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IV. From the Disciplinary Investigation to the Laying, Referral and Pre-trial Disposal of Charges

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  1. Disciplinary Investigations
    1. Unit Disciplinary Investigations
    2. Military Police Investigations
  2. Search Warrants
  3. Arrests 85
    1. Arrests Without Warrant of Canadian Armed Forces Members
    2. Arrests Without Warrant of Civilians
    3. Arrest Warrants
  4. Pre-Trial Custody
  5. Laying of Charges
    1. Duty to Lay Charges Expeditiously
    2. Authority of the Uniformed Military Police to Lay Charges
  6. Referral and Pre-Trial Disposal of Charges
  1. Disciplinary Investigations
    1. Disciplinary investigations in the Canadian Armed Forces (“CAF”) are conducted where “a complaint is made or where there are other reasons to believe that a service offence may have been committed”.Footnote 332 Their purpose is “to determine whether there are sufficient grounds to justify the laying of a charge” by, at a minimum, collecting “all reasonably available evidence bearing on the guilt or innocence of the person who is the subject of the investigation”.Footnote 333
    2. Disciplinary investigations can either be conducted by the military police or as unit disciplinary investigations.
    3. The specialized investigative arm of the military police, known as the Canadian Forces National Investigation Service (“CFNIS”), has a right of first refusal over the investigation of serious offences and sensitive offences, including criminal sexual offences. Except in the case of criminal sexual offences,Footnote 334 the CFNIS may however defer its investigative responsibility to the local non-CFNIS military police (often referred to as the uniformed military police) when the commander of the CFNIS considers it appropriate to do so. Even where the investigative responsibility is not deferred, the uniformed military police may be requested to assist the CFNIS in investigations.Footnote 335
    4. All other service offences are investigated either by the uniformed military police or by the units, without any clear delineation of tasks. As a matter of tradition and service practice, units normally assume responsibility for investigations into minor breaches of discipline, such as when no right to elect trial by court martial would arise. The uniformed military police typically investigates matters which are somewhere between a unit disciplinary investigation and a CFNIS investigation in seriousness.Footnote 336
      1. Unit Disciplinary Investigations
        1. I was told by some members of the CAF that there was a lack of oversight over unit disciplinary investigations and that they are therefore open to abuse by officers in positions of authority. Others said members assigned to those investigations lack sufficient training. Some commanding officers felt that unit disciplinary investigations are unduly cumbersome and should not be required where minor disciplinary misconduct is alleged, while others assured me that most of them could usually be finalized within a matter of days, if not hours.Footnote 337
        2. These limited and conflicting observations warrant neither firm conclusions nor precise recommendations. I think it best to instead leave it to the Judge Advocate General (“JAG”) to assess the basis and prevalence of these concerns in discharging her statutory duty of superintendence over the administration of military justice.Footnote 338
      2. Military Police Investigations
        1. An important concern for both the CFNIS and the uniformed military police was investigative delay.
        2. Delays in investigations have been considered before – more than once. In 2011, Chief Justice LeSage recommended that “[t]he target for completion of investigations in straightforward cases should be one month”.Footnote 339 In the spring of 2018, the Auditor General of Canada examined a number of investigations conducted by the military police and found that the vast majority had exceeded the military police’s own policy time standard of 30 days, with no written justifications.Footnote 340 A few months later, in her Evaluation of Military Police Services, the Assistant Deputy Minister (Review Services) recommended that the Canadian Forces Provost Marshal (“CFPM”) “monitor the investigation time as a performance indicator of the Military Police Services Program to support decision-makers”.Footnote 341
        3. The Military Police Group Orders have been amended in the wake of the 2018 report of the Auditor General. The policy time standard of 30 days has been repealed. The Group Orders now specify that “[i]n general, investigations must be conducted as quickly and efficiently as possible, without compromising their thoroughness or integrity”.Footnote 342 The reasons for all delays must be recorded in the military police files, particularly where “there has been or will be no meaningful investigative activity for 30 days”.Footnote 343 A Military Police Analytics Program (“MPAP”) was created in the summer of 2019 to track the compliance of members of the military police with these Group Orders. I was told by the CFPM that “[t]he MPAP has led the [military police group] to an average of over 98% compliance over the last six months of 2020 (to date), and has effectively eliminated files exceeding 60 days without an apparent update”.Footnote 344
        4. These measures are still in their infancy. They appear to have so far yielded positive results, but the data currently available is insufficient to assess their likelihood of success in reducing investigative delay in the longer term. I recommend that the CFPM, in future reports, provide data on the length of military police investigations. If this data indicates that problems of delays in investigations persist or re-emerge, the CFPM should re-assess the effectiveness of the measures implemented in 2018 and 2019 and consider the implementation of additional reforms.
