R v Vu – Redux
January 29, 2024
Section 129 of the NDA is not the problem …
March 10, 2024

MPCC Criticism of the Military Police

15 February 2024

 

On Friday, 9 February 2024, the National Post published an article entitled “Watchdog slams new military police policy on sex assault”.  The article weighed in on a 5-page ‘decision’ by the Chair of the Military Police Complaints Commission (MPCC), Lieutenant-Colonel (LCol) Tammy Tremblay (retired), a former legal officer appointed as Chair on 3 January 2023.  This decision was dated 6 February 2024, and is available on the MPCC website.

First and foremost, the decision by the MPCC Chair was to discontinue a Public Interest Investigation (PII) that was begun on 16 January 2024, and which was predicated principally on a complaint received on 23 November 2023.  The 5-page decision to discontinue the PII also enclosed the Chair’s earlier 5-page decision, dated 16 January 2024, to proceed with the PII.

Arguably, the most significant portion of this 5-page document can be found on the first page, at para 4, in which LCol Tremblay (ret’d) wrote:

  1. After considering all the information before me and in particular, the letter received from the Minister of National Defence, I have determined that there are no grounds for the MPCC to investigate this complaint further, and consequently, there is no longer a basis for a public interest investigation.

 

However, that is not the central factor on which Christopher Nardi of the National Post focused.  Instead, the focus of Mr. Nardi’s public commentary was on the criticism that the MPCC Chair purportedly had made regarding the military police policy on the transfer of investigations to civil police.  Early in his article, Mr. Nardi wrote:

In a scathing decision dated Feb. 6 and obtained via an access to information request, Military Police Complaint Commission chairperson Tammy Tremblay says the police force has put in place a “troubling policy” that puts an “unfair burden” on victims of sexual misconduct.

 

Except, the actual decision by the Chair of the MPCC was to discontinue the PII.  That’s hardly a scathing decision.

Some of the comments in the MPCC Chair’s 5-page decision are critical of the Canadian Forces Provost Marshal (CFPM) and the military police.  However, I would suggest that, if there were significant problems with the policy or its implementation then, arguably, there would be grounds for a PII to continue.

The article from Mr. Nardi also focuses on a specific aspect of the MPCC Chair’s analysis: whether or not the current (or a previous) Minister of National Defence (MND) actually issued direction to the military police and, if so, whether the military police policies currently in place satisfy that supposed direction.

And, frankly, there appears to be a fair bit of uncertainty regarding that factor.

There is discussion – in both the MPCC Chair’s decision and in Mr. Nardi’s article – about: (1) whether the purported military police policy satisfies the recommendations offered in the “Report of the Independent External Comprehensive Review” (the “Arbour Report”); (2) whether such a policy is feasible; and, (3) whether the MND actually directed the CFPM (or anyone else) to do anything.  And, while there is some discussion about the “undue burden” placed on complainants if they are asked to decide how a matter should proceed, there is little or no discussion regarding the relevant roles of the actual statutory decision-makers and actors.

In the present Blog post, I propose to address three issues or topics:

  1. First, I will offer a brief description of what was discussed in the MPCC Chair’s decision of 6 February 2024, and the subsequent reporting on this issue in the National Post;
  2. Second, I will offer some observations regarding the supposed direction that the MND may have given, or, at least, appeared to give, to the CFPM and the Director of Military Prosecutions (DMP); and
  3. I will examine the feasibility and appropriateness of a policy that purportedly leaves it to the complainant to make key decisions regarding a public prosecution.

 

Ultimately, I conclude that it is problematic for statutory decision-makers to place the burden of decision-making on complainants or victims.  However, the principal reason that I cite for this conclusion differs markedly from that offered in Mr. Nardi’s article.  In a public law criminal or military justice system, that decision-making role does not fall to the complainant or victim, and it undermines the integrity of those systems if that role is sub-delegated to them.  Moreover, I am not convinced by the very limited information that has been offered that the military police policy (or the policy from DMP) actually leaves the decision-making to the complainant.

 

MPCC Decision

The MPCC Chair decided to discontinue the planned PII.  She did so less than a month after purportedly commencing the PII, and less than 3 months after receiving a complaint that prompted the initial decision to conduct a PII.

And the reason for this decision was the “uncertainty” about whether the MND issued any direction to the CFPM regarding the transfer of files to civilian law enforcement agencies.  I use the term “uncertainty” deliberately.  Were one to rely solely upon the response from the current MND, Bill Blair, one might be inclined to conclude that there is no uncertainty.  Mr. Blair was definitive in his response that neither he, nor his predecessor, issued such direction.

In her decision, dated 6 February 2024, the MPCC Chair outlined the steps she took prior to commencing the PII.  At para 13 of her decision, she wrote:

… on December 12, 2023, prior to launching a public interest investigation, the MPCC enquired with the Minister of National Defence, the CFPM and the Vice-Chief of the Defence Staff, as to whether further directions were provided to the CFPM regarding the transfer of files concerning criminal offences of a sexual nature. This step was taken to verify if there was any additional relevant information that could explain the disparity between the apparent direction cited above, and the conduct of the CFPM in not transferring the investigation of every file regarding criminal offences of a sexual nature to civilian police.

