Introduction

I would like also to thank the National Military Law Section of the Canadian Bar Association for inviting me to address you today.

This is a very welcome opportunity for me to increase awareness of the role, responsibilities and mandate of the Military Police Complaints Commission with a very important audience. As we are still a relatively young organization, raising awareness of the Complaints Commission remains a high priority for us.

Today, in addition to acquainting you with the Complaints Commission itself, I would like to talk about some of the lessons we have learned in the first years of our existence, and some of the challenges with which we continue to struggle.

With regard to the latter, I would also like to discuss some of the proposals the Complaints Commission has made for changes to Part IV of the National Defence Act, as part of the five-year review of Bill C-25.

As I am sure you are aware, Bill C-25 was the most extensive overhaul of Canada's National Defence Act in 50 years. By far the majority of the amendments dealt with the military justice system, including the creation of the Military Police Complaints Commission in a new Part IV of the Act.

Having worked with Part IV of the Act for four full years now, the Complaints Commission was pleased to have the opportunity to participate in the Independent Five-year Review of Bill C-25 conducted by former Chief Justice of the Supreme Court of Canada, the Right Honourable Antonio Lamer.

In seeking clarifications and amendments to Part IV of the National Defence Act the Commission is trying to ensure that it plays an effective role so the Military Police continue to be a professional, respected, and effective organization. We are only seeking reasonable interpretations of the present Act, and the changes we seek are simply to move closer to the norms established for civilian oversight of law enforcement.

Origins of the Complaints Commission

I am sure most of you here are familiar with the series of incidents leading up to Bill C 25. In response to those incidents, the Government of Canada ordered a full-scale public inquiry to examine the deployment of Canadian Forces to Somalia, and assembled two separate Special Advisory Groups to review the military justice system.

The Commission of Inquiry on the mission to Somalia, which was chaired by the Honourable Justice Gilles LĂ©tourneau, revealed conflicts of interest, command influence and lack of independence in the investigations into the misconduct during the mission. The Special Advisory groups were equally clear on the urgent need for major reforms to the military justice system.

The chair of the advisory groups, the late former Chief Justice of the Supreme Court of Canada, the Right Honourable Brian Dickson, was especially forthright in citing the need for an independent review mechanism to ensure confidence in and respect for the military police organisation.

This mechanism for independent review is provided by the Military Police Complaints Commission.

The Complaints Commission is a civilian body, completely independent of the Department of National Defence. It reports directly to Canadians with a report tabled in Parliament through the Minister of National Defence.

The Complaints Process and Powers of the Complaints Commission

The Canadian Forces Provost Marshal is responsible for handling conduct complaints, although the Chairperson of the Complaints Commission monitors the handling of these conduct complaints and reviews the findings in each case. Anyone, including civilians, may complain about the conduct of military police.

A complainant not satisfied with the manner in which their complaint was dealt with by the Provost Marshal can ask the Complaints Commission to review the complaint.

In addition, should the Chairperson deem it to be in the public interest, the Chairperson may assume and thereby remove the Provost Marshal's responsibility for the handling of a conduct complaint at any stage of the process.

As the head of a quasi-judicial body, the Chairperson may, at any time, cause the Commission to conduct an investigation, and, if warranted, hold a hearing on either a conduct or interference complaint.

In the event of a hearing, the Complaints Commission has the power to compel witnesses to give evidence under oath and to produce documents.

Each public interest investigation or hearing, and every request for review leads to two reports - interim and final.

The interim report states the Chairperson's findings and recommendations or, if a hearing has been held, those of the Complaints Commission.

The interim report is then reviewed by the appropriate authority. In general, the Chief of the Defence Staff is responsible for reviewing interim reports on interference complaints, and the Provost Marshal reviews reports on conduct complaints. There can be exceptions, for example, when the Provost Marshal or the Chief of the Defence Staff is the subject of the complaint. In any case, the person who reviews the interim report must respond to the Minister and the Chairperson with a 'Notice of Action,' outlining any action that has been taken or will be taken with respect to the complaint.

If there is a refusal to act on any of the Chairperson's findings or recommendations, the Notice of Action must provide an explanation for not acting.

After considering the Notice of Action to the interim report, the Chairperson prepares a final report of findings and recommendations. The Chairperson has the authority to release her reports to any member of the public, subject to the provisions of the Privacy Act.

Lessons Learned

Even though civilian oversight is now the norm for police organizations, we have learned as a new oversight body that acceptance by the organization being overseen may take time and effort.

This is not surprising. Because of their special powers and their special responsibilities, law enforcement agencies will always be societies unto themselves.

In that sense, they are no different from any other group in society, be they doctors, lawyers or engineers. Outsiders, especially those who would second-guess the conduct of members, are bound to be viewed with suspicion, if not a certain amount of resentment.

