ARCHIVED - QR&O: Volume II – Chapter 107 – Preparation, Laying and Referral of Charges (Historical version: 1 September 2018 to 19 June 2022)

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Amendment List:

• 1 September 2018 – paragraph amended: 107.015(2)
• 1 September 2018 – paragraph amended: 107.03(1)
• 1 September 2018 – new article and note: 107.031
• 1 September 2018 – subparagraph amended: 107.04(2)(b) (French version only)
• 1 September 2018 – article repealed: 107.06
• 1 September 2018 – article amended: 107.07
• 1 September 2018 – article repealed: 107.075
• 1 September 2018 – article amended: 107.08
• 1 September 2018 – article amended: 107.10 (English version only)
• 1 September 2018 – paragraph amended: 107.11(1)
• 1 September 2018 – article amended: 107.13
• 1 September 2018 – new paragraphs: 107.14(5.1), (5.2) and (8)
• 1 September 2018 – notes (A) and (B) amended: 107.14
• 1 September 2018 – article amended: 107.15
• 1 September 2018 – note (C) amended: 107.16
• 1 June 2014 – Amended article: 107.02
• 1 June 2014 – Amended article note: 107.05
• 1 June 2014 – Amended article: 107.12
• 18 October 2012 – Amended Article: 107.16
• 18 July 2008 – Amended Article: 107.08

History:

• ARCHIVED – Historical version for the period of 1 June 2014 to 31 August 2018
• ARCHIVED – Historical version for the period of 19 October 2012 to 31 May 2014
• ARCHIVED – Historical version for the period of 18 July 2008 to 18 October 2012
• ARCHIVED – Historical version for the period of 5 June 2008 to 17 July 2008

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

Section 1 – General

107.01 – DEFINITION

In this chapter, “delegated officer” means an officer to whom a commanding officer has delegated powers of trial and punishment pursuant to subsection 163(4) of the National Defence Act (see article 108.10 – Delegation of a Commanding Officer's Powers).

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

107.015 – MEANING OF “CHARGE”

(1) For the purposes of proceedings under the Code of Service Discipline, a “charge” is a formal accusation that a person subject to the Code has committed a service offence.

(2) A charge is laid when it is reduced to writing in Part 1 of the Record of Disciplinary Proceedings (see article 107.07 – Form of Record of Disciplinary Proceedings) and that Part is signed by a person authorized to lay charges.

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-0433 effective 1 September 2018 – (2)]

NOTES

(A) A charge should not be confused with a complaint. A complaint is a report by any person, military or civilian, alleging that a service offence has been committed.

(B) Responsibilities and entitlements in the Canadian Forces are often assigned based on a member's rank and position in the service. For example, a warrant officer serving in a unit will have certain responsibilities for the well-being of his subordinates which those who hold lesser rank may not have. Similarly, pay and other entitlements reflect the increased responsibilities which ordinarily accompany promotion to higher rank. These necessary distinctions are reflected in a number of provisions of the National Defence Act and regulations made thereunder. However, in other matters, it is essential that members be treated equally, regardless of their rank, particularly in the administration of the Code of Service Discipline. For instance, it is the evidence surrounding the alleged commission of the offence and not the accused's rank, which will be determinative when deciding whether or not to lay a charge.

(C) [1 September 1999]

107.02 – AUTHORITY TO LAY CHARGES

The following persons 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; and

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

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2014-0575 effective 1 June 2014]

NOTE

There must be an actual belief on the part of the person laying a charge that the accused has committed the alleged offence and that belief must be reasonable. A “reasonable belief” is a belief which would lead any ordinary prudent and cautious person to the conclusion that the accused is probably guilty of the offence alleged.

