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Military Justice at the Unit Level Policy
Chapter 1 – Pre-charge

Context

This chapter of the Military Justice at the Unit Level Policy (the Policy) is meant to provide guidance about the process to be followed from the moment a complaint of an alleged service offenceFootnote 1 or service infractionFootnote 2 is made, until a charge is laid. This chapter applies to all alleged disciplinary matters, regardless whether the alleged misconduct results in a charge being laid for a service infraction or service offence or results in no charge being laid. This chapter is to be read in conjunction with the relevant provisions in Division 5 of Part III of the National Defence Act (NDA) (Summary Hearings) and Chapter 102 of the Queen's Regulations and Orders (QR&O) (Investigation and Laying of Charges).

1.1 Complaint

1.1.1   When an appropriate authority in the military justice system (MJ Authority) receives a complaint or has other reasons to believe that a service offence or a service infraction has been committed, the MJ Authority must cause an investigation to be conducted as soon as circumstances permit, to determine whether there are sufficient grounds to lay a charge.Footnote 3 A MJ Authority includes, but is not limited to, members of the Military Police including the CFNIS (the MP), an officer, or another member of the Chain of Command (CoC) who ordinarily deals with matters of discipline. The requirement to investigate, however, does not apply to complaints that are frivolous or vexatious.Footnote 4

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1.2 Investigation

1.2.1   The investigation should be carried out swiftly but completely. It must, as a minimum, collect all reasonably available evidence relevant to determining whether a service offence or a service infraction has been committed.Footnote 5 The investigation should work to uncover evidence relevant to proving or disproving any possible charge(s) to be laid. In respect of investigating possible service infractions, a guide to the elements of service infractions is set out at Annex A.

1.2.2   Before an investigation is conducted a MJ Authority must take the following steps:

  1. Confirm whether there is a requirement to seek pre-investigation legal advice; and,
  2. Determine whether the complaint is most appropriately investigated at their level or whether it should be referred to a different investigative body. The investigative bodies include: civilian law enforcement, the MP, and unit-level investigators. For example: if a complaint is reported to an officer or another member of the CoC it must be determined whether it is most appropriately investigated at the unit level or should be referred. Similarly, if a complaint is reported to the MP it must be determined whether it is most appropriately investigated by the MP or should be referred.

Appropriate investigative body

1.2.3   The determination by a MJ Authority as to whether to investigate or to refer a complaint to a different investigative body must be made in consideration of the seriousness,Footnote 6 sensitivityFootnote 7  and complexityFootnote 8  of the matter. When making this determination, the MJ Authority may consult with their legal advisor as well as the relevant policing and unit authorities as appropriate. The engagement of civilian law enforcement will be coordinated by the MP in collaboration with the specific law enforcement agency who has concurrent jurisdiction on a matter.

1.2.4   The determination of whether to investigate or to refer a complaint is not relevant to any allegation of sexual misconduct, which must be referred to the MP for a decision on investigatory jurisdiction (see paragraph (para) 1.2.15).

Pre-investigation legal advice

1.2.5   Pre-investigation legal advice is required when the MJ Authority believes:

  1. That any alleged service offence or service infraction was committed against a person; or
  2. That a person may have suffered physical or emotional harm, property damage or economic loss as a result of any alleged commission of a service offence or service infraction.Footnote 9

1.2.6   The requirement to obtain legal advice before causing an investigation to be conducted provides the MJ Authority the opportunity to receive advice with respect to the appropriate investigative body as well as the application of the Declaration of Victims Rights (DVR) in the circumstances.

1.2.7   The requirement to seek pre-investigation legal advice does not prohibit a MJ Authority from first carrying out the duty to engage in relevant and lawful pre-investigative activities that are appropriate in the circumstances, such as:

  1. Responding to an emergency;
  2. Taking measures to ensure the safety and security of any person, information or property;
  3. Securing or preserving evidence;
  4. Establishing the identity of the person alleged to have committed the service offence or service infraction when time is of the essence; and
  5. Affording DVR rights when applicable.

