Wednesday, July 26, 2017

Parliamentary oversight of the Canadian military? Very little in fact

1.    As noted by the authors of  CALLING THE HOUSE TO ORDER, above and beyond the occasional appearance by DND officials and military brass before a Parliamentary committee focusing on military matters or the publication of a periodic audit reports by the Auditor General, generally speaking, civil society in Canada exercises little oversight over the Canadian Armed Forces. 

Oversight is basically limited to the following three organizations:

Statutory bodies

First, the Court Martial Appeal Court of Canada [CMAC] which was established by section 234 (1) of the National Defence Act. The CMAC is a civilian court of criminal appellate jurisdiction which hears appeals from courts martial.
  • Summary trials. Of note, there is no judicial oversight for the summary trials. As a result none of the 13,119 summary trials that took place over the past nine [9] years has ever been subject of a review by a court of criminal appellate jurisdiction. Summary trials therefore operate within their own restricted universe. Hence, at present, the Canadian military justice might be in breach of article 3 2 sections 3(a) and (b) of the  UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, Volume 999, p. 171
2007-2008:  2,123
2008-2009:  1,933
2009-2010: 1,942
2010-2011: 1,770
2011-2012: 1,425
2012-2013: 1,220
2013-2014: 1,128
2014-2015:    857
2015-2016:     721

 Second, the Military Police Complaints Commission [MPCC] a Canadian federal government independent, quasi-judicial body, established by the Parliament following the Somalia Inquiry Report. It offers avenues of complaints against the military police similar to that of civilian police. The MPCC makes non-binding recommendations to the Provost Marshall on ‘conduct’ and ‘interference’ complaints investigated by the Commission.

Third, the Military Grievances External Review Committee [MGER] which advertises itself as a Tribunal, but it is not. The Committee’s mandate is limited to reviewing a small number of grievances and making non-binding recommendations to the Chief of Defence Staff on grievances from the rank and file. 

Administrative body

There is a DND/CF Ombudsman, a position created by the Minister of National Defence, not Parliament. A far cry from the parliamentary Inspector General recommended by the Somalia Commission of Inquiry in the 1990s. The current Ombudsman structure has none of the statutory powers and independence of a true parliamentary ombudsman. The DND/CF Ombudsman makes non-binding recommendations.

In the broader field of Military Administrative Law there is basically very little if any oversight, save for the possibility to apply to the Federal Court of Canada for a judicial review of a particular decision. This  means by having the military granted a sort of carte blanche in its decision-making capability in a widening sphere of competence. 

 The Canadian military should embrace third-party oversight as an opportunity to learn and to improve. The military must not operate as if it were a parallel government – it is accountable to government and to Canadians whom they serve. However, the military are not always welcoming of such oversight and recommendations. Consider that, of the 46 recommendations made in 2015 by the MPCC following the Fynes Public Interest Inquiry. None of these 46 recommendations were formally “accepted” by the military forcing the (then) Chairperson of the MPCC to conclude as follows:

In the limited number of instances where direct responses are given and reasons are provided for rejecting [our] recommendations, the reasons suggest a failure to recognize the seriousness of the deficiencies identified or a failure to understand the very nature of the issues to be addressed. Many of the responses nominally accepting the recommendations, as well as the few substantive comments made about the Commission’s findings, further confirm a general failure to acknowledge or even recognize what went wrong in this case . . . On the whole, the Notice of Action provided by the Military Police leaves the Commission and the Minister of National Defence (MND), as well as the parties and the public (assuming they are eventually allowed to see the Notice of Action), largely without meaningful answers.

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