Retirees: take note

Justice Eileen C. Moore writes here about UCMJ jurisdictiion over retirees. Short version, for retired regulars, among others, you may still be subject to court-martial, even for post-retirement offenses.

Canadian Military Police Oversight Body’s Challenges

This summer, the Military Police Complaints Commission of Canada (MPCC)^[1] has been active on two fronts. On the first one, it requested in its annual report more powers to improve the oversight regime for Canadian Armed Forces’ (CAF) military police. On the second front, the MPCC started a public interest hearing concerning an active shooter exercise, despite opposition from the Office of the Provost Marshal (OPM) over its jurisdiction to conduct an inquiry on a matter of training.

1.       Annual Report of the Military Police Complaints Commission

In a press release,[2] the MPCC announces that it has issued its annual report for 2023-2024.[3]

1.1.   Key Findings and Challenges

In 2024, the MPCC received an increasing number of complaints about military police conduct,[4] resulting in a significant workload for the commission. Despite this, the MPCC states it improved its efficiency and timeliness in processing complaints. However, the commission faced challenges due to resistance from the OPM of the CAF, which hindered the MPCC's ability to exercise its oversight mandate.

1.2.   Operational Highlights & Statistics[5]

In 2024, the MPCC:

• Published nine final reports detailing the results of investigations into allegations of military police misconduct
• Conducted eight public interest investigations, which are complex and resource-intensive
• Improved its complaint handling processes and reduced processing times
• Provided training to staff on trauma-informed approaches and leveraged technology to enhance investigation efficiency

The MPCC's annual report includes statistics on complaints received, processed, and investigated. These statistics provide insight into the types of complaints received and the outcomes of investigations.

1.3.   Resistance to Oversight[6]

According to MPCC, the OPM's resistance to its oversight took the form of refusing to disclose information, restrictive interpretations of the MPCC's mandate, and a decline in accepted recommendations. This resistance - writes the MPCC - has persisted and worsened over time, with the OPM interpreting the National Defence Act[7] in a way that avoids civilian oversight. The MPCC is concerned that this resistance may undermine the commission's ability to fulfill its mandate.

1.4.   Recommendations for Legislative Reform[8]

The MPCC proposes several recommendations to improve the effectiveness of its mandate and to strengthen public trust in the military police. Among these recommendations are:

• Expanding the MPCC's mandate to include review of complaints related to the conduct of members of the Canadian Armed Forces who are not military police officers, but who are involved in military police operations.
• Improving transparency and accountability within the military police by requiring that investigations be conducted more thoroughly and that findings be communicated to complainants.
• Strengthening the MPCC's powers to enable it to conduct more thorough investigations and to take more effective action to address problems identified.

Consequently, the MPCC proposed a Bill in 2024 to the Minister of National Defence and stakeholders.[9] For readers who would like to know more, the essence of the legislative reform proposals in the Bill are explained in a comprehensive matrix.[10]

1.5.   Public Confidence and Trust

Overall, the MPCC emphasizes the importance of maintaining public confidence and trust in the military police. The commission believes that independent civilian oversight is crucial in ensuring that military police conduct is transparent, accountable, and respectful of human rights. The MPCC's efforts to improve its processes and address challenges are aimed at maintaining the trust and confidence of the public, complainants, and military police members.

2.       Public Interest Hearing into a Simulation Exercise

More than a month later, the MPCC announced[11] that it will hold a public interest hearing to investigate the conduct of members of the military police during a simulation exercise of an active shooter at the Canadian Forces Base Longue-Pointe in Montreal. According to the complaint, the exercise allegedly went awry, and a civilian employee was detained and treated inappropriately.

2.1.   Context

The simulation exercise was intended to prepare military personnel and the military police to respond to active shooter situations. However, it appears that the exercise degenerated, and the civilian employee was subjected to inappropriate treatment, according to the complaint.

2.2.   Objective of the Hearing

The hearing aims to determine the circumstances surrounding the incident and identify responsibilities. The MPCC indicated that it will examine the conduct of the military police members involved in the incident and assess whether their actions were justified.

2.3.   Importance of the Hearing

According to MPCC, the hearing is important to ensure that the CAF and the military police act responsibly and respectfully towards civilians, even in the context of simulation exercises. The MPCC indicated it will work to provide an objective and impartial report on the circumstances surrounding the incident.

