Backgrounder - Commission Report on the Conduct of Canada’s Military Police in Afghanistan

Amnesty International Canada (AIC) and the British Columbia Civil Liberties Association (BCCLA) filed a complaint with the Military Police Complaints Commission on June 12, 2008 that alleged a failure on the part of eight Military Police officers to investigate the Canadian Task Force Commanders in Afghanistan for directing the transfer of detainees in the face of known risk of torture. The time period covered by the complaint was May 3, 2007 to June 12, 2008.

After reviewing many documents and hearing from 40 witnesses, including the Military Police officers themselves, the Commission concluded that the eight individual subjects of the complaint did not breach a duty to investigate the Task Force Commanders.  While the conduct of each of the subjects was considered individually, a number of common themes emerged:

While the Commission dismissed the complaint against the eight individual subjects, the Commission did find there were problems with a lack of continuity of knowledge, accountability and information sharing within the Military Police. The Commission Report also discusses in detail the procedural obstacles experienced by the Commission in conducting its investigation.
The Commission made four recommendations in its report.  Two of the recommendations are designed to improve the quality of policing carried out by the Military Police, while two propose improvements to the hearing process.

Recommendation 1

The Commission recommends that the Canadian Forces Provost Marshal (CFPM) implement measures and standards to ensure that MPs deployed during future conflicts are provided the necessary baseline information to be fully educated on potential policing issues stemming from the previous rotation. In order for the MP units in theatre to perform as a seamless policing unit, this baseline information should include:

The CFPM should ensure this information is made available to any MP for whom it is relevant to their duties, and in particular the Canadian Expeditionary Forces Command Provost Marshal (CEFCOM PM), the Commanding Officer of the National Investigation Service (CO NIS) and the TFPM.

Rationale for the recommendation

The Commission was struck throughout the hearings by evidence indicating a lack of continuity of knowledge for the Military Police from one rotation to the next.  This is illustrated by the following examples:

In order for an in-theatre police force to function effectively, it must have a degree of continuity of knowledge from one rotation to the next. 

The situation in Afghanistan was analogous to the police officers of a local detachment or city police force changing entirely every six months without taking serious measures to share intelligence and knowledge on ongoing investigations with the newcomers.

To allow MPs to function at their optimum level of awareness and diligence, or close to it, there must be a robust process to ensure the transfer of theatre specific policing knowledge from one rotation to the next.

Recommendation 2

The Commission recommends that the Canadian Forces Provost Marshal review the MP reporting structure for all military missions, in theatre and at the Canadian Expeditionary Forces Command (CEFCOM), to address the problem of information sharing on policing matters. The goal should be to provide a greater degree of MP command oversight in relation to policing matters in theatre.  

Rationale for the recommendation

The Commission identified serious problems with reporting, accountability and information flow from MPs in theatre up through the technical chain to the Commanding Officer of the CF National Investigation Service and the CFPM. It appeared there was a “silo” effect and information about what the military police were doing tended to stay within the chain of command in Afghanistan or at CEFCOM, and only intermittently made its way up the technical chain to the CFPM.  

The following is an illustrative list of these problems:

It appeared to the Commission that military police involved with in-theatre matters, at CEFCOM and in Afghanistan, had no guidance as to when they should be ensuring that information with potential policing applications made it up the military police chain of command for assessment and guidance as to the appropriate MP response. 

MPs in theatre cannot always be expected to maintain a comprehensive overview of trends or developments which may require their attention.  Because of this, the CFPM or his designates should become the central repository of all information relevant to the execution of deployed MPs’ essential policing duties so that they can be provided with proper guidance. 

Recommendation 3

The Commission recommends that the Chief of the Defence Staff and the Canadian Forces Provost Marshal review the process sections of this report in detail with a view to eliminating barriers to efficiently and effectively conducting future public interest hearings, and developing a cooperative approach to document production, witness access, and national security issues. Such an approach would save costs, expedite hearings, and help ensure the Commission is able to properly fulfill its mandate.

Recommendation 4

The Commission recommends that the Minister of National Defence take steps to cause the addition of the Commission by the Governor in Council to the schedule of designated entities as prescribed by section 38.01(8) of the Canada Evidence Act. This would allow the Commission to more effectively obtain information relevant to the discharge of its statutory mandate of providing independent oversight of military policing while at the same time maintaining strict control over any information the disclosure of which has the potential to negatively affect Canada’s national security interests or international relations. 

Rationale for the recommendations 3 and 4

A significant portion of the main body of the Report is devoted to describing in great detail the serious obstacles encountered in obtaining necessary documentary disclosure and witness testimony during the course of the hearings. These obstacles included the following:

The Government’s approach of making unilateral determinations of relevance when deciding when to produce, or not to produce, documents in response to the Commission’s summons appeared to challenge the Commission’s independent authority to decide for itself what documents and things it considers necessary to the full investigation and consideration of the matters before it. Justice de Montigny of the Federal Court of Canada confirmed the important principle of the Commission’s independence in his September 29, 2011 decision where he said: “... it is for the Commission, not for the government to determine ultimately what documents are relevant to its inquiry. If it were otherwise, the Commission would be at the mercy of the body it is supposed to investigate. This was clearly not the intent of Parliament.” Unfortunately, the Commission came to believe that Parliament’s intention was being confounded with resulting cost and delay to the process.

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