More Military Police Shenanigans

9 October 2024

 

The military police of the Canadian Forces have difficulty understanding their jurisdiction.

A little over a month ago, I read an interesting decision from the Law Society Tribunal (Hearing Division) of the Law Society of Ontario.[1]

Law Society of Ontario v McKöena, 2024 ONLSTH 91 [McKöena] was a disciplinary hearing of the Law Society Tribunal regarding allegations that a licensee (an Ontario Lawyer) had misrepresented his standing as a “public officer” (specifically, a commissioned officer of the Canadian Forces) when communicating with the military police, and had subsequently failed to inform the Law Society of Ontario that he was charged pursuant to s 130 of the Criminal Code as a result of this alleged misrepresentation.  The Tribunal decision was handed down on 21 August 2024.

The facts of the misconduct were no longer in dispute by the time the Hearing Division convened over the course of select dates in April, May and July of 2024.  The hearing turned on the issue of whether mental health challenges experienced by the licensee would excuse or mitigate against disciplinary culpability.

The purpose of the present Blog post is not to examine the regulation of lawyers in Ontario.  However, this matter did describe the exercise of jurisdiction by the military police that was problematic.  And this issue is exacerbated by the fact that some stakeholders seem unconcerned about such problematic conduct.

This Blog discusses aspects of military law.  “Military law” is not a discreet type of law.  As with most law-related subjects, there is overlap between different areas of interest.  Military law is largely public and administrative law.  It can incorporate subjects that are often described as “constitutional law”, “criminal law”, “disciplinary law”, “administrative law”, “regulatory law”, or “human rights law” – and that is before we start to delve into International Humanitarian Law (IHL), International Human Rights Law (IHRL) or the Law of Armed Conflict (LOAC). The common theme is that application of law and legal principles in the governance and operation of the Canadian Forces.

This Blog doesn’t usually examine aspects of professional regulation, although, recently, I did offer some observations relating to the misconception that the “profession of arms” is a self-regulated profession.  And, while the Canadian Forces is certainly a regulated institution (arguably far more ‘regulated’ than many other institutions), it is clearly not a self-regulated profession in the nature of lawyers, doctors, and similar self-regulated professions.

I do not raise the decision in McKöena in order to discuss the professional regulation of lawyers in Ontario.  I raise it because of an interesting – and illuminating – factual circumstance that was described in that decision, and which further illustrates the ongoing problematic conduct of military police in the Canadian Forces, particularly regarding the issue of their jurisdiction.  And, as I conclude below, there is an ironic twist to the circumstances in which a lawyer, and former legal officer, was accused of falsely misrepresenting his status as a “public officer”.

 

Background Facts

First, I offer an acknowledgement: I know the lawyer who was the subject of the above-mentioned Tribunal decision.  I also know the legal officer who, according to the Tribunal decision, was contacted by the military police to confirm whether Mr. McKöena was a serving legal officer.  I offer no comment on the merit or nature of the disciplinary/regulatory decision by the Law Society Tribunal.  Nor will I be commenting on the merit or relevance of the “mental health defence” that lay at the centre of that decision.  That is not the purpose of the present discussion.

I will take the facts, as described in the Tribunal decision, on their face, and apply them to the discussion concerning military police jurisdiction. And, as I note below, there are some gaps in the facts described in the Tribunal decision that are relevant to the discussion below.  Consequently, I describe certain assumptions that are necessary to complete my analysis.  I offer an explanation for the bases for these assumptions.

Mr. McKöena is a licensee of the Law Society of Ontario and a former legal officer, who retired from the Canadian Forces after approximately 9 years.[2]  Upon retirement, he held the rank of “major”.  After he retired from the Canadian Forces, he set up in private practice and part of his client demographic included current and former members of the Canadian Forces.  The Tribunal decision mentioned that his “… advocacy included a televised media interview discussing the problems faced by CAF members alleging sexual misconduct.”[3]  And I recall an interview that Mr. McKöena gave to the CTV News program W5 a couple of years ago.  Omar Sachedina conducted an interview with him, describing him as an “insider” and a former “… member of the elite Judge Advocate General Corps …” [those are Mr. Sachedina’s words … not mine].[4]

Mr. McKöena was retained by an unnamed client [her identity was not relevant to the Tribunal proceeding] in relation to a traffic summons that she received from the military police.  Para 9 of the Tribunal decision states:

Client A retained [Mr. McKöena] to represent her with respect to a traffic summons. On July 21, 2021, the military police (MPs) stopped her car on the Petawawa military base. Her former spouse, a senior non-commissioned officer (NCO) in the CAF, was suspected of driving while impaired. Client A was neither driving nor in the car at the time of the traffic stop. Her former spouse was detained but not charged. However, Client A received a traffic summons for having an uninsured vehicle because the vehicle was registered in her name.

 

And, to be clear: this is not the exercise of jurisdiction that is the subject of analysis below.

After he was retained, Mr. McKöena contacted the military police at CFB Petawawa by telephone, to discuss the summons.  Mr. McKöena testified before the Law Society Tribunal that he believed that he had identified himself as a former major or former “JAG officer”.  The call was recorded (as, presumably, all calls to the military police detachment were recorded).  According to the Tribunal, the recording of the call contradicted Mr. McKöena’s account.

In any event, Mr. McKöena participated in two initial telephone calls with the military police, one which he initiated, and one initiated by the military police.  He spoke initially with Corporal Laffier and, subsequently, Master Corporal Belisle, the military police non-commissioned member (NCM) who conducted the traffic stop and issued the summons to ‘Client A’.  The military police who participated in those telephone calls believed that Mr. McKöena had represented himself as a serving legal officer.  This led to charges under the Criminal Code.

Here is how the Law Society Tribunal described the steps leading to the charge:

[28]        Cpl. Laffier testified his conversation with the Lawyer was “odd.” He also thought it was unusual for a JAG lawyer to get involved in a routine traffic stop. As a result, he made inquiries with the local OJAG office and was told that there was no Major McKöena working with the JAG in Petawawa. Later the next day he was advised there was no Major McKöena working for the OJAG and that no further information should be provided to the Lawyer.

[29]        The matter came to the attention of Lieutenant Colonel Napier, the Assistant Judge Advocate General, Central Region on August 3, 2021. LCol. Napier testified that he made further inquires which confirmed the Lawyer was not currently serving with the CAF in any capacity. As a result, the military police commenced an investigation which led to the Lawyer being charged on August 18, 2021 under s. 130(1)(a) of the Criminal Code of Canada for falsely representing himself as a public officer. This is a hybrid offence and, as the Crown did not make a formal election on the record, it is deemed to be an indictable offence.

[30]        Following a pre-trial conference, the charge was stayed by the Crown on February 22, 2022. The investigator spoke with the Crown about the charge twice. She affirms in her affidavit the Crown told her that the elements of the offence were met, and the matter was serious, but that the charge was ultimately stayed as the courts were back-logged and the prosecution of violent offences was being prioritized. The Lawyer did not cross-examine her on this evidence.

[31]        The Lawyer admits he was served with the criminal charge on August 23, 2021 and never reported it to the Law Society. He first acknowledged having been charged in his March 22, 2022 written response to the investigator, approximately seven months after being served. In his response and before us, the Lawyer explained that he always intended to report the charge but did not have the presence of mind to do so because he was attending to his child’s serious health issues while managing ongoing stress related to the pandemic.

 

The charge under s 130 of the Criminal Code was one of the central factors that led to the disciplinary process governed by the Law Society of Ontario.  Other issues were addressed in the Law Society Tribunal decision; however, as I mention above, the present Blog post is about military police jurisdiction, and not the regulation of lawyers in Ontario.  The charge laid under s 130 of the Criminal Code, and the grounds for military police to exercise the powers of peace officers in laying that charge, are the central issue for the present Blog.

 

Impersonating a Peace Officer or a Public Officer

Section 130 of the Criminal Code states:

130 (1) Everyone commits an offence who

(a) falsely represents himself to be a peace officer or a public officer; or

(b) not being a peace officer or public officer, uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that he is a peace officer or a public officer, as the case may be.

Punishment

(2) Everyone who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) is guilty of an offence punishable on summary conviction.

Based upon the Tribunal decision, Mr. McKöena was alleged to have misrepresented himself as a “public officer”, not a “peace officer”.  However, either type of misrepresentation is prohibited under this provision.

Both “public officer” and “peace officer” are defined at s 2 of the Criminal Code.

