MESSAGE FROM THE CHAIRPERSON

INTRODUCTION

Louise Cobetto

It is my pleasure to present the fifth Annual Report of Canada's Military Police Complaints Commission.

The National Defence Act requires that the Chairperson submit a report of the Complaints Commission's activities to the Minister of National Defence on an annual basis, including any recommendations. This year, for the first time, I am making a number of recommendations to the Minister with this Annual Report.

These recommendations are intended to address some of the issues I believe impede the effectiveness of the Complaints Commission in providing the type of civilian oversight of law enforcement the people of Canada and other countries have come to expect. In some instances, these issues also act as an impediment to the most efficient use of the Complaints Commission's human and financial resources.

While the Complaints Commission was viewed, quite rightly, as breaking new ground when it became one of the first civilian overseers of military police services in the world, the fact is that even at the time of its creation, the Complaints Commission lacked powers that were already common for civilian overseers both within Canada and elsewhere.

This is not to say the Complaints Commission is not functioning as an agent for positive change within Canada's military justice system. In the 12 months covered by this report, I am pleased to note the Canadian Forces Provost Marshal accepted the majority of the recommendations made by the Chairperson during 2003. This is not unusual. Since the Complaints Commission began operations in December of 1999, some 90 per cent of the Chairperson's recommendations have been accepted.

At all times, the Complaints Commission attempts to be proactive in formulating its recommendations, addressing not only the conduct of the individual or individuals who may be the subject of the complaint, but also looking at systemic issues that may have played a role. By proposing changes to systems or procedures, it is hoped the situation that gave rise to the complaint in the first instance will not recur.

In the past, recommendations of this type have led directly to specific improvements in military police training, policy and procedures. This past year, for example, recommendations stemming from our reviews and investigations contributed to an important clarification of the procedures related to the laying of a charge by Military Police.

The Complaints Commission was pleased during 2003 to have the opportunity to make a submission to the five-year review of the National Defence Act by the Independent Review Authority under the leadership of the Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada. Although not all of the 17 proposals (see Annex I) put forward by the Complaints Commission were accepted, the report of the Independent Review Authority was most emphatic in recognizing the importance of the oversight function fulfilled by the Complaints Commission.

I am pleased also to report that, at the end of the 2002-2003 fiscal year, the Complaints Commission was able to return to the federal treasury a significant portion of the funds allocated for the year by Parliament. Indeed, over the four fiscal years since its inception in 1999, the Complaints Commission has returned some $1.7 million to the Government, underspending its allocation by an average of well over 10 per cent over the entire period (see Annex D).

From the beginning, the goal of the Complaints Commission has been to provide effective civilian oversight of Canadian Forces Military Police, as intended by Parliament, and to do so in an efficient manner, with appropriate respect for the funds entrusted to it by the people of Canada. During 2003, I am confident in saying that, within the limits of the powers afforded by statute, the Complaints Commission continued to grow in its effectiveness as a civilian overseer, and as a manager of the resources allocated to it by the Parliament of Canada.

The accomplishments of the past year are, however, offset by a number of ongoing issues that remain unresolved. These issues not only hamper the effectiveness of the Complaints Commission, they often act as an obstacle to the relationship between the Complaints Commission and the Canadian Forces Provost Marshal. I do not believe it is possible to over-emphasize the importance of this relationship to fulfilling the intent of Parliament in enacting Part IV of the National Defence Act, which sets out the process for dealing with complaints about the conduct of military police, and for complaints of interference with Military Police investigations.

It is only natural that the relationship between a civilian oversight body and the police service it oversees will be somewhat adversarial at times. It is essential that both sides accept that there will be disagreements from time-to-time, and not allow these disagreements to distract from the responsibility both have to carry out the wishes of Parliament as embodied in the legislation. Having been Chairperson of the Complaints Commission since its inception just over four years ago, I must express my concern that the relationship between the Complaints Commission and the Canadian Forces Provost Marshal, while professional and courteous, is not yet as productive as I believe it can and should be.

In announcing the creation of the Complaints Commission, the Government of Canada stated that the Complaints Commission “will ensure that individuals who have... complaints, and individuals against whom allegations are made, are treated in a fair, objective and impartial manner.” In other words, it is the duty of the Complaints Commission to bring transparency to the complaints process. To do so in an effective and efficient manner, the Complaints Commission relies heavily on the cooperation of the Canadian Forces Provost Marshal.

