I'm glad you asked that question because, as someone who participates in policy analysis and in the drafting of legislation, I'm often surprised by some of the interpretations that people can seem to give to what is intended. Let me give you what our interpretation of the intent of that provision is, where it came from, and what it's meant to accomplish.
As has been briefly alluded to before, one of Chief Justice Lamer's recommendations was to put in the act the duties and responsibilities of the Canadian Forces provost marshal.
It's currently somewhat anomalous that after Bill C-25, part IV of the act actually mentions the provost marshal and specifies what his or her duties are in respect to the military police complaints scheme, but the act as it stands doesn't actually create the position, or mention what its responsibilities are or what its relationship is to the chain of command.
The provisions from proposed section 18.2 on are in response to the Lamer recommendation. In particular, you'll see set out in proposed section 18.4 the duties and responsibilities of the provost marshal position.
Of course, it's necessary to specify what the relationship of the provost marshal is to the chain of command and how he or she should interact with it. That is the intent of proposed section 18.5 and its proposed subsections. Proposed subsection 18.5(2) says that the VCDS may give general instructions or guidelines in respect of responsibilities described in the proposed section 18.4.
Then what seems to be under a little bit of discussion, or I would respectfully suggest misapprehension, are the provisions of proposed subsection 18.5(3), which provide that the vice chief may issue instructions or guidelines in writing in respect of a particular investigation. What's this about?
It's not intended to have a sinister effect. Without the transparency protections in the subsequent sections, I agree that one would definitely have a concern about investigative independence, but the actual intent here is to buttress independence of military police. With all due respect to those who've taken the contrary view, they simply have, as the British would say, the wrong end of the stick in terms of interpreting what this section is about.
It's intended to do three things. It recognizes the fact that in the unique circumstances of the Canadian Forces military police, they may operate in operational environments in which there is active potential for them to be required to conduct investigations in a zone of armed conflict. Everybody recognizes the possibility, and in fact the requirement, potentially arising for instruction or direction from the chain of command to the military police saying that, “No, you can't go and investigate that particular incident because there's going to be a fire mission put in there in 10 minutes. You just can't do it.”
What this is intended to do is specify, first of all, that there will be one point of contact, so you won't have various commanders in the field telling the local provost marshal, “You can't do that.” You'll have one point of contact—one dog to kick, one could say—who is the vice chief.
The second point is that he or she has to give that instruction in writing. Third, there's the very important transparency provision set out at proposed sections 18.4 and 18.5, which says that the default position is that the instruction must be made public. It gives the discretion ultimately to whether or not to release that, having regard to the impact on a particular investigation, to the provost marshal. So the provost marshal has the hammer if he or she is concerned about this, and it's transparent.
We think that if this is likely to happen in any event, it is far better to prescribe it in statute—to specify there's one person and one person only who can do it, and that it has to be transparent.
If there is a legitimate concern about investigative interference, then, of course, that is one of the provisions in part IV of the NDA, and that is one of the functions of the Military Police Complaints Commission. If the provost marshal or one of his subordinate investigators honestly felt that the instruction from the VCDS, which is transparent, was in fact improper interference, they could make an interference complaint to the Military Police Complaints Commission.
I've heard some people from the MPCC say, “Well, if it's prescribed in statute by default, we would never find improper interference.” I don't agree with that assessment. It's entirely possible for a legitimate statutory authority to be abused. In fact, courts and tribunals spend a fair bit of their time actually trying cases in which exactly that has happened.
The point is that if there was a concern about improper interference, an interference complaint could be made to the MPCC, and then they would have to do their job. They would have to apply the facts and the law, exercise their discretion, and make a finding and recommendations in respect of that.
To summarize, we consider that it's important to have one authority and for it to be transparent, and also to recognize that there is in fact a statutorily prescribed ability, in the event there was a legitimate concern about improper interference, for a complaint to be made and an investigation to be conducted in a transparent form.