ARCHIVED - QR&O: Volume II - Chapter 106 Investigation Of Service Offences (Historical Version: 27 July 2000 to 25 March 2009)

(Refer carefully to article 1.02 (Definitions) when reading every regulation in this chapter.)

The Volume II Chapter 106: Investigation Of Service Offences replaces this content.

Section 1 - Investigations General

106.01 - APPLICATION

This chapter applies to investigations conducted to determine whether or not a service offence has been committed.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

106.02 - INVESTIGATION BEFORE CHARGE LAID

(1) Where a complaint is made or where there are other reasons to believe that a service offence may have been committed, an investigation shall be conducted as soon as practical to determine whether there are sufficient grounds to justify the laying of a charge.

(2) Any complaint that is frivolous or vexatious need not be investigated.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

NOTES

(A) A charge is defined in article 107.015 (Meaning of "Charge").

(B) The purposes and objectives of an investigation are reconstructing events, gathering evidence, identifying elements of the alleged offence and identifying those responsible. Cooperation between unit authorities, unit legal advisers, the local military police, the National Investigation Service and, where applicable, the local civil authorities will ensure that the most appropriate type of investigation is conducted.

(C) (1 September 1999)

106.03 - SCOPE OF THE INVESTIGATION

An investigation conducted pursuant to this chapter shall, as a minimum, collect all reasonably available evidence bearing on the guilt or innocence of the person who is the subject of the investigation.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

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Section 2 - Commanding Officer Search Warrants

106.04 - AUTHORITY TO CONDUCT SEARCHES

(1) An officer or non-commissioned member who conducts an investigation shall, in those cases where a search is considered necessary, consider whether a search warrant is required prior to conducting the search.

(2) Section 273.2 of the National Defence Act provides:

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

NOTES

(A) As a general rule most searches of the places mentioned in paragraph (2) of this article will require the authority of a search warrant. However, there are exceptions to that general rule, and the words "or the search is otherwise authorized by law" as they appear in paragraph (2) of this article refer to those exceptions. Searches with the consent of the occupant of the place to be searched and searches incidental to a lawful arrest are examples of some established exceptions.

(B) Members should bear in mind when considering the necessity of a search warrant that the object of a search is to obtain admissible evidence. Courts will tend to consider a search without a warrant, in circumstances where one should have been obtained, to be an unreasonable search contrary to section 8 of the Canadian Charter of Rights and Freedoms and may refuse to accept the evidence of the search. Consequently, where a doubt exists about the requirement for a search warrant, a representative of the Judge Advocate General should be consulted or a search warrant should be obtained.

(C) It is important to distinguish a search in accordance with this section, which is conducted for the purpose of collecting incriminating evidence of the commission of an offence, from inspections (see article 19.76 - Inspections in Accordance with Custom or Practice of the Service), searches while entering or exiting a controlled area (see article 19.77 - Searches as a Condition of Access to a Controlled Area) and searches and inspections pursuant to the Defence Controlled Access Area Regulations (DCAAR) (see QR&O Volume IV, Appendix 3.2). This section does not apply to inspections, access searches, or DCAAR searches and inspections, which are separately authorized. Where the purpose of obtaining entry into a place mentioned in paragraph (2) of this article is to seek evidence of the commission of an offence and that entry is not otherwise authorized by law (see Note (A)), a search warrant is required. Inspections, on the other hand, are conducted for, among other reasons, ensuring the maintenance of military standards of efficiency, kit and hygiene. If the purpose of entry into a place mentioned in paragraph (2) of this article is to inspect, for example the cleanliness of a barrack room, a search warrant is not required. Access searches and DCAAR searches are special varieties of searches conducted for the maintenance of security of defence establishments and do not require a search warrant.

(D) Where an officer or non-commissioned member is lawfully in a place mentioned in paragraph (2) of this article, the member may seize evidence of the commission of any offence when that evidence is in plain view.

(E) Inspections shall not be originated with the intent of seeking incriminating evidence in a place which would otherwise require a search warrant to be entered.

(C) (1 September 1999)

106.05 - ISSUANCE OF A SEARCH WARRANT BY A COMMANDING OFFICER

(1) Section 273.3 of the National Defence Act provides:

(2) Section 273.4 of the National Defence Act provides;

(3) Section 273.5 of the National Defence Act provides:

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

106.06 - INFORMATION FOR SEARCH WARRANT

(1) Every commanding officer who is authorized pursuant to this section to receive information for the purpose of issuing a search warrant has the power to administer an oath or affirmation to every informant from whom such information has been received.

(2) Information on oath or affirmation in support of a search warrant mentioned in this section shall be in writing and should be in the following form:
(27 July 2000)

INFORMATION TO OBTAIN A SEARCH WARRANT

INFORMATION OF

_________________________________________________________________________
(service number and rank (if applicable), full name)

_________________________________________________________________________
(occupation)

__________________________________________________________________________
(base, unit or element (or address if civilian)

The informant declares that the informant has reasonable grounds for believing that the following things or some part of them

(describe in detail the things to be searched for and the offence in respect of which the search is to be made - see Notes (A), (B) and (C) to article 106.06 - Information for Search Warrant)

are contained in the following place:

__________________________________________________________________________
(description of place)
(see paragraph (1) of article 106.05 - Issuance of a Search Warrant by a Commanding Officer, and Note (A) to article 106.06)

of ________________________________________________________________________
(owner or occupant of place)

at ________________________________________________________________________
(complete address or location)

And the said informant further says that the grounds for so believing are that (state the grounds for the belief) (see Notes (B), (C) and (D) to article 106.06)

WHEREFORE the informant prays that a search warrant may be granted to search the said place for the said things.

Sworn [or affirmed] before me

at ________________________________________________

in the _____________________________________________

this _______ day of _______________ , ________________
(month) (year)

__________________________
(signature of informant)

______________________________
(commanding officer)

(G) (P.C. 2000-1110 of 27 July 2000)

NOTES

(A) The items to be seized must be described in the information and, subsequently, the search warrant, with sufficient detail to distinguish and identify them for the purposes of the search. The location to be searched should be described with sufficient accuracy to enable one, from the mere reading of it, to know what premises the warrant authorizes to be searched.

(B) Before a commanding officer may issue a search warrant, the information must contain a sworn or affirmed statement by the informant that satisfies the commanding officer that reasonable grounds exist for believing that the items sought are linked to:

1. the location to be searched; and
2. a particular offence within the ambit of paragraph 273.3(a), (b) or (c) of the National Defence Act, which are referred to in paragraph (1) of article 106.05 (Issuance of a Search Warrant by a Commanding Officer).

(C) Although an informant who has received information from a confidential source need not reveal that source, a commanding officer must nevertheless have, before issuing a search warrant, sufficient information to be satisfied that reasonable grounds exist.

(D) Reasonable grounds may be derived from various sources of information. For example, the member of the military police who is the informant in the above example might have had first hand observations. The member may have come into possession of documentary evidence, such as a letter, which indicates that the evidence sought regarding the offence alleged in the information will be found in the place which the member desires to search. These examples are, of course, not exhaustive.

The law in respect of reasonable grounds for search warrants is complex and evolving. Accordingly, guidance should be sought from the unit legal adviser when completing the reasonable grounds portion of the Information to Obtain a Search Warrant form.

(E) The grounds upon which a commanding officer makes the decision to issue a search warrant must be contained in the information.

(C) (1 September 1999)

106.07 - FORM OF SEARCH WARRANT

(1) A search warrant referred to in this section shall be in writing and should be in Form A, hereunder, where directed to a member and in Form B, hereunder, where directed to a civilian peace officer: (27 July 2000)

FORM A
WARRANT TO SEARCH

(ISSUED TO MILITARY PERSONNEL)

TO _______________________________________________________________________
(service number, rank, full name of officer or non-commissioned member)

and ______________________________________________________________________
(if applicable, add full name of any civilian peace officers who will assist in the execution of the search)

WHEREAS it appears by information on the oath of __________________________________
(particulars of informant)

of ______________________________________________________________________,
(base, unit or element, or address if civilian)

that there are reasonable grounds (see Notes (B), (C), (D) and (E) to article 106.06 - Information for Search Warrant) for believing that

(describe things to be searched for and offence in respect of which search is to be made - see Note (A) to article 106.06)

are in the _______________________________________________________________
(description of place)
(see paragraph (1) of article 106.05 - Issuance of a Search Warrant by a Commanding Officer, and Note (A) to article 106.06)

of _______________________________________________________________________
(owner or occupant of place)

at ______________________________________________________________________,
(complete address or location of place)

hereinafter called the premises.

THIS IS, THEREFORE, to authorize and require you, assisted by such other officers and non-commissioned members under your direction as are necessary, between the hours of __________ and ________ (as the commanding officer may direct - see paragraph (2) of article 106.07 - Form of Search Warrant) to enter into the said premises and to search for the said things and to bring them before me.

Dated this ________day of ____________, ___________
(month) (year)

at ___________________________________________.
(location)

________________________________
(commanding officer)

FORM B
WARRANT TO SEARCH

(ISSUED TO A CIVILIAN PEACE OFFICER)

TO _______________________________________________________________________
(rank (if applicable), full name)

and ______________________________________________________________________
(service number, rank, full name of all officers, non-commissioned members and civilian peace officers who will assist in the execution of the search)

WHEREAS it appears by information on the oath

of _______________________________________________________________________
(particulars of informant)

of _______________________________________________________________________
(base, unit or element, or address if civilian)

that there are reasonable grounds (see Notes (B), (C), (D) and (E) to article 106.06 - Information for Search Warrant) for believing that

(describe things to be searched for and offence in respect of which search is to be made - see Note (A) to article 106.06)

are in the __________________________________________________________________
(description of place)
(see paragraph (1) of article 106.05 - Issuance of a Search Warrant by a Commanding Officer, and Note (A) to article 106.06)

of _______________________________________________________________________
(owner or occupant of place)

at ______________________________________________________________________,
(complete address or location of place)

hereinafter called the premises.

THIS IS, THEREFORE, to authorize and require you, between the hours of ___________________ and ________________ (as the commanding officer may direct - see paragraph (2) of article 106.07 - Form of Search Warrant) to enter into the said premises and to search for the said things and to bring them before me.

Dated this ________day of ____________, ___________
(month) (year)

at ___________________________________________.
(location)

____________________________________
(commanding officer)

(2) A commanding officer shall authorize a search warrant referred to in this section to be executed between 0800 and 2200 hours unless the commanding officer is satisfied that its execution outside those hours is necessary in the circumstances.

(G) (P.C. 2000-1110 of 27 July 2000)

NOTES

(A) Where a search warrant is directed to an officer or non-commissioned member who is also a peace officer, Form A should be used and that person should be described as an officer or non-commissioned member, not as a peace officer. If a civilian peace officer will be assisting in the search, that officer must also be named in the warrant.

(B) Where a search warrant is directed to a civilian peace officer, Form B should be used. All other civilian peace officers and all officers and non-commissioned members who are to assist in the search must also be named in the warrant. A member who is also a peace officer should be described as an officer or non-commissioned member, not as a peace officer.

(C) (1 September 1999)

106.08 - EXECUTION OF SEARCH WARRANT

(1) Every person authorized to execute a search warrant referred to in this section may seize any thing mentioned in the search warrant and in addition to the things mentioned in the warrant, any thing that on reasonable grounds the person believes has been obtained by or has been used in the commission of an offence and shall carry as soon as practical any thing so seized before the commanding officer who issued the search warrant.

(2) Every person authorized to execute a search warrant referred to in this section may use such force, and obtain such assistance, as the person considers reasonably necessary to gain entry into the premises. (27 July 2000)

(G) (P.C. 2000-1110 of 27 July 2000)

106.09 - DETENTION, RESTORATION AND DISPOSAL OF THINGS SEIZED

(1) For the purposes of this article, "restore" means, in relation to any thing seized pursuant to paragraph (1) of article 106.08 (Execution of Search Warrant), return to:

1. the person from whom it was seized, if possession of it by that person would be lawful; or
2. the person apparently entitled to it, if possession of it by the person from whom it was seized would be unlawful but possession by the person apparently entitled to it would be lawful.

(2) This article ceases to apply to any thing detained pursuant to subparagraph (3)(a), if:

1. its restitution is ordered by a service tribunal; or
2. it is an exhibit submitted to a service tribunal (see article 101.055 - Restitution of Property and Return of Exhibits).

(3) Where pursuant to paragraph (1) of article 106.08 (Execution of Search Warrant) any thing seized is brought before the commanding officer who issued the search warrant, the commanding officer shall:

1. direct that it be detained, if he considers that it is required for any investigation or for production as evidence before a service tribunal;
2. direct that it be transferred to civil authorities for use as evidence before a civil court; or
3. direct that it be restored or arrange for it to be disposed of under paragraph (9).

(4) Subject to paragraph (2), a commanding officer who is satisfied that any thing detained pursuant to subparagraph (3)(a) is no longer required for any purpose mentioned therein may direct that it be restored or arrange for it to be disposed of under paragraph (9).

(5) Any person entitled to lawful possession of any thing detained pursuant to subparagraph (3)(a) may apply to the commanding officer who directed it to be detained for an order pursuant to paragraph (4).

(6) Subject to paragraph (2) and unless continued detention is authorized pursuant to paragraph (7), a commanding officer shall, upon the expiration of a period of 90 days after the date of seizure, direct that any thing detained pursuant to subparagraph(3)(a) be restored or arrange for it to be disposed of under paragraph (9).

(7) An officer commanding a command may, upon application by a commanding officer prior to the expiration of a period of 90 days from the date of seizure, direct the continued detention of any thing detained pursuant to subparagraph (3)(a) for such additional period as the officer commanding a command considers necessary in the circumstances.

(8) An officer commanding a command may at any time review and vary an order under paragraph (7).

(9) Anything detained pursuant to subparagraph (3)(a) that is not restored pursuant to paragraph (4) or (6) or article 101.055 (Restitution of Property and Return of Exhibits) may be disposed of in accordance with directions issued by the Minister or an officer designated by the Minister.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

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Section 3 - DNA Warrants and Reports

106.10 - INFORMATION FOR OBTAINING A DNA WARRANT

(1) An ex parte application for purposes of subsection 196.12(1) of the National Defence Act shall be in the following form:

INFORMATION TO OBTAIN A WARRANT TO TAKE BODILY SUBSTANCES
FOR FORENSIC DNA ANALYSIS

This is the information of _______________________ , ______________________ at the
(name of peace officer) (occupation)

_________________________________ , hereinafter called the informant, taken before me.
(base or unit/territorial division)

The informant says that he or she has reasonable grounds to believe

1. that _________________ , a designated offence within the meaning of section 196.11
   (offence)
   of the National Defence Act, has been committed;
2. that a bodily substance has been found or obtained,
   1. at the place where the offence was committed,
   2. on or within the body of the victim of the offence,
   3. on anything worn or carried by the victim at the time when the offence was committed, or
   4. on or within the body of any person or thing or at any place associated with the commission of the offence;
3. that __________________ , a person subject to the Code of Service Discipline, was a
   (name of person)
   party to the offence; and
4. that forensic DNA analysis of a bodily substance from ____________________
   (name of person)
   will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person.

The reasonable grounds are:

The informant therefore requests that a warrant be issued authorizing the taking from_____
(name of person)

of the number of samples of bodily substances that are reasonably required for forensic DNA analysis, provided that the person taking the samples is able by virtue of training or experience to take them by means of the investigative procedures described in subsection 196.2(1) of the National Defence Act and provided that, if the person taking the samples is not a peace officer, he or she take the samples under the direction of a peace officer.

Sworn [or affirmed] before me

this ____ day of __________ , ________ at ___________________.
(month) (year)

____________________________
(Signature of informant)

____________________________
(Signature of military judge)

(G) (P.C. 2000-1110 of 27 July 2000)

NOTES

(A) The above form must be used where a peace officer appears personally before a military judge to request a warrant under subsection 196.12(1) of the National Defence Act.

(B) A peace officer who submits an information by means of telecommunication in written form should use the above form, with the additional information required under section 196.13 of the National Defence Act.

(C) (27 July 2000)

106.11 - FORM OF DNA WARRANT

A DNA warrant for purposes of section 196.12 or 196.13 of the National Defence Act shall be in the following form:

WARRANT AUTHORIZING THE TAKING
OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

To the peace officers at ______________________________:
(base or unit/territorial division)

Whereas it appears on the oath of ____________ , __________ of ____________
(name of peace officer) (occupation) (base or unit/territorial division)

that there are reasonable grounds to believe

1. that ____________ , a designated offence within the meaning of
   (offence)
   section 196.11 of the National Defence Act, has been committed;
2. that a bodily substance has been found
   1. at the place where the offence was committed,
   2. on or within the body of the victim of the offence,
   3. on anything worn or carried by the victim at the time when the offence was committed, or
   4. on or within the body of any person or thing or at any place associated with the commission of the offence;
3. that _____________________ , a person subject to the Code of Service Discipline, was
   (name of person)
   a party to the offence; and
4. that forensic DNA analysis of a bodily substance from ________________________
   (name of person)
   will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person.

And whereas, having regard to all relevant matters including the nature of the offence and the circumstances surrounding the commission, I am satisfied that it is in the best interests of the administration of justice to issue this warrant and that there is a peace officer who is able, by virtue of training or experience, to obtain a bodily substance from the person or another person who is able by virtue of training or experience, to obtain under the direction of a peace officer, a bodily substance from the person;

This is therefore to authorize and require you to take from _________________________
(name of person)
or cause to be taken by a person acting under your direction, the number of samples of bodily substances that are reasonably required for forensic DNA analysis, provided that the person taking the samples is able by virtue of training or experience to take them by means of the investigative procedures described in subsection 196.2(1) of the National Defence Act and provided that, if the person taking the samples is not a peace officer, he or she take the samples under the direction of a peace officer. This warrant is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:

Signed at _____ hours this ______ day of _______ , ______ at ________________ .
(month) (year) (place of issuance)

______________________________
(Signature of military judge)

(G) (P.C. 2000-1110 of 27 July 2000)

106.12 - REPORT BY PEACE OFFICER

A report for purposes of section 196.18 of the National Defence Act made by a peace officer who takes DNA samples of bodily substances, or directs another person to take them, shall be in the following form:

REPORT TO A MILITARY JUDGE OR
THE COURT MARTIAL ADMINISTRATOR

[ ] To ________ , a military judge who issued a warrant 196.12 or 196.13 or under section
(name of judge)

granted an authorization under section 196.24 of the National Defence Act or to another military judge:

[ ] To the Court Martial Administrator in respect of an order made under section 196.14 or 196.15 of the National Defence Act:

I, ______________________ , have _________________________________________ .
(name of peace officer) (state here whether you have acted in execution of a warrant under section 196.12 or 196.13 or an order under section 196.14 or 196.15, or under an authorization under 196.24 of the National Defence Act)

I have _____________________________________ from ____________________ the
(state here whether you have taken the samples (name of offender) yourself or caused them to be taken under your direction)

number of samples of bodily substances that I believe are reasonably required for forensic DNA analysis, in accordance with

_________________________________________________________________________ .
(state whether the taking of the samples was under the warrant issued or an authorization
granted by the military judge or another military judge or an order made by the court martial)

The samples were taken at _______ hours on the ______ day of __________ , __________.
(month) (year)

I or ________________________ was able by virtue of training or experience to take the
(state the name of the person who took the samples)

following samples from _________________ in accordance with subsection 196.2(1) of the
(name of offender)
National Defence Act and did so take them:

[ ] individual hairs, including the root sheath
[ ] epithelial cells taken by swabbing the lips, tongue or inside cheeks of the mouth
[ ] blood taken by pricking the skin surface with a sterile lancet

Any terms or conditions in the ________________________ have been complied with.
(warrant, order or authorization)

Dated this _______ day of ___________ , ________ at ________________________.
(month) (year)

_________________________
(Signature of peace officer)

(G) (P.C. 2000-1110 of 27 July 2000)

(106.13 TO 106.99 INCLUSIVE: NOT ALLOCATED)