(C) [1 September 1999]

107.03 – REQUIREMENT TO OBTAIN ADVICE FROM LEGAL OFFICER – CHARGES TO BE LAID

(1) An officer or a non-commissioned member having authority to lay charges shall obtain advice from a legal officer before laying a charge in respect of an offence that:

(a) is not authorized to be tried by summary trial under article 108.07 (Jurisdiction – Offences);

(b) is alleged to have been committed by an officer or a non-commissioned member above the rank of sergeant;

(c) if a charge were laid, would give rise to a right to elect to be tried by court martial (see article 108.17 – Election to be tried by Court Martial); or

(d) is alleged to have been committed more than six months before the day on which the charge would be laid.

(2) The officer or non-commissioned member shall obtain legal 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.

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-0433 effective 1 September 2018 – (1)(b), (1)(c) and (1)(d)]

107.031 – NOTICE OF DECISION NOT TO LAY CHARGES

A commanding officer who decides not to lay a charge against a person who is retained in custody, or who has been released with conditions, under Division 3 of the Code of Service Discipline shall notify the person of the decision, in writing, as soon as feasible.

(G) [P.C 2018-433 effective 1 September 2018]

NOTE

Notification under article 107.031 will result in the cancellation of any direction to retain the person in custody or release them with conditions (see article 105.303 – Circumstances in which a Direction is Cancelled).

(C) [1 September 2018]

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107.04 – GENERAL RULES – CHARGE PREPARATION

(1) All charges against an accused should be set out on only one Record of Disciplinary Proceedings.

(2) A charge must allege one offence only and contain:

(a) a statement of the offence; and

(b) a statement of the particulars of the act, omission, conduct, disorder or neglect constituting the offence.

(3) Every statement of the particulars of an offence must include sufficient details to enable the accused to be reasonably informed of the offence alleged and thereby able to properly defend the matter (see section 2 – Service Offences of Chapter 103 – Service Offences).

(4) 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.

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

NOTES

(A) As an example of the rule prescribed in paragraph (2) of this article, a single charge under section 86 of the National Defence Act alleging that the accused “quarrelled or fought with a person subject to the Code of Service Discipline” would be a bad charge as it would allege two separate offences.

(B) If the actual date or time is not certain, the date or time of the alleged commission of the offence may be described as “on or about”, “on a day between” two limiting dates, “between ____ hours and ____ hours”, or “approximately ____ hours”. Care should be taken to make as close an estimate as the circumstances permit.

(C) [1 September 1999]

107.05 – LAYING OF ALTERNATIVE CHARGES

Charges may be laid in the alternative where:

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

(i) of one of several offences, or

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

(b) the actual offence, if any, may only be determined by trial.

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

NOTES

(A) An alternative charge should not be used except in the following circumstances:

(i) where an essential element of an offence is in doubt but the remaining elements constitute conduct to the prejudice of good order and discipline. For example, where the essential element of intent in stealing is in doubt, a charge under section 129 of the National Defence Act (Conduct to the Prejudice of Good Order and Discipline) for improper possession may be appropriate;

(ii) where a service offence is inherently a more serious form of conduct to the prejudice of good order and discipline as, for example, in the offences of scandalous conduct (section 92 of the National Defence Act) and cruel or disgraceful conduct (section 93 of the National Defence Act); or

(iii) where there is doubt as to whether, in law, the particulars constitute one offence or another.

(B) Before laying charges in the alternative, reference should be made to article 103.62 (Related or Less Serious Offences), which prescribes cognate offences. If the charge is under section 130 of the National Defence Act (see article 103.61 – Offences Against Other Canadian Law), it should be borne in mind that many civil charges permit a conviction for included offences without such offences being charged. For example, on a charge of murder, manslaughter may be found but need not be charged.

(C) The service offence of conduct to the prejudice of good order and discipline under section 129 of the National Defence Act may be charged as an alternative to a specific offence under section 72 to 128 of the National Defence Act, or to a civil offence under section 130 of the National Defence Act, if the lack of one or more elements of those offences would still justify a conviction for prejudicial conduct.

