Communications with Unit Legal Advisors

DMP Policy Directive
Directive #: 009/00
Date: 15 March 2000
Updated: 1 September 2018
Cross Reference: N/A

Subject: Communications with Unit Legal Advisors

Application of Policy

1. This policy applies to Prosecutors¹ when communicating with unit legal advisors on matters that are related to military justice.

Introduction

2. Although the Prosecutor and the unit legal advisor have separate roles in the military justice system, they may be required to communicate from time to time on certain matters as they proceed through the military justice system. Such communication is necessary to progress a matter through the military justice process in an efficient and effective manner.

3. However, such communication must also be subject to specific parameters that permit the required degree of coordination but do not impact on the independence of the Prosecutor and the exercise of prosecutorial discretion.

Statement of Policy

4. Prosecutors will communicate with unit legal advisors to ensure the efficient passage of all relevant information. Throughout the Court Martial process Prosecutors and unit legal advisors must assist one another as each of them will, at times, be responsible for a matter proceeding through the military justice system. It is essential that they ensure proper coordination while still maintaining the independence necessary to exercise prosecutorial discretion.

Practice/Procedure

5. As Prosecutors and unit legal advisors may be required to work on the same matter as it progresses through the military justice system, timely communication is necessary to ensure the expeditious progress of a file through the military justice process.

Prosecutor/Unit Legal Advisor Coordination

6. Those occasions where a Prosecutor and a unit legal advisor must coordinate to progress a matter through the military justice system include the pre-charge screening stage, post-charge review, post court martial communications and those times where the unit legal advisor is acting as a second chair prosecutor.

Pre-charge Screening

7. Normally the Prosecutor only provides pre-charge screening advice to the Canadian Forces National Investigative Service (CFNIS). However, for those matters investigated by a unit or by the military police that, if charges were preferred, would result in an automatic Court Martial for the accused the Prosecutor shall provide pre-charge screening advice to the appropriate unit legal advisor.²

8. In those cases, the responsible unit will contact their legal advisor who will review the file and determine whether the appropriate charges would result in an automatic Court Martial. If, after a thorough review of the file, the unit legal advisor determines that the appropriate charges would result in a court martial, the unit legal advisor shall forward the file with his or her recommendations to the applicable Regional Military Prosecutor (RMP) office as expeditiously as possible.

9. A Prosecutor from that RMP office shall then provide advice to the unit legal advisor as to whether there is a reasonable prospect of conviction, whether or not in the circumstances a charge should be laid and, where a charge should be laid, the appropriate charge.

10. Prosecutors shall only provide advice to unit legal advisors after the unit legal advisor has thoroughly reviewed the file and forms the opinion that, should charges be laid, that those charges would result in an automatic court martial for the accused. Prosecutors shall not provide legal advice on the file where the unit legal advisor is of the opinion that, based on the facts contained in the file, no charges are warranted.

11. The Prosecutor’s legal advice shall be forwarded to the unit legal advisor in writing as set out in Annex B to Policy Directive 002/99 (Pre-Charge Screening) unless, in the opinion of the Prosecutor, a more detailed memorandum is required due to the complexity and or the seriousness of the proposed charge(s). Whether Annex B or a detailed memorandum is used, the Prosecutor shall clearly advise as to the recommended course of action and shall provide the basis for that advice. After providing pre-charge legal advice, the Prosecutor shall follow up with the unit legal advisor and address any questions or concerns arising from that advice.

12. This advice shall be forwarded to the unit legal advisor in writing.³ If the Prosecutor deems the file incomplete for these purposes, it will be returned to the unit legal advisor for further investigation or a recommendation that charges do not proceed.

13. Prosecutors shall not provide legal advice directly to unit authorities. All pre-charge screening advice shall be provided by the Prosecutor to the applicable unit legal advisor.

Post-charge Review

14. On occasion, there may be investigations completed by the CFNIS where the Prosecutor conducted the pre-charge screening and the accused elects to be tried by Summary Trial. In such cases, the unit legal advisor will be responsible to provide legal advice pursuant to Queen’s Regulations and Orders for the Canadian Forces (QR&O) 107.11. If contacted by the unit legal advisor for information related to the case, the Prosecutor should, while protecting any information subject to solicitor/client privilege, provide any relevant information in order to assist the unit legal advisor with his or her advice.

15. Should a Prosecutor conduct a pre-charge screening and an accused subsequently elects Summary Trial, the unit legal advisor should inform the Prosecutor of the final disposition of the case once they are aware that the matter has been disposed.

16. Conversely, there may be investigations completed by the unit or by the military police where the accused elects to be tried by Court Martial. In such cases the unit legal advisor would have provided pre-charge legal advice pursuant to QR&O 107.03. As the Prosecutor will be responsible to conduct post-charge review he or she may contact the applicable unit legal advisor to gather all relevant information to assist him or her to conduct the review.

Non-Preferral of Charges

17. Before a non-preferral decision is made the Prosecutor should first inform the appropriate Assistant Judge Advocate General (AJAG) 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 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.

Post Court Martial Communications

18. Once a court martial has been completed the Prosecutor shall provide feedback through the unit legal advisor, 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.

19. 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 unit commanding officer.

Second Chair

20. In order to contribute to the professional development of unit legal advisors as well as to improve the quality of prosecutions through greater local situational awareness, the Director of Military Prosecutions (DMP) and the Deputy Judge Advocate General Regional Services (DJAG/RS) have concluded an agreement whereby Deputy Judge Advocates (DJA) will participate as second chairs to Prosecutors in preparation for and conduct of Courts Martial.⁴

21. Where a DJA wishes to act as a second chair the DJA should consult with the Prosecutor assigned to the file who will seek permission to have the DJA participate as the second chair from the regional DDMP. Where the regional DDMP concurs, he or she shall request that the DMP appoint the unit legal advisor to assist and represent him or her as a second chair in that matter.

22. The assigned Prosecutor will provide a copy of the disclosure package to the unit legal advisor who will then assist in the file. The Prosecutor will always have the final decision-making power on the determination to be made at the post-charge stage as well as the conduct of the trial.

23. When a DJA is engaged in second chairing activities, he or she is working for the DMP pursuant to NDA section 165.15 of the NDA, and not for the AJAG. As such, DJAs will be directed not to report prosecution privileged information related to the particular Court Martial to the AJAG or to any Regional Services authority. Any communication related to the particular Court Martial by the DJA to any service authority, the AJAG or any other person is subject to the direction of the Prosecutor. In particular, when a DJA is engaged in second chairing activities, he or she shall not provide disciplinary or administrative advice to the chain of command regarding the accused that is being prosecuted.

24. Any disagreement between the Prosecutor and the DJA as to the interpretation or application of provisions of this arrangement on a particular file shall be resolved through discussions between the applicable AJAG and the regional DDMP.

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 Policy Directive 002/00 on pre-charge screening advice.

[3] See Annex B of Policy Directive 002/00 on pre-charge screening advice.

[4] Any DJA who acts a second chair on a prosecution must first be 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 165.14 of the National Defence Act and subject to any limitations as set out in the Canadian Military Prosecution Service Policy Manual.