Why are the military police threatening to charge a civilian?

11 January 2024

 

On 9 January 2024, David Pugliese published a bizarre story regarding a sex worker in Kingston, Ontario who offers a discount to members of the Canadian Forces (CF).  This was newsworthy because the chain of command at Canadian Forces Base (CFB) Kingston reacted (over-reacted?) rather pointedly to certain factors.  The military police have evidently opened an investigation and went as far as threatening to charge the sex worker with one or more criminal offences.

My initial reaction to the news article was, frankly, bemusement – it was an odd anecdote.  This matter gives rise to a variety of potential issues that we could discuss, including whether the sex worker in question broke any laws.  However, one aspect of the story that struck me above others was the issue regarding military police jurisdiction and their status as peace officers.  That is the issue upon which I focus below.  It is clear that the authors of the threatening correspondence to the sex worker could use a refresher.

 

Background

Based upon Mr. Pugliese’s article, a Kingston-area sex worker, who offers discounts to CF personnel, also purportedly wore a military uniform (presumably a CF uniform) in her online advertising.  The discussion that follows focuses on the military police, not the sex worker in question.  However, for ease of reference, I will refer to her as “G”.

The nature of the uniform that “G” was purportedly wearing was not described in detail in Mr. Pugliese’s article.  The article relied significantly on the content of the warning conveyed in documents from the military police.  While the article was accompanied by a photo of “G”, the “uniform” that she wore in the photo appeared to be some sort of “home-made” clothing that incorporated what could best be described as “elements” of past or present Canadian Forces (CF) uniforms.  She was certainly not wearing a uniform similar to what was worn in the incident(s) that led to a prosecution of Franck Gervais.  Nor was she purporting to hold herself out as a member of the CF  Based upon the limited information conveyed in Mr. Pugliese’s article, it would be a challenge to establish that “G” committed an offence under para 419(a) of the Criminal Code.

Since the commentary below focuses on military police jurisdiction and their status as peace officers, let’s focus on what they purportedly wrote to “G”.  The content of the documents described by Mr. Pugliese included the following statement:

“Upon review of your website, it was noticed that you were not only advertising your services wearing a military uniform which is a controlled piece of clothing, but also displaying other parties engaging in sexual acts while also in uniform …”

 

The military police indicated that they found her business cards at CFB Kingston then, according to Mr. Pugliese’s article, threatened to charge her with “… advertising sexual services contrary to section 286 of the Criminal Code and the other for the unlawful use of military uniforms contrary to section 419(a) of the Criminal Code of Canada.”  As an aside, section 286 of the Criminal Code does not establish an office of “advertising sexual services”.  They should have cited section 286.4, not section 286.  I do not know if the error was a typo in Mr. Pugliese’ article or an error by the military police.  Although I have my own suspicions as to who erred, I won’t speculate here.

I will also offer the observation that para 286.5(1)(b) of the Criminal Code also establishes that “… no person shall be prosecuted for … an offence under section 286.4 in relation to the advertisement of their own sexual services.”

As is, unfortunately, increasingly the case, I am uncertain what the military police were thinking when they sent their threat of prosecution to “G”.

The military police purportedly further threatened: “… as our investigation continues, if it is discovered that you received your uniform from another Canadian Forces member, then an additional charge is present …”.

There were also threats from the chain of command to their subordinates.  Mr. Pugliese wrote:

Military commanders at Canadian Forces Base Kingston also took the highly unusual step in mid-December of telling soldiers about the 32-year-old [sex worker]. Troops were warned to stay away from the sex worker.

The internal message noted that “the escort in question has photos posted on their website of (as of yet unidentified) clients in CAF uniforms in compromising positions. Aside from this being a potential offence, it could lead to other more serious consequences and engaging in sexual exploitation clearly goes against our CAF Code of Ethics and Values.”

 

The threat seems clear to me: ‘… if you use this sex worker’s services, we will take action against you under the CAF Code of Ethics and Values …’.  However, it is unclear what evidence the leadership at CFB Kingston have regarding “exploitation”.  Certainly, from Mr. Pugliese’s article, “G” does not appear to believe that she is being exploited.