A “public officer” includes:

(a) an officer of customs or excise,

(b) an officer of the Canadian Forces,

(c) an officer of the Royal Canadian Mounted Police, and

(d) any officer while the officer is engaged in enforcing the laws of Canada relating to revenue, customs, excise, trade or navigation; (fonctionnaire public)

 

[As an aside, this, presumably, could not be invoked if a person misrepresents themselves as a non-commissioned member of the Canadian Forces, since “officer” is distinctly defined under s 2 of the National Defence Act.]

And, while Mr. McKöena did not represent himself as a “peace officer”, that definition under s 2 of the Criminal Code is relevant to our discussion below, particularly paras (c) and (g):

(c) a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process,

…

(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)

 

Basis for Jurisdiction

Corporal Laffier described his discussion with Mr. McKöena as “odd”.

You know what I find “odd”?  I find it odd when military police, who have very limited jurisdiction over civilians, exercise – or attempt to exercise – powers of peace officers over civilians.  I have commented on this before:

Why are the military police threatening to charge a civilian?, 11 January 2024

 

My Blog post from January of this year delves into the jurisdiction of military police in some detail.  To summarize:

• Unlike most civilian law enforcement personnel, the jurisdiction of military police as “peace officers” is heavily contextual.
• Although military police may be ‘credentialed’ and are given a badge and identification when ‘credentialed’ (and wear patrol uniforms that look a great deal like civilian police uniforms and operate motor vehicles that look a great deal like civilian police vehicles), they do not enjoy broad status as peace officers, as defined under section 2 of the Criminal Code.
• Para (c) of the definition of “peace officer” under s 2 of the Criminal Code does not heavily caveat or contextualize the jurisdiction of a civilian police officer or constable as a “peace officer”;
• However, para (g) of the definition of “peace officer” under s 2 of the Criminal Code specifically defines, and limits, the “peace officer” status of military police. That status is based upon the purposes defined at s 156 of the National Defence Act or on duties assigned by the Governor in Council in regulations under the National Defence Act.
• The principal ground for “peace officer” status under s 156 of the National Defence Act arises in relation to the arrest or detention of persons subject to the Code of Service Discipline or to “… exercise such other powers for carrying out the Code of Service Discipline as are prescribed in regulations made by the Governor in Council.” The principal ground for their standing as “peace officers” is to enforce the Code of Service Discipline.
• The secondary ground, which arises from para (g)(ii) of the definition of “peace officer” under s 2 of the Criminal Code, is described in art 22.011 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O). This relates to “… 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.”
• The secondary ground can also arise from “… 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.” In other words, this can arise from the invocation of an “aid of the civil power” under Part VI of the National Defence Act or assistance to law enforcement under s 273.6 of the National Defence Act.

 

In my earlier blog, I also discussed the impact of the (increasingly dated) judgments of R v Nolan, [1987] 1 SCR 1212 [Nolan] and R v Haynes, 1994 NSCA 87 [Haynes] when read in conjunction with the Defence Controlled Access Area Regulations, SOR 86-957 (DCAAR), which superseded the Defence Establishment Trespass Regulations discussed in Nolan, and the Government Property Traffic Regulations, CRC c 887 (GPTR).

Ultimately, the standing of military police as peace officers is dependent upon the tasks or duties that they are performing.  If they are investigating a Code of Service Discipline offence (or infraction) they will likely be doing so as “peace officers”.  If they are securing a defence establishment, they will do so as “security guards” and, therefore, as “peace officers”.  But they have to be able to identify the specific regulation, order, or custom of the service that would justify the exercise of such jurisdiction.

As I discussed back in January, their standing as “peace officers” is dubious, at best, when they purport to investigate a civilian sex worker who is not working on a defence establishment and who is not subject to the Code of Service Discipline.  Similarly, their jurisdiction as peace officers is dubious, at best, when they purport to investigate a civilian lawyer.  And the fact that their ‘investigation’ was prompted by a civilian lawyer’s telephone call to them does not confer on them the status of “peace officer”.  It simply means that they are potential witnesses.

 

Charging a Civilian

The Tribunal decision relating to Mr. McKöena does not expressly state that he was charged by the military police.  The decision is ambiguous on that point.  Again, para 29 of the decision states:

The matter came to the attention of Lieutenant Colonel Napier, the Assistant Judge Advocate General, Central Region on August 3, 2021. LCol. Napier testified that he made further inquires which confirmed the Lawyer was not currently serving with the CAF in any capacity. As a result, the military police commenced an investigation which led to the Lawyer being charged on August 18, 2021 under s. 130(1)(a) of the Criminal Code of Canada for falsely representing himself as a public officer…

It is possible that, after conducting their investigation, the military police referred the file to a civilian law enforcement agency, and it was the “peace officers” in that civilian agency laid the charge.

