Military Justice at the Unit Level Policy
Chapter 2 – Pre-hearing

Context

This chapter of the Military Justice at the Unit Level Policy is meant to provide guidance about the military justice system processes from the moment a charge is laid through to the decision to:

1. conduct a summary hearing (SH);
2. not proceed with a service infraction charge; or
3. refer a service infraction charge to another officer.

This chapter is to be read in conjunction with the provisions contained in Division 5 of Part III of the National Defence Act (NDA) (Summary Hearings) and Chapters 121 (Referral of Charges and Post Charge Procedure) and 122 (Summary Hearings) of the Queen’s Regulations and Orders for the Canadian Forces (QR&O).

2.1 Provision of information to person charged with having committed a service infraction

2.1.1   Any proceeding that carries the possibility that a decision will be made that could be adverse to a person's interests must be conducted in a fair manner.^{Footnote 34} There is no one definition for procedural fairness. However, it is generally accepted that in order to be fair in a legal sense, the common law rules of natural justice, freedom from bias on the part of the decision maker and meaningful and informed participation by the person in the proceedings, must be followed throughout the process.

2.1.2   The Commanding Officer (CO) of the person charged with having committed a service infraction (person charged) has the responsibility to ensure the person charged is provided with a copy of, or access to, any information that is to be relied on as evidence at the SH or that tends to show the person charged did not commit the service infraction.^{Footnote 35}   When an investigation is conducted by the military police (MP), the CO of the person charged will cause this information to be provided to the person charged. Any questions the CO of the person charged may have with respect to the provision of this information may be directed to the MP. This provision of information facilitates the informed participation in the proceeding by the person charged and must be made available to them in sufficient time to allow them to properly prepare for the SH.^{Footnote 36}

2.1.3   The requirement to provide information to the person charged is continuous. Any additional information that comes to light that will be relied on as evidence at a SH or that tends to show the person charged did not commit the service infraction must be provided. There is no corresponding duty on the part of the person charged to provide information pertaining to the subject matter of the charge.

2.1.4   The following are examples of the types of information relating to a service infraction charge that would need to be provided to a person charged:

1. A copy of any written statement made by the person charged;
2. A copy of any documentary evidence;
3. A copy of any written statement made by a witness;
4. A copy of any photographs, videos, sound clips, screenshots;
5. A copy of the Investigation Report; and/or
6. Where physical evidence exists, access to the physical evidence.

2.1.5   When providing copies of documents to the person charged, those documents must be handled appropriately in light of their security classification or designation. Similarly, should those documents contain the personal information of individuals other than the person charged, that personal information will need to be handled in a manner consistent with the requirements of the Privacy Act.^{Footnote 37} In this context, only the minimal amount of personal information that is required to fulfill the specific purpose may be disclosed.^{Footnote 38} The specific purpose of providing information to the person charged is to ensure they understand the charge and can properly prepare for the SH. Therefore, only the minimal amount of personal information relevant to that specific purpose may be disclosed. The types of personal information that could be redacted from relevant documents before they are disclosed to the person charged include, but are not limited to:

1. private family, financial or medical data related to the parties involved in the investigation;
2. the use of counseling services;
3. personal information about third parties;
4. personal identifiers such as social insurance numbers and service numbers; and
5. home addresses and phone numbers.^{Footnote 39}

2.1.6     The CO of the person charged is required to maintain a written record of the following: copies of all documents and other evidence the person charged was provided with or was given access to; who provided the copy or access; and when the copy or access was provided. The form set out at Appendix 1 (PDF - 117 KB) should be used for maintaining this written record. This written record must be appended to the charge report.

2.1.7   The provision of information to the person charged and a copy of the written record of disclosure should be provided in electronic format in all but exceptional cases, having regard to the nature of the information and to the exigencies of the service.

2.1.8   Questions with respect to the provision of information to the person charged should be directed to the unit legal officer.

2.2 Assisting Member

2.2.1   Every person charged has the opportunity to have an officer, or in exceptional circumstances, a non-commissioned member (NCM) above the rank of sergeant, appointed to assist them.^{Footnote 40} Exceptional circumstances may include when there is no eligible officer that could act due to the exigencies of the service.^{Footnote 41} The assisting member (AM) who is appointed may assist, advise and make representations on behalf of the person charged to the extent the person charged desires.^{Footnote 42}

2.2.2   After laying a charge for a service infraction, the charge layer must confirm with the person charged whether they want to have an AM appointed and, if so, whether they want to have a particular officer or NCM appointed.^{Footnote 43} When posing these questions, the charge layer must explain the role of the AM to the person charged. The explanation should provide enough information for the person charged to make a reasonably informed decision with respect to the appointment of the AM.

2.2.3   The officer or NCM requested by the person charged to act as an AM must have successfully completed the Military Justice – Unit Level Course (MJUL Course) within the last four years.^{Footnote 44} If the person requested to act as an AM has not successfully completed the MJUL Course at the time they are requested to act as an AM, they should be provided sufficient time to complete it before acting as an AM. If this is not possible, the person may still act as an AM provided the person charged has been informed of and accepts their lack of training and certification. The AM should also be provided with sufficient time, in light of their other duties, to adequately prepare for and carry out their responsibilities as an AM.

2.2.4   If an AM is requested, the charge layer must indicate this in Part 2 of the charge report. If a specific person is requested to act as the AM, the charge layer must also indicate this in Part 2 of the charge report. In accordance with QR&O article (art) 121.02 (Assistance to Person Charged with a Service Infraction), the CO of the person charged must appoint the person requested as the AM if the exigencies of the service permit and the person requested is willing to act as the AM.^{Footnote 45} In the event the person requested to act as the AM does not have the same CO as the person charged, the CO of the person charged must confirm with the requested person’s CO that QR&O subparagraph (subpara) 121.02(2)(a) is met. If an AM is requested, either specifically named or otherwise, they must be appointed within 3 days of receipt of the charge report by the CO of the person charged if the person charged is regular force and within 7 days if the person charged is a member of a reserve unit. Once appointed, the name and rank of the AM must be recorded in Part 3 of the service infraction charge report.

2.2.5   In the event a person requested does not wish to act as an AM, or an AM no longer wishes to act, they may decline or withdraw, as the case may be, without an obligation to provide reasons. If the person charged wants a different AM, the CO of the person charged will consider the request. While the QR&O do not provide the person charged with an explicit ability to request to have their AM replaced, should the opportunity to make such a request arise, the CO of the person charged, in accordance with QR&O art 101.04 (Cases Not Provided for in QR&O) and in the interests of fairness, will consider the request and, if appropriate in the circumstances, appoint a new AM.

Responsibilities

2.2.6   An AM does not act as legal counsel for the person charged. The role of the AM is to assist, advise and make representations throughout the proceedings and during any review, to the extent that the person charged desires.^{Footnote 46} This involvement by the AM may include assisting with preliminary matters such as the identification of relevant witnesses and evidence and arranging to have such witnesses and evidence available at the SH. Also, the AM may help the person charged prepare for the SH, and may assist them by presenting evidence, questioning witnesses, and making representations on their behalf both at the SH as well as in relation to a review.

2.2.7   The AM should inform the person charged that should the person charged require or wish to seek out mental health support, such support is available, and the AM should provide the person charged with relevant mental health support contact information.

Confidentiality of communication

2.2.8   The professional duties and responsibilities that legal advisors have to protect the information that their clients share with them in confidence do not apply to AMs. However, given the harm that can be caused to the integrity of the AM's role and in turn the effectiveness of the SH process, the communications between an AM and the person charged should be kept confidential. In any case where an AM is uncertain as to whether these communications should be disclosed, including being requested to disclose these communications, they should seek legal advice.

2.3 Legal counsel

Service infraction charge

2.3.1   A person charged with having committed a service infraction is not entitled to be represented by legal counsel appointed by the Director of Defence Counsel Services (DDCS), but they, or their AM on their behalf, are entitled to legal advice of a general nature to assist on matters relating to a SH.^{Footnote 47} The officer conducting a summary hearing (OCSH) has the discretion to permit a person charged with having committed a service infraction, upon request, to be represented by civilian legal counsel at their own expense. The OCSH, when addressing such a request, should consider at least the following:  

1. the nature of the infraction;
2. the interests of the person charged with having committed a service infraction; and
3. the exigencies of the service.