 

Military Police as Peace Officers

When we examine the status of military police as peace officers, our first point of focus is the person who is purportedly in jeopardy regarding the exercise of powers of a peace officer.  In this case, it is the sex worker, “G”, who received the correspondence from the military police.  We know from Mr. Pugliese’s article that she is not a member of the CF.  This is reinforced by the assertion by the military police that “G” is not permitted to wear a CF uniform.

However, her civilian status – or, more accurately, the fact that she is not subject to the Code of Service Discipline – is also relevant to the status of the military police as peace officers and their standing to threaten her with charges before a civil court of criminal jurisdiction.

Technically, an information relating to allegations of a Criminal Code offence need not be sworn by a peace officer (section 504).  And, technically, the Criminal Code permits ‘private prosecutions’ (section 507.1).  However, an information sworn under section 504 for the purposes of section 507.1 of the Criminal Code will trigger a series of steps whereby the information shall be referred to a provincial court judge and the relevant Attorney General has a role to play to ensure the proper administration of justice.

While I could suggest that it is rare that prosecutions will be predicated upon investigations other than by peace officers and informations sworn for in relation to section 507.1 of the Criminal Code, that suggestion is not necessary to make the point that I intend to make here.

The military police wrote to “G” in their capacity as military police and their intent was clear: to threaten charges and to indicate that they – not civilian police – were conducting an investigation of the sex worker with the potential outcome that charges would be laid.

However, that is tantamount to members of any CF unit, who are not peace officers, writing to the same person, and threatening her with criminal prosecution.  And I make that assertion because military police are no more peace officers in relation to “G” in this circumstance than the Base Commander of CFB Kingston would be.  And standing as a ‘peace officer’ is relevant because of the powers and protection granted to peace officers in the conduct of criminal investigations.

 

Peace Officer

“Peace Officer” is defined under section 2 of the Criminal Code.  It is a long definition and includes a variety of different types of people.  For our purposes, para (g) is the relevant portion of the section:

(g) officers and non-commissioned members of the Canadian Forces who are

(i) appointed for the purposes of section 156 of the National Defence Act, or

(ii) employed on duties that the Governor in Council, in regulations made under the National Defence Act for the purposes of this paragraph, has prescribed to be of such a kind as to necessitate that the officers and non-commissioned members performing them have the powers of peace officers; (agent de la paix)

 

So, let’s look at what the National Defence Act (NDA) and the relevant Governor in Council regulations have to say.  And let’s bear in mind that para 2(g) of the Criminal Code establishes two quite distinct circumstances in which an officer or non-commissioned member (NCM) of the CF might have the powers of a peace officer: (a) under sub-para 2(g)(i) of the Criminal Code when appointed for the purposes of s 156 of the NDA; and, (b) when employed on duties that the Governor in Council prescribes in order to serve the purposes indicated in sub-para 2(g)(ii) of the Criminal Code.

 

First Ground for Peace Officer Status – para 2(g)(i)

We’ll start with section 156  of the NDA, which focuses specifically on military police, and which states:

Powers of military police

156 (1) Officers and non-commissioned members who are appointed as members of the military police under regulations made for the purposes of this section may

(a) detain or arrest without a warrant any person who is subject to the Code of Service Discipline, regardless of the person’s rank or status, who has committed, is found committing, is believed on reasonable grounds to be about to commit or to have committed a service offence or who is charged with having committed a service offence; and

(b) exercise such other powers for carrying out the Code of Service Discipline as are prescribed in regulations made by the Governor in Council.

Arrest without warrant — limitations

(2) A member of the military police shall not arrest a person without a warrant for an offence that is not a serious offence if paragraphs 155(2.1)(a) and (b) apply.

 

So, in order to be a “peace officer” an officer or NCM of the military police must first be appointed under regulations made for the purpose of amplifying section 156.  When so appointed, the officer or NCM of the military police would then be a peace officer, but only for the purposes identified at s 156 of the NDA.

