Rules of Procedure for Hearings Before the Military Police Complaints Commission, 2022: SOR/2022-9
Canada Gazette, Part II, Volume 156, Number 4
SOR/2022-9 January 31, 2022
NATIONAL DEFENCE ACT
The Chairperson of the Military Police Complaints Commission, pursuant to section 250.15footnote a of the National Defence Actfootnote b, makes the annexed Rules of Procedure for Hearings Before the Military Police Complaints Commission, 2022.
Ottawa, January 31, 2022
Interim Chairperson of the Military Police Complaints Commission
Rules of Procedure for Hearings Before the Military Police Complaints Commission, 2022
1 The following definitions apply in these Rules.
- means the National Defence Act. (Loi)
- Commission counsel
- means counsel designated by the Chairperson of the Complaints Commission for the purposes of a hearing. (avocat de la Commission)
- means a member of the bar of a province. (avocat)
- means a calendar day. (jour)
- means a submission, affidavit or any other documentary material, regardless of physical form or medium, including any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape and machine readable record, and any copy, in whole or in part, of that material. (document)
- electronic transmission
- includes transmission by email or by means of the Complaints Commission’s website, but does not include transmission by fax. (transmission électronique)
- means to file with the Registrar. (déposer)
- means a person who is granted leave by the Complaints Commission to intervene at a hearing in accordance with section 44. (intervenant)
- means a complainant or a person who is the subject of a complaint and any other person who satisfies the Complaints Commission that they have a substantial and direct interest in the hearing under section 250.44 of the Act. (partie)
- includes an individual, a corporation, a partnership and an unincorporated association. (personne)
- means the Registrar of the Complaints Commission. (greffier)
2 These Rules apply to all hearings conducted under subsection 250.38(1) of the Act.
2.1 The purpose of these Rules is to enable the Complaints Commission to act fairly, effectively and expeditiously and to conduct its proceedings in a manner proportional to the significance of the issues and the complexity of the complaint before it and the public interest, including through the efficient use of public resources.
Matter not provided for in Rules
2.2 If a matter is not provided for in these Rules, the practice it is to be determined by reference to the purpose of these Rules and any practice directions issued under section 29.
Non-compliance with Rules
Effect of non-compliance
3 (1) A failure to comply with these Rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity.
Commission may grant relief
(2) If there is a failure to comply with a rule, the Complaints Commission may grant any relief that it considers necessary to achieve the purpose of these rules.
Varying or supplementing rules
4 (1) The Complaints Commission may vary or supplement a rule, or dispense with compliance with a rule in whole or in part, in order to deal with all matters as informally and expeditiously as the circumstances and considerations of fairness permit.
(2) If the Complaints Commission varies or supplements these Rules or dispenses with compliance with all or part of them, it must inform the parties and intervenors.
Computation of Time
5 The computation of time under these Rules or under an order of the Complaints Commission or a decision of the Registrar is governed by sections 26 to 29 of the Interpretation Act.
Extension or abridgement
6 (1) The Complaints Commission may, on motion, extend or abridge a period provided for by these Rules.
(2) The affidavit in support of a motion for an extension or abridgement of time must set out the reason for the delay or urgency, as the case may be.
Memorandum of Fact and Law
7 A memorandum of fact and law must contain a table of contents and, in consecutively numbered paragraphs,
- (a) a concise statement of fact;
- (b) a statement of the points in issue;
- (c) a concise statement of the submissions;
- (d) a concise statement of the order sought;
- (e) a list of the authorities, statutes and regulations to be referred to; and
- (f) in an appendix and, if necessary as a separate document, a copy of the authorities or relevant excerpts and any statutory provisions cited or relied on that have not been reproduced in the memorandum of another party or intervenor.
Submission to Commission
8 At the end of the hearing, the parties must submit their memorandum of fact and law to the Complaints Commission.
Means of service
9 (1) Service of all documents is effected
- (a) in the case of an individual, by leaving a copy of the document with that individual;
- (b) in the case of a partnership, corporation or unincorporated association, by leaving a copy of the document with a partner, officer or director; and
- (c) in the case of a person referred to in paragraphs (a) or (b) who is represented by counsel, by leaving a copy of the document with counsel with the proof of service referred to in section 11.
Other means of service
(2) Service of a document is also effected by sending a copy of the document by electronic transmission in accordance with subsection (3), by fax transmission in accordance with subsection (4), by registered mail, or by any other means the Complaints Commission orders.
Service by electronic transmission
(3) A document that is served by electronic transmission must be accompanied by an electronic message setting out
- (a) the sender’s name, telephone number, email address and mailing address;
- (b) the name of the person being served;
- (c) the date and time of the transmission;
- (d) the title or description of the document being transmitted; and
- (e) the name, telephone number and email address of the person to be contacted if transmission problems occur.
Service by fax
(4) A document that is served by fax must be accompanied by a cover page setting out
- (a) the sender’s name, telephone number, fax number, email address and mailing address;
- (b) the name of the person being served;
- (c) the date and time of the transmission;
- (d) the total number of pages being transmitted, including the cover page;
- (e) the title or description of the document being transmitted; and
- (f) the name, telephone number and email address of the person to contacted if transmission problems occur.
Format — electronic transmission
(5) A document that is served by electronic transmission must be in PDF (Portable Document Format) or any other format allowed by the Complaints Commission.
Service after 5 p.m.
(6) A document that is served by electronic transmission or by fax after 5 p.m. at the recipient’s local time is deemed to have been served on the next day that is not a Saturday or a holiday.
10 If a document has been served in a manner not authorized by these Rules or by an order of the Complaints Commission, the Complaints Commission may, on motion, order that a document be deemed validly served if it is satisfied that the document came to the notice of the recipient or that it would have come to that person’s notice were it not for the person’s avoidance of service.
Proof of service
11 (1) Service of a document is proved by:
- (a) an acknowledgement of service signed by or on behalf of the recipient; or
- (b) an affidavit of service stating the name of the person who served the document and the date, place and manner of service.
(2) The affidavit of service for a document that was served by electronic transmission, fax or registered mail must include a receipt confirming that the document was successfully delivered to the recipient.
(3) A person serving documents under these Rules must maintain the proof referred to in subsections (1) and (2) that the document was served in accordance with section 9 and must produce that proof to the Complaints Commission on request.
Filing of Documents
Service before filing
12 (1) A document that is required to be filed under these Rules may be filed only if a copy of that document has been served on each party and any intervenors.
Proof of service
(2) When a document referred to in subsection (1) is filed, it must be accompanied by proof of service that meets the requirements of section 11.
13 (1) The parties and intervenors must file their documents by electronic transmission.
Alternative means of filing
(2) The Complaints Commission may, if it considers that it is justified in the circumstances, allow paper filing or fax filing.
