QR&Os: Volume II - Chapter 110 Action by Director of Military Prosecutions in Respect of Charges

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Amendment List:

  • 18 July 2008 Amended Article: 110.06
  • 5 June 2008 Amended Article: 110.04
  • 5 June 2008 Amended Article: 110.07
  • 5 June 2008 Amended Article: 110.10

History:

110.01 – APPLICATION

This chapter applies in respect of action taken by the Director of Military Prosecutions on receipt of an application for disposal of a charge under Chapter 109 (Application to Referral Authority for Disposal of a Charge).

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

110.02 – MEANING OF "PREFERRED"

Subsection 165(2) of the National Defence Act provides:

"165. (2) For the purposes of this Act, a charge is preferred when the charge sheet in respect of the charge is signed by the Director of Military Prosecutions, or an officer authorized by the Director of Military Prosecutions to do so, and referred to the Court Martial Administrator."

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

110.03 – DEFINITION OF "DIRECTOR OF MILITARY PROSECUTIONS"

In this chapter, "Director of Military Prosecutions" includes any officer authorized by the Director to assist and represent the Director to the extent determined by the Director.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)


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110.04 – ACTION BY DIRECTOR OF MILITARY PROSECUTIONS ON RECEIPT OF APPLICATION FOR DISPOSAL OF A CHARGE

(1) Where an application for disposal of a charge is referred to the Director of Military Prosecutions, the Director may:

  1. prefer the charge, or any other charge that is founded on facts disclosed by evidence in addition to or in substitution for the charge;
  2. refer the charge for disposal by an officer who has jurisdiction to try the accused person by summary trial where the Director is satisfied that a charge should not be proceeded with by court martial; or
  3. decide not to proceed with the charge.

(2) For the purposes of paragraph (1), the Director of Military Prosecutions may require additional investigation into a matter.

(3) If the Director of Military Prosecutions decides not to prefer the charge that has been referred, the Director shall provide written notice as soon as practicable to

  1. the accused;
  2. legal counsel for the accused;
  3. the commanding officer of the accused;
  4. the officer who referred the charge;
  5. the Director of Defence Counsel Services; and
  6. the Judge Advocate General.

(G) (P.C. 2008-1015 of 5 June 2008 effective 5 June 2008)

NOTE

While a referral under subparagraph (1)(b) of this article can be made to any officer having summary trial jurisdiction, when determining the most appropriate officer to whom a charge should be referred, the Director of Military Prosecutions will normally consult with the referral authority.

(C) (1 September 1999)

110.05 – DUTY TO INVESTIGATE

The Canadian Forces National Investigation Service, commanding officers and other military authorities shall cause to be carried out any additional investigation that is requested by the Director of Military Prosecutions in the exercise of the Director's duties in respect of an individual case.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

110.06 – PREPARATION OF CHARGE SHEET

(1) A charge sheet shall be prepared by the Director of Military Prosecutions when it is proposed to prefer a charge.

(2) The charge sheet shall contain:

  1. at the commencement, the name of the accused person and, if the accused person is a member of the Canadian Forces, the accused person's service number, rank, unit and component of the Canadian Forces; and (4 July 2008)
  2. a statement of the offence and a statement of the particulars of the act, omission, conduct, disorder or neglect constituting the offence, with sufficient details to enable the accused person to be reasonably informed of the offence alleged. (4 July 2008)

(3) Where the accused is a civilian, the charge sheet shall reflect the accused's status under the Code of Service Discipline.

(4) A charge sheet shall be signed by the Director of Military Prosecutions.

(G) (P.C. 2008-1319 of 4 July 2008 effective 4 July 2008)

110.07 – DISTRIBUTION OF CHARGE SHEET

The Director of Military Prosecutions shall cause the charge sheet to be forwarded to the Court Martial Administrator and a copy of the charge sheet forwarded to

  1. the accused;
  2. legal counsel for the accused;
  3. the commanding officer of the accused;
  4. the officer who referred the charge;
  5. the Director of Defence Counsel Services; and
  6. the Judge Advocate General.

(G) (P.C. 2008-1015 of 5 June 2008 effective 5 June 2008)


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110.08 – LANGUAGE OF PROCEEDINGS

Where a charge has been preferred, the Director of Military Prosecutions shall cause the Court Martial Administrator to be informed as to the language of trial chosen by the accused.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

NOTE

An accused may, pursuant to the Official Languages Act (Revised Statutes of Canada, 1985, Chapter 31 (4th Supp.)), choose to have his trial conducted in either English or French. The accused's decision is made prior to the commencement of proceedings and is recorded on the Record of Disciplinary Proceedings.

(C) (1 September 1999)

110.09 – JOINT TRIALS

(1) Charges against two or more accused persons may be preferred jointly by the Director of Military Prosecutions and tried together by court martial where an offence has been alleged to have been committed collectively.

(2) An accused person, against whom charges have been preferred jointly, may apply to the military judge assigned to preside at the court martial for an order to be tried separately.

(3) The military judge may order that an accused person be tried separately where the judge is satisfied that the interests of justice so require.

(4) Where an order is made under paragraph (3), the accused may be tried on a new charge sheet prepared in accordance with article 110.06 (Preparation of Charge Sheet) and distributed in accordance with article 110.07 (Distribution of Charge Sheet).

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

110.10 – WITHDRAWAL OF A CHARGE

(1) Subsections 165.12(2) and (3) of the National Defence Act provide:

"165.12 (2) The Director of Military Prosecutions may withdraw a charge that has been preferred, but if a trial by court martial has commenced, the Director of Military Prosecutions may do so only with leave of the court martial.

(3) Withdrawing a charge does not preclude it from being proceeded with at any subsequent time."

(2) If the Director of Military Prosecutions provides written notice to the Court Martial Administrator of the withdrawal of a charge, the Director shall provide a copy of the notice as soon as practicable to

  1. the accused;
  2. legal counsel for the accused;
  3. the commanding officer of the accused;
  4. the officer who referred the charge;
  5. the Director of Defence Counsel Services; and
  6. the Judge Advocate General.

(G) (P.C. 2008-1015 of 5 June 2008 effective 5 June 2008)

NOTE

A trial by court martial commences when the accused pleads to a charge.

(C) (1 September 1999)

110.11 – ANNUAL REPORT

The Director of Military Prosecutions shall report annually to the Judge Advocate General on the execution of his or her duties and functions.

(G) (P.C. 1999-1305 of 8 July 1999 effective 1 September 1999)

(110.12 TO 110.99 INCLUSIVE: NOT ALLOCATED)