Communications with Service Authorities

DMP Policy Directive
Directive #: 005/00
Date: 15 March 2000
Updated: 1 September 2018
Cross Reference: N/A

Subject: Communications with Service Authorities

Application of Policy

1. This policy shall apply to Prosecutors¹ authorized by the Director of Military Prosecutions (DMP) to assist or represent the DMP pursuant to section 165.15 of the National Defence Act (NDA) in preferring charges to Court Martial and in conducting prosecutions at Courts Martial.

Introduction

2. Service authorities have a legitimate interest in the military justice system since the prosecution of offences has a direct effect upon morale and discipline within the unit. Accordingly, the NDA and the Queen's Regulations and Orders for the Canadian Forces (QR&O) define specific avenues whereby these interests are expressed by service authorities and considered by the Prosecutor. It is necessary for Prosecutors to understand the needs and requirements of the chain of command throughout the Court Martial process after a charge is referred to the DMP.

Statement of Policy

3. Prosecutors are expected to maintain effective communication with service authorities in order to keep the chain of command engaged in Court Martial matters. Such inclusiveness is subject, however, to the necessary independence required of Prosecutors in exercising prosecutorial discretion throughout the Court Martial process.

Practice/Procedure

4. An application to a referral authority for disposal of a charge, pursuant to QR&O article 109.03, includes a brief summary of the circumstances surrounding the commission of the alleged offence, including the nature and prevalence of the alleged offence, the degree of premeditation, the harm caused, and any other extenuating or aggravating circumstance that may be considered relevant.² Further, the application may include a recommendation concerning the disposal of a charge. Where the charge is eventually referred to the DMP, all of this information, conveyed in this manner, is considered by the Prosecutor in the course of exercising his or her discretion.

5. Charges forwarded by the referral authority to the DMP, pursuant to QR&O article 109.05, may also include the recommendation of the referral authority concerning the disposal of the charge. Any recommendation conveyed in this manner should be considered by the Prosecutor in the course of exercising his or her discretion.

6. The information and recommendations described above are only a part of what a Prosecutor must consider. Any exercise of prosecutorial discretion must take into account a constellation of relevant facts and circumstances, and must at all times conform with prevailing jurisprudence, best practices and all policies issued by the DMP. However, the Prosecutor is not bound to accept or comply with any views or recommendations as described above.

Proactive Communication with Service Authorities

7. In order to ensure that service authorities maintain an awareness of those matters that are proceeding through the Court Martial process, Prosecutors shall communicate with the appropriate service authorities as set out below.

Assignment Letter

8. When a matter is referred to the DMP for disposal of a charge, the regional DDMP will assign the matter to a specific Prosecutor for post-charge review. The assignment of the file will be communicated to the Prosecutor by an assignment letter that shall be copied to the referral authority, to the Commanding Officer of the accused, the appropriate Assistant Judge Advocate General (AJAG) or Deputy Judge Advocate (DJA), the Deputy Judge Advocate General/Regional Services (DJAG/Reg Svcs), the Director of Defence Counsel Services (DDCS) and for cases of sexual misconduct offences, to the DDMP - Sexual Misconduct Action Response Team (SMART).

Further Investigation

9. For those matters investigated by the Canadian Forces National Investigation Service (CFNIS), the Prosecutor shall coordinate directly with the lead investigator or with the CFNIS investigator's officer in command. Any requests for further investigation shall be made in writing to the investigator and his or her officer in command detailing what investigation is required and a deadline for completion after consultation with the investigating officer. When such request is made, the referral authority, the accused's Commanding Officer, the applicable AJAG, the regional DDMP and DDMP SMART, as required, shall be informed that additional disclosure or investigation has been requested and that a specified deadline has been given for the completion of such request.

10. For those matters investigated by a unit or by the Military Police, any requests by the Prosecutor for further investigation shall be made directly to the investigative agency. When such request is made, the referral authority, the accused's Commanding Officer, the applicable AJAG/DJA, the appropriate unit legal advisor, the regional DDMP and DDMP SMART, as required, shall be informed that additional disclosure or investigation has been requested and that a specified deadline has been given for the completion of such request.

Preferral/Non-preferral of Charge

11. When the Prosecutor prefers a charge he or she shall inform the referral authority, the Commanding Officer of the accused, the DDCS, the applicable AJAG/DJA, the DJAG/Reg Svcs, the Judge Advocate General through the Deputy Judge Advocate General Military Justice (DJAG/MJ) as well as the regional DDMP and DDMP SMART, for cases of serious sexual misconduct, of his or her decision.