Format – electronic transmission
14 (1) A document that is filed by electronic transmission must be in either PDF (Portable Document Format) or any other format allowed by the Complaints Commission.
Filing after 5 p.m.
(2) A document that is filed by electronic transmission or fax transmission after 5 p.m. standard time is deemed to have been filed on the next day that is not Saturday or a holiday.
Format — paper filing
15 (1) Subject to subsection (2), only those documents that are printed on letter size paper and that have numbered pages may be filed.
Format — non-standard
(2) If a document is not printed on letter size paper and cannot be reasonably converted to that format by the person filing it, it may be filed in its existing format.
16 (1) For the purposes of any oral or written hearing, the electronic version of a document filed by electronic transmission is deemed to be the original.
Production of original
(2) If the Complaints Commission requests to examine the original of any document filed, the party or intervenor who filed it must produce it.
Irregularity or defect
17 At any time before the Complaints Commission sends its report under section 250.48 of the Act, it may draw the attention of a party to any irregularity or defect of a document and permit the party to remedy it on any conditions that the Complaints Commission considers fair.
Statement under oath or solemn affirmation
18 (1) A statement made under oath or solemn affirmation may be filed by electronic transmission if a scanned version of the statement is filed along with a document attesting to the following:
- (a) that the document sent by electronic transmission is an electronic version of a paper document that has been signed by the person making the oath or solemn affirmation; and
- (b) that the signed paper document is available and will be produced on the Complaints Commission’s request.
Retaining document in paper format
(2) The statement made under oath or solemn affirmation must be retained in paper format by the party or intervenor filing it for one year after the final report is issued.
Production of the original
(3) If the Complaints Commission requests to examine the original of the statement made under oath or solemn affirmation, the party or intervenor who filed it must produce the original signed document for review.
Certified electronic copy
19 If a document is filed by electronic transmission and a copy certified by the Registrar or a person designated by the Registrar is requested from the Complaints Commission, the Registrar may provide a paper copy of the electronic document stamped “certified copy”.
Official Record of Hearings
Official record of hearing
20 The Complaints Commission must keep, in the original and official record of a hearing, all documents in the format in which they were filed.
21 (1) Subject to any confidentiality order made under section 55, the public may consult, in a format determined by the Registrar, documents that have been received in evidence in the public record.
(2) Documents filed with the Complaints Commission in respect of a private hearing do not form part of the public record.
Composition of Panel for Hearings
Composition and Chairperson of Panel
Composition of panel
22 For the purposes of section 250.4 of the Act, the member or members of the Complaints Commission who are assigned by the Chairperson of the Complaints Commission make up the panel that is to hold hearings under subsection 250.38(1) of the Act.
Designation of Chairperson
22.1 The Chairperson of the Complaints Commission must designate, from among the members of the panel, a person who will act as Chairperson of the panel and who will be responsible for the management of day-to-day business, including communications between the panel and the Complaints Commission and between the panel, parties and intervenors.
Absence, Incapacity or Vacancy
Absence, incapacity or vacancy
23 (1) In the event of the absence or incapacity of a member of the panel or if a position on the panel is vacant, the hearing may continue with the remaining members of the panel or the Chairperson of the Complaints Commission may assign one or more additional members to the panel.
(2) In the event of the absence or incapacity of the Chairperson of a panel composed of only one member, the Chairperson of the Complaints Commission may assign one or more members of the Complaints Commission to the panel to conduct the hearing.
Panel not void
(3) The absence or incapacity of a member of the panel or the vacancy of a position on the panel does not invalidate the proceeding.
Assignment of new member
24 If the Chairperson of the Complaints Commission assigns a new member under subsection 23(1) or (2), the following rules apply:
- (a) the parties and intervenors must make submissions to the Chairperson of the Complaints Commission as to how the hearing should proceed; and
- (b) the Chairperson of the Complaints Commission may, after considering the submissions and taking into account the interests of justice and the purpose of these Rules, establish the procedure for the hearing, including the rehearing of evidence or the use of transcripts of evidence given to date.
Majority of votes
25 A matter before a panel is decided by a majority of the members, but in the case of a tie, the Chairperson of the panel has the deciding vote.
Interim or Preliminary Questions
Chairperson of panel or delegate
26 The Chairperson of the panel or their delegate may, at any time during a proceeding, determine any interim or preliminary question, including a motion, and may exercise any powers of the Complaints Commission necessary to determine the question.
Questions To Be Determined
Question of law, jurisdiction, practice or procedure
27 At any time during a proceeding, the Complaints Commission may determine any question of law, jurisdiction, practice or procedure and may stay a proceeding in whole or in part until the question is determined.
Reference to Federal Court
28 (1) The Complaints Commission may, in accordance with section 18.3 of the Federal Courts Act, refer any question of law, of jurisdiction or of practice or procedure to the Federal Court for hearing and determination.
Powers of Commission
(2) In the event of a reference to the Federal Court, the Complaints Commission may, subject to the direction of the Court,
- (a) proceed to hear evidence relevant to all questions except those that have been referred to the Court; or
- (b) stay the hearing as it relates to the questions that have been referred to the Court and reserve its decision pending the decision of the Court.
29 (1) The Complaints Commission may issue practice directions that are consistent with these Rules and their purpose.
(2) The Complaints Commission may issue directions requiring the use of any electronic or digital means of communication, storage or retrieval of information or any technology that it considers appropriate to facilitate the conduct of a hearing or a case management conference.
Transcription or recording — proceedings
30 (1) The Complaints Commission may transcribe or record its proceedings.
Record — proceedings
(2) Any transcript or recording is a part of the record of the proceedings.
Notice to Registrar
31 Any person requiring reasonable accommodation at a proceeding must, no later than 30 days before the day on which the proceeding is to begin, provide notice to the Registrar.
Hearings Respecting Similar Questions
Powers regarding similar questions
32 (1) If two or more hearings before the Complaints Commission concern the same or similar questions, the Complaints Commission may
- (a) combine the hearings or any part of them;
- (b) hear the questions at the same time;
- (c) hear the questions one immediately after the other; or
- (d) stay one or more of the questions pending determination of one of them.
Orders regarding procedure
(2) The Complaints Commission may make orders respecting the procedure to be followed with respect to hearings.
Case management conferences
33 The Complaints Commission may conduct one or more case management conferences, which will be presided over by a member of the panel that will conduct the hearing.
Directions regarding scheduling
34 The Complaints Commission may issue directions with respect to the scheduling of case management conferences.
Directions regarding matters for consideration
35 (1) The Complaints Commission may include in the directions referred to in section 34 a list of the matters to be considered at the case management conference and may require the filing of memoranda regarding any of those matters.
Matters to be considered
(2) Matters to be considered include
- (a) the dates, duration and location of the hearing;
- (b) whether the hearing will be oral or written, or partly oral and partly written, and whether documents will be presented electronically or in paper format in the course of the hearing;
- (c) any pending or anticipated motions and a deadline date for the hearing of motions;
- (d) any issues of confidentiality;
- (e) the identification, clarification, simplification and elimination of issues;
- (f) the possibility of obtaining admissions of particular facts or documents, including an agreed statement of facts;
- (g) the official language to be used for the hearing, as well as the official language in which each witness will testify, and the need for interpreters, if any;
- (h) a timetable for the exchange or serving and filing of the various documents related to the hearing, including affidavits of documents, statements or summaries of anticipated evidence, joint briefs of authorities and agreed books of documents;
- (i) any matter relating to pre-hearing disclosure;
- (j) a timetable for the intervenors;
- (k) all matters related to expert witnesses;
- (l) the advisability of a pre-hearing reference or determination of a question or issue of law, of jurisdiction or of practice and procedure;
- (m) any requirement for a notice of a constitutional question;
- (n) a timetable for any subsequent case management conferences; and
- (o) any other matters that may facilitate the conduct of the hearing.
36 After each case management conference, the Complaints Commission may issue an order in writing setting out any rulings it has made relating to the matters considered at the conference.
37 (1) The dates set and other requirements established by case management orders are firm.
Request for variation
(2) A request for a variation must be made by motion showing that compelling reasons exist for the variation.
Powers of Commission
(3) The Complaints Commission may vary any order made under subsection (2) if it is satisfied that compelling reasons exist for the variation.
38 The procedure set out in sections 39 to 43 applies only to the following:
- (a) a motion relating to the jurisdiction of the Complaints Commission;
- (b) a motion to stay or dismiss a proceeding;
- (c) a motion raising any constitutional questions, including questions raised under the Canadian Charter of Rights and Freedoms;
- (d) a motion for a confidentiality order;
- (e) a motion that a hearing or part of a hearing in a proceeding be held in private;
- (f) a motion to prohibit a person from disclosing information disclosed in a hearing; and
- (g) any other question that the Complaints Commission orders resolved by way of motion under sections 39 to 43.
Notice of motion
39 (1) A motion is commenced by a written notice of motion setting out the grounds for the motion and the order sought.
(2) A notice of motion must be accompanied by any supporting affidavits.
Service of response
40 Any Commission counsel, party or intervenor who has been served with a notice of motion may, no later than 14 days after being served, serve a response on the other parties and any intervenors, stating the grounds on which the motion is opposed and, if applicable, any supporting affidavits.
Evidence and memorandum
41 No later than 14 days after the service of the response, the parties participating in the motion must serve on the other parties
- (a) any supplementary evidence to be relied on; and
- (b) a memorandum of fact and law.
Testimony by affidavit
42 (1) Subject to subsection (2), testimony on a motion must be given by affidavit.
(2) The Complaints Commission may, before or during the hearing, grant leave for oral testimony in relation to an issue raised in the notice of motion and may, on application of any party with standing to cross-examine, permit cross-examination on affidavits.
Powers of Commission
43 After hearing a motion, the Complaints Commission may
- (a) make the order sought or any other suitable order;
- (b) dismiss the motion, in whole or in part;
- (c) adjourn the hearing of the motion, in whole or in part; or
- (d) if the motion is heard prior to the commencement of the hearing on the merits of the proceeding to which the motion relates, adjourn the hearing of the motion so that the panel presiding at the hearing on the merits may determine it.
44 The Complaints Commission may allow a person to intervene if the Complaints Commission is satisfied that the person can make a significant contribution or bring a significant perspective to the hearing, and the potential benefits of the intervention outweigh any prejudice to the parties that might be caused by the intervention.
45 (1) A motion for leave to intervene must be served on the parties and the intervenors along with an affidavit setting out the facts on which the motion is based.
(2) A motion for leave to intervene must set out
- (a) the title of the proceedings in which the person making the motion wishes to intervene;
- (b) the name and address of that person;
- (c) a concise statement of the valuable contribution or perspective that the person will bring to the proceeding in light of the matters in issue in the hearing;
- (d) the name of the party, if any, whose position that person intends to support;
- (e) the official language to be used by that person at the hearing of the motion and, if leave is granted, at the hearing on the merits; and
- (f) a description of how that person proposes to participate in the proceedings.
46 Commission counsel, a party or an intervenor served with a motion for leave to intervene may, within 14 days after that service, serve a response to the motion on the person making the motion and on the parties and intervenors.
47 A person making a motion for leave to intervene may, within seven days after the service of the response referred to in section 46, serve a reply on the Commission Counsel, the parties and intervenors.
48 If two or more persons making a motion for leave to intervene have the same or substantially similar expertise or perspectives, the Complaints Commission may require them to file joint submissions, or otherwise participate jointly.
Powers of Commission
49 The Complaints Commission may limit the participation of an intervenor to
- (a) the cross-examination of witnesses;
- (b) the right to lead evidence;
- (c) the obligation to produce or disclose documents;
- (d) one or more issues raised in the hearing;
- (e) a portion of the hearing only;
- (f) written submissions; and
- (g) time-limited oral submissions.
50 If a motion for leave to intervene is allowed,
- (a) the Registrar must send to the intervenor a list of all documents filed in the proceedings before or on the day on which the motion for leave to intervene is allowed;
- (b) on request, the intervenor may obtain copies of the documents on the list from the Registrar;
- (c) Commission counsel, each party and each other intervenor must serve on the intervenor any document that is filed by them after the day on which the motion for leave to intervene is allowed; and
- (d) access by an intervenor to a document filed or received in evidence is subject to any relevant confidentiality order of the Complaints Commission.
Production and Disclosure of Documents
Obligation of parties and intervenors
51 (1) Parties and intervenors must provide to the Complaints Commission all documents that are in their possession, power or control and that are relevant to the subject matter of the hearing.
(2) If a party or intervenor claims that a document is confidential or contains confidential information, or is subject to privilege or protection under sections 37 to 39 of the Canada Evidence Act, that party or intervenor must present evidence in support of each claim.
(3) The Complaints Commission may make a ruling on the confidentiality claim with respect to each document or piece of information, except claims for protection under sections 37 to 39 of the Canada Evidence Act, and may make such orders as it considers appropriate.
Failure to provide
(4) Subject to section 77, no document or other piece of evidence that a party or intervenor seeks to use for the hearing will be received in evidence unless the party or intervenor provides copies to the Complaints Commission at least 30 days before the hearing commences.
Continuing obligation to inform
52 Any party or intervenor who has filed documents with or produced documents to the Complaints Commission and then comes into possession or control of or obtains power over a relevant document, or who becomes aware that the disclosure is incomplete or that the information contained in those documents is inaccurate, must as soon as possible notify the Complaints Commission of the new documents, the incompleteness of the disclosure, or the inaccuracy of the information.
Confidentiality of documents
53 Documents produced by a party, an intervenor or any other person must be treated as confidential by the Complaints Commission unless they are made part of the public record or the Complaints Commission determines otherwise.
54 Before a party, an intervenor or a person who may be called as a witness is provided with a document that has not yet been introduced into evidence, the Complaints Commission may require that the party, intervenor, person and their counsel provide to the Complaints Commission the form set out in Schedule 1.
55 The Complaints Commission may, on its own motion or on the motion of Commission counsel or a party or intervenor who has filed or will file a document, order that the document or information in the document be treated as confidential and may make any order that it considers appropriate.
Contents of motion
56 Commission counsel, a party or an intervenor making a motion for an order of confidentiality must
- (a) include in the grounds for the motion details of the specific, direct harm that would allegedly result from unrestricted disclosure of the document or information;
- (b) include in the motion a draft confidentiality order that contains the following elements
- (i) a description of the document, the information or the category of documents or information for which the order is sought,
- (ii) the names of the persons or categories of person who are entitled to have access to the confidential document or information,
- (iii) the document, information or category of document or information available to the persons or categories of persons referred to in subparagraph (ii),
- (iv) any proposed confidentiality agreement that the persons referred to in subparagraph (ii) intend to sign and the provisions of that agreement,
- (v) the number of copies of confidential documents to be provided to the persons referred to in subparagraph (ii) and any limitations on subsequent reproduction of that document by those persons, and
- (vi) the procedures to be followed with respect to confidential documents once the hearing is completed.
Filing without confidentiality order
57 A party, an intervenor or Commission counsel claiming confidentiality in a document to be filed that is not covered by a confidentiality order must
- (a) file a public version of the document that does not include the confidential information;
- (b) provide the Registrar with a version of the document marked “confidential” that
- (i) includes and identifies the confidential information referred to in paragraph (a) that has been deleted from the public version,
- (ii) identifies the nature of the claim to confidentiality, and
- (iii) does not include information for which protection is claimed under theCanada Evidence Act; and
- (c) bring a motion under section 55 for an order allowing them to file the confidential version.
Filing with confidentiality order
58 A party, an intervenor or Commission counsel who wishes to file a document containing information that is subject to a confidentiality order under section 55 must file a public version that does not include the confidential information and a confidential version with each page clearly marked “confidential” together with a reference to the date of the confidentiality order. The confidential material that has been deleted from the public version must be highlighted in the confidential version.
Interview by Commission representative
59 (1) A Complaints Commission representative may interview persons who have information or documents that are likely to have a bearing on the subject matter of the hearing.
Presence of counsel
(2) Persons who are interviewed are entitled to have counsel present at their own expense.
Statement or summary of anticipated evidence
60 (1) If Commission counsel determines that a person will be called as a witness following an interview, Commission counsel will provide the witness’ statement if one exists or prepare a summary of the witness’ anticipated evidence.
Deadline anticipated evidence
(2) Commission counsel must provide a statement or summary of anticipated evidence to parties and intervenors, subject to confidentiality orders, at least three days before the witness testifies.
Contents of summary
(3) The summary of the witness’s anticipated evidence must be in writing and contain the substance of the testimony of the witness, as well as a list of documents to which the witness may refer.
List of documents
(4) If a witness refuses to be interviewed by Commission counsel before testifying, if no statement is given or if, for any reason, no summary of anticipated evidence can be prepared, Commission counsel must, at least three days before that witness is to testify, provide the parties and intervenors with the list of documents that may be presented to the witness and must highlight the portions of the documents that relate to the witness’s anticipated evidence.
Summoning of Witnesses
Power to compel witnesses
61 At any time after a hearing is caused to be held under paragraph 250.4(1)(a) of the Act, but before sending its written report under to section 250.48 of the Act, the Complaints Commission may issue to a witness the form set out in Schedule 2, in accordance with paragraph 250.41(1)(a) of the Act.
Conduct of Hearings
Obligation to provide interpreter
62 (1) If a witness does not understand the language in which their examination at the hearing is being conducted, or is deaf or mute, the Complaints Commission must provide them with the services of an interpreter.
(2) A person intending to call a witness during a hearing must, no later than 30 days before the day on which the hearing is to begin, provide notice to the Registrar if that witness will need the services of an interpreter.
63 If the Complaints Commission orders that a hearing or any part of a hearing be held in private under section 250.42 of the Act, it may make any of the following orders:
- (a) that certain persons be excluded;
- (b) that certain persons be admitted on terms and conditions;
- (c) that restrictions be placed on the disclosure and publication of evidence, including the use of non-identifying initials and the redaction of transcripts and exhibits;
- (d) that restrictions be placed on public access to the Complaints Commission’s record, or that the Registrar maintain separate public and confidential records; and
- (e) that any other order that the Complaints Commission considers appropriate be made.
64 (1) If a person believes that any information described in paragraph 250.42(a), (b) or (c) of the Act is likely to be disclosed, they may request that the Complaints Commission hold all or part of the hearing in private.
Burden of proof
(2) The person making the request bears the burden of establishing why it is necessary for the hearing to be private.
Private consideration of request
65 (1) The Complaints Commission may convene in private to consider a request under section 64.
(2) After convening in private to consider the request under section 64, the Complaints Commission must make its decision public.
Contents of public decision
(3) The public decision must set out the following in writing:
- (a) the criteria and principles applied in determining whether the information will be heard in private;
- (b) the general nature, to the extent possible, of any evidence that will be heard in private; and
- (c) the reasons for accepting or denying the request.
(4) The Complaints Commission may, in addition to its reasons referred to in paragraph (3)(c), issue confidential reasons, not available to the public, referring to specific evidence that it decided should be heard in private. If the Complaints Commission decides to issue confidential reasons, it must give reasons for its decision.
Non-disclosure of information
66 (1) Subject to subsection (2), if a hearing or a part of a hearing is ordered to be held in private, no person may disclose, except to their representative or to another person who participates in or attends the hearing or the part of that hearing that was ordered to be held in private,
- (a) any information disclosed in the hearing or the part of the hearing that is held in private; or
- (b) the confidential reasons, if any, issued by the Complaints Commission.
Order for disclosure
(2) On the motion of a person, the Complaints Commission may make an order permitting a person to disclose any information referred to in subsection (1).
Examination of Witnesses
67 All testimony before the Complaints Commission must be given under oath or solemn affirmation.
Evidence by affidavit
68 The evidence of a witness or proof of a particular fact or document may be given by affidavit, unless the Complaints Commission orders otherwise, and the deponent must be made available for cross-examination, if required.