 

On 21 December 2023, the Vice-Chief of Defence Staff (VCDS) responded that she had not issued any direction to the CFPM on this matter.  However, the Chair of the MPCC still decided to proceed with the PII.  At para 15 of her recent decision, the Chair of the MPCC wrote:

On January 23, 2024, I received correspondence from the Minister of National Defence dated January 22, 2024, stating that, in respect to direction issued by himself or his predecessor regarding the transfer of files concerning criminal offences of a sexual nature to civilian police:

Neither I nor my predecessor have issued any such direction to the CFPM. Nor has either of us directed the Chief of the Defence Staff to issue such direction.

 

Based upon this information, the Chair of the MPCC chose to discontinue the PII.

That did not stop the Chair of the MPCC from offering further observations – “editorial comment” might be a more apt descriptor – that suggested that the CFPM’s polices were problematic.  For example, at paras 19 and 20 of her decision, the Chair of the MPCC indicated:

…  The wording of the CFPM’s policy is particularly concerning given the clear and public support of those recommendations by the Ministers of National Defence. It is puzzling that the CFPM references Madame Arbour’s recommendation in his policy, while implementing directions that contradict it.

Equally troubling is that the policy outlines what it calls a victim-centric, trauma informed approach, without the corollary articulation of what this means in this context, or what considerations must be taken into account while applying that victim-centric, trauma informed approach…. . In my view, in its current iteration, this policy does not meet the victim centric, trauma-informed threshold, and in fact, just as Madame Arbour cautioned, puts an unfair burden on victims.

 

However, there is very little detail regarding this policy offered in the MPCC Chair’s decision – a decision not to continue with the PII.  She does indicate, in paras 8 and 9 of her decision the following points:

  1. The CFPM’s Policy Directive “Military Police Criminal Sexual Offence File Referral Process to the Ontario Provincial Police (OPP)”, as amended in December 2023 states:
    1. The Canadian Forces Provost Marshal (CFPM) is committed to the continued implementation of Mme Arbour’s interim recommendation. This support will be reflected through the referral of criminal offences of a sexual nature to civilian police agencies of concurrent jurisdiction in a victim-centric, trauma informed approach.
  1. The policy then goes on to outline the process for the transfer of the investigation of files regarding criminal offences of a sexual nature to civilian police agencies, noting that it first requires consultation with and agreement from the victim.
    1. File Transfer Process—CFNIS [Canadian Forces National Investigation Service]

a.  (…) Should there be files identified for possible transfer to the OPP, the ROs [Regional Officers] are to consult with the victim to determine whether or not they would prefer/agree to have their file transferred to the OPP;

 

That’s fine so far as it goes.  But the supposedly scathing criticism (to use the descriptor offered in the National Post) isn’t predicated upon much actual analysis.  And the “Military Police Criminal Sexual Offence File Referral Process to the Ontario Provincial Police (OPP)” is not enclosed in the decision.  Nor does it appear to be available to the public.

The MPCC Chair’s analysis is principally a series of conclusions.  And, while they are critical of aspects of a policy (which is not fully described in the 5-page document), it might be a stretch to call it scathing.

So, let’s be frank about what the MPCC Chair’s decision actually was: it was a “shot across the bow” directed principally at the MND and what appears to be disingenuous double-speak from the political level.  Secondarily, it was a rebuke of the CFPM, but one that was not actually backed up with much analysis.

It certainly positioned the Chair of the MPCC as an advocate for victims of sexual misconduct.  However, I, for one, remain concerned whether the Chair is similarly an advocate for all victims of military police misconduct and shortcomings.

 

MND Direction … or not?

I wish to return to the “uncertainty” that I mentioned above.  In Mr. Nardi’s article in the National Post, he reached out to past commentators – who are hardly neutral observers in these matters – who expressed incredulity at the suggestion that neither the current MND nor his predecessor issued any direction to the CFPM regarding the handling of allegations of sexual offences.  And, frankly, I share some of their incredulity.  And, to be clear, when we are discussing the current MND’s “predecessor”, the person we are discussing is Anita Anand.

People can be excused for believing that Ms Anand, when she was MND, gave clear direction on the handling of allegations of sexual offences reported to the military police.  And that is because Ms Anand made a notorious show of issuing direction – or, at least, something that resembled direction.  She certainly made a great show of ‘acting decisively’ – because that is what politicians and senior CF decision-makers are inclined to do when faced with criticism in the news media.  And, to be clear, I am referring to “making a show of acting decisively” which is distinguishable from actually acting decisively, or implementing sensible policy.

And I suggest (and have suggested previously) that Ms Anand’s statements were problematic.  And the problematic nature of those statements might well be a central reason why the current MND is now insisting that neither he nor his predecessor issued direction that most Canadians likely believe Ms Anand did, in fact, issue.

Back in November 2021, I offered commentary on the MND’s apparent direction and the problematic nature of this direction:

Rory Fowler “Minister of National Defence Announcement – Sexual Misconduct” (5 November 2021) online: Law Office of Rory G Fowler, Blog <http://roryfowlerlaw.com/minister-of-national-defence-announcement-sexual-misconduct/>

Rory Fowler “Stand By for Apologies – But, let’s talk about transparency…” (16 November 2021) online: Law Office of Rory G Fowler, Blog <http://roryfowlerlaw.com/stand-by-for-apologies-but-lets-talk-about-transparency/>

Rory Fowler “The MND’s New Policy and the Rule of Law” (19 November 2021) online: Law Office of Rory G Fowler, Blog <http://roryfowlerlaw.com/the-mnds-new-policy-and-the-rule-of-law/>

 

In the last of these Blog posts, I expressly addressed the not-so-insignificant issue that the MND cannot issue direction directly to the CFPM regarding military police tasks and functions or issue direction directly to DMP regarding the prosecution of service offences.  In fact, were the MND to purport to do so, that would contravene very specific direction by Parliament contained at sections 18 and 18.5 of the National Defence Act (NDA) regarding the CFPM and section 165.17 of the NDA regarding DMP.

