Motions to Strike/Dismiss Applications and Actions by CF Personnel
January 28, 2025

When are we going to take military police accountability seriously?

 02 February 2025

 

I must admit: I am starting to feel like a broken record when it comes to calling for more efficient, effective, and transparent accountability of military police.

And “Groundhog Day” is a fitting time to raise, yet again, a topic that I have raised before: encouraging people with the means and mandate to hold the military police accountable for their misconduct and deficiencies.

On 7 January, Justice Petersen of the Ontario Superior Court of Justice released her decision in R v R.B., 2025 ONSC 153.  This judgment concerned an application by the accused for a stay of prosecution of charges of historical sexual assault and physical assault.  The charges were laid against a member of the Canadian Forces (CF) by the military police – specifically the Canadian Forces National Investigation Service (CFNIS) – but were prosecuted before a civil court of criminal jurisdiction.

The accused sought a stay of prosecution as a remedy under s 24(1) of the Charter for breaches of his constitutional rights guaranteed under sections 7, 9, and 11(b) of the Charter.

Justice Petersen granted the stay of prosecution.  Barring a successful appeal, this will terminate the prosecution of the allegations.  And, frankly, I would be surprised if an appeal were successful – or even initiated.

This outcome was recently reported by the CBC News: Nicole Williams, “Military police tampered with evidence in sexual assault investigation, Ontario Superior Court judge rules” (28 January 2025), online (CBC News): <https://www.cbc.ca/news/canada/military-police-sexual-assault-investigation-superior-court-ruling-1.7438428>

Frankly, in light of how significant this ruling was, I am surprised that a broader number of journalists who focus on National Defence issues did not report on this matter.

Although the specific issues arising in this judgment merit review – and I do discuss them below – this judgment resonates beyond the immediate issues addressed by Justice Petersen.

This judgment offers an object example of what happens when key decision-makers do not take accountability of military police seriously.  This judgment offers an object example of what happens when the public becomes so focused on factors and issues that are misrepresented or exaggerated, and fail to focus on factors and issues that are particularly problematic.

And this isn’t the first time that I have raised these issues.

Are we sitting comfortably?

Then we’ll begin.

 

R v R.B., 2025 ONSC 153

Let’s first discuss the outcome of R v R.B., 2025 ONSC 153.  And I will start by stressing a factor of fundamental importance.

Judges – whether civilian or military – prefer not to stay prosecutions.  Frankly, that sounds like an understatement.  To stress how judges regard such outcomes, it is more accurate to say: judges resent being forced to stay prosecutions.  Contrary to what some ill-informed critics of the judiciary might say, for whatever reasons might motivate them, judges are markedly reluctant to resort to such fiat.

And that is because a stay of prosecution will prevent an adjudication of allegations of criminal misconduct.  It is an unsatisfactory outcome for the complainant.  It fails to resolve a matter that directly affects the accused (notwithstanding that it is typically the accused who will seek a stay).  It is an unsatisfactory outcome for many participants in the criminal justice system.  One need only look at societal responses when a notorious (or not-so-notorious) prosecution is stayed: to the extent that one might anthropomorphize a construct, society resents the lack of resolution of such allegations.

I mention this to highlight a factor that some people either fail to realize, fail to acknowledge, or tend to discount: for an independent and impartial judge to order a stay of prosecution, one or more actors in the criminal justice system – typically from the investigative/prosecutorial side of the equation – would have to err in a markedly problematic way.  And it takes a great deal of will-power on my part to bite my tongue and refrain from describing the circumstances in a more pejorative fashion.

Someone messed up.

And, in this matter, that ‘someone’ was the military police.

Again.

And, while I summarize some key aspects of the judgment below, I encourage you to read Justice Petersen’s full judgment.  It’s not brief.  It’s 136 paragraphs. (Which, admittedly, is still shorter than many of my Blog posts.)  But I want you to have a full sense of the sheer scope of the errors and misfeasance by military police investigators in that matter.

The most significant breaches raised in R.B.’s application related to abuses of process that infringed the accused’s rights under s 7 of the Charter[1].  Justice Petersen’s judgment focused on multiple shortcomings of military police procedure and actions, not the least of which was the absence of jurisdiction for the military police to investigate the allegations against the accused.

