Annex A – Elements of the Service Infraction

Context
A.1 General
QR&O 120.02 – Infractions in relation to property and information
- A person commits a service infraction who
QR&O 120.03 – Infractions in relation to military service
- A person commits a service infraction who
QR&O 120.04 – Infractions in relation to drugs and alcohol
- A person commits a service infraction who

Context

This Annex serves to supplement and provide guidance on Chapter 120 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), (Service Infractions). It is designed as a guide to understanding the elements of service infractions for the purpose of informing investigations, guiding the charge laying process, making a finding as to whether or not the person charged committed the alleged service infraction, and conducting a review. This Annex is not designed as a replacement for legal advice, mandatory or otherwise.

A.1 General

A.1.1 The elements of service infractions do not generally include an element of fault. That is, fault elements such as purposely, knowingly, recklessly or negligently are not present in the listed elements of the infractions.^{Footnote 173} In order to make a finding that a person committed a service infraction, there must be clear and convincing evidence which shows, on a balance of probabilities, that the person committed the service infraction. Further, it must also be determined that, on a balance of probabilities, the person charged did not take all reasonable care to avoid committing the act, or did not make an honest and reasonable mistake of fact.^{Footnote 174}

A.1.2 The date and place^{Footnote 175} of the infraction are usually elements of each service infraction. However, a discrepancy in time and/or place between the charge report and the facts found at a SH will not affect the ultimate finding if the difference does not prejudice the person charged. Further, pursuant to QR&O article (art) 124.08 (Effect of Irregularities), a finding or sanction is not invalid because of a defect in form or a technical irregularity. Therefore, if for example a difference in time and/or place is clearly based on a charge report typo or error, this alone will not affect the finding or sanction.

QR&O 120.02 – Infractions in relation to property and information

A.2 QR&O 120.02(a)

A.2.1 “A person commits a service infraction who takes or uses, for other than authorized purposes, non-public property, public property, materiel or government-issued property or damages that property or materiel.”

A.2.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The person took or used, for other than authorized purposes,^{Footnote 176} or damaged:
- (1) non-public property;^{Footnote 177}
- (2) public property;^{Footnote 178}
- (3) materiel;^{Footnote 179} or
- (4) government issued property.

A.2.3 Example statement of the infraction

Charge # QR&O 120.02(a)	USED, FOR OTHER THAN AUTHORIZED PURPOSES, GOVERNMENT-ISSUED PROPERTY
	Particulars: In that they, on (date), at (indicate place of infraction), used a DND issued vehicle to travel to the LCBO liquor store, a purpose for which they did not have authorization.

Charge # QR&O 120.02(a)	DAMAGED NON-PUBLIC PROPERTY
	Particulars: In that they, on (date), at (indicate place of infraction), pushed a table in the mess causing several dishes to fall and break.

A.3 QR&O 120.02(b)

A.3.1 “A person commits a service infraction who without permission or legal justification, takes property that belongs to another person.”

A.3.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The person took property;
The person did not have:
- (1) permission; or
- (2) legal justification;^{Footnote 180}
The property belongs to another person.

A.3.3 Example statement of the infraction

Charge # QR&O 120.02(b)	WITHOUT PERMISSION OR LEGAL JUSTIFICATION TOOK PROPERTY BELONGING TO ANOTHER PERSON
	Particulars: In that they, on (date), at (indicate place of infraction), without permission or legal justification, took a cellphone belonging to Cpl Smith.

A.4 QR&O 120.02(c)

A.4.1 “A person commits a service infraction who accesses, possesses, uses or communicates information for a purpose unrelated to the performance of their duties.”

A.4.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The person:
- (1) accessed information;^{Footnote 181}
- (2) possessed information;
- (3) used information;
- (4) communicated information;
The person did so for a purpose that was not related to the performance of their duties.^{Footnote 182}

A.4.3 Example statement of the infraction

Charge # QR&O 120.02(c)	ACCESSED INFORMATION FOR A PURPOSE UNRELATED TO THE PERFORMANCE OF THEIR DUTIES
	Particulars: In that they, on (date), at (indicate place of infraction), accessed electronic gaming sites from their DWAN computer.

Charge # QR&O 120.02(c)	COMMUNICATED INFORMATION FOR A PURPOSE UNRELATED TO THE PERFORMANCE OF THEIR DUTIES
	Particulars: In that they, on (date), at (indicate place of infraction), communicated images depicting nudity through their DWAN email.