In the case of the Military Police Complaints Commission, this cultural divide is even wider. We are bringing civilian oversight not only to a law enforcement organization, but to a law enforcement organization that operates within the centuries-old traditions and values of the military.

We continue to work with the Canadian Forces Provost Marshal and other key stakeholders of the Canadian Forces to overcome barriers of culture and language. A forest of acronyms cannot be a barrier to filing a complaint, or to carrying out an effective review or investigation of a complaint.

On another note, the relationship between the overseer and the overseen, by its very nature, will be adversarial at times. This too is no particular surprise.

This is a normal part of the relationship between any civilian oversight body and the law enforcement organization it oversees. Both sides must accept this reality, but not allow themselves to be distracted by it. Both must make an effort to build and maintain an atmosphere of trust and understanding, and recognize that we share the same goal - enhancing the credibility and professionalism of the Military Police organization.

Positive Outcomes

Having said that, I do not wish to leave the impression that the Complaints Commission and the Military Police organization are constantly at loggerheads.

Indeed, there is ample evidence to the contrary. Since the Complaints Commission was established in December of 1999, approximately 90 per cent of its findings and recommendations have been accepted. The Provost Marshal has noted on more than one occasion how findings and recommendations in particular cases have served to enhance the professionalism of Military Police.

As a direct result of findings and recommendations made by the Chairperson or the Commission, and implemented by the Provost Marshal, military police members now benefit from new or improved training in areas as diverse as report writing and the use of police discretion.

The Complaints Commission has also played a key role in enhancing Military Police policy and procedures in a number of areas, including procedures for the conduct of surveillance operations and in dealing with civil matters. Also, there has been a clear increase in the rigour with which the Provost Marshal investigates complaints and takes action where appropriate.

These and other positive outcomes demonstrate that, in creating the Complaints Commission, Bill C-25 has been an effective agent in fulfilling the intent of Parliament.

Recommendations for Amendments to Part IV of the National Defence Act

And, like most lawyers, I have never reviewed a piece of legislation I did not think could be just a little bit better.

To be quite serious though, the five-year review of the legislation is an important opportunity for the Complaints Commission to present its views on appropriate changes to the National Defence Act as it relates to Military Police complaints.

The Complaints Commission believes its proposals for changes to Part IV will improve the effectiveness of the Military Police complaints process. By improving the process, we can help ensure Parliament's desire for effective and credible independent civilian oversight of military policing is fully respected and realized.

In all, the Complaints Commission submitted 17 proposals to the review. I will not describe all of those here, but I would like to discuss a few that may be of particular interest to this audience.

1) Language

At a very basic level, the Complaints Commission noted in its submission a number of differences between the French and English versions of the legislation. For example, in section 250.19, dealing with interference complaints, the English version of Part IV refers to "improper interference."

It has been suggested the legislation thus infers the existence of proper interference with an investigation. The Complaints Commission does not agree, and notes that, in the French version of Part IV, the word "interference" stands alone, without qualification.

The Complaints Commission has proposed removing the word "improper" from the English version of this section.

2) Complaints process to be driven by public interest

The Complaints Commission believes it should be made clear that all those involved in the complaints process have an obligation to act in the public interest.

Part IV of the Act is intended not simply as a means to resolve disputes between individuals but, in doing so, to enhance the accountability, credibility and professionalism of the Military Police organization as a whole. In other words, in dealing with a particular case, the broader public good must be taken into consideration along with the immediate interests of the parties to a complaint.

At the moment, section 250.14 states that, "The Complaints Commission shall deal with all matters before it as informally and expeditiously as the circumstances and the considerations of fairness permit."

Certainly, this is as it should be. However, the nature of the complaints process is such that the Complaints Commission must await the actions of others, such as the Canadian Forces Provost Marshal or the Chief of the Defence Staff, before it can move the process forward.

The Complaints Commission is of the opinion that the public interest could be better served if all those involved in administering the process had the same obligation to act expeditiously.

3) Explicit authority for Complaints Commission to initiate investigations

The Complaints Commission believes it would be proper to have explicit authority to initiate investigations, as is the case with the Chairperson of the Commission for Public Complaints against the RCMP.

In the first instance, providing the Complaints Commission with the authority to initiate investigations would improve efficiency.

For example, it can happen that new allegations arise during the review of a conduct complaint. Currently, these allegations must be referred back to the Canadian Forces Provost Marshal to be handled as a new complaint in the first instance. With the authority to initiate investigations, the Complaints Commission could simply deal with such allegations during the course of its review of the original complaint.

Of equal importance, this authority would be useful in situations where credible information comes to the attention of the Complaints Commission regarding a matter that could be the subject of a conduct or an interference complaint, but no complaint or request for review is made.

