Chapter 7: Pre-Trial Custody

SECTION 1 - GENERAL

1. Custody refers to the “care and control of a thing or person”. It also includes the “keeping, guarding, care, watch, inspection, preservation of a [person], carrying with it the idea of the [person] being within the immediate personal care and control of the person in whose custody [the person] is subjected”.¹ Under the Code of Service Discipline it is also possible for someone to be retained in custody until the completion of the court martial or summary trial for any offence charged.

2. The NDA refers to two types of custody. Service Custody is defined as “[t]he holding under arrest or in confinement of a person by the Canadian Forces, and includes confinement in a service prison or detention barracks.” Civil Custody is defined as “[t]he holding under arrest or in confinement of a person by the police or other competent civil authority and includes confinement in a penitentiary or civil prison.”²

3. Pre-trial custody involves the retention of someone before that person has been tried or found guilty of an offence. There are specific conditions that must be met and procedures that must be followed for a person to be retained in pre-trial custody. These requirements and procedures are in place to ensure that the person is treated fairly and that the person's individual rights are respected.

SECTION 2 - RETENTION IN CUSTODY AFTER ARREST

Conditions for Custody

4. Once someone has been arrested³ it is not necessary or appropriate in every case to retain the arrested person in custody. In general, anyone who is arrested must be released unless the circumstances justify holding the person in custody. The circumstances of each case must be examined to determine whether retention in custody is appropriate.

5. When someone has been arrested pursuant to the NDA that person must be released from custody as soon as practicable unless the person who made the arrest believes, on reasonable grounds, that in all the circumstances the person arrested should be retained in custody.⁴ The circumstances to be considered by the arresting person when making this determination include the following:

1. the gravity⁵ of the alleged offence;
2. the need to establish the identity of the arrested person;
3. the need to secure or preserve evidence of or relating to the alleged offence;
4. the need to ensure that the arrested person will appear before a service tribunal or civil court to be dealt with according to law;
5. the need to prevent the continuation or repetition of the alleged offence or the commission of any other offence; and
6. the necessity to ensure the safety of the arrested person or of any other person.⁶

6. Normally, it is not considered a sufficient reason to retain a person in custody because the investigation involving that person is not yet complete. As well, the mere possibility of the person going absent without leave, without some indication that the accused intends to go "AWOL", is not normally sufficient grounds to retain the person in custody.⁷ However, the likelihood of the person arrested going absent without leave should be considered because, if absent, the arrested person would not be available for trial⁸ and such an act would constitute an "other offence".⁹

7. Once it is decided that the arrested person will be retained in custody or released, the person who made the arrest must inform the arrested person of that decision.¹⁰

Where Arrested Person to be Taken

8. Where the conditions for custody have been met and the arrested person is to be retained in custody, the arrested person must be placed in service custody or civil custody.¹¹ However, where practical, a person who is to be retained in custody should be placed in service custody.¹²

9. It is the responsibility of the person who effects the arrest and decides it is necessary to hold the person in custody to have that person taken under escort and committed into the custody of the member in charge of a guard or a guard room, or to any member of the military police.¹³ Any member to whom the custody of an arrested person has been committed has a duty to receive and keep that person.¹⁴

10. Anyone responsible for placing an arrested person in custody can use such force as is reasonably necessary to do so.¹⁵ To determine what amount of force is reasonably necessary, the circumstances in existence at the time must be considered. For example, if the arrested person is highly intoxicated and has difficulty walking, it may be reasonable to physically assist and move the person. Similarly, a person who is violent may have to be physically restrained, such as by the use of handcuffs. However, if the arrested person is cooperative and able to move without assistance, it would not be reasonable to physically or forcibly move the person.

Requirement to Observe Persons in Custody

11. The QR&O impose an obligation upon the unit to ensure that the physical safety of the person in custody is maintained. This obligation includes at least two requirements:

1. to observe persons in custody; and
2. daily visits by a medical officer.

11. The QR&O require the person in charge of the place where the member is held to observe the member at least once every hour for the first three hours after the member arrives at the place of custody and at least once every two hours thereafter. These observations are to be made upon any retained NCMs below the rank of warrant officer and upon the retained officers or NCMs above the rank of sergeant who are held in custody in a place other than the member's quarters.¹⁶

12. The CO has a further requirement to ensure that any member retained in custody is visited at least once daily by a medical officer.¹⁷ If the person in charge of the place of custody observes the retained person to be showing signs of illness at any time, the person shall immediately send for a medical officer.¹⁸

Segregation by Gender

14. Male and female persons may be held in service custody in the same accommodation provided they are segregated within that accommodation.¹⁹ Further, no person shall be held in service custody in the exclusive charge of guards of the opposite sex, except where other arrangements are not practicable and then only for as short a time as possible.²⁰

SECTION 3 - REPORTING REQUIREMENTS

15. The QR&O place various requirements on a member who commits an arrested person into custody and on the member in whose custody the arrested person is placed. These requirements include providing specific information to the person being committed and providing written accounts or reports to the appropriate service authority.

