Communications with Unit Legal Advisors

Alternate Formats

DMP Policy Directive
Directive #: 009/00
Date: 15 March 2000
Updated: 25 June 2014

Subject: Communications with Unit Legal Advisors

APPLICATION OF POLICY

1. This policy applies to Prosecutors1 when communicating with unit legal advisors on matters that are related to military justice.

INTRODUCTION

2. Although the Prosecutor and the unit legal advisor have separate roles in the military justice system, they may be required to communicate from time to time on certain matters as they proceed through the military justice system.  Such communication is necessary to progress a matter through the military justice process in an efficient and effective manner.

3. However, such communication must also be subject to specific parameters that permit the required degree of coordination but do not impact on the independence of the Prosecutor and the exercise of prosecutorial discretion.

STATEMENT OF POLICY

4.  Prosecutors will communicate with unit legal advisors to ensure the efficient passage of all relevant information.  Throughout the Court Martial process Prosecutors and unit legal advisors must assist one another as each of them will, at times, be responsible for a matter proceeding through the military justice system.  It is essential that they ensure proper coordination while still maintaining the independence necessary to exercise prosecutorial discretion.

PRACTICE/PROCEDURE

5. As Prosecutors and unit legal advisors may be required to work on the same matter as it progresses through the military justice system, timely communication is necessary to ensure the expeditious progress of a file through the military justice process.

Prosecutor/Unit Legal Advisor Coordination

6. Examples of those occasions where a Prosecutor and a unit legal advisor must coordinate to progress a matter through the military justice system include pre-charge screening, post-charge review and those times where the unit legal advisor is acting as a second chair prosecutor after a matter has been preferred.

Pre-charge Screening

7. Normally the Prosecutor only provides pre-charge screening advice to the Canadian Forces National Investigative Service (“CFNIS”).  However, for those matters investigated by a unit or by the military police that, if charges were preferred, would result in an automatic Court Martial for the accused the Prosecutor shall provide pre-charge screening advice to the appropriate unit legal advisor.2

8. In those cases, the responsible unit will contact their legal advisor who will review the file and determine whether the proposed charges would result in an automatic Court Martial.  Once such a determination has been made, the unit legal advisor shall forward the file to the applicable Regional Military Prosecutor (“RMP”) office as expeditiously as possible. The Prosecutor from that RMP office will then provide advice to the unit legal advisor as to whether there is a reasonable prospect of conviction, whether or not in the circumstances a charge should be laid and, where a charge should be laid, the appropriate charge.

9. This advice shall be forwarded to the unit legal advisor in writing.3 If the Prosecutor deems the file incomplete for these purposes, it will be returned to the unit legal advisor for further investigation or a recommendation that charges do not proceed.

10. Prosecutors shall not provide legal advice directly to unit authorities.  All pre-charge screening advice shall be provided to the applicable unit legal advisor.

Post-charge Review

11. On occasion, there may be investigations completed by the CFNIS where the Prosecutor conducted the pre-charge screening and the accused elects to be tried by Summary Trial.  In such cases, the unit legal advisor will be responsible to provide legal advice pursuant to Queen’s Regulations and Orders for the Canadian Forces (“QR&O”) 107.11.  If contacted by the unit legal advisor, the Prosecutor may provide information related to the pre-charge screening in order to assist the unit legal advisor with his or her advice. 

12. Should a Prosecutor conduct a pre-charge screening and an accused subsequently elects Summary Trial, the unit legal advisor should inform the Prosecutor of the final disposition of the case once they are aware that the matter has been disposed.

13. Conversely, there may be investigations completed by the unit or by the military police where the accused elects to be tried by Court Martial.  In such cases the unit legal advisor would have provided legal advice pursuant to QR&O 107.03.  As the Prosecutor will be responsible to conduct post-charge review he or she may contact the applicable unit legal advisor to gather all relevant information to assist him or her to conduct the review. 

