DAOD 7002-1, Boards of Inquiry

Table of Contents

1. Introduction
2. Commencement
3. Report
4. Forwarding and Staffing Procedures
5. Requests for Information
6. References

1. Introduction

Date of Issue: 2002-02-08

Date of Last Modification: 2011-03-08

Application: This DAOD is a directive that applies to employees of the Department of National Defence (DND employees) and an order that applies to officers and non-commissioned members of the Canadian Armed Forces (CAF members).

Approval Authority: Chief Review Services (CRS)

Enquiries: Administrative Investigation Support Centre (AISC)

2. Commencement

Board of Inquiry (BOI) Subjects of Investigation

2.1 A BOI may be convened to investigate any matter described in subsection 45(1) of the National Defence Act. A BOI shall be convened if:

1. specifically required by QR&O, a directive or an order; or
2. directed by higher authority.

2.2 A BOI is also normally convened if:

1. a matter to be investigated is of unusual significance or complexity;
2. a CAF member is suspected to have wilfully caused their own death or serious injury; or
3. detailed medical information is required to report on any matter.

Note – Regulations in respect of the investigation of an aircraft accident are set out in Section 8 of QR&O Chapter 21, Summary investigations and Boards of Inquiry. However, an aviation safety investigation conducted under the authority of the Aeronautics Act is not subject to the DAOD 7002 series.

Actions Prior to Convening a BOI

2.3 Prior to convening a BOI, a convening authority shall:

1. obtain legal advice from the nearest representative of the Judge Advocate General (JAG) regarding matters such as the appropriate type of investigation to be conducted;
2. contact the AISC to:
   1. obtain advice on selection of the appropriate administrative investigation (a BOI, SI or informal investigation);
   2. receive sample convening orders, lessons learned and best practices for the convening and conduct of a BOI; and
   3. coordinate mandatory training for all DND employees and CF members involved in a BOI; and
3. ensure the AISC receives a draft copy of the convening order.

2.4 A convening authority shall refer the matter to higher authority and not convene a BOI if:

1. any of QR&O subparagraphs 21.06(3)(a) to (c), Convening Authorities – Boards of Inquiry, have application in the circumstances of the investigation; or
2. suitable members for the BOI are not available under the command of the convening authority.

BOI Purpose

2.5 A convening authority shall not convene a BOI if any purpose of the BOI is to obtain evidence relating to a potential breach of the Code of Service Discipline or to assign criminal responsibility.

2.6 The purpose of a BOI shall be ascertainable from its convening order and the conduct of its proceedings.

2.7 The convening order for a BOI shall not call for the assignment of criminal liability with respect to a specific person whose conduct is to be examined. If the BOI compels a person to testify, the evidence obtained from that person shall be relevant to a purpose other than to compel that person to give self-incriminating evidence.

2.8 If it is determined that a BOI cannot be completed without receiving evidence that relates to the commission of an offence:

1. the president of the BOI shall adjourn the BOI and notify the convening authority; and
2. the convening authority shall refer the matter to the nearest JAG representative for legal advice.

Convening Order for a BOI

2.9 A convening authority shall provide a BOI with a written convening order in accordance with QR&O article 21.09, Convening Order. The convening order shall:

1. state the purpose of the convening authority for the investigation;
2. be detailed and explicit;
3. set out the matters on which findings are to be made;
4. identify the following persons:
   1. members of the BOI, including the president;
   2. advisors appointed to assist the investigation; and
   3. administrative staff appointed to support the investigation
5. specify the matters on which recommendations are required, including recommendations to prevent recurrence;
6. normally require that the cause of the matter being investigated be found;
7. establish the latest date for the assembly of the BOI;
8. establish the minimum security classification or designation of the report; and
9. contain the following paragraphs:
   
   "Should the BOI receive evidence that permits it to reasonably believe that an offence has been committed, the BOI shall adjourn and notify the convening authority, and the matter shall be referred to the nearest JAG representative for legal advice.
   