Account in Writing

16. The person who commits an arrested person into service custody shall prepare and sign an account in writing setting out why the arrested person is being committed to custody. The account in writing must be delivered at the time of committal, to the member into whose custody the person under arrest is being committed.²¹

17. The form that should be used for the account in writing is provided at QR&O 105.16(3). A copy of both the form and a completed sample form are provided at Annex J.²² The specific information to be provided on an account in writing includes:

1. the name of the member into whose custody the person under arrest is being committed;
2. the service number, rank (if applicable), and name of the person arrested;
3. the time and date of the arrest;
4. the time and date of the committal;
5. the time and date when it was determined that the person should be retained in custody after considering the circumstances and the factors contained in QR&O 105.12, and the specific reasons for the retention in custody;
6. the time and date of delivery of the account in writing; and
7. the signature, appointment and unit of the member who committed the person into custody.²³

The account in writing may be the only information available at the time the decision to retain the arrested person in custody is reviewed, and therefore, the reasons for the committal should be in as much detail as possible having regard to the circumstances. It is essential that this information is provided in detail to ensure that the decision making process is conducted fairly.²⁴

18. At the time of committal into service custody there is a further obligation to provide the person being held with the name and rank of the person who ordered the committal as well as a copy of the account in writing.²⁵

Report of Custody

19. Once the person arrested is committed into custody, there are further reporting requirements that have to be met. The member into whose custody the person has been committed is responsible for preparing a report of custody for the custody review officer.²⁶

20. The custody review officer is the CO of the person in custody, or any other officer designated by the CO. However, if it is not practical for the CO or the CO's designate to act as the custody review officer, the CO of the unit or element where the person is being held in custody or any other officer designated by that CO, may act as the custody review officer.²⁷

21. The report of custody must be in writing and must contain the following:

1. the name of the person in custody;
2. an account of the alleged offence, as far as it is known; and
3. the name and rank (if applicable) of the person who committed the person into service custody.²⁸

22. Prior to delivery of the report to the custody review officer, a copy of the report and the account in writing must be provided to the person in custody. Upon receiving these documents, the person in custody must be given an opportunity to make representations regarding the person's release from custody.²⁹ The ability to make such representations ensures that the custody review officer is able to make an informed decision concerning the person's continued retention in custody and that the process is procedurally fair.³⁰

23. There is no requirement that the person in custody make representations, but if the person chooses to do so, the representations can be made in writing or verbally by or on behalf of the person in custody. If the representations are not in writing, they must be reduced to writing or recorded by any other means.³¹ It is the responsibility of the member who has custody of the arrested person to ensure that all representations are reduced to writing or recorded.

24. The member into whose custody the arrested person is committed must deliver the report of custody, along with a copy of the account in writing and any representations made, to the custody review officer as soon as practicable, but not later than 24 hours after the person has been arrested. If the person in custody chooses not to make representations, the member must submit with the report of custody, a statement confirming that the person in custody was given an opportunity to make representations and chose not to do so.³²

Guard Reports

25. In addition to a report of custody, a guard report is also required when the person in custody is being held in a guard room, detention room or detention barracks, or is confined in a hospital under escort supplied by the base or other unit or element. In such cases, the member in charge of the guard room must prepare a report to be given to the CO on each person held or confined.³³

26. The guard report must contain the following information:

1. the service number, rank, name and unit of the person in custody;
2. the date on which the person was first received into custody;
3. the offence with which the person has been charged; and
4. the name of the authority by whose order the person was confined.³⁴

27. A guard report must be made to the CO on the first day any person is admitted to custody. If the person is an NCM, subsequent daily reports must be made for the duration of the custody. Further, when an NCM is confined to hospital under escort, the guard report is due the first day an escort is provided and subsequent daily reports must be made.³⁵

SECTION 4 - REVIEW REQUIREMENTS

Initial Review

28. To help ensure that persons are not committed to custody improperly, or retained in custody longer than necessary, QR&O require a review of custody at various times during the custody period.