I find it troubling that, in my opinion, the Complaints Commission and the Provost Marshal disagree too often on the appropriate degree of openness and transparency in particular situations, some of which are discussed in greater detail below. While I am pleased to report a modicum of progress toward resolving some of these matters over the past year, I must also confess to being disappointed by a lack of progress in other respects.

I note that in my introductory remarks to the last Annual Report, I described the Complaints Commission as “maturing as an organization.” I believe I can say that this year, in which progress in some areas was offset by frustration in others, has been a test of that maturity. I can say also that the Complaints Commission emerges from this challenging year with a renewed sense of purpose and commitment to its mission.

TOWARD A MORE EFFECTIVE COMPLAINTS COMMISSION

I can report some measure of progress in terms of increasing access to relevant information in 2003 but, in general, there has been very little forward movement on these issues, whether through our discussions with the Canadian Forces Provost Marshal, or by way of our proposals to the five-year review of the National Defence Act.

SOLICITOR-CLIENT PRIVILEGE

In order to conduct a complete investigation of military police conduct and make a meaningful assessment, it is logical that the Complaints Commission be able to 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 review Canadian Forces Provost Marshal 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.

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.

I should note that, in the civilian world, it is not unusual for police services to waive their solicitor-client privilege in order for an oversight body to access the appropriate information; however, unlike a civilian policy agency that consults a Crown prosecutor, for military police, the privilege in any legal opinion sought from military prosecutors belongs not to the Military Police, but to the Minister of National Defence. This situation lends substantial complexity to the process of waiving solicitor-client privilege.

Further, while I am in no way suggesting the Minister of National Defence is directing investigations by the Military Police, I do wish to emphasize that public perception of the independence of a police service is crucial to fostering confidence and trust. I remain concerned that this situation is damaging to the perception of Military Police as fully independent in the performance of their policing function.

I am pleased to report that, as a result of discussions with the Canadian Forces Provost Marshal, the Judge Advocate General and the Chief of Defence Staff during 2003, there may be an opportunity to move this issue forward in the months ahead. One proposed solution would involve discussions with the Minister and would ensure that the decision to waive solicitor-client privilege rests with the Provost Marshal.

INFORMAL RESOLUTION OF COMPLAINTS

Once a conduct complaint has been resolved informally, the Provost Marshal is required to notify the Complaints Commission. To ensure the transparency of the process and fairness to both sides, as well as to make certain systemic issues are not ignored, the Complaints Commission must have access to information about the initial complaint as well as the terms of the informal resolution.

I am happy to report that after some months of discussion, the Complaints Commission and the Provost Marshal have reached an agreement under which the Complaints Commission will have access to the information it needs to judge whether the informal resolution of a particular complaint is fair and appropriate, while still respecting the confidentiality desired by the parties involved.

MONITORING OF INVESTIGATIONS DONE BY THE CANADIAN FORCES PROVOST MARSHAL

Section 250.38 of the National Defence Act gives the Chairperson of the Complaints Commission the power, if she deems it to be in the public interest, to cause the Complaints Commission to take responsibility for the investigation of a complaint from the Provost Marshal at any time during the process.

If the Chairperson is to decide whether an investigation of a particular complaint is in the public interest, it follows that the Complaints Commission will require timely access to as much information as possible about the complaint and the investigation being pursued by the Provost Marshal.

The framers of the legislation anticipated this need for information: Section 250.25 of the Act states that, “The Provost Marshal shall establish and maintain a record of all complaints received...and, on request, make available any information contained in that record to the Complaints Commission.”

However, the Provost Marshal interprets these sections of the Act more narrowly than does the Complaints Commission, particularly in regard to what constitutes a “record of a complaint.”

During 2003, the Complaints Commission made repeated attempts to obtain access to detailed information about the Provost Marshal's investigations into two conduct complaints. Notwithstanding a prior agreement to provide materials, it was only after the Complaints Commission filed an Application with the Federal Court of Canada to obtain the necessary information that the Provost Marshal provided the information contained in the two investigation files. While I am relieved we have been saved the time and expense of pursuing the case through the Court, I am concerned that the door remains open to further disagreements of this nature between the Complaints Commission and the Provost Marshal.

