Pre-Charge Screening

Alternate Formats

DMP Policy Directive
Directive #: 002/99
Date: 1 March 2000
Updated:  16 May 2016
Cross Reference: Witness Interviews, Sexual Misconduct Offences, Post-Charge Screening

Subject: Pre-Charge Screening

Application of Policy

1. This policy applies when charges are being considered by a person with the authority to lay a charge under the Code of Service Discipline (“CSD”) pursuant to Queen’s Regulations and Orders for the Canadian Forces (“QR&O”) article 107.02 and the Prosecutor1 is giving advice in accordance with QR&O article 107.03.

Introduction

2. Deciding whether to lay charges is one of the most important steps in the disciplinary process. Considerable care must be taken in each case to ensure that an appropriate decision is made in order to maintain confidence in the military justice system.

3. QR&O article 107.02 sets out the charge laying authorities under the CSD: first, a commanding officer or an officer or non-commissioned member authorized by a commanding officer to lay a charge (“unit charge layer”) and second, a member of the military police assigned to investigative duties within the Canadian Forces National Investigation Service (“CFNIS”).

4. Before a charge is laid there is a requirement in many cases to obtain advice from a legal officer.2 Prosecutors will provide legal advice to the CFNIS respecting all charges proposed by the CFNIS as well as to unit legal advisors for those charges proposed by unit charge layers that must exclusively be tried by court martial.3

Statement of Policy

5. When providing pre-charge legal advice to charge laying authorities, Prosecutors must obtain all relevant available evidence from the charge laying authority and then determine 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.

Practice/Procedure

6. Often when a Prosecutor is called upon to provide pre-charge advice the file may be incomplete as compared to the file at the time of court martial.  It is not always the case that the Prosecutor will require a complete file before giving pre-charge advice. When providing pre-charge advice, Prosecutors are not expected to achieve a standard of perfection. With the important goal of providing advice in an efficient and timely manner Prosecutors should confidently make the necessary decisions at the pre-charge stage based on the limited available information provided by the investigator.

7. The practice and procedure for Prosecutors providing pre-charge screening advice will be different depending upon whether Prosecutors are providing advice to the CFNIS or are providing advice to unit legal advisors.

CFNIS

8. When seeking pre-charge advice, the CFNIS investigator will first submit all the available relevant investigative material to enable the Prosecutor to determine if 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. If the Prosecutor deems the available information is insufficient for this purpose, the file shall be returned to the CFNIS investigator for further investigation or a recommendation that charges should not proceed.

9. When the available investigative material is sufficient, the Prosecutor shall forward the pre-charge advice to the CFNIS investigator in writing as set out in Annex A to this policy directive unless, in the opinion of the Prosecutor, a more detailed memorandum is required due to the complexity and/or the seriousness of the proposed charge(s).  Whether Annex A or a detailed memorandum is used, the Prosecutor shall clearly advise as to the recommended course of action and shall provide the basis for that advice.  After providing pre-charge legal advice, the Prosecutor shall follow up with the CFNIS investigator and address any questions or concerns arising from that advice.

Unit Legal Advisors

10. In most cases, serious offences are investigated by CFNIS investigators but there are occasions where offences investigated by units or by the military police outside of the CFNIS must be tried by court martial and not by summary trial.4 In those cases, the responsible unit will contact their legal advisor who will review the file and determine whether the potentially appropriate charges would result in an automatic court martial. If the unit legal advisor determines that potentially appropriate charges would necessarily result in a court martial, the unit legal advisor shall forward the file to the nearest 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.

11. If the Prosecutor deems the available investigative material to be insufficient for these purposes, the file will be returned to the unit legal advisor for further investigation or with a recommendation that charges should not be laid.  The Prosecutor’s legal advice shall be forwarded to the unit legal advisor in writing as set out in Annex B to this policy directive unless, in the opinion of the Prosecutor, a more detailed memorandum is required due to the complexity and or the seriousness of the proposed charge(s). Whether Annex B or a detailed memorandum is used, the Prosecutor shall clearly advise as to the recommended course of action and shall provide the basis for that advice.  After providing pre-charge legal advice, the Prosecutor shall follow up with the unit legal advisor and address any questions or concerns arising from that advice.

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

Jurisdiction

13. In order to determine whether charges should proceed in the military or civilian justice system, the Prosecutor may communicate directly with civilian authorities having concurrent jurisdiction, either before or after a charge is laid. The Prosecutor shall consult with their Deputy Director of Military Prosecutions (DDMP) prior to any such communication.