While Justice Petersen did allude to the November 2021 order by the Minister of National Defence to transfer all investigations of criminal offences of a sexual nature to civilian police, and the subsequent direction from the Canadian Forces Provost Marshal (CFPM), that was not the principal basis for the judge’s conclusion that the military police lacked jurisdiction (though it was relevant to other abuses of process).

To understand the jurisdictional issues, let’s start with a bit of background.

The complainant and “R.B.” – who was the ‘accused’ and whom I will describe as the applicant, since we are discussing an application for a stay of prosecution – are both members of the CF. The applicant is a member of the regular force component and joined in 2013; the complainant is a member of the reserve force.  The applicant and the complainant met before either joined the CF.  They initially resided in Ontario (including prior to the point at which they joined the CF) and eventually moved to Alberta.

The complainant and applicant were married and were involved in a high-conflict custody battle in a family court proceeding in Alberta in 2021 and 2022.

In early 2021, the complainant contacted the military police to report allegations of intimate partner violence (IPV).  At the time, the applicant was deployed overseas.

The military police initially investigated allegations purportedly arising in Alberta, at a time when both the applicant and the complainant were members of the CF.  Those charges were eventually withdrawn by the civilian prosecutor in Alberta (concurrent with the applicant entering into a peace bond on 5 November 2021).  The complainant was upset about the decision from the civilian prosecutor to withdraw the charges against the applicant.

In December 2021, the CFNIS investigators conducted a follow-up interview with the complainant.  Due to deficiencies with their equipment the interview was not audio/video recorded.  And it appears that the military police were aware of these deficiencies at the time.

The military police subsequently commenced their investigation of historical complaints from the complainant against the applicant.  However, these complaints were based upon allegations of misconduct that purportedly occurred in Ontario, before either the complainant or the accused were members of the CF, and, therefore, before either was subject to the Code of Service Discipline. [As an aside, it is largely irrelevant that the complainant was not subject to the Code of Service Discipline.  However, it is pointedly relevant that the applicant – the accused – was not subject to the Code of Service Discipline at the time of the alleged offences.]

Eventually, on 5 May 2022, the CFNIS arrested the applicant at his place of work.  He was charged with four counts of sexual assault and one count of assault, dating from a period between 2007 and 2011. The offences were all alleged to have occurred in Ontario, at a time when both the applicant and the complainant were civilians. (The indictment was subsequently amended to consolidate the allegations into two charges: one charge of assault and one charge of sexual assault, each covering numerous alleged incidents.  However, the key factor to note is that, during the relevant time period, the applicant was not subject to the Code of Service Discipline.)

Consequently, Justice Petersen concluded that the CFNIS acted without jurisdiction when it investigated these allegations and subsequently arrested the applicant.  The Crown, wisely, conceded this point.

In her lengthy judgment, Justice Petersen also described multiple problematic actions by several military police investigators including:

  1. actions demonstrating marked bias by investigators, including improper involvement in civil family court proceedings;
  2. continuing their investigation despite a policy advisory not to proceed;
  3. a failure to preserve relevant evidence and actions that tainted evidence;
  4. a failure to record interactions with the complainant and deficiencies when recording some interactions; and,
  5. withholding or destroying evidence.

 

While Justice Petersen criticizes many of the key military police investigators, the critique focuses repeatedly on Sergeant Glenda Gauthier, the Case Manager and secondary investigator.

The joint and several errors and misconduct by military police in R v R.B. are disturbing to read.  The judgment serves as a cautionary tale describing the misfeasance and errors that can arise when military police disregard professional impartiality, and when they are not adequately supervised.

The accused’s application for a stay was granted.  Justice Petersen summarized one of the principal reasons for this outcome:

The Crown properly concedes that the CFNIS investigators’ conduct in this case is offensive to societal notions of fair play and decency. The investigators adopted an untenable expansive interpretation of their jurisdiction that has no basis in law; refused to transfer the file to civilian authorities when specifically directed by the Provost Marshal to do so; shared confidential information about the allegations and the investigation with civilians (the complainant’s family law lawyer and the court-appointed psychologist); took exceptional steps, unique to this case, to support the complainant in matters unrelated to the investigation; involved themselves in the private family law dispute between the complainant and the Applicant, to the detriment of the Applicant; systematically failed to respect and comply with their duty to preserve and disclose relevant evidence; then tried to cover up, rationalize, and minimize their misconduct when they testified before me. As the Supreme Court stated in Babos, at para. 35, “there are limits on the type of conduct society will tolerate in the prosecution of offences.” [para 126]

 

Under principles described in the landmark case of R v Babos, 2014 SCC 16 [Babos], there are two categories of cases in which a prosecution may be stayed for abuse of process.  The first, or “main” category, arises where state conduct compromises the fairness of an accused’s trial. The second, or “residual” category, arises where state conduct risks undermining the integrity of the judicial process, even if it does not jeopardize trial fairness.

A stay of prosecution is the most severe form of remedy for such abuses of process, as it will terminate a prosecution before allegations can be heard on their merits.  A stay will be granted only on the clearest of cases; in particular, it will be granted only if no alternative, and less intrusive, remedy is capable of redressing the prejudice. (Babos, paras 31 and 32)

In R v R.B., the Crown conceded that the CFNIS misconduct invoked both categories of abuse.  However, despite acknowledging that it had difficulty advocating for an alternative remedy short of a stay, the Crown argued that a stay of prosecution was not warranted.  Justice Petersen rejected the Crown’s position, concluding that “… this is one of those exceptional cases where the past misconduct of the state actors is so egregious that the mere fact of going forward with a trial would be offensive to society’s sense of justice. It would cause further harm to the integrity of the criminal justice system. There is no alternative remedy that would adequately redress the prejudice caused by the abuse of process in this case.” [para 132].

 

Broader issues

This judgment highlights several issues that have been discussed in this Blog before – sometimes repeatedly:

  1. Jurisdictional overreach by the military police;
  2. Politicization of decision-making;
  3. A misguided focus on military police “independence” rather than their accountability;
  4. Ineffective review by the military police professional standards; and
  5. The lack of public and transparent inquiry into military police misconduct and shortcomings in accountability.

 

Jurisdiction

I have commented previously on jurisdictional over-reach by the military police

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

More Military Police Shenanigans, 9 October 2024

 

These matters did not draw much attention at the time.  Admittedly, on the surface they might appear to many to be odd, tangential, and perhaps inconsequential circumstances.  However, they represented unchecked jurisdictional over-reach by military police.

A sex worker in Kingston, with a clientele that might include CF personnel, apparently wore outfits that resembled CF CADPAT.  So, the military police decided to investigate, and threaten the sex worker with criminal prosecution, notwithstanding that they had highly dubious jurisdiction to do so.

The second of the incidents reported above was, arguably, more significant.  Military police laid a charge, before a civil court of criminal jurisdiction, against a civilian lawyer for allegedly holding himself out as an officer in the CF.  Although that charge was eventually withdrawn, it was one of the factors that precipitated disciplinary action by the lawyer’s governing Law Society.

But what apparently did not attract much concern was that the military police investigated, and charged, a civilian who was not subject to the Code of Service Discipline.  To put it more directly: the military police laid a criminal charge, holding themselves out as peace officers, against someone over whom they had no jurisdiction, in circumstances in which they did not have the authority of peace officers.  Essentially, their misconduct in that endeavour was similar to the misconduct that they alleged was demonstrated by the person whom they charged.  And the object of their extra-jurisdictional action was a civilian lawyer who was representing a CF member in a dispute involving the CF.

And it appears that legal advisors in the Office of the JAG (OJAG) were at least partially aware of the actions of the military police in this regard.

That kind of conduct raises a host of questions about just what the military police in question thought they were doing, including how far they believed their jurisdiction extended, assuming such questions even crossed their mind.  I am curious if that jurisdictional over-reach may have factored into the decision by the civilian Crown Attorney to withdraw the charge.  And I am also curious about what legal officers in the OJAG considered regarding this incident.