The relevant regulation regarding appointment as a “peace officer” for the purposes of s 156 of the NDA may be found at art 22.02 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O):

22.02 – APPOINTMENT AS MEMBERS OF MILITARY POLICE

For the purposes of section 156 of the National Defence Act, an officer or non-commissioned member is appointed as a member of the military police if they are qualified in a military police occupation and are in lawful possession of a Military Police Badge and an official Military Police Identification Card.

 

An officer or NCM of the military police must complete training to qualify them to function as an officer or NCM of the military police and must be issued a badge and official military police identification.  These are their “credentials”, and you will often hear or read references to “military police credentials” or a “credentialed military police” member.

Not all officers and NCM of the military police will have credentials.  For example, an officer or NCM undergoing that qualifying training will belong to the relevant military police Military Occupation Specification (MOS), but they won’t be credentialed.  And some officers and NCM do not complete the requisite training.  For example, some officers and NCM of the reserve force won’t necessarily be in a position to dedicate sufficient time to complete all requisite training for “credentials”.  Consequently, while they may perform some duties allocated to military police, those won’t be duties associated with being a ”peace officer”.[1]

And some military police who have completed the requisite qualifying training may be subject to suspension or revocation of their credentials for a variety of reasons, including circumstances where the officer or NCM is alleged to have contravened the Military Police Professional Code of Conduct (MPCC).  The process whereby the credentials of an officer or NCM of the military police may be revoked, suspended, or reinstated is described (generally) at art 22.04 of the QR&O, Military Police Credentials Review Board (MPCRB).

Additionally, before the MPCRB undertakes or completes the process described at art 22.04 of the QR&O, the relevant military police chain of command might suspend the “military police appointment” of an officer or NCM or “withdraw” military police credentials pending the outcome of any MPCRB process.  While some of the nuances (including potential frailties) of the processes used by military police leadership is worth examining, that is not the focus of the present Blog post.  For the present purposes, the relevance of this framework is that military police are issued “credentials” under art 22.02 of the QR&O in order to regulate who is designated a “peace officer” for the purposes of section 156 of the NDA.  That status is not automatically conferred upon all military police.

Note, however, the focus of s 156 of the NDA (and, therefore, sub-para 2(g)(i) of the Criminal Code) is on the Code of Service Discipline.  Military police are granted powers and standing as “peace officers” to assist with the enforcement of the Code of Service Discipline.

But “G” is not a member of the CF.  She is not normally subject to the Code of Service Discipline.  Civilians are subject to the Code of Service Discipline only within the narrow parameters established under section 60 of the NDA (specifically, subs 60(1), paras (d) through (j)).  These provisions are amplified in sections 61 to 65 of the NDA.

Based upon the information provided in Mr. Pugliese’s article, none of the provisions from paras 60(1)(d) to (j) of the NDA describes “G”.  She is not serving in the position of an officer or non-commissioned member of any force raised and maintained outside Canada by Her Majesty in right of Canada and commanded by an officer of the Canadian Forces.  She is presumably not accompanying any unit or other element of the Canadian Forces that is on service or active service in any place.  She is not attending an institution established under section 47 of the NDA (e.g., an educational institution like Royal Military College of Canada).  There are no allegations that she is an alleged spy for the enemy.  Nor is she serving with the Canadian Forces under an engagement with the Minister whereby the person agreed to be subject to the Code of Service Discipline.

In the context of this matter, it would appear that no officer or NCM of the military police could claim peace officer status under sub-para 2(g)(i) of the Criminal Code.

 

Second Ground for Peace Officer Status – para 2(g)(ii)

We must then turn our attention to sub-para 2(g)(ii) of the Criminal Code and the “… regulations made under the National Defence Act for the purposes of this paragraph, [and] prescribed to be of such a kind as to necessitate that the officers and non-commissioned members performing them have the powers of peace officers …”.