However, that is what Anita Anand appeared to do when she was MND.

Sure, the CFPM and DMP issued an Orwellian joint statement on 5 November 2021 that, presumably, was intended to maintain some sort of fiction that they were making this decision themselves, independent of any apparent direction from the MND.  However, the timing of that statement – the day after the MND expressly stated in a ‘Tweet’ that she “… accepted in full Madame Arbour’s recommendations to move the investigation and prosecution of sexual misconduct cases to the civilian system …” – tends to suggest that the CFPM and DMP did not arrive at this conclusion without some ministerial influence.

A lot can be said about what transpired in early November 2021 (and, frankly, I have already stated quite a bit about that problematic period in military justice).  Certainly, a ‘tweet’ on ‘Twitter’ or ‘X’, or whatever it’s called this week, isn’t exactly an ideal platform for the articulation of policy.  It ranks right up there (or, perhaps, down there) with using CANFORGEN as policy documents.

And announcing that investigations will be transferred to civilian law enforcement, and that prosecutions will be transferred to civilian prosecutors, without first completing the necessary staff checks is likely a recipe for problematic execution of said policy.  If only the people involved had had some experience with conducting staff checks and evaluating courses of action in order to identify the best, and the most problematic, options in aid of decision-making.  They could then present the decision-maker with a briefing of some sort – let’s call it a “Decision Brief” – so that the policy direction is clear, detailed, unambiguous, and feasible.  And, in an ideal world, not conveyed by “Tweet”.

And, of course, there’s the “elephant in the room” represented by the crucial factor that provincial Crown Attorneys and civilian law enforcement agencies don’t work for the MND and aren’t accountable to the MND.  Consequently, the MND doesn’t get to dictate to them how and when they will perform their roles in such matters.

But the crux of the matter in terms of the PII that the MPCC had launched is that neither the current MND, nor his predecessor, could acknowledge that they had issued any direction to the CFPM and/or the DMP, even if Ms Anand had, in fact, appeared to have done so (and which many people appear to have believed).  Because then they would be acknowledging that the MND issued political direction to statutory actors that, under the NDA, the MND very clearly is not permitted to do.  In short, they would be admitting to interfering, politically, with the role of the CFPM and the DMP, and with the command relationships that each of those statutory actors have with, respectively, the VCDS and the Judge Advocate General (JAG).

And the current government is not one that likes to admit when it makes a mistake, or that it takes actions or makes decisions that it is not permitted to take or make in the manner that they did.

Hence, Bill Blair’s response to the Chair of the MPCC along the lines of “New phone … who this?”.

 

Untenable Burden on the Complainant

The selective focus that both the MPCC Chair and some commentators have offered regarding the decision by the MPCC Chair is interesting; however, I argue that this is not the crucial factor.  Inflammatory headlines are nothing new.  And the disingenuous obfuscation from the current government regarding whether or not the (then) MND, Anita Anand, actually issued direction to the CFPM and DMP, or what direction, if any, was issued by anyone, is also not something that likely comes as a surprise to many.  It certainly highlights the lack of clarity in direction and decision-making regarding significant issues of military justice.  And we are unlikely to get any clarification or answers anytime soon.

But what I find most interesting about the discussion in the National Post, and subsequent discussions in social media arising from that article, is that no one is discussing the most pertinent factor regarding why it would be problematic to place the principal decision-making regarding the so-called “transfer of files” on complainants and victims.

Again, the Chair of the MPCC did not delve into a detailed discussion or analysis of the current military police policy regarding the investigation of allegations of sexual offences that are reported to the military police.  And, as seemingly critical of the military police as she may be, I suggest that the decision on 6 February 2024 was principally intended to illuminate the disingenuous response from the MND.

Early in his article, Mr. Nardi quoted from Mme Arbour’s report, writing:

Arbour recommended that all sex crime investigations and prosecutions be pulled out of the hands of military police, prosecutors and judges and sent to the civilian system without asking for the victim’s preference.

“In my view, requiring the victim’s consent before deciding whether to investigate or prosecute a crime in the military or civilian justice system merely puts an unrealistic burden on the victim,” she wrote, adding it put the victim in an “untenable position” that may leave them forever second-guessing their decision.

 

So that we are clear: this was from the “Arbour Report” (specifically, page 93), not the decision from the Chair of the MPCC.  LCol Tremblay (ret’d) did cite the Arbour Report, referring to what she characterized as Mme Arbour’s “expert opinion”.

At this point in the discussion, I think it’s appropriate to offer a few observations, some of which may be controversial, but I suggest they merit consideration.

First, the Arbour Report was the product of an ad hoc inquiry, which lacked statutory powers like those of Boards of Inquiry (e.g., the capacity to receive evidence under oath or to compel the appearance of witnesses), and which produced non-binding recommendations.  Despite the accomplishments, experience, knowledge, and skills of the principal author of the report, her recommendations were not binding.  Moreover, there were aspects of her methodology that can be, and have been, criticized.  While the MPCC Chair leans heavily into her characterization of Mme Arbour as an expert, I suggest that the recommendation – which was clearly characterized as an interim measure – has flaws.  And one of the principal flaws is that the MND cannot direct civilian law enforcement and civilian prosecutors what to do.

Second, the data upon which Mme Arbour drew her conclusions was largely opaque.  Respondents were self-selected, and the data was not subject to sufficiently rigorous methodology to confirm its accuracy.  It was, essentially, anecdotal.  And, while there is merit in conducting such research, and even basing recommendations on unverified anecdotes, we must nevertheless acknowledge the frailties inherent in such data.

That said, I agree with the proposition that a complainant (or victim – if you prefer that conclusory terminology) should not dictate whether a matter is investigated by military police or prosecuted in the military justice system.  However, based upon the content of the MPCC Chair’s decision, and the reporting in the National Post, the reason why I take that position is markedly different.  It is, however, directly tied to principles underlying the rule of law.

 

Public Law Decision-Making

First, I believe it is vital that we distinguish between the complainant being the “directing mind” regarding the conduct of an investigation or prosecution, and the importance of consultation with a complainant.  The latter is necessary to ensure that decision-makers are aware of the impact that the investigation or prosecution will have on the complainant so that they can make informed decisions.  The former is problematic.

Second, we also need to acknowledge that prosecutions of sexual offences – or, indeed, any offences – whether in the civil criminal justice system or the military justice system are public prosecutions.  They are conducted by public (statutory) actors for the public good.  Certainly, as part of the public good, they should have a beneficial impact on victims of criminal activity and should meet the objectives of such processes, including deterrence, denunciation, rehabilitation, etc.  But at their core, they are public processes conducted by public actors for the public good.

They do not bar complainants from bringing private actions against those who have committed private wrongs, some of which are also public wrongs.  Assault – sexual or otherwise – is a criminal offence.  Assault and battery – sexual or otherwise – is also tortfeasance.  And I know of counsel who rigorously encourage complainants and victims to bring private actions in such matters, in part, because the burden of proof is lower than in a criminal prosecution.  But private actions are distinct from public prosecutions.

I agree with Mme Arbour that it can be a daunting burden for a complainant to decide whether an allegation should be investigated or prosecuted and, if so, whether it should be done in the civilian criminal justice system or the military justice system.  Many complainants will not have a sophisticated or detailed understanding of those systems – certainly, not to the extent that police investigators and criminal law practitioners possess.  It is likely that many complainants won’t have a comprehensive understanding of the relevant factors or how those factors influence decision-making.

However, while relevant, those considerations are not the principal reason why such decisions should not be left to the complainant.  The principal reason why the complainant’s wishes are not determinative is because they are not the principal statutory decision-makers identified under Acts of Parliament or provincial legislatures.  Those decisions fall to the appropriate law enforcement agency and prosecutors.  (And I will refrain from recalling the tag-line from “Law & Order”.)  And to off-load that decision to the complainant is an abdication of their public and statutory obligations.

That doesn’t mean that the complainant does not have a decision-making role to play.  However, I find that much discussion of this issue fails to acknowledge or consider the nuances of the roles of various decision-makers.  Instead, there is a tendency toward facile reliance on catch phrases or mantras that are currently in vogue.  So, let’s look at the initial sequence of events that will typically unfold.

If a person acts in a manner that does, or could, give rise to an offence – sexual or otherwise – there are a series of decisions that are made by various people.  And one of the first decisions that is made is by the complainant: “Do I report this wrong-doing?  And, if I do, to whom should I report it?”

And this is often a difficult decision to make.  While I won’t delve into all of the factors that could potentially influence whether, and how, a complainant reports wrong-doing, I do acknowledge that there are factors that can impair or dissuade a complaint from reporting misconduct.  And the more resources that are available to assist a complainant in making that decision, the better the system will function.  There will be constraints on such resources and how they are offered, but the objectives include: (1) encouraging the reporting of wrong-doing; (2) identifying for complainants the courses of action for reporting such wrong-doing; and, (3) protecting complainants from reprisal for reporting wrong-doing.  Obviously, this is not a comprehensive list.

And whether we are talking about the civilian criminal justice system or the military justice system, the complainant decides whether he or she will report the wrong-doing and, if so, the person or agency to whom he or she will report it.

And people seem content to ignore the fact that even though complainants have allegedly lost trust in the military police, many are still reporting allegations to the military police and not civilian police.  And I note that there has not been much, if any, discussion surrounding why that might be the case.

But we are left with the circumstance in which Canadian Forces (CF) personnel are reporting allegations of sexual misconduct to the military police.  And, according to the interpretation of Mme Arbour’s recommendations by some commentators, the military police should be diverting all complainants to civilian law enforcement whenever a complaint is made involving what could be characterized as a “criminal offence of a sexual nature” (or “sexual offence”).  In other words, by this point in time, the military police should not be investigating such allegations.

I know with certainty that the military police are still investigating allegations of “sexual offences”.  So, they are clearly not adhering to that interpretation of Mme Arbour’s recommendation.  However, I suggest that it would be unrealistic and even problematic to apply that recommendation in such a draconian fashion.