(D) Where it is not practical prior to trial to ascertain which of several offences have been committed, those which appear as reasonably possible of having been committed should, if charged, be charged in the alternative. An example would be stealing under section 114 of the National Defence Act and receiving stolen goods under section 115 of the National Defence Act, or stealing under section 114 of the National Defence Act and improper possession under section 129 of the National Defence Act.

(E) Charges should not be laid in the alternative if the acts complained of appear fully capable of supporting a charge on the more serious offence. However, where the more serious offence carries a mandatory punishment, it may, on occasion, be considered desirable to charge as an alternative another less serious offence to permit the court to take a more lenient view of the circumstances. For an example, see Note (A) to article 103.25 (Scandalous Conduct by Officers).

(F) Charges laid in the alternative should be annotated as such. The more serious charge should precede the less serious charge.

(C) [1 September 1999; 1 June 2014 – Note (B)]

(G) [107.06: repealed by P.C. 2018-0433 effective 1 September 2018]

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Section 2 – Record of Disciplinary Proceedings

107.07 – FORM OF RECORD OF DISCIPLINARY PROCEEDINGS

(1) The Record of Disciplinary Proceedings shall be in the following form:

(2) If a charge was laid before September 1, 2018, the Record of Disciplinary Proceedings shall, as of that date, be continued in the form specified in paragraph (1) and the two documents shall be attached together.

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-0433 effective 1 September 2018]

(G) [107.075: repealed by P.C. 2018-0433 effective 1 September 2018]

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Section 3 – Pre-Trial Procedures

107.08 – DUTY TO ACT EXPEDITIOUSLY

(1) Subsection 161(2) of the National Defence Act provides:

(2) Section 162 of the National Defence Act provides:

(C) [18 July 2008; 1 September 2018]

107.09 – REFERRAL AND PRE-TRIAL DISPOSAL OF CHARGE

(1) An officer or non-commissioned member who lays a charge shall:

(a) refer the charge to:

(i) the commanding officer of the accused;

(ii) the commanding officer of the base, unit or element in which the accused was present when the charge was laid; or

(iii) an officer to whom the commanding officer referred to in subparagraph (i) or (ii) has delegated powers of trial and punishment pursuant to article 108.10 (Delegation of a Commanding Officer's Powers); and

(b) cause a copy of the Record of Disciplinary Proceedings to be provided to the accused.

(2) A delegated officer to whom a charge has been referred shall:

(a) cause the charge to be proceeded with in accordance with Chapter 108 (Summary Proceedings); or

(b) refer the charge to the commanding officer with a recommendation that the charge not be proceeded with if, in the delegated officer's opinion, the charge should not be proceeded with.

(3) A commanding officer or superior commander to whom a charge has been referred shall:

(a) cause the charge to be proceeded with in accordance with Chapter 108 (Summary Proceedings); or

(b) not proceed with the charge if, in the opinion of the commanding officer or superior commander, the charge should not be proceeded with.

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

NOTE

Where action is taken under this article, see article 107.14 (Maintenance of Unit Registry of Disciplinary Proceedings) for the documents that must be placed on the Unit Registry of Disciplinary Proceedings.

(C) [1 September 1999]

107.10 – APPOINTMENT OF LEGAL COUNSEL – ACCUSED PERSON UNFIT TO STAND TRIAL

Where an officer having summary trial jurisdiction concludes that a charge should be proceeded with but considers that there are reasonable grounds to believe that the accused person is unfit to stand trial, that officer shall notify the Director of Defence Counsel Services who shall ensure that the accused is represented by legal counsel.

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-433 effective 1 September 2018]

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107.11 – REQUIREMENT TO OBTAIN ADVICE FROM UNIT LEGAL ADVISER – DISPOSAL OF CHARGES

(1) A delegated officer, commanding officer or superior commander to whom a charge has been referred shall, prior to making a decision under paragraph (2) or (3) of article 107.09 (Referral and Pre-Trial Disposal of Charge), obtain advice from the unit legal adviser if the charge relates to an offence that

(a) is not authorized to be tried by summary trial under article 108.07 (Jurisdiction – Offences);

(b) is alleged to have been committed by an officer or a non-commissioned member above the rank of sergeant; or

(c) would give rise to a right to elect to be tried by court martial (see article 108.17 – Election to be tried by Court Martial); or

(d) is alleged to have been committed

(i) more than six months before the day on which the charge was laid, or

(ii) more than one year before the day on which a summary trial would commence.

(2) A delegated officer, commanding officer or superior commander who decides not to act on the advice provided by the unit legal adviser shall, within 30 days of receiving the advice

(a) state his or her decision and the reasons for the decision, in writing; and

(b) provide a copy of the decision and the reasons to the officer to whom he or she is responsible in matters of discipline and to the legal officer.

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-0433 effective 1 September 2018 – (1)(b), (1)(c) and (1)(d)]

107.12 – DECISION NOT TO PROCEED – CHARGES LAID BY NATIONAL INVESTIGATION SERVICE

(1) A commanding officer or superior commander who decides not to proceed with a charge laid by a member of the military police assigned to investigative duties with the Canadian Forces National Investigation Service (see subparagraph (c) of article 107.02 – Authority to Lay Charges) shall communicate the decision in writing with reasons to the member of the military police who laid the charge or the officer or non-commissioned member under whose supervision the investigation was conducted.

(2) A copy of the decision and reasons shall be provided to the officer to whom the commanding officer or superior commander is responsible in matters of discipline.

(3) If after reviewing the reasons given for not proceeding with the charge, the officer or non-commissioned member of the National Investigation Service considers the charge should be proceeded with, the officer or non-commissioned member may refer the charge directly to a referral authority in accordance with article 109.03 (Application to Referral Authority for Disposal of a Charge).

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

P.C. 2014-0575 effective 1 June 2014 – (1)]

NOTE

This article should be read in conjunction with subsections 163.1(2) and (3) and 164.1(2) and (3) of the National Defence Act. Taken together, these provisions make it clear that a decision, by a commanding officer or superior commander, that a charge should not be proceeded with would not preclude proceeding with the charge at any subsequent time, in circumstances where the charge had originally been laid by an officer or non-commissioned member of the Canadian Forces National Investigation Service (CFNIS).

(C) [1 September 1999]

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Section 4 – Unit Registry of Disciplinary Proceedings

107.13 – DEFINITION

In this section, “final disposition” means a decision not to proceed, a direction that the proceedings be stayed on an alternative charge, a finding of not guilty and, in the case of a finding of guilty, the imposition of a sentence or a direction that the offender be discharged absolutely.

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-0433 effective 1 September 2018]

107.14 – MAINTENANCE OF UNIT REGISTRY OF DISCIPLINARY PROCEEDINGS

(1) The commanding officer of a unit shall ensure that a Unit Registry of Disciplinary Proceedings is maintained.

(2) When a charge is referred to a delegated officer or commanding officer by the officer or non-commissioned member who laid the charge (see subparagraph (1)(a) of article 107.09 – Referral and Pre-Trial Disposal of Charge), the delegated officer or commanding officer shall cause a copy of the Record of Disciplinary Proceedings to be placed on the Unit Registry.

(3) When an application is made to a referral authority for disposal of a charge (see article 109.03 – Application to Referral Authority for Disposal of a Charge), the commanding officer or superior commander shall cause a copy of the application and the Record of Disciplinary Proceedings, together with a copy of the report of investigation conducted in accordance with Chapter 106 (Investigation of Service Offences), to be placed on the Unit Registry.

(4) A delegated officer or commanding officer who makes a final disposition of all charges against an accused shall cause the original Record of Disciplinary Proceedings, together with a copy of the report of investigation conducted in accordance with Chapter 106, to be placed on the Unit Registry.