The relevant regulations regarding this appointment may be found at art 22.01 and art 22.011 of the QR&O.  Article 22.01 simply reiterates the definition of “peace officer” from para 2(g) of the Criminal Code.  Article 22.011 defines the “duties requiring powers of peace officers”.  For clarity, I have reproduced the entirety of that article of the QR&O here:

22.011 – DUTIES REQUIRING POWERS OF PEACE OFFICERS

For the purposes of subparagraph (g)(ii) of the definition “peace officer” in section 2 of the Criminal Code, the following duties are prescribed to be of such a kind as to necessitate that the officers and non-commissioned members performing them have the powers of peace officers:

(a) any lawful duty performed as a result of a specific order or established military custom or practice that is related to any of the following matters:

(i) the maintenance or restoration of law and order,

(ii) the protection of property,

(iii) the protection of persons,

(iv) the arrest or custody of persons, and

(v) the apprehension of persons who have escaped from lawful custody or confinement; and

(b) any duty related to the enforcement of the laws of Canada that are performed as a result of a request from the Minister of Public Safety and Emergency Preparedness, the Commissioner of the Royal Canadian Mounted Police or the Commissioner of Corrections, under an Act, a regulation, a statutory instrument or a Memorandum of Understanding between the Minister of Public Safety and Emergency Preparedness and the Minister of National Defence.

 

Note that para (b) of art 22.011 is linked to a request from a relevant federal Minister of the Crown, under a relevant Act, regulation, or Memorandum of Understanding, and that request would be made to the Minister of National Defence.  What we are talking about in that context is a request such as a request for assistance to law enforcement made under section 273.6 of the NDA.

The matter described in Mr. Pugliese’ article does not involve a request from the Minister of Public Safety and Emergency Preparedness, the Commissioner of the RCMP or the Commissioner of Corrections.

That leaves para (a).  And, frankly, the principal purpose of para (a) is to list potential duties that could arise in Aid of the Civil Power (sections 274 to 285 of the NDA) or Public Service (section 273.6 of the NDA) in the event that such powers need to be conferred on any participating CF personnel.  That is why the potential to confer such powers is not limited to military police.  And CF personnel will not always be granted peace officer status when called out in Aid of the Civil Power or for Public Service.  In fact, it is rare for that status to be conferred upon them.

Nevertheless, circumstances in para 22.011(a) are not limited solely to conditions when the CF is called out in Aid of the Civil Power or for Public Service.  However, as I explain below, none of these grounds listed in that provision support the contention that the military police have standing as peace offers in relation to the sex worker whom they have threatened with criminal charges.

We are aided in defining the parameters of the peace officer status conferred under art 22.011 of the Criminal Code courtesy of a couple of increasingly dated judgments, one of which was handed down by the Supreme Court of Canada (SCC).

In R v Nolan, [1987] 1 SCR 1212, which pre-dated the significant reform of military policing in Bill C-25 by over a decade, the SCC examined the standing of military police as peace officers in the context of a breathalyzer demand made by a military police member to a civilian who was not subject to the Code of Service Discipline.  [As an aside, the appellant was represented by the late David Bright, KC, who passed away early last year, and who was a longtime champion of the rule of law in military justice.]

In a unanimous judgment written by the then Chief Justice Dickson (who was a veteran of World War II and who would subsequently play a key role in recommending improvements to military policing), the Court held that, when dealing with a civilian who was not subject to the Code of Service Discipline, military police then (as now) had no authority to make a breathalyzer demand (which would have required them to have the powers of a peace officer) by virtue of what was then sub-para 2(f)(i) of the Criminal Code (and which is now sub-para 2(g)(i) of the Criminal Code).

In relation to sub-para 2(f)(i) of the Criminal Code, the Court in Nolan examined what was then s 134 of the NDA.  That provision, in amended form, is now s 156 of the NDA.  And, while some aspects of the provision may have changed in the intervening 37 years, what has not changed is that the purpose of that provision was to enforce the Code of Service Discipline.