   The BOI shall inquire into all matters referred to it for investigation. If during the course of an investigation, a matter arises which raises issues involving the propriety of a military police investigation or other military police-related conduct, the matter shall be forwarded for further disposition to the convening authority."

Members of a BOI

2.10 The members of a BOI shall be appointed in accordance with QR&O articles 21.08, Composition of Boards of Inquiry,and 21.081, Boards of Inquiry Conducted by a Military Judge. In particular, a member shall not be appointed if any of QR&O sub-subparagraphs 21.08(2)(d)(i) to (iii) have application in the circumstances of the investigation.

2.11 The recommended rank for the president is major or above.

2.12 The recommended number of members appointed to a BOI is three or more. Only in exceptional circumstances may only two persons be appointed.

2.13 During the conduct of a BOI, the following conditions apply:

1. all members shall conduct the investigation and hear all witnesses together;
2. a member who does not participate in the investigation with the other members shall be removed from the BOI by amending the convening order;
3. a member may not be replaced after the first witness has been questioned by the BOI;
4. the number of members shall not fall below the minimum established in QR&O paragraph 21.08(1); and
5. a member shall continue with their BOI duties until the completion of the BOI or until the convening authority removes the member.

Advisers to a BOI

2.14 QR&O article 21.14, When Adviser to Board of Inquiry Permitted, provides for the appointment of advisers to a BOI. If it is expected that information to be received by a BOI may include technical matters, the convening authority shall consider the selection and appointment of an appropriate adviser.

2.15 A convening authority shall appoint, with the concurrence of the JAG or an officer acting on the JAG's behalf, a legal officer to the BOI to provide legal advice, as necessary, during the conduct of the BOI.

2.16 Other advisers who may be appointed include:

1. a medical officer in the case of a death, injury, serious illness or other health issue;
2. a social worker for an apparent suicide;
3. a chaplain for a BOI that is sensitive in nature;
4. a public affairs officer for a BOI that may attract media attention;
5. a military police member, particularly if a concurrent police investigation is ongoing during the conduct of a BOI; and
6. specific technical advisers, as required, if it is not practical or appropriate to appoint a member of the BOI with the required qualifications.

2.17 The convening authority shall consider any conflict of interest and the appearance of a conflict of interest prior to the appointment of an advisor.

Attendance by a Seriously Injured CAF Member or Representative

2.18 Prior to the commencement of a BOI relating to the serious injury or death of a CAF member, the president, upon consultation with the convening authority, shall determine, subject to legal, security and operational limitations, if it would be appropriate to invite the seriously injured CAF member or a representative of the deceased CAF member to attend some of the BOI meetings. The president shall inform the person of the decision.

2.19 If a seriously injured CAF member is unable to attend, the convening authority may approve the CAF member sending a representative.

2.20 If an invited representative is unable or chooses not to attend, the president shall keep the representative informed of the progress of the BOI.

2.21 No travel or other expenses incurred by a representative who attends BOI meetings may be reimbursed if the representative is not called as a witness at the BOI.

Action by Convening Authority During Conduct of the BOI

2.22 The convening authority shall ensure that:

1. the members and other CF member involved in the BOI have sufficient freedom from other duties to fully participate in and concentrate on the BOI;
2. reasonable arrangements are made for accommodation, support staff and equipment to conduct the BOI; and
3. an administrative officer or senior non-commissioned member of the resource management support specialty is appointed to coordinate administrative support.

