Military Justice at the Unit Level Policy
Chapter 2 – Pre-hearing

Context

This chapter of the Policy is meant to provide guidance about the military justice system processes from the moment a charge is laid through to the decision to: conduct a summary hearing; not proceed with the charge; or refer the charge to another officer. This chapter is to be read in conjunction with the provisions contained in Division 5 of the National Defence Act (NDA) (Summary Hearings) and the Queen’s Regulations and Orders for the Canadian Forces (QR&O) Chapter 121 (Referral of Charges and Post Charge Procedure) and Chapter 122 (Summary Hearings).

2.1 Provision of information to person charged with having committed a service infraction

2.1.1    Any proceeding that carries the possibility that a decision will be made that could be adverse to a person's interests must be conducted in a fair manner.^{Footnote 23} There is no one definition for procedural fairness. However, it is generally accepted that in order to be fair in a legal sense, the common law rules of natural justice, freedom from bias on the part of the decision maker and meaningful and informed participation by the person in the proceedings must be followed throughout the process. The commanding officer (CO) of a person charged with having committed a service infraction (person charged) has the responsibility to ensure the person charged is provided with a copy of, or access to, any information that is to be relied upon as evidence at the summary hearing (SH) or that tends to show the person charged did not commit the service infraction.^{Footnote 24} This provision of information facilitates the informed participation in the proceeding by the person charged.

2.1.2    The requirement to provide information to the person charged is continuous. Any additional information that comes to light that will be relied upon as evidence at an SH or that tends to show the person charged did not commit the service infraction, must be provided. There is no corresponding duty on the part of the person charged to provide information pertaining to the subject matter of the charge.

2.1.3    The following are examples of the types of information relating to a service infraction charge that would need to be provided to a person charged:

1. A copy of any written statement made by the person charged;
2. A copy of any documentary evidence;
3. A copy of any written statement made by a witness;
4. A copy of any photographs, videos, sound clips, screenshots;
5. A copy of any investigation report made; and
6. Where physical evidence exists, access to the evidence.

2.1.4    When providing copies of documents to the person charged, those documents must be handled appropriately in light of their security classification or designation. Similarly, should those documents contain the personal information of individuals other than the person charged, that personal information will need to be handled in a manner consistent with the requirements of the Privacy Act. The CO of the person charged is required to maintain a written record of the following: copies of all documents and other evidence the person charged was provided with or was given access to; who provided the copy or access; and when the copy or access was provided. This written record must be appended to the charge report. 

2.1.5    Questions with respect to the provision of information to the person charged should be directed to the unit legal advisor.

2.2 Assisting Member

2.2.1    Every person charged has the opportunity to have an officer, or in exceptional circumstances, a non-commissioned member (NCM) above the rank of sergeant, appointed to assist them.^{Footnote 25} Exceptional circumstances may include when there is no eligible officer that could act due to the exigencies of the service.^{Footnote 26} The assisting member (AM) who is appointed has the responsibility to assist, advise and make representations on behalf of the person charged to the extent the person charged wishes.^{Footnote 27}

2.2.2    After laying a charge for a service infraction, the charge layer must confirm with the person charged whether they want to have an AM appointed and, if so, whether they want to have a particular officer or NCM appointed.^{Footnote 28} When posing these questions, the charge layer will explain the role of the AM to the person charged. The explanation should provide enough information for the person charged to make a reasonably informed decision with respect to the appointment of the AM.

2.2.3    The officer or NCM requested by the person charged to act as an AM should be granted sufficient time to complete the Military Justice - Unit Level course before performing the duties of an AM. However, not having taken the course will not prevent a person from acting as an AM.

2.2.4    If an AM is requested, the charge layer must indicate this in the appropriate space on the charge report. If a specific person is requested to act as the AM, the charge layer must also indicate this in the appropriate space on the charge report. It is the responsibility of the CO to appoint the person requested as the AM provided the conditions set out at QR&O subparagraphs (subparas) 121.02(2)(a) and (b) are met. Once appointed, the name and rank of the AM must be recorded by the CO in the appropriate space on the charge report. In the event the person requested to act as an AM does not have the same CO as the person charged, the CO of the person charged must transfer the request to the requested person’s CO.

2.2.5    In the event a person requested does not wish to act as an AM, or an AM no longer wishes to act, they may decline or withdraw, as the case may be, without an obligation to provide reasons. If the person charged wants a different AM, the CO of the person charged will consider granting the request. While the QR&O do not provide the person charged with an explicit ability to request to have their AM replaced, should the opportunity to make such a request arise, the CO of the person charged, in accordance with QR&O article (art) 101.04 and in the interests of fairness, will consider the request and, if appropriate in the circumstances, approve the appointment of a new AM.

General responsibilities

2.2.6    An AM is not legal counsel and does not act as a defending officer for the person charged. The role of the AM is to assist, advise and make representations throughout the proceedings and during any review to the extent that the person charged desires. This involvement by the AM may include assisting with preliminary matters such as the identification of relevant witnesses and evidence and arranging to have such witnesses and evidence available at the SH. Also, the AM may help the person charged prepare for the SH, and may assist them by speaking for or making representations on their behalf both at the SH as well as in relation to a review.^{Footnote 29}

2.2.7    The AM should inform the person charged that should the person charged require or wish to seek out mental health support, such support is available, and the AM should provide the person charged with relevant mental health support contact information. 

Confidentiality of communication

2.2.8    The professional duties and responsibilities that legal advisors have to protect the information that their clients share with them in confidence, do not apply to AMs. However, given the harm that can be caused to the integrity of the AM's role and in turn the effectiveness of the SH process, the communications between an AM and the person charged should be kept confidential. A legal advisor should be consulted in any case where consideration is being given to requiring an AM to disclose these communications.

2.3 Legal counsel

2.3.1    A person charged with a service infraction is not entitled to be represented by legal counsel appointed by the Director of Defence Counsel Services (DDCS), but they are entitled to legal advice of a general nature to assist on matters relating to summary hearings.^{Footnote 30} The OCSH has the discretion to permit a person charged with a service infraction, upon request, to be represented by legal counsel at their own expense. After laying a charge for a service offence, the charge layer, in accordance with QR&O subpara 102.10(2)(c) (Notice of decision to lay charges), must confirm with the person charged whether they want to be represented by legal counsel who is either appointed by DDCS or retained at the person’s own expense.

2.4 Preliminary determinations (QR&O article 121.07)

2.4.1    The officer to whom a charge is referred, before complying with the obligations under NDA section (s) 162.95 (Commanding officer’s obligation) concerning the decision to: conduct an SH; not proceed; or refer the charge, must make a determination with respect to the following three matters: the official language of the proceeding; the limitation period; and whether legal advice is mandatory.

Official language

2.4.2    After laying a charge for a service offence or a service infraction, the charge layer must ask the person charged whether they would like the proceeding to be conducted in either English or French.^{Footnote 31} The charge layer must mark the official language selection in the appropriate space on the charge report. An officer conducting a summary hearing (OCSH) must be able to understand the official language in which the hearing is to be conducted without the assistance of an interpreter.^{Footnote 32}

2.4.3    If the officer to whom a charge is referred determines that they do not have the required language ability, the officer must refer the charge to another CO, superior commander or delegated officer who holds the necessary language ability.

2.4.4    Witnesses may testify in their preferred official language, and if it is not the official language chosen for the hearing, an interpreter must be provided. The OCSH must ensure that the interpreter is competent to translate the witness’ testimony into the language chosen for the proceedings. The person charged, however, may consent to dispense with the interpreter if they understand the language the witness will be using. The OCSH is not required to dispense with the interpreter in such circumstances, and should not do so despite the consent of the person charged, where it is considered to not be in the interest of justice to do so.

Limitation period

2.4.5    An SH must be commenced within six months after the day on which the service infraction is alleged to have been committed.^{Footnote 33}

2.4.6    In the event a limitation period has passed, there is no jurisdiction to hear the matter, and as a result, the charge cannot be proceeded with. If the charge cannot be proceeded with by reason of the limitation period, the officer to whom the charge was referred must communicate this to the persons listed at QR&O art 121.09 (Decision not to proceed).

Legal advice

2.4.7    Legal advice must be sought by the officer to whom a charge is referred if the charge laid concerns a person against whom 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 service infraction.^{Footnote 34}

2.4.8    Should the officer who receives the legal advice required under QR&O paragraph (para) 121.07(b) decide to not act on that advice, the officer must provide their decision and reasons in writing to both the next superior officer to whom they are responsible in matters of discipline and to the legal officer who provided the advice.

2.5 Decisions upon referral of a service infraction

2.5.1    Subject to the completion of the preliminary determinations required under QR&O art 121.07 (Preliminary determinations), as set out above at s 2.4 and taking into account the jurisdictional considerations set out at s 2.6, the officer to whom a service infraction charge is referred must, take one of the following actions specified at NDA s 162.95 (Commanding officer’s obligation): conduct an SH in relation to the charge; decide to not proceed with the charge; or, refer the charge.

Decision to conduct a summary hearing - NDA subsection 162.95(a)

2.5.2    Upon a decision to conduct an SH, the OCSH must choose a date, time and location for the hearing. A person charged may be dealt with either inside or outside Canada. The determination of the location of the hearing will depend on a number of factors, including:

1. The circumstances, including availability and location of the person charged, the witnesses and any person against whom 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 infraction;
2. Location of the incident that gave rise to the charge; and
3. The operational posture of the unit.

2.5.3    The discretion to choose a location will be exercised based upon a balancing of convenience and the disciplinary interests of the unit, bearing in mind the principles of fairness, and the six month limitation period.

Decision not to proceed with charge - NDA subsection 162.95(b)

2.5.4    A decision not to proceed is a discretionary one. It is based on the opinion of the officer to whom the charge was referred as to whether the charge should be proceeded with.^{Footnote 35} If a decision is made to not proceed, no SH is held. A decision not to proceed and the reasons for that decision must be provided, in writing, as soon as the circumstances permit to the persons listed at QR&O art 121.09 (Decision not to proceed).^{Footnote 36}

2.5.5    An officer to whom the charge was referred must consider the particular circumstances of the case when considering whether or not to proceed. Such circumstances may include but are not limited to:

1. Whether the matter should proceed by way of a service offence;^{Footnote 37} or,
2. Whether or not in the interest of discipline, efficiency and morale of the Canadian Armed Forces (CAF), to conduct the hearing.^{Footnote 38}

2.5.6    A decision to not proceed does not preclude the hearing of the matter at a later date, as long as the six month limitation period is respected.

2.5.7    A decision to not proceed is distinct from the determination that the officer to whom a charge is referred should or must not be the OCSH. In those cases, referring the charge is appropriate.

2.5.8    Should the officer to whom the charge was referred have any questions on whether to proceed with the charge, a legal advisor should be consulted.

Decision to refer the charge to another officer - NDA subsection 162.95(c)

2.5.9    Should the officer to whom a charge has been referred determine that while an SH should be held in respect of the matter, they will not conduct the SH, NDA subsection (subs) 162.95(c) obliges them to make a subsequent referral of the charge to another commanding officer, superior commander or delegated officer.

2.6 Jurisdiction/ability to conduct a summary hearing

2.6.1    Within the context of an SH, the term “jurisdiction” refers to the legal authority to hear and determine the issues relating to the SH of the person charged.

2.6.2    The officer to whom the charge was referred must determine whether they have the jurisdiction to proceed with an SH before taking one of the actions specified at NDA s 162.95 (Commanding officer’s obligation): conduct an SH in relation to the charge; decide to not proceed with the charge; or, refer the charge. In the event they do not have the legal authority to proceed, either no SH is held or the charge is referred.

2.6.3    A person charged may, at any point after they receive notice of the decision to conduct the hearing, including during the SH itself, request that the OCSH withdraw from the proceeding due to a lack of jurisdiction.^{Footnote 39} When considering this request, the OCSH must consider any representations from the person charged and provide the person with reasons for the decision reached.^{Footnote 40} Prior to receiving any evidence, the OCSH must ask whether the person charged wishes to make representations with respect to the officer’s lack of ability to conduct the SH, including any lack of jurisdiction.^{Footnote 41}

2.6.4    An officer’s lack of ability to conduct the SH, including a lack of jurisdiction, may result from, but is not limited to the following:

1. The expiration of the six month limitation period;^{Footnote 42}
2. The inability of the officer to whom the charge was referred to understand the language in which the hearing is to be conducted;^{Footnote 43}
3. The failure to meet a condition set out at NDA subs 163(1) (Jurisdiction);^{Footnote 44}
4. The existence of a prohibition set out at NDA subs 163(2) (Prohibition on conducting a hearing);
5. Partiality/bias or the appearance thereof;
6. The officer to whom the charge was referred does not have valid certification of qualification from the Judge Advocate General, pursuant to QR&O art 101.07 (Certification of qualification to administer the Code of Service Discipline);^{Footnote 45} and,
7. The person charged has been previously tried for a service offence arising from the same facts on which the charged service infraction is based.^{Footnote 46}

2.6.5    The officer to whom the charge was referred or the OCSH is encouraged to contact their unit legal advisor at any time if a lack of ability to conduct an SH, including a lack of jurisdiction, is either raised by the person charged, or by the OCSH on their own initiative. In the event the OCSH chooses to withdraw, they should contact their unit legal advisor.

2.7 Adjournments

2.7.1    Either the person charged, or the AM on their behalf, can request an adjournment of an SH at any time. The OCSH has the obligation to grant any reasonable adjournment requested.^{Footnote 47} When considering what would be a reasonable adjournment, the following factors will be considered:

1. The amount of time that has passed since the person charged received a copy of the charge report;^{Footnote 48}
2. The amount of time that has passed since the person charged received a copy of, or was given access to, all the information referred to in QR&O 121.03 (Provision of information);
3. The number of charges;
4. The number of witnesses being called;
5. The availability of the witnesses being called for the person charged;
6. The amount of evidence to be considered;
7. Whether the adjournment would cause unreasonable delay of the proceedings; and
8. Whether the request for the adjournment was made in good faith.

2.8 Attendance of witnesses

2.8.1    The OCSH must ensure the attendance of the witnesses. This includes ensuring the attendance of the witnesses requested by the person charged. In light of the requirement to conduct a fair hearing, all efforts should be made to accommodate the request of the person charged. However, the OCSH is not obliged to arrange for the attendance of witnesses where the officer believes the request is frivolous or vexatious,^{Footnote 49}  or where their attendance cannot be reasonably effected.

2.8.2    Witnesses may give evidence at the hearing by telephone or other electronic means so long as the identity of the witness can reasonably be confirmed and the witness may be properly heard and questioned by the OCSH and the person charged or their AM.

2.8.3    Questions with respect to witnesses, including arranging their attendance and testimony, should be directed to the unit legal advisor.

2.9 Attendance of the person charged

2.9.1    The person charged must attend their SH, but they may do so by any means permitting simultaneous visual and oral communication. The attendance of the person charged is an essential element of procedural fairness. It allows for meaningful participation or awareness as well as the opportunity to make representations.

2.10 Bias

2.10.1  It is essential for ensuring procedural fairness that the SH be conducted in an impartial manner by an impartial officer. The OCSH must be impartial and must be seen to be impartial. Impartiality in the context of an SH means the OCSH is not only unbiased but there is also no reasonable apprehension of bias. When confirming that they are not precluded from acting on the ground of bias, the officer to whom the charge was referred or the OCSH will consider the following test:

2.10.2  The test for bias is not only whether an actual bias exists, but whether a reasonably well informed person, viewing the situation, would think that the decision-maker is likely to make a decision that is not entirely based on the admissible evidence. In other words, would “… a reasonably well-informed person, … conclude that there is a reasonable apprehension of bias”.^{Footnote 51} 

2.10.3  An apprehension of bias on the part of the officer to whom the charge was referred or the OCSH could arise from a number of circumstances, including when the officer to whom the charge was referred or the OCSH has:

1. A close relationship with the person charged or with a witness who is to give evidence at the hearing;
2. Unfavorable feelings towards the person charged or a witness who is to give evidence at the hearing;
3. A direct personal interest in the outcome; or,
4. Expressed a preference towards a certain outcome.

2.10.4  Should the officer to whom the charge was referred or the OCSH have any questions regarding their impartiality or whether their circumstances could raise an apprehension of bias, they are strongly encouraged to obtain legal advice.