14. As the exchange of information through such coordination may involve the transfer of information that is subject to privilege or is classified, the Prosecutor must take the necessary precautions to ensure the proper protection and storage of such information.

Second Chair

15. In order to contribute to the professional development of unit legal advisors as well as to improve the quality of prosecutions through greater local situational awareness, the Director of Military Prosecutions (“DMP”) and the Deputy Judge Advocate General Regional Services have concluded an agreement whereby unit legal advisors will participate as second chairs to Prosecutors in preparation for and conduct of Courts Martial.

16. When a referral is forwarded to DMP in accordance with QR&O 109.05, the regional Deputy Director of Military Prosecutions (DDMP) shall assign a Prosecutor to conduct a post-charge review of the matter and conduct the prosecution if the charge is preferred.  Such assignment letter will be copied to the AJAG that advised the referral authority in that matter.  If the AJAG has a unit legal advisor available to act as a second chair the AJAG will, within 14 days of receipt of the assignment letter, notify the DMP of his or her choice of unit legal advisor to assist as second chair.  Pursuant to section 165.15 of the National Defence Act (“NDA”), the DMP may then appoint the unit legal advisor to assist and represent him or her as a second chair in that matter..

17. The lead Prosecutor will provide a copy of the disclosure package to the unit legal advisor who will then assist in the post-charge review process.  However, the lead Prosecutor will make the final decision on the post-charge analysis.  If the matter is preferred for Court Martial, the unit legal advisor will act as an assistant Prosecutor at trial.  The lead Prosecutor will always have the final decision-making power on the conduct of the trial.

18. When a unit legal advisor is engaged in second chairing activities, he or she is working for the DMP pursuant to NDA section 165.15 of the NDA, and not for the AJAG.  As such, unit legal advisors will be directed not to report prosecution privileged information related to the particular Court Martial to the AJAG or to any regional service authority.  Any communication related to the particular Court Martial by the unit legal advisor to any service authority, the AJAG or any other person is subject to the direction of the Prosecutor.  In particular, when a unit legal advisor is engaged in second chairing activities, he or she shall not provide disciplinary or administrative advice to the chain of command regarding the accused that is being prosecuted.

19.  Any disagreement between the RMP and the unit legal advisor as to the interpretation or application of provisions of this arrangement on a particular file shall be resolved through discussions between the applicable AJAG and the regional DDMP.

Prosecutor/Unit Legal Advisor Consultation

20. In order to ensure that unit legal advisors maintain an awareness of those matters that are proceeding through the Court Martial process, it is necessary for Prosecutors to communicate with them in order to keep them apprised of the progress of the matter.  The Prosecutor shall communicate with the appropriate unit legal advisor as set out below.

Communication with Service Authorities

21.  All information provided to service authorities in accordance with DMP Policy Directive 005/00 such as the assignment letter, requests for further investigations, preferrals and withdrawal of charges shall also be copied to the appropriate AJAG.

Non-Preferral of Charges

22. Before a non-preferral decision is made the Prosecutor should first inform the appropriate AJAG of his or her intention to non-prefer.  This provides an opportunity for the AJAG to inform the Prosecutor of any other matters that may require consideration before the charges are non-preferred but also serves to keep the AJAG informed of the decision of the Prosecutor.  It should be emphasized that any decisions to non-prefer remain within the scope of prosecutorial discretion and ultimately rest with the Prosecutor.

Availability of Policy

23. This policy statement is a public document and is available to members of the Canadian Forces and the public.


Footnotes

1 Any reference in this policy to "Prosecutor" or "Prosecutors" shall be deemed to refer to any officer or officers who are members of the Canadian Military Prosecution Service or have been authorized by the Director of Military Prosecutions to assist or represent the DMP pursuant to section 165.15 of the National Defence Act.

2 See Policy Directive 002/00 on pre-charge screening advice.

3 See Annex B of Policy Directive 002/00 on pre-charge screening advice.

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