Canadian Forces National Investigation Service – Standard Operating Procedure – Chapter 2 – Police Operations – 238 – Charge Laying
References:
CF MP Gp Order 2-300 – Law Enforcement Operations – General
CF MP Gp Orders 2-340 – Military Police Investigation Policy – General
CF MP Gp Order 2-340.1 – Investigative Discretion and Investigative Assessments
CF MP Gp Order 2-130 – Distribution of Military Police Investigation Case Files
CF MP Gp Order 2-363 – Laying Criminal and Service Charges
QR&O 102 – Disciplinary Jurisdiction
QR&O 103 – Service Offences
QR&O 106.02 – Investigation before Charge Laid
QR&O 107.015 – Meaning of “Charge”
QR&O 107.09 – Referral and Pre-Trial Disposal of Charge
QR&O 107.12 – Decision not to Proceed – Charges laid by National Investigation Service
QR&O 109.03 – Application to Referral Authority for Disposal of a Charge
CFNIS SOP 201 – Investigations – General
Aim
The purpose of this SOP is to outline the procedures to be followed by CFNIS investigators with respect to the laying of charges under the National Defence Act (NDA).
Definitions
The following definitions apply to this SOP:
service offence: an offence under the NDA, the Criminal Code or any other Act of Parliament, committed by a person subject to the Code of Service Discipline (CSD). It may also include an offence under foreign law if committed in a place where the law is applicable by a person subject to the CSD; and
charge: IAW ref I, a charge is a formal accusation that a person subject to the CSD has committed a service offence. A charge is laid when it is reduced to writing in Part 1 (Charge Report) of the Record of Disciplinary Proceedings (RDP), which is the form CF 78, and signed by a person authorized to lay charges.
General
CFNIS investigators may lay charges under the NDA when they form reasonable grounds to believe the evidence gathered during the course of an investigation supports the elements of a service offence. Prior to laying a NDA charge, CFNIS investigators shall consult their Regional Military Prosecutor (RMP) who will review the evidence as part of the pre-charge screening process. Investigators should note that despite the elements of an offence being met, it is not always necessary to lay a charge and under some circumstances they may exercise their discretion and refer the matter back to a unit for administrative or disciplinary action. In such instances, the reason(s) must be clearly documented in SAMPIS and within the report cover letter.
IAW ref A, CFNIS investigators are to respect Military Police (MP) policy reflecting primacy of the Military Justice System when contemplating charging persons subject to the CSD.
Investigation before Charges Laid under the NDA
IAW ref H, where a complaint is made or when there are other reasons to believe that a service offence may have been committed, an investigation should normally be conducted as soon as practical.
Upon completion of the investigation, the lead investigator may form the grounds that an offence was committed and may be in a position to believe the subject(s) of the investigation committed an offence.
In some circumstances, the matter may be referred back to the subject’s unit for resolution (administrative and/or disciplinary action) as deemed appropriate. In such instances, IAW ref D, CFNIS OCs are authorized to fully release all information acquired during the investigation (except standard exemptions such as Solicitor-Client Privileged information, 3rd party reports, victim personal details, etc).
Note: IAW Ref D, the CO of the subject(s) shall receive a copy of the Military Police Investigation Case File (MPICF) with minimal exclusions. Where investigators have any questions regarding whether it is appropriate to redact certain information from their investigative file prior to providing it to the subject’s CO for resolution, they shall consult their local RMP for advice.
Involvement of RMP and Pre-Charge Screening/Advice
A RMP has been appointed for each of the CFNIS regions to provide legal advice during the course of investigations and assist in the preparation of the RDP. When investigators have legal questions, it is imperative they contact the RMP at the onset of an investigation and maintain communication until conclusion of the file.
Upon completion of a CFNIS investigation where charges are being considered, IAW QR&O 107.03, a pre-charge screening package will be submitted by the investigator to the RMP through the Regional WO/MWO and OC. The pre-charge screening package will consist of the following:
an electronic RMP Brief including a synopsis describing the facts supporting the elements of the offence of any proposed charges;
charges proposed by the investigator on an unsigned draft RDP form;
a property items list;
audio/video recordings of interviews; and
other items, as requested by the RMP.
The pre-charge screening package will also include a cover letter (see Annex A for template) signed by the OC or Regional WO/MWO and a completed 728 for tracking purposes.
The RMP should provide advice concerning the sufficiency of the evidence, whether or not in the circumstances a charge should be laid and, where a charge should be laid, the appropriate charge(s). The advice received from the RMP may be used by investigators to help determine if they have an actual belief that the suspect has committed the alleged offence and whether that belief is reasonable. A reasonable belief is a belief which would lead an ordinarilyprudentandcautiousperson, placed in the charge layer’s position, to the conclusion that the accused is “probably guilty” of the offence allegedly committed.
