The bumpy road to military
police independence




If you happen to believe that it is difficult for police investigators to consider other police as suspects how about members of the armed forces who are called upon to investigate their superior officers? In both instances the final results depend as much on the independence of the investigative units as how impartially and thoroughly each investigator carries out his or her duty.

When it comes to pursuing investigations with regards to civilian police officers suspected of criminal conduct the preferred solutions have included the creation of special investigation units, the establishing of independent oversight bodies, diverting investigations to outside police forces or, as in the US, creating special prosecutor offices with their own investigators

The Canadian military police organization, once the subject of harsh criticism, now emphasizes the special- investigation-unit approach. In response to the recommendations from a series of public inquiries and advisory groups, the government followed through in the late 90s with sweeping amendments to the National Defense Act. Our lawmakers agreed that if military investigators were to be more effective and at the same time secure the public trust, they would require the same standards of institutional independence as military judges, prosecutors and defense attorneys.

So why was it necessary to protect investigations involving major disciplinary and criminal conduct from the normal chain of command? First, allow me to backtrack. The approximate 1,300 Security and Military Police who form an essential part of our military justice system, are appointed by virtue of the National Defense Act. Above and beyond their combat functions, their role is to maintain law and order within the Canadian Forces. Their investigation powers are directed towards Code of Service Discipline and Criminal Code offences committed by members of the Canadian Forces, without regard to their rank or status. As "peace officers " their powers of investigation under the Criminal Code also include offences committed by civilian employees, visitors or trespassers on defense establishments.

Public trust

Although they are bound by the same regulations and norms of conduct that apply to all soldiers, they also hold a position of public trust by virtue of their responsibility to maintain law and order with the Canadian Forces. It follows that in the exercise of their duties, we expect them to apply the same standards of professionalism as their civilian counterparts. On paper it all sounds simple and logical, right? Not quite. Prior to the reforms of the late 90's it was difficult, if not impossible, for military investigators to always meet the required level of impartiality and independence while remaining part of the normal military chain of command. This was especially true in an environment with two classes - officers and rank and file.

As it was pointed out to the government by the various public inquiries and advisory groups, due to the military 's organizational structure, local commanders had far too much influence on military investigations. MPs bitterly complained of not having adequate protection from command influence while performing their police and security services and how they could feel intimidated when investigating senior officers. Reference was made by the advisory groups to the potential for institutional conflicts of interest arising from the chain of command investigating its own operations and from competing loyalties within the Military Police. Important investigations that should have been conducted were not always, particularly when they reflected badly on the unit being investigated or on the unit's commanding officer. Those that were conducted were sometimes delayed at the instance of superiors or carried out with inadequate resources.

In a nutshell it was shown that that military investigators were plagued by serious problems of command influence and conflict of interest. The many recommendations eventually led to the restructuring of the military police organization. So as to enhance police independence the Canadian Forces National Investigation Service (CFNIS) that originated in 1993 to investigate serious and or sensitive service and criminal offences against property, persons, and the Department, was established as a distinct unit of the Canadian Forces in September 1997.

Best thing

Described by military pundits as "the best thing that ever happened to the military police ", the position of Canadian Forces Provost Marshal was established to assume all of the responsibilities of the director general security and military police.

So as to remove military investigators from the normal chain of command the Provost Marshall was made accountable to the Chief of the Defense Staff for practically all investigations involving major disciplinary and criminal misconduct. It was hoped that these changes would also instill in the military police greater confidence in the authority of the Director of Military Police who would protect their interests. But there is more. An independent Military Police Complaints Commission was established to review, investigate and report on complaints about the conduct of a member of the military police conducting an investigation. As a result, any military police member who believes on reasonable grounds that the chain of command had interfered with an investigation can make an interference complaint to the Commission.

Cornerstone of democracy

Much like the rule of law, the independence of the police is one of the true cornerstones of any democracy. However, such a sacred principle is little more than window dressing when civilian and military investigators are subject to undue political or administrative influence.

The road to military police independence in Canada should serve as a constant reminder that without the requisite independence, those who apply, interpret and enforce the law, face the inescapable danger of becoming little more than administrative or political lackeys. Next week: Is the Bin Laden tape really a prosecutor's dream?