Remember: military police whose duties involve policing functions wear uniforms that look like those of civilian peace officers, driving vehicles that look like the vehicles operated by civilian peach officers.  However, when operating off of defence establishments, and when dealing with persons who are not subject to the Code of Service Discipline, they are not actually peace officers.[2]  They are armed members of the Canadian Forces.

 

Politicization of Decision-Making

Justice Petersen’s judgment referred, repeatedly, to the announcement by (then) Minister of National Defence, Anita Anand, in which the Minister purported to direct the CFPM to refer investigations of criminal misconduct of a sexual nature to civilian law enforcement.  She also purported to issue direction to the Director of Military Prosecutions (DMP) to refer prosecutions of the same type of offences to civil courts and prosecutors.

The problem was, and is, that the Minister of National Defence Does not get to issue such direction to the CFPM and DMP.  Direction to the former must be issued through the Chief of the Defence Staff (CDS) and the Vice Chief of the Defence Staff (VCDS).[3]  Direction to DMP must be issued by the Judge Advocate General of the Canadian Forces (JAG).[4]  Such direction must be general in nature, reduced to writing, and generally made public.

The CFPM and DMP appeared to try to mitigate against what appeared to be improper intrusion by a political actor, which would have been inconsistent with what Parliament established under the National Defence Act (NDA), by issuing a “Joint Statement” shortly thereafter, appearing to present the ‘direction’ as their own initiative, even though the timing of that Joint Statement made the origin of the direction suspect.

I described these issues in previous Blog posts:

 

What I found odd was that, amidst all the talk about the importance of the “independence” of military police and “interference”, no one appeared to bat an eye when the (then) Minister of National Defence appeared to issue direction to DMP and the CFPM that she was not permitted to issue.

And speaking of “independence” …

 

Independence and Accountability

How many times, over the past five or six years, have there been news media reports and public commentary questioning whether the military police were sufficiently “independent”?  How many instances have there been in which one commentator or another bemoaned the insufficiency of military police “independence”?

And how many times have those same commentators failed to describe the nature of the independence that military police require, or how, precisely, their independence was undermined?

I am losing count of the number of times I have tried to explain the nature of independence of various statutory actors under the National Defence Act.  It is not an absolute concept.  Independence is best characterized on a sliding scale, describing degrees of independence.

I offered an explanation of this issue shortly before Minister Anand’s announcements in early November 2021.  This was neither the first, nor the last, time that I discussed this issue: Rory Fowler, “The Military Justice System – Use it or Lose it” (17 October 2021), online (Law Office of Rory G Fowler): <https://roryfowlerlaw.com/the-military-justice-system-use-it-or-lose-it/>

Nevertheless, it bears repeating here.

At one end of the scale are low ranking CF personnel with relatively limited (or, realistically, no) independence of action under the NDA.  At the other end of the spectrum are positions such as military judges, who enjoy relatively robust independence through: (i) institutional independence; (ii) security of tenure; and, (iii) security of remuneration.  According to the majority of the Supreme Court of Canada in R v Edwards, 2024 SCC 15, military judges enjoy sufficient independence that they meet the necessary threshold for an independent and impartial tribunal under s 11(d) of the Canadian Charter of Rights and Freedoms.

Granted, these same military judges can be charged and prosecuted by the executive under the very Code of Service Discipline over which they preside at courts martial and, perhaps more alarmingly, they can be charged and prosecuted for service infractions before a non-judicial officer of the CF.  But, apparently, the majority of the Supreme Court of Canada do not see any problem with that arrangement. [Rory Fowler, “R v Edwards, 2024 SCC 15 … Meh …” (29 April 2024), online (Law Office of Rory G Fowler): <https://roryfowlerlaw.com/r-v-edwards-2024-scc-15-meh/>]

My point here is that the nature and degree of independence will vary.  Military police do not require the same degree and nature of independence as military judges, just as civilian police do not enjoy the same degree of independence as civilian judges.

Indeed, the military police guard their independence so jealously that some leaders in the CF complain about the lack of responsiveness of the military police to the needs and objectives of the CF leadership.