A.5 QR&O 120.02(d)

A.5.1 “A person commits a service infraction who fails to disclose actual, apparent or potential conflicts between their duties and private interests.”

A.5.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
There is an:
- (1) actual;^{Footnote 183}
- (2) apparent;^{Footnote 184} or
- (3) potential^{Footnote 185}
conflict between their duties^{Footnote 186} and private interests;^{Footnote 187}
The person failed to disclose the conflict of interest.

A.5.3 Example statement of the infraction

Charge # QR&O 120.02(d)	FAILED TO DISCLOSE AN APPARENT CONFLICT BETWEEN THEIR DUTIES AND PRIVATE INTERESTS
	Particulars: In that they, on (date), at (indicate place of infraction), operated a business which provides cleaning services to CFB Kingston.

QR&O 120.03 – Infractions in relation to military service

A.6 QR&O 120.03(a)

A.6.1 “A person commits a service infraction who handles a weapon, explosive substance or ammunition in a dangerous manner.”

A.6.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The person handled:^{Footnote 188}
- (1) a weapon;^{Footnote 189}
- (2) explosive substance;^{Footnote 190} or
- (3) ammunition;^{Footnote 191}
The person handled it in a dangerous manner.^{Footnote 192}

A.6.3 Example statement of the infraction

Charge # QR&O 120.03(a)	HANDLED A WEAPON IN A DANGEROUS MANNER
	Particulars: In that they, on (date), at (indicate place of infraction), played “quick draw” with their Browning 9mm pistol.

A.7 QR&O 120.03(b)

A.7.1 “A person commits a service infraction who discharges a firearm without authorization.”

A.7.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The person discharged^{Footnote 193} a firearm;^{Footnote 194}
There was no authorization^{Footnote 195} for the discharge.

A.7.3 Example statement of the infraction

Charge # QR&O 120.03(b)	DISCHARGED A FIREARM WITHOUT AUTHORIZATION
	Particulars: In that they, on (date), at (indicate place of infraction), discharged their C7 rifle without authorization.

A.8 QR&O 120.03(c)

A.8.1 “A person commits a service infraction who behaves in a manner that could reasonably undermine the authority of a superior officer.”

A.8.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The person behaved in a manner that could reasonably^{Footnote 196} undermine^{Footnote 197} the authority of a superior officer.^{Footnote 198}

A.8.3 Example statement of the infraction

Charge # QR&O 120.03(c)	BEHAVED IN A MANNER THAT COULD REASONABLY UNDERMINE THE AUTHORITY OF A SUPERIOR OFFICER
	Particulars: In that they, on (date), at (indicate place of infraction), mocked a briefing given by (rank, name) stating words to the effect, “That was the stupidest thing I’ve ever heard. How did that loser ever get promoted past Private?”

A.9 QR&O 120.03(d)

A.9.1 “A person commits a service infraction who fails or while on duty is unfit to effectively perform their duties or carry out responsibilities.”

A.9.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The person:
- (1) failed to effectively perform their duties;^{Footnote 199}
- (2) failed to effectively carry out responsibilities;^{Footnote 200}
- (3) while on duty was unfit^{Footnote 201} to effectively perform their duties; or
- (4) while on duty was unfit to effectively carry out responsibilities.

A.9.3 Example statement of the infraction

Charge # QR&O 120.03(d)	WHILE ON DUTY WAS UNFIT TO EFFECTIVELY PERFORM THEIR DUTIES
	Particulars: In that they, on (date), at (indicate place of infraction), were found asleep at their workstation during their duty hours.

A.10 QR&O 120.03(e)

A.10.1 “A person commits a service infraction who in relation to military service, furnishes false or misleading information or engages in deceitful conduct.”

A.10.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The conduct was in relation to military service;
The person:
- (1) provided information that was false;
- (2) provided information that was misleading; or
- (3) engaged in deceitful conduct.^{Footnote 202}

A.10.3 Example statement of the infraction

Charge # QR&O 120.03(e)	IN RELATION TO MILITARY SERVICE, FURNISHED FALSE INFORMATION
	Particulars: In that they, on (date), at (indicate place of infraction), signed the log book indicating that they had checked the secured area when they had not done so.

Charge # QR&O 120.03(e)	IN RELATION TO MILITARY SERVICE, ENGAGED IN DECEITFUL CONDUCT
	Particulars: In that they, on (date), at (indicate place of infraction), failed to declare the ammunition that was hidden in their pockets, when it was their duty to declare any live rounds on their person.

