Police Independence vs Military Discipline: Democratic Policing in the Canadian Forces

Abstract

Over the last 25 years, there has been a gradual acceptance within the Canadian Forces that Military Police need to be able to function independently when exercising their duties as police officers. This acceptance has led to organizational and administrative changes to provide such independence to MP members; however, despite these changes, there remains the risk that MP independence may be eroded in the course of criminal or disciplinary investigations. This article presents two recent matters to illustrate that the independence currently afforded to MP investigators is still very much in doubt. The first is the recent decision of the Court Martial Court of Appeal in R v Wellwood, which brought the dichotomy of MP independence and the need to maintain discipline and a rigid obedience to orders from a superior squarely before the court. The second is the recent controversy surrounding the MP investigation into allegations against Lieutenant Colonel Mason Stalker, which ultimately resulted in a stay of proceedings being directed on all charges and Stalker launching a lawsuit against the Department of National Defence and the Canadian Forces.

This article argues the steps already taken by the CF to ensure MP independence are positive, but not sufficient. Specific sections of the National Defence Act inappropriately permit senior members of the CF to interfere in MP investigations. In the absence of a finding that police independence is a principle of fundamental justice under s. 7 of the Charter, it falls to Parliament to ensure that Military Police personnel are free to carry out police functions in an independent manner. The offending portions of the NDA should be immediately repealed and further amendments should be enacted that prohibit any interference in MP investigations.

Keywords: Police Independence, Principle of Fundamental Justice, Military Police, National Defence Act, Deschamps Report, Democratic Policing, Military Law, Military Discipline, Canadian Forces