Mr. Chair, thank you very much. Members of the committee, good afternoon.
Thank you very much for this opportunity to speak to you today, albeit it was a little late. I've scrambled to put notes together, which the clerk has, and which I'm not going to get through in the 10 minutes. The clerk has kindly indicated that he will have them translated and distributed so that you might at some point see all of my thoughts, and I appreciate that.
I'm very appreciative of participating in this process concerning a very important matter regarding the military justice system. As the chair has indicated, I come at this not just based on being the former chair of the Military Police Complaints Commission but having a career-long history in military justice, first as a military police officer, then as a military lawyer, and subsequently, both nationally and internationally, in matters of police management and governance.
I'm going to focus the few minutes I have with respect to one small provision of Bill C-15, namely subclause 18.5(3). I will proceed on the assumption that the contents of that proposed subclause are well known to the members of the committee. It is specifically with respect to the new-found statutory authority for the Vice Chief of the Defence Staff to direct the Canadian Forces provost marshal in respect of specific military police investigations.
Proposed subsection 18.5(3), as I've indicated, is very small, but in my view it is very large in terms of its negative impact on both the independence of the police, both real and perceived, and the oversight mechanisms, specifically the oversight mechanism in the military police commission oriented toward the prohibition of interference with police investigations.
It's my respectful submission that if realized, this small provision could be a retrogressive step and serve as the single most significant contribution to Bill C-15's short title of strengthening the military justice system.
The strengthening of the military justice system, of which the military police are a critical component, has been an evolutionary process since the Somalia commission of inquiry report in 1997 and the subsequent passing of Bill C-25 in 1998. Prior to that, Canada's military justice system, as embodied in the National Defence Act, had remained largely stagnant and largely unchanged for half a century, from the mid-1950s, when the first National Defence Act was passed, until 1998.
In fact, in 1992 there was a collective sigh of relief when the military justice system survived its first significant challenge under the Canadian Charter of Rights and Freedoms when the Supreme Court of Canada found the centrepiece of the system, trial by court martial, to be charter-compliant as a result of regulatory changes that were made, such as tribunal independence.
What could not be foreseen was that just over the horizon events occurring in Somalia in 1992 and 1993 would result in the Canadian Forces, including the military justice system, being subjected to public scrutiny, the likes of which had never been experienced before. Notwithstanding that the conduct of the Canadian Forces members in Somalia was investigated by the military police and charges were laid, including those of murder and torture, and notwithstanding that trials by court martial took place and that appeals were made to the Court Martial Appeal Court as well as to the Supreme Court of Canada without judicial criticism of the process, the court of public opinion was not so satisfied.
I appreciate that the committee has already heard extensively about this evolutionary process, but in that so much reliance seems to be placed on the very worthy opinions of former chief justices of Canada in respect of issues of constitutionality, I want to invite your attention very briefly to their specific and equally worthy advice in respect of matters of police independence and oversight.
First, the Somalia commission examined in detail the institutional response to the events in Somalia, including that of the military police. In so doing, it was particularly critical of the positioning of the military police within the military hierarchy and the influence of commanding officers as well as the chain of command over police operations, which vitiated any notion of independence and gave rise to the potential for the perception of improper influence being exercised. Accordingly, one significant recommendation was that the head of the military police be responsible to the Chief of the Defence Staff for all purposes except for the investigation of major disciplinary or criminal conduct.
Bill C-25 was also significantly informed by the 1997 report of a special advisory group, called the SAG on military justice and military police investigation services, chaired by the late Right Honourable Brian Dickson.
Concerning the military police, the SAG report dealt with many of the same themes as those probed by the Somalia commission, including the competing or conflicting imperatives of command and control for the military police role in support of military operations and those for the purely police investigative function.
In order to meet the requirements of both roles, the Dickson SAG report recommended a bifurcation of the process, with military commanders retaining command and control over military police personnel employed in operational support or intelligence roles, while all others would be under the direct command and control of the head of the military police. In the latter regard, the report stressed at length the importance of the independence of policing to ensure the integrity of the justice system.
An additional significant feature of the SAG report was that in the vein of ensuring confidence and respect for the military justice system, it recommended the establishment of an independent office for complaint review and oversight of the military police consistent with the established norms for the civilian police.
The subsequent Dickson report, the report of the military police services review group, received in 1998, found that the accountability framework signed by the VCDS and the provost marshal in 1998 conformed with the recommendations of the SAG report in respect of the independence of the policing function. A key feature of the accountability framework was that the VCDS would have no direct involvement in ongoing investigations and would not direct the CFPM with respect to operational decisions of an investigative nature.
As you're well aware, the first statutorily mandated review of the NDA was completed by the late Right Honourable Antonio Lamer in 2003. Of particular note, regarding the highly connected matters of military police independence and oversight, were two significant observations made in the report.
One was in respect of the role of the provost marshal, where Justice Lamer observed that it
...is largely governed by the Accountability Framework that was developed in 1998 to ensure both the independence of the Provost Marshal as well as a professional and effective military police service...
“This legislative omission”, he then observed, was in an accountability framework, like a memorandum of understanding, but was not within a statutory framework as existed for those such as military judges, the JAG, the director of military prosecutions, etc.
He went on to say that
Support has been given to the military police through the creation of the MPCC, a quasi-judicial civilian oversight body and operating independently of the Department...and the Canadian Forces. The MPCC was established to make the handling of complaints involving the military police more transparent and accessible
—and most specifically—
to discourage interference with military police investigations....
My submission is that Bill C-15 does comply with Lamer's recommendation to fill the legislative void concerning the responsibilities of the CFPM by proposing they be codified in the NDA. However, in so doing, and notwithstanding the consistent recommendations of the Somalia commission, the Dickson report, and Lamer in respect of the necessary independence of the military police from the chain of command in respect of police operational decisions and investigations—as well, it is in stark contrast to the accountability framework—it includes a provision that specifically authorizes the VCDS to
issue instructions or guidelines in writing in respect of a particular investigation.
Justice systems must continuously evolve to meet the ongoing changing circumstances, standards, and expectations of the societies that they are intended to serve. The military justice system has experienced a long overdue and rapid period of evolution over the last two decades, including recognition that the military police are a Canadian police service—in fact, the seventh-largest in Canada—with a public expectation that they will enforce Canadian law at home and abroad at the highest standards.
Bill C-15 is part of that continuing process. What is under discussion here is whether a significant part of that evolutionary process and the consistent recommendations in terms of the key issues of police independence and the associated matter of effective oversight of military policing will be inexplicably disregarded and the clock, in fact, turned back.
My very brief summary submission is that if Bill C-15 is passed into law in its present form, inclusive of the new subsection 18.5(3) authorizing the VCDS to interfere with police operations and investigations, it will be inconsistent with the principles of police independence as recognized by the Supreme Court of Canada at late as 1999 as underpinning the rule of law, as well as run counter to the norms of police-government relations, certainly in Canada, and I can tell you internationally in developed countries, which recognize the importance of police independence and prohibit police service boards or similar executive bodies from giving directions regarding specific police operations.
It would also effectively contradict, even repudiate, the notion of improper interference by the chain of command as established in the oversight jurisdiction of the Military Police Complaints Commission and thereby effectively eliminate oversight by statutory authorization of such interference by the VCDS, a person not subject to the jurisdiction of the complaints commission.
I'm here to answer your questions as you may have them, but I leave off by asking you one: why?