Chapter 8: Laying of Charges

SECTION 1 - INTRODUCTION

1. A charge is a formal accusation that a person subject to the Code of Service Discipline has committed a service offence.¹ A charge is considered to have been laid once it has been reduced to writing in Part 1 (Charge Report) of the RDP and signed by a person authorized to lay charges.²

2. A charge should not be confused with a complaint. While a complaint may lead to an investigation which results in charges being laid, a complaint is a verbal or written report by any person, military or civilian, alleging that a service offence has been committed.³

SECTION 2 - LAYING OF CHARGES

Authority to Lay a Charge

3. The following members have the authority to lay charges under the Code of Service Discipline:

1. a CO;
2. an officer or NCM authorized by a CO to lay charges; and
3. an officer or NCM of the Military Police assigned to investigative duties with the NIS.⁴

3. Matters investigated by Military Police will be referred to the unit for the laying of charges.

4. NIS personnel will lay charges, when appropriate, in all cases where they have done the investigation.⁵

6. A CO should consider a number of factors when determining who will be authorized to lay charges. If the CO is considering personally laying a charge or contemplating authorizing an officer who is a delegated officer to lay charges it must be remembered that a presiding officer's jurisdiction to try a charge is limited where that officer has laid the charge or caused it to be laid.

In such cases the officer who laid the charge could only conduct the summary trial if it is not practical in the circumstances to have another officer do so.⁶ Therefore in the ordinary course of events that officer should not conduct the trial. Instead it would have to be conducted by another delegated officer, or CO, as appropriate.

7. The CO should be mindful that the designation of specific members as charge laying authorities was introduced to ensure a consistent approach towards the laying of charges within the unit; assist in maintaining a high standard of charge drafting; and enhance accountability. One approach to meeting these objectives is to designate a limited number of personnel within a unit to lay charges such as the unit Adjutant, or senior NCM such as the RSM, unit Chief Warrant Officer, or Coxswain. In some units COs have delegated the authority to lay charges to all NCMs holding the appointment of Master Corporal and above.

8. Regardless of how many personnel are designated, a CO should ensure that a perception is not created that only the persons designed to lay charges have a role in maintaining discipline within a unit. Any member can make a complaint or accusation that a service offence has been committed. Further there is an obligation for all members to report and deal with breaches of the Code of Service Discipline.⁷ Even if an officer or NCM is not authorized by a CO to lay charges, there is nothing to prohibit a member drafting a charge and submitting the charge to a member who is authorized to formally lay the charge. For example, a CO may only authorize the Chief Warrant Officer and all Master Warrant Officers to lay a charge. However, a policy could be implemented in the unit that NCMs of the rank of Sergeant and above will draft any charges arising from accusations that are brought to their attention.

Grounds to Lay a Charge

9. The member laying the charge must have an actual belief that the accused has committed the alleged offence. The belief that the accused has committed the offence alleged must be reasonable. In law, reasonable belief is a belief that would lead any ordinary, prudent and cautious person to the conclusion that the accused is probably guilty of the offence alleged.⁸

10. The test for whether grounds to charge exist has two elements: one subjective and the other objective. The subjective element is whether the member who proposes to lay the charge has an actual belief in the accused's guilt. The objective element is whether a reasonable person in the position of the member who proposes to lay the charge would come to the conclusion that the accused was probably guilty of the offence alleged.⁹ Both elements must be present for there to be sufficient grounds to lay a charge.¹⁰

Charging Discretion

11. The discretion to initiate charges rests with authorized service authorities.¹¹ In determining whether to lay charges the charge laying authority should also consider whether it is in the interests of discipline.

12. An example of an offence that might not be in the interests of discipline to pursue, would be the case of a young recruit who is late for the recruit's first duty. Due to the accused's age, unfamiliarity with service life and the seriousness of the offence, it would be inappropriate to use charges to discipline the member.

Double Jeopardy

13. When determining if a charge should be laid, the member authorized to lay charges must consider whether or not the accused has already been found guilty or not guilty for the offence in question.¹² At law an individual cannot be placed in criminal jeopardy for the same, or substantially similar, offence twice.¹³ This is referred to as the rule against double jeopardy.¹⁴

14. The taking of administrative action does not prevent the laying of charges in relation to the same incident.¹⁵ Administrative sanctions relate to the employment aspects of a member, rather than penal. Action under the Code of Service Discipline involves the potential imposition of disciplinary sanctions on behalf of society as a whole. Administrative action is not a substitute for disciplinary action. Both administrative action and disciplinary action may be taken in relation to the same incident.