Exclusion of witnesses
69 (1) The Complaints Commission may, on request or on its own motion, order that witnesses be excluded from the hearing until they are called to testify.
No communication by excluded witnesses
(2) No witness who has been excluded from a hearing may communicate with any person about any evidence or testimony that is given during the course of a hearing until after the witness has testified, except with the leave and on the direction of the Complaints Commission.
70 Witnesses may be represented by counsel.
Sequence of examination
71 The sequence of examination in the ordinary course of a hearing is as follows:
- (a) Commission counsel leads the examination in chief of the witnesses, and may ask both leading and non-leading questions;
- (b) the parties may then cross-examine the witness in the order determined by the parties or, failing their agreement, by the Complaints Commission;
- (c) subject to the leave of the Commission, intervenors and counsel may cross-examine a witness; and
- (d) Commission counsel may re-examine the witness.
Application to lead examination in chief
72 (1) A party, an intervenor, a witness or their counsel may apply to the Complaints Commission for leave to lead the examination in chief of a particular witness.
(2) If leave to lead the examination in chief is granted, the examination must be governed by the normal rules for the examination of one’s own witness in court proceedings, unless the Complaints Commission directs otherwise.
73 The Complaints Commission may reasonably limit further examination or cross-examination of a witness if it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding.
74 The Complaints Commission may question any witness who gives oral evidence.
Communication with witnesses
75 Unless authorized by the Complaints Commission, no party, intervenor, witness or their counsel, may speak to a witness, after that witness has been sworn, affirmed or otherwise accepted as a witness, about the evidence that they have given or are expected to give until the evidence of that witness is complete.
Intention to call witness
76 (1) A party must provide the Complaints Commission with 15 days’ notice of its intention to call a witness.
Refusal to call witness
(2) An intervenor or counsel for a witness may by motion, on 15 days’ notice, apply to the Complaints Commission for leave to call a witness whom the intervenor or counsel for a witness believes has evidence relevant to an issue, if Commission counsel has refused to call the witness.
Use of Documents During Hearing
77 (1) If a party, intervenor or counsel for a witness calls a witness, they must provide Commission counsel, the parties and any intervenors who have an interest in the subject matter of the proposed evidence with the statement of that witness, at least five days before the witness is to testify.
(2) In the absence of such a statement, the party, intervenor or counsel for the witness must, subject to any confidentiality orders, prepare and provide Commission counsel with a written summary of that witness’ anticipated evidence and a list of documents that may be put to the witness at least five days before the witness is to testify.
Cross-examination — previous statement
78 (1) If a person uses a document for the purpose of contradicting a witness on cross-examination on previous statements, section 10 of the Canada Evidence Act applies, with any necessary modifications.
List and copy of documents
(2) Counsel or the person conducting the cross-examination must provide to the parties, Commission counsel, the witnesses and any intervenors who have an interest in the subject matter of the proposed evidence, not later than five days before the testimony of that witness begins, a list of documents that may be put to the witness and copies of those documents.
Failure to produce document
(3) If counsel or the person conducting the cross-examination fails to produce a document in accordance with subsection (2), the Complaints Commission may order that the document be produced to all parties, adjourn the proceedings if necessary or make any other suitable order to ensure fairness in the proceedings.
Use of document for other purposes
(4) If counsel or the person conducting the cross-examination wishes to use a document in cross-examination for any purpose other than to contradict the witness, that document must be produced in accordance with section 51.
Status of summary of anticipated evidence
79 A summary of anticipated evidence is not testimony and may not be referred to in the examination of the witness.
80 The Complaints Commission may require that some or all of the witnesses testify as a panel at a time and in a manner determined by the Complaints Commission.
81 (1) If Commission counsel, a party or an intervenor intends to introduce the report evidence of an expert witness at the hearing, they must serve it on all parties and intervenors at least 60 days before the expert is scheduled to testify.
Report in response
(2) Commission counsel, a party or an intervenor may serve the report of an expert in response on all parties and intervenors, provided that it is served at least 30 days before the responding expert is scheduled to testify.
Report in reply
(3) Commission counsel, the party or the intervenor calling the expert may, at least 15 days before the expert is scheduled to testify, serve an expert report in reply on all parties and intervenors.
Content of report
(4) A report referred to in any of subsections (1) to (3) must include the following:
- (a) a full statement of the evidence of the expert;
- (b) the expert’s qualifications and areas in respect of which it is proposed that he or she be qualified as an expert;
- (c) the sources and documents relied on in the report; and
- (d) the form set out in Schedule 3, duly completed.
Expert report provided to the Registrar
82 (1) Unless otherwise ordered under section 36, a report referred to in section 81 must be filed at least 10 days before the expert is scheduled to testify.
Reading by the Commission
(2) The Complaints Commission may read the expert report in advance of the testimony of the expert.
(3) The report of an expert does not form part of the record unless it is received in evidence at the hearing.
83 (1) The Complaints Commission may, at any time, by order, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a proceeding.
Content of order
(2) The order must contain the following information:
- (a) the name of the expert being appointed, and their title and qualifications;
- (b) the instructions given to the expert with respect to the preparation of the report;
- (c) the questions to be posed to the expert;
- (d) the date on which the report of the expert is to be provided to the Complaints Commission; and
- (e) the nature and extent of the expert’s participation in the proceeding.
Service of report
(3) The Registrar must serve a copy of the report on every party and any intervenor.
(4) The report does not form part of the record until it is received in evidence at the hearing.
(5) Any party or intervenor may file a written response to the expert’s report and may examine the expert. The order and nature of such examinations are to be determined by the Complaints Commission.
Further or supplementary report
(6) The Complaints Commission may order the expert to make a further or supplementary report and subsections (3) to (5) apply to that report.
Power of Commission
84 (1) The Complaints Commission may, of its own motion or on the request of Commission counsel, a party or an intervenor, adjourn a hearing if it is necessary to permit a fair hearing to be held.
Factors for consideration
(2) In considering whether to grant an adjournment, the Complaints Commission may consider the following factors:
- (a) any prejudice that might be caused to a person;
- (b) the timing of the request or motion for the adjournment;
- (c) the number of prior requests for an adjournment;
- (d) the number of adjournments already granted;
- (e) prior directions or orders with respect to the scheduling of future hearings;
- (f) the public interest;
- (g) the costs of an adjournment;
- (h) the availability of witnesses;
- (i) the efforts made to find alternatives to the adjournment request;
- (j) the principle of a fair hearing; and
- (k) any other relevant factor.
Maintenance of Order at Hearings
Orders or directions
85 (1) The Complaints Commission may make orders or give directions that it considers necessary for the maintenance of order at the hearing.
Attendance at a hearing
(2) For the purposes of subsection (1), the Complaints Commission, by order, may
- (a) impose restrictions on a person’s presence at a hearing; and
- (b) exclude a person from further participation in or attendance at a hearing until the Complaints Commission orders otherwise.