2.4.   The Hearing is Indicative of a Broader Issue: MPCC’s Jurisdiction

But prior to the hearing, there was a debate between MPCC and OPM on whether an inquiry should be conducted and, if so, by which organization. Here is a chronology to help understand the issue:

• November 12, 2024: A civilian employee was painting on a Canadian Forces. He was aware of the exercise, but wasn't participating and didn't know the timing. As he left the painting room on the morning of the exercise, three or four police officers pointed their guns at him, ordered him to lie down, and searched him. The officer allegedly used aggressive language, dragged him, and tore his clothes. The employee felt like he was a suspect in a real incident, not just an exercise. He claims he was left outside in cold temperatures (around 1°C) in torn clothing, feeling shocked to have been humiliated and mistreated.[12]
• November 21-26, 2024: As per the National Defence Act[13] and regulations,[14] a complaint is filled on behalf of the civilian employee to the MPCC by the employee’s union representative. The civilian employee is on leave since the incident and claims that is ashamed to talk about it with his family and friends. He adds it had a negative impact on him as he belongs to a vulnerable group, which made him to be retraumatized, considering his background.[15]
• November 27, 2024: As MPCC was considering its jurisdiction, it advises the Canadian Forces Provost Marshall (CFPM) of the complaint and asks additional information on the incident. In response, the CFPM asks MPCC to provide a copy of the complaint.[16]
• November 29, 2024: The CFPM asks MPCC that the complaint be transferred to him.[17]
• December 3, 2024: The MPCC asks again the CFMP to provide more information about the incident.[18]
• December 6, 2024: In response, the CFPM again asks a copy of the complaint and refuses to provide the information asked by the MPCC.[19]
• December 24, 2024: The Chairperson of the MPCC (Chairperson) determines that even though the performance of training function is excluded from the definition of “policing duties or functions”, [20] the complaint nevertheless appears to fall within the jurisdiction of the MPCC. Although the exercise was part of a training program, the civilian employee was not participating in it. On that point, the Chairperson does not think it was Parliament’s intent to exclude a complainant “not taking part in an exercise and who are allegedly mistreated by members of the military police, simply because an exercise was in progress at the time of the incident”.[21] However, the Chairperson is not in a position to determine if it was in the public interest to launch a public interest investigation into this matter, as additional information on the event was not provided. Consequently, the Chairperson transfers the complaint to the office of the CFPM for processing in the first instance.[22]
• January 30, 2025: The Deputy CFPM decides that the complaint didn't fall under the MPCC's jurisdiction. He states that the incident was part of "training," which is excluded from military police duties.[23]
• February 24, 2025: Dissatisfied with CFPM’s decision, the complainant asks MPCC to review the matter.[24]
• March 5, 2025: MPCC sends a notice of review to CFPM and asks to be provided with the disclosure of the file.[25]
• May 9, 2025: In a response letter to MPCC, the newly appointed CFPM states that the complaint can't be reviewed under the National Defence Act because it doesn't involve conduct that falls under the Act. She claims that training is clearly excluded from policing duties.[26]
• July 18, 2025: The Chairperson disagrees with CFPM’s opinion and decides that MPCC has jurisdiction over the matter. For the Chairperson, the military exercise is not “training” in the sense of the regulations. Even if it was, the alleged violent conduct against the civilian employee is not. From his point of view, he was detained in the meaning of Section 9 of the Canadian Charter of Rights and Freedoms. The Chairperson based her decision on a purposive interpretation of the National Defence Act to determine that MPCC has jurisdiction and that it was in the public interest to examine the complaint in a public hearing.[27]

Conclusion

The MPCC public hearing will likely shed more light on the matter. Considering the debate prior to the hearing, the MPCC might face other challenges in the future, although no case has been filed in Federal Court.

Key aspects to watch out for include:

• Allegations of misconduct: Evidence and testimonies will be crucial in understanding the circumstances surrounding the incident.
• Systemic implications: The MPCC may examine military police policies and procedures to prevent similar incidents in the future.
• Military police response: The reaction of military authorities to allegations and MPCC recommendations will be vital in determining next steps.

It's worth keeping an eye on this case to understand potential implications for Canada's military police. Transparency and accountability are essential for maintaining public trust in law enforcement institutions.

UN Military Manual (1st ed. Sept. 2024)

The following is an excerpt from the September 2024 first edition of the United Nations Military Manual (pp. 66-68) (footnotes omitted):

8.2. Conduct and discipline 

8.2.1. Introduction 

The United Nations expects all peacekeepers to conduct themselves in a manner that befits mandates given to serve and protect. The need to maintain the highest standards of integrity for all United Nations personnel is enshrined in the Charter of the United Nations. United Nations peacekeepers must always conduct themselves in a professional and disciplined manner; respect local laws, customs and practices; treat host country inhabitants with respect, courtesy and consideration; and act with impartiality, integrity and tact. The United Nations has a zero-tolerance policy with respect to any form of misconduct by its personnel, in particular sexual exploitation and abuse. The United Nations standards of conduct can be accessed on the United Nations website. The MOU also details what constitute misconduct and serious misconduct for military contingent personnel and indicates procedures and responsibilities for the prevention of and response to allegations of misconduct and serious misconduct. The United Nations standards of conduct explicitly forbids sexual relations in exchange for money, employment, goods or services. Any and all sexual activities with persons under 18 years of age are strictly prohibited. In addition, the United Nations standards of conduct are breached if personnel pursue or engage in sexual relations in situations where individuals are suffering distress caused by displacement or insecurity due to internal strife or conflict, as this amounts to sexual exploitation and abuse. In the Secretary-General’s bulletin on special measures for protection from sexual exploitation and sexual abuse (ST/SGB/2003/13), sexual exploitation is defined as “any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another”; and sexual abuse is defined as “the actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions”. All TCCs have undertaken to ensure that all members of their national contingents comply with the United Nations standards of conduct. Commanders are to take all reasonable measures to maintain discipline and good order among all members of the national contingent and ensure compliance with the standards of conduct, mission-specific rules and regulations and obligations towards national and local laws and regulations in accordance with the status-of-forces agreement. Bearing in mind that acts of sexual exploitation and abuse are serious violations that require an urgent response, efforts to strengthen the United Nations zero-tolerance policy against sexual exploitation and abuse must be executed through immediate reporting of these allegations. This helps to prevent and respond to allegations and to hold accountable those who prey and inflict irreparable damage on the people the United Nations has sworn to protect.

8.2.2. Obligations of troop-contributing countries 

All United Nations personnel are obliged to create and maintain an environment that prevents all forms of misconduct, including sexual exploitation and sexual abuse. Commanders at all levels have a particular responsibility to support and develop systems that maintain this environment. All United Nations personnel are also obliged to report possible acts of any form of misconduct via established reporting mechanisms. Failure by personnel or commanders to report possible acts of misconduct or serious misconduct, including sexual exploitation and abuse, itself amounts to misconduct. 

8.2.3. Considerations for commanders 

The contingent commander or national contingent commander is responsible for the discipline and good order of all members of the contingent. This responsibility includes ensuring that all members of the national military contingent abide by the United Nations standards of conduct, mission-specific rules and regulations, and the obligations towards national and local laws and regulations. The United Nations standards of conduct, as applicable to members of military contingents, is available online. The commander must immediately bring to the attention of the HOMC any information concerning alleged misconduct or serious misconduct, as well as any serious matter, and to regularly keep the FC/HOMC informed on further information and developments in these matters. The commander is expected to ensure that all members of the national contingent receive induction and other mandatory training, including the sexual exploitation and abuse e-learning programme. Guidance from the mission’s Conduct and Discipline Team will be important regarding conduct and disciplinary matters/training. Members of the military contingent are subject to the exclusive jurisdiction of their TCC in respect of any crimes or offences that might be committed by them while they are assigned to the military component of United Nations peacekeeping. TCCs have the primary responsibility for investigating any acts of misconduct or serious misconduct committed by a member of their national contingents. Such investigation must be conducted in accordance with the provisions of the MOU between the United Nations and the TCC. However, in a specific situation where the administrative investigation is conducted by the United Nations as provided for in the existing rules, the commander of the national contingent shall, subject to national laws, cooperate fully in United Nations administrative investigation. If a United Nations administrative investigation or the TCC investigation concludes that the commander has failed to cooperate with a United Nations investigation, to exercise effective command and control, to immediately report to appropriate authorities or take action in respect of reported allegation of misconduct, the Department of Management Strategy, Policy and Compliance will request that the concerned TCC bring the case to the attention of its authorities for due action. Such failures shall also be reflected in the commander’s performance appraisal by the HOMC. 

8.2.4. Actions on receipt of information about misconduct/serious misconduct 

Information concerning alleged misconduct or serious misconduct may be received by the mission, TCC or United Nations Headquarters. Any information received by the commander must be immediately brought to the attention of the HOMC through the chain of command. Upon receiving the information concerningalleged misconduct/serious misconduct, the HOMC must communicate the same to the HOM and the mission’s Conduct and Discipline Team. The mission informs the Secretariat, the Conduct and Discipline Service of the Department of Management Strategy, Policy and Compliance, the OMA and the Office of Internal Oversight Services (OIOS), as appropriate. The Conduct and Discipline Team, with the assistance of OIOS, determines if the allegation is to be qualified as misconduct or serious misconduct. The Conduct and Discipline Service notifies the respective TCC through its permanent mission. In a situation where the TCC is the first to receive information about the alleged misconduct or serious misconduct of any of its contingent member(s), the TCC must notify the Conduct and Discipline Service accordingly. Where investigations are conducted by the TCC, the role of United Nations investigation personnel will be to assist the National Investigations Officer(s) as necessary.

