The Canadian Forces Provost Marshal (CFPM) Resists Oversight

On Friday 3 May 2024, Murray Brewster of the CBC published an online report commenting on the recent Annual Report from the Military Police Complaints Commission (MPCC).  The Chair of the MPCC, Tammy Tremblay, a retired Lieutenant-Colonel and Legal Officer from the Office of the JAG, was appointed Chair of the MPCC in January 2023.  This is her first annual report, and a summary and links to the online PDF version of the report may be found here: MPCC Annual Report for 2023.

Murray Brewster's reporting, entitled "Watchdog agency accuses chief of military police of blocking investigations", discussed the criticism in the MPCC report that was tabled before Parliament last week.  In particular, Mr. Brewster reported:

Tremblay described the situation as unacceptable and called it "an erosion of the MPCC's ability to exercise civilian oversight of the military police."

"The CFPM has, at times, refused to disclose information to which the MPCC is legally entitled and that it requires to fulfill its legislative mandate," Tremblay wrote in the annual report.

She called on the federal government to amend the National Defence Act to compel disclosure.

"Independent oversight of law enforcement is crucial to police legitimacy and effectiveness; one cannot exist without the other," Tremblay wrote.

Her scathing assessment comes as the House of Commons defence committee reviews transparency at the Department of National Defence.

[As an aside, it is common for news agencies to describe the MPCC as the 'Military Police Watchdog', a term that, while certainly evocative, tends to overly-dramatize the nature and function of the MPCC.]

The Chair of the MPCC detailed several of what she characterized as "Oversight Challenges", including: refusal to disclose information, excessive redactions of personal information, redactions of Solicitor-Client privilege information, failure to disclose Crown Briefs; and, failure to respond to MPCC recommendations.  These are only a few of the topics upon which the MPCC Chair offered criticism.  And if a statutory body like the MPCC struggles with such challenges - particularly the ongoing refusal to disclose relevant information and the use of excessive redaction - imagine the struggles faced by individual complainants and victims of military police misconduct.

Additionally, although not expressly cited in the Annual Report as a failure or a challenge, there were circumstances in which the Canadian Forces Provost Marshal (CFPM) rejected not only recommendations, but also findings, made by the MPCC. 

The MPCC is not technically an adjudicative body.  The MPCC may make findings and recommendations, but, contrary to the title of one of the sections in the recent Annual Report - "Decisions at a Glance" - it does not make substantive decisions (other than decisions regarding the control of its own processes).  Nevertheless, it does offer the CFPM, and the CF generally, findings and recommendations arising from its review of matters.  And the refusal of the CFPM to accept findings can be as problematic as his refusal to accept recommendations.

Take, for example, MPCC Case File 2017-030.  [By way of full disclosure, the author of the present Blog post acted for the complainant in this matter.]  The case file indicates the year in which the complaint arose: 2017.  The fact that it took until 2023 to resolve the complaint highlights another ongoing challenge with the military police complaint process in the CF: unreasonable delay.

The summary offered by the MPCC for File 2017-030 states that the MPCC drew two conclusions and made four recommendations:

After review, the MPCC concluded that:

1.  although there were reasonable grounds to arrest the complainant, the circumstances did not justify proceeding without a warrant;

2.  the complainant’s arrest was a pretext to seize his smartphone, and that the lead investigator had violated the complainant’s rights by leading him to believe that timely access to legal counsel required that he divulge his phone’s passcode.

The MPCC made 4 recommendations:

1.  review the CFNIS internship program;

2.  require better documentation of changes to military police investigation plans;

3.  encourage prior consultation with technical experts by investigators before seizing electronic devices;

4.  emphasize the importance of note-taking by military police supervisors to better document changes to investigations as they progress.

The CFPM accepted three of the four recommendations. He did not accept to review the CFNIS internship program, however, proposed an alternative solution which the MPCC considered to be consistent with its recommendation.

What the summary does not state was that the MPCC purported to address four specific complaints, and found that three of them were substantiated.  Specifically, the MPCC found that:

 1.  the allegation that the complainant was arrested without legal grounds, specifically a lack of justification for the use of the warrantless arrest power, is SUBSTANTIATED.

2.  the allegation that the arrest of the complainant was a pretext to enable the seizure of the complainant’s smartphone is SUBSTANTIATED.

3.  the allegation that the complainant was manipulated into divulging his smartphone passcode is SUBSTANTIATED.

The CFPM accepted the first two of these findings, but rejected the third.  The justification that the CFPM offered for rejecting this finding was that it was "... Inconsistent with finding of [military police] Professional Standards and Court Martial decision that MP actions were 'not demonstrably unreasonable', given the circumstances of the situation."

The problem with this justification is that, unlike the MPCC, the Professional Standards section of the military police is not arm's length from the Military Police Group.  The CFPM offered no substantive basis or reasoning for rejecting the findings; he simply asserted that, since the Professional Standards section did not arrive at the same conclusion, he refused to accept the finding by the MPCC.  [And it is worth noting that the MPCC analysis regarding this complaint was more detailed and robust than that of the Professional Standards section.]  Moreover, the CFPM mischaracterized the relevance of the judicial determination at Court Martial, which was focused more narrowly on whether the complainant's rights to counsel were infringed under section 10(b) of the Canadian Charter of Rights and Freedoms, not whether the impugned Military Police investigators manipulated the complainant.

This matter highlights that, even though the Chair of the MPCC presents several shortcomings in the CFPM's willingness to permit or comply with oversight of his formation's activities, there are further shortcomings and examples of intransigence that are not overtly discussed in the Annual Report.

And the content of the MPCC Annual Report is not reassuring regarding a police force that has had a lackluster performance over the past few years.  Questions remain about the quality of investigations that led to a series of acquittals (and questionable prosecutions) arising during the media frenzy surrounding allegations of sexual misconduct against senior CF officers.  Questions remain about alleged improper disclosure of information from military police investigations to news media.  Questions remain about the competence of military police investigators.

And, despite all of these questions and issues, the Governor in Council saw fit to promote the CFPM to the rank of Major-General last December.