14. Determining who should prosecute a case will require careful consideration of all relevant factors including:

  1. the degree of military interest in the case, as reflected by factors such as the place where the offence was alleged to occur, or whether the accused was on duty at the time of the alleged offence;
  2. the degree of civilian community interest in the case;
  3. the views of the victim;5 
  4. whether the accused, the victim, or both are members of the CF;
  5. whether the matter was investigated by military or civilian personnel;
  6. the views of the investigative agency;
  7. geographic considerations such as the current location of necessary witnesses;
  8. jurisdictional considerations where, for example, the offence was allegedly committed outside Canada;
  9. post-conviction consequences; and
  10. the views of the Commanding Officer, as expressed through the unit legal advisor, with respect to unit disciplinary interests.

15. Where consensus is not achieved by consultation between the Prosecutor, civilian authorities and unit legal advisor, the Prosecutor shall engage the appropriate DDMP. The DDMP will continue the consultation process to resolve the matter.

The Views of the Victim Regarding Jurisdiction

16. In providing legal advice on whether or not a charge should be laid and the jurisdiction in which any charge should heard, it is important for the Prosecutor to take into account the views of the victim of the alleged offence, particularly in cases where the alleged offence involves the violation of the victim’s personal integrity (e.g. physical, sexual, emotional).  Certain concerns expressed by the victim may be better addressed by proceeding in the military justice system but others may be better addressed by asking civilian authorities to exercise jurisdiction.

17. The Prosecutor must take into account the victim’s views on issues such as:

  1. urgency of resolution;
  2. safety concerns about possible reprisals from the suspect or others;
  3. concerns relating to conditions imposed on the suspect following release from custody;6 
  4. access to victim support services;
  5. physical or mental trauma resulting from the alleged offence;
  6. physical or mental trauma resulting from participation in court proceedings; and
  7. the needs of any children or other dependants affected by the alleged offence.

18.  If the Prosecutor determines that the information in the investigation report does not adequately indicate the views of the victim as described above, the Prosecutor shall follow up with the investigator and request additional information. 

19. The Prosecutor shall consult the DDMP before a final decision is taken in any case.

20. Once jurisdiction is decided, the Prosecutor shall encourage the investigator to inform the victim of the decision and the associated reasoning. 

Reasonable Prospect of Conviction

21. The threshold test of “reasonable prospect of conviction” is objective.  This standard is higher than a “prima facie” case that merely requires that there is evidence whereby a reasonable jury, properly instructed, could convict.  On the other hand, the standard does not require “a probability of conviction”, that is, a conclusion that a conviction is more likely than not.7 

22. A prosecution is not legally sustainable unless there is evidence to support the accusation that a person subject to the CSD has committed a service offence. In the assessment of the evidence, an actual and reasonable belief that the offence has been committed is necessary but not sufficient. The evidence must be evaluated to determine how strong the case is likely to be when presented at any service tribunal and should be made on the assumption that the trier of fact will act impartially and according to law. This will require a proper assessment on whether all of the elements of the alleged offence have been established, the relevance and admissibility of evidence implicating the accused,8 as well as the competence and objective credibility of witnesses.9 

23. Prosecutors are required to consider any defences that are plainly open to or have been indicated by the accused and any other factors that could affect the reasonable prospect of a conviction, for example, the existence of a potential Charter violation that may lead to the exclusion of evidence.

24. The role of the Prosecutor in assessing the reasonable prospect of conviction determination is quasi-judicial in nature. The assessment of the evidence requires a fair evaluation of evidence in all the circumstances of the case. Prosecutors must guard against a perception or view of the case simply adopted from the views or enthusiasm of others.  As a case develops and changes during the prosecution process, the Prosecutor must guard and maintain the independence and integrity required to fairly reassess a case as it evolves.

25. In addition to the task of pressing a case vigorously and firmly, the Prosecutor must ensure that every prosecution is conducted fairly. A Prosecutor is not obliged to believe without reservation everything that he or she has been told by each prospective prosecution witness. As a matter of fairness, any reservation with respect to material evidence ought to be investigated and addressed in the context of evaluating the reasonable prospect of conviction.

26. Where all CFNIS proposed charges include offences that may be tried by summary trial, including electable offences, the reasonable prospect of conviction determination will be based on the assumption that the rules and procedures applicable to summary trial will govern.10  Where any of the proposed charges must only be tried by court martial, the reasonable prospect of conviction determination on all of the proposed charges will be based on the procedures and rules of evidence applicable at court martial.

27. Since Prosecutors will review investigation files prepared by unit authorities that will only result in a trial by court martial, the reasonable prospect of conviction analysis in such cases will be based on the procedures and rules of evidence applicable at court martial.

Circumstances Governing Whether or Not a Charge Should be Laid

28. Notwithstanding that there may be a reasonable prospect of conviction for an offence it may not be appropriate to recommend that a charge be laid where:

  1. it would be more appropriate for the matter to be dealt with by another authority having jurisdiction to prosecute; or
  2. it is not in the public interest.