At this point, RMP will respond back to investigators with a Pre-Charge Form indicating one of the following responses:
Response 1: RMP concurs with the proposed charge(s) as is, and recommends investigators charge the individual;
Response 2: RMP concurs with the pre-charge screening, but not with the proposed charge(s). This may include the removal, addition or re-wording of a proposed charge;
Response 3: RMP does not concur with the pre-charge screening at this point, and have questions he/she feels require additional investigation prior to moving ahead. This could lead to additional investigational steps by investigators, allowing these questions to be answered so that additional consideration of the investigative file can be made by investigators and, where appropriate, RMP to assess whether or not in the circumstances a charge should be laid; and
Response 4: RMP does not concur with the pre-charge screening and does not support/recommend the proposed charge(s) be laid, do not have any outstanding questions, and do not have any additional charge(s) to recommend. This could be due to the RMP’s opinion of the sufficiency of the evidence, or consideration of the interest of the public in going forward with the charge(s), or the negative prospect of a conviction.
It is important to note that any comments offered by the RMP is considered “Solicitor-Client Privileged” information and shall not be disclosed by CFNIS under any circumstance.
Note: any exception to this paragraph will be at the discretion of the RMP.
If RMP provides an opinion through the Pre-Charge Form which differs from that of the investigator, and the investigator is not in agreement, the matter will be referred to CO CFNIS who will discuss with the Director of Military Prosecution (DMP) and provide a decision on the way ahead.
Drafting of the Charge
The accused has the right to request that the charge be laid in either official language. The CFNIS investigator laying a charge shall ensure the documentation (CF 78) is provided in the requested official language.
There are two components of the actual charge:
Statement of the offence: the offence is the one set out in the NDA (E.g. An act punishable under Section 85 of the National Defence Act, that is to say Insubordination).
Statement of the particulars: every statement of the particulars of an offence must include sufficient details to enable the accused to be reasonably informed of the offence alleged to have been committed and thereby able to properly defend the matter. A statement of the particulars of an offence should, when practical, include an allegation of the place, date and time of the alleged commission of the offence.
Media Release
Prior to serving the charge, CFNIS DCO will be advised and provided a draft media release to allow a media plan and Media Response Lines (MRL) to be prepared in advance. A minimum of 5 days prior to serving the charge is required, if the situation allows.
Laying of Charges – Presence of Commanding Officer and Accused
It is recommended that the investigator responsible for the file be the individual who lays the charge and serves the charge on the accused. However, where circumstances prevent the investigator who lays the charge from serving the RDP on the accused, the investigator can make arrangements for the RDP to be served on the accused by an alternate CAF member. Where an alternate CAF member is selected, the investigator must ensure that all requirements related to serving a charge to an accused are coordinated.
The investigator serving the charge will make arrangements to serve the charge to the accused in the presence of the accused’s Commanding Officer (CO) or designate. This can be coordinated by contacting the CO or Regimental Sergeant Major (RSM) of the accused’s unit.
The CO of a member being charged will be provided the original RDP (CF 78). Under normal circumstances, the accused will be served a copy of the RDP in the presence of his/her CO or delegated representative. The accused will sign the original CF 78 acknowledging that he/she has been served the RDP.
It should be noted that the NDA does not require the presence or the signature of the accused for a charge to be considered “laid”. In the event a RDP has been signed and the accused is not available (i.e. released or reserve member not on duty), the investigator may provide the member’s CO the RDP and arrange for the accused to receive a copy of the RDP at a later date.
A RDP Statement of Service shall be compiled once the RDP has been served. Where an accused is charged with a designated offence (defined in Section 196.26 of the NDA), it is imperative that the CO sign the section directing the member to attend a designated location for the purpose of fingerprinting and photography (pursuant to Section 196.27 NDA) as this is the only means of compelling the accused to do so. If the accused is not present at the time of RDP service, this document may be served to him/her at a later date.
Timeline Considerations
CFNIS investigators must be cognizant that the timeline for disposal of the charges commences once the RDP is signed; therefore, if there is a foreseeable delay in service of the RDP it should not be signed until arrangements are in place to do so. If the trial is not completed within 18 months following the charging of the subject, the defence can request a stay of proceedings based on a possible infringement of s. 11(b) of the Canadian Charter of Rights and Freedoms as outlined in R v Jordan, 2016 SCC 27.
Another thing to take into consideration is that a person who is charged with an offence that may proceed by Summary Trial cannot be tried by Summary Trial unless the charge is laid within six months of the alleged offence and the Summary Trial commences within 1 year after the day on which the service offence was alleged to have been committed. However, IAW QR&O 108.171, an accused can waive the limitation period in relation to both the six month period to lay a charge and the one year period to commence a Summary Trial.
