Would the mayor be able to issue a direction to the chief of the Ottawa police, even if it’s in writing, about a particular investigation? The answer is “no”. Would the prime minister be able to do that with the RCMP? The answer is “absolutely not”. So why would it be here?

We would have a chance this evening to put this to a recorded vote instead of a division if only there were four other members of this place on the opposition benches who would vote for my amendments there before them and were willing to stand up and insist on the vote.

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Joyce Murray: Mr. Speaker, I am glad to hear the member ask a question of process to support a principle rather than a question of process to undermine a principle, as we heard from the NDP.

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We are talking about military police investigating events of a criminal nature after the fact. The Provost Marshal would certainly be able to control when military police are investigating an event. The idea had never occurred to anyone until 1998 that the Chief of the Defence Staff should ever give instructions to affect the investigation of an event being investigated by military police. We are now told that in 2013 we have suddenly realized that since 1998 this separation of authorities would have somehow put people at risk in a field of battle.

Conservatives say I do not understand it, and they are right. I do not believe it. I do not understand how it could possibly be the case that one would want to accept this reason for causing this entire bill to potentially violate the charter.

I would ask my friend from Beaches—East York for his thoughts.

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Matthew Kellway: Mr. Speaker, the government side has offered up this very narrow hypothetical set of circumstances to put a bill, which is on the whole a very positive step forward, in danger of being deemed unconstitutional. The general rule and principles set out in the accountability framework should survive in Bill C-15. It is the expectation of Canadians that any justice system be fair and reasonable; I would even dare suggest that most Canadians would suggest that there be a higher onus on a justice system that applies to the men and women of our armed forces in light of what we ask them to do on our behalf.

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We heard from the parliamentary secretary that there are safeguards because these instructions will eventually be made public from the Vice Chief of Defence Staff, who in my view should not be interfering in military police investigations.

However, when we look at section 18.5(5), we find that there are instances where the legislation contemplates never making it public at all. The Vice Chief of Defence Staff has given instructions and interfered with an investigation if the Provost Marshal considers “that it would not be in the best interests of the administration of justice for that instruction or guideline to be made available to the public”.

We know military justice is different. How far from the Charter of Rights and Freedoms do we move if there are also provisions that these instructions are never made public?

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Malcolm Allen: Mr. Speaker, the thing about justice is it must always be seen to be transparent, being done as well as accomplishing a fair trial and process. The justice system is not just about charge and conviction, or charge and acquittal. It is about a process that starts from an investigation, to a charge, to a process trial of some description and an outcome. It has to be seen as being open, fair and transparent. That means we need to be inside that piece.

There is special legislation around certain aspects where that is not the case. However, inside the military in these aspects it is very much necessary for it to be open. It cannot be any other way if we are to truly have a fair justice system that folks respect. That is really what it is about, respecting the system. It is not about the outcome of individual cases. It truly needs to be seen as being transparent. It needs to be seen as being done in a fair and honest way and cannot be done in any other fashion.

To have pieces where we can say “This can go, but this cannot” then starts to impugn the system in the minds of folks looking at it. It is not necessarily the way to have a system that would actually, at the end of the day, deem itself to be fair or seem to be fair. That is a major problem.

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John McKay: Mr. Speaker, the one area that struck me as quite compelling was the issue of summary trials, particularly Col. Drapeau, who stated, “[an] accused before a summary trial has no right to appeal either the verdict or the sentence”. Then he went on to talk about the limitations on transcripts, evidence and access to counsel, all of which could potentially result in either a Criminal Code conviction or detention. Access to counsel, transcripts, rules of evidence and a right to rebut, these are all things that we as civilians would rightly expect and all of those things are absent. That is an area where the government could have done better. However, in its reach for mediocrity, it achieved it.

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I would remind the hon. parliamentary secretary that the principle of police independence is paramount. Probably the leading authority is Lord Denning in Ex Parte Blackburn in 1968. This bill, according to serious experts, and not just one or two witnesses, is casting aside as if it were an irrelevant witness the Military Police Complaints Commission. My friend the parliamentary secretary should give serious regard to these amendments and change his position.

Chris Alexander: Mr. Speaker, once again, the Military Police Complaints Commission is actually relevant to this debate. If there is a problem that the Provost Marshal sees with the instructions he or she has receives or with any of the procedures as exercised under the legislation now proposed as unamended, that person has the right to go to the Military Police Complaints Commission. This is another one of the safeguards embodied in the bill as unamended.

What the member for Saanich—Gulf Islands fails to note is that we have heard proposals for amendments very similar to hers at committee already. She has not addressed the question of operational effectiveness, operational exigencies, the unique role of the Canadian Forces, that means that the independence of police investigations needs to be balanced with other rights, such as the right to life of the Canadian Forces.

Is the member prepared to deny them the information about a threat to their lives in order to protect one principle of a police investigation, which is important but which is clearly trumped by the special circumstances of the battlefield?

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Elizabeth May: Yes, Mr. Speaker, I am aware of that, of course, but just as I am aware of it, so too were other witnesses before the committee. I draw attention to the following statement from Kent Roach, law professor at the University of Toronto:

I think it’s always a problem in a democracy when police independence to commence an investigation or conduct an investigation is interfered with.

Michel Drapeau, who is a lawyer with over 34 years of experience with the Canadian military, said:

Would the mayor be able to issue a direction to the chief of the Ottawa police, even if it’s in writing, about a particular investigation? The answer is “no.” Would the Prime Minister be able to do that with the RCMP? The answer is “absolutely not.” So why would it be here?

Those witnesses and experts in military justice knew, just as the Military Police Complaints Commission knew, that the instructions would later be made public. The question is how much damage would be done by demands or instructions from the Vice Chief of the Defence Staff in the course of an investigation, even when the Provost Marshal might make them public later on. There is a very large window for abuse, and we should close it now.

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