29. The first review is conducted by the custody review officer. This review must take place as soon as practicable after the officer receives the report of custody and accompanying documents, but not later that 48 hours after the arrest of the person in custody.³⁶

30. The custody review officer must review the account in writing and accompanying documents. On completing the review, the officer must direct that the person in custody be released immediately unless that officer believes on reasonable grounds that it is necessary that the person be retained in custody having regard to all the circumstances, including those set out in subsection 158 (1) of the NDA.³⁷

31. In the event the person in custody has not been charged with an offence within 72 hours after being arrested, the custody review officer is further required to determine why a charge has not been laid and consider whether it remains necessary to retain the person in custody.

32. The duty of the custody review officer to release a person in custody when there are no longer sufficient grounds for keeping the person, continues after the initial review. If at anytime after receiving the report of custody and before the person in custody is brought before a military judge, the custody review officer no longer believes that the necessary grounds to continue custody exist, that officer must direct that the person be released from custody.³⁸

33. When the person in custody has been charged with a designated offence, the custody review officer must direct that person be held in custody.³⁹ The designated offences are defined in section 153 of the NDA.⁴⁰

Powers of Custody Review Officer

34. The custody review officer may direct that the person be released with or without conditions. The custody review officer can require that the person being released comply with any of the following conditions:

1. remain under military authority;
2. report at specified times to a specified military authority;
3. remain within the confines of a specified defence establishment or at a location within a geographical area;
4. abstain from communicating with any witness or specified person, or from going to any specified place; and
5. comply with such other reasonable conditions as are specified.⁴¹

35. The copy of the form that should be used for the direction for release, as well as a completed sample form, are attached at Annex K.⁴² Any condition that applies to the release must be unambiguous and clearly expressed on the form. Further, when conditions do apply to the release, the person in custody must acknowledge and agree to comply with the conditions by signing the form.

Review of Direction to Release

36. The person subject to a direction to release can apply to have the direction reviewed. The application can be made in letter or memorandum form and must be forwarded to the appropriate review authority without delay.⁴³

37. If the custody review officer is an officer designated by the CO, the review of the direction to release would be conducted by the CO. If the CO is the custody review officer, it is the next superior officer to whom the CO is responsible in matters of discipline who conducts the review.⁴⁴

38. The officer conducting the review will give both the released person and a representative of the CF an opportunity to speak on the review. After both sides have been heard, the review authority may make any direction respecting the conditions for release that the custody review officer could have made.

Hearing by Military Judge

39. When the custody review officer does not direct the release of a person in custody, the custody review officer shall cause the person to be taken before a military judge, as soon as practicable, for a hearing.⁴⁵ Such a proceeding is called a show cause hearing, and the purpose is to determine whether the person in custody is to be retained in custody.

40. When it is necessary to hold a show cause hearing, the custody review officer is required to immediately advise the nearest representative of the DMP.⁴⁶ The CF will normally be represented at a show cause hearing by counsel appointed by DMP; however, in the absence of counsel, the custody review officer may appoint someone to represent the CF.⁴⁷

41. The person retained in custody is entitled to be represented at the show cause hearing by legal counsel.⁴⁸ When the custody review officer advises the DMP that it is necessary a show cause hearing be held, the officer must also inquire whether the person in custody:

1. desires legal counsel to be appointed by the DDCS;
2. intends to retain legal counsel at the person's own expense; or
3. does not require legal counsel.⁴⁹

42. When the person in custody wants legal counsel appointed by DDCS, the custody review officer must inquire whether the person prefers that a specific legal advisor assisting the DDCS be appointed, or that the legal advisor selected by the DDCS is acceptable. The custody review officer shall advise the DDCS of the person's wishes, and where a specific legal advisor has been requested, the DDCS must try to have that legal advisor made available. If the requested legal advisor is not available, the DDCS shall ensure that another legal advisor is available.⁵⁰

43. The procedure to be followed during a show cause hearing is set out in the NDA and QR&O.⁵¹ Further, and except as otherwise provided in QR&O,⁵² all provisions of the NDA and QR&O that apply to a court martial also apply to a show cause hearing where the context permits. Modifications can be made to these provisions in keeping with the circumstances of the show cause hearing.⁵³

44. The military judge determines at the show cause hearing whether the person in custody has to remain in custody or should be released. In all cases, the hearing involves a person who has not yet been convicted of an offence and in some cases, the person in custody has not yet been charged with an offence. Therefore, it is essential that the rights of the person held in custody are protected.

