QR&O: Volume II - Chapter 110 Action by Director of Military Prosecutions in Respect of Charges

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

The consolidation of the QR&O is current as of 3 July 2019. The last modifications to the QR&O came into force on 28 June 2019.

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Amendment List:

  • 1 September 2018 – articles repealed: 110.01 and 110.02
  • 1 September 2018 – new articles: 110.01 and 110.02
  • 1 September 2018 – article repealed: 110.03
  • 1 September 2018 – new article and note: 110.03
  • 1 September 2018 – article and note repealed: 110.04
  • 1 September 2018 – new article: 110.04
  • 1 September 2018 – article amended: 110.05
  • 1 September 2018 – paragraph amended: 110.06(1) (English version only)
  • 1 September 2018 – subparagraph amended: 110.06(2)(b) (French version only)
  • 1 September 2018 – paragraph amended: 110.06(4)
  • 1 September 2018 – article amended: 110.07
  • 1 September 2018 – paragraph amended: 110.09(3)
  • 1 September 2018 – article repealed: 110.10
  • 1 September 2018 – new articles: 110.10 and 110.101
  • 18 July 2008 – Amended Article: 110.06
  • 5 June 2008 – Amended Article: 110.04
  • 5 June 2008 – Amended Article: 110.07
  • 5 June 2008 – Amended Article: 110.10

History:

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

110.01 – PREFERRING CHARGES

(1) Subsections 165.12(1) and (1.1) of the National Defence Act provide:

“165.12 (1) When a charge is referred to the Director of Military Prosecutions, the Director of Military Prosecutions may

(a) prefer the charge; or

(b) prefer any other charge that is founded on facts disclosed by evidence in addition to or in substitution for the charge.

(1.1) The validity of a charge preferred by the Director of Military Prosecutions is not affected by any irregularity, informality or defect in the charge referred to the Director.”

(2) Subsection 165(2) of the National Defence Act provides:

“165. (2) For the purposes of this Act, a charge is preferred when the charge sheet in respect of the charge is signed by the Director of Military Prosecutions, or an officer authorized by the Director of Military Prosecutions to do so, and filed with the Court Martial Administrator.”

(G) [110.01: repealed by P.C. 2018-0433 effective 1 September 2018]

(C) [1 September 2018]

110.02 – DUTY TO INVESTIGATE

The Provost Marshal or a commanding officer shall cause to be carried out any investigation requested by the Director of Military Prosecutions in the exercise of the Director’s duties and functions referred to in section 165.11 of the National Defence Act.

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

110.03 – REFERRAL OF CHARGE

Section 165.13 of the National Defence Act provides:

“165.13 If the Director of Military Prosecutions is satisfied that a charge should not be proceeded with by court martial, the Director of Military Prosecutions may refer it for disposal by an officer who has jurisdiction to try the accused person by summary trial.”

(G) [110.03: repealed by P.C. 2018-0433 effective 1 September 2018]

(C) [1 September 2018]

NOTE

The Director of Military Prosecutions may consult with referral authorities when choosing an officer to whom to refer the charge.

(C) [1 September 2018]

110.04 – EFFECT OF NOT PREFERRING A CHARGE

Subsection 165.12(4) of the National Defence Act provides:

“165.12 (4) A decision not to prefer a charge does not preclude the charge from being preferred at any subsequent time.”

(G) [110.04: repealed by P.C. 2018-0433 effective 1 September 2018]

(C) [1 September 2018]

(C) [Note to article 110.04: repealed on 1 September 2018]

110.05 – NOTICE OF DECISION NOT TO PREFER CHARGE

The Director of Military Prosecutions shall, if the Director decides not to prefer any charges under subsection 165.12(1) of the National Defence Act, ensure that written notice of the decision is provided without delay to

(a) the accused person;

(b) legal counsel for the accused person;

(c) the commanding officer of the accused person;

(d) the referral authority;

(e) the Judge Advocate General; and

(f) the Provost Marshal, if the accused person is in custody, or has been released with conditions, in connection with the circumstances that led to the laying of charges.

