ARCHIVED - Military Police Complaints Commission - Report

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Section II – Analysis of Program Activities by Strategic Outcome

Strategic Outcome

Conduct complaints against the Military Police and interference complaints by the Military Police are resolved in a fair and timely manner and recommendations made are implemented by the Department of National Defence and/or the Canadian Forces.

Program Activity: Complaints Resolution

Program Activity Descriptions

This program aims to successfully resolve complaints about the conduct of military police members as well as complaints of interference with military police investigations by overseeing and reviewing all complaints received. This program is necessary to help the military police to be as effective and as professional as possible in their policing duties and functions.

Conduct Complaints

Anyone may make a conduct complaint regarding the Military Police in the performance of their policing duties or functions, including those individuals not directly affected by the subject matter of the complaint. The Canadian Forces Provost Marshal (CFPM) is responsible for dealing with complaints about military police conduct in the first instance. The Commission has the authority to monitor the steps taken by the CFPM as it responds to complaints, and to intervene as required.

Conduct Complaints Process

Conduct Complaint Filed

Anyone may make a conduct complaint regarding the Military Police in the performance of their duties or functions, including individuals not directly affected by the subject matter of the complaint. Such complaints are initially dealt with by the CFPM. Informal resolution is encouraged.

Complaint Investigated by the Canadian Forces Provost Marshal

As the CFPM investigates a complaint, the Commission monitors the process. At the conclusion of the investigation, the CFPM provides a copy of the Report of Findings and Actions to the Commission. The Commission may at any time during the CFPM investigation, assume responsibility for the investigation or call a public hearing if it is deemed to be in the public interest to do so.

Request for Review

Complainants can request the Commission review the complaint if they are not satisfied with the results of the CFPM’s investigation or disposition of the complaint.

Commission Reviews Complaint

At a minimum, this process involves a review of documentation related to the CFPM’s investigation. Most often, it also includes interviews with the complainant, the subject of the complaint, and witnesses, as well as reviews of relevant legislation and police policies and procedures.

Commission Releases Interim Report

At the completion of the review, the Chairperson forwards the Interim Report to the Minister of National Defence, the Chief of Defence Staff and the CFPM setting out the findings and recommendations regarding the complaints.

Notice of Action

The Notice of Action is the official response by the Canadian Forces to the Interim Report and it outlines what action, if any, has been or will be taken in response to the Commission’s recommendations.

Commission Releases Final Report

After considering the Notice of Action, the Commission issues a Final Report of findings and recommendations. The Final Report is provided to the Minister, the Deputy Minister, the Chief of Defence Staff, the Judge Advocate General, the CFPM, the complainant and the subject of the complaint, as well as anyone who has satisfied the Commission that they have a direct and substantive interest in the case.

Interference Complaints

The Commission has the exclusive authority to deal with interference complaints. Any member of the Military Police who conducts or supervises a military police investigation and believes a member of the CF or a senior official of the DND has interfered with, or attempted to influence a military police investigation, may file a complaint with the Commission. This process recognizes the special situation of the Military Police, who are both peace officers and members of the CF subject to military command.

Interference Complaints Process

Interference Complaint Filed

Members of the Military Police who conduct or supervise investigations may complain about interference in their investigations.

Commission Investigates

The Commission has sole jurisdiction to investigate interference complaints. A preliminary review is conducted to determine whether an investigation should be commenced, the scope of the investigation and how to approach the investigation. Once this is completed, the Commission commences an investigation.

Commission Releases Interim Report

The Interim Report includes a summary of the Commission’s investigation, as well as its findings and recommendations. This report goes to the Minister of Defence; the Chief of Defence Staff if the alleged interference was carried out by a member of the military or to the Deputy Minister if the subject of the complaint is a senior official of the Department; the Judge Advocate General; and the CFPM.

Notice of Action

This official response to the Interim Report indicates the actions, if any, which have been or will be taken to implement the Commission’s recommendations.