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3. Report

Contents

3.1 A BOI shall produce a report of the investigation such that the analytical process of the BOI can be critically evaluated. Each paragraph in a BOI report shall be numbered to assist with the review process. The report shall consist of the following:

1. a declaration by the BOI containing the signatures of all members indicating their endorsement of the content of the report;
2. a table of contents;
3. an executive summary;
4. a statement by the BOI if required (see the Statement by the BOI block);
5. a contextual narrative (see the Contextual Narrative block);
6. a summary of evidence if required (see the Summary of Evidence block);
7. an analysis, including:
   1. findings; and
   2. recommendations;
8. annexes, including:
   1. the convening order;
   2. any notice of adverse evidence (NOAE) and any cancellation of an NOAE;
   3. a record of requests to the BOI and decisions by the BOI, including any request made by a person who receives an NOAE and the response to the request;
   4. exhibits;
   5. evidence, including:
      • transcripts of testimony; and
      • documents and things obtained and used by the BOI but not introduced as exhibits;
9. any interim reports required by the convening authority; and
10. minutes setting out the comments of the convening authority and other review authorities in respect of the report.

3.2 The AISC shall provide a recommended template to be used in preparing the report. An Administrative Investigation Review and Staffing Form shall be attached to the report and completed as the report proceeds through the approval process.

3.3 The president shall ensure that a draft of the report is forwarded to the AISC for review and application of best practices and lessons learned.

Statement by the BOI

3.4 A statement by the BOI is not always required. However, if the president or any other member has knowledge of relevant circumstances for which evidence is not available, a statement setting out the circumstances shall be included.

3.5 The statement shall also include a dissenting member's opinion if the members are unable to agree on a matter within the convening order (see QR&O paragraph 21.15(2), Procedure on Completion of a Board of Inquiry).

3.6 The statement may also include:

1. an explanation as to why certain witnesses did not testify;
2. support for the designation of certain witnesses as experts;
3. a record of opinions of BOI members concerning the credibility of witnesses if:
   1. there is a conflict of evidence; or
   2. the president is not satisfied with the accuracy of any particular witness statement or other evidence; and
4. an explanation of any other pertinent matter.

Contextual Narrative

3.7 The contextual narrative shall include a short description in chronological order of the pertinent circumstances leading up to the matter before the BOI.

3.8 The contextual narrative shall not contain conclusions or opinions.

Summary of Evidence

3.9 In the case of a complex or highly technical BOI, a summary of evidence shall normally be included in the report. The president may direct that a summary of evidence be prepared to:

1. assist review authorities to understand the evidence;
2. discuss theories of causation; or
3. explain the testimony of experts.

Findings

3.10 The findings of a BOI shall be supported by relevant evidence contained in the report. The exact source of the evidence, such as the name, unit and position of the witness who provided a document, shall be indicated clearly in the Findings section of the report.

3.11 A BOI shall only make an adverse finding against a person if:

1. the finding is necessary to satisfy the requirements of the convening order;
2. the BOI has complied with the instructions as to adverse findings under the Adverse Impact of Evidence and Incriminating Statements map in DAOD 7002-4, Examination of Witnesses; and
3. the finding is not expressed in language of criminal or civil liability.
   
   Example: A BOI is convened to investigate the circumstances involving a vehicle accident and personal injuries during a road move. The BOI may make a finding that the officer in charge "failed to properly supervise personnel during the road move of G Battery from CFB Shilo to CFB Wainwright during 25-27 June 2009." The BOI shall not make a finding that the officer "negligently performed imposed duties" as such language could imply the contravention of section 124 or 129 of the National Defence Act.

3.12 An adverse finding respecting a person shall be supported by relevant and credible evidence.

Recommendations

3.13 A BOI shall make specific recommendations if required by:

1. QR&O, a directive or an order; or
2. the convening order.

3.14 A BOI shall not recommend that:

1. a charge be laid; or
2. an administrative action be taken against any person.

Annexes

3.15 A document or thing included as an annex shall not be used as a substitute for the testimony of a witness whose attendance can be readily procured.

3.16 In exceptional circumstances, if a BOI considers a document or thing not received during the testimony of a witness, the BOI shall include the document or thing as an annex.

3.17 The nature and source of any annex shall be explained in a statement by the BOI.

3.18 A police report or a report under QR&O Chapter 106, Investigation of Service Offences, shall not be included as an annex.

