Strengthening Military Justice in the Defence of Canada Act (Bill C-15)

Elizabeth May: Mr. Speaker, I rise today for a very specific set of changes with which I hope the House will find favour.

As we know, Bill C-15 is, for the most part, supported by people throughout the House. It is an act to amend the National Defence Act and to make other consequential amendments. The piece I want to focus on is quite critical and deserves consideration at report stage. It is about changes to the military policing process.


If we go back to why it matters, we go back to an incident Canadians would sooner forget: the shameful incidents that occurred in Somalia involving Canadian armed forces and the subsequent efforts to interfere with that investigation. That led to an entirely new accountability framework, which I am holding here. The Vice Chief of the Defence Staff and the Canadian Forces Provost Marshal co-signed an accountability framework in March 1998 to set out the principles for proper operational flow.

The primacy of operations as well as the need for independence in investigations are recognized. Striving towards these complementary objectives through a transparent, timely and responsive process are described in this framework agreement as being critical.

These are very important principles that are embodied in the document. What Bill C-15 does is throw them out the window. I have brought forward these amendments to get the relationship back to where it should be, under the accountability framework, to ensure that senior military officials cannot interfere in an investigation.

It is unseemly to imagine that we would have a military investigation. Again, let us cast our minds back to a situation like Somalia. We can all hope that such a thing will never happen again. To have some assurance, we need to have good systems of law, accountability, clear lines of authority and absolute certainty that senior defence staff cannot intervene in an investigation to engage in a cover-up. That is why we have the accountability measures that currently exist.

In the section of Bill C-15 I propose to amend, we have something quite extraordinary. We have a change in the relationship. For members who are following along, the relevant section of Bill C-15 is clause 4, proposed subsection 18.5(3). Here we find the bill turning the accountability framework on its head. We find the following words: “The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation”. In proposed subsection 18.5(4) we find: “The Provost Marshal shall ensure that the instructions and guidelines issued under subsection (3)”—in other words, by the Vice Chief of the Defence Staff— “are available to the public”.

That is what we have in Bill C-15, and that is why my amendments propose to clean it up. My amendments, very clearly, would ensure that the Vice Chief of the Defence Staff may, with the consent of the Provost Marshal, in accordance with their respective roles and responsibilities and the principles set out in the accountability framework to which I have just referred, issue instructions and guidelines in writing along with the rationale.

My amendment still meets the government’s purpose. The Vice Chief of the Defence Staff may still issue instructions, but only with the consent of the Provost Marshal and only if consistent with the framework agreement under which our military policing system has been living since 1998.

Am I the only one who thinks that we need these amendments? No, I am not. I felt that it was important to bring them forward when there was significant testimony before the committee coming from none other than the Military Police Complaints Commission. The Military Police Complaints Commission, which was represented by senior counsel, said, “We don’t think it’s intended to be used in any kind of nefarious way, but it sort of calls into question what is and isn’t improper interference”.

That could be called the understatement of the year. It definitely calls into question what could be called improper interference. This was also pointed out by a very significant witness before the committee, a professor of law from the University of Toronto, Professor Kent Roach, who in his substantive presentation to the committee made some very telling points.

There are reasons we have an accountability framework, and it is very important that this legislation not turn that on its head, undo accountability and open the door to completely improper interference in investigations by the Vice Chief of the Defence Staff. This is, of course, I hasten to add, not specific to any individuals holding the posts in the current era or in the past. However, as a matter of good principle and good policy, one does not put in place a system that is open to such clear abuse.

The provisions put forward by the Military Police Complaints Commission in its brief, which I want to point out, stated:

The provision in question, in clause 4 of the bill, would create a new NDA subsection 18.5(3), which would expressly authorize the Vice Chief of the Defence Staff to direct the Canadian Forces Provost Marshal—the head of the CF military police—in the conduct of specific [military police] investigations.

I should be careful when I speak of investigations in this place and use the initials “MP”. I should quickly clarify that it is military police.

In the Commission’s view, such an express authority is inconsistent with existing arrangements in place since the period following the troubled Somalia deployment which specifically sought to safeguard [military police] investigations from interference by the chain of command.

Further down, the evidence from the Military Police Complaints Commission states:

the proposed authority of the [Vice Chief of the Defence Staff] to direct the [Provost Marshal] regarding the conduct of particular military police investigations set out in subsection 18.5(3) represents an important departure from the status quo. This proposed authority would effectively abrogate key provisions of the Accountability Framework whose purpose was to adapt the command relationship of the [Vice Chief of the Defence Staff] and [the Provost Marshal], such that the latter would retain appropriate independence from the chain of command in the conduct of individual law enforcement investigations.

Similarly, I want to mention that the University of Toronto professor to whom I referred earlier, Kent Roach, also spoke of the critical importance of police independence in investigations.

I am putting forward two small amendments. They do not deter or distract from the overall purpose of this act. Anyone who examines the history of why the accountability framework was brought forward in 1998 will see clearly that it is good public policy. It is a wise provision to ensure independence. It is not just that justice must be done but that it must be seen to be done. Opening the door to this kind of abuse goes against all principles, natural justice, the rule of law and the independence of an investigator from top-down interference.

I know it is unusual to pass amendments at report stage, but these are clear and straightforward and meet the demands and strong recommendations of the Military Police Complaints Commission itself. They make sense, and I urge members on all sides of the House to support these amendments to Bill C-15 at report stage.