The Commission Releases Final Report

Taking into account the response in the Notice of Action, the Commission prepares a Final Report of its findings and recommendations in the case. The Final Report is provided to the Minister; the Deputy Minister; the Chief of Defence Staff; the Judge Advocate General; the CFPM; the complainant and the subject(s) of the complaint, as well as anyone who has satisfied the Commission that they have a direct and substantive interest in the case.

Conduct and Interference Complaints

The complaints resolution process results in Interim and Final Reports containing findings and recommendations which identify opportunities for individual or systemic improvements, where required. Conduct and interference complaint cases reviewed by the Commission represent the widest possible range and complexity involving legislative, policy, procedural, training, supervision and other issues.

Recommendations, when implemented, are designed to improve the quality of policing which, in turn, will contribute to maintaining the confidence and support of those the Military Police serve.

Public Interest Investigations and Hearings

At any time when it is in the public interest, the Chairperson may initiate an investigation into a complaint about police conduct or interference in a police investigation. If warranted, the Chairperson may decide to hold a public hearing. In exercising this statutory discretion, the Chairperson considers a number of factors including, among others:

• Does the complaint involve allegations of especially serious misconduct?
• Do the issues have the potential to affect confidence in Military Police or the complaints process?
• Does the complaint involve or raise questions about the integrity of senior military or DND officials, including senior Military Police?
• Are the issues involved likely to have a significant impact on Military Police practices and procedures?
• Has the case attracted substantial public concern?
  

2010-11 Financial Resources ($ thousands)

Planned Spending	Total Authorities	Actual Spending
$4,480	$5,243	$3,507

2010-11 Human Resources (FTEs)

Planned1	Actual2	Difference
13 FTEs	8 FTEs	5 FTEs

Notes:

1. Includes three FTEs for the Public Interest Hearing and of responding to judicial challenges to the Commission’s mandate in Federal Court.
2. Includes three FTEs utilized for the Public Interest Hearing and Federal Court activities.

Expected Results	Performance Indicators	Targets	Performance Status
To successfully resolve complaints about the conduct of military police members, as well as complaints of interference with military police investigations, by overseeing and reviewing all complaints received. This program is necessary to help the military police be as effective and as professional as possible in their policing duties and functions.	Recommendations resulting from investigations of conduct or interference complaints are accepted by the Department of National Defence and/or the Canadian Forces.	70% of the recommendations accepted	Exceeded
	Investigations of conduct or interference complaints are resolved within targeted timeframes as established by the Commission Chair.	70% resolved within adjusted time frames established by the Commission Chair	Met all
	70% of individual members receive remedial measures and/or improvements were made to military police policies and practices pursuant to investigations of conduct or interference complaints.	70% of recommendations implemented	Exceeded
Presentations given on the mandate, role and responsibilities of the Commission.	Number of presentations given.	13 presentations	Met all

Performance Summary and Analysis of Program Activity

• Weekly case status meetings were held by operations staff. Case status reports were circulated in advance of meetings. Deadlines/target dates were discussed and approved by the Chairperson. At times, strict adherence to the critical path was not possible due to a variety of factors such as deployments, witness unavailability, competing priorities or the complexity of investigations.
• Multiple presentations and information sharing sessions regarding the Commission’s activities, expertise and experience e.g. six Outreach Program bases visits; for the first time, five presentations at  the Canadian Forces Military Police Academy in Borden, Ontario; presentation to a university military law class and at the Military Police Symposium.

During 2010-11, the Commission monitored the Canadian Forces Provost Marshal’s (CFPM) investigations of 46 complaints about military police conduct, an increase from previous years. Four (4) interference complaints were received during the reporting period, also representing an increase from previous years.

The Commission issued six interim reports and seven final reports. One hundred percent (100%) of the Commission’s recommendations were accepted for implementation by the CFPM or the Chief of the Defence Staff, as was the case in the four previous years. 