We would do well to remember that the repeated justification offered by the courts for the existence of a separate system of military justice is the need to maintain the discipline, efficiency, and morale of Canada’s armed forces.[5]  Consequently, our apex court has concluded that a derogation from what would otherwise be the norm (the application of the criminal justice regime) is justified.  The same rationale would support a military police branch that is responsive to similar needs.

Some commentators – and courts – see no problem with a non-judicial officer, who has little meaningful training in the law, and no institutional independence (or security of tenure, or security of remuneration), meting out what is essentially punitive justice, but they balk at the same officer giving any direction to military police.

I’m not suggesting that military police should not have a degree of institutional independence in order to avoid being manipulated for an improper purpose.  But I am saying that military police do not merit absolute independence.

More to the point, if people are going to suggest that there are issues with military police independence, we are going to need some concrete evidence that their independence – by which I mean the independence that they require, and which is provided under the NDA – has somehow been undermined.  A Fifth Estate interview with a former military police sergeant, who provides vague and inarticulate allegations, isn’t sufficient.

How many times have I explained that an issue of greater importance is the accountability of military police?

As a general rule of thumb, independence and accountability are indirectly proportional.  The more independent a person, office, institution, or statutory actor is, the more limited the avenues of accountability.  To put it in colloquial terms: the more independent one is, the fewer the number of people can tell you what to do.

Anyone paying attention over the past few years will likely have some difficulty identifying specific circumstances when the independence of the military police has been abridged, undermined, or otherwise has suffered interference.  (And the one example I provide above did not appear to cause any concern with many people.)

On the other hand, it is relatively easy to identify circumstances in which military police blunders and misconduct have not been adequately addressed or, more importantly, curtailed.  I have been identifying such blunders, and the lack of meaningful response, in this Blog relatively frequently.

Notwithstanding the poorly substantiated assertions by select rent-seekers, the key problem facing military police is not their lack of independence.  The problem is that misconduct – including jurisdictional over-reach and questionable investigations and investigative techniques – has not been addressed efficiently and effectively.

By way of reminder, here are a few examples of circumstances in which military police “messed around and found out” (and, yes, I know that is not the actual term, but this is a family-friendly blog):

In R v Harrison, 2023 ONCJ 392, a judgment supporting another stay of prosecution (this time for delay) disclosed that the military police took 11 months to investigate a relatively uncomplicated allegation of sexual assault.  Justice Richardson, of the Ontario Court of Justice, expressed a degree of incredulity at the length of time it took the military police to investigate.  I suspect that was because Justice Richardson hasn’t been exposed to as many military police investigations as some of us.  I expanded upon that matter here and here.

Remember the prosecution of LGen Trevor Cadieu (retired)?  Of course you do.  That prosecution, too, was stayed due to delay.  And as I explained here, although the (then) CFPM attempted to blame the civilian Assistant Crown Attorney for the outcome, the delay was directly attributable to what could be characterized as ‘gamesmanship’ by military police in providing disclosure to the Crown (which would then be disclosed to the defence).  That was an object lesson in the time-worn adage: “play stupid games, win stupid prizes”.

And what about all those leaks of military police investigations?  In a few of the notorious investigations of General Officers/Flag Officers (GOFO), the news media found out about the investigations before many of the subjects of the investigation were aware of action being taken against him.

We still don’t know how those leaks arose, or who was responsible for them.  In fact, there appears to have been little or no effort expended investigating those leaks.

 

Ineffective Review of Military Police Misconduct

Any person, including any officer or non-commissioned member of the CF, who objects to the conduct of a member of the military police in the performance of any policing duties or functions may submit a complaint to the CFPM, the JAG, or the Military Police Complaints Commission (MPCC). [NDA, s 250.18 and 250.21]

Notwithstanding that the statutory military police complaints process under the NDA has existed for a quarter of a century, I still regularly encounter people who erroneously believe that such complaints are investigated by the MPCC at first instance.  Some people even refer to these types of complaints as “MPCC complaints”.

However, that isn’t the case.

The CFPM is responsible for the first level review [NDA, s 250.26], and the function of staffing and investigating these complaints has been delegated to the Canadian Forces Military Police Group (CF MP Gp) Professional Standards section.

And to suggest that I find their performance underwhelming is an understatement.