First, this presumes that a complainant has made the (for many) difficult decision to report wrongdoing.  Having made the decision to report, the complainant has taken the step to report the allegations to the military police.  And the complainant will have done so despite the consistent public discussion by the news media and other commentators that the military police should not be conducting such investigations.  Simply telling the complainant: “Sorry, we don’t investigate those allegations, you’ll have to take that up with the [insert name of relevant civilian law enforcement agency here]”, likely wouldn’t be satisfactory to many complainants.  Such a reaction could potentially discourage reporting.  It ignores the exercise of agency by the complainant in deciding to report the allegations to the military police.

Such an approach also ignores the potential that the civilian law enforcement agency will refer the complainant back to the military police: “Sorry, that sounds like a matter for military authorities …”.  That, too, is a recipe for discouraging complaints.  And, as I note, supra, none of those law enforcement agencies work for the MND.  Nor do they take direction from Mme Arbour.

Second, some matters may be difficult for civil authorities to investigate.  For example, if Cpl Smith is sexually assaulted by Cpl Jones at CFB Gagetown while the two are on course at one of the training establishments located on that base, but Cpl Smith can only bring himself to report the assault when he is back at CFB Borden, where his “home unit” is located, to whom should he report the assault?  And if Cpl Jones’ “home unit” is located at CFB Edmonton, how does this factor affect the investigation?

The reality is that the military police are better situated to investigate such allegations and, from a policy perspective, are arguably more motivated to investigate.

So, as odd as it may seem coming from me – in light of the frequency with which I criticize the military police for their errors and mishandling of matters – I am inclined to defend the notion that some investigations should logically be conducted by the military police.  (And, honestly, I am not taking that position based upon the fact that, as a member of the defence Bar, the prospect of a successful defence tends to increase if the matter is investigated by the military police.)

Consequently, I would suggest that we might want to exercise some restraint before we criticize a policy that includes a statement along the lines of “…  Should there be files identified for possible transfer to the OPP, the ROs [Regional Officers] are to consult with the victim to determine whether or not they would prefer/agree to have their file transferred to the OPP …”.[1]  And the reason for such restraint is that the military police appear to be placed between the proverbial “rock and a hard place”.  And that policy statement does not suggest, definitively, that the decision-making is left to the complainant.

When a complainant reports sexual misconduct to the military police, the act of redirecting the complainant to civilian police must be handled in a compassionate manner, sensitive to the factors that likely affect the complainant.  After all, at the stage of the process where the complainant is the principal decision-maker – i.e., the decision to report misconduct – the complainant chose to report the wrong-doing to the military police, not the civilian police.  And I anticipate that the reasons for such a decision will vary by complainant.  And “consulting” with a complainant is distinct from asking the complainant to make the decision.

That said, I have encountered some problematic exchanges between military police and complainants.  And these exchanges tend to signal the lack of knowledge on the part of complainants (and, sometimes, the military police).  For example, when asked what kind of outcome the complainant expects or desires, some complainants will indicate that they want the accused “dishonourably discharged”.  And sometimes, there is little or no mention of prosecution (whether under the military justice system or the civil criminal justice system).  I have encountered this response more than once.  And it is problematic for a number of reasons.

First, what they clearly mean is that they want the accused released from the CF under a compulsory release item.  Releases from the CF are not called “discharges” despite the fact that many commentators and journalists still use that term to describe a release from the CF.  And there is no release item that carries the nomenclature “dishonourable”.  So, here’s a heartfelt request from me: please, please, please stop using that term in relation to compulsory release from the CF.

Rory Fowler “A Word or Two on Release Items in the Canadian Forces” (18 January 2021) online: Law Office of Rory G Fowler, Blog <http://roryfowlerlaw.com/a-word-or-two-on-release-items/>

 

What I suspect the complainants wanted in those circumstances was for the accused to be subject to compulsory release under item 2(a) of the Table to art 15.01 of the QR&O (“Service Terminated”).  However, that would only arise under one of three potential circumstances: (1) if the accused were convicted by a court martial of an offence which warrants release under this category, but does not warrant release under Item 1(b); (2) if the accused were convicted by courts martial of a number of offences indicating a course of misbehaviour that warrants release under this category, but does not warrant release under Item 1(b); or, (3) by reason of unsatisfactory civil conduct, or conviction of an offence by a civil court of a serious nature not related to the performance of duties, but reflecting discredit on the Canadian Forces.

An alternative might be release under item 5(f) of the Table to art 15.01 of the QR&O.  This release item is not only not a “dishonourable discharge”, it carries the descriptor “Honourably Released”.  It may be justified where, due to “… factors within the officer or non-commissioned member’s control, [the officer or NCM] develops personal weaknesses or has domestic or other personal problems that seriously impair their usefulness to, or impose an excessive administrative burden on, the Canadian Forces.”  It is still a compulsory release, typically against the wishes of the affected CF member.  But it is not a “dishonourable discharge”.  And it’s impact is generally limited to making it difficult for the person to rejoin the CF at a future date (although with the current recruiting/retention issues, one never knows …).

All too often, CF personnel are released under item 5(f) following a military police investigation in which charges are not recommended or where the chain of command and/or DMP choose not to prosecute a service offence or service infraction.  Instead, the chain of command chooses to rely upon an untested military police report to justify compulsory release.  Often such decisions are less than fair and less than reasonable:

Rory Fowler, “The Nature and Limitations of Judicial Review” (June 13, 2020), online: The Military Justice Project, <http://militaryjusticeproject.com/the-nature-and-limitations-of-administrative-review/)>

 

A compulsory release is an “administrative” outcome; it is not the outcome of a criminal or Code of Service Discipline prosecution.  Nor is it an outcome that can be directed by the military police.  But the fact that this outcome is frequently cited by complainants is illustrative.