          • Recommendation #29. The Canadian Forces Provost Marshal, in his annual reports, should provide data on the length of military police investigations. If this data indicates that problems of delays in investigations persist or re-emerge, the Canadian Forces Provost Marshal should re-assess the effectiveness of the measures implemented in 2018 and 2019 and consider the implementation of additional reforms.
  2. Search Warrants
    1. It may be necessary, during a disciplinary investigation, to conduct a search. Searches normally require prior authorization in the form of a search warrant.Footnote 345
    2. The NDA currently provides for the issuance of search warrants only by commanding officers.Footnote 346 However, I have been informed by the Canadian Military Prosecution Service (“CMPS”)that there is a general reluctance, particularly on the part of CFNIS investigators, to rely on commanding officer search warrants. In fact, members of the military police have in recent years been specifically instructed to use commanding officer search warrants only “in those very rare situations where a Criminal Code warrant cannot be obtained due to the unavailability of a civilian judicial authority”, that is, primarily, “where the item to be searched for and seized lies outside the territorial jurisdiction of Canada”.Footnote 347 Members of the military police who nevertheless consider obtaining a commanding officer search warrant within Canada are instructed to consult their chain of command as well as a unit legal advisor before doing so.
    3. The investigators’ reluctance to rely on commanding officer search warrants is understandable. There is a risk that the commanding officer search warrant regime may fail to meet the constitutional requirements of section 8 of the Canadian Charter of Rights and Freedoms (“Charter”), Footnote 348 at least in circumstances where a search warrant can reasonably be obtained from a civilian justice of the peace. Nevertheless, I agree with the CMPS that it is inappropriate to force the investigators to rely on the civilian justice system where military judges could easily, in my view, assume the function of issuing warrants.
      • Recommendation #30. The National Defence Act should be amended to allow military judges to issue search warrants in disciplinary investigations, and permit the issuance of commanding officer search warrants only where a warrant cannot be reasonably obtained in a timely manner either from a military judge or from a civilian justice of the peace.
  3. Arrests
    1. Arrests Without Warrant of Canadian Armed Forces Members
      1. Any member of the CAF may arrest without warrant a person subject to the Code of Service Discipline (“CSD”) who has committed, is found committing, is believed on reasonable grounds to have committed or is charged with having committed a service offence.Footnote 349 Members of the military police have the broadest powers in this regard as they may arrest without warrant any person subject to the CSD, regardless of that person’s rank or status.Footnote 350 By comparison, the powers of officers and non-commissioned members to arrest without warrant are limited in most cases by their respective ranks.Footnote 351
      2. As a result of a recommendation of Chief Justice Lamer,Footnote 352 Bill C-15Footnote 353 limited the powers of arrest without warrant of all CAF members. For offences other than serious offences,Footnote 354 it imposed a duty not to arrest a person (or to order the arrest) without warrant in specified circumstances.Footnote 355 This duty is modelled on the duty imposed on peace officers by subsection 495(2) of the Criminal Code.
      3. Still, the duty not to arrest a person without warrant applies to a smaller set of offences than under the Criminal Code. A peace officer’s duty not to arrest without warrant extends to several indictable offences, to all hybrid offencesFootnote 356 and to all summary conviction offences. A CAF member’s duty not to arrest without warrant only extends to indictable or summary conviction offences punishable by imprisonment for less than five years.
      4. In my view, the military duty not to arrest without warrant should be expanded to prevent the unnecessary arrest, for example, of anyone whose arrest is not in the public interest and who is likely to appear voluntarily before a service tribunal. More particularly, I recommend that the duty not to arrest without warrant apply to all service offences, except designated offences.Footnote 357
        • Recommendation #31. In subsections 155(2.1) and 156(2) of the National Defence Act, the words “for an offence that is not a serious offence” should be replaced by the words “for an offence that is not a designated offence”.
    2. Arrests Without Warrant of Civilians
      1. The military justice system has jurisdiction over civilians in specified circumstances.Footnote 358 Moreover, a person having allegedly committed a service offence while subject to the CSD may be charged, dealt with and tried at any time thereafter for the alleged offence, regardless of whether the person remains subject to the CSD.
      2. Two sections of the NDA provide for powers to arrest without warrant persons subject to the CSD other than CAF members.
      3. First, members of the military police can arrest without warrant, “any person who is subject to the Code of Service Discipline”.Footnote 359 It is unclear whether they can also arrest persons formerly subject to the CSD for past alleged offences. This should be clarified.
        • Recommendation #32. Paragraph 156(1)(a) of the National Defence Act should be amended to clarify that members of the military police may, subject to their duty not to arrest without warrant in specified circumstances, arrest without warrant any person who is subject to the Code of Service Discipline, or any person who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence.
      4. Second, under subsection 155(3) of the NDA, persons designated by commanding officers can arrest without warrant “[e]very person who is not an officer or non-commissioned member but who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence”.
      5. Under subsection 494(1) of the Criminal Code, civilians may only be arrested without warrant by other civilians if they are found committing an indictable offence,Footnote 360 or if they have committed a criminal offence and attempt to flee. The power to arrest without warrant civilians and former members of the CAF subject to the CSD is justified in analogous circumstances. Otherwise, members of the CAF should have no broader powers to arrest them without warrant than that of any civilian in Canada.Footnote 361
        • Recommendation #33. Subsection 155(3) of the National Defence Act should be replaced by a provision allowing officers or non-commissioned members of the Canadian Armed Forces, in the circumstances stated below, to arrest without warrant any person who is subject to the Code of Service Discipline, other than an officer or non-commissioned member, or any person who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence.
        • This power to arrest without warrant should only exist where someone (a) is found committing a serious offence; or (b) is believed on reasonable grounds to have committed a service offence, and is escaping from and freshly pursued by anyone who has lawful authority to make an arrest.
    3. Arrest Warrants
      1. All other arrests are required to be authorized by the prior issuance of an arrest warrant. Once more, the NDA provides, at subsection 157(1), for the issuance of arrest warrants only by commanding officers or by delegated officers.
      2. Subsection 157(1) of the NDA faced challenges under sections 7 and 8 of the Charter in Levi-Gould, where a military judge found that, in certain circumstances, “a commanding officer […], regardless of training, ethics or good intentions, is so involved in the investigatory functions performed by his closest advisors in his team that he or she cannot act in a judicial capacity when authorizing an arrest warrant”.Footnote 362
      3. Once Bill C-77Footnote 363 comes into force, it will impose a duty on commanding officers and delegated officers not to issue warrants “for the arrest of any person who is a member of, serving with, or attached or seconded to the same unit of the Canadian Forces as the officer”.Footnote 364 This limitation will be an improvement, but an insufficient one in my view.
      4. As a matter of policy, a person subject to the CSD should generally be entitled to have the issuance of an arrest warrant considered by a person who is truly neutral and detached from the leadership of the CAF. I see no principled reason not to allow military judges to assume the function of issuing warrants in most situations. The powers of commanding officers and delegated officers could remain available, but limited to the rare cases where judicial warrants could not be reasonably obtained in a timely manner.
        • Recommendation #34. The National Defence Act should be amended to allow military judges to issue arrest warrants for persons triable under the Code of Service Discipline, and permit the issuance of commanding officer or delegated officer arrest warrants only where a warrant cannot be reasonably obtained in a timely manner from a military judge.
      5. I would have been interested as well in reviewing the practical application of the arrest powers contained in the NDA. In fact, I asked to be provided with demographic data on arrests and pre-trial custody, including information relating to the particular communities (visible minorities, ethnical or cultural groups, sexual orientation etc.) with which the persons arrested or detained identified. I was told that no centralized data of this sort currently exists, and that the military police could only provide limited data, which would need validation prior to publication.
      6. I understand that both the CFPM and the Office of the JAG (“OJAG”) are taking steps to improve the availability of data on arrests. The MPAP is expected to address the current data limitations experienced by the military police, and the OJAG is participating in the development of the Justice Administration and Information Management System (“JAIMS”).Footnote 365 I am told that, once implemented, the JAIMS will capture the dates of arrests and the length of any pre-trial custody. I am told as well that it will be linked to the CAF’s human resource management system, which contains demographic information.
      7. In this light, I recommend that data and assessments on arrests and pre-trial custody be included by the CFPM and the JAG in their future annual reports. This will allow future reviewers of the military justice system to assess the practical implementation of the arrest and pre-trial custody regime. If such data and assessments reveal any concern of a systemic nature, the CFPM and the JAG should consider and implement solutions without waiting for the next independent review.
        • Recommendation #35. The Canadian Forces Provost Marshal and the Judge Advocate General should provide in their future annual reports data and assessments on arrests and pre-trial custody. The data should, at a minimum, include the number of arrests, the status of the persons making the arrest and the persons under arrest, the nature of the alleged service offences, the length of custody, and information pertaining to the particular communities with which the persons arrested or detained identified.
  4. Pre-Trial Custody
    1. I have several concerns about the pre-trial custody process as it currently stands. The process strikes me as overly burdensome and creates unwarranted delays for persons in custody. If a person is arrested and placed in custody (or “detained”), up to 24 hours can elapse before a report of custody is delivered to a custody review officer.Footnote 366 A further 24 hours can elapse before the custody review officer decides whether to detain or release the person, with or without conditions.Footnote 367
    2. A person cannot be released with conditions before the custody review officer receives the custody report. A person may thus remain detained solely to have release conditions determined by the custody review officer. Members of the military police should instead be authorized to release a person on an undertaking to comply with conditions. Peace officers in the civilian justice system have that authority.Footnote 368 Both the person released with conditions and the CAF should have the right to submit an application to a military judge for the review of the conditions set by a member of the military police.Footnote 369 They should subsequently have an appeal to the Court Martial Appeal Court of Canada.Footnote 370
      • Recommendation #36. Members of the military police who arrest persons subject to the Code of Service Discipline, with or without a warrant, or in whose custody persons under arrest have been committed, should have the authority to release the persons arrested if they give an undertaking, unless the persons are charged with a designated offence. The permissible conditions of an undertaking should be developed in light of the current content of section 158.6 of the National Defence Act and section 501 of the Criminal Code.
    3. However, even if this recommendation is implemented, a person arrested and detained may face undue delays and unnecessary burdens. Pending a decision by the custody review officer, arrested persons may now remain in custody for up to 48 hours without being brought before a judge – even when a judge is available.Footnote 371 In the civilian system, a person in custody must be taken before a justice “without unreasonable delay and in any event” “within a period of 24 hours”, if a justice is available, or “as soon as possible”, if a justice is not available within that period.Footnote 372
    4. There is no reason why persons in custody in the military justice system should not be brought as well before a military judge within a period of 24 hours, without first having to undergo the custody review process. The custody review officer should be relied on only when no military judge is readily available within a period of 24 hours.
    5. Finally, during my team’s educational briefings on military justice foundations, a legal officer from the OJAG expressed concern that persons in custody were at an increased risk of inadvertently providing self-incriminating evidence during the custody review process. This is because persons in custody must be given an opportunity to make representations for their release. Such representations, if any, must be attached to the report of custody delivered to the custody review officer.Footnote 373 In practice, persons in custody are therefore, in every case, asked whether they wish to make representations on their release. The risk they will inadvertently incriminate themselves in the process is obvious.
    6. I asked the OJAG whether representations of persons in custody had been used against them at trial and whether the JAG was satisfied that the current regime is satisfactory. The OJAG provided no data in response, but recognized that a person’s representations could open the door to the possibility of making self-incriminating statements. It also stated that it was “satisfied that there are adequate safeguards within the legislative framework for the military justice system against the risk of self-incrimination in pre-trial custody, and the subsequent use of improperly elicited statements”.Footnote 374 The principal safeguards relied on by the OJAG were the detained person’s right to call a lawyer of the Directorate of Defence Counsel Services to obtain free legal advice, the right to elect trial by court martial in several cases, and the rules of evidence governing the reception of evidence at court martial.
    7. These are desirable but insufficient safeguards. At a minimum, detained persons should be specifically instructed that any statements they make while in custody, including representations for their release, can be introduced in evidence against them at their trial. Moreover, I believe that the pre-trial custody process would be made fairer if detained persons were brought as soon as possible before a military judge to make their representations concerning their release with the benefit of legal counsel appointed by the Director of Defence Counsel Services.
      • Recommendation #37. A person committed to service custody should be brought before a military judge without unreasonable delay, and in any event within a period of 24 hours after arrest, if a military judge is available. Persons in custody should not be asked to make representations on their release from custody if they can be brought before a military judge within this period.
      • If no military judge is available within 24 hours after the arrest, the current pre-trial custody process should continue, but persons retained in custody should be specifically instructed that any statements they make while in custody, including representations for their release, can be introduced in evidence against them at their trial, and brought before a military judge as soon as practicable.
  5. Laying of Charges
    1. The laying of a charge commences the proceedings against a person who is alleged to have committed a service offence.Footnote 375 Since the coming into force of Bill C-15, subsection 161(2) of the NDA states that “[a] charge shall be laid as expeditiously as the circumstances permit against a person who is retained in custody or released from custody with conditions”.Charges for service offences may only be laid by a commanding officer, by an officer authorized by a commanding officer to lay charges or by a member of the CFNIS.Footnote 376 If the disciplinary investigation has been conducted by members of the uniformed military police, they may submit their charging recommendations to the accused’s commanding officer or to the person laying charges, but they may not lay charges themselves. In contrast, members of the uniformed military police may, as peace officers, lay criminal charges in the civilian justice system.Footnote 377
    2. A person who lays charges is instructed to obtain pre-charge legal advice for all charges, except those alleging a service offence committed less than six months earlier and for which there is no right to elect trial by court martial.Footnote 378
    3. Once charges are laid, they are referred to the commanding officer of the accused person, to the commanding officer of the base, unit or element in which the accused was present when the charges were laid or to a delegated officer.Footnote 379 Importantly, the officer to whom charges have been referred has discretion not to proceed (or to recommend not to proceed) with the charges.Footnote 380 This is called the pre-trial disposal of charges.
    4. Where no pre-trial disposal of the charges occurs, charges may be tried by summary trial in certain cases. In all other cases, the charges will be referred to a referral authority.Footnote 381 This is called the referral of charges. The officer deciding on the pre-trial disposal or referral of charges is instructed to obtain post-charge legal advice for substantially the same charges on which pre-trial legal advice was given.Footnote 382
    5. The referral authority must refer the charges to the Director of Military Prosecutions (“DMP”) “with any recommendations regarding [their] disposal that the [referral authority] considers appropriate”.Footnote 383 It may also direct the commanding officer or superior commander who referred the charges to try the charges by summary trial in cases which allow it.Footnote 384
      1. Duty to Lay Charges Expeditiously
        1. Subsection 161(2) of the NDA implements a recommendation of Chief Justice Lamer.Footnote 385 He referred to the existence of paragraph 505(b) of the Criminal Code, which requires that an information be laid in the civilian justice system as soon as practicable after a person under arrest has been released by a peace officer. This applies whether the release was made with an undertaking to comply with conditions or on the simple issuance of an appearance notice. Chief Justice Lamer could “find no military justification as to why the military justice system should differ from the civilian criminal justice system in this regard”.Footnote 386 However, he did not recommend there be a duty to lay charges as expeditiously as the circumstances permit against persons released from custody without conditions.
        2. In my view, the application of subsection 161(2) of the NDA remains too narrow. The duty should apply to charges against persons released from custody without conditions, especially given the military justice system’s particular need for a speedy enforcement of military discipline, which in turn requires speedy disposition of charges.
          • Recommendation #38. Subsection 161(2) of the National Defence Act should be amended to require that a charge be laid as expeditiously as the circumstances permit against any person, whether retained in custody or released from custody with or without conditions.
          • Section 107.031 of the Queen’s Regulations and Orders for the Canadian Forces should be amended to require any such person to be notified in writing, as soon as possible, of a decision not to lay charges against him or her.
      2. Authority of the Uniformed Military Police to Lay Charges
        1. The CFPM, among others, has recommended that all members of the military police, rather than only those assigned to investigative duties with the CFNIS, be granted the authority to lay charges for service offences. Two main sets of justifications were provided.
        2. First, there was a concern that some commanding officers or authorized charging officers may not be acting impartially in deciding whether, and which, charges are to be laid against members of their units. Numerous participants in my town hall meetings provided anecdotes to substantiate this concern.
        3. I heard about charging recommendations of members of the uniformed military police being rejected – even for serious offences – on the basis of extraneous and irrelevant considerations, such as the performance of the accused in the unit, a wish to give the accused “another chance” or to avoid compromising the accused’s career, or even the commanding officer’s reluctance to draw attention to the maintenance of discipline (or lack of discipline) under the officer’s command.
        4. The arbitrariness of the charging decisions based on such considerations is particularly apparent where several CAF members from different units are involved in a single offence or in offences against one another (such as a mutual assault). Members of the military police told me of cases which potentially resulted in an injustice when only some of the guilty CAF members involved in an incident were charged by their commanding officers.
        5. I also heard about serious offences being charged as less serious offences, either because of the extraneous and irrelevant considerations discussed above or to ensure summary trial jurisdiction by avoiding the rules governing election for trial by court martial.Footnote 387
        6. A member of the military police recounted one instance where a member of the CAF had assaulted a fellow policeman, attempted to disarm him and uttered threats to kill a third member of the military police sent in as reinforcement. But the attacker was only charged with service offences of drunkenness and quarrels and disturbances – and promoted a few weeks after a summary trial. Another member of the military police told me about a hate-motivated aggravated assault which left the victim in need of facial reconstruction, but the alleged perpetrator was only charged with service offences of drunkenness, abuse of a subordinate and conduct prejudicial to good order and discipline.
        7. These episodes raise serious concerns. In light of the constitutional and statutory protection against double jeopardy, charging less serious offences may ultimately result in serious Criminal Code offences being entirely ignored or going unpunished. Failing to charge or “undercharging” offences may also be a significant obstacle faced by the military justice system in its efforts to deter the commission of serious offences. Anecdotes such as these call into question a foundational principle frequently invoked by the CAF – that civil offences constituting breaches of military discipline must be punished more severely than the same offences committed by civilians. And they raise doubts whether the principle invoked is systematically applied in practice.
        8. The second justification in support of giving members of the uniformed military police the authority to lay charges is more practical. Currently, the requirement to turn over the results of an investigation to the chain of command creates unwarranted delays highlighted by the Auditor General in its 2018 report.Footnote 388
        9. Despite its disadvantages, few suggest that the authority of a unit’s chain of command to lay charges should be removed entirely. I am satisfied that this authority is needed. But granting the uniformed military police authority to also lay charges would not affect the chain of command’s own authority to do so. It would simply make the system more efficient and less susceptible to the fear and risk of bias or arbitrary decisions by a unit’s chain of command.
        10. In his 1997 report, which is the source and handbook of the modern military justice system, Chief Justice Dickson recognized that “for matters that are sensitive or of serious criminal nature, […] in order to ensure complete transparency of the process, […] the investigative body”, which became the CFNIS, should “be vested with the authority to lay charges”.Footnote 389 Almost 25 years later, the time is now right to extend the same rule, on the same basis, to all service offences investigated either by the CFNIS or by the uniformed military police. I am advised by the CFPM that the military police has the capacity to make the adjustments in training, policy, procedures and resources necessary to enable the uniformed military police to responsibly take on the authority to lay charges for service offences.Footnote 390
          • Recommendation #39. The words “assigned to investigative duties with the Canadian Forces National Investigation Service” in section 107.02 of the Queen’s Regulations and Orders for the Canadian Forces should be repealed to allow all members of the military police to lay charges. This recommendation should come into force once the Canadian Forces Provost Marshal has put in place the necessary resources, training, policy and procedures to allow all members of the military police to carry out this new function.
        11. If the members of the uniformed military police are granted the authority to lay charges, they will need to obtain pre- and post-charge legal advice, as explained.Footnote 391 The Military Justice Division of the OJAG already includes a Directorate of Canadian Forces Provost Marshal Legal Services. However, I was informed by the CFPM that the legal advisors posted to this directorate are not mandated to provide legal advice with respect to particular investigations. To the extent legal advice is needed by the uniformed military police, it is currently provided by local legal officers, who also advise other units of the CAF.
