Charges
What is a charge?
A charge is a formal allegation that a person has committed:
- a service infraction
- a service offence
- an offence under the Criminal Code
- an offence under any other Act of Parliament
A charge is considered to be laid when the following information has been entered in Part 1 of a charge report:
- the name, rank and unit or element of the person alleged to have allegedly committed a service offence or a service infraction
- a statement of the service offence or service infraction alleged to have been committed
- a statement of the details of the service offence or service infraction
- the name, rank, position and signature of the officer or non-commissioned member who is laying the charge and the date of their signature
What can I be charged with under the CSD?
When you are subject to the CSD, you may be charged with any number of service offences or service infractions. Charges for service offences are laid for more serious incidents, whereas charges of service infractions are for relatively minor misconduct.
Service offences
The CSD establishes service offences that are uniquely military in nature (for example, absence without leave or desertion), as well as offences under the Criminal Code, other Acts of Parliament and, in certain circumstances, foreign laws.
Service offences are created by legislation passed by Parliament.
For a comprehensive list of service offences, you can consult Chapter 103 of the Queen’s Regulations and Orders (QR&Os).
Service infractions
The CSD establishes service infractions for minor misconduct in relation to property and information, military service, drugs, and alcohol.
Service infractions are distinct from service offences and are created by regulations made by the Governor in Council.
For a comprehensive list of service infractions, you can consult Chapter 120 of the QR&Os.
Who can lay charges against me?
Charges under the CSD can be laid by:
- a CO
- a NCM who has been authorized by the CO to lay charges
- a MP assigned to investigative duties with the Canadian Forces National Investigation Service (CFNIS)
- any other MP assigned to investigative duties
To have a charge laid against you, the charge layer must have an actual belief that you committed the service offence or service infraction, and the belief must be reasonable (that is, if someone else evaluated the same evidence, they would arrive at the same conclusion).
When are charges under the CSD laid?
Generally, to comply with the ‘duty to act expeditiously’ under section 162 of the NDA, all charges of service offences and service infractions must be laid as early as the circumstances permit.
Service offences
Anyone subject to the CSD at the time of the incident may be charged with a service offence at any time. With the exception of services offences punishable under section 130 or 132 of the NDA (that is, offences that are punishable under the Criminal Code, other Acts of Parliament, or foreign law), there are no limitation periods that specify the time frame within which a charge of a service offence must be laid.
Service infractions
For service infractions, there is a limitation period that requires summary hearings to begin within six months from the date of an incident occurring. Consequently, charges for service infractions must be laid within six months after the day the infraction was allegedly committed. Otherwise, there is no jurisdiction for a summary hearing to be held and the charges cannot be pursued.
Can I be charged under the CSD if I have left the CAF?
It is possible that you can be charged under the CSD for a service offence if you have ceased to be part of the CAF (for example, after you have released). Anyone who was subject to the CSD at the time they allegedly committed a service offence continues to be liable to be charged, dealt with, and tried through the military justice system even if charges are laid after you are no longer subject to the CSD.
You cannot, however, be charged with a service infraction after you have ceased to be part of the CAF, even if the service infraction was allegedly committed while you were a member of the CAF and subject to the CSD.
How do I know if I have been charged?
If you are charged with a service offence or service infraction, you must be provided with a copy of the charge report.
Generally, once you have been charged, you are brought before a charging authority. The charging authority will inform you that you have been accused of having committed a service offence or service infraction, and will read the particulars of any charges against you.
Who decides if I am charged with an offence or infraction?
The person who is authorized to lay a charge is responsible for determining whether a violation is a service offence or service infraction. If you are alleged to have committed a service infraction, the charge layer will most likely be someone from your unit chain of command. That person may receive legal advice from their local legal advisor to help determine which is the most appropriate charge for a particular incident.
Determining whether a charge is laid as a service offence or service infraction, or whether the charge will be heard in the civilian justice system depends on many factors:
- Does the evidence collected during an investigation meet the established criteria (or elements) for an offence or an infraction?
- What is the level of seriousness and sensitivity of the incident (for example, was anyone emotionally or physically harmed, was there property damage, was there a financial loss)?
- What are the circumstances surrounding the incident (for example, how complex is the case, are people in positions of trust or authority involved, are civilians involved, what are the circumstances of the accused)?
- Where did the incident occur (for example, did the incident happen in Canada or overseas, did the incident occur on military property or personal or commercial property)?
- Is the alleged offence one that automatically falls outside the jurisdiction of military courts (i.e. murder, manslaughter, or abduction of a child within Canada)
Who decides whether my charge should proceed?
The authorities who can decide whether to proceed with a charge depends on if the charge was laid for a service offence, service infraction, or a Criminal Code offence that may be heard within civilian courts.
Service offences
Charges of service offences are referred directly to the Director of Military Prosecutions (DMP) for review.
The DMP decides if charges of service offences will be preferred to court martial after evaluating the reasonable prospect of conviction and the benefit to public interest in prosecuting.
If DMP chooses to withdraw or to not prefer the charge, the CO of the accused person may still consider laying a service infraction charge in respect of the same set of facts.
Service infractions
Charges of service infractions are referred to your CO for review.
Your CO will first consider if they have the authority and jurisdiction to conduct a summary hearing or if they need to refer the charges to another CO.
The CO who has the authority and jurisdiction to conduct the summary hearing will assess the circumstances and determine if your charge will proceed to a summary hearing.
You may consult Section 163(1) of the NDA for a list of the conditions that qualify a CO as having the jurisdiction to conduct a summary hearing.
Who else will know about my charge?
In support of the open court principle, both courts martial and summary hearings are open to the public. Only in limited circumstances will proceedings be closed to the public, such as when information, if disclosed, could compromise the defence of Canada, when the hearing involves a minor, or when information disclosed at a hearing could harm a person’s privacy or security.
If you are charged with a service offence that is preferred for court martial, the public will have access to information about:
- the offence you have been charged with
- the finding (that is, guilty or not guilty, or if charges were withdrawn)
- any sentence that has been passed
This information is publicly available on the Office of the Chief Military Judge website.
The public can request access to summary hearing records under the Access to Information Act and Defence Administrative Orders and Directives 1001-0 and 1001-1, while respecting the Privacy Act and Defence Administrative Orders and Directives 1002-0, 1002-1, 1002-3, 1002-4, 1002-5 and 1002-6.