Disclosure
The police and prosecution share a constitutional responsibility and ongoing obligation to disclose all information and material in their possession or control which is not privileged or clearly irrelevant to the accused, irrespective of whether the prosecution intends to introduce the material into evidence.
R v Stinchcombe, [1995] 1 SCR 754 reaffirmed that every accused has a constitutional right under Section 7 of the Canadian Charter of Rights and Freedoms to be provided with disclosure of all relevant information under the control of the prosecuting authorities prior to the commencement of a trial. Furthermore, deliberate failure to disclose relevant information may constitute obstruction of justice and lead to criminal charges, although this duty to disclose is still subject to rules of privilege. Finally, the courts have decided (R v McNeil, 2009 SCC 3) that findings of serious misconduct by police officers involved in the investigation against an accused must be part of the disclosure package. In case of doubt as to whether information is relevant, the matter should be brought to the RMP who will make a decision concerning the relevance of the information.
Note: at the time of drafting this SOP, the CF MP Gp did not have an existing order relating to proactive McNeil disclosure on the part of the MP. As such, investigators should consult RMP for all matters related to McNeil disclosure.
It is important to realize that the constitutional responsibility and standard for disclosure is the same whether or not a matter proceeds by Summary Trial or Court Martial, although the manner in which disclosure is effected at the Summary Trial level is different (accused is afforded access through his/her CO vice defense counsel being provided a full copy).
Investigation Packages – Summary Trial or Non-Electable Offences
When a charge is laid for an offence in which the accused has the ability to proceed summarily or for a non-electable summary offence, initial disclosure will consist of three copies of the CFNIS investigation to the accused’s CO. Two non-redacted copies for the CO’s use in the referral and pre-trial charge disposal processes, and one redacted copy provided to the accused who can seek the assistance of his/her Assisting Officer in reviewing the disclosure. This is the minimum standard and investigators must realize that they are required to inform the accused, either verbally or in writing at the time he/she is charged, that he/she is entitled to access to all relevant information mentioned in the investigation, including written statements, audio/video recordings, real evidence, documents, police notes and any other relevant material related to the accusation(s). This redacted investigation package is necessary to afford the accused sufficient information to make an informed decision as to how he/she wishes to elect to be tried and/or prepare his/her defense at Summary Trial. However, this package must be redacted to ensure certain confidential or protected information, which may include personal information of persons involved such as witnesses and/or victims, is redacted in the interest of protecting such information and the privacy rights of certain persons.
Note: Without limiting what may be considered for redaction in the copy of the CFNIS investigative file disclosed to the accused in the circumstances of this paragraph, the following is information that should be considered for redaction: Solicitor-Client Privileged information (required to be redacted), confidential informant information (required to be redacted), third party records, information related to ongoing investigations, confidential medical health information related to persons other than the accused, public interest privileged information, etc. Where information is to be redacted from a copy of the CFNIS investigative file disclosed to the accused, advice should be sought from the RMP who conducted the pre-charge review of the investigation.
Note: Where, as a result of having the option to elect, an accused person elects to proceed by Court Martial or the CO and/or Superior Commander are of the opinion that a charge should be referred to a Referral Authority, the CO of the accused must, IAW QR&O 107.14, cause the first copy of the CFNIS investigative file to be placed on the Unit Registry. In addition, the referral application sent to the Referral Authority by the CO and/or the Superior Commander must, IAW QR&O 109.03, include the second copy of the CFNIS investigative file provided to the CO.
The three copies of the CFNIS investigation delivered to the accused’s CO will be accompanied by a cover letter (see Annex B for template).
Investigation Packages Proceeding to Court Martial
When charges provide no option but to be handled through Court Martial, the CO of the accused must be provided two copies of the full investigation, accompanied by a cover letter (see Annex C for template) which must include a clear statement directing that the investigation package is for the CO’s use only and may not be disclosed to the accused. Disclosure to the accused will be made by military prosecutors at a later date if the charge(s) proceed to Court Martial.
Note: Without limiting what may be considered for redaction in the two copies of the CFNIS investigative file provided to the CO in the circumstances of this paragraph, the following is information that should be considered for redaction: Solicitor-Client Privileged information (required to be redacted), confidential informant information (required to be redacted), third party records, information related to ongoing investigations, confidential medical health information related to persons other than the accused, public interest privileged information, etc. Where information is to be redacted from the two copies of the CFNIS investigative file provided to the CO, advice should be sought from the RMP who conducted the pre-charge review of the investigation.
Once a charge has been preferred following post-charge review, CFNIS investigators are required to provide DMP with sufficient copies of full electronic disclosure for the prosecution and each accused person(s).