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

110.06 – PREPARATION OF CHARGE SHEET

(1) The Director of Military Prosecutions shall prepare a charge sheet if the Director proposes to prefer a charge.

(2) The charge sheet shall contain:

(a) at the commencement, the name of the accused person and, if the accused person is a member of the Canadian Forces, the accused person's service number, rank, unit and component of the Canadian Forces; and (18 July 2008)

(b) a statement of the offence and a statement of the particulars of the act, omission, conduct, disorder or neglect constituting the offence, with sufficient details to enable the accused person to be reasonably informed of the offence alleged. (18 July 2008)

(3) Where the accused is a civilian, the charge sheet shall reflect the accused's status under the Code of Service Discipline.

(4) The charge sheet shall be signed by the Director of Military Prosecutions or an officer authorized by the Director to do so.

(G) [P.C. 2008-1319 effective 18 July 2008; P.C. 2018-0433 effective 1 September 2018 – (1) and (4)]

110.07 – DISTRIBUTION OF CHARGE SHEET

The Director of Military Prosecutions shall, as soon as feasible after a charge has been preferred, ensure that a copy of the charge sheet is provided to the persons referred to in subparagraphs 110.05(a) to (e).

(G) [P.C. 2008-1015 effective 5 June 2008; P.C. 2018-0433 effective 1 September 2018]


110.08 – LANGUAGE OF PROCEEDINGS

Where a charge has been preferred, the Director of Military Prosecutions shall cause the Court Martial Administrator to be informed as to the language of trial chosen by the accused.

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

NOTE

An accused may, pursuant to the Official Languages Act (Revised Statutes of Canada, 1985, Chapter 31 (4th Supp.)), choose to have his trial conducted in either English or French. The accused's decision is made prior to the commencement of proceedings and is recorded on the Record of Disciplinary Proceedings.

(C) [1 September 1999]

110.09 – JOINT TRIALS

(1) Charges against two or more accused persons may be preferred jointly by the Director of Military Prosecutions and tried together by court martial where an offence has been alleged to have been committed collectively.

(2) An accused person, against whom charges have been preferred jointly, may apply to the military judge assigned to preside at the court martial for an order to be tried separately.

(3) The military judge may order that an accused person be tried separately where the judge is satisfied that the interests of military justice so require.

(4) Where an order is made under paragraph (3), the accused may be tried on a new charge sheet prepared in accordance with article 110.06 (Preparation of Charge Sheet) and distributed in accordance with article 110.07 (Distribution of Charge Sheet).

(G) [P.C. 1999-1305 effective 1 September 1999; P.C. 2018-0433 effective 1 September 2018 – (3)]

110.10 – WITHDRAWAL OF A CHARGE

Subsections 165.12(2) and (3) of the National Defence Act provide:

“165.12 (2) The Director of Military Prosecutions may withdraw a charge that has been preferred, but if a trial by court martial has commenced, the Director of Military Prosecutions may do so only with leave of the court martial.

(3) Withdrawing a charge does not preclude it from being proceeded with at any subsequent time.”

(G) [110.10: repealed by P.C. 2018-0433 effective 1 September 2018]

(C) [1 September 2018]

NOTE

A trial by court martial commences when the accused pleads to a charge.

(C) [1 September 1999]

110.101 – NOTICE OF PRE-TRIAL WITHDRAWAL OF A CHARGE

(1) If, before the commencement of a trial by court martial, the Director of Military Prosecutions withdraws a charge that has been preferred, the Director shall — unless the charge is withdrawn at a proceeding before a military judge — ensure that written notice of the withdrawal is provided without delay to the Court Martial Administrator and the persons referred to in subparagraphs 110.05(a) to (e).

(2) The Director of Military Prosecutions shall ensure that written notice of any pre-trial withdrawal of a preferred charge is provided without delay to the Provost Marshal if, in connection with the circumstances that led to the laying of charges,

(a) the accused person is in custody or has been released with conditions; and

(b) there are no remaining charges that have been preferred in respect of the accused person.

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

110.11 – ANNUAL REPORT

The Director of Military Prosecutions shall report annually to the Judge Advocate General on the execution of his or her duties and functions.

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

[110.12 to 110.99: not allocated]

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