Transitional Provision, Repeal and Coming into Force
86 These Rules apply only to proceedings commenced after these Rules come into effect.
87 The Rules of Procedure for Hearings Before the Military Police Complaints Commissionfootnote 1 are repealed.
Coming into Force
88 These Rules come into force on the day on which they are registered.
STYLE OF CAUSE
I undertake to the Military Police Complaints Commission (Commission) that documents or information that are produced to me in connection with the Commission’s proceedings will not be used by me for any purpose other than for those proceedings. I undertake that I will not disclose any such documents or information to anyone other than the following persons provided that they have also given this written undertaking
- (a) the parties, intervenors or witnesses I represent in this proceeding;
- (b) counsel and staff assisting me in the proceeding; and
- (c) any experts retained in the proceeding.
- (a) my counsel;
- (b) any persons retained to assist me in the proceeding; and
- (c) any experts retained by me in the proceeding.
I understand that this undertaking ceases to apply once any such document or information has been entered as a public exhibit in the hearing, or to the extent that the Commission may release me from the undertaking with respect to any document or information.
I also understand that this undertaking applies only with respect to documents disclosed by the Commission and has no application with respect to documents or information that I already possess, or that I may obtain independently during the Commission’s proceedings, even if they are the same as some of the documents or information produced to me in connection with the Commission’s proceedings.
I further understand that the documents and information which remain subject to this undertaking at the end of the proceeding must be destroyed and
FOR COUNSEL, I undertake:
- (a) to destroy those documents or information (and any copies that I may have made) and to provide a certificate of destruction to the Commission or to return those documents to the Commission for destruction; and
- (b) to collect and destroy such documents or information (and any copies that I may have made) from anyone to whom I have disclosed any documents or information that were provided to me by the Commission in connection with the Commission’s proceedings, or to return those documents to the Commission.
FOR NON-COUNSEL, I undertake:
- (a) to provide such documents or information to my counsel and understand that my counsel will destroy them; and
- (b) if I am not represented by counsel, to give to the Commission all documents and information provided to me by the Commission for the purposes of the proceeding (and any copies that I may have made).
I undertake to safeguard the documents or information provided to me, including notes taken from or copies made of those documents or information, at all times.
If documents or information subject to this undertaking are lost or stolen or that here has been unauthorized access, I undertake to advise the Commission immediately. I agree to take whatever steps are necessary to mitigate the risks of improper disclosure of the documents or information.
(signature of person giving undertaking)
(signature of witness)
(print name in block letters)
(print name in block letters)
Summons to Witness
STYLE OF CAUSE
NAME OF WITNESS
You are required to attend before the Military Police Complaints Commission at a hearing to be held at (address), on (day and date), at (time), and so on from day to day until the hearing is concluded or the Commission otherwise orders, to give evidence under oath or solemn affirmation in respect of the hearing.
You are to bring with you and produce at that time and place any relevant documents or other things under your control, including: (Specify the nature and date of each document or other material and give sufficient details in order to identify them.)
(print name in block letters)
Member of the Military Police Complaints Commission
If you fail to attend and give evidence at the hearing, or to produce the documents or things at the time and place specified, you are liable, under section 302 of the National Defence Act, to a fine of not more than $500 or to imprisonment for a term of not more than six months or to both.
A person, other than an officer or non-commissioned member of the Canadian Forces or an officer or employee of the Department of National Defence, is entitled, under section 251.2 of the National Defence Act, at the discretion of the Military Police Complaints Commission, to receive payment of the same fees and allowances for attendance at the hearing as are paid for the attendance of a witness summoned to attend before the Federal Court.
Undertaking of Expert Witness
STYLE OF CAUSE
1 My name is (name in block letters of expert witness). I live in (city) in the (province/state) of , (country).
2 I have been engaged by or on behalf of (name of person retaining expert) to provide evidence as an expert in relation to the above-noted proceeding.
3 I acknowledge that it is my duty to provide evidence in relation to that hearing as follows:
- (a) to provide my opinion on evidence that is fair, objective and non-partisan;
- (b) to provide my opinion on evidence that is related only to matters that are within my area of expertise; and
- (c) to provide any additional assistance that the Complaints Commission may reasonably require to determine an issue.
4 I acknowledge that the duty referred to above prevails over any obligation that I may owe to any party by whom or on whose behalf I am engaged.
(signature of expert)
(name of expert in block letters)
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Rules.)
The 2002 Rules of Procedure were drafted prior to the Military Police Complaints Commission of Canada’s (MPCC) first Public Interest Hearing (PIH), and require amendments to take into account the MPCC’s experience with the requirements of a PIH and innovations that will result in more efficient and accessible hearings. For example, the 2002 Rules of Procedure do not take into account the use of technology in the hearing process, such as the electronic filing of documents, as well as the need to make the hearing process accessible to all. The 2002 Rules of Procedure are also out-of-step with recent amendments to the Canada Evidence Act. Finally, the inquisitorial nature of Public Interest Hearings was not made explicit in the 2002 Rules of Procedure.
Because of these deficiencies in the 2002 Rules of Procedure, Commission counsel were required to suspend many of the existing Rules in order to respond to the MPCC and parties’ needs through specific Rules of Procedure for the Afghanistan Public Interest Hearings (2008–2012) and Procedural Guidelines for the Fynes Public Interest Hearings (2011–2015). Many aspects of these specific Rules are incorporated in the proposed Rules.
Finally, since January 2007, the MPCC has been in conversation with the Standing Joint Committee for the Scrutiny of Regulations which has pointed out several problems with the 2002 Rules of Procedure and requested several changes. The proposed Rules of Procedure address all of these issues.
The Military Police Complaints Commission of Canada is the military’s first civilian oversight body, independent of the Department of National Defence (DND) and the Canadian Armed Forces (CAF), exercising quasi-judicial powers. The National Defence Act, R.S.C. 1985, c. N-5, which created the MPCC, includes several provisions granting exclusive jurisdiction to the MPCC to closely monitor the way in which conduct complaints against the military police are dealt with by the Canadian Forces Provost Marshal (CFPM). The MPCC has sole responsibility for dealing with complaints of interference in military police investigations. The MPCC commenced operation on December 1, 1999.
Public Interest Hearings, provided for in subsection 250.38(1) of the National Defence Act, are one mechanism available to the MPCC to provide oversight of the military police. The chairperson of the MPCC will consider several factors in exercising statutory discretion to call a Public Interest Hearing , including whether the complaint involves allegations of especially serious misconduct, whether the issues have the potential to affect confidence in the military police or the complaints process, whether the complaint involves or raises questions about the integrity of senior military or DND officials, including senior military police members, whether the issues involved are likely to have a significant impact on military police practises and procedures, and whether the case has attracted substantial public concern.
The MPCC has held three Public Interest Hearings over the course of its 23-year existence. The first, in 2005, involved a complaint against Canadian Forces National Investigation Service (CFNIS) investigators for their conduct during the investigation of an alleged sexual assault by one cadet on another cadet. The second, instituted in 2008 and concluded in 2012, involved allegations that the military police wrongly failed to investigate Canadian Forces commanders for allegedly ordering the transfer of Afghan detainees to a known risk of torture. The third PIH (Fynes) was instituted in 2011 and concluded in March 2015. The Fynes PIH involved allegations relating to the independence and impartiality of the CFNIS, insufficient investigation or failure to investigate and the professionalism and competence of the CFNIS.
To ensure that parties to a Public Interest Hearing before the Military Police Complaints Commission of Canada are provided with a consistent, transparent and fair procedure.
To institute new Rules of Procedure for Public Interest Hearings before the Military Police Complaints Commission of Canada that enhance the efficiency and accessibility of the MPCC’s hearing process.
To have the new Rules of Procedure for Public Interest Hearings before the Military Police Complaints Commission of Canada accurately reflect the nature of the complaints process, integrate best practices in the electronic filing of documents and accessibility, be up to date with amendments to the Canada Evidence Act and address the concerns of the Standing Joint Committee for the Scrutiny of Regulations.
The proposed Rules of Procedure for Public Interest Hearings before the Military Police Complaints Commission of Canada have been drafted to address the following themes:
Nature of the MPCC
The hearing-related Rules have been augmented to reflect the inquisitorial nature of the process and the MPCC’s control of proceedings. More specifically, the role of Commission counsel is only briefly described in the 2002 Rules, whereas in the proposed Rules of Procedure, the role of Commission counsel is explicitly defined in proposed Rule 1 and expanded upon in proposed Rule 71. The role of Commission counsel in serving and receiving documents and bringing or replying to motions is also recognized throughout the proposed Rules of Procedure.
The important role of the MPCC in managing its hearings is also recognized in the expanded pre-hearing procedures set out in proposed Rules 32 to 61. These Rules include provisions for case management conferences, motions, interventions, production and disclosure of documents, confidentiality orders, witness interviews, and summoning of witnesses. All of these enhance the MPCC’s control over the hearing process in order to make hearings more efficient. They also give parties notice of the matters the MPCC may decide prior to a hearing, as well as allowing for both public and private case management hearings.
The proposed Rules also clarify and expand on the use of expert witnesses by parties and the MPCC itself (proposed Rules 81 to 83).
Canada Evidence Act
The proposed Rules of Procedure better reflect the requirements of sections 37 to 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5, and the jurisprudence that has applied them. The requirements of these sections were reflected in the Afghanistan PIH Rules and the Fynes PIH Procedural Guidelines. They are now reflected in proposed Rules 51 to 54 (Production and Disclosure of Documents), Rules 55 to 58 (Confidentiality Orders), Rules 59 to 60 (Witness interviews), Rule 61 (Summoning of Witnesses), and Rules 63 to 66 (Private Hearings).
The 2002 Rules do not recognize or sanction the use of technology in hearings apart from recognizing documents in “computerized” format (Rule 1) and allowing for a proceeding to be conducted by telephone, video or other form of electronic communication (Rule 40).
The proposed Rules of Procedure provide for the electronic filing of documents (Rule 13(1)), define the format for the electronic filing (Rule 14(1)) and service of documents (Rule 9(2)) and recognize electronic sworn statements or solemn affirmations (Rule 18(1)). They also make provisions for making available the original signed document of a statement made under oath or solemn affirmation for review (Rule 18(3)), certified electronic copies (Rule 19), electronic official records (Rule 20) and public access in any format (Rule 21).
The proposed Rules of Procedure also provide for electronic hearings or the use of technology to conduct oral hearings. Proposed Rule 29(2) gives the MPCC the authority to create a practice direction relating to any other use of technology during a hearing or case management conference.
Standing Joint Committee for the Scrutiny of Regulations
The Standing Joint Committee for the Scrutiny of Regulations expressed concern that the 2002 Rules did not ensure that the MPCC’s powers were used in accordance with the procedural rights and legitimate expectations of parties. These concerns have been addressed in proposed Rules 4 (allowing the MPCC to vary the Rules), 84(2) [factors to consider before granting an adjournment] and especially in proposed Rules 38 to 43, which set out in detail the process the MPCC may use in disposing of motions.
Inconsistencies pointed out by the Committee in whether original documents must be submitted to the registrar have been resolved through the proposed Rules 12 to 19 (Filing of Documents).
Finally, a 2002 Rule that could potentially limit the MPCC’s powers to summon witnesses (Rule 33(1)), has been replaced by proposed Rule 73. This Rule gives the MPCC the power to reasonably limit further questioning of a witness if it is satisfied that the questioning to date has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding.
The one-for-one rule does not apply to this proposal, as there is no change in administrative costs to business.
Small business lens
The small business lens does not apply to this proposal, as there are no costs to small business.
The proposed Rules of Procedure are a technical and procedural document. As such, the proposal will not likely be of interest to many of the stakeholders otherwise interested in military policing or the military more generally. Stakeholders for the purposes of this technical document include the counsel who has represented a person or is likely to appear at a PIH, other legal advisors who may be involved in the disclosure of information at a PIH and those within the CAF or the federal government with experience and expertise in this technical area of the law.
In July 2016, an invitation to comment on the draft Rules of Procedure was sent to the following stakeholders:
- Canadian Forces Provost Marshal;
- Canadian Forces Provost Marshal (Deputy Commander, Professional Standards);
- Canadian Forces Director of Law and Military Justice;
- Legal Advisor to the Canadian Forces Military Police Group;
- Department of Justice’s National Security Litigation and Advisory Group;
- Department of Justice’s Civil Litigation Section;
- Department of Justice’s Public Law and Legislative Services Sector;
- Paul Champ (counsel for Amnesty International at a PIH);
- Colonel (retired) Michel Drapeau (counsel for Mr. and Mrs. Fynes at a PIH); and
- Mark Wallace (counsel for one of the subjects in the Afghanistan PIH).
Legal Counsel for the Standing Joint Committee for the Scrutiny of Regulations reviewed a draft copy of the Rules of Procedure in both official languages. He indicated that the proposed Rules seem to address the issues previously raised by the Committee. One new issue raised was the concordance between the English and French wording of Rule 77. In light of this comment, Rule 77 has been redrafted to ensure concordance between the official languages.