First, it signals that many CF personnel view compulsory release as a punitive outcome.  Notwithstanding that the chain of command (and DoJ litigators) consistently take the position that it is an administrative outcome completely separate from discipline, the reality is demonstrated by the perception of complainants and accused alike, as well as the actions of the chain of command.  Compulsory release from the CF is regularly employed as an alternative (or even principal) “disciplinary” mechanism.

Second, the complainants expect that the chain of command will take such action, using administrative processes such as Administrative Review under Defence Administrative Order and Directive (DAOD) 5019-2, and the complainant won’t have to testify or be subject to cross-examination.  And, again, I contend that this perception persists largely because that is precisely how the chain of command in the CF have dealt with many allegations of sexual misconduct.

Allegations are not tested before an independent and impartial court martial.  They are, instead, relied upon in an administrative process, which does not offer the respondent (accused) an opportunity to test the allegations in a meaningful manner.  And, in cases in which the evidence supports a “reasonable prospect of conviction”, statutory decision-makers are failing to use the prosecutorial mechanisms that are available to them.

And when a decision is made that adversely affects the respondent (and is very frequently the case), if the respondent wishes to challenge the fairness or reasonableness of the process, the respondent is obliged to use the CF’s statutory grievance process.  And the respondent may get a decision from the final authority within 5 years.  If the respondent is lucky.  Of course, the respondent will be released from the CF long before that point in time.

And the Federal Court will not intervene in order to preserve the CF member’s status pending the adjudication of such grievances.  Nor will the CF member be entitled to any damages if the release decision is determined to be unfair or unreasonable.

So, the military police are left in a difficult position.  Mme Arbour, a former Supreme Court Justice, a one-time Prosecutor of the International Criminal Tribunal for Yugoslavia and Rwanda, and former United Nations High Commissioner for Human Rights. has offered a non-binding recommendation that military police must not investigate allegations of “sexual offences”.  In light of Mme Arbour’s standing in the legal community, and notwithstanding any legitimate criticisms that may be made regarding the methodology used in compiling the “Arbour Report”, her conclusions are given “expert weight” by various public commentators, including the Chair of the MPCC.

And Anita Anand, when she was MND, weighed in, seeming to direct that Mme Arbour’s interim recommendation would be followed by the CFPM and DMP, even though we are now told by Bill Blair that neither he nor Anita Anand gave any direction on that issue.

Neither the CFPM nor the MND can dictate to civilian law enforcement agencies that they must investigate allegations of criminal offences committed by CF personnel.  And some matters are likely more efficiently investigated by the military police than by civilian law enforcement.  (And, yes, I, too, can barely believe that I just wrote that.)

Ultimately, complainants should not be called upon to decide whether a matter is investigated by the military police or the civilian police.  But when I make that statement, what I am referring to is the exercise of public decision-making.  This is distinguishable from the private decision-making by a complainant when he or she considers: (a) whether he or she will report wrong-doing and, (b) if so, to whom he or she will report it.  It is distinct from private decision-making by a complainant when the complainant considers whether he or she will retain counsel to pursue an action for damages against either the alleged perpetrator or the Crown.

Once allegations are reported to a public actor, who exercises statutory duties, powers, and functions, that actor exercises a public, statutory role.  And that actor does not get to abdicate responsibility to a complainant or anyone else who does not fulfil that statutory role.  And, frankly, that includes political actors.

And we return to the analysis that I offered in November 2021: the MND does not get to direct how military police investigations will be conducted.  The MND does not get to direct how military prosecutions will be conducted.  That is tantamount to improper political interference.  The MND can provide direction to the CDS and the JAG regarding these issues, but such direction must be of a general nature.  The CDS can then issue general direction to the VCDS, who can then issue general direction to the CFPM.  And barring justification for refusing to do so, that direction must be published publicly.  Similarly, the JAG can issue general direction to DMP regarding prosecutions under the Code of Service Discipline.  And, again, barring justification for not doing so, that direction must be public.

And that was not done.

Instead, the CFPM and DMP issued a joint statement that, for what it lacked in precision, it made up for with Orwellian double-speak.

But my point is this: the military police have the jurisdiction to investigate allegations of sexual misconduct arising within the CF, whether within Canada, or outside our borders.  DMP has a statutory mandate to prosecute Code of Service Discipline offences at court martial.  And, since 1 September 1999, those offences include “criminal offences of a sexual nature” arising within Canada.

And, once a complainant exercises his or her own personal agency to choose to report allegations to the military police, the decision about whether CF actors and decision-makers should proceed with an investigation or prosecution of those allegations falls to those decision-makers, not the complainant.  And the principal reason why they should be exercising that decision-making is not because it is difficult for the complainant or because the complainant may lack sufficient knowledge an understanding of the relevant factors and process (although those are valid reasons).  The principal reason is that it is part of their statutory – i.e., public – duties and functions.  And if that decision-making were exercised by a private actor, such as a complainant, the prosecutions would not longer be public prosecutions – they would be private prosecutions.