They do not provide timely investigations and reviews.  Nor are they particularly effective.

They refuse to commence investigations and reviews while a matter is “ongoing”.

On its face, such a position is not only reasonable, but also prudent.  Investigating alleged military police misconduct relating to a criminal or disciplinary investigation while that investigation is ongoing would very likely disrupt the investigation.  The military police must necessarily guard against conduct complaints raised for the improper purpose of disrupting a legitimate military police investigation.

But what if the complaint – even if it is brought by the subject of a criminal or disciplinary investigation – is legitimate and what if the conduct of a military police investigator is truly abusive, or even unlawful or criminal?

There is a compelling argument for the removal of such an investigator in a timely fashion.  Such misconduct not only potentially interferes with the rights of the subject of the investigation (and we should all be concerned about that factor), but it can also undermine the investigation and any prosecution arising therefrom.  It can result in a miscarriage of justice and irreparable harm.  It can result, as in the case of R v R.B., with the premature termination of a prosecution.  Removing a problematic investigator from the investigation would help avoid outcomes that undermine the administration of justice.

And the CFPM and the Professional Standards section appear to be incapable of reacting in a meaningful manner.  Instead, the rote response will be that “…  the investigation is ongoing …”.

But this excuse is problematic for other reasons.  And that is because the definition of “ongoing” is often incredibly broad.

I have been involved in matters in which an investigation effectively ended before the military police conduct complaint was even raised.  Yet, when the complaint was submitted, the CF MP Gp Professional Standards section refused to commence the investigation because it was still “ongoing”.  And what they meant by “ongoing” was the file had not yet been closed by a supervising military police officer.  And often the delay between the actual and effective termination of the investigation and the ‘decision’ to close a file amounted to several months.

In other words, the CF MP Gp Professional Standards section delayed commencing an investigation of a military police conduct complaint because another military police officer could not be bothered to close a file in a reasonably efficient period of time.

Nor does it appear that the Professional Standards section bother with any preparatory steps, such as reviewing files or documents, even though such actions would not interfere with a so-called “ongoing” investigation.  While it is understandable that they would be reluctant to interview military police investigators, for the purpose of investigating the conduct complaint, while an investigation is ongoing, surely their examination of records and documents as a preparatory step would not interfere with such an investigation.

And it certainly wouldn’t interfere with an investigation where all investigative steps had ceased months earlier.

I have been involved with many investigations conducted by the CF MP Gp Professional Standards section.  I have acted for complainants, and I have acted for military police who were accused of misconduct.  And I have noticed certain trends.

When the complaint is raised by a person who was the subject of a military police investigation, we inevitably run smack into the ‘blue wall’.  When the complaint is raised by someone identified as a victim of criminal/disciplinary misconduct, their family, or the military police chain of command, there is a tendency for the CF MP Gp Professional Standards section to appear to commence with a ‘presumption of guilt’ on the part of the military police member.

Moreover, where the ‘subjects’ of military police investigations raise a complaint under Part IV of the NDA, past CFPM, including MGen Simon Trudeau, who was the CFPM until quite recently, demonstrated a marked reluctance not only to acknowledge the shortcomings of his subordinates, but even to refuse to accept some findings of the MPCC.

A correlation can be drawn between this reluctance and the various shortcomings that I identify above, and that I have identified previously.  Unreasonable delays in military police investigations, infringements of Charter rights, unreasonable ‘gamesmanship’ in the handling and disclosure of evidence, and unexplained and uninvestigated leaks of military police investigations are strongly indicative of a failure of leadership within the senior ranks of the military police.

As I read the judgment in R v R,B., I kept asking myself: when Sgt Gauthier and her colleagues were committing these abuses of process, where were their supervisors?  What would cause purportedly experienced military police investigators to commit these errors?  Did they believe that there would be no consequences?

At para 92 of her judgment, Justice Petersen wrote:

The three CFNIS investigators’ unwillingness to relinquish control over the investigation, despite clear written direction to do so from the highest level of their rank structure, is further evidence of abuse of process in the conduct of this investigation. It constitutes yet another breach of the Applicant’s s. 7 rights. The testimony that the investigators gave to try to rationalize their actions was not credible, which compounds the egregiousness of their misconduct.