45. A show cause hearing is generally open to the public. The person held in custody along with that person's legal counsel and the representative of the CF all attend before the military judge.⁵⁴ A record of the proceedings is to be kept and a copy of the record must be included in the minutes of the proceedings. Further, an interpreter will be available if required.

46. Both the representative of the CF and the person in custody or that person's legal counsel, may make any statements pertinent to the issue of custody. Once all statements have been made, first the representative of the CF and then the person in custody or that person's legal counsel may call witnesses. The military judge may call witnesses if the judge requires that further evidence be heard.⁵⁵ Once all the evidence is put forward, the representative of the CF and the person in custody or that person's legal counsel, can make addresses to the military judge.

47. After all evidence and addresses are heard, the military judge will decide on whether the person will be released from custody. The military judge can direct that the person be released without conditions, and in such case the person must be released forthwith.

48. The military judge can also order that the person be released subject to an undertaking. In such a case the judge must prepare a form of direction and undertaking, which should be in the form provided in QR&O 105.28, and deliver the undertaking to the member who has custody of the person.⁵⁶ A copy of the form of Direction and Undertaking is provided at Annex L.

49. The form used should contain two parts: the direction that the named person be released from custody which is signed by the military judge; and the undertaking which contains all the conditions which apply to the release and which is to be signed by the person being released.⁵⁷ A copy of the Form of Direction and Undertaking must be added to the minutes of the proceeding.⁵⁸

50. An application to review any direction made by the judge at the show cause hearing can be made to the CMAC at any time before the person is tried by court martial or summary trial for the offence charged.⁵⁹ An application for review can be submitted by either the CF or the person who was in custody.⁶⁰

SECTION 5 - RIGHTS AND REQUIREMENTS DURING PRE-TRIAL CUSTODY

Performance of Duties

51. Members who are on active service when committed to custody may be ordered to perform any duties that the member could properly be ordered to perform if not in custody. However, the member cannot be ordered to perform more duties than others, merely for being an alleged offender.⁶¹

52. Members who are not on active service shall not be required to perform any duty except that which is required to relieve the member of responsibility for any cash, accounts or material for which the member is responsible. In addition, if the member is an NCM, the member may also be required to perform such duty as is necessary to keep the member's cell in good order.⁶²

53. An order given to a member to perform a duty, or the performance of any duty required of a member in custody, does not relieve the member from liability for the alleged offence.⁶³

54. The member in custody can be deprived of all articles that may facilitate escape or cause harm to the member, except when carrying out duties in custody involving bearing arms.⁶⁴

Visitors

55. No one can visit a member in custody without the CO's permission, except for the following:

1. the member's CO or a member designated by the CO;
2. the Officer of the Watch or Officer of the Day;
3. the orderly officer;
4. a chaplain;
5. a medical officer;
6. a person immediately responsible for the member's custody;
7. the member's assisting officer, legal counsel or advisor; or
8. where the member does not have legal counsel, a witness for the member.⁶⁵

Correspondence

56. Any member held in custody is permitted to send letters and read all correspondence addressed to that member. However, the CO can require that all correspondence originated by the member or addressed to the member be scrutinized by any officer designated by the CO for that purpose. The officer who scrutinizes the correspondence can withhold or return to sender any correspondence the officer considers detrimental to the morale of the person in custody, to good order, or to security.⁶⁶

Exercise

57. Any member held in custody must be permitted to take, under supervision, the exercise necessary to maintain the member's health.⁶⁷

Mess Privileges

58. Any member in custody is denied the privilege of any mess.⁶⁸

Hospitalization While in Custody

59. While in custody, if the member is sent to a hospital, the member shall remain in custody while in hospital and while being transferred to and from the hospital, unless the member has been released from custody.⁶⁹

In Custody of Civil Authorities

60. When a person subject to the Code of Service Discipline is in the charge of a civil authority, the CO of any base, unit or element must, on the request of the civil authority, immediately take that person into the charge of an authority of the CF.⁷⁰ The authority of the CF who takes charge of the person shall determine whether the person will be arrested in respect of a service offence.⁷¹

Footnotes

¹ Black's Law Dictionary, 5^th ed. (St. Paul, Minnesota: West Publishing Company, 1979) at 347.

² NDA s.2.

³ The procedures and requirements related to arrest are contained in Chapter 6, Arrest.

⁴ NDA s. 158(1) and QR&O 105.12. In most cases the person arrested will be a member of the CF; however, civilians who are subject to the Code of Service Discipline could also be arrested.

⁵ Gravity refers to the importance or seriousness of the alleged offence.

⁶ NDA s 158(1)(a)-(f) and QR&O 105.12.