        12. In my view, pre- and post-charge legal advice to the uniformed military police would best be provided by legal advisors embedded within the Canadian Forces Military Police Group. Reliance on internal advisors rather than local legal officers would favour the development of internal expertise and lead to a greater consistency in charging decisions.
          • Recommendation #40. Legal advice for charges laid by members of the military police, other than those assigned to investigative duties with the Canadian Forces National Investigation Service, should be provided by legal advisors embedded in the Canadian Forces Military Police Group (in consultation with military prosecutors, as appropriate).
  6. Referral and Pre-Trial Disposal of Charges
    1. Once charges are laid, they are referred to the commanding officer of the accused or to other specified officers, who can decide not to proceed (or to recommend not to proceed) with the charges. If charges laid by the CFNIS are not proceeded with by the chain of command, the CFNIS has an exceptional right to insist that they nevertheless be referred to the DMP.Footnote 392
    2. Like many others participants in my review, the JAG stated that the chain of command’s power to decide not to proceed with charges laid by the CFNIS could be perceived as an attempt to exercise undue influence over military justice decisions. The JAG suggested that charges laid by the CFNIS should be directly referred to the DMP, without the intervention of the accused’s chain of command or of a referral authority. I fully endorse the JAG’s suggestion.
      • Recommendation #41. Charges laid by members of the military police assigned to investigative duties with the Canadian Forces National Investigation Service should be referred directly to the Director of Military Prosecutions, without the intervention of the accused’s chain of command.
    3. As mentioned earlier, concern about the impartiality of commanding officers in making charging decisions relating to members of their units is one reason to grant authority to lay charges to all members of the military police. It follows logically, one would think, that commanding officers should no longer have discretion not to proceed with the charges laid by any member of the military police.
    4. However, the solution for charges laid by members of the CFNIS cannot immediately be applied to charges laid by the uniformed military police. Indeed, the service offences investigated by the uniformed military police are typically less serious and may well be triable by summary trial, in which case the accused’s chain of command will need to be notified of the charges.
    5. This is a temporary problem. Once Bill C-77 comes into force, charges laid for service offences (as opposed to service infractions) will only be triable by court martial. Subsection 161.1(1) of the NDA will be amended to provide that charges of service offences “must be referred, in accordance with regulations made by the Governor in Council, to the Director of Military Prosecutions”.Footnote 393 It will then be possible to apply the recommendation for charges laid by members of the CFNIS to charges laid by members of the uniformed military police.
    6. Until then, a unit’s chain of command should be required to refer to the DMP charges laid by members of the uniformed military police for which it declines to proceed with summary trials. The only charges which would not be referred to the DMP in this context are charges for minor disciplinary misconduct for which no right to elect trial by court martial exists.Footnote 394 I am less concerned with the ability of commanding officers to decide whether or not a summary trial is needed for such charges.
      • Recommendation #42. Charges laid by members of the military police, other than those assigned to investigative duties with the Canadian Forces National Investigation Service, should continue to be referred first to the units’ chains of command. The units’ chains of command should, however, refer to the Director of Military Prosecutions all such charges for which they do not proceed by summary trial, except those which relate to service offences for which no right to elect trial by court martial exists.
      • Once An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, SC 2019, c 15 comes into force, all charges for service offences laid by members of the military police should be referred directly to the Director of Military Prosecutions, without the intervention of the accused’s chain of command.
    7. The remaining question relates to the process by which all charges may be referred to the DMP. The problem here is that the referral process can be quite lengthy. The Auditor General’s 2018 report states that “[a]fter charges were laid, the commanding officers and their superiors took 2 months, on average, to refer charges to the Director of Military Prosecutions”.Footnote 395 According to the Military Justice System Time Standards developed by the OJAG following this report, the maximum time which officers should now take to refer charges to a referral authority is 14 days. The maximum time the referral authority should subsequently take to refer the charges to the DMP is 30 days.Footnote 396 In light of these delays, the JAG has suggested that charges that would currently be referred to a referral authority be referred directly to the DMP instead. I agree with this suggestion as well.
      • Recommendation #43. All charges which are currently referred to a referral authority should be referred directly to the Director of Military Prosecutions, without the intermediation of a referral authority. The charges referred to the Director of Military Prosecutions should be accompanied by any recommendation regarding their disposal that the units’ chains of command consider appropriate, if any.

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