(5) A superior commander who makes a final disposition of all charges against an accused shall cause the original Record of Disciplinary Proceedings, together with a copy of the report of investigation conducted in accordance with Chapter 106, to be placed on the Unit Registry that is maintained at the unit of the commanding officer who initially referred the charges for disposal.

(5.1) A commanding officer shall, if they make any of the following orders, cause the original order to be placed on the Unit Registry on which the original Record of Disciplinary Proceedings was placed:

(a) a suspension order under subsection 215(1) of the National Defence Act (see Chapter 113, Section 1 – Suspension of Imprisonment or Detention by Service Tribunal or Court Martial Appeal Court);

(b) an intermittent sentence order under subsection 148(1) of the National Defence Act (see Chapter 113, Section 4 – Intermittent Sentences); or

(c) an amending order to change the conditions of an order referred to in subparagraph (a) or (b) (see subparagraphs 113.14(1)(a), 113.27(1)(a) and 113.68(2)(a)).

(5.2) A commanding officer shall, if they make either of the following decisions, cause a record of the decision to be placed on the Unit Registry on which the original Record of Disciplinary Proceedings was placed:

(a) a decision to revoke an intermittent sentence order and to order the offender to serve the sentence on consecutive days (see paragraphs 113.56(1) and 113.68(1)), or

(b) a decision to revoke the suspension of a punishment under paragraph 215.2(2)(a) of the National Defence Act.

(6) Where an officer exercises the powers and jurisdiction of a review authority pursuant to article 108.45 (Review of Finding or Punishment of Summary Trial), the officer shall cause a copy of the decision to be placed on the Unit Registry on which the original Record of Disciplinary Proceedings was placed.

(7) Where an officer exercises the powers and jurisdiction of a review authority other than pursuant to article 108.45 and decides to quash a finding of guilty, substitute a new finding for any finding of guilty or alter a sentence (see article 116.02 – Review Authorities – Summary Trial), the officer shall cause a copy of the decision to be placed on the Unit Registry on which the original Record of Disciplinary Proceedings was placed.

(8) A suspending authority shall, in the following circumstances, cause a copy of the corresponding document to be placed on the Unit Registry on which the original Record of Disciplinary Proceedings was placed:

(a) if the suspending authority suspends a punishment of detention that was imposed at a summary trial, a notification given under article 113.39 (Administrative Action – Suspension of Punishment Imposed at Summary Trial);

(b) if the suspending authority revokes the suspension of a punishment of detention that was imposed at a summary trial, a notice of revocation provided under article 113.41 (Administrative Action Relating to Revocation of Suspension); and

(c) if the suspending authority remits a punishment of detention that was imposed at a summary trial, a notification given under paragraph 113.45(1).

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-0433 effective 1 September 2018 – (5.1), (5.2) and (8)]

NOTES

(A) This article ensures that standardized procedures govern the retention of Records of Disciplinary Proceedings and other documentation pertaining to summary proceedings conducted at the unit level. The placement of certain types of documents on the Unit Registry of Disciplinary Proceedings facilitates any review conducted pursuant to article 108.45 (Review of Finding or Punishment of Summary Trial) or Chapter 116 (Review of Findings and Punishments). Copies of information held on the Registry are also reviewed on behalf of the Judge Advocate General in furtherance of the Judge Advocate General's role in superintending the military justice system (see article 107.15 – Forwarding and Review of Documents Placed on Unit Registry).

(B) The term “Record of Disciplinary Proceedings” includes any attachment referred to in Parts 1 to 8 of the Record of Disciplinary Proceedings form.

(C) Documents held in the Unit Registry of Disciplinary Proceedings are to be maintained in accordance with the DND Records Disposal Schedules contained at Annex A to the Records Scheduling and Disposal Manual, A-AD-D11-001/AG-001.