⁷ QR&O 105.12 Note.

⁸ NDA 158(1)(d).

⁹ NDA s 158(1)(e).

¹⁰ QR&O 105.12 (2).

¹¹ NDA 158(2).

¹² NDA s. 158(2) and QR&O 105.13 Note A.

¹³ QR&O 105.15. Military Police are appointed pursuant to the NDA s. 156 to arrest and detain without a warrant, any person who is subject to the Code of Service Discipline.

¹⁴ NDA s. 158(3) and QR&O 105.14.

¹⁵ NDA s. 158(2).

¹⁶ QR&O 105.38(1).

¹⁷ QR&O 105.36.

¹⁸ QR&O 105.38(2).

¹⁹ QR&O 105.37(1).

²⁰ QR&O 105.37(2).

²¹ NDA s. 158(4) and QR&O 105.16(1).

²² QR&O 105.16(4).

²³ QR&O 105.16(3).

²⁴ See Chapter 4, Fairness and the Application of the Charter.

²⁵ QR&O 105.16(2).

²⁶ NDA s.158.1(1) and QR&O 105.17.

²⁷ NDA s. 153 and QR&O 105.17 Note.

²⁸ NDA s. 158.1(2) and QR&O 105.17.

²⁹ NDA s. 158.1(3) and QR&O 105.17.

³⁰ See Chapter 4, Fairness and the Application of the Charter.

³¹ NDA s. 158.1(4) and QR&O 105.17.

³² NDA s. 158.1(5) and QR&O 105.17.

³³ QR&O 22.06(1).

³⁴ QR&O 22.06(3).

³⁵ QR&O 22.06(2).

³⁶ NDA 158.2 and QR&O 105.18. Care must be taken not to abuse the 48-hour period of review in cases where an arrest is made on a weekend or over a period of leave. Unless impractical, the review of custody by a custody review authority should takes place on weekends and during any periods of leave.

³⁷ NDA 158.2(2) and QR&O 105.18. The factors from NDA s. 158 are listed in para. 5 above.

³⁸ NDA 158.3 and QR&O 105.19.

³⁹ QR&O 105.20.

⁴⁰ Designated Offences are defined at NDA s. 153 as:

⁴¹ NDA s. 158.6(1) and QR&O 105.22.

⁴² QR&O 105.22(2).

⁴³ NDA s. 158.6(2) and QR&O 105.23 Note.

⁴⁴ NDA s. 158.6(2)(a)&(b) and QR&O 105.23.

⁴⁵ To determine when it is practicable to have the hearing, the custody review officer may consider the constraints of military operations, including the location of the unit or element where the person is held in custody and the circumstances under which it is deployed (NDA s. 159(2) and QR&O 105.24).

⁴⁶ QR&O 105.25.

⁴⁷ QR&O 105.25 Note.

⁴⁸ QR&O 105.26(1).

⁴⁹ QR&O 105.26(2).

⁵⁰ QR&O 105.26(3)-(5).

⁵¹ NDA s. 159.1 to 159.7 and QR&O 105.27.

⁵² This refers to the contents of QR&O 105.24 to 105.29.

⁵³ QR&O 105.29.

⁵⁴ QR&O 105.27(2).

⁵⁵ QR&O 105.27(5). The order for statements, witnesses and addresses is that the representative of the CF goes first followed by the person in custody or that person's legal counsel, after which the representative of the CF can make a reply. The order which statements are made and witnesses are called is reversed if the person in custody has been charged with a designated offence.

⁵⁶ QR&O 105.27(9).

⁵⁷ QR&O 105.28(1).

⁵⁸ QR&O 105.28(2).

⁵⁹ NDA s. 159.9(1) and QR&O 105.30.

⁶⁰ See QR&O 105.27(6).

⁶¹ QR&O 105.31(2).

⁶² QR&O 105.31(1).

⁶³ QR&O 105.31(3).

⁶⁴ QR&O 105.31(4).

⁶⁵ QR&O 105.32.

⁶⁶ QR&O 105.33. Correspondence to and from the member's legal counsel should not be opened as a matter of course where the CO or designate is notified that the member or counsel seek the protection from scrutiny of correspondence afforded by the solicitor-cline privilege. Solosky v. The Queen [1980], 1 S.C.R. 821. See also R. v. Caslake (1998), 121 C.C.C. (3d) 97.

⁶⁷ QR&O 105.34.

⁶⁸ QR&O 105.35.

⁶⁹ QR&O 105.39.

⁷⁰ QR&O 105.40(1).

⁷¹ QR&O 105.40(2).