3.19 A copy of each annex shall be attached to each copy of the report. If a suitable copy cannot be made, the annex shall be attached to the original copy of the report and an explanatory note shall be attached to each of the other copies, for example: "This page represents a site plan of CFB X."

Testimony of Witnesses

3.20 See DAOD 7002-4 for instructions on the examination of witnesses.

Exhibits

3.21 During their testimony, a witness may offer a document or thing that is relevant to establishing a fact or to assist in explaining other evidence. The document or thing shall be received as an exhibit when the witness is testifying. Some examples of exhibits are maps, site plans, photographs, computer records and models.

3.22 The witness shall testify as to the origin, accuracy and relevancy of an exhibit. The transcript of the witness shall indicate at what point in the testimony the exhibit was received.

3.23 Exhibits are numbered consecutively and continuously.

3.24 A copy of any portion of a statute, QR&O article, other regulation, directive, order or instruction referred to by a witness shall be introduced as an exhibit and included in the report.

3.25 A police report or a report made under QR&O Chapter 106 shall not be received as an exhibit but forwarded as a separate document accompanying the BOI report. If a police report is unavailable, the name of the police detachment investigating the incident or matter shall be given in the statement by the BOI.

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4. Forwarding and Staffing Procedures

Submission of Report

4.1 The president shall submit the report, with the required number of copies as stated in the convening order, to the convening authority, with an accompanying Administrative Investigation Review and Staffing Form obtained during mandatory BOI training. This form shall accompany the report throughout the review process.

4.2 The AISC may be contacted for a sample form.

First Level of Review

4.3 As the first level of review, the convening authority shall:

1. complete a comprehensive review of all findings and recommendations to ensure their support by the evidence in the report;
2. if further evidence, corrections or amendments are required, order that the BOI be reassembled;
3. ensure that the members have applied required principles of procedural fairness during the conduct of the BOI;
4. ensure that any person against whom an adverse finding has been made received an NOAE;
5. indicate in the minutes of the report if concurring or not concurring with each of the findings and recommendations and, if not concurring, provide reasons;
6. state the administrative, operational and technical action taken or contemplated, including any:
   1. write-off;
   2. administrative deduction;
   3. change in procedures;
   4. unsatisfactory condition report action; or
   5. preventive measure
7. ensure any preventive measure is instituted as soon as possible;
8. add other pertinent comments, including, if applicable, orders for dissemination of information or recommended training that could prevent a recurrence; and
9. advise the members of any error, omission or shortcoming relating to the conduct of the BOI.

4.4 The matter investigated determines whether the convening authority may approve the report or shall submit it to a higher authority for review and approval.

Briefing of a Seriously Injured CF Member or a Representative

4.5 Once the convening authority who convened a BOI to investigate the serious injury or death of a CAF member has completed the first level of review of the report, the president shall conduct a preliminary meeting with the seriously injured CAF member or a representative of the deceased CAF member to discuss:

1. general information related to the conduct of the BOI;
2. the findings and recommendations as they relate to the seriously injured or deceased CAF member;
3. whether the convening authority did not concur in any of these findings or recommendations;
4. the provision of a severed copy of the report, once approved at the highest level; and
5. continued communications throughout the review process.

4.6 The president should indicate to the seriously injured CAF member or representative that the report is subject to change upon review by higher authorities.

Time Limits

4.7 The convening authority shall submit the report to all applicable higher authorities for review or approval as soon as possible upon completion of the first level of review.

4.8 If a higher authority requires more than 45 days for review prior to submitting the report to the next level, the higher authority shall advise the authority at the next level of the:

1. reasons for the delay; and
2. expected submission date.

