Post-Charge Review

DMP Policy Directive
Directive #: 003/00
Date: 1 March 2000
Updated: 1 September 2018
Cross Reference: Witness Interviews, Sexual Misconduct Offences, Pre-Charge Screening

Subject: Post-Charge Review

Application of Policy

1. This policy applies when a referral authority has referred an application for disposal to the Director of Military Prosecutions (DMP) pursuant to Queen’s Regulations and Orders for the Canadian Forces (QR&O) article 109.05 and a Prosecutor¹ has been assigned to conduct the post-charge review of the application.

Introduction

2. Deciding whether to prefer charges to court martial is among the most important steps in the prosecution process. Considerable care must be taken in each case to ensure that an appropriate decision is made. An ill-considered or hasty decision to prefer or not to prefer may undermine confidence in the military justice system. It is also important to ensure a case is heard in the most appropriate justice system- military or civilian.

3. Fairness and consistency are important objectives in the court martial process. However, fairness does not preclude firmness in prosecuting, and consistency does not mean rigidity in decision-making. The criteria for the exercise of the discretion to prosecute cannot be reduced to something akin to a mathematical formula; indeed, it would be undesirable to attempt to do so. The breadth of factors to be considered in exercising this discretion clearly demonstrates the need to apply general principles to individual cases and to exercise good judgment in so doing.

4. Sexual misconduct offences are amongst the most serious and complex cases prosecuted by the Canadian Military Prosecutions Service (CMPS). As a result of the personal and institutional prejudice that can result from sexual misconduct in the CAF, the vulnerability of the victims and the unique evidentiary issues that may arise, certain military prosecutors are more specifically trained in this field. Post-charge review for serious sexual misconduct offences will be conducted by trained military prosecutors, under the supervision of the Deputy Director of Military Prosecutions (DDMP) - Sexual Misconduct Action Response Team (SMART).

Statement of Policy

5. When conducting a post-charge review, Prosecutors must conduct a two-stage analysis to determine whether or not to prefer a matter for trial by court martial. The Prosecutor must consider whether there is a reasonable prospect of conviction should the matter proceed to trial by court martial and whether the public interest requires that a prosecution be pursued.²

Practice/Procedure

6. Often when a Prosecutor is called upon to conduct a post-charge review the file may be less complete as compared to the file at the time of court martial. Although a Prosecutor will require sufficient information to allow them to conduct a proper analysis at the post-charge review stage, it is not always the case that the Prosecutor should require a complete file before conducting a post-charge review. When conducting a post- charge review, Prosecutors are not expected to achieve a standard of perfection. Such reviews are designed to determine in an efficient and timely manner whether a matter should proceed to court martial and are not meant to require a complete analysis of the evidence to the same standard that is required for complete trial preparation. Therefore, Prosecutors should confidently make the necessary decisions at the post-charge stage based on the available information provided by the investigator. The prosecutors shall consult, as required, with the appropriate DDMP.

7. Upon receipt of a referral from a referral authority³ the regional DDMP shall conduct an initial review of the file to familiarize him or herself with the size and complexity of the file prior to assigning it to a Prosecutor. At this stage, where the regional DDMP concludes that a particular file will result in a non-preferral decision, in the interests of efficiency, he or she may complete the necessary documentation to dispose of the file without assigning it to a Prosecutor.

8. Should the regional DDMP not dispose of the file immediately, he or she shall request disclosure from the applicable investigative agency and assign a Prosecutor to conduct the post-charge review.

9. All assignments of a file for post-charge review shall be done in writing and sent to the Prosecutor responsible for conducting the post-charge review with copies to the referral authority, the Commanding Officer of the accused, the Director of Defence Counsel Services (DDCS), the applicable Assistant Judge Advocate General (AJAG) and the Deputy Judge Advocate General/Regional Services (DJAG/RS). Where possible, the Prosecutor who conducted the pre-charge screening will be responsible for conducting the post-charge review. Except in special circumstances, the Prosecutor shall be from the same region as the accused.

10. The assignment of files to a Prosecutor at the post-charge stage by the regional DDMPs shall be done as expeditiously as possible.