A.11 QR&O 120.03(f)

A.11.1 “A person commits a service infraction who without reasonable excuse, fails to attend or is tardy to their place of duty.”

A.11.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The person was required to be in a given place^{Footnote 203} at a specific time;
The person:
- (1) failed to attend;^{Footnote 204} or
- (2) was tardy;^{Footnote 205}
The person did not have a reasonable excuse.^{Footnote 206}

A.11.3 Example statement of the infraction

Charge # QR&O 120.03(f)	WITHOUT REASONABLE EXCUSE, WAS TARDY TO THEIR PLACE OF DUTY
	Particulars: In that they, on (date), at (indicate place of infraction), arrived at their place of duty 4 hours late.

A.12 QR&O 120.03(g)

A.12.1 “A person commits a service infraction who dresses in a manner or adopts an appearance or demeanour that is inconsistent with Canadian Forces requirements.”

A.12.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The person:
- (1) dressed; or
- (2) adopted an appearance or demeanour^{Footnote 207}
in a manner that was inconsistent with Canadian Forces requirements.^{Footnote 208}

A.12.3 Example statement of the infraction

Charge # QR&O 120.03(g)	DRESSED IN A MANNER THAT IS INCONSISTENT WITH CANADIAN FORCES REQUIREMENTS
	Particulars: In that they, on (date), at (indicate place of infraction), wore a visible civilian tee-shirt with their military issued uniform contrary to the Canadian Forces Dress Instructions.

Charge # QR&O 120.03(g)	ADOPTED A DEMEANOUR THAT IS INCONSISTENT WITH CANADIAN FORCES REQUIREMENTS
	Particulars: In that they, on (date), at (indicate place of infraction), harassed (rank, name) on social media contrary to DAOD 5012-0.

A.13 QR&O 120.03(h)

A.13.1 “A person commits a service infraction who fails to maintain personal equipment or assigned quarters in accordance with Canadian Forces requirements.”

A.13.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The person failed to maintain:
- (1) personal equipment;^{Footnote 209} or
- (2) assigned quarters^{Footnote 210}
in accordance with Canadian Forces requirements.^{Footnote 211}

A.13.3 Example statement of the infraction

Charge # QR&O 120.03(h)	FAILED TO MAINTAIN ASSIGNED QUARTERS IN ACCORDANCE WITH CANADIAN FORCES REQUIREMENTS
	Particulars: In that they, on (date), at (indicate place of infraction) left their quarters without removing the garbage, contrary to the Canadian Forces requirement that quarters be left in clean condition.

A.14 QR&O 120.03(i)

A.14.1 “A person commits a service infraction who otherwise behaves in a manner that adversely affects the discipline, efficiency or morale of the Canadian Forces.”

A.14.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The behaviour of the person;
The adverse effect^{Footnote 212} on:
- (1) discipline;
- (2) efficiency; or
- (3) morale
of the Canadian Forces.

A.14.3 Example statement of the infraction

Charge # QR&O 120.03(i)	BEHAVED IN A MANNER THAT ADVERSELY AFFECTS THE DISCIPLINE, EFFICIENCY OR MORALE OF THE CANADIAN FORCES
	Particulars: In that they, on (date), at (indicate place of infraction), laughed out loud while on parade.

QR&O 120.04 – Infractions in relation to drugs and alcohol

A.15 QR&O 120.04(a)

A.15.1 “A person commits a service infraction who while on duty, is impaired by a drug or alcohol.”

A.15.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The person was on duty;
The person was impaired;^{Footnote 213}
The impairment was caused by:
- (1) a drug;^{Footnote 214} or
- (2) alcohol.

A.15.3 Example statement of the infraction

Charge # QR&O 120.04(a)	WHILE ON DUTY, IS IMPAIRED BY ALCOHOL
	Particulars: In that they, on (date), at (indicate place of infraction), while on duty, were impaired by alcohol.

A.16 QR&O 120.04(b)

A.16.1 “A person commits a service infraction who uses a drug contrary to article 20.04 (Prohibition).”

A.16.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The person used a drug;^{Footnote 215}
The use was contrary to QR&O article 20.04.

A.16.3 Example statement of the infraction

Charge # QR&O 120.04(b)	USED A DRUG CONTRARY TO QR&O ARTICLE 20.04 (PROHIBITION)
	Particulars: In that they, on (date), at (indicate place of infraction), consumed “MDMA” contrary to QR&O article 20.04 (Prohibition).

A.17 QR&O 120.04(c)

A.17.1 “A person commits a service infraction who introduces, possesses or consumes an intoxicant contrary to article 19.04 (Intoxicants).”

A.17.2 Elements of the infraction

The identity of the person charged;
Date and place of the infraction;
The person:
- (1) introduced;
- (2) possessed; or
- (3) consumed
an intoxicant;^{Footnote 216}
The person did so in a manner that was contrary to QR&O article 19.04.

A.17.3 Example statement of the infraction

Charge # QR&O 120.04(c)	POSSESSED AN INTOXICANT CONTRARY TO QR&O ARTICLE 19.04 (INTOXICANTS)
	Particulars: In that they, on (date), at (indicate place of infraction), had a bottle of scotch in their desk drawer contrary to QR&O article 19.04.

Footnotes

Footnote 173

An exception to this is QR&O paragraph (para) 120.03(e) wherein the element of deceitful conduct imparts intent. See note 202 for further details.

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Footnote 174

See section (s) 3.5.

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Footnote 175

The meaning of place includes virtual places, such as online meeting rooms, conference calls, etc. Therefore, the place of an infraction in the particulars can be a virtual place.

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Footnote 176

The meaning of authorized purposes includes any purposes for which permission or power was granted by an authority.

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Footnote 177

Non-public property means, as defined at National Defence Act (NDA) subsection (subs) 2(1):

a. all money and property, other than issues of materiel, received for or administered by or through messes, institutes or canteens of the Canadian Forces,

b. all money and property contributed to or by officers, non-commissioned members, units or other elements of the Canadian Forces for the collective benefit and welfare of those officers, non-commissioned members, units or other elements,

c. by-products and refuse and the proceeds of the sale thereof to the extent prescribed under (NDA) subsection 39(2), and

d. all money and property derived from, purchased out of the proceeds of the sale of, or received in exchange for, money and property described in paragraphs (a) to (c).

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Footnote 178

Public property means, as defined at NDA subs 2(1): all money and property of Her Majesty in right of Canada.

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Footnote 179

Materiel means, as defined at NDA subs 2(1): all public property, other than real property, immovables and money, provided for the Canadian Forces or for any other purpose under (the NDA), and includes any vessel, vehicle, aircraft, animal, missile, arms, ammunition, clothing, stores, provisions or equipment so provided.

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Footnote 180

The reasonable belief on the part of the charge layer required for a charge to be laid pursuant to QR&O para 102.07(1) must be informed, in part, by facts indicating an absence of permission or legal justification. The absence of a legal justification forms part of the elements of the infraction rather than forming part of the Officer Conducting the Summary Hearing’s (OCSH’s) considerations at a SH (see s 3.5). Legal justification includes: lawful authorization (for example: a search warrant); having taken all reasonable care to avoid committing the alleged act; or, an honest and reasonable mistake of fact.

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Footnote 181

Information may exist in the human mind, in document form and in electronic form. Information in document form includes without being limited to: memos, reports, invoices, contracts, and photographs. Information in electronic form includes without being limited to: e-mails, instant messages, and text messages. Information also includes communication media such as conversations in person and virtually, voice messages, and films.

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Footnote 182

The meaning of duties includes any tasks expected or required by reason of position, occupation, or rank.

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Footnote 183

Actual means a conflict of interest that is existing at the present time in a situation.

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Footnote 184

Apparent means a conflict of interest that could be perceived by a reasonable observer to exist in a situation, whether or not it is the case.

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Footnote 185

Potential means a conflict of interest that could reasonably be foreseen to exist in the future.

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Footnote 186

See note 182.

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Footnote 187

A conflict between duties and private interests includes a situation where a person has private interests that could improperly influence the performance of their duties. This could include financial gains, personal relationships, or business interests. Conflicts of interest may arise from circumstances including political activities, the acceptance of gifts or other benefits. A conflict of interest does not necessarily relate exclusively to matters concerning financial transactions and the transfer of economic benefit. While financial activity is important, conflicts of interest in any area of activity can have a negative impact on the perceived objectivity of the CAF.

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Footnote 188

The meaning of handling includes managing, dealing with, or being responsible for.

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Footnote 189

The meaning of weapon includes any device or instrument intended to be used in attack or defence in combat, fighting, or war.

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Footnote 190

The meaning of explosive substance includes a solid or liquid substance or mixture of substances that, through a chemical reaction caused by a suitable stimulus, changes rapidly and violently to other more stable substances, usually gases, with the accompanying development of high pressure and release of heat. An explosive substance includes but is not limited to solid and liquid high explosives, propellants and pyrotechnics.

