Schedule L

CF MP Gp Order 2-363 – Laying criminal and service charges

This order applies to all MP and MPO assigned to law enforcement and policing duties anywhere in Canada or abroad.

All MP members employed in a policing function have the authority to lay a charge under the CC. Only MP employed within the Canadian Forces National Investigation Service (CFNIS) are authorized to lay NDA charges against persons subject to the CSD.

Any MP member laying a charge must have an actual reasonable belief that the accused has committed the alleged offence.
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 suspect'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. Both elements must be present for there to be sufficient grounds to lay a charge.

The exercise of discretion lies at the heart of the policing function. It is well recognized that successful policing depends on the exercise of discretion on how the law is enforced.
MP must consider issues such as fairness, justice, accountability, consistency and wider CF interests and expectations when deciding whether or not to lay a charge. By virtue of their appointment, all MP are accountable for such decisions. The decision shall not display arbitrary and inexplicable differences in the way that different people are treated by the MP. With every decision to lay a charge, the MP must act in accordance with statutes and policies and exercise their discretion fairly and without partiality or favor. The policy regarding the application of investigative discretion is set out in CF MP Gp Order 2-340.

Unlike an MP assigned to CFNIS investigative duties, MP detachment members do not have charge laying authority for offences under the NDA. In circumstances where the MP have formed a reasonable belief that an individual has committed a service offence, they shall submit their findings in report format to the offender’s commanding officer (CO) for disciplinary action, including charges, as deemed appropriate.
The report submitted to the CO must contain sufficient information to establish the elements of the offence for the anticipated charge(s). The MP report shall be compiled in accordance with the direction contained in CF MP Gp Order 2-126.
The military justice system shall be considered as having primacy when choosing to proceed through either the civilian court system or the military justice system. CF MP Gp Order 2-300 explains the principle primacy of the military justice system and the cases where matters shall be forwarded to civilian courts for resolution.
A decision as to whether a charge should be laid through either the civilian court system or the military justice system should be made in consultation with the chain of command with advice from the local deputy judge advocate (DJA).

The procedure to lay charges differs by province. In some provinces, a charge is laid when an information has been sworn in front of a justice of the peace or a judge. In other provinces, the information must be presented to the Crown prosecutor who lays the charge. MP/MPO must familiarize themselves with and follow the charge laying processes and procedures of their respective province in those cases where it would be appropriate to refer the matter for resolution to civilian authorities.

An information (Form 2 of CC) is a formal document, sworn under oath and signed by a justice of the peace or a judge, alleging a specific adult or young offender committed a specific offence. When MP "lay charges", they swear that the alleged offence described in this document occurred. The original is retained with the court registry which brings the matter before the courts. All criminal charges start in a provincial court with an information.
There are four general purposes for an information, they are:
1. to commence proceedings against the accused;
2. to inform the accused about the specific allegation;
3. to indicate that the allegation has been sworn under oath before a justice of the peace or a judge; and
4. if the alleged offence is a summary conviction offence, to indicate that a formal charge was laid within the statutory six-month limitation period.
An information must be laid as soon as is practicable after the offender’s arrest and release and before the court date specified on the document.

Whether an investigation has been completed or not, MP shall not hesitate to seek legal advice from the applicable military or civilian prosecutors. Local DJA and regional military prosecutors are available for legal consultation on MP investigations relating to NDA offences. In appropriate circumstances, Crown attorneys could be contacted for legal advice on criminal offences but the DJA should be included in deference to the primacy of the military justice system. Ongoing liaison shall be conducted with a detachment’s respective legal advisors and Crown attorneys.

Attachments:

NIL

Approval Authority:

COS

OPI:

DPM Pol & Plans

Issued:

6 May 2015

Supersedes:

CF MP Gp Order 2-363, dated 14 Feb 2014
MPPTP Chap 2, Anx H, dated Feb 08
MPPTP, Chap 6, Anx A, dated Oct 07

References: