Language selection

Government of Canada / Gouvernement du Canada

Search

Military Justice at the Unit Level Policy
Chapter 1 – Pre-charge

Context

This chapter of the Policy is meant to provide guidance about the process to be followed from the moment a complaint of an alleged service offenceFootnote 1  or service infractionFootnote 2  is made, until a charge is laid. This chapter applies to all alleged disciplinary matters, regardless whether the alleged misconduct results in a charge being laid for an alleged service infraction or service offence or results in no charge being laid. This chapter is to be read in conjunction with the relevant provisions in Division 5 of the NDA (Summary Hearings) and Chapter 102 of the QR&O (Investigation and laying of charges).

1.1 Complaint

1.1.1    When an authority within the military justice system receives a complaint or has other reasons to believe that a service offence or a service infraction has been committed, that authority must cause an investigation to be conducted as soon as circumstances permit to determine whether there are sufficient grounds to lay a charge.Footnote 3  The requirement to investigate, however, does not apply to complaints that are frivolous or vexatious.Footnote 4

Back to Top

1.2 Investigation

1.2.1    The investigation conducted must, as a minimum, collect all reasonably available evidence relevant to determining whether a service offence or a service infraction has been committed.Footnote 5

1.2.2    Before causing an investigation to be conducted, the military justice authority that receives a complaint must confirm whether, in the circumstances, there is a requirement to seek pre-investigation legal advice and must determine which investigative body would be the most appropriate to conduct the investigation.

Pre-investigation legal advice

1.2.3    Pre-investigation legal advice is required when a military justice authority believes:

  1. That any alleged service offence or service infraction was committed against a person; or
  2. That a person may have suffered physical or emotional harm, property damage or economic loss as a result of any alleged commission of a service offence or service infraction.Footnote 6

1.2.4    The requirement to obtain legal advice before causing an investigation to be conducted provides the military justice authority the opportunity to receive advice relevant to identifying the appropriate investigative body as well as the application of the Declaration of Victims Rights (DVR) in the circumstances.

1.2.5    In cases when pre-investigation legal advice is required, and concurrent with seeking and receiving that advice, the relevant military justice authority will undertake the relevant lawful pre-investigative actions appropriate in the circumstances, such as:

  1. Responding to an emergency;
  2. Taking measures to ensure the safety and security of any person, information or property;
  3. Securing or preserving evidence;
  4. Establishing the identity of the person alleged to have committed the service offence or service infraction when time is of the essence; and
  5. Affording DVR rights when applicable.

Back to Top

Choice of investigative body

1.2.6    The choice of investigative body must be made carefully and with due consideration of the relevant circumstances to best ensure that the matter is appropriately investigated. The choices of investigative body include: the civilian police; the military police (MP), including the Canadian Forces National Investigation Service (CFNIS); and unit-level investigators. The key factors to be considered when determining the most appropriate investigative body in the circumstances include the following:

  1. The seriousness and sensitivity of any alleged service offence or service infraction and of the situation itself:
    • (1) Whether any allegation may amount to an offence punishable under the Criminal Code or any other Act of Parliament that can be charged through NDA section (s) 130 (Offences punishable by ordinary law);
    • (2) Whether any allegation falls within the jurisdiction of the military justice system;
    • (3) Whether any alleged service offence or service infraction represents a repeat of a similar service offence or service infraction committed or allegedly committed previously by the same individual;
    • (4) Whether the person alleged to have committed any service offence or service infraction was in a position of trust or authority at the relevant time,Footnote 7  and in particular:
      • (a) Whether any alleged service offence or service infraction involved a violation of that position of trust or authority; and
      • (b) Whether any alleged service offence or service infraction was committed against a person in a position of subordination or vulnerability and, whether that person alleges to have suffered physical or emotional harm, property damage or economic loss as a result.
    • (5) Whether there exists any significant mitigating or aggravating circumstances, including any operational impact;
    • (6) Whether any alleged 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 commission of the service offence or service infraction; and
    • (7) Whether there was an impact of any alleged service offence or service infraction on the CAF or the wider local community.
  2. The complexity of any alleged service offence or service infraction and of the situation itself:
    • (1) Whether the circumstances surrounding any alleged service offence or service infraction implicates multiple units, formations or commands;
    • (2) Whether any alleged service offence or service infraction implicates different geographical locations and/or the local community;
    • (3) Whether technical investigative expertise may be required;Footnote 8 
    • (4) Whether any alleged service offence or service infraction involves more than one suspect;
    • (5) Whether any alleged service offence or service infraction may have been committed against one or more individuals or may have caused one or more individuals to suffer physical or emotional harm, property damage or economic loss as a result;
    • (6) Whether any alleged service offence or service infraction involves a complainant or witness who is not a member of the CAF; and
    • (7) The experience and capacity of the potential investigative bodies to investigate any alleged service offence or service infraction in light of the circumstances.

1.2.7    When selecting the most appropriate body to conduct the investigation the military justice authority must consider all of the circumstances of the situation and may consult their legal advisor as well as the relevant policing and unit authorities as appropriate.

Back to Top

Conduct of the investigation

1.2.8    While an investigation is being conducted, it is not yet known whether a charge will be laid and, if so, whether the charge will be for a service offence or a service infraction. As a result, all investigations will follow the same general practice. This practice includes, for example: administering a caution about the right to remain silent to the person alleged to have committed any service offence or service infraction; providing the right to counsel to the person alleged to have committed any service offence or service infraction; and, using search warrants when appropriate. The appropriate military justice authority should consult their legal advisor with respect to any questions concerning the appropriate investigative practice.

1.2.9    As set out at paragraph (para) 1.2.3, pre-investigation legal advice is required when a military justice authority believes that a service offence or a service infraction was committed against a person or that a person may have suffered physical or emotional harm, property damage or economic loss as the result of an alleged service offence or service infraction.Footnote 9  One of the principal purposes of this legal advice is to ensure the appropriate military justice authority has all the information and advice they require to assess whether, in those particular circumstances, the rights enshrined in the DVR apply. If the DVR does not apply, the person may be entitled through QR&O, policy or other instrument to receive information, protection or the opportunity to participate in an SH.

1.2.10  When assessing the application of the DVR in the pre-charge phase, the factors that the appropriate military justice authority should consider, among other potential matters, include the following:

  1. Whether any allegation may meet one of the descriptions of a service infraction at QR&O articles (arts) 120.02 (Infractions in relation to property and information), 120.03 (Infractions in relation to military service) or 120.04 (Infractions in relation to drugs and alcohol);
  2. Whether any allegation may meet the elements of a service offence at NDA ss 73-129 (Service offences), or may amount to an offence punishable under the Criminal Code or any other Act of Parliament, that can be charged through NDA s 130;
  3. Whether the person alleged to have committed any service offence or service infraction was in a position of trust or authority at the relevant time,Footnote 10  and in particular:
    • (1) Whether any alleged service offence or service infraction involved a violation of that position of trust or authority; and
    • (2) Whether any alleged service offence or service infraction was committed against a person in a position of subordination or vulnerability and, whether that person alleges to have suffered physical or emotional harm, property damage or economic loss as a result.
  4. The wishes, with respect to accessing the rights enshrined in the DVR, of any person alleged to have had a service offence or a service infraction committed against them or who allege to have suffered physical or emotional harm, property damage or economic loss as a result of the commission of any service offence or service infraction;
  5. The impact on the military or wider community; and
  6. Significant mitigating or aggravating circumstances, including any operational impact.

Back to Top

Investigating sexual misconduct

1.2.11  Further to the requirement to seek pre-investigation legal advice when a matter involves any person who may have had a service offence or service infraction committed against them or who is alleged to have suffered harm, property damage or economic loss,Footnote 11  legal advice should be sought in any circumstance involving alleged sexual misconduct, no matter how serious.

1.2.12  When an appropriate military justice authority determines that an investigation is required with respect to an allegation of sexual misconduct,Footnote 12  the matter must be referred to the MP or CFNIS for a decision on investigatory jurisdiction, including whether the matter should be referred to civilian authorities. A unit disciplinary investigation may only be conducted once an investigation is determined to be within CAF jurisdiction and the MP or CFNIS have declined to investigate. Except in the most minor cases and absent exceptional circumstances, sexual misconduct investigations should be conducted by the MP and not by units.

1.2.13  If, during the course of any other investigation, misconduct that may constitute sexual misconduct is uncovered, legal advice should be sought to, among other things, determine the most appropriate investigative body and application of the DVR.

Back to Top

1.3 Laying a Charge

Service infraction or service offence

1.3.1    In order to lay a charge, a person authorized to lay a chargeFootnote 13 (the charge layer) must have an actual belief that the person to be charged has committed the alleged service offence or service infraction, and that belief must be reasonable. A “reasonable belief” is a belief that would lead an ordinary prudent and cautious person to the conclusion that the person is probably guilty of the alleged service offence or service infraction. This reasonable belief will be based on the evidence gathered or identified through or during the investigation.

1.3.2    The charge layer must obtain pre-charge legal advice if:

  1. 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
  2. The charge alleges the commission of a service offence.Footnote 14

1.3.3    The charge layer may seek legal advice at any time, including in the pre-charge phase, should any questions or concerns arise.

1.3.4    Before a charge can be laid, the charge layer must determine whether a service offence or a service infraction would be appropriate in the circumstances. This determination begins with the charge layer confirming whether the evidence gathered during the investigation indicates the commission of a service offence or a service infraction.

