Good afternoon, Mr. Chair and members of the committee.
I'd like to thank you for inviting us today to testify relative to this study of Bill C-15.
I'm accompanied today by my general counsel and director of operations, Ms. Julianne Dunbar, who has been with the commission virtually since the beginning of the commission.
I'm not going to bore you with issues relative to the mandate. Many of you will know it, or it's written in our brief. I'll simply say that the Military Police Complaints Commission's mandate is to review and investigate complaints concerning military police conduct and complaints of interference in military police investigations.
Today we're here on one issue, and it's the proposed authority of the VCDS to direct military police investigations, in particular the proposed new subsection 18.5(3) in clause 4. The provision would create a new NDA subsection that would expressly authorize the Vice Chief of the Defence staff to direct the Canadian Forces provost marshal, the head of the Canadian Forces Military Police, in the conduct of specific military police investigations.
The commission takes no issue with the general supervisory role of the VCDS vis-à-vis the CFPM as set out in proposed subsection 18.5(1), nor with the authority of the VCDS to issue general instructions to the CFPM in respect to the discharge of his responsibilities as provided in proposed subsection 18.5(2). These provisions merely codify the existing relationship as set out in the 1998 accountability framework between the VCDS and the CFPM.
The proposed subsection 18.5(3) is an important departure from the status quo, and it runs counter to the present-day accountability framework. On March 2, 1998, the accountability framework gave the authority to the VCDS.
To quote a bit of it:
The VCDS may give orders and general direction to the CFPM to ensure professional and effective delivery of policing services.
It specifically stipulated:
The VCDS shall not direct the CFPM with respect to specific military police operational issues of an investigative nature.
It goes on to say:
The VCDS will have no direct involvement in individual ongoing investigations but will receive information from the CFPM to allow necessary management decision making.
Further,
The CFPM has a duty to advise the VCDS on emerging and pressing issues where management decisions are required.
What is prompting the reversal now?
The accountability framework was reviewed and endorsed by the Military Police Services Review Group in 1998. It was developed the same year that Parliament made amendments to the NDA in Bill C-25, following the troubling incidents during the CF deployment to Somalia in the early 1990s. Also, part IV of the NDA was established, which created a complaints regime for the filing of interference complaints.
You've heard in previous testimony that the independence and integrity of military policing has been further supported through changes to the military police command structure effective April 1, 2011, with all military police members, other than those deployed on military operations, under the command of the CFPM.
The proposed authority for the VCDS in proposed subsection 18.5(3) is thus out of step with the efforts over the past 15 to 20 years to recognize and support the independence of military police within the Canadian Forces, particularly when conducting law enforcement investigations.
In its 1999 decision in R. v. Campbell, the Supreme Court affirmed that when engaged in the investigation of offences, police officers are answerable only to the law and do not act on behalf of the broader government.
You have as part of our brief an independent opinion commissioned by the military police commission from Professor Kent Roach of the University of Toronto Faculty of Law. He concluded that the proposed new clause “violates core concepts of police independence” and that the proposed authorization of interference in particular military police investigations could well run afoul of the Constitution, specifically the unwritten constitutional principle of the rule of law.
As commission chair and as a past serving member in policing for 38 years, with 14 years as chief and deputy chief of an organization, I well appreciate there are differences between military and civilian policing. However, the authority proposed to be conferred in the new subsection is specifically and exclusively aimed at the heart of military policing duties, i.e., the investigation of offences.
The dual role of MPs in the CF as police officers and as soldiers does not, in the commission's view, diminish the applicability of the legal principle of police independence to the military police when conducting law enforcement investigations. If it were otherwise, one must question why Parliament created the interference complaint mechanism in the 1998 NDA amendments that established the commission.
The 2003 report of the first independent five-year review of the 1998 amendments to the NDA, conducted by former Chief Justice Lamer, is said to provide the basis for many of the proposed amendments to Bill C-15, yet it should be noted that this report contained no recommendations for conferring such power on the VCDS. To the contrary, Justice Lamer's only concern with the 1998 VCDS and CFPM accountability framework was that its non-legislative status provided insufficient protection of the CFPM's policing independence.
As far as the commission is aware, there have been no problems with the accountability framework that justify its revocation at this time, and proposed subsection 18.5(3) runs counter to various efforts over the years to shore up public confidence in the independence of military policing.
If we equate this to civilian policing—and I know there are differences, and maybe during questions some of that may be discussed—the VCDS could be said to be analogous to a police services board. Both are involved in general policy matters, budget, and administrative issues.
There are examples across this country in provincial legislation that prohibit members of the board from interfering with policing investigations. This is not new. I've dealt with this during the last 14 years. Board members, mayors, government officials, and I cannot imagine any of you as government officials wanting to direct the policing investigations in your communities.
There are many precedents. It's provincial, federal with the RCMP, and internationally there is one in New Zealand, but let's just stay in Canada.
The Ontario legislation, as an example, provides all the steps for all the issues that can be dealt with by the board—in this case, the VCDS. The one thing that they can't do is give orders and directions on policing investigations or on day-to-day operations of the police organization.
Knowing that the independence of the police is paramount for them to do their job free of interference, what is the rationale to now include subsection 18.5(3) and apply it to the VCDS? What is the interest in having this provision and then still say that the CFPM is independent?
The commission is recommending at this time that proposed section 18.5, as it is written, be deleted, as it would be a step backwards, in our respectful submission.
Finally—and I'm only going to touch on it briefly because it's in the brief—there's an issue at page 5, as outlined. There is an additional item to correct the French version of the act. As you know, Bill C-15 includes many corrections in the French version of the act to better align it with the English version; however, one correction is overlooked, and I'll refer you to paragraph 250.42(c), which just needs to be.... We see it as a housekeeping item.
Those are my submissions. I look forward to any questions that anyone may have.