If the OCSH is of the opinion the person charged with having committed a service infraction should be granted permission to be represented by legal counsel, the OCSH should further consider whether the matter may more appropriately be treated as a service offence allegation.

Service offence charge

2.3.2   When the charge layer provides notification of the charge to the person charged with a service offence, in accordance with QR&O subpara 102.10(2)(c) (Notice of Decision to Lay Charges) the charge layer must confirm with the person charged with a service offence whether they want to be represented by legal counsel, and if so, whether they wish to be represented by legal counsel appointed by DDCS or retained at the person’s own expense. These preferences must be recorded at Part 2 of the service offence charge report.

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2.4 Preliminary determinations (QR&O article 121.07)

2.4.1 The CO of the person charged, before complying with the obligation under NDA section (s) 162.95 (Commanding officer’s obligation) to:

1. conduct a SH;
2. decide not to proceed; or
3. refer the charge,

must make a determination with respect to the following three matters:

1. the official language of the proceeding;
2. the limitation period; and
3. whether legal advice is mandatory.

Each of these determinations are discussed in further detail below. Similarly, the officer to whom a charge is subsequently referred, before complying with the obligation under NDA s 163.2 (Obligation after referral), must make a determination with respect to the official language of the proceeding and the limitation period.^{Footnote 48}

Official language

2.4.2   When the charge layer provides notification of the charge to the person charged with either a service offence or service infraction, the charge layer must ask the person charged whether they would like the proceeding to be conducted in either English or French.^{Footnote 49} The charge layer must mark the official language selection in the appropriate space on the relevant charge report. An OCSH must be able to understand the official language in which the hearing is to be conducted without the assistance of an interpreter.^{Footnote 50}

2.4.3   If the CO or any officer to whom a charge is subsequently referred determines that they do not have the required language ability, the officer must refer the charge to another CO, superior commander or delegated officer who holds the necessary language ability.

2.4.4   Witnesses may testify in their preferred official language, and if it is not the official language chosen for the hearing, an interpreter must be provided. The OCSH must ensure that the interpreter is competent to translate the witness’ testimony into the language chosen for the proceedings. The person charged, however, may consent to dispense with the interpreter if they understand the language the witness will be using. The OCSH is not required to dispense with the interpreter in such circumstances, and should not do so despite the consent of the person charged where it is considered to not be in the interest of justice to do so.

Limitation period

2.4.5   The CO of the person charged or the officer to whom the charge has been subsequently referred, as the case may be, must determine whether they are precluded from conducting a SH due to the expiration of the limitation period.^{Footnote 51} A SH must be commenced within six months after the day on which the service infraction is alleged to have been committed.^{Footnote 52} The commencement of a SH occurs when the OCSH has taken an oath or solemn affirmation in accordance with QR&O art 122.06 (Oath or Solemn Affirmation) and has caused the charges to be read aloud (paragraph (para) 3.2.1).

2.4.6   In the event a limitation period has passed, there is no jurisdiction to hear the matter, and as a result, the charge cannot be proceeded with. If the charge cannot be proceeded with by reason of the limitation period, the CO of the person charged or the officer to whom the charge was subsequently referred, as the case may be, must communicate this to the persons listed at QR&O art 121.09 (Decision Not to Proceed) and complete Part 5 of the service infraction charge report.

Legal advice

2.4.7   Legal advice must be sought by the CO of the person charged if the charge alleges an infraction has been committed against a person or alleges a person has suffered physical or emotional harm, property damage or economic loss as a result.^{Footnote 53} It is the responsibility of the CO of the person charged to determine whether legal advice must be sought, and if so, to seek that legal advice and to forward that legal advice on to any officer to whom a charge is subsequently referred.^{Footnote 54}

2.4.8   Should the officer^{Footnote 55} who receives the legal advice required under QR&O para 121.07(b) (Preliminary Questions) either directly or as a result of a subsequent referral^{Footnote 56} decide to not act on that advice, the officer must provide their decision and reasons in writing to both the next superior officer to whom they are responsible in matters of discipline and to the unit legal officer who provided the advice.

2.5 Decision to conduct a summary hearing/not proceed/refer

2.5.1   Subject to the completion of the preliminary determinations required under QR&O art 121.07 (Preliminary Determinations) as set out above at s 2.4, the CO of the person charged must comply with NDA s 162.95 and the officer to whom the charge was subsequently referred must comply with NDA s 163.2. Complying with NDA s 162.95 or NDA s 163.2 as the case may be, requires the relevant officer, after taking into account the jurisdictional conditions set out at NDA subsection (subs) 163(1) (Jurisdiction) as well as the additional jurisdictional considerations (para 2.6.6, below), to: conduct a SH in relation to the charge; decide to not proceed with the charge; or, refer the charge.

Conduct a summary hearing – NDA subsection 162.95(a)/163.2(a)

2.5.2   Upon a decision to conduct a SH, the OCSH must choose a date, time and location for the hearing. The hearing may occur either inside or outside of Canada. The determination of the location of the hearing will depend on a number of factors, including:

1. The availability and location of the person charged, the witnesses and any person against whom 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 service infraction;
2. Location of the incident that gave rise to the charge; and
3. The operational posture of the unit.

2.5.3   The discretion to choose a location will be exercised based upon a balancing of convenience and the disciplinary interests of the unit, bearing in mind the principles of fairness, and the six month limitation period.

Decision not to proceed with charge – NDA subsection 162.95(b)/163.2(b)

2.5.4   A decision not to proceed is a discretionary one, resting with the officer to whom the charge has been referred.^{Footnote 57} One of the circumstances in which a decision not to proceed would be made is when it is determined the conditions set out at NDA paragraphs (paras) 163(1)(c)-(d) (para 2.6.2, below) are not satisfied.

2.5.5   If a decision is made to not proceed, no SH is held. The officer to whom the charge has been referred must complete the relevant sections in Part 5 of the charge report. The officer must communicate the decision not to proceed and the reasons why in writing as soon as circumstances permit to the persons listed at QR&O art 121.09.

2.5.6   A decision to not proceed does not preclude conducting a SH of the matter at a later date, as long as the six month limitation period is respected.^{Footnote 58}

Decision to refer the charge to another officer – NDA subsection 162.95(c)/163.2(c)

2.5.7   Should the relevant officer determine that while a SH should be held in respect of the matter, they will not conduct the SH, they are obliged to make a subsequent referral of the charge to another CO, superior commander or delegated officer. Delegated officers who decide to refer the charge must refer the charge back to their delegating CO who will then make the determination as to whom the charge will subsequently be referred.

2.5.8   A subsequent referral may occur in circumstances including:

1. when the jurisdictional conditions set out at NDA paras 163(1)(a)-(b) are not satisfied;
2. when jurisdiction is lost at another time during the SH process; or
3. when one of the prohibitions on conducting a SH set out at NDA subs 163(2) (Prohibition on conducting hearing) apply.

A CO prohibited from conducting a SH as a result of one of the prohibitions in NDA subs 163(2) cannot refer the charge to a delegated officer.^{Footnote 59}

2.6 Jurisdiction/ability to conduct a summary hearing

2.6.1   Within the context of a SH, the term jurisdiction refers to the legal authority to conduct the SH and make a decision. The CO of the person charged or the officer to whom a charge is subsequently referred, as the case may be, must take jurisdictional considerations into account when complying with NDA s 162.95 or NDA s 163.2. Complying with NDA sections 162.95/163.2 requires the relevant officer to: conduct a SH in relation to the charge; decide to not proceed with the charge; or, refer the charge. The jurisdictional considerations to take into account are set out below at para 2.6.2 (concerning NDA subs 163(1)) and at para 2.6.6 (additional jurisdictional considerations).