The Code of Service Discipline does not permit private prosecutions.  And, while the Criminal Code does permit “private prosecutions” before civil courts, it also empowers the relevant Attorney General (or public authority exercising the relevant Attorney General’s authority) to intervene and assume the conduct of any such prosecution.  And I would challenge anyone to offer an example of a private prosecution for sexual assault conducted recently in Canada.  And, in any event, the issue arising from the recent decision by the Chair of the MPCC relates to investigations by public actors.

 

Risk of Abuse of Process

As to whether and how such investigations or prosecutions should be transferred to civil authorities, I have grave concerns that the current practices are arbitrary at best, and an abuse of process at worst.  There is a real risk of jurisdiction shopping.

If Parliament chooses to remove the jurisdiction of the Code of Service Discipline over “sexual offences” arising in Canada that was added 25 years ago under Bill C-25, it can do so.  It hasn’t done so yet.  I contend that it would be a regressive and, frankly, ill-conceived decision to do so.  Most of the recent criticism that has been offered regarding the effectiveness of the Code of Service Discipline has been superficial and selective.  And the civilian criminal justice system has also been the subject of criticism concerning the prosecution of “sexual offences”.

However, Parliament is not empowered only to enact sensible and effective statutes.  They are constrained principally by the division of powers under the Constitution Act, 1867 (which isn’t much of a constraint here) and the Canadian Charter of Rights and Freedoms (Charter) entrenched in the Constitution Act, 1982.  Thus, they can enact statutes that represent “bad” policy, or ineffective policy, or ill-conceived policy, provided that it complies with the constitution.

However, that jurisdiction remains.  And where that jurisdiction is exercised inconsistently, arbitrarily, or in a manner that is not transparent, there is a risk of abuse of process.

The MPCC Chair’s decision, reported in the National Post, focused on military police investigations, not the subsequent prosecutions.  And that is principally because the MPCC’s mandate is generally limited to examining military police conduct and misconduct or interference with military policing (although there are certainly examples in the past in which the MPCC clearly sought to conduct investigations well outside its mandate).

And the PII that was announced by the MPCC Chair, and then discontinued three weeks later, focused on the ‘transfer of investigations’ to civil police.  But a factor that was not discussed was the conduct of investigations by the military police, leading to charges being laid in the civilian criminal justice system.  And that practice continues.

I have recently discussed the jurisdiction of military police as peace officers:

Rory Fowler “Why are the military police threatening to charge a civilian?” (11 January 2024) online: Law Office of Rory G Fowler, blog <http://roryfowlerlaw.com/why-are-the-military-police-threatening-to-charge-a-civilian/>

 

Military police may lay charges against CF personnel by information before a civil court of criminal jurisdiction, just as any peace officer may do.  And they have been doing so fairly frequently for the past 3 or 4 years (sometimes in matters that make the national news, and sometimes in matters that receive little or not news media attention).

Presumably, this practice is not satisfactory to those who insist that the military police must not investigate any allegations of “sexual offences”.  However, as I note above, complainants are exercising their personal agency to choose to report these allegations to the military police.  And there may be challenges to transferring matters to civil police, and some of those challenges may be beyond the capacity of the military police to resolve.  Presumably, investigation by the military police, leading to the laying of charges before a civil court of criminal jurisdiction is viewed as an alternative.

However, this alternative can be the source of problematic, inconsistent, arbitrary, or non-transparent decision-making.

We have already encountered circumstances in which allegations of sexual assault were prosecuted within the military justice system, even though its jurisdiction was in question (due to the dated nature of the allegations) and where the decision to prosecute within the military justice system was made after the ‘file’ had been referred to civilian prosecutors, and the civilian prosecutors declined to do so:

R v MacPherson, 2022 CMAC 8

Rory Fowler “R v MacPherson, 2021 CM 2014 – What were they thinking?” (14 September 2021) online: Law Office of Rory G Fowler, blog <http://roryfowlerlaw.com/r-v-macpherson-2021-cm-2014-what-were-they-thinking/>

 

We have also encountered matters in which military prosecutors transferred prosecutions to civil courts even after considerable delay had arisen under the military justice system.  In some cases, those prosecutions were stayed for delay:

R v Harrison, 2023 ONCJ 392

Rory Fowler “R v Harrison, 2023 ONCJ 392: Don’t Be Sold a Bill of Goods (Redux)” (24 September 2023) online: Law Office of Rory G Fowler, blog <http://roryfowlerlaw.com/r-v-harrison-2023-oncj-392-dont-be-sold-a-bill-of-goods-redux/>

 

And, while the military police had a role, or potential role, in laying charges before a civil court of criminal jurisdiction after the military charges were withdrawn, the principal decision-maker in cases like MacPherson or Harrison, was DMP (or an officer acting under DMP’s direction and supervision).

The MPCC Chair’s jurisdiction does not extend to reviewing or investigating decisions by DMP.  However, we cannot examine the actions and decisions of the CFPM and his military police within the military justice system in isolation from the actions and decisions of DMP and the Canadian Military Prosecution Service (CMPS).

And I suggest that anyone concerned about the administration of military justice ought to be concerned, also, with the circumstances in which matters either are, or are not, prosecuted within the military justice system.  In particular, we should be concerned when such decisions are not transparent and when there is limited explanation why some matters are prosecuted before courts martial while others are referred to civil courts of criminal jurisdiction.