(C) [1 September 1999; 1 September 2018 – Notes (A) and (B)]

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107.15 – FORWARDING AND REVIEW OF DOCUMENTS PLACED ON THE UNIT REGISTRY

(1) By the seventh day of each month, every commanding officer shall forward to the nearest office of the Judge Advocate General:

(a) copies of any documents referred to in paragraphs 107.14(3) to (8), except reports of investigations, that were placed on the Unit Registry of Disciplinary Proceedings during the preceding month; and

(b) in the case where a document referred to in paragraph 107.14(6), (7) or (8) is forwarded under subparagraph (a), a copy of the updated Record of Disciplinary Proceedings.

(2) A legal officer shall review the documents forwarded under paragraph (1) and advise the commanding officer and any other appropriate service authority concerning any errors on the face of the record or non-compliance with procedural requirements.

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-0433 effective 1 September 2018]

NOTE

Once the review has been completed, copies of the documents are forwarded to the Office of the Judge Advocate General at National Defence Headquarters. This process assists the Judge Advocate General in superintending the administration of military justice in the Canadian Forces and in reporting annually to the Minister of National Defence (see sections 9.2 and 9.3 of the National Defence Act).

(C) [1 September 1999]

107.16 – PUBLIC ACCESS TO COPIES OF RECORDS OF DISCIPLINARY PROCEEDINGS

(1) Subject to paragraph (4), the commanding officer of a unit shall, on the request of any person, provide as soon as practicable a copy of the most recent Record of Disciplinary Proceedings held on the Unit Registry of Disciplinary Proceedings.

(2) The request must pertain to a particular accused, be submitted in writing and contain sufficient information to identify the specific Record of Disciplinary Proceedings sought.

(3) The only attachments provided with the Record of Disciplinary Proceedings are:

(a) any statement of offences attached to Part 1 of the Record; and

(b) any statement of special findings attached to Part 6 of the Record.

(4) No copy of a Record of Disciplinary Proceedings shall be provided where:

(a) a court order restricts access to the Record or the information contained therein;

(b) a clemency measure is in effect in respect of an offence recorded in Part 1 of the Record;

(c) the sentence recorded in Part 6 of the Record is a fine of $200 or less, or a minor punishment, and 12 months has elapsed since the imposition of the sentence;

(d) a person, other than an officer or non-commissioned member, committed or is accused of having committed a service offence while under the age of 18;

(e) the commanding officer has reasonable grounds to believe that the safety of the accused could be threatened as a result of the release of the Record; or

(f) the commanding officer has reasonable grounds to believe that the release of the Record could cause harm to a person, other than the accused, identifiable by its release.

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

P.C. 2012-1109 effective 19 October 2012 - 107.16(4)(b)]

NOTES

(A) This article provides members of the public, civilian and military, with a standardized means of obtaining information from units concerning charges under the Code of Service Discipline. The information is limited to that contained on a Record of Disciplinary Proceedings, including any attachments referred to in paragraph (3). Where other information is being sought, the request should be referred to the Departmental access to information coordinator.

(B) The person making the request must provide sufficient information to assist in identifying the specific Record of Disciplinary Proceedings sought. For example, one or more of the following may be sufficient:

(i) the name, rank or service number of the accused;

(ii) the type of offence charged;

(iii) the subject matter or the circumstances set out in the particulars of the charge, such as the date, time and place where the offence was committed;

(iv) the date on which the charge was laid;

(v) the date the summary trial was held; or

(vi) the date of sentencing or the sentence imposed.

(C) This article came into force on September 1, 1999 and only applies in respect of the provision of a copy of a Record of Disciplinary Proceedings in the form prescribed in article 107.07 (Form of Record of Disciplinary Proceedings). A request for a Record of Disciplinary Proceedings pertaining to charges laid prior to September 1, 1999 should be referred to the Departmental access to information coordinator.

(D) Advice should be obtained from the unit legal adviser when dealing with a request in circumstances that may be governed by any of the prohibitions referred to in paragraph (4) of this article.

(C) [1 September 1999; 1 September 2018 – Note (C)]

[107.17 to 107.99: not allocated]