The jurisdictional conditions set out at NDA subsection 163(1)

2.6.2   The conditions set out at NDA subs 163(1) that must be satisfied in order for the relevant officer to have the jurisdiction to conduct the SH are:

1. The person charged is an officer who is at least one rank below the officer to whom the charge has been referred or is an NCM;
2. The powers of the officer to whom the charge has been referred to impose the sanction are adequate having regard to the gravity of the facts that gave rise to the charge;
3. There are no reasonable grounds to believe that the person charged is unable on account of mental disorder to understand the nature, object or possible consequences of the proceedings;^{Footnote 60} and
4. Having regard to the interests of discipline, efficiency and morale of the CAF, it would be appropriate to conduct the hearing.

2.6.3   The determination as to whether it would be appropriate to conduct the SH in accordance with NDA para 163(1)(d) (as set out above) requires the exercise of discretion on the part of the relevant officer. For the purposes of guiding this discretion as to whether it would be appropriate to conduct the SH, having regard to the interests of discipline, efficiency and moral of the CAF, the following considerations may be taken into account, including whether:

1. The matter should proceed by way of a service offence charge;
2. There are reasonable grounds to believe the person charged was suffering from a mental disorder at the time of the alleged infraction;^{Footnote 61} and
3. It is in the public interest to proceed with a SH.

2.6.4   Taking into account whether it is in the public interest to proceed may include a number of different considerations, including without being limited to:

1. The level of triviality of the alleged infraction;
2. Whether there are significant mitigating or aggravating factors;
3. The background of the person charged and any extraordinary personal circumstances;
4. The age, or physical or mental infirmity of the person charged;
5. The alleged degree of responsibly of the person charged for the infraction;
6. The degree of staleness of the alleged infraction;
7. Whether the consequences of proceeding with the charge are disproportionately harsh, considering how other persons implicated in the infraction or in previous similar cases have been or are likely to be dealt with; and
8. The prevalence of the alleged infraction in the unit or the military community and the need for discipline to be seen to be done.

2.6.5   If the relevant officer has any questions concerning the determination as to whether it would be appropriate to conduct the SH having regard to the interests of discipline, efficiency and morale of the CAF, including taking into account the public interest, a unit legal officer should be consulted.

Additional jurisdictional considerations

2.6.6   An officer’s lack of ability to conduct the SH, including a lack of jurisdiction, may result from, but is not limited to the following:

1. The expiration of the six month limitation period;^{Footnote 62} 
2. The inability of the officer to whom the charge was referred to understand the official language in which the hearing is to be conducted without the assistance of an interpreter;^{Footnote 63} 
3. A prohibition set out at NDA subs 163(2) (Prohibition on conducting hearing) is applicable;^{Footnote 64} 
4. Partiality/bias or the appearance thereof;
5. The relevant officer does not have valid certification of qualification from the Judge Advocate General, pursuant to QR&O art 101.07 (Certification of Qualification to Administer the Code of Service Discipline);^{Footnote 65} and
6. The person charged has been previously tried for a service offence arising from the same facts on which the charged service infraction is based.^{Footnote 66}

2.6.7   The CO of the person charged or the officer to whom a charge is subsequently referred, as the case may be, must continue to ensure they have jurisdiction throughout the SH process. When the relevant officer does not have the jurisdiction to conduct a SH, they do not have the legal authority to proceed. A loss of jurisdiction will result in either no SH being held, or the charge being referred, depending on the circumstances. If no SH is to be held, the relevant officer must communicate this and the reason why it is not to be held to the persons listed at QR&O art 121.09 (Decision not to proceed).

2.6.8   A person charged may, at any point after they receive notice of the decision to conduct the hearing, including during the SH itself, request that the OCSH withdraw from the proceeding due to a lack of jurisdiction.^{Footnote 67} When considering this request, the OCSH must consider any representations from the person charged and provide the person with reasons for the decision reached.^{Footnote 68} Prior to receiving any evidence concerning whether or not the person charged committed the service infraction, the OCSH must ask whether the person charged wishes to make representations with respect to the officer’s lack of ability to conduct the SH, including any lack of jurisdiction.^{Footnote 69}

2.6.9   The relevant officer is encouraged to contact their unit legal officer at any time if their lack of ability to conduct a SH, including a lack of jurisdiction, is either raised by the person charged, or on their own initiative. In the event they choose to withdraw from conducting a SH, they should contact their unit legal officer.

