Osgoode Hall Law Journal, Forthcoming
43 Pages Posted: 20 Jul 2011
Date Written: 2011
This paper examines police independence in the context of the military police. The author concludes that the independence of the military police to investigate both Criminal Code and Code of Service Discipline offences should be recognized as part of the unwritten constitutional principle associated with the rule of law and as a principle of fundamental justice under s.7 of the Canadian Charter of Rights and Freedoms. The author examines the increased recognition of the importance of police investigative independence since the Somalia inquiry including the recent expansion of the command authority of the Canadian Forces Provost Marshall over all military police and relates police independence to the rule of law. The author concludes that while the military command structure has a legitimate interest in providing general and public policy guidance to the military police, that s.18.5(3) of Bill C-41 as introduced but not enacted in the last Parliament violates police independence by enabling the Vice Chair of Defence Staff to issue instructions to the military police in specific cases. Such interferences with the investigative independence of the military police are inconsistent with increased post-Somalia recognition of police independence and could undermine the application of the rule of law to the Canadian military.
Keywords: police independence, military police, criminal code
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