Chapter 3 – The Military Police Complaints Commission

  1. The Military Police Complaints Commission (“MPCC”) was established pursuant to Bill C-25Footnote 642 in response to recommendations contained in the Somalia Inquiry ReportFootnote 643 and Dickson Report.Footnote 644
  2. As Chief Justice Lamer noted in his report in 2003:
    • Both reports highlighted the perceived conflict of interest to which military police are subject given that they are soldiers first, peace officers second. Due to this dual role, both reports noted the existence of a potential vulnerability to the influence of the chain of command that military police may feel when fulfilling policing duties in their unit.
    • 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 of National Defense and the Canadian forces. The MPCC was established to make the handling of complaints involving the military police more transparent and accessible, to discourage interference with military police investigations, and to ensure that both complainants and members of the military police are dealt with impartially and fairly.Footnote 645
    1. Changed Context for Policing and Oversight
      1. The context within which police forces operate and the expectation for effective oversight have changed significantly since the MPCC was established in 1998. The public is much more aware of issues of police misconduct. There have been numerous high profile incidents in the United States and Canada, many of which were captured on cellphone video, raising questions about the behaviour of the police. Incidents of this sort lead to calls for reform both in police practices and in oversight.
      2. The members of the military police have not been immune from this heightened scrutiny. Since the beginning of my review, there have been media reports and testimony before parliamentary committees of alleged victims of sexual misconduct and sexual assault in the Canadian Armed Forces (“CAF”). They have raised concerns about the conduct of military police investigators in dealing with sexual assaults.
      3. A number of provinces have created more robust oversight mechanisms in response to allegations of police misconduct. In 2013, the Civilian Review and Complaints Commission (“CRCC”), the civilian oversight body for the Royal Canadian Mounted Police (“RCMP”) on which the MPCC was originally modeled, was given significant new powers to compel disclosure of information by Bill C-42.Footnote 646 These changes implemented a series of recommendations from the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (“Arar Inquiry”). As a result, at both the federal and provincial levels, there are new, or significantly strengthened, independent police oversight bodies which surpass the strength of the MPCC in their oversight authority. In the September 2020 Speech from the Throne, the Government of Canada promised further strengthening of civilian police oversight.Footnote 647
    2. Powers of the Military Police Complaints Commission
      1. Overview
        1. The MPCC has no remedial powers. It makes recommendations which are not binding on the CAF and the Department of National Defence (“DND”).
        2. The MPCC has the authority to investigate conduct complaints and interference complaints. It may also initiate public interest investigations and hold hearings. These functions are described here briefly.Footnote 648
          1. Conduct Complaints
            1. Conduct complaints are initially the responsibility of the Canadian Forces Provost Marshal (“CFPM”).Footnote 649 Those complaints can deal with everything from allegations of rude behaviour by members of the military police, to issues about the manner in which search warrants were executed, to allegations of illegal search and seizure, to complaints about the failure to investigate or about decisions to lay charges or to refuse to do so.
            2. The MPCC is notified of all conduct complaints and monitors their handling by the Military Police Professional Standards office (“PSO”) of the Canadian Forces Military Police Group. Where appropriate, consideration is given to informal resolution of the complaint.Footnote 650 Following the PSO investigation, a report is issued setting out the findings and action taken in respect of the complaint.Footnote 651
            3. If the complainant is dissatisfied with the disposition of the complaint, a review by the MPCC may be requested.Footnote 652 The MPCC obtains and reviews the military police files and any material provided by the complainant. The MPCC has discretion to conduct further investigations and may do so by seeking additional records, interviewing witnesses, or both.Footnote 653
            4. Following its review, the MPCC issues an interim report setting out its findings and any recommendations in respect of the complaint.Footnote 654 This is accompanied by a supporting analysis of facts and relevant laws, policies or policing best practices. Recommendations for individuals commonly concern conduct improvements, training, and increased supervision. Institutional recommendations for the military police concern general training, the need for equipment or maintenance, and changes to procedures, policies or practices.
            5. The interim report is sent to the CFPM, the Chief of the Defence Staff (“CDS”) and the Minister of National Defence (“Minister”). The CFPM is required to provide the MPCC with a notice of action indicating any action that has or will be taken with regard to the complaint.Footnote 655 If the CFPM declines to act on a finding or recommendation of the MPCC, he must indicate his reasons.Footnote 656
            6. After considering the notice of action, the MPCC prepares and issues its final report.Footnote 657 This is provided to the same recipients as the interim report but also to the Deputy Minister of National Defence (“Deputy Minister”), the Judge Advocate General (“JAG”), the complainant and the subject of the complaint.

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          2. Interference Complaints
            1. The MPCC has the sole jurisdiction to investigate interference complaints. These are complaints by members of the military policeFootnote 658 who conduct or supervise investigations that a member of the CAF or a senior DND official has improperly interfered with an investigation. Improper interference with an investigation is defined to include intimidation and abuse of authority.Footnote 659
            2. In deciding such complaints, the MPCC has determined that interference may also include instances of direct intervention by a non-military-police member, encouraging individuals not to cooperate with an investigation, threatening people who cooperate with a police investigation, and leaking information concerning an investigation. The MPCC does not consider decisions and directions by a military police supervisor to constitute interference, provided that the supervisor acts in good faith and for a proper purpose.
            3. The process for interference complaints is shorter than for conduct complaints. These go directly to the MPCC for disposition. Otherwise, interference complaints follow the same process as reviews of conduct complaints. The only difference is that the CDS or the Deputy Minister, rather than the CFPM, provides the notice of action in response to the interim report of the MPCC.
          3. Public Interest Investigations and Hearings
            1. If it is in the public interest, the Chairperson of the MPCC may at any time initiate an investigation into a complaint about police conduct or interference in a police investigation. The Chairperson may cause a public investigation to be held even if the complainant withdraws the complaint.Footnote 660 If the Chairperson thinks it is warranted, a public hearing may be held.Footnote 661 Where a public interest hearing is called, the MPCC has the power to compel witnesses to attend, answer questions and produce documents and other material under their control. Otherwise, cooperation with the investigation is voluntary.Footnote 662
            2. In deciding whether to exercise this statutory discretion to initiate a public interest investigation or hearing, the Chairperson may consider a number of factors, including the following:
              1. Does the complaint involve allegations of serious misconduct?
              2. Do the issues have the potential to affect confidence in the military police or the complaints process?
              3. Does the complaint involve or raise questions about the integrity of senior DND or CAF officials, including senior members of the military police? And
              4. Are the issues of broader public concern or importance?
      2. Proposed Reforms
        1. The MPCC has identified several priority issues for reform. Before I discuss these, I think it is important to note that I had very few comments on the powers of the MPCC other than from the MPCC itself.
        2. In its submissions, the MPCC has raised the concern that it has no ability within the Defence portfolio to advance its own legislative proposals, or even to argue for the implementation of recommendations of previous independent review authorities.
        3. The recommendations in this chapter would benefit from a commitment to regular consultation that would allow the MPCC to engage with key actors within the DND and the CAF to discuss reforms affecting the MPCC or Part IV of the NDA, which establishes the regime for complaints about or by military police. These actors include the CFPM, the JAG and the Director of Military Prosecutions (“DMP”).
          • Recommendation #75. There should be regular consultation between the Military Police Complaints Commission and key actors within the Department of National Defence and the Canadian Armed Forces prior to the tabling of legislation or the promulgation of regulations or policy changes affecting the Military Police Complaints Commission or Part IV of the National Defence Act.
          1. Documentary Disclosure Requirements
            1. In its submission, the MPCC indicates that it can only compel the production of records in the case of a conduct inquiry or a public interest hearing. It recommends that it be given the power to compel production in the case of interference complaints and in public interest investigations.
            2. Moreover, the MPCC suggests that the power to request disclosure apply to the CFPM, to the CAF and to the DND. The reason for this is that records relevant to a MPCC process are often not under the control of the CFPM.