But I very much doubt that was the case.  And the discussion that follows is predicated upon the reasonable assumption that it was the military police – possible Cpl Laffier or Master Corporal Belisle – who laid the charge.

Technically, an information relating to an indictable offence (including a hybrid offence) need not be laid by a “peace officer”.  Anyone who has reasonable grounds to believe that a person has committed an offence may lay an information in writing and under oath before a Justice of the Peace (Criminal Code, s 504).  Nevertheless, public prosecutions under s 507 of the Criminal Code tend to commence with an information sworn by “… a peace officer, a public officer, the Attorney General or the Attorney General’s agent”.

And I suspect that, if (or, perhaps, more accurately, when) the military police charged Mr. McKöena, they likely appeared before the justice of the peace in a military police uniform (looking very much like a civilian peace officer), and likely conveyed the impression that they were acting as peace officers.  And, while there is an element of speculation in that assumption, it is based upon knowledge of how the military police have conducted themselves over the past several years.  The Canadian Forces Provost Marshal is welcome to provide me with evidence that this is not what occurred.

Private prosecutions are permitted under s 507.1 of the Criminal Code.  Those are initiated by informations other than those referred to in subsection 507(1) of the Criminal Code.  There are additional steps that must be followed in such circumstances, and the Attorney General of the province (including his or her lawful deputy) has a right of appearance and to examine and cross-examine witnesses in such processes.  Private prosecutions are rare, and, based upon the Tribunal decision, this was clearly not treated as a private prosecution.

Consequently, if my assumption is correct, and the charge against Mr. McKöena originated from an information sworn by a member of the military police under sections 504 and 507(1) of the Criminal Code, holding himself (or herself) out as a “peace officer”, then those circumstances give rise to an ironic twist.

Mr. McKöena was charged with falsely representing himself as a “public officer” when communicating with the military police.  Consequently, following a brief investigation, a military police member may have appeared before a justice of the peace of the province of Ontario, and may have represented him- or herself as a “peace officer” when swearing the information against Mr. McKöena.

But were they?

They were certainly military police.  They were, presumably, ‘credentialled’ military police in accordance with s 156 of the National Defence Act and art 22.02 of the QR&O.  But that doesn’t mean that they were “peace officers” when they swore the information against Mr. McKöena.

They were not investigating allegations of a contravention of the Code of Service Discipline or enforcing, generally, the Code of Service Discipline.  At the time, Mr. McKöena was not subject to the Code of Service Discipline.  The very basis of the charge against Mr. McKöena was that he was NOT an officer of the Canadian Forces when he called the military police.  Nor did any of the other potential jurisdictional bases described under s 60 of the National Defence Act apply to him.  Consequently, the military police could not rely on the ‘principal ground’ to establish their status as “peace officers”.

It does not appear that Mr. McKöena was present on any Defence establishment during this matter.  He telephoned the military police (and they subsequently telephoned him) at their offices at CFB Petawawa, and his assistant communicated with the military police via email.  But there is nothing to suggest that, at any point in his communication with the military police, Mr.  McKöena set foot in a Defence establishment.  Mere communication with military police does not give rise to the exercise of jurisdiction as “peace officers” under the secondary grounds.

There does not appear to have been any specific order or established military custom that would justify their exercise of jurisdiction as “peace officers” in these circumstances.

Instead, the military police appear to have decided to investigate alleged criminal wrongdoing by a civilian.[5]

And we should all be concerned about such jurisdictional over-reach.

I suggest that we would do well to examine the relevant circumstances in greater detail, in order to obtain a bit more insight into what transpired when the military police chose to investigate a civilian.  And, admittedly, the following relies on some assumptions.  However, I contend that this is not mere arbitrary speculation.  These assumptions are predicated upon the facts conveyed in the Tribunal decision and my own knowledge of the institutional character of the Canadian Forces and the organizations involved in this matter.

