the last few years, members of my team and myself have visited many bases and squadrons of the Canadian Forces to inform the military personnel about the Complaints Commission's role and responsibilities, to respond to the concerns of members of the Military Police.

Since its inception, very few interference complaints have been filed with the Complaints Commission. During 2002, we turned our attention to this matter and we have concluded that three (3) possibilities might be at the root of this situation:

• Military Police members may not be familiar with the avenue of recourse provided under the Act;

• they fear or hesitate to file interference complaints;

• or there is very little interference with Military Police investigations. (one of the main reason the Complaints Commission was created)

We continue, by various means, to inform and make the Military Police aware of their right to recourse concerning interference complaints.

In December 2002, the Complaints Commission has in fact published a report and a pamphlet on the subject of interference. The report, titled Interference with Military Police Investigations: What is it about? together with the pamphlet were sent to each member of the Military Police. I have brought copies of this special report with me today.

Legislative review

More recently, in the spring of 2003, the Complaints Commission presented a proposal to amend the National Defence Act in order that specific protection against reprisals be granted to any person who files a complaint under the Act.

This proposal was made in the context of the five-year review of the National Defence Act, which is being carried out by the Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada.

This review is certainly a matter which has kept us occupied over the last year.

The Complaints Commission met with former Chief Justice Lamer last April to submit proposals for legislative amendments.

It goes without saying that the independence of the Military Police and interference with investigations of the Military Police, as well as the issue of the rights of the person filing a complaint and of the person who is the subject of the complaint are at the heart of the Complaints Commission's concerns.

I am of the opinion that this matter is fundamental if we wish to have available a Military Police service that is independent and adheres to the highest possible standards of integrity and professionalism.

These are the types of issues that the government of Canada aimed to address when it set up the Complaints Commission to establish civilian oversight of the Military Police of the Canadian Forces.

Legal procedures

On another topic, we have, over the past years, reflected a great deal on the exact scope of our role in the oversight of the complaints process.

I believe that the National Defence Act, both in letter and in spirit, grants the Complaints Commission extensive powers to oversee the conduct complaints process.

Unfortunately, certain negative perceptions about the Complaints Commission's role in the process of dealing with complaints continue to exist within the Canadian Forces. That is why the Complaints Commission puts out constant efforts to maintain ongoing relations with the various stakeholders.

In spite of this, the Complaints Commission recently had to initiate action at the Federal Court following a refusal to supply information and documents requested by the Complaints Commission.

In fact, the National Defence Act contains a provision requiring the Canadian Forces Provost Marshal to maintain a record ("dossier" in French) on all complaints received and, on request of the Complaints Commission, to provide all the documents and information contained in that file.

The Canadian Forces and the Complaints Commission do not share the same opinion as to the application of this provision. The Federal Court will now have to make a judgment on this issue.

Policing functions

A second issue which has concerned the Complaints Commission a great deal and which must be clarified as to the Complaints Commission's mandate relates to conduct complaints that the Complaints Commission can review and investigate.

A provision of the Act stipulates that "an officer or a non-commissioned member may . . . make a complaint… about the conduct of a member of the Military Police in the performance of… policing duties, that are prescribed… in regulations made by the Governor in Council…". The Regulation lists certain policing functions.

The issue is to determine the meaning of the expression "policing functions". The two (2) organizations do not share the same point of view with regard to certain functions performed by the Provost Marshal (the equivalent of the chief of police of a civilian Police Force) and by her team that works in the area of professional Standards.

I hesitate to take you through the details of the Regulation and of the legal arguments, but it is evident that this important issue has a serious impact on the two (2) organizations and unless it can be resolved informally, it is possible that this issue will also have to be referred to the courts for clarification.

The independence of the Military Police

A third issue on the Complaints Commission's agenda is certainly that of the independence of the Military Police.

To be effective and to be perceived as effective by the population it serves, a Police Service must be independent and also be perceived as being independent.

When a civilian police force consults the Crown prosecutors, the exchange of views, advice, facts and legal opinions between them are protected by the solicitor-client privilege. This solicitor-client privilege belongs to the police, which is then in the position of a client. In other words, as a client, the decision to waive the solicitor-client privilege is the Police Service's prerogative.

Within the Canadian forces, the present administrative procedures do not allow the same possibility for the Provost Marshal; the decision to waive the solicitor-client privilege is made by the Minister of National Defence.

This issue which, in my view, is at the heart of the independence of the Military Police, concerns me greatly. According to a well-established principle, members of the police, in the performance of their policing functions, are and must remain independent of the executive power of government.

I am not implying that the Minister of National Defence conducts the investigations of the Military Police; I simply want to emphasize here that the independence of the Military Police is crucial if we want to promote the public's confidence in our system of military justice.

The members of the Complaints Commission and its staff

The Complaints Commission has accomplished a great deal since its inception, but there still remains much to be done to ensure that complaints against the members of the Military Police are dealt with fairly and equitably.

Fortunately, the Chairperson is well supported in the performance of that task. The Complaints Commission has a solid team, a team that has the competence and the experience allowing us to aim at and to reach the objectives that Canadian citizens and the government of Canada have assigned to us.

In addition to the Chairperson, the Complaints Commission is presently composed of three part-time members, appointed by the Governor in Council. Officers and non-commissioned members as well as employees of the Department of National Defence are ineligible to be a member of the Complaints Commission.

Some of you will perhaps remember that in St. John's, Newfoundland, in September 2002, the late Thomas G. Flanagan, a member of the Complaints Commission since its inception, spoke to this audience and made a speech that was greatly appreciated by the participants at the CACOLE conference.

Mr. Flanagan, who passed away in November 2002, made an exceptional contribution to the work of the Complaints Commission and we miss him dearly. He pursued a long career in Police Services and enriched the Complaints Commission with his viewpoints which were precious, indeed necessary, for the accomplishment of the Complaints Commission's work. I take advantage of this opportunity to thank very warmly CACOLE's Board of directors and the many of you who conveyed their condolences. They were a great comfort, because Tom's loss affected me deeply.

Turning now to the future, the Complaints Commission had the pleasure in 2002 to welcome three (3) new part-time members who continue to pursue its work with dedication.

First, Mr. Peter Seheult. He was appointed to the Complaints Commission in May 2002. Mr. Seheult is a lawyer. He was a member of the New Brunswick Police Commission from 1995 to 2000 and was its chairperson during the last two of those years.

Then in December 2002, we welcomed two (2) new members:

Mr. Odilon Emond. He worked at the RCMP where, among other responsibilities, he was, as Commander of Division C, in charge of all RCMP activities within the province of Quebec. When he retired in 1998, he was assistant commissioner.

Mr. Henry Kostuck was a member of the Ontario Provincial Police for 30 years. When he retired, in 1988, he was in charge of the Field Operations Division in Toronto.

You can meet Mr. Seheult and Mr. Tom Pedersen, Director of Operations who are attending the Conference.

In closing, I wish to stress that the Complaints Commission could not be as efficient without the unparalleled collaboration of its Members and its staff. I would like to express my deep appreciation to them.

Finally, I would be remiss not to acknowledge the presence among us of the Canadian Forces Deputy Provost Marshal for Professional Standards, Lieutenant-Colonel Shelley Carey and of Major Phillip Drew, Counsel in the Directorate of Law/Military Justice Policy and Research.

Before leaving the conference, I invite you to take copies of our 2002 Annual Report and other Complaints Commission documents, where you will find our address and Internet site address, which provide further information about us.

I am pleased to have had the opportunity to speak to you and I thank you for your attention. I am available to answer questions or to hear your comments.