QR&O: Volume II - Chapter 102 Investigation and Laying of Charges

Effective 1 january 2006, the official version of the QR&O is that published in PDF format on this website.

A consolidation of the QR&O volumes in official PDF version were made as of the 3 July 2019. The HTML version on this website is provided solely for the convenience of readers. Any discrepancies between the HTML and the official PDF version should be reported to the DSCS, Corporate Secretary.

The last modifications to the QR&O came into force on 20 June 2022.

Amendment List:

20 June 2022 – replaced article: 102.01
20 june 2022 – article 102.01 renumbered from 106.01
20 June 2022 – replaced article: 102.02
20 june 2022 – article 102.02 renumbered from 106.02
20 June 2022 – replaced article: 102.03
20 june 2022 – article 102.03 renumbered from 106.03
20 June 2022 – replaced article: 102.04
20 june 2022 – article 102.04 renumbered from 107.02
20 June 2022 – replaced article: 102.05
20 June 2022 – new article: 102.06
20 June 2022 – new article: 102.07
20 June 2022 – new article: 102.08
20 june 2022 – article 102.08 renumbered from 107.05
20 June 2022 – new article: 102.09
20 june 2022 – article 102.09 renumbered from 107.08
20 June 2022 – new article: 102.10
20 June 2022 – replaced article: 102.11
20 June 2022 – repealed articles: 102.12 to 102.14
20 June 2022 – repealed articles: 102.17 and 102.18
20 June 2022 – repealed articles: 102.20 to 102.24
1 September 2018 – note repealed: 102.01
1 September 2018 – article amended: 102.17
18 July 2008 – Amended Article: 102.22
30 November 1997 – repealed article: 102.19

History:

(Refer carefully to article 1.02 (Definitions) when reading every regulation in this chapter.)

102.01 – APPLICATION

This chapter applies to investigations conducted to determine whether or not a service offence or a service infraction has been committed and to the laying of charges at the conclusion of the investigations.

(C) [1 September 1999]

(G) [P.C. 2022-0268 effective 20 June 2022: 102.01 is replaced and renumbered from 106.01]

(C) [Note to article 102.01 – repealed on 1 September 2018]

Section 1 – Investigations

102.02 – INVESTIGATION

(1) If an appropriate authority in the military justice system receives a complaint or has other reasons to believe that a service offence or a service infraction has been committed, the authority must cause an investigation to be conducted as soon as circumstances permit to determine whether there are sufficient grounds to lay a charge.

(2) If the appropriate authority in the military justice system believes that the service offence or service infraction was committed against a person or that a person may have suffered physical or emotional harm, property damage or economic loss as a result of the alleged commission of the offence or infraction, the authority must obtain advice from their legal advisor before causing the investigation to be conducted.

(G) [P.C. 2022-0268 effective 20 June 2022: 102.02 is replaced and renumbered from 106.02]

102.03 – SCOPE OF THE INVESTIGATION

(1) The investigation must, as a minimum, collect all reasonably available evidence relevant to a determination of whether a service offence or a service infraction has been committed.

(2) Any complaint that is frivolous or vexatious need not be investigated.

(G) [P.C. 2022-0268 effective 20 June 2022: 102.03 renumbered from 106.03]

Section 2 – Laying of Charges

102.04 – PERSONS AUTHORIZED TO LAY A CHARGE

The following officers and non-commissioned members may lay charges under the Code of Service Discipline:

(a) a commanding officer;

(b) an officer or non-commissioned member authorized by a commanding officer to lay charges;

(c) a member of the military police assigned to investigative duties with the Canadian Forces National Investigation Service; and

(d) any other member of the military police assigned to investigative duties.

(G) [P.C. 2022-0268 effective 20 June 2022: 102.04 renumbered from 107.02]

102.05 – NO TERRITORIAL LIMITATION

Section 163.5 of the National Defence Act provides:

“163.5 Every person alleged to have committed a service infraction may be charged under the Code of Service Discipline, regardless of whether the alleged service infraction was committed in Canada or outside Canada, and the summary hearing in respect of that charge may be conducted in Canada or outside Canada.”

(C) [20 June 2022 – 102.05 is replaced]

102.06 – PRIOR TRIAL FOR OFFENCE

Subsection 162.6(1) of the National Defence Act provides:

“162.6 (1) If a person has been tried in respect of an offence, the person may not be charged with having committed a service infraction arising from the same facts, regardless of whether the person was found guilty or not guilty of the offence by a court martial, by a civil court or by a court of a foreign state.”

(C) [20 June 2022]

102.07 – PROCEDURE FOR THE LAYING OF A CHARGE

(1) A charge is laid when an officer or non-commissioned member authorized to lay charges has a reasonable belief that a service offence or service infraction has been committed and reports the following information in writing:

(a) the name, rank and unit or element of the person alleged to have committed a service offence or a service infraction;

(b) a statement of the service offence or service infraction allegedly committed;

(d) the name, rank, position and signature of the officer or non-commissioned member who is laying the charge and the date of their signature.

(2) Before laying a charge, the officer or non-commissioned member referred to in paragraph (1) must obtain advice from the unit legal officer concerning the sufficiency of the evidence, whether or not in the circumstances a charge should be laid and the appropriate charge, if

(a) the charge concerns a person against whom a service offence or a service infraction is alleged to have been committed or who is alleged to have suffered physical or emotional harm, property damage or economic loss as a result of the alleged commission of the offence or infraction; or

(b) the charge alleges the commission of a service offence.

(G) [P.C. 2022-0268 effective 20 June 2022]

102.08 – LAYING OF ALTERNATIVE CHARGES

Charges related to the commission of a service offence may be laid in the alternative if

(a) the allegations are considered capable of supporting a finding of guilty of

(i) one of several service offences, or

(ii) a particular service offence but, failing proof of one or more elements of that offence, another service offence; and

(b) the actual service offence may only be determined by trial.

(G) [P.C. 2022-0268 effective 20 June 2022: 102.08 renumbered from 107.05]

102.09 – DUTY TO ACT EXPEDITIOUSLY

Section 162 of the National Defence Act provides:

“162 Charges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.”

(G) [P.C. 1999-1305 effective 1 September 1999]

(C) [20 June 2022 – 102.09 is replaced and renumbered from 107.08]

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102.10 – NOTICE OF DECISION TO LAY CHARGES

(1) As soon as the circumstances permit, the officer or non- commissioned member who laid the charge must provide a copy of the report referred to at paragraph 102.07(1) to

(a) the person charged with having committed a service offence or a service infraction, and

(b) any person against whom a service infraction is alleged to have been committed or who is alleged to have suffered physical or emotional harm, property damage or economic loss as a result of the alleged commission of the infraction.

(2) When the officer or non-commissioned member who laid the charge notifies the person charged, the officer or non- commissioned member must request the following information from the person charged:

(a) the desired official language of the proceedings;

(b) if the person is alleged to have committed a service infraction, whether the person desires the appointment under article 121.02 of an officer or non-commissioned member to assist and, if so, whether the person requests the appointment of a particular officer or non- commissioned member;

(c) if the person is alleged to have committed a service offence, whether the person desires to be represented by legal counsel either appointed by the Director of Defence Counsel Services or retained at the person’s own expense.

(G) [P.C. 2022-0268 effective 20 June 2022]

102.11 – NOTICE OF DECISION NOT TO LAY CHARGES

The officer or non-commissioned member described in article 102.04 who decides not to lay a charge must, as soon as the circumstances permit, notify

(a) the person alleged to have committed a service offence or a service infraction;

(b) the officer who directed that the person be retained in custody or released the person with conditions under article 105.22, if applicable; and

(c) any person against whom a service infraction is alleged to have been committed or who is alleged to have suffered physical or emotional harm, property damage or economic loss as a result of the alleged commission of the infraction.

(G) [P.C. 2022-0268 effective 20 June 2022 – 102.11 is replaced]

(G) [P.C. 2022-0268 effective 20 June 2022 – 102.12 to 102.14 are repealed]

[102.15 and 102.16: not allocated]

(G) [P.C. 2022-0268 effective 20 June 2022 – 102.17 and 102.18 are repealed]

(G) [P.C. 1997-1584 effective 30 November 1997 – 102.19 is repealed]

(G) [P.C. 2022-0268 effective 20 June 2022 – 102.20 to 102.24 are repealed]

[102.25 to 102.99: not allocated]

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Date modified:: 2018-10-05

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