According to the Law Society Tribunal, Mr. McKöena’s “… tone from the outset of the call [with the military police] was direct and commanding …”.  Corporal Laffier “… described [Mr. McKöena’s] tone as aggressive and demanding.”  It appeared that Master-Corporal Belisle and Corporal Laffier were initially quite deferential to Mr. McKöena when he called, because of the assumed “high status” of the purported legal officer. Master Corporal Belisle returned the call quickly, even though he was on leave.

Based upon the Tribunal decision, once the military police learned that Mr. McKöena was not currently serving as a legal officer, they commenced an investigation that led to him being charged two weeks later.

Put aside the fact that, compared to many other investigations conducted by the military police, this investigation was astoundingly fast.

The first question that springs to mind is: why was this not referred to civilian police who actually had jurisdiction over Mr. McKöena?

I suspect that one reasonable answer is that civilian police would likely be uninterested in a petty squabble between the military police and a civilian lawyer.

I suspect that, after realizing that they had been deferential to someone who, in their eyes, did not merit such deference, and who had been “aggressive” and “demanding”, Master Corporal Belisle and Cpl Laffier were inclined to seek a wee bit of pay-back regarding the lawyer who spoke to them in that manner.  It is reasonable to conclude that someone who had interrupted his leave in order to return a call from a presumably “high status” officer, would be resentful when he later discovered that the caller did not enjoy such “high status”.

We are told that the civilian Crown Attorney stayed the charge on 22 February 2022 – six months after the charge had been laid – because the “… the courts were back-logged and the prosecution of violent offences was being prioritized …”.  Certainly, that is a plausible explanation.

However, I am inclined to consider whether there may have been another equally valid reason.  After all, when a lawyer purportedly impersonates a serving legal officer, and does so when communicating with military police about the exercise of their policing functions – particularly in the type of circumstances described in the Law Society Tribunal decision – such allegations correlate to the administration of justice.  While it isn’t a violence-based offence, it is nevertheless a serious offence, as signalled by the maximum punishment of five years imprisonment if prosecuted by indictment.

We are left to wonder if one of the reasons why the charge was withdrawn was because it could have raised questions about whether the military police exceeded their jurisdiction as peace officers by investigating, and charging, a civilian over whom they had no jurisdiction.  Certainly, asserting ‘back-logged courts’ and ‘prioritization of violent offences’ is a tidy justification for withdrawing the charge, and one that would avoid the discomfort of acknowledging that the military police may have over-stepped the mark.  But that does not alter the recurring oddity of military police pursuing investigations of civilians.

Had a charge been laid in relation to a Code of Service Discipline offence – a “service offence” – the military police would have been obliged to seek pre-charge legal advice (QR&O, art 102.07(2)(b)).  The same is not true when they choose to lay charges under the Criminal Code as peace officers.  In light of the many observable shortcomings of military police actions, they would likely be well-advised to seek such pre-charge legal advice.  And, frankly, it appears that they do seek legal advice from the office of the JAG (OJAG) when laying charges in higher profile matters (particularly after there have been unexplained and uninvestigated leaks of their investigations).

It is possible that they may have sought legal advice prior to laying this particular charge.  In light of the fact that the charge was laid two weeks after Mr. McKöena contacted the military police, there may be reason to doubt whether they sought legal advice.  There can be delay in obtaining legal advice from the OJAG, and two weeks to investigate, seek legal advice, and lay a charge does seem unusually fast for decision-makers who have a reputation for less-than-timely action.

Canadian Forces decision-makers love to cite that they have sought legal advice (particularly where that legal advice supports their desired end-state or outcome).  I regularly encounter such assertions, often employed as a means of justifying or reinforcing a decision.  Certainly, such phrases were offered, repeatedly, in the Code of Service Discipline proceedings that led to the judicial review in Noonan v Canada, 2023 FC 618.  I regularly encounter similar phrases in so-called administrative proceedings such as Administrative Reviews under DAOD 5019-2 or in the adjudication of grievances.  Indeed, in a Certified Tribunal Record that I received recently, that phrase was employed with authority in a briefing note submitted to the Chief of the Defence Staff (CDS) as the final authority in the grievance process.  The author of the briefing note was clearly trying to reinforce the merit of the proposed course of action.  It’s a shame that the briefing note was not disclosed to the grievor.  And you can rest assured that the legal advice, invoked to buttress the recommendation, would never be disclosed to the subject of the decision.