In some circumstances, the rationale may be evident (even if the news media reporting on the matters might appear to suggest that decisions were predicated upon other, non-determinative factors).  For example, regardless of any policy intent or preference, and regardless of the recommendations in the Arbour Report, the prosecutions of Major-General Dany Fortin and Lieutenant-General Trevor Cadieu had to proceed before civil courts of criminal jurisdiction because the allegations pre-dated the amendment of the jurisdiction of the Code of Service Discipline relating to the prosecution of sexual assault alleged to have occurred in Canada.  This interpretation of the amended jurisdiction at s 70 of the NDA was confirmed by the Court Martial Appeal Court of Canada (CMAC) in R v MacPherson, 2022 CMAC 8.

However, those were prosecutions of historic allegations.  Allegations of more recent sexual offences have been prosecuted before both civil courts of criminal jurisdiction and courts martial.  However, there is a lack of transparency regarding why some are prosecuted before one type of court, while others are not.

DMP has taken the position that some matters, which were already proceeding within the military justice system, would need to continue in that system.  And that is a prudent and logical position to take.  Otherwise, there is an elevated risk of unreasonable delay, which could result in a stay of prosecution.  Certainly, based upon the conclusions by Justice Richardson in R v Harrison, 2023 ONCJ 392, that matter should have been left in the military justice system (and it should not have taken the military police nearly a year to lay a charge).

However, it has now been over two years since the (then) MND, Anita Anand, issued her “direction that wasn’t direction” regarding the investigation and prosecution of sexual offences.  Conceivably, that was sufficient time for any matters in the military justice system to have concluded, at least in the court of first instance.  There have been recent appeals, before the CMAC and even the Supreme Court of Canada (SCC), involving prosecutions of “criminal offences of a sexual nature” but those were matters that commenced in the military justice system prior to the (then) MND’s “direction that wasn’t direction” or soon after that announcement was made..

A perusal of the “upcoming courts martial” on the (Acting) Chief Military Judge’s website on 14 February 2024 discloses that, of the 16 matters[2] scheduled for court martial or related proceedings, 2 were for sexual assault or similar offences.  When compared to previous years, this is a marked reduction in the percentage of courts martial conducted to prosecute allegations of sexual assault or similar offences.  In the recent past, such prosecutions could account for up to 50% of courts martial at any given time, and typically exceeded 25% of matters.

Consequently, it would appear that most – but not all – allegations of sexual assault raised in the context of the CF are being prosecuted before civil courts of criminal jurisdiction.  However, we have little or no explanation why select matters remain in the military justice system.  Nor is there any transparency on which matters are being investigated by the military police and which matters are being investigated by civil police.  I am aware that, as recently as autumn 2023, the military police continue to investigate allegations of sexual misconduct arising within the CF.

 

Conclusion

Therefore, the principal change that has arisen is that these allegations are increasingly being prosecuted before civil courts of criminal jurisdiction.  And, in those circumstances, CF personnel cannot benefit from the fearless and rigorous representation by Defence Counsel Services.

Rory Fowler “R v Vu – Redux” (29 January 2024) online: Law Office of Rory G Fowler <http://roryfowlerlaw.com/r-v-vu-redux/>

 

And, while the JAG has a statutory duty to report on the military justice system which he “superintends”[3], that obligation presumably does not extend to reporting on the prosecution of CF personnel before civil courts of criminal jurisdiction, even if the allegations were investigated by the military police.

It is unclear whether any data is being collected regarding prosecutions of CF personnel for sexual assault arising within the context of the CF, but which are prosecuted before civil courts of criminal jurisdiction.  I suspect that some data is being collected, either by the military police, the Office of the JAG, or another office within the CF or the DND.  I am less confident that such data will be shared with the military community or the public in a transparent manner.  And when I use the term “transparent”, I refer to sharing the data in a manner that does not try to shape conclusions through selective publication of the data or disingenuous characterizations.

After all, one of the criticisms of the military justice system was that the number of convictions for sexual assault were “too low” or, in any event, lower than the conviction rates in the civil criminal justice system.  I have previously alluded to factors that might explain this deviation, including the availability of defence counsel free of charge (which largely removes the factor of an accused’s capacity to pay for a rigorous defence) and the risk that charges are laid and prosecuted in the military justice system where the evidence may not support a reasonable prospect of conviction.

What is clear is that more research is necessary to identify why the conviction rate for “criminal offences of a sexual nature” in the military justice system was lower than in the civilian criminal justice system.

Provided that accurate and robust data is, indeed, being collected regarding the prosecution of CF-related allegations before civil courts of criminal jurisdiction, and that data is shared in a transparent and meaningful manner, it may well be illuminating regarding whether criticism of the fitness of the military justice system was as compelling as some people asserted.

 

[1] And, contrary to the conclusion that appears to be drawn by the Chair of the MPCC, such consultation does not necessarily mean that the military police are ‘delegating’ to the complainant the determination of whether the investigation will be conducted by the military, or civil, police.

[2] On 14 February 2024, the (Acting) Chief Military Judge’s website had 20 entries for “upcoming courts martial”.  However, some entries were for motions or applications for courts martial that were also listed as separate entries.  As of 14 February 2024, there were matters relating to 16 accused listed on the (Acting) Chief Military Judge’s website.

[3] National Defence Act, RSC 1985, c N-5, s 9.2(2).

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