There is no question this situation impedes the effectiveness of the Complaints Commission's ability to make appropriate decisions and to act in the public interest. I was disappointed that, in its report to the Minister of National Defence, the Independent Review Authority recommended that the “record” of a complaint be defined as containing only the most basic information about a complaint and its process and not about its investigation. This interpretation would diminish the effectiveness of efficient oversight of police conduct.

It is worth noting that an explicit power to monitor police investigations of conduct complaints and/or access all relevant information is quickly becoming a standard feature of civilian oversight of law enforcement in Canada and around the world. Among others, civilian overseers in British Columbia and Saskatchewan have this power in Canada. Other countries that provide explicit monitoring powers to civilian overseers of law enforcement include the United Kingdom.

POLICING DUTIES OR FUNCTIONS

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 or functions. In making specific allowance for complaints against the Provost Marshal, subsection 250.26(2) of the Act supports the position of the Complaints Commission. I am confident this interpretation is consistent with the definitions in the regulations, with the overall scheme of the Act and with the principles of civilian oversight 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 Complaints Commission may never hear of the complaint in the first instance. This means that the Chairperson may be unable to cause the Complaints Commission to hold a public interest investigation should she disagree with the Provost Marshal's refusal to investigate the complaint and her decision that it is not a policing duty.

For example, the Canadian Forces Provost Marshal's Annual Report for 2002 describes a complaint that was resolved informally. The Complaints Commission had not been informed of the existence of this complaint, and when the Complaints Commission requested details of the terms of the informal resolution as per the agreement mentioned previously, it was advised that the file in question did not deal with a policing duty or function, was thus handled via an internal investigation and further, the Provost Marshal refused to provide any details of the case to the Complaints Commission. In these circumstances, it is impossible for the Complaints Commission to determine whether the complaint was classified properly, or resolved appropriately. Errors of this kind have occured in the past.

In the report of the Independent Review Authority of the National Defence Act, the Right Honourable Antonio Lamer writes that he is inclined to believe the Provost Marshal is indeed performing a policing duty or function when handling a conduct complaint. The Independent Review Authority offers two recommendations that, if implemented, will define the role of the Provost Marshal, and provide greater clarity with respect to the policing duties or functions prescribed in the regulations.

Stated most simply, as long as the Complaints Commission and the Canadian Forces Provost Marshal do not interpret policing duty or function in the same way, some complaints will not be processed under the Part IV legislative scheme, and parties will be deprived of the legal rights they are granted by Part IV of the National Defence Act, including the right to request a review by an independent civilian oversight agency.

INTERNAL CLASSIFICATION OF COMPLAINTS

Having noted a disparity between the number of conduct cases reported by the Provost Marshal and that reported by the Complaints Commission, the Independent Review Authority recommended the Provost Marshal develop a framework for making the distinction between instances of reported misconduct that are covered by Part IV of the Act, and thus subject to civilian oversight, and those that are not. The Complaints Commission looks forward to working with the Provost Marshal in the development of this important document.

In May of 2003, this issue was addressed during a symposium in Wakefield, Quebec between the Provost Marshal, the Chairperson, their respective teams, and representatives from the Judge Advocate General and the Vice Chief of the Defence Staff. At the time it was agreed that the Complaints Commission Director of Operations and the Deputy Provost Marshal, Professional Standards would get together to review a sampling of police misconduct files that had been designated as “internal.” The point conveyed to the Director of Operations was that, for the most part, files classified as “internal” were instances of military police misconduct that had surfaced either through the chain of command or as a result of audits or criminal investigations and not as a result of a “formal” complaint.

For example, an allegation of police misconduct in the performance of a policing duty or function against a Military Police member may be brought to the attention of the Provost Marshal by word of mouth or through various other reporting channels, such as through the chain of command. For whatever reason, the person reporting the possible misconduct has not made an explicit decision to avail himself or herself of Part IV of the Act by making a formal complaint. In some cases, the Provost Marshal has chosen to put these allegations into a formal complaint; in others, the allegations have been dealt with internally. In the latter case, apart from a whistleblower, it is unlikely the Complaints Commission would ever become aware of the allegations, let alone their disposition; neither would the Complaints Commission be able to determine whether a particular complaint should be dealt with most appropriately via the Part IV process.

If the principles of civilian oversight are to be respected, it is essential that the process by which this determination is made be coherent and transparent. It is the Chairperson's view that all allegations of police misconduct, regardless of origin, should be subject to civilian oversight. We look forward to the Provost Marshal's efforts towards implementing the recommendation from the Independent Review Authority to produce a framework clarifying this issue.

EXPANDED POWER OF SUBPOENA

To date, the Complaints Commission has conducted three joint public interest investigations involving a total of six complaints. At times, we have encountered great difficulty with witnesses – most often, members of the Military Police – declining to be interviewed by Commission Members as part of our investigation. While no witness or subject-member can be faulted for exercising their right not to appear, their main concern in doing so appears to be that they have no protection against the future use of their statement.

In its submission to the Independent Review Authority, the Complaints Commission proposed that it be given the power to compel witnesses to cooperate with public interest investigations – not only hearings – and, at the same time, afford the appropriate protections to witnesses.

In the view of the Complaints Commission, it should not be necessary to go to the added expense associated with a formal public hearing merely to conduct a proper investigation. If nothing else, sound financial management dictates such a threshold. It is worth remembering, as evidenced in section 250.14 of the National Defence Act, that Parliament intended the Complaints Commission to function as expeditiously and informally as possible; with the power of subpoena as described, the Complaints Commission would be able to more fully comply with that intent.

It is interesting to note that the Independent Review Authority recommended the Canadian Forces Grievance Board be given the power of subpoena for investigations. In the interest of both effectiveness and efficiency, I believe the Military Police Complaints Commission should have this same power (see Recommendation 1).

NUMBER OF COMPLAINTS

The Complaints Commission has received only four complaints of interference with a Military Police investigation since its inception, and none in 2003.

There are a number of potential explanations for these numbers – the drop in conduct complaints, for example, could simply be a natural fluctuation – but it is most likely a combination of factors.

First, of course, we must consider the impact of the 1998 revisions to the National Defence Act, including the creation of the Military Police Complaints Commission and the Military Police Code of Conduct. Mere awareness of the existence of external civilian oversight, or of the possibility of an interference complaint, may well be having a salutary effect on behaviour, either directly or indirectly.

A second factor, discussed in greater detail above, may be that some complaints are being incorrectly screened out of the Part IV process as being purely “internal” matters, or as not pertaining to policing duties and functions. Adding greater transparency to the process by which these determinations are made would permit a more accurate assessment of the impact of this factor on the number of complaints received by the Complaints Commission.

A third part of the explanation, particularly for the low number of interference complaints, could be fear of reprisal on the part of military police. This has been borne out in meetings between the Complaints Commission and Military Police members, some of whom have stated that they would “never” file an interference complaint because they feel they have no protection in the legislation.

This is most distressing. 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. Both feared and actual reprisals can suppress legitimate interference and conduct complaints alike.

The Complaints Commission brought this situation to the attention of the Independent Review Authority of the National Defence Act, and I am pleased that providing explicit protection against reprisal for those who file complaints was among its recommendations.

Complainants acting in good faith must have protection in the legislation; however, given the evidence that a lack of protection may already be stifling legitimate complaints, I believe this matter can and should be addressed immediately through the issuing of appropriate orders and instructions to all members of the Canadian Forces and officials of the Department of National Defence. (see Recommendation 2).

Finally, the impact of a fourth factor on the number of requests for reviews must be considered: more and more often, allegations of military police misconduct are being substantiated by the investigations of the Canadian Forces Provost Marshal. It follows that more complainants are satisfied with the disposition of their complaint, and are not requesting reviews by the Complaints Commission, while Military Police members who are the subject of a complaint have no right to request a review.

FAIRNESS

In the interest of both fairness and efficiency, the Complaints Commission recommended to the Independent Review Authority 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.

I am pleased to note that the Independent Review Authority endorsed this recommendation, and I hope that this recommendation will be implemented with a view to bringing additional fairness and balance to the complaints process.

CONCERNS RAISED BY MILITARY POLICE

As in past years, the Complaints Commission Chairperson or Members and staff visited seven Canadian Forces bases in 2003, meeting with rank-and-file members of the Military Police, as well as authorities in the chain of command of the Canadian Forces (see Outreach, p. 43).

Some of the feedback we receive from military police is cause for concern. In addition to the oft-repeated statement by some, noted earlier, that they would “never” file an interference complaint, military police are expressing a general feeling of vulnerability with regard to the complaints process. Among others, military police feel the process leaves them unfairly exposed to malicious complaints, or that the process may be geared too much toward appeasing complainants, thus avoiding a review by the Complaints Commission, rather than toward fairness to all concerned. Military police have also expressed a desire to be represented by counsel when they are asked to appear before the Complaints Commission or otherwise involved in a Part IV process.

We believe that by extending the right of review under Part IV to Military Police members who are the subject of a complaint, and by affording appropriate protections against reprisals to those who in good faith make complaints – especially interference complaints – some of these legitimate concerns will be addressed.

I am very pleased, therefore, that the Independent Review Authority also recognized the seriousness of these concerns. The Independent Review Authority recommends that any Military Police member who may be the subject of a complaint should also possess the right to request a review of the disposition of the complaint, and also that Military Police members who lodge complaints be given explicit protection from reprisal.

TOWARD A MORE EFFICIENT COMPLAINTS COMMISSION

During 2003, the Complaints Commission continued to develop its capacity to effectively manage its human and financial resources, and remains committed to meeting the most exacting standards for public sector management.

The Complaints Commission also strives to ensure the complaints process is efficient as well as effective. Our recommendation to the Independent Review Authority that the Complaints Commission's power of subpoena in public interest hearings be extended to include its public interest investigations is a good example. This would allow the Complaints Commission to gather all the evidence needed to complete an investigation, without having to go to the added expense of holding a formal hearing.

As part of its ongoing efforts to implement the principles of modern comptrollership, the Complaints Commission has completed an Internal Audit Action Plan, as well as an action plan for the implementation of Modern Management Practices. A complete Business Plan will be in place for the beginning of the 2004-2005 fiscal year, allowing the Complaints Commission to comply fully with all operational reporting requirements.

Midway through the year, in order to better judge the progress to date, the Complaints Commission asked Consulting and Audit Canada to conduct a complete review of its financial systems, policies and records. I am pleased to note that while Consulting and Audit Canada did identify some minor areas where the Complaints Commission could fine tune some of its systems and procedures, the review did not reveal any significant shortcomings.

As the year ended, a second audit, as recommended by the Independent Review Authority, was in progress. This review, which also involves a workload analysis, will help to ensure the Complaints Commission has the most efficient structure and budget while remaining an effective civilian overseer of the Canadian Forces Military Police.

Of course, the key to effectiveness for any organization is the people within it. I am determined to provide employees with a work environment that is pleasant and challenging, that ensures their concerns are heard, and offers opportunities for personal and professional development.

The Complaints Commission management committee has also completed an action plan to address issues in the employee survey undertaken in 2002. Information sessions for all staff, dealing with workplace conflicts and harassment, official languages policy, and values and ethics were presented during the year.

A learning framework has been established, and individual learning plans have been formalized, including a monitoring system to ensure employees are advancing toward their stated goals.

ACKNOWLEDGEMENTS

As I have noted earlier, 2003 has been, in some ways, a challenging year for the Complaints Commission. Many have devoted substantial amounts of time, effort and considered thought to our efforts to move the civilian oversight provided by the Complaints Commission to a new level of effectiveness. In some instances, we succeeded; in others, our efforts continue.

Additionally, the Complaints Commission has implemented a number of changes to enhance its efficiency as an organization. That the staff of the Complaints Commission has performed with such dedication and enthusiasm through the inevitable uncertainty brought about by a process of restructuring speaks volumes of their professionalism and personal strength.

I would also like to acknowledge the professionalism of the men and women of the Canadian Forces who have served Canada so well and more particularly, the outstanding men and women of the Military Police.

Throughout this year, the staff of the Complaints Commission has remained focused on our goal: to contribute to the maintenance of consistently high standards of military police conduct in the performance of their policing duties, and to the integrity of Military Police investigations. While circumstances may change, our determination to move forward with our commitment to provide effective, efficient oversight remains constant.

Louise Cobetto
Chairperson
Military Police Complaints Commission