One of the private counsel raised the issue of the obligation placed on intervenors in Rule 51 to disclose to the MPCC all documents in their possession, power or control relevant to the subject matter of a hearing. The question was raised as to whether the degree of this obligation should depend on the nature and extent of the intervenor’s participation. This comment was considered, however, the disclosure obligation was not re-drafted as the Rules provide sufficient flexibility for the MPCC to vary or supplement a rule in whole or in part, in order to deal with all matters as informally and expeditiously as the circumstances and considerations of fairness permit (proposed Rule 4).
One of the private counsel noted that the first draft of Rule 42(2) was not clear on whether there could be cross-examination on an affidavit used as evidence on a motion. In response to this comment, Rule 42(2) was redrafted to explicitly allow for cross-examination on affidavits produced as evidence on motions.
A private counsel also referred to Rule 60, which provides for a statement of a witness’ anticipated evidence to be provided to parties and intervenors prior to that witness testifying. If a witness refuses to be interviewed by Commission counsel prior to testifying, the original draft required that parties and intervenors be provided with a list of documents that may be put to the witness. The private counsel suggested that parties and intervenors be provided with an outline of the proposed areas on which the witness will be examined. In light of this suggestion, Rule 60(4) was redrafted to require Commission counsel to provide parties and intervenors with a list of documents that may be presented to a witness, as well as to “highlight the portions of the documents that relate to the witness’s anticipated evidence.”
The Legal Advisor to the Canadian Forces Military Police Group suggested that the MPCC reconsider the rigidity of the order referred to in Rule 37 of the draft Rules of Procedure, and how it related to the disposition of motions referred to in Rule 43. Rule 37 states that “the dates set and other requirements established by case management orders are firm.” Rule 43 originally stated that, after hearing a motion, the MPCC may make the order sought, dismiss the motion, in whole or in part, or adjourn the hearing of the motion, in whole or in part. The comment regarding Rule 37 was considered, however, this Rule remained as drafted, as there are sufficient flexibility in the proposed Rules to take into account specific submissions before and after an order is issued. However, Rule 43 was redrafted, in this instance to add that the MPCC may make the order sought, but also “any other suitable order.”
The Legal Advisor to the Canadian Forces Military Police Group also pointed out a potential incompatibility between paragraph 250.41(2)(a) of the National Defence Act and Rule 51(3) of the draft Rules of Procedure. Paragraph 250.41(2)(a) states that the MPCC may not receive or accept any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence. Rule 51(3) stated that the MPCC may inspect documents and make rulings on confidentiality claims. To resolve any potential incompatibility, Rule 51(3) has been redrafted to remove the MPCC’s power to inspect documents. Now, the MPCC is to make rulings on confidentiality claims based solely on evidence setting out the grounds for each claim of confidentiality submitted by a party or intervenor.
The Legal Advisor to the Canadian Forces Military Police Group also pointed out a potential incompatibility between section 250.42 of the National Defence Act and a proposed rule which provided that hearings must be open to the public (then-Rule 57 of the draft Rules of Procedure). Then-Rule 57 provided that a hearing is to be open to the public except where the MPCC is of the opinion that there are valid reasons for it not to be. Section 250.42 of the National Defence Act provides that the MPCC may order any part of a hearing to be held in private if any of three types of information would likely be disclosed. This is information that, if disclosed, could reasonably be expected to be injurious to the defence of Canada or any state allied or associated with Canada, or the detection, prevention or suppression of subversive or hostile activities; information that, if disclosed, could reasonably be expected to be injurious to the administration of justice, including law enforcement; and information that, if disclosed, could affect a person’s privacy or security interest, if that interest outweighs the public’s interest in the information. In light of the comment that then-Rule 57 was perhaps too broad in its granting of discretion to the MPCC, and upon further consideration, this Rule has been removed so as to not replicate in the Rules the provisions or powers of the MPCC already set out in its enabling statute, in this case section 250.42 of the National Defence Act.
The Legal Advisor to the Canadian Forces Military Police Group commented upon the differences in how the offence of contempt was set out in sections 118 and 302 of the National Defence Act and then-Rule 84 of the draft Rules of Procedure. More specifically, he inquired as to how a person could meet the criteria for contempt found in then-Rule 84 but not necessarily the criteria found in the relevant National Defence Act sections. In light of this comment, and upon further consideration, then-Rule 84 has been removed for the same reasoning as noted above regarding then-Rule 57 of the draft Rules of Procedure.
The Legal Advisor to the Canadian Forces Military Police Group raised the issue of whether the obligation to produce a list of documents that may be put to a witness in cross-examination two business days prior to the commencement of that witness’s testimony was a practical one. The Legal Advisor pointed to a scenario where a witness gives testimony during examination-in-chief that is inconsistent with a previous statement. To that point, it may not have been known that reference to the document containing the previous statement was required. In such a situation, the application of Rule 78 could mean that the witness could not be properly impeached. In response to this comment, Rule 78 was redrafted so that where the person conducting a cross-examination fails to produce a document as required by the Rule, the MPCC may adjourn the proceedings where necessary or make any other suitable order to ensure fairness in the proceedings.
Enacting modern Rules of Procedure is the most effective way to fulfill the MPCC’s common-law obligation to ensure a fair process for the parties appearing before it during a PIH.
The new Rules of Procedure enhance the efficiency and accessibility of the MPCC’s PIH process by using technology to maximize access to proceedings by parties and decreasing the parties’ paper burden. They also promote fairness and a potential reduction in costs by establishing a comprehensive case management procedure, clarifying disclosure requirements on all parties, providing for an expedited process and timelines and generally more clearly setting out the MPCC’s powers and the roles of the parties through a more logical structure to the Rules. This will, in turn, enhance public accountability of the military police and the MPCC itself.
As the MPCC administers its Rules of Procedure directly through publication on the MPCC’s website and by notifying potential and actual parties to hearings of the MPCC’s processes, there are no costs stemming from the implementation of the proposed Rules of Procedure.
Implementation, compliance and enforcement, and service standards
The MPCC is responsible for the implementation of the Rules of Procedure. These Rules come into force on the day on which they are registered.
In terms of enforcement of the Rules of Procedure, subsection 118(2) of the National Defence Act provides for a tribunal finding of contempt against anyone who, among other things, fails to obey a summons to be a witness before the MPCC or refuses to produce any document in his or her power or control that is lawfully required by the MPCC to be produced. The offence of contempt is also punishable under section 302 of the National Defence Act. Under that section, those who fail to attend and give evidence at a hearing, or to produce documents or things at the time and place specified, or causes any interference or disturbance to a hearing, are liable, on summary conviction, to a fine of not more than $500, to imprisonment for a term of not more than six months, or to both punishments.
The MPCC will solicit comments on the new Rules of Procedure from stakeholders after they have been used in a Public Interest Hearing.
Julianne C. Dunbar
Senior General Counsel and Director General
Military Police Complaints Commission of Canada
270 Albert Street, 10th Floor