2.7 Adjournments

2.7.1   Either the person charged, or the AM on their behalf, can request an adjournment of a SH at any time. Prior to receiving any evidence at the hearing, the OCSH must ask the person charged whether they require more time to prepare for the hearing. The OCSH has the obligation to grant any reasonable adjournment requested for that purpose.^{Footnote 70} Reasonable adjournments ensure a proceeding is procedurally fair by allowing a person charged to meaningfully participate in the hearing process. When considering what would be a reasonable adjournment, the following factors should be considered:

1. The amount of time that has passed since the person charged received a copy of the service infraction charge report;^{Footnote 71} 
2. The amount of time that has passed since the person charged received a copy of, or was given access to, all the information referred to in QR&O art 121.03 (Provision of Information);
3. The number of charges;
4. The number of witnesses being called;
5. The availability of the witnesses being called for the person charged;
6. The amount of evidence to be considered;
7. Whether the adjournment would cause unreasonable delay of the proceedings; and
8. Whether the request for the adjournment was made in good faith.

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2.8 Attendance of witnesses

2.8.1   The OCSH must facilitate the attendance of the witnesses. This includes facilitating the attendance of the witnesses requested by the person charged. However, the person charged is under no obligation to disclose to the OCSH who they may call as a witness during the SH. In light of the requirement to conduct a fair hearing, all efforts should be made to accommodate the request of the person charged. The OCSH may order the appearance of any witness subject to the Code of Service Discipline and request the appearance of any other witness.^{Footnote 72} However, the OCSH is not obliged to arrange for the attendance of witnesses where the officer believes the request by the person charged is frivolous or vexatious,^{Footnote 73} or where the attendance of a witness cannot be reasonably effected.

2.8.2   Witnesses may give evidence at the hearing by telephone or other electronic means so long as the identity of the witness can reasonably be confirmed and the witness may be properly heard and questioned by the OCSH and the person charged or their AM. Videoconference is preferable to attendance by telephone.

2.8.3   Questions with respect to witnesses, including arranging their attendance and appearance at the SH, should be directed to the unit legal officer.

2.9 Attendance of the person charged

2.9.1   The person charged must attend their SH, but they may do so by any means permitting simultaneous visual and oral communication. The attendance of the person charged is an essential element of procedural fairness. It allows for meaningful participation or awareness as well as the opportunity to make representations.

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2.10 Bias

2.10.1   It is essential for ensuring procedural fairness that the SH be conducted in an impartial manner by an impartial officer. The OCSH must be impartial and must be seen to be impartial. Impartiality in the context of a SH means the OCSH is not only unbiased but there is also no reasonable apprehension of bias. When confirming that they are not precluded from acting on the ground of bias, the officer to whom the charge was referred or the OCSH will consider the following test:

2.10.2   The test for bias is not only whether an actual bias exists, but whether a reasonably well informed person, viewing the situation, would think that the decision-maker is likely to make a decision that is not entirely based on the admissible evidence. In other words, would “… a reasonably well-informed person, … conclude that there is a reasonable apprehension of bias”.^{Footnote 75}

2.10.3   An apprehension of bias on the part of the officer to whom the charge was referred or the OCSH could arise from a number of circumstances, including when the officer to whom the charge was referred or the OCSH has:

1. A close relationship with the person charged or with a witness who is to give evidence at the hearing;
2. Unfavorable feelings towards the person charged or a witness who is to give evidence at the hearing;
3. A direct personal interest in the outcome; or
4. Expressed a preference towards a certain outcome.

2.10.4   Should the officer to whom the charge was referred or the OCSH have any questions regarding their impartiality or whether their circumstances could raise an apprehension of bias, they are strongly encouraged to obtain legal advice from their unit legal officer.