	2007-08	2008-09	2009- 10	2010-11
Conduct Complaints Monitored	27	42	42	46
Interference Complaints	0	0	1	4
Reviews	6	8	7	4
Public Interest Investigations/Hearings s. 250.38	0	3	0	1
Judicial Proceedings (e.g. Judicial Review)	0	3	2	3
General Files (Request for information / Outside Jurisdiction of MPCC and Others)	25	28	49	42
Interim Reports	5	9	6	6
Final Reports	6	8	11	7
Findings	56	64	66	27
Recommendations	65	26	30	7
Percentage of Recommendations Accepted	100%	100%	100%	100%

(1) Afghanistan Public Interest Hearing and related Federal Court proceedings

Since 2007 the Commission has been investigating a series of complaints regarding military police conduct in relation to the handling and transfer of detainees in Afghanistan. By April 1, 2010, the only complaint outstanding was a complaint from Amnesty International Canada and the British Columbia Civil Liberties Association (AIC/BCCLA) alleging that members of the military police failed to investigate the decisions of the Task Force Commanders in Afghanistan to transfer Afghan detainees to a foreseeable risk of torture or abuse by the Afghanistan authorities. It was alleged that these transfers were ordered with knowledge of, or with wilful blindness to, the real risk of torture or mistreatment post-transfer. This complaint has been referred to as the ‘failure to investigate’ complaint.

For months prior to April 2010, the Commission’s progress with the Afghanistan Public Interest Hearings into the ‘failure to investigate’ complaint, and a related complaint into MP involvement with the physical transfer of those detainees (the ‘transfer complaint’); had been delayed due to; ongoing challenges with gathering documents; access to witnesses; and by legal challenges in Federal Court to the scope of the Commission’s mandate to investigate these complaints.

On September 16, 2009, the Federal Court of Canada ruled that the Commission lacked the jurisdiction to investigate and hold hearings into the transfer complaint, but the Commission’s jurisdiction was upheld with respect to the failure to investigate complaint. After much public scrutiny and media attention to the delays in document production and problems with access to witnesses, the Government of Canada began to comply with summonses with respect to document production such that, by April 2010, the Commission was in a position to commence substantive hearings into the failure to investigate complaint.

The period from April 2010 to February 2011 was intensely busy. The Commission panel, composed of Chairperson, Glenn Stannard and Commission Member, Roy Berlinquette, heard from 37 witnesses including the named subject military police personnel, in addition to presiding over numerous motions and the final submissions from the parties. The hearings attracted significant public and media attention. Final oral submissions were heard on February 2, 2011, whereupon the Commission concluded the investigative phase of its hearings and adjourned to review the evidence and submissions, and draft its Interim Report.

Despite the conclusion of hearings, three judicial review applications were pending in Federal Court, brought by seven of the subjects, Brigadier General Blanchette, and the Attorney General of Canada. The first application sought to set aside a documentary summons issued to Brigadier General Blanchette by the Commission. The second and third applications related to interlocutory decisions by the Commission addressing the standard of conduct against which the subjects of the ‘failure to investigate’ complaint would be judged, and the test the Commission would apply when determining whether the subject MPs had the ‘means of knowing’ information about the risks of mistreatment of Afghan detainees. The Commission was granted intervener standing in these proceedings, and prepared accordingly. On March 28 and 29, 2011, the Honourable Justice de Montigny heard oral submissions from all parties and the Commission, and his decision is under reserve.

(2) Challenges to Transparency and Accountability (Privacy and Access to Information)

The Commission has a duty to ensure transparency and accountability in its processes and to serve the public’s right to know, especially in cases deemed in the public interest. In 2009 there were further developments associated with an ongoing issue related to the Commission’s practice of posting its public interest decisions in their entirety on its website.