            3. As the Federal Court has stated in Garrick v Amnesty International Canada (“Garrick”), “[i]f the Commission does not have full access to relevant documents, which are the lifeblood of an inquiry, there cannot be a full and independent investigation”.Footnote 663
            4. The investigative power sought by the MPCC was given to the CRCC in 2013. Subsection 45.39(1) of the RCMP ActFootnote 664states that the CRCC “is entitled to have access to any information under the control, or in the possession, of the Force that the Commission considers is relevant to the exercise of its powers, or the performance of its duties and functions” under the relevant parts of the RCMP Act. The MPCC considers this authority as a good model.
            5. It appears reasonable to provide the MPCC with a consistent power to compel disclosure. As to who gets to decide relevance, I note the following passage from the above-noted decision in Garrick, with which I agree:
              • [I]t is for the Commission, not for the government, to determine ultimately what documents are relevant to its inquiry. If it were otherwise, the Commission would be at the mercy of the body it is supposed to investigate. This was clearly not the intent of Parliament.Footnote 665
              • Recommendation #76: The National Defence Act should be amended to require the Canadian Forces Provost Marshal, the Canadian Armed Forces and the Department of National Defence to disclose to the Military Police Complaints Commission any information under their control or in their possession which the Military Police Complaints Commission considers relevant to the performance of its mandate.
              • With respect to information which involves a claim of solicitor-client privilege, this recommendation is subject to the outcome of the discussions referred to in Recommendation #79.
          2. Subpoena Powers
            1. Aside from being able to summon witnesses when conducting a public interest hearing, the MPCC has no authority to oblige people to give evidence. In all of its other processes, it is reliant on the goodwill of those with knowledge of complaints to cooperate voluntarily. It regularly sees members of the military police decline to be interviewed in respect of an investigation.
            2. Again, Canada’s other federal police oversight body, the CRCC, has since 2013 been given broad authority to summon witnesses.Footnote 666
            3. The provisions compelling testimony are accompanied by legal protections. For example, subsection 45.65(3) of the RCMP Act provides that evidence given, or a document or thing produced, by a witness who is compelled to produce it may only be used against the witness in perjury proceedings.
            4. I recommend that the MPCC’s powers to summon witnesses be extended, with appropriate protections, to all MPCC processes.
              • Recommendation #77. The National Defence Act should be amended to give the Military Police Complaints Commission the power to summon and enforce the attendance of witnesses before it and compel them to give oral or written evidence on oath. The Military Police Complaints Commission should also have the authority to require any person, regardless of whether that person is called to testify, to produce any documents or things that the Military Police Complaints Commission considers relevant for the full investigation, hearing and consideration of a complaint.
              • With respect to information which involves a claim of solicitor-client privilege, this recommendation is subject to the outcome of the discussions referred to in Recommendation #79.

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          3. Access to Sensitive Information
            1. The MPCC brief raises the concern that its inability to expeditiously access information that is considered sensitive or potentially injurious within the meaning of the Canada Evidence ActFootnote 667 (“CEA”) hampers its ability to conduct timely processes in some cases.
            2. At present, the MPCC is subject to the process set out at sections 38 to 38.16 of the CEA. These provisions require all participants in a proceeding to notify the Attorney General of Canada (“Attorney General”) of the possible disclosure of information they believe is sensitive or potentially injurious. Such information may not be disclosed, but the Attorney General may authorize disclosure of all or part of the information, subject to any conditions he considers appropriate. While a party or a tribunal seeking access to such information may challenge the Attorney General’s decision, this requires that the proceeding be delayed while the issue is litigated.
            3. The MPCC had experience with this process during its public interest hearing into the treatment of Afghan detainees. The government took the position that the MPCC could only receive documents after they were vetted and redacted. In practice, this resulted in significant delays of many months before the MPCC could obtain documents required for the conduct of its hearings.