1.2.8   Pre-investigation legal advice should be requested within 3 days from the date on which the incident was reported to a MJ Authority.

Application of the DVR

1.2.9   As set out at para 1.2.5, pre-investigation legal advice is required when a MJ Authority believes that a service offence or a service infraction was committed against a person or that a person may have suffered physical or emotional harm, property damage or economic loss as the result of an alleged service offence or service infraction.Footnote 10  One of the principal purposes of this legal advice is to ensure the MJ Authority has all the information and advice they require to assess whether, in those particular circumstances, the rights set out in the DVR apply.

1.2.10   The rights set out in the DVR apply only to victims, as defined at subsection (subs) 2(1) of the NDA.Footnote 11  Critically, the NDA definition of victim pertains only to misconduct constituting a service offence or a service offence allegation. It does not pertain to misconduct constituting a service infraction, alleged or otherwise. The rights set out in the DVR may first be accessed by a victim when an alleged service offence is being investigatedFootnote 12  and are available to victims during their interactions with the military justice system,Footnote 13  including when the charge is being prosecuted and when the offender is serving a punishment in service custody.Footnote 14    

1.2.11   If the DVR does apply, a victimFootnote 15  is to be provided with clear information about their DVR rightsFootnote 16  including what information they are entitled to receive, who is responsible for providing it and when it should be provided, as well as their right to request the appointment of a victim liaison officer.Footnote 17  The guide set out at Annex B may be used by a MJ Authority when providing information about DVR rights to a victim. The MJ Authority should also refer victims to the Victims and Survivors of Service Offences webpage, which includes information and resources concerning DVR rights as well as programs and services available. The MJ Authority should also discuss with a victim the possibility that a charge for a service offence may not be laid or the investigation may result in a service infraction charge, and in those instances the DVR would no longer apply. However, it should be explained that if the investigation results in a service infraction charge and the DVR no longer applies as a result, the person is entitled through QR&O and this Policy to receive certain information and protection as well as the opportunity to participate in a summary hearing. The guide set out at Annex C may be used by MJ Authorities to assist in providing these entitlements.

1.2.12   When assessing the applicability of the DVR in the pre-charge phase, there are key factors that the MJ Authority should consider. If one or more factors are present, the more likely a service offence is alleged and therefore the more likely the DVR is to apply. The factors include the following:

  1. The allegation may meet the elements of a service offence, whether those at NDA ss 73-129, or whether an offence punishable under the Criminal Code or any other Act of Parliament that can be charged as a service offence through NDA s 130, subject to s 70;
  2. The person against whom the allegation is made may have been in a position of trust or authority at the relevant time,Footnote 18  and in particular:
    • (1) The alleged misconduct may have involved a violation of that position of trust or authority; and/or
    • (2) The alleged misconduct may have been committed against a person in a position of subordination or vulnerability and that person is alleged to have suffered physical or emotional harm, property damage or economic loss as a result.
  3. The allegation may involve aggravating circumstances, including a negative operational impact; and/or
  4. The allegation may have negatively impacted the CAF or the wider local community.

Conduct of the investigation

1.2.13   While an investigation is being conducted, it is not yet known whether a charge will be laid and, if so, whether the charge will be for a service offence or a service infraction. As a result, all investigations will follow the same general practice. This practice includes, for example: administering a caution about the right to remain silent to the person alleged to have committed any service offence or service infraction; providing the right to counsel to the person alleged to have committed any service offence or service infraction; and using search warrants when appropriate. For more information on unit investigations the MJ Authority should consult the Resource Guide for Unit Disciplinary Investigations and Charge Laying (PDF – 1.38 MB, only accessible on the Defence Wide Area Network). The MJ Authority should consult their legal advisor with respect to any questions concerning the appropriate investigative practice. This practice will ensure that any evidence collected during the investigation is more likely to be admissible if the investigation ultimately leads to a service offence charge.

Investigating sexual misconduct

1.2.14   Further to the requirement to seek pre-investigation legal advice when a matter involves any person who may have had a service offence or service infraction committed against them or who is alleged to have suffered harm, property damage or economic loss as a result,Footnote 19  legal advice should be sought in any circumstance when a disciplinary investigation is to be conducted concerning an allegation of sexual misconduct, no matter how serious.