1.3.5    An allegation of a commission of a service offence means the matter concerns a service offence as set out in the NDA ss 73-129 (Service offences), or an offence punishable under the Criminal Code or any other Act of Parliament that can be charged through NDA s 130 (Offences punishable by ordinary law).

1.3.6    An allegation of a service infraction means the matter concerns a service infraction as set out at QR&O arts 120.02 (Infractions in relation to property and information), 120.03 (Infractions in relation to military service) and 120.04 (Infractions in relation to drugs and alcohol).

1.3.7    In some instances, the alleged misconduct will clearly concern a service offence because there is no service infraction that applies to the matter. In other instances, the matter may be less clear if both a service infraction and a service offence could apply. In these circumstances the charge layer would then determine whether the misconduct is most appropriately considered and dealt with as a service offence or service infraction. The key factors that the charge layer should consider when making this determination include the following:

  1. The seriousness and sensitivity of the alleged service offence or service infraction and of the situation itself:
    • (1) The impact on any person alleged to have had a service offence or service infraction committed against them or alleged to have suffered physical or emotional harm, property damage or economic loss as a result;
    • (2) The impact on the military or wider community; and
    • (3) Significant mitigating or aggravating circumstances, including any operational impact.
  2. The circumstances surrounding the allegation:
    • (1) The complexity of the case, including the involvement of multiple suspects and/or multiple persons alleged to have had a service offence or service infraction committed against them or who have alleged to have suffered physical or emotional harm, property damage or economic loss (see the list concerning the complexity of the case at para 1.2.6 (Choice of investigative body));
    • (2) The wishes, with respect to accessing the rights enshrined in the DVR, of any person alleged to have had a service offence or a service infraction committed against them or who alleged to have  suffered physical or emotional harm, property damage or economic loss as a result the commission of the service offence or service infraction;
    • (3) Whether the person alleged to have committed the service offence or service infraction was in a position of trust or authority at the relevant time,Footnote 15  and in particular:
      • (a) Whether the alleged service offence or service infraction involved a violation of that position of trust or authority; and
      • (b) Whether the alleged service offence or service infraction was committed against a person in a position of subordination or vulnerability and, whether that person alleges to have suffered physical or emotional harm, property damage or economic loss as a result;
    • (4) The circumstances of the person alleged to have committed the service offence or the service infraction;Footnote 16 
    • (5) The objectives of sanctioning compared to the purposes of and principles of sentencing;
    • (6) The prevalence of the allegation in the unit or wider military community;
    • (7) The prevalence of the alleged misconduct in the history of the person alleged to have committed the service offence or service infraction; and
    • (8) Whether the evidence alleges more than one charge, and these charges allege both a service infraction and a service offence.Footnote 17

1.3.8    Before laying a charge, the charge layer must also determine whether it is in the public interest to proceed with laying a charge. The following factors, in addition to any of the above factors set out at para 1.3.7, may assist in determining whether it is in the public interest to proceed with laying a charge:

  1. Whether in the circumstances, it would be in the best interest of the administration of military justice;
  2. Whether in the circumstances, the laying of the charge would be disproportionately harsh;
  3. The availability and appropriateness of alternative courses of action to laying a charge;
  4. The likely effect of laying or not laying the charge on public confidence in the military justice system; and
  5. The likely effect of laying or not laying the charge on discipline, efficiency and morale.

1.3.9    A charge is laid when the charge layer completes the relevant sections of the charge report.Footnote 18  The post charge procedure to be followed depends on whether a charge is laid for a service offence or a service infraction.

1.3.10  With regard to a service offence charge, the charge layer must refer the charge directly to the Director of Military Prosecutions (DMP)Footnote 19  by providing the DMP with the charge report and the complete report of investigation.Footnote 20

1.3.11  With regard to a service infraction charge, the charge layer must refer the charge to the commanding officer (CO) of the person alleged to have committed the infractionFootnote 21  by providing the CO with the charge report and the investigation file.Footnote 22  In the event the charge layer contemplates laying both a service offence charge and a service infraction charge against a person in relation to the same set of facts, it is recommended that they contact their legal advisor.

Back to Top

1.4 Mental health supports

1.4.1    Authorities in the military justice system, including the person who received the complaint and the charge layer, should recognize the impact that the investigation and the laying of a charge may have on the mental health of those involved. Mental health supports should be made available throughout the investigation phase and beyond to those who are involved, including those alleged to have suffered harm, loss or damage and those who are alleged to have committed a service infraction or a service offence. Authorities in the military justice system should make it known that if any such individual wishes to seek out mental health supports, such supports are available, and those authorities should provide relevant mental health support contact information.

Back to Top

Footnotes

Back to Top

Page details

Date modified: