QR&O: Volume II - Chapter 121 Referral of Charges and Post-Charge Procedure

Effective 1 january 2006, the official version of the QR&O is that published in PDF format on this website.

A consolidation of the QR&O volumes in official PDF version were made as of the 3 July 2019. The HTML version on this website is provided solely for the convenience of readers. Any discrepancies between the HTML and the official PDF version should be reported to the DSCS, Corporate Secretary.

The last modifications to the QR&O came into force on 20 June 2022.

Amendment List:

• 20 June 2022 – new chapter: 121

121.01 – REFERRAL

The officer or non-commissioned member who lays a charge alleging the commission of a service infraction must refer the charge to an officer who is a commanding officer in respect of the person who is alleged to have committed the service infraction as soon as circumstances permit by providing the commanding officer with the charge report referred to in paragraph 102.07(1), the investigation file and the information obtained in accordance with subparagraphs 102.10(2)(a) and (b).

(G) [P.C. 2022-0268 effective 20 June 2022]

121.02 – ASSISTANCE TO PERSON CHARGED WITH A SERVICE INFRACTION

(1) If requested by the person charged with having committed a service infraction, the commanding officer of the person alleged to have committed a service infraction must, as soon as circumstances permit, appoint an officer or, in exceptional circumstances, a non-commissioned member above the rank of sergeant, to assist the person.

(2) The commanding officer must appoint the officer or non-commissioned member requested by the person charged with having committed a service infraction if

(a) the exigencies of the service permit; and

(b) the officer or non-commissioned member requested is willing to act in that capacity.

(3) If the person appointed is unable or unwilling to continue to assist the person charged with having committed a service infraction, the commanding officer must appoint a new officer or non-commissioned member to assist.

(4) The person appointed may assist, advise and make representations on behalf of the person charged with having committed a service infraction throughout the proceedings and any review to the extent the person charged with having committed a service infraction desires.

(G) [P.C. 2022-0268 effective 20 June 2022]

121.03 – PROVISION OF INFORMATION

(1) The commanding officer to whom a charge is referred must ensure that the person charged with having committed a service infraction is provided with a copy of, or access to, any information that

(a) is to be relied on as evidence at the summary hearing; or

(b) tends to show that the person charged did not commit the infraction.

(2) The information must be made available in sufficient time to permit the person charged with having committed a service infraction to consider it in properly preparing for the summary hearing.

(G) [P.C. 2022-0268 effective 20 June 2022]

121.04 – JURISDICTION

Section 163 of the National Defence Act provides:

“163 (1) A superior commander, commanding officer or delegated officer may conduct a hearing in respect of a charge alleging the commission of a service infraction if all of the following conditions are satisfied:

(a) the person charged is an officer who is at least one rank below the rank of the superior commander, commanding officer or delegated officer, or is a non-commissioned member;

(b) having regard to the gravity of the facts that gave rise to the charge, the powers of the superior commander, commanding officer or delegated officer to impose a sanction are adequate;

(c) 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; and

(d) having regard to the interests of discipline, efficiency and morale of the Canadian Forces, it would be appropriate to conduct the hearing.

(2) A superior commander, commanding officer or delegated officer may not conduct a hearing if he or she

(a) carried out or directly supervised the investigation of the service infraction;

(b) issued a warrant under section 273.3 in relation to anything referred to in any of paragraphs 273.3(a) to (c) that relates to the service infraction; or

(c) laid the charge or caused it to be laid.”

(C) [20 June 2022]

121.05 – LIMITATION PERIOD

Section 163.4 of the National Defence Act provides:

“163.4 A summary hearing in respect of a charge alleging the commission of a service infraction may not be conducted unless it commences within six months after the day on which the service infraction is alleged to have been committed.”

(C) [20 June 2022]

121.06 – DELEGATION AND OBLIGATIONS

(1) Section 162.94 of the National Defence Act provides:

“162.94 A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer considers appropriate, delegate his or her power to conduct a summary hearing to any officer under his or her command.”

(2) Section 162.95 of the National Defence Act provides:

“162.95 A commanding officer to whom a charge alleging the commission of a service infraction is referred under subsection 161.1(2) shall, taking into account the conditions set out in section 163,

(a) conduct a summary hearing in respect of the charge;

(b) decide to not proceed with the charge if, in his or her opinion, it should not be proceeded with; or

(c) refer the charge, subject to and in accordance with regulations made by the Governor in Council, to another commanding officer, a superior commander or a delegated officer.”

(3) Section 163.2 of the National Defence Act provides:

“163.2 A superior commander, commanding officer or delegated officer to whom a charge is referred under paragraph 162.95(c) or under this section shall, taking into account the conditions set out in section 163,

(a) conduct a summary hearing in respect of the charge;

(b) decide to not proceed with the charge if, in his or her opinion, it should not be proceeded with; or

(c) refer the charge, subject to and in accordance with regulations made by the Governor in Council, to a superior commander, commanding officer or delegated officer.”

(C) [20 June 2022]

121.07 – PRELIMINARY DETERMINATIONS

Before complying with the obligations under section 162.95 of the National Defence Act, the commanding officer, on receipt of a referral from a person who lays a charge for a service infraction, must

(a) determine whether the commanding officer is precluded from conducting the summary hearing due to the following factors:

(i) the commanding officer is unable to understand the official language in which the hearing is to be conducted without the assistance of an interpreter; or

(ii) the summary hearing cannot be conducted due to the prohibition at section 163.4 of the National Defence Act; and

(b) obtain legal advice from the unit legal officer if the charge concerns a 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 infraction.

(G) [P.C. 2022-0268 effective 20 June 2022]

121.08 – DECISION TO CONDUCT SUMMARY HEARING

(1) A commanding officer who, in accordance with paragraph 162.95(a) of the National Defence Act, decides to conduct a summary hearing in respect of a charge must provide the person charged with having committed a service infraction 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 infraction with notice of the decision in writing.

(2) The notice of a decision to conduct a summary hearing must include the date and time that the summary hearing will commence and information with respect to the hearing procedures that will be followed.

(G) [P.C. 2022-0268 effective 20 June 2022]

121.09 – DECISION NOT TO PROCEED

The commanding officer who, in accordance with paragraph 162.95(b) of the National Defence Act, decides that a charge should not be proceeded with must communicate the decision and the reasons in writing as soon as circumstances permit to the following individuals:

(a) the person charged with having committed a service infraction;

(b) the person appointed to assist the person charged with having committed a service infraction;

(c) the next superior officer to whom the commanding officer is responsible in matters of discipline; and

(d) 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 infraction.

(G) [P.C. 2022-0268 effective 20 June 2022]

121.10 – SUBSEQUENT SUMMARY HEARING PROCEEDINGS NOT PRECLUDE

Section 163.3 of the National Defence Act provides:

“163.3 A decision that a charge should not be proceeded with by summary hearing does not preclude, subject to section 163.4, proceeding with the charge by summary hearing at any subsequent time.”

(C) [20 June 2022]

121.11 – SUBSEQUENT REFERRAL

(1) Subject to paragraph (2), a commanding officer who refers a charge in accordance with paragraph 162.95(c) of the National Defence Act must notify the person charged with having committed a service infraction of the referral and provide the commanding officer, superior commander or delegated officer to whom the charge is referred with the documents and information set out at article 121.01, as well as any related legal opinions.

(2) A commanding officer prohibited from conducting a summary hearing due to the operation of subsection 163(2) of the National Defence Act cannot refer the charge to any officer to whom the commanding officer has delegated the power to conduct a summary hearing.

(G) [P.C. 2022-0268 effective 20 June 2022]

121.12 – RECEIPT OF REFERRAL BY COMMANDING OFFICER

Before complying with the obligations under section 163.2 of the National Defence Act, superior commanders, commanding officers or delegated officers to whom a charge is referred under paragraph 162.95(c) of that Act must

(a) determine whether they are precluded from conducting the summary hearing due to the factors set out at subparagraph 121.07(a); and

(b) adhere to the requirements set out at articles 121.08 to 121.11, as applicable.

(G) [P.C. 2022-0268 effective 20 June 2022]

121.13 – QUESTIONS OF JURISDICTION

(1) At any point after notice was provided in accordance with article 121.08 (Decision to Conduct Summary Hearing), the person charged with having committed a service infraction may request that the officer conducting the summary hearing withdraw from the proceeding due to a lack of jurisdiction.

(2) The officer conducting the summary hearing must consider any representations from the person charged with having committed a service infraction and provide the person with reasons for the decision.

(G) [P.C. 2022-0268 effective 20 June 2022]

[121.14 to 121.99: not allocated]