29. Public interest criteria that may arise on the facts of a particular case include:

  1. the effect on the maintenance of good order and discipline in the Canadian Forces, including the likely impact, if any, on military operations;11
  2. the seriousness or triviality of the alleged offence;
  3. the views of the victim and any evident impact a decision to lay a charge may have on him or her;
  4. significant mitigating or aggravating circumstances;
  5. the accused’s background and any extraordinary personal circumstances of the accused;
  6. the degree of staleness of the alleged offence;
  7. the accused’s alleged degree of responsibility for the offence;
  8. the likely effect on public confidence in military discipline or the administration of military justice;
  9. whether laying a charge would be perceived as counter-productive, for example, by bringing the administration of justice into disrepute;
  10. the availability and appropriateness of alternatives to laying a charge;
  11. the prevalence of the alleged offence in the unit or military community at large and the need for general and specific deterrence;
  12. whether the consequences of laying a charge would be disproportionately harsh or oppressive, especially considering how other persons implicated in the offence or previous similar cases have been or likely will be dealt with; and
  13. whether the alleged offence is of considerable public concern.

30. The application of these factors set out above, other relevant factors, and the weight to be given to each will depend on the circumstances of each case.

31. Factors that should not be taken into account when determining whether to lay a charge include:

  1. the rank of the accused;
  2. reasoning which constitutes a prohibited ground of discrimination under section 3 of the Canadian Human Rights Act;
  3. the Prosecutor’s personal feelings about the accused or the victim;
  4. possible or perceived political advantage or disadvantage to the Canadian Forces, the Department of National Defence, the government or any political group or party; and
  5. the possible effect of the decision on the personal or professional circumstances of those responsible for the investigation or any other member of the Canadian Forces or the Department of National Defence.

Timelines

32. Although the time required to provide pre-charge advice will be dependent upon the nature and complexity of the case, Prosecutors should provide the advice within 14 days of receiving the file when the all of the proposed charges, including electable offences, can be tried by summary trial and within 30 days in those instances where any charge would result in an automatic court martial for the accused.

33. Should the Prosecutor require longer than 14 or 30 days, as the case may be, to complete the pre-charge advice, he or she shall contact the CFNIS investigator or, in the case of unit proposed charges, the unit legal advisor. The Prosecutor will provide such person with a reasonable estimate as to how much time will be required to provide the advice and a brief explanation as to why more time is required.

Disagreement

34. Pre-charge advice on whether to lay a charge can be contentious. A CFNIS investigator is entitled to be informed of the rationale of the Prosecutor when that advice is offered. After consultation, investigators and the Prosecutor will usually agree on pre- charge screening decisions. If there continues to be disagreement, however, the Prosecutor may discuss the matter with the Officer-in-Command of the applicable CFNIS detachment.  If disagreement continues, the matter shall be discussed between the Commanding Officer of the CFNIS and the regional DDMP. Ultimately, the final decision to lay a charge remains within the discretion of the charge laying authority and not the DMP.

Availability of Policy

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


DMP Policy Directive 002 - Annex A
(Sample form and questions)

Solicitor/Client Privilege

Classification (as applicable) (when completed)

CFNIS Pre-Charge Screening Form
Director of Military Prosecutions

This pre-charge screening form shall be completed pursuant to QR&O 107.03 and DMP Policy Directive 002. Before completing this form the Prosecutor should ensure that the investigator has provided all available investigative material. If the file is incomplete, the Prosecutor should return the file to the CFNIS for further investigation or a recommendation that charges do not proceed. This form should be completed by the Prosecutor within 14 days if all the proposed charges may be tried by Summary Trial, including electable offences, and within 30 days if any charges would result in an automatic court martial for the accused.

Part 1 - General Information

  • [GO Number:]
  • [Date Received:]
  • [Prosecutor:]
  • [Telephone:]
  • [Region:]
  • [Investigator:]
  • [Telephone:]
  • [Accused Name:]
  • [Service Number:]
  • [Unit:]
  • [Force: Reg / Res]

Part 2 - Decision of Prosecutor

  • [Material Reviewed by Prosecutor:]
  • [Jurisdiction Established: Yes / No]
  • [Reasonable Prospect of Conviction: Yes / No]
  • [Should a charge be laid: Yes / No]
  • [File returned to CFNIS for further investigation: Yes / No]
  • [Rationale: (attach a separate sheet, if required)]

Part 3 - Charges

Charges recommended:

  • [First Charge – Section, Act]
  • [Second Charge – Section, Act]
  • [Third Charge – Section, Act]

