Conduct Case Summary MPCC‑2017‑028

In late June of 2017, the Military Police Complaints Commission (MPCC) received a complaint from an anonymous MP about new restrictions on MPs’ exercise of their peace officer authorities.

The new policy directed that, when presented with someone on military property who is experiencing a mental health crisis and who is possibly suicidal, MPs should retreat to a safe distance and contact local police to deal with the situation. Civilian police have the authority under provincial mental health legislation to apprehend such an individual and take them to hospital for assessment and treatment. The complainant contended that such an approach was at odds with MPs’ common law duty as peace officers to protect life. The difficulty, as pointed out in the new MP policy direction, is that MPs generally only have peace officer and police officer status at the federal level, while mental health is governed by provincial legislation.

The MP policy direction did offer that, if necessary, MPs in such situations could use their arrest powers as follows: CAF members could be arrested for the service offence of “malingering”; civilians could be arrest for “disturbing the peace” under the Criminal Code of Canada.  However, the complainant objected that these were unsatisfactory due to the fact that MPs need to properly and subjectively have grounds to believe someone is committing or has committed an offence before they arrest anyone, and also, such an arrest would not get such persons the medical help that they required.

The complainant also objected to the direction that MPs were no longer to intervene in incidents occurring off-base.  A new Canadian Forces Military Police Group (CF MP Gp) Order, replacing former provisions of the Military Police Policies and Technical Procedures, provides that there is no longer a “public expectation” exception whereby MPs in uniform could intervene in certain emergency situations off-base even though they lack legal peace officer jurisdiction.

The anonymous complainant specifically requested the MPCC to launch a “public interest” investigation into the case.  Taking the case “in the public interest” under section 250.38 of the National Defence Act (NDA) would enable the MPCC to launch an immediate investigation (instead of referring the case for initial treatment by the Canadian Forces Provost Marshal (CFPM), in the case of an MP conduct complaint) and, if warranted, to hold public hearings on the matter. First, however, it was necessary for the MPCC to determine if the complaint fell within the MPCC’s jurisdiction as a valid conduct and/or interference complaint.

After due consideration and research, the MPCC concluded that this complaint, while it raised important issues for military policing in Canada, did not constitute a valid MP conduct or interference complaint.

As far as the MPCC’s conduct complaint jurisdiction is concerned, Part IV of the NDA limits the notion of a conduct complaint to the performance by MPs of “policing duties or functions” as defined in regulations made under subsection 250.18(1) of the NDA. While the MP policy direction at issue addressed issues related to the performance of MPs’ policing duties, the act of formulating policy direction itself was concluded to be administrative, rather than operational, in nature, and therefore expressly excluded from the scope of matters that can be the subject of a conduct complaint pursuant to subsection 2(2) of the Complaints About the Conduct of Members of the Military Police Regulations.

With respect to the MPCC’s interference mandate, it was determined that an interference complaint under section 250.19 of the NDA must relate to interference or attempted interference with an actual or prospective investigation into a particular set of events, rather than simply to the conduct of future investigations generally in the abstract.

Given its conclusions as to its jurisdiction in this matter, the MPCC was unable to consider the exercise of its authority to cause a public interest investigation or hearing. The MPCC did, however, forward the complaint to the CFPM for his information and for any action he considered appropriate.

As noted above, this complaint raises important issues relative to the conduct of military policing in Canada. Indeed, the MPCC has been apprised of similar concerns with the current policy direction on the exercise of MP jurisdiction from rank-and-file MPMP members during its outreach visits at bases in different parts of the country.

While the MPCC lacks the legal authority to investigate a complaint about MP policies and orders in the abstract, the MPCC may have the opportunity to address such matters in the context of future complaints arising from specific situations, or in a future MPCC special report. Therefore, the MPCC will likely have more to say on this issue.

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