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Footnote 191

The meaning of ammunition includes any device charged with explosives, propellants, pyrotechnics, or initiating composition, for use in military operations.

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Footnote 192

The meaning of dangerous manner includes any manner that is risky, hazardous, or unsafe, or otherwise able or likely to cause physical injury.

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Footnote 193

The meaning of discharge includes the act of firing a weapon.

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Footnote 194

The meaning of firearm includes a barreled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person.

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Footnote 195

The meaning of authorization includes permission or power granted by an authority.

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Footnote 196

The use of the term reasonably requires an objective assessment of the impugned behavior. The manner in which the person behaved is assessed from the perspective of a reasonable person.

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Footnote 197

The meaning of undermine includes to injure or destroy by insidious activity or imperceptible stages, sometimes tending toward a sudden dramatic effect, whether or not in the presence of the superior officer.

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Footnote 198

Superior officer means, as defined at NDA subs 2(1): any officer or non-commissioned member who, in relation to any other officer or non-commissioned member, is by (the NDA), or by regulations or custom of the service, authorized to give a lawful command to that other officer or non-commissioned member.

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Footnote 199

See note 182.

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Footnote 200

The meaning of responsibilities includes anything for which a person is responsible, answerable, or accountable.

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Footnote 201

The meaning of unfit includes unsuitable or not having the requisite capacity.

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Footnote 202

The meaning of deceitful conduct includes fraudulent conduct; acting to delude, mislead or falsely persuade others. Satisfying the element of deceitful conduct includes consideration of the intent of the person: namely, the intent to deceive, defraud, delude, mislead, or falsely persuade others.

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Footnote 203

The meaning of place includes virtual places, such as online meeting rooms, conference calls, etc.

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Footnote 204

The meaning of attend includes to be present at.

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Footnote 205

The meaning of tardy includes behind time; not on time; delayed through reluctance.

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Footnote 206

The reasonable belief on the part of the charge layer required for a charge to be laid pursuant to QR&O para 102.07(1) must be informed, in part, by facts indicating an absence of a reasonable excuse. The absence of a reasonable excuse forms part of the elements of the infraction. The use of the term reasonable requires an objective assessment of the behavior at issue. The manner in which the person behaved is assessed from the perspective of a reasonable person. At the SH, the OCSH must consider whether the elements of the infraction are made out, including the absence of a reasonable excuse. The OCSH must also consider whether the person charged took all reasonable care to avoid committing the service infraction or made an honest and reasonable mistake of fact (see s 3.5).

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Footnote 207

The meaning of demeanour includes conduct, behaviour, deportment, bearing, way of acting.

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Footnote 208

The meaning of requirement includes anything to be called on authoritatively, which may include instructions issued on the CDS’s authority, CANFORGENs, and Standing Orders.

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Footnote 209

Personal equipment means, as defined at NDA subs 2(1): all materiel issued to an officer or non-commissioned member for the personal wear or other personal use of that officer or non-commissioned member.

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Footnote 210

The meaning of quarters includes accommodation inside the garrison and may also include accommodation in an operational environment.

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Footnote 211

See note 208.

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Footnote 212

The element of adverse effect includes a direct adverse effect and may also include behaviour that would tend to or would likely result in an adverse effect. In deciding whether behavior would tend to or would likely result in an adverse effect, the OCSH may apply their experience and general service knowledge to make inferences.

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Footnote 213

The meaning of impaired means functioning poorly or inadequately, which may be demonstrated by sloppy work, errors in judgment, or inappropriate responses or behaviours. Physical signs of impairment by a drug or alcohol may include odour of alcohol or drugs, glassy or red eyes, unsteady gait, slurring, or poor coordination. Any level of impairment is sufficient to make out this element of the infraction.

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Footnote 214

Drug means, as defined at QR&O art 20.01:

a) a controlled substance as defined in the Controlled Drugs and Substances Act (Statutes of Canada, 1996, Chapter 19); or

b) any other substance, except for alcohol, the use of which can impair normal psychological or physical functioning and the use of which has been prohibited by the Chief of the Defence Staff.

To note: cannabis meets the definition of drug pursuant to QR&O para 20.01(b) when it is used contrary to the prohibitions on its use set out at DAOD 9004-1, Use of Cannabis by CAF Members.

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Footnote 215

See note 214.

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Footnote 216

Intoxicant means alcohol.

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Date modified:: 2024-06-21

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