The Court had to look elsewhere for peace officer status – namely sub-para 2(f)(ii) (now sub-para 2(g)(ii)) of the Criminal Code.  Sub-para 2(f)(ii) – much as today’s sub-para 2(g)(ii) – was not limited to military police.  It referred to any officer or “man” (now NCM) of the CF.  And the standing as “peace officer” had to relate to the performance of one or more of the duties listed at what was then sub-art 22.01(2) of the QR&O.  [I note here that the various amendments to the QR&O in the intervening time may be a source for confusion.  Consequently, I highlight that the provisions in what was sub-art 22.01(2) of the QR&O in 1987 are now found in art 22.011 of the current version of the QR&O].

At para 26 of Nolan, the Chief justice observed:

… There can be no doubt that the detection and arrest of inebriated drivers falls within the “matters” enumerated in [what was then art] 22.01(2) [of the QR&O]. It could be said to relate to the maintenance or restoration of law and order, to the protection of property, or to the protection of persons. It certainly relates to the arrest or custody of persons. That is not the final hurdle, however, for the regulation imposes further conditions upon military personnel claiming to act as peace officers under s. 2(f)(ii) of the [Criminal] Code. A member of the armed forces is not given leave by s. 22.01(2) of the Queen’s Regulations to act as a peace officer in all circumstances. Military personnel only fall within the definition when they are performing “lawful duties” that are the “result of a specific order or established military custom or practice”.

 

The Chief Justice went on to explain, at para 27 and para 28:

27.  It is therefore necessary to determine whether a demand made to a civilian driver for a breath sample falls within the scope of the lawful duties of a military police officer and whether the officer in the case at bar was acting pursuant to a specific order or established military custom or practice. To deal with these issues properly it is important to remember that when Mr. Nolan was observed by the military police officer, Mr. Nolan was driving at 50 kilometres per hour in a 15 kilometres per hour speed zone on C.F.B. Shearwater. Mr. Nolan was committing an infraction on the base, and the officer of course had authority to enforce the applicable speed limits against a civilian driving on the base (Government Property Traffic Regulations, C.R.C. 1978, c. 887).

1.  28.  Having stopped Mr. Nolan for the purposes of enforcing a speed limit, the officer derived further authority from the Trespass Regulations. These Trespass Regulations expressly do not apply to any person who is subject to the Code of Service Discipline, but they apply to all other persons, with certain stipulated exceptions. (See sections 3 and 29 of the Trespass Regulations.) They did apply to Mr. Nolan.

 

In other words, the military police member wished to assert peace officer status must point to lawful duties that are a result of a specific order or established military custom or practice.  The military police member in question cannot simply point to the tautological rationale that he or she has the standing of a peace officer to enforce the Criminal Code because he or she wishes to enforce the Criminal Code.

In Nolan, the source of the standing was the definition of “security guard” found in section 2 of the Defence Establishment Trespass Regulations [Trespass Regulations] that were in force at that time.  These regulations were relevant because Mr Nolan had operating his motor vehicle on a Defence Establishment when he was noticed by the military police NCM who eventually stopped him, pursuant to the Government Property Traffic Regulations.  The military police NCM was empowered to conduct a “vehicle stop” of a vehicle that exceeded the posted speed limit by virtue of the Government Property Traffic Regulations.  And the military police NCM was further empowered as a “security guard” under the Trespass Regulations to enforce relevant laws.  That sequence of duties and powers linked the exercise of duties and powers back to the enumerated grounds under what was then art 22.01(2) of the QR&O.

As I note above, the Nolan judgment is dated, and there have been legislative changes since then, not the least of which is the repeal of the Trespass Regulations and the subsequent amendment of the QR&O.

Consequently, the appellate judgment in R v Haynes, 1994 NSCA 87 (CanLII) is also of some assistance.

This matter also arose out of a breath demand by a military police NCM of a civilian (i.e., someone not subject to the Code of Service Discipline).  Though the judgment is from 1994, the incident occurred in 1991.  By then, the Trespass Regulations had been replaced by the Defence of Controlled Access Area Regulations (DCAAR).  The relevant provision of the NDA relating to military police was, by then, section 156 (as it is now).  And the definition of “peace officer” regarding members of the CF was found at para 2(g) of the Criminal Code, as it is now.

As in Nolan, the military police NCM could not rely on sub-para 2(g)(i) and section 156 of the NDA to establish his status as a peace officer.  Mr. Haynes was not subject to the Code of Service Discipline.  As in Nolan, it was necessary to rely on sub-para 2(g)(ii) of the Criminal Code and what was then sub-art 22.01(2) of the QR&O.

As with the repealed Trespass Regulations, the DCAAR applied to “… all persons except those subject to the Code of Service Discipline …”.  In other words, they would apply to civilians who were present on “Controlled Access Areas”, such as Defence Establishments.

In both Nolan and Haynes, the military police members in question were able to assert peace officer status because the civilians to whom the military police made requests for breath samples were either on a Defence Establishment or had just left the Defence Establishment and had been observed leaving the Defence Establishment.  They were physically present on the Defence Establishment, which the military police members had lawful power (and duties) to safeguard.  When detaining civilian motorists, the military police members were performing duties under relevant regulations in force at the material time, and which created duties in relation to (then) art 22.01(2) of the QR&O.  This, in turn, established the grounds for exercising the powers of a peace officer pursuant to para 2(g)(ii) of the Criminal Code.

However, that is not the circumstance described in Mr. Pugliese’ article.  There is no evidence that “G” was on a Defence Establishment.  The fact that the military police found her business cards on CFB Kingston is not evidence that she was there.  And, in any event, they certainly did not apprehend her on the Base or shortly after leaving the Base.

 

Conclusion

Absent any law or established custom of the service that would satisfy the current art 22.011 of the QR&O, military police could not purport to exercise the powers of a peace office in relation to “G”.  In particular, if she is not on a Defence Establishment or other Controlled Access Area that the military police are responsible for securing, then they cannot assert standing as peace officers.

While the Criminal Code does permit anyone – and not just a peace officer – to arrest, without warrant, a person found committing an indictable offence (section 494), that is manifestly not what arose here.  The military police communicated with “G” in a manner in which they were clearly asserting their standing as military police, clearly implying that they were doing so under status of peace officers, and indicated  that they were investigating her for one or more criminal offences.

I question why the military police are purporting to conduct what we may characterize as a law enforcement investigation in a matter where they do not appear to have jurisdiction as peace officers.  If they believe that criminal offences have been committed, or are being committed, by a civilian outside of a Controlled Access Area or Defence Establishment, one might feel compelled to ask why they have not referred the matter to the appropriate civilian police, such as the Kingston Police Service (KPS).

Perhaps they did.  And perhaps the KPS informed them that they had no intention of investigating a sex worker whom they believe is not committing any criminal offence.

In any event, I find it mildly offensive that a law enforcement agency that purportedly prides itself on professionalism, would threaten a civilian with criminal charges where that so-called law enforcement agency has no standing as peace officers.

Consider this: if the military police were to make good on their threat, they would have to seek out that civilian and arrest and/or charge her.  Presumably, that would be at her civilian residence, her civilian place of work, or another location that is not a Defence Establishment.  They’d roll up in their military police vehicles (which look like many other police vehicles), dressed in their military police Occupational Patrol Dress (which look like many other police uniforms), armed with their CF-issued sidearms.  But they would not have the status of peace officers.

That’s right – at that point they would just be armed members of the military accosting a civilian.

That doesn’t sound like a law enforcement agency with a sufficient understanding of their jurisdiction or powers.  That doesn’t sound like a professional law enforcement agency.

 

[1] There are various manifestations of these factors in military police policies.  For example, the Military Police Occupational Patrol Dress (OPD) is worn only by “credentialed” military police.  An officer or NCM of the military police who does not have “credentials” (for whatever reason) will likely wear CADPAT uniform.