National Defence Act (R.S.C., 1985, c. N-5)

SUBDIVISION 3Disposal of Interference Complaints

Marginal note:Responsibility

• 250.34 (1) The Chairperson is responsible for dealing with interference complaints.

• Marginal note:Investigation may be by Provost Marshal

  (2) If the Chairperson considers it appropriate to do so, the Chairperson may ask the Provost Marshal to investigate an interference complaint.

• Marginal note:Reasons for refusal

  (3) If the Provost Marshal does not consent to investigate, the Provost Marshal shall notify the Chairperson in writing of the reason why the consent was not given.

Marginal note:Duty to investigate

• 250.35 (1) The Chairperson or the Provost Marshal, as the case may be, shall investigate an interference complaint as soon as practicable.

• Marginal note:Right to refuse or end investigation

  (2) The Chairperson may direct that no investigation of an interference complaint be started or that an investigation be ended if, in the Chairperson’s opinion,

  • (a) the complaint is frivolous, vexatious or made in bad faith;

  • (b) the complaint is one that could more appropriately be dealt with according to a procedure provided under another Part of this Act or under any other Act of Parliament; or

  • (c) having regard to all the circumstances, investigation or further investigation is not necessary or reasonably practicable.

• Marginal note:Notice

  (3) If the Chairperson makes a direction, the Chairperson shall send to the complainant, the person who is the subject of the complaint, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal a notice in writing setting out the direction and the reasons why it was made.

Marginal note:Report on investigation

250.36 On the completion of an investigation into an interference complaint, the Chairperson shall prepare and send a report setting out a summary of the complaint and the Chairperson’s findings and recommendations to

• (a) the Minister;

• (b) the Chief of the Defence Staff, in the case of a complaint against an officer or a non-commissioned member;

• (c) the Deputy Minister, in the case of a complaint against a senior official of the Department;

• (d) the Judge Advocate General; and

• (e) the Provost Marshal.

Marginal note:Status reports

• 250.37 (1) Within sixty days after being notified of an interference complaint, the Chairperson shall, if the complaint has not been resolved, disposed of or otherwise dealt with before that time, and then each thirty days afterwards until the complaint is dealt with, send a report on the status of the complaint to

  • (a) the complainant;

  • (b) the person who is the subject of the complaint;

  • (c) the Judge Advocate General; and

  • (d) the Provost Marshal.

• Marginal note:Six-month report

  (2) If a complaint has not been dealt with within six months, the Chairperson shall in each report sent after that period explain why not.

• Marginal note:Exception

  (3) No report shall be sent to the person who is the subject of a complaint if, in the Chairperson’s opinion, sending the report might adversely affect or hinder any investigation under this Act.

DIVISION 3Investigations and Hearings by Complaints Commission

Marginal note:Public interest

• 250.38 (1) If at any time the Chairperson considers it advisable in the public interest, the Chairperson may cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into a conduct complaint or an interference complaint.

• Marginal note:Withdrawn complaint

  (2) The Chairperson may cause an investigation to be held in respect of a complaint even if it has been withdrawn.

• Marginal note:Notice

  (3) If the Chairperson decides to cause an investigation to be held, the Chairperson shall send a notice in writing of the decision and the reasons for the decision to the complainant, the person who is the subject of the complaint, the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal.

• Marginal note:Exception

  (4) No notice shall be sent to the person who is the subject of the complaint if, in the Chairperson’s opinion, sending the notice might adversely affect or hinder any investigation under this Act.

• Marginal note:Duties suspended

  (5) If the Chairperson acts in respect of a conduct complaint under subsection (1), the Provost Marshal is not required to investigate, report on or otherwise deal with the complaint until the Provost Marshal receives a report under section 250.53 with respect to the complaint.

Marginal note:Report on investigation

250.39 On completion of an investigation under subsection 250.38(1), the Chairperson shall prepare and send to the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal a report in writing setting out the Chairperson’s findings and recommendations with respect to the complaint, unless the Chairperson has caused, or intends to cause, a hearing to be held to inquire into the complaint.

Marginal note:Assignment of members to conduct hearing

• 250.4 (1) If the Chairperson decides to cause a hearing to be held, the Chairperson shall

  • (a) assign one or more members of the Complaints Commission to conduct the hearing; and

  • (b) send a notice in writing of the decision and the reasons for the decision to the complainant, the person who is the subject of the complaint, the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal.

• Marginal note:Deeming

  (2) For the purposes of this Part, the member or members of the Complaints Commission who conduct a hearing are deemed to be the Complaints Commission.

Marginal note:Powers

• 250.41 (1) When conducting a hearing, the Complaints Commission has, in relation to the complaint before it, power

  • (a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things under their control that it considers necessary to the full investigation and consideration of matters before it;

  • (b) to administer oaths; and

  • (c) to receive and accept any evidence and information that it sees fit, whether admissible in a court of law or not.

• Marginal note:Restriction

  (2) Notwithstanding subsection (1), the Complaints Commission may not receive or accept

  • (a) any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence;

  • (b) any answer given or statement made before a board of inquiry or summary investigation;

  • (c) any answer or statement that tends to criminate the witness or subject the witness to any proceeding or penalty and that was in response to a question at a hearing under this Division into another complaint;

  • (d) any answer given or statement made before a court of law or tribunal; or

  • (e) any answer given or statement made while attempting to resolve a conduct complaint informally under subsection 250.27(1).

Marginal note:Hearing in public

250.42 A hearing is to be held in public, except that the Complaints Commission may order the hearing or any part of the hearing to be held in private if it is of the opinion that during the course of the hearing any of the following information will likely be disclosed:

• (a) 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;

• (b) information that, if disclosed, could reasonably be expected to be injurious to the administration of justice, including law enforcement; and

• (c) information affecting a person’s privacy or security interest, if that interest outweighs the public’s interest in the information.

Marginal note:Notice of hearing

• 250.43 (1) As soon as practicable before the commencement of a hearing, the Complaints Commission shall serve a notice in writing of the time and place appointed for the hearing on the complainant and the person who is the subject of the complaint.

• Marginal note:Convenience to be considered

  (2) If a person on whom a notice is served wishes to appear before the Complaints Commission, the Complaints Commission must consider the convenience of that person in fixing the time and the place for the hearing.

• Marginal note:Delay of hearing

  (3) If the complaint relates to conduct that is also the subject of disciplinary or criminal proceedings before a court or tribunal of first instance, the hearing may not take place until the disciplinary or criminal proceedings are completed.

Marginal note:Rights of persons interested

250.44 The Complaints Commission shall afford a full and ample opportunity, in person or by counsel, to present evidence, to cross-examine witnesses and to make representations at the hearing to

• (a) the complainant and the person who is the subject of the complaint, if they wish to appear; and

• (b) any other person who satisfies the Complaints Commission that the person has a substantial and direct interest in the hearing.

Marginal note:Witness not excused from testifying

• 250.45 (1) In a hearing, no witness shall be excused from answering any question relating to the complaint before the Complaints Commission when required to do so by the Complaints Commission on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.

• Marginal note:Answer not receivable

  (2) No answer given or statement made by a witness in response to a question described in subsection (1) may be used or receivable against the witness in any disciplinary, criminal, administrative or civil proceeding, other than a hearing or proceeding in respect of an allegation that the witness gave the answer or made the statement knowing it to be false.

Marginal note:Expenses

250.46 Travel and living expenses incurred in appearing before the Complaints Commission shall, in the discretion of the Complaints Commission, be paid in accordance with applicable Treasury Board directives, to the complainant and to the person who is the subject of the complaint, and to their counsel, if the Complaints Commission holds a hearing at a place in Canada that is not their ordinary place of residence.

Marginal note:Return of documents, etc.

250.47 Documents and things presented to the Complaints Commission at a hearing shall, on request, be returned to the person who presented them within a reasonable time after completion of the Complaints Commission’s report on the complaint.

Marginal note:Report

250.48 On completion of a hearing, the Complaints Commission shall prepare and send to the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal a report in writing setting out its findings and recommendations with respect to the complaint.

DIVISION 4Review and Final Report

Marginal note:Review — conduct complaint

• 250.49 (1) On receipt of a report under subsection 250.32(3) or section 250.39 or 250.48 in respect of a conduct complaint, the Provost Marshal shall review the complaint in light of the findings and recommendations set out in the report.

• Marginal note:Exception

  (2) If the Provost Marshal is the subject of the complaint, the review shall be conducted by the Chief of the Defence Staff.

Marginal note:Review — interference complaint

• 250.5 (1) On receipt of a report under section 250.36, 250.39 or 250.48 in respect of an interference complaint, the complaint shall be reviewed in light of the findings and recommendations set out in the report by

  • (a) the Chief of the Defence Staff, if the person who is the subject of the complaint is an officer or a non-commissioned member; and

  • (b) the Deputy Minister, if the person who is the subject of the complaint is a senior official of the Department.

• Marginal note:Exception

  (2) If the Chief of the Defence Staff or the Deputy Minister is the subject of the complaint, the review shall be conducted by the Minister.

Marginal note:Notice of action

• 250.51 (1) The person who reviews a report under section 250.49 or 250.5 shall notify in writing the Minister and the Chairperson of any action that has been or will be taken with respect to the complaint.

• Marginal note:Reasons

  (2) If the person decides not to act on any findings or recommendations set out in the report, the reasons for not so acting must be included in the notice.

Marginal note:Notice of action

• 250.52 (1) If the Minister reviews a report by reason of subsection 250.5(2), the Minister shall notify the Chairperson in writing of any action that has been or will be taken with respect to the complaint.

• Marginal note:Reasons

  (2) If the Minister decides not to act on any findings or recommendations set out in the report, the reasons for not so acting must be included in the notice.