So, it is possible that the military police received pre-charge legal advice from the OJAG.  But if that was the case, then I feel compelled to ask why the relevant legal advisor did not identify the problematic jurisdictional concern.  Why didn’t the legal advisor recommend that the matter be referred to the civilian police?

After all, based upon apparent policy direction from Anita Anand, when she was Minister of National Defence, to the Canadian Forces Provost Marshal and the Director of Military Prosecutions, matters that clearly fall within the Code of Service Discipline were to be referred to civilian courts and civilian police.  [Granted, it appears that the military police continued to investigate select allegations even after this policy direction was given.]

Why wasn’t this matter, which clearly falls outside the jurisdiction of military police, not also referred to civilian police?  And why did the legal officer who advised on this matter – if, indeed, a legal officer did advise on this matter – not advise the military police accordingly?

Of course, no lawyer is infallible.  Legal officers in the OJAG can get the law wrong.  The legal advice upon which multiple Canadian Forces decision-makers relied in Noonan was not only incorrect, it was unreasonable.  Mistakes can be made, particularly when one might be motivated to shape certain outcomes.

We don’t know if legal advice was sought by the military police, or if legal advice was given by a legal officer in the OJAG.  If advice was provided, the public certainly wouldn’t be privy to it.  And the reason offered by the civilian Crown Attorney regarding why the charge was withdrawn did not refer to any jurisdictional concerns.  However, even if there were jurisdictional concerns discussed behind closed doors, the reason that was offered, publicly, reflected prosecutorial priorities.

 

An Ironic Twist

Thus, we are left with the actions that have been described in public decisions, and we are left to speculate in order to fill gaps.  However, what we do know is that the military police elected to investigate alleged criminal wrongdoing by a civilian who was not subject to the Code of Service Discipline, and whose circumstances do not appear to have triggered the secondary grounds for military police to claim status as “peace officers”.  If the military police did, in fact, lay the charge against Mr. McKöena, it appears that they did so wearing the mantle of “peace officers”.

However, it is dubious that they could claim such status in these circumstances.  And that, in turn, raises the spectre of hypocrisy.  Mr. McKöena was alleged to have falsely identified himself as a “public officer”.  If the military police purported to swear the originating information as “peace officers”, they may have done so absent such status.  They may have misrepresented themselves as “peace officers”.  However, whether they did so “falsely” is questionable.

A charge under s 130 of the Criminal Code requires the accused to have “falsely” claimed status as a “peace officer” or “public officer”.  The mens rea for this offence requires the accused to have made such representations knowingly and that the accused knew that he or she was not a “peace officer” or “public officer”, or to have been willfully blind regarding the absence of such standing.  A person who, based upon a misunderstanding of their jurisdiction, incorrectly claims status as a “peace officer”, may be able to offer a defence to the mens rea for such a charge.

However, that does not alter the fact that military police continue to exceed their jurisdiction.  And those responsible for curtailing such over-reach do not appear to have taken any action to correct the problem.

 

[1] Due to my focus on specific client-related matters and other Blog subjects, I have only been able to turn my attention to this interesting anecdote recently.

[2] Law Society of Ontario v McKöena, 2024 ONLSTH 91[McKöena], para 6.

[3] Id, paras 6 to 8.

[4] The W5 reporting can be found at https://www.ctvnews.ca/w5/sexual-abuse-in-the-military-soldiers-speak-of-systemic-problems-in-a-toxic-culture-1.5654309 and the interviews can be found on YouTube at https://youtu.be/tI84PYsEad4?si=QNdH25YGPqBu_P_w.

[5] This can be distinguished from military police choosing to investigate alleged Code of Service Discipline offences involving someone who is a civilian at the time of an investigation, but was subject to the Code of Service Discipline at the time of an alleged offence.  Pursuant to s 60(2) of the National Defence Act, “Every person subject to the Code of Service Discipline under subsection (1) at the time of the alleged commission by the person of a service offence continues to be liable to be charged, dealt with and tried in respect of that offence under the Code of Service Discipline notwithstanding that the person may have, since the commission of that offence, ceased to be a person described in subsection (1).”  Thus, military police could purport to investigate an allegation that a former member of the CF committed a Code of Service Discipline offence if the former CF member was subject to the Code of Service Discipline at the time of the allegations.  That does not describe what arose with Mr. McKöena.