Disclosure will be of a consistent standard although variances may be present depending upon each investigation. The general principle to be applied is that any material that will be relied upon by the prosecutor or that will assist the accused in making full answer and defense to the charges they face must be disclosed. To that end, the following items fall within the rules of disclosure and as such, the disclosure package must contain the following material:
a Cover Page, followed by a Table of Contents indexing all material. The index shall be linked to the relevant material for ease of access;
a copy of the RMP Brief related to the investigation;
a copy of all related MP report(s);
a copy of all recordings (audio/video) of all interview(s);
a copy of all MP notes;
a copy of all forensic reports;
a copy of all expert reports;
a copy of any transcripts of interviews that are in possession of the MP/CFNIS;
a copy of all information to obtain a search warrant, all search warrants, and other judicial authorizations obtained during the course of the investigation and copies of ongoing returns pursuant to such authorizations;
a copy of any other documents such as investigation plans or operational briefs generated during the course of the investigation;
information relevant to the credibility of witnesses that is known to the MP/CFNIS;
a copy of approved charges (RDP);
contact information for the accused and witnesses listed in the RMP Brief;
a copy of all documentation in the possession of the MP/CFNIS relating to any pre-trial custody of the accused;
a copy of all Board of Inquiry (BOI) reports or letters, a copy of summary investigation reports, a copy of civilian police investigative reports (note that release of civilian police reports must be IAW privacy laws applicable to the police service of jurisdiction), and a copy of any other reports in the possession of the MP/CFNIS relating to the incident from which the charge(s) arose;
a copy of all documentation in the possession of the MP/CFNIS relating to any pre-trial administrative/career actions taken in regards to the accused as a result of the incident which form the basis for the charge(s), including any and all email correspondence; and
McNeil Reports for each MP or CFNIS member actively involved with the file.
Disclosure Exclusions
CFNIS investigators will ensure RMP is aware of all exclusions as it is the prosecution’s mandate to decide what will or will not be disclosed. In addition, where the disclosure to RMP includes information that CFNIS believes should not be disclosed, the lead investigator will bring this to the RMP’s attention in writing. Such information may include privileged information, confidential medical health information, information with an elevated privacy value, or a public interest privilege at common law or IAW the Canada Evidence Act. Where the lead investigator has any questions IRT potential exclusions from disclosure, they must engage RMP.
Material that is of a nature that CFNIS initially determines that it cannot be reproduced or distributed to either the prosecution or defense will be brought to the attention of the RMP in writing. This information must be documented in a manner that will allow the prosecutor to inform the defense of the nature of the information not disclosed.
Note: Such information may include material that is illegal to possess under Canadian Law, such as child pornography, or material having a high level of confidentiality or secrecy attached.
Once the RMP is notified in writing of any relevant material in the possession of the CFNIS which has not been disclosed, the RMP may determine that access to this material is required by prosecution and/or is required to be disclosed to defense in order to promote the administration of justice. In either circumstance, the CFNIS will request written confirmation from RMP of what material is to be provided and under what circumstances. Ultimately, the decision not to disclose relevant material in the possession of the CFNIS rests with the prosecution, not CFNIS. As such, after receiving written instructions from the prosecutor, the CFNIS will provide copies of all information collected during the course of an investigation to the prosecution and, if necessary, make recommendations as to what information should not be disclosed. CFNIS investigators shall not black out information but highlight the information they wish to withhold prior to providing it to the prosecution. However, if the prosecution decides to withhold information, the prosecution may direct investigators to black out portions of documents. In general, prosecutors should not black out information themselves as to do so creates a situation in which only they can explain in Court why the information was withheld.
Format of Disclosure
The format in which disclosure is to be provided has not been set in legislation. In order to minimize cost, every effort should be made to provide disclosure in an electronic format whenever possible. However, in cases where the defense argues that it does not have the technological capability to view the disclosure material, the investigator(s) will be required to provide everything in a non-electronic format.
After Charges are Laid
The accused’s CO or Superior Officer will review the full CFNIS investigation and determine, based on its contents, whether or not they are willing to proceed by referring the charges to a Superior Commander.
A CO or Superior Commander who decides not to proceed with a charge laid by a CFNIS investigator shall communicate the decision in writing along with the reasons for the decision to the CFNIS as per ref K, whereby CFNIS may deal with the matter as per ref L.
Civilian Judicial System
Should jurisdictional limitations such as those described in Section 70 NDA or other exceptional situations arise, CO CFNIS may authorize investigators to lay charges utilizing the Civilian Judicial System. RMP should be consulted and the situation discussed. In these cases, following the laying of charges, the accused’s chain of command shall be notified immediately that the member has been charged in civilian court and an MPIR reflecting the results of the full investigation shall be completed and distributed in an expedient manner.