            4. There is a more expeditious alternative. The MPCC recommends that it be added to the Schedule of Designated Entities (“CEA Schedule”) as provided for in paragraph 38.01(6)(d) and subsection 38.01(8) of the CEA. If the MPCC became a designated entity, the disclosure restrictions would not apply and the MPCC could receive the sensitive information in question. It would have the corresponding obligation to put in place stringent non-disclosure requirements. If and when the MPCC would consider it necessary to make sensitive information public, the mentioned safeguards of sections 38 to 38.16 of the CEA would apply and any disclosure would need to be negotiated or litigated with the Attorney General.
            5. The MPCC considers that there would be significant advantages to being added to the CEA Schedule. This would narrow and possibly eliminate the scope of public information for which disclosure would need to be negotiated or litigated. Having access to the information early in its proceedings, the MPCC would acquire a more refined understanding as to what records are relevant to the resolution of the matter before it. In some cases, it may turn out to be unnecessary to refer to sensitive information in the report. In those cases, the MPCC’s listing on the CEA Schedule would obviate the need for litigation altogether. In other cases, the MPCC could issue a provisional final report with some information redacted pending the results of litigation.
            6. There are a number of factors that favour giving serious consideration to adding the MPCC to the CEA Schedule. First, MPCC processes may require access to sensitive or potentially injurious information. For example, a military police investigation into the conduct of the Canadian Special Forces Operations Command of the CAF could involve sensitive information. Second, the CRCC was added to the CEA Schedule in 2013, as a result of recommendations of the Arar Inquiry. And third, I believe that having earlier access to sensitive or potentially injurious information could result in more timely public interest hearings and would increase public confidence in the MPCC’s ability to offer effective oversight of the military police.
            7. Nevertheless, I think it is important to act with prudence on matters touching on national security. It would be important to ascertain the views of government officials responsible for national security policy. I therefore recommend that discussions be undertaken between the MPCC, the DND, the CAF, the Privy Council Office and the Department of Justice Canada to examine the merits of adding the MPCC to the CEA Schedule as well as the legislative requirements for doing so.
              • Recommendation #78. Discussions should be undertaken between the Military Police Complaints Commission, the Department of National Defence, the Canadian Armed Forces, the Privy Council Office and the Department of Justice Canada to examine the merits of adding the Military Police Complaints Commission to the schedule of the Canada Evidence Act as well as the legislative requirements for doing so.
          4. Access to Solicitor-Client Privileged Information
            1. In its submission, the MPCC takes the position that legal advice sought and provided to members of the military police is often relevant to the fair and effective resolution of complaints.Footnote 668 It suggests that it be provided access to solicitor-client privileged information where relevant to the determination of a complaint.
            2. At present, the MPCC is unable to access such information from the CFPM, even though the CFPM has access to such information for the purposes of its initial determination of a conduct complaint.
            3. The MPCC receives many complaints about actions taken or not taken with the benefit of legal advice: searches and seizures, arrests and the decision of whether or not to lay charges. The MPCC submits that it is not possible to fully and fairly explain charge-laying decisions by members of the military police without some knowledge of the pre-charge consultations between them and their legal advisers. For example, the inability for the MPCC to have access to legal advice does not permit the MPCC to confirm that a member of the military police provided an accurate description of the evidence to a prosecutor, or that the ensuing legal advice was properly considered.
            4. Nor is it appropriate for the MPCC to simply substitute its own assessment of the grounds for a charging decision for that of members of the military police. A military police member’s exercise of discretion should be reviewable on a standard of reasonableness, rather than correctness. Having followed legal advice does not operate as a complete defence to the consequences flowing from the decisions or actions of a military police member, but is certainly relevant to a consideration of their reasonableness.
            5. The DMP raised concerns about providing the MPCC with access to legal advice provided by military prosecutors to the Canadian Forces National Investigation Service. He is aware of the desire of the MPCC to have access to this advice. However, the DMP is concerned that in order for military prosecutors to have full and frank discussions with members of the military police, their advice needs to be protected from disclosure. I understand from the submissions of the MPCC that the JAG also has concerns about providing privileged information to the MPCC.
            6. According to the MPCC, there are also disagreements on the scope of what information is actually privileged. With a view to finding practical solutions, the MPCC has set up a joint working group with the CFPM’s legal advisors on redactions to CFPM disclosures. The MPCC is of the view that the success of those efforts is largely dependent on the outlook of the particular legal officers advising the CFPM at any given time.
            7. There have been numerous efforts over the years to resolve, or work around, the issue of solicitor-client privileged information in a way that would both respect the importance of the privilege and allow the MPCC to access the information for limited purposes in certain cases. The MPCC takes the view that, without a basic legislative right of access, these types of efforts can only bring limited relief to the problem.
            8. This issue was addressed in the RCMP context. In 2013, the CRCC was given wide powers of access to information, including solicitor-client privileged information, in order to carry out its oversight role.Footnote 669 These powers apply, among other things, to the CRCC’s police complaints mandate, on which the MPCC complaints regime is modeled. I am also aware that there are other legislative models that compel the production of solicitor-client privileged information, but provide that disclosure does not amount to a waiver of privilege.Footnote 670
            9. I am of the view that there is a strong argument to be made that the MPCC should have access to solicitor-client privileged information where it is relevant to the determination of a complaint. However, I am also mindful of the above-noted concerns that have been expressed by the DMP and the JAG.
            10. I think it is important that further efforts be made to resolve this issue. These efforts should involve the MPCC, the CFPM, the JAG and the DMP. They should be preceded by analysis of the regime in place in the RCMP Act that allows the CRCC to have access to solicitor-client privileged information, including the safeguards that are provided for. Due consideration should be given to other regimes that compel the disclosure of solicitor-client privileged information and to the safeguards they contain. It would be helpful if external experts on the RCMP Act provisions and on the current state of police oversight powers were part of the discussion.

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              • Recommendation #79. There should be discussions between the Military Police Complaints Commission, the Canadian Forces Provost Marshal, the Judge Advocate General and the Director of Military Prosecutions with a view to reaching agreement on the circumstances when the Military Police Complaints Commission should be given access to solicitor-client privileged information, with appropriate limits and safeguards to avoid waiver of the privilege. The discussions should examine options for consequential amendments to the National Defence Act. Due consideration should be given to other regimes that compel the disclosure of solicitor-client privileged information and to the safeguards they contain. Outside experts should be engaged in the discussions.
          5. Access to Personal Information Not Under the Control of the Canadian Forces Provost Marshal
            1. This proposal aims to address a problem created by the fact that the CFPM and the Canadian Forces Military Police Group are not institutionally independent from the broader DND and CAF.
            2. The CFPM is required to provide to the Chairperson of the MPCC all information and materials that are relevant to a conduct complaint.Footnote 671 I am informed that this includes personal information within the meaning of the Privacy Act.Footnote 672 However, information and records that are not scanned into the Canadian Forces Military Police Group’s Security and Military Police Information System may be beyond the “control” of the CFPM for the purposes of the Privacy Act, because the CFPM does not control the broader DND and CAF information technology and management systems.
            3. The DND and CAF, for their part, do not consider themselves bound by the CFPM’s disclosure obligations under Part IV of the NDA. They accordingly feel bound to resist disclosure to the MPCC of records containing personal information, consistent with their obligations under the Privacy Act. It is also possible that records relevant to MPCC investigations involving members of the military police could be held by other departmentsFootnote 673 of the Government of Canada. As a result, the CFPM may not be able to disclose relevant military police information to the MPCC, even though it may be stored on government computer networks or devices.
            4. In cases where non-military-police records have been unsuccessfully sought, the MPCC has been advised that access to such material would be possible if the MPCC had been designated as an investigative body for the purposes of paragraph 8(2)(e) of the Privacy Act. Under that provision, personal information may be disclosed to an investigative body specified in Schedule II of the Privacy RegulationsFootnote 674for the purpose of enforcing any law of Canada or a province or carrying out a lawful investigation, on a written request specifying the purpose and describing the information to be disclosed.