The Underappreciated Lieutenant Kendrick from "A Few Good Men"

Colonel Jessup gets all the attention. To highlight the underappreciated Lieutenant Kendrick, here's an excerpt from "Different Spanks for Different Ranks: a Critical Appraisal of Character Evidence in Courts-Martial" (2025):

The military courtroom thriller “A Few Good Men” illustrates how unofficial character evidence matters just as much as gatekept evidence. During an early scene at a basketball court, the defense counsel and prosecutor discuss a possible pretrial agreement. The core disputed issue is whether the defendants assaulted a fellow Marine on their own or were ordered to do so by their platoon commander, a Lieutenant. The negotiation comes down to whether the defendants or Lieutenant will be more credible in a swearing contest. The prosecutor argues that he holds the stronger hand because the Lieutenant will deny giving the order and has “four letters of commendation.”[1] The defense counters that another officer, Markinson, will inculpate the Lieutenant. The prosecutor retorts, “You know what Markinson did for the first seventeen of his twenty-six years in the Corps? Counterintelligence. Markinson’s gone. There is no Markinson.”[2] The prosecutor’s cold math reveals that in courts-martial, those with high military status such as the Lieutenant will be considered more credible than lower status witnesses, even when their military status has nothing to do with the content of their testimony.[3]

The Lieutenant continued to reap benefits from his elite military status when he testified. During the defense counsel’s questioning about whether the Lieutenant ordered a hazing ritual called a Code Red, the military judge interrupts counsel: “I would remind you that you are now questioning a Marine officer with an impeccable service record.”[4] Here we see unofficial character evidence emerge from the shadows to the forefront. Unstated in the judge’s admonition is that the Lieutenant is unlikely to have ordered a Code Red because he has a track record of exemplary service, and for defense counsel to even ask about improprieties that would be out of character for a good Marine is an affront to the court. In a civilian trial, it is difficult to imagine a judge chastising a counsel’s impeachment of a witness because the witness excels at work as a barista, teacher, or accountant. In “A Few Good Men,” though, the military judge is not the villain. The movie’s narrative arc pushes the audience to accept the judge’s intervention as reasonable, with defense counsel seeming like a disrespectful renegade for ignoring customs about kowtowing to military elites. In the military, high status affords many privileges, including the right to be believed in court.

            A note on the Lieutenant’s appearance and demeanor. Before he testifies, we see that he (played by Kiefer Sutherland) is a White man with an athletic build in a military uniform.[5] He wears an oversized ring signifying from a distance that he is a graduate of the elite United States Naval Academy. He wears the crossed rifles insignia of an expert marksman and numerous decorations. He is a commander in the Infantry, an elite Marine subspecialty that at the time was foreclosed to women[6] and had few racial minorities.[7] His buzzcut hairstyle could indicate an embrace of a warrior ethos or a rejection of civilian professional appearance norms, or perhaps both. He glowers. When he testifies, he evades a question about whether he had reported an instance of misconduct, and instead launches into a nonresponsive jeremiad about Marine values. [8] He twice shouts in anger in response to other questions. [9] Any other witness whose professional standing did not matter might be deemed not credible for such evasions and eruptions. This Lieutenant, though, conveys to the military jurors that he is a high-status Marine whose impatience is understandable so that he can return to unstated but pressing national security matters of the day. The trial transcript would capture very little of this dynamic, and the episode entirely circumvents the gatekeeping of the rules of evidence. Yet this unofficial character evidence is essential in understanding what is really happening in the court-martial. The Lieutenant literally gets away with murder.

Rough justice

In Reid v. Covert, and more recently in Denedo, the U.S. Supreme Court characterized military law as a "rough form of justice" or words to that effect.

A piece in the Cowboy State Daily, Andrew Rossi, Why Criminals At Fort Bridger Preferred A Jail Cell To The Punishment Horse. 2 August 2025, gives an example of why.

In the 1860s, it was one of the most humiliating, brutal and feared forms of punishment at Fort Bridger. More than 160 years later, it’s the most popular attraction at the Fort Bridger State Historic Site. 

It seems nobody can escape the Fort Bridger “punishment horse.”

The punishment horse is a military punishment that goes back thousands of years. Also called the “wooden horse” or “Spanish donkey,” it was used as an instrument of torture and a tool to mete out military discipline.