4) Protection against reprisals, harassment and intimidation

In contemplating the reasons why a complaint may not be filed, it is worth noting that the Act contains no guarantee of confidentiality in the handling of complaints, nor does it make any provision to protect complainants from harassment, reprisals or intimidation.

Thus the Complaints Commission has proposed a new offence be created under the Code of Service Discipline. Similar to legislation such as the Canadian Human Rights Act, the Code of Service Discipline should prohibit and sanction any efforts to intimidate or take reprisals against any person making a complaint or who cooperates in the complaint process.

Concern over interference with Military Police investigations was a primary consideration in the creation of the Complaints Commission. For the complaint process to work, Military Police members must be protected against reprisals. Even a simple perception could cause problems. Both feared and actual reprisals can stifle the filing of legitimate interference and conduct complaints.

5) The Complaints Commission be allowed to compel witness testimony for public investigations, as well as public hearings

The Complaints Commission has also proposed that its powers to compel testimony and the production of documents and other evidence at public hearings be expanded to include investigations in the public interest.

To date, the Complaints Commission has conducted three public interest investigations. At times, we have encountered difficulty with witnesses declining to appear before the Commission Members for an interview as part of our investigation. While, I do not fault any witness or subject-member for exercising their right not to appear, it would seem that their main concern is that they have no protection against the future use of their statement.

I am proposing that we have the power to compel witnesses and at the same time afford the necessary protection to witnesses. As you can well imagine, it is difficult to conduct a proper investigation by invitation. I should not be forced to hold a public interest hearing solely due to a lack of cooperation from witnesses or subject-members.

This proposal is consistent with case law, which tells us that hearings should be called for extraordinary cases only.

If nothing else, sound financial management dictates such a threshold. In the view of the Complaints Commission, it should not be necessary to go to the added expense associated with formal public hearings merely to obtain the power to conduct a proper investigation.

Should the Complaints Commission be granted these additional powers, it also proposes that the protections available to witnesses in public interest hearings be extended to the investigative stage.

Ultimately everyone wins. The Complaints Commission has the power to compel witnesses and thus to conduct a proper investigation. Witnesses are afforded the appropriate protections - for example, their statement cannot be used in subsequent proceedings - and, finally, the public purse is spared by not having to resort to a costly hearing.

6) The Complaints Commission be allowed to receive all relevant information in the hands of Military Police, including legal advice requested and received in the preparation, laying and referral of charges by the Military Police

In a similar vein, in order to conduct a thorough investigation, the Complaints Commission's mandate clearly requires that it review the legal advice on which a Military Police member purports to rely for his or her conduct in a particular case.

For example, in a complaint dealing with illegal search or arrest, or the improper laying of a charge, it is necessary to know what legal advice was given to the Military Police member. The information the Military Police member provided to the lawyer who gave the advice could be crucial to the investigation as well.

It is the mandate of the Complaints Commission to monitor and review investigations into Military Police conduct and, when it is in the public interest, to take over such investigations. The Complaints Commission ought to have access to the same information and evidence as the Provost Marshal - who would certainly be entitled to review the legal advice received by Military Police members.

Here, I wish to stress that the Complaints Commission respects and values the confidentiality of the solicitor-client relationship. We readily acknowledge that legal advice provided by members of the Canadian Forces Judge Advocate General's Office to Military Police in the discharge of their duties is covered by solicitor-client privilege.

Nonetheless, the Complaints Commission maintains that this privilege must not prevent the Complaints Commission from being able to properly discharge its monitoring and oversight responsibilities. Thus, the Complaints Commission has proposed that it be allowed to receive all relevant information in the hands of Military Police, including legal advice requested and received in the preparation, laying and referral of charges by the Military Police.

It is worth noting here that when a civilian police force consults 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.

It is a well-established principle that members of the Military Police, in the performance of their policing functions, are and must remain independent from the Executive Branch of Government. I am in no way suggesting the Minister of National Defence is directing investigations by the Military Police, but I do wish to emphasize that public perception of the independence of a police service is crucial to fostering confidence and trust.

7) Interference Complaints

The Complaints Commission has the exclusive power to investigate complaints of interference.

This is an essential part of ensuring Military Police are able to carry out their functions as police officers independently and objectively, free from interference from the Chain of Command or senior officials of the Department of National Defence.

The Complaints Commission believes the Act would be more effective in providing this assurance if it did not limit complaints about interference to "Military Police investigations." There are other policing duties and functions of Military Police - such the laying of charges - that are equally subject to interference, and equally likely to damage the integrity of the military justice system.

The Complaints Commission has proposed that section 250.19 be expanded to allow complaints of interference with any policing duty or function.

The right to complain of interference is also limited. Only a Military Police member charged with conducting an investigation, or his or her supervisor, can make an interference complaint.

There may be situations where someone higher in the military hierarchy, or even a civilian, is in a better position to make the complaint, or even to be aware of the interference.