              • Recommendation #80. The Military Police Complaints Commission should be added to the list of designated investigative bodies in Schedule II of the Privacy Regulations.
          6. Time Limit for Requesting a Review
            1. Pursuant to section 250.2 of the NDA, there is a time limit of one year (after the event giving rise to the complaint) for a person to make a conduct or interference complaint, which can be extended by the Chairperson of the MPCC when considered reasonable in the circumstances. However, there is no time limit for requesting a review of a conduct complaint following the CFPM’s disposition.
            2. The MPCC advocated for a time limit for requesting a review of the CFPM’s disposition of a conduct complaint under section 250.31 of the NDA. This would be subject to the same Chairperson’s discretion in respect of extensions.
            3. Both Chief Justice Lamer and Chief Justice LeSage recommended time limits on requests for review: 60 and 90 days respectively. The RCMP Act imposes a 60-day time limit for requests for review to the CRCC. The MPCC recommends a 90-day time limitation. I endorse this option.
              • Recommendation #81. The National Defence Act should be amended to establish a 90-day time limit for requesting a review of a conduct complaint after it has been investigated by the Canadian Forces Provost Marshal.
          7. Time Limit for Providing a Notice of Action
            1. Another stage of the process where timeliness is presently unregulated is the issuance of the notice of action in response to the interim report of the MPCC. The MPCC cannot proceed to its final report and conclude its process without having first considered the notice of action.
            2. It is the CFPM who prepares the notice of action in the case of all conduct complaints, except where it is the CFPM who is the subject of the conduct complaint. In those cases and in most interference cases, it is the CDS who is responsible for the notice of action. Where the subject of an interference complaint is a senior civilian official of DND, the Deputy Minister is responsible for the notice of action. Finally, where the subject of an interference complaint is either the CDS or the Deputy Minister, the review of the MPCC Interim Report and the preparation of the notice of action falls to the Minister.
              • Recommendation #82. The National Defence Act should be amended to establish a 90-day time limit for the production of the notice of action, subject to extension by the Chairperson of the Military Police Complaints Commission. In the absence of a notice of action or application to extend within this time frame, the Military Police Complaints Commission should be authorized to proceed to issue its final report.
              • If Recommendation #13 is implemented and the Canadian Forces Provost Marshal becomes responsible to the Minister of National Defence in the performance of his duties and functions, the Minister and not the Chief of the Defence Staff should issue the notice of action where the Canadian Forces Provost Marshal is the subject of a complaint.
          8. Chairperson-Initiated Complaints
            1. The MPCC believes that it has the implicit authority to initiate complaints on its own authority by the fact that “any person”, pursuant to section 250.18 of the NDA, may file a conduct complaint. The MPCC seeks greater clarity on this matter and is requesting explicit authority to do so. This is consistent with the power available to the CRCC.Footnote 675
            2. An oversight body has a greater capacity to discern systemic problems than does an individual complainant. It is by means of a tribunal-initiated complaint that a wider policy or training issue can best be examined.
            3. Chief Justice Lamer supported the notion that the Chairperson of the MPCC should be allowed to submit a conduct complaint for investigation by the CFPM where the Chairperson is satisfied that there are reasonable and probable grounds for such an investigation. He made his recommendation recognizing that while the authority to do so may already exist in the NDA, there has been some confusion, so clarification may be in order.Footnote 676
              • Recommendation #83. The National Defence Act should be amended to make express provision for conduct complaints initiated by the Chairperson of the Military Police Complaints Commission. In the case of such complaints, the provisions of subsections 250.27(1) (informal resolution of complaints) and 250.28(2) (screening out of complaints that are frivolous or vexatious) of the National Defence Act should not apply.

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          9. Authority to Remit Conduct Complaint Back to the CFPM for Further Investigation
            1. Part IV of the NDA makes it clear that the CFPM has primary responsibility for dealing with conduct complaints. At the review stage the MPCC “may investigate any matter relating to the complaint”.Footnote 677 The MPCC submits that the clear intent of the legislation is that, normally, the MPCC should be able to complete its review of a conduct complaint without conducting a de novo investigation.
            2. The MPCC submits that, in practice, it is regularly obliged to carry out its own investigation to fill in gaps in the first instance review. The problem is often due to the PSO investigators taking a more restricted view of a complaint than the MPCC. The MPCC contends that at present, in the event of any such disagreement, its only option is to undertake its own investigation. This can lead to the MPCC taking on a significant investigatory role, with the attendant need for increased resources.
            3. The MPCC recommends that it be granted the authority, at the review stage, to remit all or part of a conduct complaint back to the CFPM for further investigation. I believe that this matter would benefit from further consideration. If this is a regularly occurring problem, there should first be a discussion between the MPCC and the CFPM to understand the underlying reasons. Is it a question of fundamental disagreement on the nature of the scope of complaints? Is it a problem of inadequate resourcing for PSO investigations?
              • Recommendation #84. There should be an early opportunity for discussion between the Military Police Complaints Commission and the Canadian Forces Provost Marshal to agree on problem definition and on solutions regarding the Military Police Complaints Commission’s contention that it is regularly obliged to carry out its own investigation to fill in gaps in the Canadian Forces Provost Marshal investigation. The option of providing authority to the Military Police Complaints Commission to remit a matter back to the Canadian Forces Provost Marshal for further investigation should be considered.
          10. Authority to Identify and Classify Complaints
            1. The MPCC, in its submissions, requested the authority to identify and classify complaints. It is not always evident whether or not a particular communication constitutes a valid conduct or interference complaint. The NDA is silent on who should classify communications as valid complaints under Part IV of the NDA.
            2. Differences of opinion between the PSO and the MPCC on the classification of complaints continue to arise, particularly as to what constitutes a policing duty or function. While a collaborative approach often resolves the issue, the MPCC takes the view that such fundamental matters should not be left to depend on the goodwill of individual incumbents of positions.
            3. Both previous independent review authorities recommended that the CFPM be required to develop a framework for the determination of whether conduct complaints triggered the jurisdiction of the MPCC. Chief Justice Lamer took the view that a strict division between complaints that trigger independent oversight and those that do not would be impossible. His solution was to have the CFPM draft a framework that would set out criteria to be applied by the CFPM to conduct complaints to determine whether or not the conduct complained of triggers the jurisdiction of the MPCC.Footnote 678 His recommendation was reiterated and adopted by Chief Justice LeSage.Footnote 679
            4. The MPCC takes strong issue with these recommendations. It believes they make no sense in the context of a complaints regime featuring external oversight. The notion that an overseen police service should determine the role of the oversight body raises at least the perception of a conflict of interest and is contrary to the very idea of independent oversight. The MPCC submits that it is the only logical candidate for this role, from the perspective of preserving the integrity of independent oversight.
            5. The MPCC recommends that the NDA be amended to clarify that it is for the review body to determine whether a communication received by an authority mentioned in subsection 250.21(1) of the NDA constitutes a conduct or interference complaint for purposes of Part IV of the NDA.
            6. In other Canadian jurisdictions, where the admissibility of a complaint, or the role of an external oversight body, hinges on how a complaint is characterized, it is uniformly the oversight body to whom the responsibility is assigned.Footnote 680
            7. I agree with the MPCC that it should not be the overseen police service alone that determines the role of the oversight body. The precedents cited above giving jurisdiction to the oversight body to determine the characterization of a complaint are instructive. Nevertheless, there are a number of stakeholders having an interest in the issue of classification who would need to be engaged in the design of such legislation. It appears to me that a number of design issues would need to be resolved. These include whether there would be a consultation requirement. Would there be a mandated process of dispute resolution? Would there be an appeal of a MPCC classification decision?
              • Recommendation #85. A working group should be established with representatives from the Military Police Complaints Commission, the Office of the Judge Advocate General and the Canadian Forces Provost Marshal to develop a process for the classification of complaints.

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