Assignment of Sexual Misconduct Files

11. Where a regional DDMP receives a file which contains an allegation of sexual misconduct, he or she shall determine whether the allegation is one of serious sexual misconduct. Where required, the regional DDMP shall consult with the DDMP for the Sexual Misconduct Action Response Team (SMART) when making such a determination.

12. Where the file contains an allegation of serious sexual misconduct, the regional DDMP shall assign the file to a Prosecutor in consultation with DDMP SMART.

13. In all cases involving an allegation of serious sexual misconduct, the regional DDMP shall ensure that DDMP SMART is assigned final disposition authority. In all other cases of sexual misconduct, the regional DDMP shall ensure that DDMP SMART is aware of the file.

Action Taken by Prosecutor

14. Upon receipt of the assignment letter from the regional DDMP, the Prosecutor shall ensure that he or she has received complete disclosure from the applicable investigative agency.

15. Once a Prosecutor has ensured that he or she has received complete disclosure he or she shall review the disclosure material from the investigator and determine whether a charge or charges should be preferred or not or if it should be referred to an officer who has jurisdiction to try the accused person by summary trial where the Prosecutor is satisfied that a charge should not be proceeded with by court martial.

16. Where possible, the Prosecutor shall prepare the disclosure package to be sent to defence counsel contemporaneously with the decision on whether or not to prefer charges in order that defence counsel has an opportunity to review the file with his or her client in a timely fashion. Where the Prosecutor is unable to send the disclosure contemporaneously with the decision on whether or not to prefer charges, he or she shall notify his or her regional DDMP informing them as to why disclosure will be delayed.

17. In all cases, the necessary vetting of the disclosure materials shall commence immediately upon receipt in order to ensure that all relevant material is provided to the accused as soon as possible.

18. Where the Prosecutor has final disposition authority their decision shall be recorded in the form set out in Annex A (Record of Decision). Where the Prosecutor believes that a more detailed memorandum is required due to the complexity and/or seriousness of the charge(s), he or she shall complete Annex A and attach the detailed memorandum ensuring that the detailed memorandum is designated as protected by prosecutorial privilege.

19. Where the Prosecutor does not have final disposition authority, he or she shall make their recommendation regarding disposition to the applicable authority within the applicable timeframe. Once a decision is taken by the proper authority, that person must then ensure that they record their decision in the form set out at Annex A and that the completed form is placed in the Prosecution Case File.

20. Prosecutors should also ensure that the accused has been provided with an opportunity to retain legal counsel, either through Defence Counsel Services or at his or her own expense. If this has not yet been done, the Prosecutor shall contact the unit legal advisor to ensure that this requirement has been met.

21. Although a Prosecutor is only required to consider whether there is a reasonable prospect of conviction and whether the public interest requires that a prosecution be pursued at the post-charge stage, he or she should begin to review the file and determine whether any issues may arise as a part of early trial preparation that may affect his or her analysis at the post-charge stage. Annex B sets out those factors that may be considered by a Prosecutor and is meant to serve as a guide for Prosecutors throughout the trial preparation process. While reviewing the file, the Prosecutor should also turn his or her mind to the question of jurisdiction.

Re-assignment of File

22. Where a file is to be re-assigned from one Prosecutor to another, the regional DDMP shall assign a new Prosecutor in writing informing the referral authority, the Commanding Officer of the accused, the DDCS, the applicable AJAG, the DJAG/RS and the Court Martial Administrator of the re-assignment.

23. Once a new Prosecutor has been assigned to the file, he or she shall review the file to determine whether there is a reasonable prospect of conviction should the matter proceed to trial by court martial and whether the public interest requires that a prosecution be pursued.

24. In all cases, the new Prosecutor shall document his or her decision by completing the Record of Decision in Annex A regardless of whether he or she agrees or disagrees with the decision of the original Prosecutor.

Jurisdiction

25. In order to determine whether charges should proceed in the military or civilian justice system, the Prosecutor may communicate directly with civilian authorities having concurrent jurisdiction, either before or after a charge is laid. The Prosecutor shall consult with the appropriate DDMP prior to any such communication

26. Determining which jurisdiction should prosecute a case will require careful consideration of all relevant factors including:

1. the degree of military interest in the case, as reflected by factors such as the place where the offence was alleged to occur, or whether the accused was on duty at the time of the alleged offence;
2. the degree of civilian community interest in the case;
3. the views of the victim;⁴
4. whether the accused, the victim, or both are members of the CF;
5. whether the matter was investigated by military or civilian personnel;
6. the views of the investigative agency;
7. geographic considerations such as the current location of necessary witnesses;
8. jurisdictional considerations where, for example, the offence was allegedly committed outside Canada;
9. post-conviction consequences; and
10. the views of the Commanding Officer, as expressed through the unit legal advisor, with respect to unit disciplinary interests.

27. Where consensus is not achieved by consultation between the Prosecutor, civilian authorities and unit legal advisor, the Prosecutor shall engage the appropriate DDMP. The DDMP will continue the consultation process to resolve the matter.

The Views of the Victim Regarding Jurisdiction

28. In providing legal advice on whether or not a charge should be laid and the jurisdiction in which any charge should heard, it is important for the Prosecutor to take into account the views of the victim of the alleged offence, particularly in cases where the alleged offence involves the violation of the victim’s personal integrity (e.g. physical, sexual, emotional). Certain concerns expressed by the victim may be better addressed by proceeding in the military justice system but others may be better addressed by asking civilian authorities to exercise jurisdiction.

29. The Prosecutor must take into account the victim’s views on issues such as:

1. urgency of resolution;
2. safety concerns about possible reprisals from the suspect or others;
3. concerns relating to conditions imposed on the suspect following release from custody;⁵
4. access to victim support services;
5. physical or mental trauma resulting from the alleged offence;
6. physical or mental trauma resulting from participation in court proceedings; and
7. the needs of any children or other dependants affected by the alleged offence.

30. If the Prosecutor determines that the information in the investigation report does not adequately indicate the views of the victim as described above, the Prosecutor shall follow up with the investigator and request additional information.

31. The Prosecutor shall consult the appropriate DDMP before a final decision is taken in any case.

32. Once jurisdiction is decided, the victim shall be informed of the decision and the associated reasoning.

Reasonable Prospect of Conviction

33. The threshold test of “reasonable prospect of conviction” is objective. This standard is higher than a “prima facie” case that merely requires that there is evidence whereby a reasonable jury, properly instructed, could convict. On the other hand, the standard does not require “a probability of conviction”, that is, a conclusion that a conviction is more likely than not.⁶

34. A prosecution is not legally sustainable unless there is evidence to support the accusation that a person subject to the Code of Service Discipline has committed a service offence. In the assessment of the evidence, an actual and reasonable belief that the offence has been committed is necessary but not sufficient. The evidence must be evaluated to determine how strong the case is likely to be when presented at court martial and should be made on the assumption that the trier of fact will act impartially and according to law. This will require a proper assessment on whether all of the elements of the alleged offence have been met, and may include the relevancy and admissibility of evidence implicating the accused, as well as the competence and objective credibility of witnesses.⁷

35. Prosecutors are required to consider any defences that are plainly open to or have been indicated by the accused and any other factors that could affect the reasonable prospect of a conviction, for example, the existence of a potential Charter violation that may lead to the exclusion of evidence.

36. The role of the Prosecutor in assessing the reasonable prospect of conviction determination is quasi-judicial in nature. The assessment of the evidence requires a fair evaluation of evidence in all the circumstances of the case. Prosecutors must guard against a perception or view of the case simply adopted from the views or enthusiasm of others. As a case develops and changes during the prosecution process the Prosecutor must guard and maintain the independence and integrity required to fairly reassess the case as it evolves.

37. In addition to the task of pressing a case vigorously and firmly, the Prosecutor must ensure that every prosecution is conducted fairly. A Prosecutor is not obliged to believe without reservation everything that he or she has been told by each prospective prosecution witness. As a matter of fairness, any reservation with respect to material evidence ought to be investigated and addressed in the context of measuring the reasonable prospect of conviction.

Public Interest Criteria

38. Once satisfied that there is a reasonable prospect of conviction to justify the continuation of a prosecution, the Prosecutor must then consider whether, in light of the provable facts and all surrounding circumstances, the public interest⁸ requires a prosecution to be pursued. It is not the case that all offences for which there is sufficient evidence must be prosecuted.

39. The criteria that may properly be taken into account when deciding whether the public interest requires a prosecution will vary from case to case. Generally, the more serious the offence, the more likely that public interest will require that a prosecution be pursued. The resources available for prosecution should not be used to pursue inappropriate cases, however the costs associated with the conduct of a court martial will never be the determining factor in deciding whether or not to proceed in a case.

40. Public interest criteria that may arise on the facts of a particular case include:

1. the effect on the maintenance of good order and discipline in the CAF, including the likely impact, if any, on military operations;⁹
2. the seriousness or triviality of the alleged offence;
3. the views of the victim and any evident impact a decision to prefer a charge may have on him or her;
4. significant mitigating or aggravating circumstances;
5. the accused’s background and any extraordinary personal circumstances of the accused;
6. the degree of staleness of the alleged offence;
7. the accused’s alleged degree of responsibility for the offence;
8. the likely effect on public confidence in military discipline or the administration of military justice;
9. whether preferring a charge would be perceived as counter-productive, for example, by bringing the administration of justice into disrepute;
10. the availability and appropriateness of alternatives to preferring a charge;
11. the prevalence of the alleged offence in the unit or military community at large and the need for general and specific deterrence;
12. whether the consequences of preferring a charge would be disproportionately harsh or oppressive, especially considering how other persons implicated in the offence or previous similar cases have been or likely will be dealt with; and
13. whether the alleged offence is of considerable public concern.

41. The application of these factors set out above, other relevant factors, and the weight to be given to each will depend on the circumstances of each case.

42. When a referral authority makes an application for disposal to the DMP he or she will usually express his or her views on public interest based on input from the Commanding Officer of the accused. The Commanding Officer of the accused will normally be in the best position to determine how the unit’s disciplinary interests may best be served, and the referral authority will usually be in the best position to determine the broader interests of his or her command. In the event that the accused and victim do not have the same Commanding Officer, the victim’s commanding officer should be consulted as well.

43. While the views of service authorities and the victim are to be considered by the Prosecutor, the ultimate decision to proceed with a prosecution is made by the Prosecutor. In the proper exercise of prosecutorial discretion, a Prosecutor may deem it necessary to dispose of a charge or charges in a manner inconsistent with the views of military authorities as expressed in accordance with QR&O article 109.03(2)(c) or 109.05(1).

44. Factors that should not be taken in account when determining whether to lay a charge include:

1. the rank of the accused;
2. reasoning which constitutes a prohibited ground of discrimination under section 3 of the Canadian Human Rights Act;
3. the Prosecutor’s personal feelings about the accused or the victim;
4. possible or perceived political advantage or disadvantage to the CAF, the Department of National Defence, the government or any political group or party;
5. the possible effect of the decision on the personal or professional circumstances of those responsible for the investigation or any other member of the CAF or the Department of National Defence.

Final Disposition by the Prosecutor¹⁰

45. According to the National Defence Act the DMP is responsible for the preferring of all charges to be tried by court martial and for the conduct of all prosecutions at court martial. Although the DMP, the regional DDMPs and DDMP SMART retain authority to exercise prosecutorial discretion in the disposition of certain cases, in the majority of cases the Prosecutor will be responsible for the exercise of such discretion.

46. In respect of the final disposition the DMP shall provide final approval in cases involving:

1. Murder, manslaughter or other fatality;
2. Operational offences having an impact upon other than CAF members;
3. An offence under sections 280 to 283 of the Criminal Code; and
4. A serious or sensitive matter that has strategic or national importance.

47. Except as otherwise provided in this Policy Directive, the regional DDMP shall provide final approval in cases involving:

1. Offences under any Act of Parliament for which the convicted person may be subject to imprisonment for life except for charges under sections 83, 88 and 98 of the National Defence Act;
2. Offences that require the consent of the Attorney General before proceedings may be commenced;
3. Offences where there is a minimum punishment under the Criminal Code; and
4. Torture.

48. The DDMP SMART shall provide final approval in cases involving serious sexual misconduct offences.

49. Except if delegated to the Prosecutor by the regional DDMP, the final disposition in the following matters shall be exercised by the regional DDMP:

1. Weapons offences;
2. Obstruction of Justice offences;
3. Operational offences;
4. Offences under the Controlled Drug and Substances Act, other than simple possession; and
5. Fraud or theft in excess of $5000.00.

50. Where the Prosecutor does not have final disposition of a matter, he or she shall provide a written recommendation in that respect and shall submit it to the appropriate DDMP or the DMP.

Preferral/Non-Preferral of Charge

51. When the Prosecutor prefers a charge he or she shall inform the referral authority, the Commanding Officer of the accused, the investigator, the DDCS, the applicable AJAG, the DJAG/RS, the Judge Advocate General (JAG) via the Deputy Judge Advocate General/Military Justice (DJAG/MJ) as well as the regional DDMP and DDMP SMART, for cases of serious sexual misconduct, of his or her decision.

52. If the Prosecutor determines that there is not a reasonable prospect of conviction or that the public interest does not require that a prosecution be pursued, the Prosecutor shall inform the accused, the investigator, legal counsel for the accused, the referral authority, the Commanding Officer of the accused, the DDCS, the applicable AJAG, the DJAG/RS, the JAG via DJAG/MJ as well as the regional DDMP and DDMP SMART, for cases of serious sexual misconduct, of his or her decision.¹¹

53. In the interests of maintaining proactive communications with the investigator, Prosecutors shall follow-up with the investigator after a decision on post-charge has been made to ensure that the investigator is aware of the decision and to discuss next steps, as applicable.

54. In cases where the alleged offence involves the violation of the victim’s personal integrity (e.g. physical, sexual, emotional), the Prosecutor shall ensure that the victim is informed of the decision not to proceed and the reasons for the decision. A victim may feel aggrieved by a decision not to prosecute, or a decision to prosecute when they do not favour prosecution. Counsel should keep the victim appropriately informed of the decision.¹²

55. Before a non-preferral decision is made the Prosecutor should first inform the appropriate AJAG/Deputy Judge Advocate (DJA) of his or her intention to non-prefer. This provides an opportunity for the AJAG/DJA to inform the Prosecutor of any other matters that may require consideration before the charges are non-preferred but also serves to keep the AJAG/DJA informed of the decision of the Prosecutor. It should be emphasized that any decisions to non-prefer remain within the scope of prosecutorial discretion and ultimately rest with the Prosecutor.

Timelines

56. Although the time required to conduct the post-charge review will be dependent upon the nature and complexity of the case, when a regional DDMP assigns a file to a Prosecutor for a post-charge review, he or she shall determine a reasonable period of time for the Prosecutor to complete the review taking the following factors into account:

1. The size and complexity of the file;
2. The workload and experience of the Prosecutor; and
3. Any other factor deemed to be relevant by the regional DDMP.

57. Should the Prosecutor require longer than the assigned time to complete the post-charge review he or she shall request approval from the regional DDMP and provide a reasonable estimate as to how much time will be required to complete the review and a brief explanation as to why more time is required.

58. Where the regional DDMP approves an extension of the deadline for the post-charge review, the regional DDMP must ensure that the approval is provided in writing and contains an explanation as to why the extension was provided. This approval shall be placed in the Prosecution Case File.

59. In those cases where the Prosecutor does not have final disposition authority, the individual with final disposition authority shall review the recommendation by the Prosecutor and make his or her decision as soon as possible after the recommendation of the Prosecutor has made to him or her. The time taken by the individual with final disposition authority to review the recommendation shall not count towards the time allotted to the Prosecutor to review the file as set out in paragraph 5.

Further Investigation

60. In those cases where the evidence in the file is insufficient to conclude that there is a reasonable prospect of conviction or that the public interest requires that a prosecution be pursued and the Prosecutor believes that further investigation may elicit sufficient evidence, the Prosecutor shall request, in writing, that the investigator conduct further investigation into the matter in order to provide the Prosecutor with sufficient information to make such a determination.

61. Where the request for further investigation is being made to an investigator with the CFNIS, the Prosecutor shall make the request to the officer in command of the detachment with a copy to the investigator.

62. Where the request for further investigation is being made to an investigator with the Military Police, the Prosecutor shall make the request to the officer in command of the detachment with a copy to the investigator and the unit legal advisor.

63. Where the request for further investigation is being made to a unit investigator, the Prosecutor shall make the request to the commanding officer of the unit with a copy to the investigator and the unit legal advisor.

64. The request for further investigation made by the Prosecutor shall contain sufficient detail setting out the nature of the information that is being requested in order to provide the investigator with an understanding of what is being requested.