This public interest practice has not yet been accepted by the Office of the Privacy Commission (OPC) based on its preference for random initials instead of actual case names. However, the OPC is also of the view that informed public debate about, and confidence in, the integrity of tribunal proceedings are not hindered by non-disclosure of participants’ names. The OPC does accept the Commission’s practice of publishing depersonalized case summaries of conduct and interference complaints (those not deemed as public interest cases) on its website.

In 2009, two important, related initiatives were undertaken:

• The Commission was a member of a working group comprising a number of other Administrative Tribunals which developed and recommended protocols to the Heads of the Federal Administrative Tribunals Forum regarding the posting of decisions on websites. These recommendations were accepted by the Forum in May 2009, after which a statement regarding the use of personal information in decisions and posting of decisions on websites was issued. Such action ensures greater commonality in the Tribunals approaches and also addresses, in large measure, an earlier observation of the OPC regarding apparent inconsistency among the Tribunals’ approaches.
• The Commission joined with three other Tribunals and obtained, on November 24, 2009, intervener status in a case before the Federal Court. This case involved important legal issues regarding an individual’s challenge to the right of an independent, statutory tribunal to report personal information in the course of conducting an investigation or rendering a report. This includes posting on the Internet based on the ‘open court’ principle. However, in February 2011, the respondents abandoned their opposition to the application thereby, concluding this case before the Federal Court. As such, these important issues remain unresolved for the time being.

(3) National Defence Act - Reform

The Commission also pursued two legislative items: Bill C-41, an Act to amend the National Defence Act and to make other consequential amendments to other Acts received first reading in the House of Commons on June 16, 2010 and following second reading was referred to Committee on December 6, 2010. The Commission also developed constructive comments and recommendations in four areas in order to contribute to the anticipated five year review of the National Defence Act: the scope of Military Police oversight; the Commission’s access to information; fair and efficient procedures, and Military Police independence.

Lessons Learned

The Commission continues to learn and strengthen its operational and administrative experiences especially from its collaborations with partners and stakeholders.

The Outreach Program broadens the Commission’s knowledge and understanding of the many challenges faced by the military police, Canadian Forces members and the community through its delivery of this Program at Canadian Forces’ bases and more recently, at the Military Policy Academy. Following each session, the Commission integrates valuable feedback into Commission programs which further strengthens its approach to conduct and interference investigations.

Strategic Outcome

Program Activity: Internal Services

Program Activity Descriptions

Internal Services are groups of related activities and resources that are administered to support the needs of programs and other corporate obligations of an organization. These groups are: Management and Oversight Services; Communications Services; Legal Services; Human Resources Management Services; Financial Management Services; Information Management Services; Information Technology Services; Real Property Services; Materiel Services; Acquisition Services; and Travel and Other Administrative Services. Internal Services include only those activities and resources that apply across an organization and not to those provided specifically to a program.

2010-11 Financial Resources ($ thousands)

Planned Spending	Total Authorities	Actual Spending
$1,169	$3,265	$2,135

2010-11 Human Resources (FTEs)

Planned	Actual	Difference
9 FTEs	6 FTEs	3 FTEs

Expected Results	Performance Indicators	Targets	Performance Status
Implementation of the Action Plan resulting from the 2009 Information Technology Management Review	Implementation completed	100%	Met all
Planned management reviews are completed	# of management reviews completed	2	Exceeded
Review and update of the policy suite completed	% of policy suite review and updated	50%	Met all
Human resource strategy and learning plans	Number of employees with learning plans	100%	Met all

Performance Summary and Analysis of Program Activity

• Phase I of the Action Plan has been completed including initiating Phase II activities e.g. documenting all aspects of information technology, creation of new (upgraded) hardware infrastructure, and implementation of heightened information technology security protocols. 
• The Commission conducted five management reviews in the following areas; information management, information technology, library services, the Privacy Act, and electronic document management.
• All policy frameworks have been reviewed and updated. This is an ongoing activity subject to new central agency policy requirements, audits and other assessments.
• 100% of employees have learning plans.

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