Military Police independence: myth or reality?

Police independence from interference in individual investigations is vitally important and has been recognized by the Supreme Court of Canada as an unwritten constitutional principle derived from the rule of law. [ See: Professor Kent Roach, “Police Independence and the Military Police" (2011) 49 Osgoode Hall Law Journal, 117-149] 

Military police officers operate with a duality of roles. On the one hand, they are peace officers under section 2 of the Criminal Code and are an autonomous policing body within the CAF. On the other hand, they are members of the Canadian Armed Forces, subject to the military chain of command and are duty-bound to follow orders from superior officers. They are subject to the authority of the Canadian Forces Provost Marshal, the highest-ranking military police officer.

However,pursuant to subsection 18.5(1), (2) of the National Defence Act (NDA) the Vice Chief of the Defence Staff (VCDS) has statutory powers of ‘general supervision’ and canissue ‘general instructions or guidelines to the Provost Marshal. 

Truth be told, Military Police independence is compromised by way of subsection 18.5(3) of the NDA which permits the VCDS to ‘issue instructions or guidelines in writing in respect of a particular investigation’. Under this statutory power, the VCDS is able to provide instructions and guidelines in specific cases which could presumably include instructions to and/or not to investigate a particular person or matter. 

This is problematic because it strips the Military Police of the ability to freely investigate without the interference of the military chain of command or an executive arm of Government. Moreover, there is no requirement to make these instructions or guidelines public. It is therefore difficult to understand why the VCDS should retain such power.

The military police should be allowed to proceed with an investigation without interference from non-military police command structures, including the VCDS. 

Just like command influence should not play a role with respect to the laying of charges under the Code of Service Discipline, the military chain of command should not be permitted to instruct the conduct of a military police investigation in a specific case.