12. If the Prosecutor determines that there is not a reasonable prospect of conviction or that the public interest does not require that a prosecution be pursued, the Prosecutor shall inform the accused, the investigator, legal counsel for the accused, the referral authority, the commanding officer of the accused, the DDCS, the applicable AJAG/DJA, the DJAG/Reg Svcs, the JAG through DJAG/MJ Ops as well as the DDMP and DDMP SMART, for cases of serious sexual misconduct, of his or her decision not to prefer the charge.³

13. In the interests of maintaining proactive communications with the investigator, Prosecutors shall follow-up with the investigator after a decision on post-charge has been made to ensure that the investigator is aware of the decision and to discuss next steps, as applicable.

14. Before a non-preferral decision is made the Prosecutor should first inform the appropriate AJAG/DJA of his or her intention to non-prefer. This provides an opportunity for the AJAG to inform the Prosecutor of any other matters that may require consideration before the charges are non-preferred but also serves to keep the AJAG/DJA informed of the decision of the Prosecutor. It should be emphasized that any decisions to non-prefer remain within the scope of prosecutorial discretion and ultimately rest with the Prosecutor.

Sentencing

15. Service authorities have a direct interest in the sentence that should be imposed for the offence if the accused pleads guilty or is adjudged guilty after a Court Martial. In order to ensure the appropriate enforcement of discipline in a specific case, Prosecutors may consult with the applicable service authorities regarding their position on sentencing. Although the Prosecutor is not bound by the recommendations of those service authorities, he or she should take them into consideration when making representations regarding sentencing at trial.

Withdrawal of Charges

16. Should the Prosecutor decide to withdraw charges, he or she, if providing written notice to the Court Martial Administrator before the commencement of the Court Martial, shall inform the referral authority and the Commanding Officer of the accused by correspondence.⁴ Such correspondence shall be copied to the regional DDMP, DDMP SMART, for cases of serious sexual misconduct, legal counsel for the accused, the DDCS, the applicable AJAG/DJA, the DJAG/Reg Svcs, the JAG through the DJAG/MJ and the officer in command of the applicable CFNIS or military police detachment.

17. The accused shall be served with a Notice of Withdrawal of a Charge unless he or she has been made aware of the withdrawal of charges in open court.

Post-Court Martial Communications

18. Following the final disposition of charges by Court Martial, the referral authority and the Commanding Officer of the accused shall be informed of the outcome of the Court Martial.⁵ Such communication shall be done by message and shall be copied to the applicable AJAG, the DJAG/Reg Svcs, the JAG through the DJAG/MJ Ops, the DMP and the DDCS.

19. Once a court martial has been completed, where the investigator in the matter was a member of the CFNIS, the Prosecutor shall provide the investigator with a copy of the Court Martial Summary Sheet and provide feedback to the investigator in order to address any concerns which may have arisen during the course of the court martial. The intent of the feedback is to identify and address areas of mutual concern with the aim of improving the quality of future investigations.

20. Once a court martial has been completed, where the investigator in the matter was a member of the Military Police or a unit investigator, the Prosecutor shall, through the unit legal advisor, provide feedback to the investigator and the officer in command of the detachment or the unit commanding officer in order to address any concerns which may have arisen during the course of the court martial. The intent of the feedback is to identify and address areas of mutual concern with the aim of improving the quality of future investigations.

21. Where appropriate, the Prosecutor may discuss issues related to the investigation directly with the unit investigator but only with the concurrence of the unit legal advisor and the officer in command of the detachment or the unit commanding officer.

Other Issues

22. Any other issues that, in the opinion of the Prosecutor, should be discussed with the appropriate service authorities shall be left to the discretion of the Prosecutor. Such issues may include minor procedural matters such as assistance from the unit in serving the charge sheet to the accused or assistance in coordinating meetings with witnesses.

23. For those other issues that, in the opinion of the Prosecutor, are not minor in nature, the Prosecutor is encouraged to consult with the DMP, the regional DDMP or DDMP SMART, as required, before communicating with any service authority.

24. If a Prosecutor perceives that a service authority has attempted to improperly influence his or her exercise of prosecutorial discretion, he or she shall report the incident to the regional DDMP and DDMP SMART when appropriate.

Availability Of This Policy Statement

25. This policy statement is a public document and is available to members of the CAF and to the public.

Footnotes

¹ Any reference in this policy to "Prosecutor" or "Prosecutors" refers to those officers who have been appointed to assist and represent the Director of Military Prosecutions (DMP) in the exercise of the powers given to the DMP by sections 165.11 to 165.13 of the National Defence Act and subject to any limitations as set out in the Canadian Military Prosecution Service Policy Manual.

² See QR&O article 109.03 and Note C following.

³ See QR&O article 110.04(3).

⁴ See QR&O article 110.10.

⁵ See for example, QR&O articles 112.05(23) and 112.06(5).