Mandatory Consultation with Unit Legal Advisor

15. Members authorized to lay charges are required to obtain advice from a legal advisor under the following circumstances:¹⁶

1. when an offence is not authorized to be tried by summary trial under article 108.07;
2. when an offence is alleged to have been committed by an officer or NCM above the rank of sergeant; or
3. if a charge would give rise to a right to elect trial by court martial.

The unit legal advisor will usually provide this advice.¹⁷

16. There is no requirement to obtain legal advice where the accused is to be charged with one of the five relatively minor offences which do not carry with them the right to elect court martial.¹⁸

17. Members laying charges have an obligation to obtain legal advice concerning the sufficiency of the evidence, whether a charge should be laid under the circumstances and, where a charge should be laid, the appropriate charge.¹⁹

18. In order to support a charge, there must be sufficient evidence to demonstrate a reasonable prospect of conviction.²⁰ An assessment of the evidence will include consideration of matters such as the availability, competence and the objective credibility of witnesses, and the admissibility of evidence implicating the accused.

SECTION 3 - DRAFTING CHARGES

Selection of Appropriate Charge

19. Before a charge is laid, the correct charge or charges must be selected. All the offences under the Code of Service Discipline are listed in QR&O 103, along with specimen charges.²¹ Charges should be worded as indicated in QR&O 103, and must contain a statement of the offence and a statement of the particulars of the act, omission, conduct, disorder or neglect constituting the offence.²²

20. All charges against an accused should normally be included in the RDP, Part 1 (charge report).²³

21. It is essential that each charge allege only one offence.²⁴ One way to assess whether this is the case is to review both the statements of the offence and the particulars, for the existence of the words and or or.

22. The reason for ensuring that the charge alleges only one offence is a practical one: the accused must be in a position to properly defend the matter. The accused must not be prejudiced in the preparation of a defence by ambiguity in the charge.²⁵ A statement of offence which alleges two separate offences would be duplicitous, and thus invalid.²⁶ An example of a duplicitous charge would be a single statement of offence under section 86 of the NDA alleging that the accused:

This duplicity could be corrected by separating the offence into two new charges having statements of offence that allege that the accused:

and

23. A charge will also be duplicitous if the particulars allege more than one offence. An example of duplicitous particulars would be :

24. These particulars would be duplicitous because they relate to two separate offences committed upon two different occasions. The incidents in question should be the subject of two separate charges.

25. More than one charge may sometimes be appropriate if more than one offence is alleged to have been committed. When more than one offence has occurred, each should be set out in a separate charge. Depending on the circumstances, it may be appropriate to lay the charges in the alternative.

Alternative Charges

26. Charges may be laid in the alternative where the allegations in the particulars are considered capable of supporting a finding of guilty of: one of several offences; or of a particular offence but, failing proof of one or more elements of that offence, another offence.²⁷

27. An alternative charge should only be used where:

1. there is doubt as to whether, in law, the particulars constitute one offence or another;
2. an essential element of an offence is in doubt but the requirements for the charge of conduct to the prejudice of good order and discipline can be proven. An example of this type of situation is where the essential element of intent in the offence of stealing is in doubt. A charge under section 129 of the NDA for improper possession may be appropriate;
3. the service offence is a more serious form of conduct to the prejudice of good order and discipline, such as the NDA s.92 offence of scandalous conduct and s.93 offence of cruel or disgraceful conduct.²⁸

28. If the charge is under section 130 of the NDA the member laying the charge should consider the fact that many offences against other Canadian laws permit a conviction for included offences without such offences being charged. For example, on a charge of murder, an accused may be found guilty of manslaughter even though it was not charged.²⁹ A similar situation arises with respect to NDA s.88 (desertion) and s.84 (striking or offering violence to a superior officer).³⁰

29. Where it is not practical, prior to trial, to determine which of several offences have been committed, those that appear reasonably possible of having been committed should be charged in the alternative. An example would be stealing under section 114 of the NDA and receiving stolen goods under section 115 of the NDA.³¹

30. The more serious charge should precede the less serious charge on the charge sheet. Charges in the alternative should be annotated as such.³²

Drafting Particulars

31. All charges must contain a statement of particulars. The particulars must provide sufficient detail so that the accused is reasonably informed ofthe offence alleged, in order to be in a position to properly defend the matter.³³

32. The particulars should also indicate the date, time and place of the alleged offence, as well as the offence. Examples of how to draft particulars are included for each service offence listed in QR&O 103.

33. In addition to service offences, Superior Commanders and COs may try certain offences under the Criminal Code and the Controlled Drugs and Substances Act.³⁴ Examples of charges and particulars for these offences are contained in Annex O.

Essential Elements

34. Every offence is comprised of a number of essential elements that must be proven before a finding of guilty can be made. When drafting a charge consideration must be given to whether evidence exists which can be used to prove each of these elements. If evidence to support all the essential elements does not exist, no charge should be laid. Certain elements are common to all offences, such as:

1. date on which offence occurred;
2. place of offence;
3. identity of accused; and
4. act or omission constituting the offence.

35. A fundamental requirement for all offences is that there be an act, or some form of conduct. This is referred to as the actus reus. The actus reus may consist of an act of commission or an act of omission. The former refers to active misconduct, while the latter relates to situations where the accused fails to do something which was required to be done. An example of an act of omission would be where a member fails to fill out the duty roster as was the member's duty to do.³⁵

36. Offences must contain a mental element, or fault requirement. This will vary according to the nature of the offence in question. The term mens rea refers to the guilty mind. It is most easily understood in relation to offences involving fault that require the accused to have a state of mind such as intention, knowledge, recklessness or wilfulness.

37. Negligence describes fault based on inadvertence or carelessness involving a marked departure from the norm and is based on an objective test. That test involves assessing the accused's actions against the standard of the reasonable person.³⁶ If a reasonable person would have acted, or failed to act, in the same manner as the accused, the accused's actions will not be considered negligent.

38. Different words are frequently used to express an intent requirement, such as: intentionally; wilfully; means to; with intent; or for a purpose. Sometimes offences require a knowledge requirement as with possession offences. However, having intent or knowledge will only satisfy the mental element of an offence if the intent or knowledge relates to the particular offence.

39. For certain offences proving recklessness may satisfy the mens rea requirement. Recklessness refers to the act of deliberately risking the likelihood of certain consequences, as opposed to the concept of civil negligence, which refers to the failure to take reasonable care. When determining recklessness, one must ask if the accused was aware that there was a danger that the conduct in question could bring about the result prohibited by the criminal law, yet nevertheless persisted, despite the risk.³⁷

40. Criminal negligence is different from civil negligence, and is defined as “wanton or reckless disregard for the lives or safety of other persons”.³⁸ Criminal negligence requires a marked departure from the standard of care of a reasonable person.³⁹

41. For the offence of negligent performance of a military duty the fault requirement, or standard of care, has been described by the CMAC as:

42. The CMAC, in R. v. Mathieu, has stated that:

Surplusage

43. If information contained in the particulars is not essential to constitute the offence, it will be treated as surplusage. This means that it is not a material element of the offence and need not be proved.⁴²

Record of Disciplinary Proceedings

44. The RDP is divided into seven parts; Part 1 being relevant to the laying of charges.⁴³ Every charge laid against an accused must be recorded in Part 1 of the RDP.⁴⁴

45. Part 1 of the RDP contains the Charge Report.⁴⁵ This is comprised of: the statement of offence; statement of particulars; and name, rank, service number, and unit or element, of the accused. Part 1 contains the name, rank, position and signature of the member laying the charge and the assisting officer.⁴⁶ It contains the name and rank of the assisting officer and places to record the choice of language and to indicate that a copy of the charge report has been given to the accused.

SECTION 4 - REFERRAL OF CHARGES

46. Once a charge is laid, the member, including a member of the NIS, who has laid the charge must refer it to either the accused's CO, the CO of the base, unit or element in which the accused was present when the charge was laid, or to a delegated officer.⁴⁷ The member who laid the charge must provide a copy of the RDP to the accused. This initial referral like any subsequent referrals by a presiding officer or referral authority, will be recorded on the RDP.⁴⁸

47. The CO or delegated officer to whom a charge has been referred must cause a copy of the RDP to be placed on the Unit Registry of Disciplinary Proceedings.⁴⁹ Also see Chapter 16, Post-trial Administration.

48. When a charge is referred to a delegated officer, the delegated officer must cause the charge to be proceeded with in accordance with QR&O 108, which involves taking the steps necessary to commence summary proceedings, or refer the charge to the CO with a recommendation that the charge not be proceeded with, if in the delegated officer's opinion the charge should not be proceeded with.⁵⁰

49. When a charge is referred to a CO from the member who laid the charge or from a delegated officer, the CO must cause the charge to be proceeded with in accordance with QR&O 108, or not proceed with the charge, if in that officer's opinion the charge should not be proceeded with.⁵¹

50. Similarly, should the CO refer the charge to a superior commander, the superior commander must either cause the charge to be proceeded with in accordance with QR&O 108, or not proceed with the charge, if in that officer's opinion the charge should not be proceeded with.

51. Where a decision not to proceed with a charge amounts to a final disposition of all of the charges, the CO or superior commander who decided not to proceed with a charge must cause the original RDP and a copy of any investigation report to be placed on the Unit Registry of Disciplinary Proceedings.⁵²

52. Before the officer to whom a charge has been referred decides whether to proceed with the charge, that officer must obtain advice from the unit legal advisor if the charge relates to any of the following offences:

1. an offence not authorized to be tried by summary trial (for the list of triable offences see QR&O 108.07);
2. an offence that is alleged to have been committed by an officer or a non-commissioned member above the rank of sergeant; or
3. the offence is one that gives rise to the right to elect trial by court martial.⁵³

53. Finally, this referral process must be conducted as expeditiously as the circumstances permit.⁵⁴ In other words, each officer or NCM who deals with these charges must diligently and promptly conduct the referral and the attendant administrative requirements.

54. The unit legal advisor will provide advice on whether the presiding officer should proceed with a summary trial. Should the presiding officer decide not to act on the advice of the unit legal advisor, then the presiding officer must state the decision and provide written reasons for that decision. A copy of the decision and reasons must be provided to the legal advisor and the officer to whom the presiding officer is responsible in matters of discipline within 30 days of receiving the advice.⁵⁵

55. A decision by a CO or a superior commander not to proceed with a charge would not preclude proceeding with the charge at any subsequent time, where the charge had originally been laid by a member of the NIS.⁵⁶

56. Should a CO or superior commander decide not to proceed with a charge that has been laid by a member of the NIS, then that officer must communicate a decision in writing along with written reasons for that decision.⁵⁷ The written decision must be provided to the NIS member who laid the charge or to the member who supervised the investigation, and a copy forwarded to the officer to whom the CO or superior commander is responsible to in matters of discipline.⁵⁸

57. The member of the NIS may, upon review of the written decision and reasons, refer the charge directly to a referral authority in accordance with QR&O 109.03, if the NIS member considers that the charge should be proceeded with.⁵⁹

Footnotes

¹ QR&O 107.015 (1).

² QR&O 107.015 (2).

³ QR&O 107.015 Note A.

⁴ QR&O 107.02.

⁵ See CFNIS, Standard Operation Procedure ch. 2, para 2, CFNIS Policy to Lay Charges, Revised October 2001, contained in Annex M.

⁶ QR&O 108.09 and Note.

⁷ QR&O 4.02 and 5.01.

⁸ QR&O 107.02 Note. Also see R. v. Storrey, [1990] 1 S.C.R. 241.

⁹ R. v. Storrey [1990] 1 S.C.R. 241.

¹⁰ This test is similar to that which is applied under Canadian criminal law prior to a charge being laid, where any one who “on reasonable grounds, believes that a person has committed an indictable offence” may lay an information (Criminal Code s. 504).

¹¹ For example, COs, an officer or NCM authorized by the CO, or the NIS (QR&O 107.02).

¹² See Chapter 11, Jurisdiction for further information.

¹³ R. v. Riddle, [1980] 1 S.C.R. 380. Also see NDA s. 66 and QR&O 102.17.

¹⁴ The principle of double jeopardy is also embodied in section 11(h) of the Charter. Under criminal law the principle of double jeopardy is contained in two special pleas: autrefois acquit and autrefois convict. The plea of autrefois acquit means that previously the accused has been acquitted of the offence which is now being charged. Autrefois convict refers to the fact that the accused was previously convicted of the offence which is now being charged.

¹⁵ See Chapter 14, Sentencing and Punishment.

¹⁶ QR&O 107.03.

¹⁷ QR&O 107.10.

¹⁸ See QR&O 108.17 for a list of minor offences.

¹⁹ QR&O 107.03(2).

²⁰ This does not require a conclusion that a conviction is more likely than not (see Interim JAG Screening Policy).

²¹ For specimen charges for s.130 offences see Annex O.

²² QR&O 107.04(2). This procedure is not followed in the Canadian civilian criminal justice system, where the statement of offence and the particulars are combined.

²³ QR&O 107.04(1).

²⁴ The common law rule against duplicity prohibits alternative charges in a single count. Also, section 789 of the Criminal Code states (in relation to summary convictions):

²⁵ R. v. Sault Ste. Marie [1978] 2 S.C.R. 1299.

²⁶ A charge alleging more than two separate offences would be multiplicitous, and also invalid.

²⁷ QR&O 107.05(a).

²⁸ QR&O 107.05 Note A.

²⁹ QR&O 107.05 Note B.

³⁰ QR&O 103.62

³¹ QR&O 107.05 Note D.

³² QR&O 107.05 Note F.

³³ QR&O 107.04(3). In relation to similar requirements under the Criminal Code (s. 581), the Supreme Court of Canada has stated that the charge must include concrete facts of a nature to identify the particular act which is charged and to give the accused notice of it (Brodie v. R. [1936] S.C.R. 188, affirmed in R. v. Wis Development Corp. Ltd. et al., [1984] 1 S.C.R. 485).

³⁴ NDA s. 130 and also see QR&O 108.07.

³⁵ An offence under NDA s. 129.

³⁶ Don Stuart, Canadian Criminal Law, 3^rd ed., (Scarborough: Carswell, 1995) at 143.

³⁷ Stuart, at 202.

³⁸ See Criminal Code section 219.

³⁹ R. v. Creighton (1993) 23 C.R. (4^th) 265 (S.C.C.).

⁴⁰ R. v. Brocklebank, (2 April 1996) (CMAC 383).

⁴¹ R. v. Mathieu, (CMAC 379) at 13.

⁴² Reference to the wrong section of the Act charged is considered a non-fatal defect, since the section number is considered surplusage.

⁴³ See Annex B for sample Record of Disciplinary Proceedings, the Provision of Information form and a completed sample of both.

⁴⁴ QR&O 107.06 and 107.07 and see attached Record of Disciplinary Proceedings.

⁴⁵ The information contained in Part 1 is similar to that required under the Criminal Code for an information (see Form 2). It has been held that defects in the information, such as the omission of the name and occupation of the informant, although required on the form, are not a defect in substance such as to affect the validity of the form (R. v. Eddy (1982), 69 C.C.C. (2d) 568). Courts have also ruled that the failure to indicate the date of the offence does not render the information a nullity unless a question arises as to whether the information was laid within the prescribed time limit (R. v. Akey (1990), 1 O.R. (3d) 693). A failure to allege the place of the offence will also be considered a mere defect in the form, which may be amended (Re R. v. Phelps (1972), 9 C.C.C. (2d) 127).

⁴⁶ QR&O 101.065, on interpretation of charges states:

⁴⁷ QR&O 107.09.

⁴⁸ QR&O 107.07 and RDP Parts 1 and 5.

⁴⁹ QR&O 107.09 Note A.

⁵⁰ QR&O 107.09(2).

⁵¹ QR&O 107.09(3).

⁵² QR&O 107.09 (3).

⁵³ QR&O 107.11 (1).

⁵⁴ QR&O 107.08.

⁵⁵ QR&O 107.11(2).

⁵⁶ QR&O 107.12 Note.

⁵⁷ QR&O 107.12(1).

⁵⁸ QR&O 107.12(1) & (2).

⁵⁹ QR&O 107.12(3).