Particulars

Part 4 - Requirements of Investigator

  • [NIS to inform RMP when charges to be laid: Yes / No (Ex. Likely to raise media interest)]
  • [CFNIS disclosure to be prepared Immediately: Yes / No]
  • [To be sent to:]
  • [Further evidence required by:(But not required before charges are laid)]
  • [Prosecutor's signature:]
  • [Date:]

Original: CFNIS

First Copy: File

Second Copy: DDMP


DMP Policy Directive 002 - Annex B
(Sample form and questions)

Solicitor/Client Privilege

Classification (as applicable) (when completed)

Unit Legal Advisor Pre-Charge Screening Form
Director of Military Prosecutions

This pre-charge screening form shall be completed pursuant to QR&O 107.03 and DMP Policy Directive 002. Before completing this form the Prosecutor should ensure that the Unit Legal Advisor has provided all available investigative material. If the file is incomplete, the Prosecutor should return the file to the Unit Legal Advisor for further investigation or a recommendation that charges do not proceed. This form should be completed by the Prosecutor within 30 days.

Part 1 - General Information

  • [Date Received:]
  • [Prosecutor:]
  • [Telephone:]
  • [Region:]
  • [Unit Legal Advisor:]
  • [Telephone:]
  • [Accused Name:]
  • [Service Number:]
  • [Unit:]
  • [Force: Reg / Res]

Part 2 - Decision of Prosecutor

  • [Material Reviewed by Prosecutor:]
  • [Jurisdiction Established: Yes / No]
  • [Reasonable Prospect of Conviction: Yes / No]
  • [Should a charge be laid: Yes / No]
  • [File returned to Unit Legal Advisor for further investigation: Yes / No]
  • [Rationale: (attach a separate sheet, if required)]

Part 3 - Charges

Charges Recommended

  • [First Charge – Section, Act]
  • [Second Charge – Section, Act]
  • [Third Charge – Section, Act]

Particulars

Part 4 - Requirements of Investigator

  • [Unit Legal Advisor to inform RMP when charges to be laid: Yes / No (Ex. Likely to raise media interest)]
  • [Investigator disclosure to be prepared Immediately: Yes / No]
  • [To be sent to:]
  • [Further evidence required by:(But not required before charges are laid)]
  • [Prosecutor's signature:]
  • [Date:]

Original: Unit Legal Advisor

First Copy: File

Second Copy: DDMP


Footnotes

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

2 Pursuant to QR&O article 107.03, an officer or a non-commissioned member having authority to lay charges does not have to obtain advice from a legal officer before laying a charge in all cases. QR&O article 107.03 sets out those instances where an officer or a non-commissioned member having authority to lay charges must obtain advice from a legal officer. 

3 See QR&O 108.07 for Summary Trial Jurisdiction – Offences for those offences that a commandingofficer may try an accused person by summary trial.  Those offences that must be exclusively tried by court martial are those offences not listed in QR&O article 108.07.

4 This is related to the type of offence charged listed in QR&O article 108.07. Summary Trial jurisdiction is generally limited to less serious offences. The requirement for Regional Military Prosecutor (“RMP”) legal advice in respect of a unit investigation does not apply to those cases where there is no jurisdiction to try a person at Summary Trial due solely to the length of time it took for the matter to proceed to trial. See footnote 3.

5 Person directly affected by the alleged conduct giving rise to one or more offences. Prosecutors are reminded that in court martial proceedings, it is proper not to refer to the complainant as a victim until such time as the court martial has made a finding of guilt, leading to the logical conclusion that the complainant is a victim of the act(s) alleged.

6 See sections 158.2 to 159.9 of the NDA which address conditions of release following pre-trial custody.

7 Province of Ontario, Ministry of the Attorney General, Crown Policy Manual, March 21, 2005.

8 Rules regarding the admissibility of evidence vary between courts martial and summary trials.  This factor must be kept in mind when the Prosecutor is advising the CFNIS on reasonable prospect of conviction.

9 Assessments of demeanor and other subjective characteristics of witnesses are more appropriatelyconsidered by the trier of fact.  However, in some cases, the distinction between objective and subjective credibility of witnesses may be blurred. For example, a Prosecutor may determine that a key witness, based on their behavior or demeanor, may have very little or no credibility before the trier of fact. Such subjective assessments may be so obvious that they are manifested as an objective factor a Prosecutor may weigh in the course of determining whether there is a reasonable prospect of conviction.

10 See QR&O 108.07 for Summary Trial Jurisdiction – Offences.

11 R v Moriarity, [2015] 3 S.C.R. 485: “The objective of maintaining “discipline, efficiency and morale” is rationally connected to dealing with criminal actions committed by members of the military even when not occurring in military circumstances”  (paragraph 51) and “Criminal or fraudulent conduct, even when committed in circumstances that are not directly related to military duties, may have an impact on the standard of discipline, efficiency and morale.”  (paragraph 52).

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