1.2.15   When a MJ Authority determines that an investigation is required with respect to an allegation of sexual misconduct,Footnote 20  the matter must be referred to appropriate law enforcement for a decision on investigatory jurisdiction. A unit disciplinary investigation may only be conducted once it has been determined that an investigation will not be conducted by civilian law enforcement and the MP have also declined to investigate.

1.2.16   If, during the course of a unit disciplinary investigation, misconduct that may constitute sexual misconduct is uncovered, it is highly recommended to seek legal advice even in circumstances where it is not explicitly requiredFootnote 21  in order to among other things, determine if the matter should be referred to a different investigative body and determine the applicability of the DVR.

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1.3 Laying a Charge

Service infraction or service offence

1.3.1   In order to lay a charge, a person authorized to do so must have a reasonable belief that a service offence or a service infraction has been committed.Footnote 22  There are two parts to this requirement. First, the person authorized to lay the charge must have an actual belief that the person to be charged has committed the alleged service offence or service infraction. Second, that belief must be reasonable – in other words, a reasonable person in the position of the charge layer who considers the same evidence would come to the conclusion that the person is probably guilty of the alleged service offence or probably committed the alleged service infraction.

1.3.2   In accordance with QR&O para 102.07(2) (Procedure for the Laying of a Charge) the charge layer must obtain pre-charge legal advice concerning the sufficiency of the evidence, whether or not in the circumstances a charge should be laid and the appropriate charge, if:

  1. The charge concerns a person against whom a service offence or a service infraction is alleged to have been committed or who is alleged to have suffered physical or emotional harm, property damage or economic loss as a result of the alleged commission of the offence or infraction; or
  2. The charge alleges the commission of a service offence.Footnote 23

1.3.3   The charge layer may seek legal advice at any time, including in the pre-charge phase, should any questions or concerns arise.

1.3.4   Before a charge can be laid, the charge layer must determine whether a service offence or a service infraction would be appropriate in the circumstances. This determination begins with the charge layer identifying whether the evidence gathered during the investigation establishes all of the essential elements of any applicable service offence or service infraction.

1.3.5   An allegation of the commission of a service offence means that the matter concerns a service offence as set out either at NDA ss 73-129, or at s 130, subject to s 70.

1.3.6   An allegation of the commission of a service infraction means that the matter concerns a service infraction as set out at QR&O articles 120.02 (Infractions in Relation to Property and Information), 120.03 (Infractions in Relation to Military Service) and/or 120.04 (Infractions in Relation to Drugs and Alcohol).

1.3.7   In some instances, the alleged misconduct will clearly concern a service offence because there is no service infraction that applies to the matter. In other instances, the matter may be less clear if both a service infraction and a service offence could apply. In these circumstances, pre-charge legal advice should be sought in order to receive advice relevant to the determination as to whether the alleged misconduct is most appropriately considered and dealt with as a service offence or service infraction. The key factors that the charge layer should consider when making this determination include the following:

  1. The seriousness and/or sensitivity of the matter. The consideration of the following factors in part includes an assessment of the impact and outcome of the alleged misconduct. In general, the more serious and/or sensitive the matter is, the more likely a service offence charge is most appropriate. The factors include an assessment of:
    • (1) The impact on any person alleged to have had a service offence or service infraction committed against them or alleged to have suffered physical or emotional harm, property damage or economic loss as a result. In assessing this impact, the charge layer should provide the person the opportunity to communicate their views of the impact the alleged misconduct has had on them. This person may share their views if they so desire, and they are entitled to communicate with the charge layer in a way that is most appropriate for them;
    • (2) Whether the person against whom the allegation is made may have been in a position of trust or authority at the relevant time,Footnote 24  and in particular whether:
      1. The alleged misconduct may have involved a violation of that position of trust or authority; and/or
      2. The alleged misconduct may have been committed against a person in a position of subordination or vulnerability and that person is alleged to have suffered physical or emotional harm, property damage or economic loss as a result.
    • (3) The significance of aggravating circumstances, including any negative operational impact; and/or
    • (4) The impact on the CAF or the wider local community.
  2. The additional circumstances surrounding the allegations. A consideration of the following factors may assist the charge layer in their assessment of the particular facts and context of each case:
    • (1) The complexity of the case. The more complex the case, the more likely that a service offence charge is appropriate. An assessment of complexity may include, without being limited to, a consideration of whether an allegation is made against more than one person, whether there are multiple persons alleged to have had misconduct committed against them or who have alleged to have suffered physical or emotional harm, property damage or economic loss as a result, and/or whether the investigation involved the execution of a warrant;
    • (2) The circumstances of the person the allegation is made against. This consideration may include the rank, years of service and the experience the person has had in their position;
    • (3) The prevalence of the alleged misconduct in the unit or wider military community;
    • (4) Whether the person against whom the allegation is made has a history of similar misconduct; and
    • (5) Whether the evidence alleges more than one charge, and these charges allege both a service infraction and a service offence.Footnote 25

1.3.8   Before laying a charge, the charge layer must also determine whether it is in the public interest to proceed with laying a charge. The following factors, in addition to any of the above factors set out at para 1.3.7, may assist in determining whether it is in the public interest to proceed with the laying of a charge:

  1. Whether in the circumstances, it would be in the best interest of the administration of military justice;
  2. Whether in the circumstances, the laying of the charge would be disproportionately harsh;
  3. The availability and appropriateness of alternative courses of action to laying a charge;
  4. The likely effect of laying or not laying the charge on public confidence in the military justice system; and
  5. The likely effect of laying or not laying the charge on discipline, efficiency and morale of the CAF.

1.3.9   A person tried in respect of a service offence cannot be charged with having committed a service infraction arising from the same set of facts.Footnote 26  Conversely, a person may face service offence charges and a Court Martial after a summary hearing has been conducted in respect of a service infraction arising from the same set of facts.Footnote 27  In the interest of justice, at the charge laying phase, a charge layer may not simultaneously lay a service offence and a service infraction charge against a person in relation to the same set of facts. For example, a member who does not attend at work at the correct time may not be simultaneously charged for both AWOL pursuant to NDA subs 90(1) and tardiness pursuant to QR&O para 120.03(f).

1.3.10   A charge is laid when the charge layer completes the relevant sections of the charge report.Footnote 28  The post charge procedure to be followed depends on whether a charge is laid for a service offence or a service infraction.

1.3.11   With regard to a service offence charge, the charge layer must refer the charge directly to the Director of Military Prosecutions (DMP)Footnote 29  by providing the DMP with the charge report and the complete report of investigation.Footnote 30  If DMP chooses to withdraw or to not prefer the charge and the unit is considering laying a service infraction charge in respect of the same set of facts, legal advice must be sought.

1.3.12   With regard to a service infraction charge, the charge layer must refer the charge to the Commanding Officer (CO) of the person alleged to have committed the infractionFootnote 31  by providing the CO with the charge report and the investigation file.Footnote 32

1.3.13   If a charge layer decides not to lay a charge, they must as soon as the circumstances permit notify, among others, the person alleged to have committed a service offence or a service infraction of this decision.Footnote 33  It is best practice to send this notification in writing. The charge layer is not required to provide reasons for the decision not to lay a charge, but may, in certain circumstances, exercise their discretion to do so.

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1.4 Mental health supports

1.4.1   MJ Authorities, including the person who received the complaint and the charge layer, should recognize the impact that the investigation and the laying of a charge may have on the mental health of those involved. Information on and referrals to mental health supports should be made available by the MJ Authorities throughout the investigation phase and beyond to those who are involved including, those alleged to have had a service offence or service infraction committed against them or alleged to have suffered physical or emotional harm, property damage or economic loss as a result, and those who are alleged to have committed a service infraction or a service offence. MJ Authorities should make it known that if any such individual wishes to seek out mental health supports, such supports are available, and those authorities should provide relevant mental health support contact information.

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Footnotes

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