 

Justice Petersen appeared to be referring to Sgt Gauthier, WO Petruk, and Sgt Brady.  [And, as an aside, no one – least of all those investigators – should be surprised if, in future prosecutions in which they appear as witnesses, they are cross-examined regarding the fact that a trial court found them not to be credible witnesses when testifying on military police procedure.]

Earlier in her decision, at para 88, Justice Petersen stated:

… Captain Coté gave contrary evidence about how she made tremendous efforts in CFNIS Western Region to comply with the PPA direction to transfer all their sexual assault files. I found her evidence to be credible.

 

But how effective were Captain Coté’s efforts, if her subordinates pointedly failed to comply with that direction and even testified “… that [Captain] Coté was aware of the decision made by higher-ranking officers to transfer only those files that were in their beginning stages.”?  Granted, Justice Petersen rejected that evidence from the three CFNIS investigators.  And it appears that one or more of the investigators attempted to “throw Captain Coté under the bus”.

But the question remains: where were their supervisors when these senior investigators decided not to follow the rules?  Why were they permitted to commit abuse after abuse in the investigative process?

Maybe it is because of the challenges that the CF faced when I was a young officer in the 1990s, but I was led to believe that when intermediate leaders in a military organization derogate from established rules and protocols, it is often indicative that more senior leaders are failing to supervise them adequately, and have failed to inculcate in their subordinates a habit of obedience and a respect for the rule of law.

And I would suggest that, if any members of the CF should have a respect for not only the letter, but the spirit, of the rule of law, it should be the military police.  (And yes, I would also include the OJAG in that characterization.)

 

Lack of public and transparent inquiry into military police misconduct

When the leadership of the military police fails to hold their personnel accountable, focus will naturally turn to the MPCC.

But where are the Public Interest Hearings (PIH) into these matters?

The MPCC has initiated a series of Public Interest Investigations (PII).  And those are welcome, even if it took repeated requests and news media coverage in certain instances to encourage the MPCC to commence such investigations.

But PII will only take us so far.  They are not as transparent as PIH.  They do not offer robust opportunities for interested parties – including those harmed by military police misconduct – to have an effective voice in the proceedings.  They are not as effective in encouraging accountability.  They are essentially conducted “behind closed doors”.  They permit the CFPM to try to minimize and deflect, as has happened in the past.  Consequently, they are less likely than PIH to instill confidence in the outcomes.

Granted, PIH are more rarely conducted compared to PII.  They are more expensive to conduct.  They are more cumbersome.  And there have been instances where they have been abused.

The MPCC, under previous Commissioners, conducted PIH into matters that, arguably, had, at best, only a tangential connection to military policing.  Portions of some PIH purported to inquire into matters that had nothing to do with military policing.  Indeed, a reasonable observer could argue that, in some of those matters, the MPCC exceeded its mandate and attempted to take matters that clearly lay outside military police functions, and shoe-horn them into its inquiry.

It is understandable that the current Chair of the MPCC would not wish to overstep her jurisdiction or mandate.  However, during the past few years, we have encountered repeated examples of shortcomings in military police investigations.  We have encountered circumstances, such as the repeated leaks of military police investigations, that have not been subject to the scrutiny that they deserve.  And these issues clearly fall within the boundaries of the MPCC mandate and jurisdiction.

So, the question remains: when will the Canadian Forces and the Canadian public finally benefit from a Public Interest Hearing into these ongoing military police shortcomings?

 

[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[2] I offer an analysis of this dynamic at: Rory Fowler, “Why are the military police threatening to charge a civilian?” (11 January 2024), online (Law Office of Rory G Fowler/Blog): <https://roryfowlerlaw.com/why-are-the-military-police-threatening-to-charge-a-civilian/>

[3] National Defence Act, RSC 1985, c N-5, [NDA], s 18.5.

[4] NDA, id, s 165.17.

[5] R v Généreux, [1992] 1 SCR 259, 293 to 297; R v Moriarity, 2015 SCC 55; R v Stillman, 2019 SCC 40; R v Edwards, 2024 SCC 15.

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