As well, this limit would seem to be at odds with other provisions of the Act, which allow any person, civilian or military, and whether they were personally affected, to file a conduct complaint. The Complaints Commission has proposed that "any person" should also be allowed to make an interference complaint.

8) Cases where the Provost Marshal is precluded from dealing with a complaint be broadened to include cases where she or her delegates were involved

It goes without saying that the complaints process must be free of any suggestion of bias.

This is why, for example, the Act provides for the Chief of the Defence Staff to assume certain responsibilities in the process in cases where the Canadian Forces Provost Marshal is the subject of the complaint.

In order to further reduce the risk of actual or perceived bias, the Complaints Commission has proposed that this same kind of provision be applied to cases where the subject of the complaint is one of the Provost Marshal's direct subordinates, such as the Deputy Provost Marshal, Professional Standards. Our proposal includes applying this kind of provision to cases where the Provost Marshal may have had some involvement in the matter, even though she may not be the subject of the complaint.

9) Both parties to have right to review

Finally, in the interest of fairness and efficiency, the Complaints Commission has proposed that both sides have a right to request a review of the Canadian Forces Provost Marshal's handling of a complaint about the conduct of Military Police.

Currently, only the person who filed the complaint can request a review by the Commission. If the Military Police member who was the subject of the complaint is not satisfied with the outcome of the Provost Marshal's handling or investigation, that Military Police member must file a complaint of his/her own, and the process begins anew. Clearly, it would be more expeditious to permit the Complaints Commission to deal with that Military Police member's objections by way of a review than to start a new investigation.

Conclusions Regarding Recommendations for Amendments to Part IV

In our submission to the 5-year legislative review, we have proposed changes we believe can make Part IV of the Act more effective in fulfilling its intent, and in many instances, enhance the efficiency of the complaints process at the same time.

Current Challenges

1) Interpretation

One of these is interpretation of the legislation.

Monitoring power

For example, the Complaints Commission and the Canadian Forces Provost Marshal are at some variance on the Complaints Commission's role and powers to monitor the Provost Marshal's handling of conduct complaints. The Complaints Commission is of the view that Part IV of the Act is quite clear in requiring the Provost Marshal to keep detailed records ("dossier" in the French version of the Act, meaning "file") on all complaints and, on request, to make the information in these records available to the Complaints Commission.

The Complaints Commission views this as encompassing the entire file including all investigation reports, witness interviews, correspondence, Military Police Member's notes, etc. The Provost Marshal takes a more restrictive view in that they are obliged to forward only certain correspondence such as status letters, acknowledgement of the complaint and summary of findings.

Policing duties and functions

Similar difficulties exist in the interpretation of policing duties and functions, as set out in the regulations. According to the regulations, these duties and functions include such things as the conduct of an investigation, the handling of evidence, and responding to a complaint.

The Complaints Commission is thus of the opinion that when the Provost Marshal or her delegates handle complaints under Part IV of the Act, they are performing policing duties and functions. We feel this interpretation is consistent with the definitions in the regulations, and with the overall scheme of the Act and civilian oversight principles in general.

The concern is that if the Provost Marshal, as allowed by the legislation, rejects a complaint on the grounds it does not concern the conduct of Military Police in the performance of a policing duty or function, the Commission may never hear of the complaint in the first instance.

Further, should the Chairperson disagree with the Provost Marshal's refusal to investigate the complaint, the Chairperson may find it advisable to cause the Complaints Commission to hold a public interest investigation.

2) Interference complaints

The number of interference complaints received by the Complaints Commission is another ongoing concern. This is a significant part of the Complaints Commission's mandate, yet we have received only a handful of interference complaints, and we are not sure why.

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.

In December 2002, the Complaints Commission published a special 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. This was not an attempt to generate more business; rather we are concerned that Military Police may still not be completely aware of their rights in this area.

Conclusion

Fundamentally, we do the things we do because of the deep respect we have for the values and traditions and the men and women of the Canadian Forces - they comprise an institution that helps to define us as Canadians.

The Parliament of Canada has assigned the Military Police Complaints Commission an important part in ensuring this institution remains a source of national pride, and that the Canadian Forces Military Police continues to be a professional, respected and effective organization.

In the clarifications and amendments it seeks to the National Defence Act, the Commission proposes nothing that is either radical or unusual. These proposals are intended only to move oversight of Military Police closer to the norms established for civilian oversight of law enforcement across Canada and around the world.

As with civilian police officers, members of the Canadian Forces Military Police have special powers. With power comes responsibility, and with responsibility comes accountability.

The Complaints Commission stands as a primary agent of that accountability, and we are determined to make the Commission as effective as it can be in pursuing its mandate.

I thank you again for inviting me today, and for your kind attention.