65. The determination of a reasonable deadline for such investigation shall be made through consultation with the investigator.

66. When a Prosecutor has made a request for further investigation, he or she shall inform the referral authority, the accused’s Commanding Officer, the applicable AJAG/DJA and the regional DDMP and, as required, the DDMP SMART, in writing, that further investigation has been requested and that a specified deadline has been agreed upon for the completion of such request.

67. Prior to the deadline for the provision of the information from the further investigation, Prosecutors should proactively communicate with the investigator in order to ensure that the deadline for further investigation will be respected.

68. In those situations where the deadline for further investigation is unlikely to be, or has not been, respected, the Prosecutor shall inform his or her regional DDMP as soon as practicable for further direction.

69. Prosecutors shall ensure that all requests for further investigation are properly documented in the Prosecution Case File so as to ensure that the time it takes to complete the further investigation does not count towards the timelines set out above for the determination of whether there is a reasonable prospect of conviction or whether the public interest requires that a prosecution be pursued.

Embedded Prosecutors

70 .Embedded Prosecutors¹³ shall not normally conduct post-charge reviews nor shall they participate as lead prosecutors in court martial. This does not preclude, however, an Embedded Prosecutor assisting a Prosecutor during the post-charge analysis or at trial.

Availability of this Policy Statement

71. This policy statement is a public document and is available to members of the CAF and to the public.

Footnotes

¹ Any reference in this policy to "Prosecutor" or "Prosecutors" refers to those officers who have been appointed to assist and represent the Director of Military Prosecutions (DMP) in the exercise of the powers given to the DMP by sections 165.11 to 165.14 of the National Defence Act and subject to any limitations as set out in the Canadian Military Prosecution Service Policy Manual.

² This policy is consistent with policies applied by Attorneys General throughout Canada and by prosecution agencies elsewhere in the Commonwealth. The strength of this consensus has been recognized by the Martin Committee in Ontario that stated as follows: « It is a fundamental principle of the administration of justice in this country that not only must there be sufficient evidence of the commission of a criminal offence by a person for a criminal prosecution to be initiated or continued, but the prosecution must also be in the public interest. »

³ As defined in QR&O article 109.02.

⁴ Person directly affected by the alleged conduct giving rise to one or more offences. Prosecutors are reminded that in court martial proceedings, it is proper not to refer to the complainant as a victim until such time as the court martial has made a finding of guilt, leading to the logical conclusion that the complainant is a victim of the act(s) alleged.

⁵ See sections 158.2 to 159.9 of the NDA which address conditions of release following pre-trial custody.

⁶ Province of Ontario, Ministry of the Attorney General, Crown Policy Manual, March 21, 2005.

⁷ Assessments of demeanor and other subjective characteristics of witnesses are more appropriately considered by the trier of fact. However, in some cases, the distinction between objective and subjective credibility of witnesses may be blurred. For example, a Prosecutor may determine that a key witness, based on their behavior or demeanor, may have very little or no credibility before the trier of fact. Such subjective assessments may be so obvious that they are manifested as an objective factor a Prosecutor may weigh in the course of determining whether there is a reasonable prospect of conviction.

⁸ Which includes as a primary factor the interests of the CAF.

⁹ R v Moriarity, [2015] 3 S.C.R. 485 : “The objective of maintaining “discipline, efficiency and morale” is rationally connected to dealing with criminal actions committed by members of the military even when not occurring in military circumstances” (paragraph 51) and “Criminal or fraudulent conduct, even when committed in circumstances that are not directly related to military duties, may have an impact on the standard of discipline, efficiency and morale.” (paragraph 52).

¹⁰ The final disposition of a matter by the exercise of prosecutorial discretion refers to all decisions related to the prosecution of a matter including the decision to prefer or non-prefer a charge, the decision to withdraw a charge, the decision to enter into a binding sentencing agreement and the decision to consent to a particular mode of trial upon request by an accused.

¹¹ See QR&O article 110.04(3).

¹² See Decision to Prosecute, Public Prosecution Service of Canada Deskbook, section 2.3.

¹³ Further discussed in DMP Policy Directive 001/00: Relationship with Canadian Forces National Investigation Service (CFNIS), paragraphs 15 and 16.