4.9 The total review and approval process should not take more than six months.

Action by Higher Authorities

4.10 After having reviewed the report, any higher authority shall:

1. indicate in the minutes of the report if concurring or not concurring with each of the findings and recommendations and, if not concurring, provide reasons;
2. state the administrative, operational and technical action taken or contemplated, including any:
   1. write-off;
   2. administrative deduction;
   3. change in procedures;
   4. unsatisfactory condition report action; or
   5. preventive measure;
3. ensure any preventive measure is instituted as soon as possible; and
4. add other pertinent comments including, if applicable, orders for dissemination of information or recommended training that could prevent a recurrence.

4.11 The higher authority may also take any other action as set out in the First Level of Review block, as appropriate in the circumstances.

4.12 The higher authority shall submit the report to the authority at the next level if:

1. required by QR&O, a directive or an order, or a higher authority; or
2. the higher authority through whom the report was submitted has no authority to approve the report or implement the recommendations made.

Final Approving Authority

4.13 The final approving authority shall:

1. review the report;
2. approve or not approve each of the findings and recommendations and, if not approving, provide reasons;
3. give direction as appropriate;
4. send a letter of completion to the convening authority;
5. for a BOI relating to the serious injury or death of a CAF member, send a letter of closure to the seriously injured CAF member or the representative of the deceased CAF member; and
6. send the original report, once approved, including all supporting documents and the staff action plan, to the AISC for retention purposes.

Staff Action Plan

4.14 A convening authority or higher authority who has authority to implement one or more of the recommendations shall prepare and implement a staff action plan which provides:

1. guidance for implementation of approved recommendations; and
2. a system for tracking progress.

4.15 The staff action plan shall be included with the report and forwarded to the next level of review until it reaches the final approving authority.

Letter of Closure to a Person Who Made a Complaint

4.16 After the completion of a BOI, the final approving authority shall, upon request, provide a letter of closure to a person who made a complaint that resulted in the conduct of the BOI.

Letter of Closure – NOAE

4.17 A person who has received an NOAE shall be sent a letter of closure. The final approving authority shall provide the letter of closure stating, as applicable:

1. that no finding or recommendation has been made in respect of the person; or
2. if a finding or recommendation has been made in respect of the person:
   1. the finding or recommendation; and
   2. the reasons for not concurring with the finding or recommendation if such is the case.

NDHQ Approval

4.18 The report shall be forwarded to NDHQ through the appropriate chain of command for approval by or on behalf of the Chief of the Defence Staff (CDS) in any of the following matters:

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5. Requests for Information

Requests by the Public

5.1 All requests by the public for information concerning a BOI shall be referred to the Director Access to Information and Privacy (DAIP) at NDHQ.

Requests by Provincial and Territorial Government

5.2 The Government of Canada has existing arrangements and agreements with several provincial and territorial governments concerning access, use and disclosure of personal information. The purpose of these agreements is to administer or enforce laws or carry out lawful investigations.

5.3 Any request from a provincial or territorial government for a copy of a report shall be included with the report and forwarded to the DAIP as soon as possible.

Requests by CAF Members

5.4 A CAF member requesting information concerning a BOI should refer to:

1. DAOD 1001-1, Formal Requests for Access to Departmental Information; and
2. DAOD 1001-2, Informal Requests for Access to Departmental Information.

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6. References

Acts, Regulations, Central Agency Policies and Policy DAOD

• National Defence Act
• QR&O Chapter 21, Summary Investigations and Boards of Inquiry
• DAOD 7002-0, Boards of Inquiry and Summary Investigations

Other References

• Aeronautics Act
• QR&O Chapter 106, Investigation of Service Offences
• QR&O article 210.60, Witness Fees and Allowances
• DAOD 1001-1, Formal Requests for Access to Departmental Information
• DAOD 1001-2, Informal Requests for Access to Departmental Information
• DAOD 7002-2, Summary Investigations
• DAOD 7002-3, Subjects of Investigation and References
• DAOD 7002-4, Examination of Witnesses
• CFAO 210-1, Civilian Witnesses - Fees and Expenses
• Administrative Investigation Review and Staffing Form (available at the AISC)