Annex N: Guide for Referral Authorities

BACKGROUND

1. The reforms to the National Defence Act, that came into force on 1 September 1999 sought to establish a clear separation between the system's investigative, charge laying, and prosecutorial functions. In furtherance of this objective, the amendments to the National Defence Act established the positions of Director of Military Prosecutions and Court Martial Administrator, and redefined the role of the chain of command in the court martial convening process. In doing so, it was necessary to ensure that the court martial convening process reflects Canadian legal norms in the performance of this quasi-judicial function by the Director of Military Prosecutions, while at the same time recognizing and protecting the vital role of the chain of command in the military justice system.

2. The senior officer, who in the past was acting as a convening authority, is now referred to as a referral authority. Since the coming in to force of the reformed system, the referral authority no longer convenes courts martial, but rather must refer charges to the Director of Military Prosecutions with a recommendation as to whether or not the charge(s) should be dealt with by court martial.

3. Upon receipt of the referral authority's recommendation, the Director of Military Prosecutions determines whether or not a charge will be "preferred" for trial by court martial. Where such a decision is made, the charge sheet is signed by the DMP or one of the Regional Military Prosecutorsand sent to the Court Martial Administrator. Upon receipt of the preferred charge, the Court Martial Administrator is required by law to convene a court martial.

A. PURPOSE

4. The purpose of this guide is to:

  • provide a ready reference to referral authorities dealing with an application for disposal of charges;
  • set out the roles and responsibilities of referral authorities in the referral process; and
  • provide guidance to referral authorities in the performance of the referral function.

B. DEFINITION

5. Referral Authority (QR&O article 109.02). The Chief of the Defence Staff and any officer having the powers of an officer commanding a command are the officers that can forward an application for disposal of a charge to the Director of Military Prosecutions.

APPLICATION FOR DISPOSAL OF A CHARGE

A. AUTHORITIES MAKING THE APPLICATION

6. An application to a referral authority for disposal of a charge may be made by a commanding officer, a superior commander or an officer or non-commissioned member of the National Investigation Service.

I. COMMANDING OFFICERS AND SUPERIOR COMMANDERS

i. Decision from the commanding officer or the superior commander to make the application

7. When a charge is brought before a commanding officer or superior commander, a decision as to whether or not to proceed with that charge has to be made. Where the decision is made to proceed with the charge, the procedure as outlined in QR&O chapter 108 must be followed (see QR&O article 107.09(3)). Thereafter, and before the commencement of a summary trial, the officer having jurisdiction in the matter must determine if he is precluded from trying the accused (see QR&O article 108.16 – Pre-Trial Determinations) due to:

  1. the accused's rank or status;
  2. any limitation on jurisdiction that would impede him from hearing the case, such as:
    1. the type of offence (QR&O 108.07 - Jurisdiction - Offences and QR&O 108.125 - Jurisdiction - Offences);
    2. the passage of time since the alleged offence has been committed (QR&O 108.05 Jurisdiction - Limitation Period); or
    3. restrictions imposed by the commanding officer on a delegated officer's powers relating to the imposition of punishment (QR&O 108.10 - Delegation of a Commanding Officer's Powers);
  3. whether the officer's powers of punishment are inadequate having regard to the gravity of the alleged offence;
  4. whether there are reasonable grounds to believe that the accused is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence;
  5. whether it would be inappropriate to try the case having regard to the interests of justice and discipline; and
  6. whether the accused has elected to be tried by court martial.

8. If a commanding officer or superior commander determines that he is precluded from trying the accused for one of the reasons listed at paragraph 7 of the Guide, that commanding officer or superior commander shall proceed with an application to a referral authority for disposal of a charge (see QR&O 108.16(3)).

ii. Election to be tried by court martial

9. An accused person charged with a service offence triable by summary trial must, in most cases, be offered an election to be tried by court martial. QR&O paragraph 108.17(1) acts as an exception to this general rule. It spells out the offences and circumstances in which the accused does not have the right to elect court martial. This regulation must be reviewed prior to giving the accused the option to elect court martial.

10. In cases where in the alleged offence is contrary to one of the provisions outlined in QR&O subparagraph 108.17(1)(a), the presiding officer must offer the accused an election if he or she determines that detention, reduction in rank or a fine in excess of 25% of monthly basic pay could reasonably be imposed should the accused be found guilty of the offence (see QR&O 108.17(1)(b) - Election to be Tried by Court Martial).

11. When an accused elects to be tried by court martial and the charge is to be proceeded with, then a commanding officer or a superior commander shall initiate an application to the appropriate referral authority for disposal of the charge (see QR&O 108.19 and 108.195).

12. Should the accused refuse to make an election, the refusal will be treated as an election to be tried by court martial, and the accused will be so advised.

13. Where an accused has elected to be tried by court martial, the accused may withdraw the election at any time before the Director Military Prosecutions (DMP) prefers charges. After charges have been preferred by the DMP, the election may only be withdrawn with the consent of the DMP.

II. OFFICERS AND NON-COMMISSIONED MEMBERS OF THE NATIONAL INVESTIGATION SERVICE

i. Decision of the commanding officer or the superior commander not to proceed with the charge

14. A commanding officer or a superior commander receiving a charge laid by an officer or non-commissioned member of the National Investigation Service, may decide not to proceed with it. If this decision is made, then the commanding officer or the superior commander, as the case may be, shall communicate this decision in writing to the member of the National Investigation Service who laid the charge. (QR&O article 107.12 (Decision not to proceed with charges laid by National Investigation Service)).

15. Following the review of the reasons given for not proceeding with the charge, the officer or non-commissioned member of the Canadian Forces National Investigation Service, if he still considers that the charge should be proceeded with, may make an application for disposal of the charge directly to the referral authority under whose jurisdiction the charge would normally be referred. (QR&O 107.12 – Decision not to proceed – charges laid by National Investigation Service).

B. FORMAT OF THE APPLICATION

16. An application to a referral authority for disposal of a charge shall be in the form of a letter and forwarded directly to the appropriate referral authority (see QR&O 109.03(1)).

C. CONTENT OF THE APPLICATION

17. The application shall include:

  1. the reasons supporting the application;
  2. a short summary concerning the facts related to the commission of the alleged offence and the evidence supporting the charge as demonstrated by the investigation report;
  3. any recommendation concerning the disposal of the charge.

18. Additionally, the letter should refer to the fact that that the accused has been informed of the right to legal counsel, and indicate the accused's desires, if any, with respect to legal representation at court martial. (see QR&O 109.04 – Right to legal counsel).

D. DOCUMENTS

19. In order for the referral authority to provide appropriate recommendations when forwarding an application to the DMP, the following documents must accompany the application:

  1. the original Record of Disciplinary Proceedings (RDP);
  2. a copy of any investigation report (police, unit or other);
  3. the conduct sheet of the accused, if any (if there is not, it should be indicated in the letter);
  4. the record of service or a certified copy of the certificate of service of the accused, if available (commonly referred to as the Personal Record Resume "PRR"); and
  5. where the application is made by an officer or non-commissioned member of the National Investigation Service, a copy of the decision of the commanding officer or superior commander not to proceed with the charge.

E. FORWARDING THE APPLICATION

I. INFORMATION TO THE ACCUSED

20. When an application is forwarded to the referral authority for disposal of a charge, the commanding officer must cause the accused to be advised of the application, and if not already ascertained, determine the accused's desires, if any, with respect to legal representation.

II. INFORMING THE CHAIN OF COMMAND

21. In situations in which the referral authority is not the next superior officer in matters of discipline, all superior officers below the referral authority in the disciplinary chain of command shall be provided with an information copy of the application (see QR&O 109.03(3)).

22. If the application for disposal of a charge is made by an officer or non-commissioned member of the National Investigation Service, the commanding officer or the superior commander that decided not to proceed with the charge must be provided with a copy of the application, as must all superior officers within disciplinary chain of command of the commanding officer or superior commander. Additionally, if the commanding officer of the accused at the time the application is made is not the officer who initially dealt with the charges, a copy of the application must also be provided to the former commanding officer.

ACTIONS TO BE TAKEN BY A REFERRAL AUTHORITY UPON RECEIPT OF AN APPLICATION

A. VERIFICATION

23. Upon receipt of an application for disposal of a charge, the referral authority must confirm that the application is complete, i.e. the letter contains all the information mentioned at paragraphs 17 and 18 of the present guide, as well as the documentation listed at paragraph 19. If the application is incomplete, the referral authority must request the missing information from the commanding officer or superior commander who initiated the application, prior to considering the application.

B. LEGAL ADVICE

24. There is no obligation for a referral authority to obtain legal advice prior to considering an application for disposal of a charge. However, in light of the legal nature of the application, and the importance of the recommendations in the decision making process within the Director of Military Prosecutions, legal advice is recommended.

C. OPTIONS

25. Upon receipt of an application for disposal of a charge, a referral authority has the following options:

  • direct the commanding officer or superior commander to try the accused by summary trial if,
    • the charge was referred because the commanding officer or superior commander considered that his or her powers of punishment were inadequate, and
    • the referral authority does not share this opinion, or
  • forward the application to the Director of Military Prosecutions together with any recommendation concerning the disposal of the charge that the referral authority considers appropriate

D. FORWARDING THE APPLICATION

I. CONTENT

i. Recommendations to DMP

26. The referral authority plays a unique and vital role in ensuring that the military justice system fulfills its mandate of maintaining discipline, efficiency and morale in the Canadian Forces. The referral authority's letter is intended to assist the Director of Military Prosecutions in putting the alleged offence into the specific military context from which it originates. The Director of Military Prosecutions requires this contextual analysis to assist in making a decision on whether to prefer the charge to court martial, refer the matter back to the unit for disposal by summary trial or to not proceed with the charge at all. The letter represents the referral authority's best opportunity to set out why he or she believes that the matter ought or ought not to be preferred. It is important to note that, as with the other actors involved in the military justice process, there is a duty imposed to the referral authority by section 162 NDA to deal with the charge as expeditiously as the circumstances permit.

27. Upon receipt of the file from the referral authority, the Director of Military Prosecutions conducts a review of the charges and makes a determination as to whether the charges laid, or any other charge, should proceed to court martial. In applying the publicly available charge screening policy, prosecutors must consider two main issues when deciding whether or not to proceed with a court martial:

  • First, is the evidence sufficient to justify the continuation of charges as laid or the preferral of other charges? (i.e. Is there a reasonable prospect of conviction?); and
  • Second, if it is, does the public interest require a prosecution to be pursued?

28. There are three legal tests to be met prior to a charge being laid, proceeded with and then preferred to Court Martial. First, there must be an actual belief on the part of the person laying a charge that the accused has committed the alleged offence and that belief must be reasonable. A "reasonable belief" is a belief, which would lead any ordinary prudent and cautious person to the conclusion that the accused is probably guilty of the offence alleged. Second, where the Commanding Officer or the Superior Commander disposes of the charge, the legal test is whether based on admissible evidence, a service tribunal acting reasonably could convict the accused. At the third stage involving sufficiency of evidence and public interest, the DMP must undergo a more onerous and legal analysis than those noted at the first two stages. The criteria for the exercise of discretion to prosecute cannot be reduced to something akin to a mathematical formula. The breadth of factors to be considered in exercising this discretion clearly demonstrates the need to apply general principles to individual cases and to exercise good judgment in so doing.

29. Where it is determined that there is both a reasonable prospect of conviction and it is in the public interest to proceed, the charge will be preferred by referring the charge sheet to the Court Martial Administrator who then convenes the court martial.

ii. Reasonable Prospect of Conviction (Sufficiency of the evidence)

30. The referral authority must review the package of documentation with the application for disposal, including the investigation report, and, if the referral authority deems it appropriate, provide commentary regarding the evidence. Such commentary will be considered by the Director of Military Prosecutions when conducting a detailed legal analysis of the evidence to determine if there is a reasonable prospect of conviction, should the matter proceed to court martial, taking into consideration the Military Rules of Evidence, the Canadian Charter of Rights and Freedoms and the nature and character of the evidence etc. For example, while some facts on their face may be considered relevant, those facts may be inadmissible at trial if the collection of such information violated the rights of the accused.

31. A reasonable prospect of conviction exists where there is a solid case of substance to present to the court. In determining whether this standard is satisfied, a prosecutor must estimate amongst other things, what evidence is likely to be admissible, the weight likely to be given to the admissible evidence, and the likelihood that viable, not speculative, defences will succeed.

32. As part of DMP's analysis, the prosecutor may be required to meet with the primary witnesses to assess their credibility and ascertain further details of their potential evidence. In addition, further NIS/police investigation may be required by the prosecutor to determine if potential defences are legitimate or can be disproved if raised at trial by the accused. This will enable the prosecutor to feel reasonably confident that all the elements of the offence can be proven when the matter proceeds to court martial.

iii. Public interest

33. With respect to public interest, the comments of the referral authority greatly assist the Director of Military Prosecution's analysis regarding preferral. It is therefore incumbent upon the referral authority to express the military interest in whether or not to proceed to court martial (particularly the latter). Without this meaningful input, the Director of Military Prosecutions is placed in a very difficult position when assessing the public interest and putting the proposed charges in a military context.

34. A lengthy list of examples of relevant factors that should be considered when assessing the public interest is set out at Annex A to this guide. The list includes, among other things, the effect of prosecution, or failure to prosecute, on the maintenance of good order and discipline in the Canadian Forces, including the likely impact, if any, on military operations. This list should be reviewed and relevant factors addressed when referrals are made. It should be noted that this list is not exhaustive and that any other public interest factors may be included and considered. These factors are not identified in any order of priority or importance. Those factors that should not be considered when assessing the public interest are set out at Annex B to this guide.

35. To ensure fairness within the military justice system, the Referral letter will be disclosed to the accused as part of the prosecutor's disclosure package.

36. Upon completion of a review of the file and the referral letter, referral documents are to be forwarded to DMP at the following address:

Information: DMP Mailing Address

Director of Military Prosecutions
National Defence Headquarters
305 Rideau Street
Constitution Bldg.
Ottawa ON K1A 0K2

FOLLOW-UP OF THE APPLICATION

A. DIRECTOR OF MILITARY PROSECUTIONS DECISION

I. PREFERRING THE CHARGE

37. When the decision of the Director of Military Prosecutions is to prefer the charge to court martial, or any other charge that is founded on facts disclosed by evidence in addition to or in substitution for the charge, the Director of Military Prosecutions will prepare a charge sheet. The charge sheet is forwarded to the Court Martial Administrator and two copies are provided to the commanding officer of the accused's unit, one for service on the accused and the second for retention in the Unit Registry of Disciplinary Proceedings. The referral authority, defence counsel and the local AJAG will also be provided with information copies of the preferral documentation.

38. The Court Martial Administrator will secure a date for trial, normally within 60 days of receipt of the charge sheet from the Director of Military Prosecutions. The convening order and a copy of the charge sheet will then be served to the accused and the Director of Military Prosecutions.

II. REFERRING THE CHARGE FOR DISPOSAL BY SUMMARY TRIAL

39. If the Director of Military Prosecutions decides that the matter should be returned to the accused's unit for disposal by way of summary trial, the Director of Military Prosecutions will return the documentation supporting the application to the appropriate CO or Superior Commander with a copy to the Referral Authority.

III. NOT PROCEEDING WITH THE CHARGE

40. When the Director of Military Prosecutions determines that there is insufficient evidence to support a reasonable prospect of conviction, or that it would not be in the public interest to proceed with the charge, then the Director of Military Prosecutions will forward the non-preferral documentation to the accused's unit for service on the accused and inform the referral authority of his decision.

CONCLUSION

41. The changes to charge referral and convening process within the military justice system have been designed to protect and enhance the principles of fair and efficient justice which protects the rights of the accused and serves the disciplinary needs of the chain of command. While the changes achieve these objectives, they have also resulted in an increased need for a detailed understanding of the respective roles of the key players and enhanced communications between the Director of Military Prosecutions and the referral authority.

ANNEX A

PUBLIC INTEREST FACTORS TO CONSIDER

Public interest factors that may arise on the facts of a particular case include:

  1. the seriousness or triviality of the alleged offence;
  2. significant mitigating or aggravating circumstances;
  3. the accused's background and any extraordinary personal circumstances of the accused;
  4. the degree of staleness of the alleged offence;
  5. the accused's alleged degree of responsibility for the offence;
  6. the prosecution's likely effect on good order and discipline;
  7. the prosecution's likely effect on public confidence in military discipline or the administration of military justice;
  8. whether prosecuting would be perceived as counter-productive, for example, by bringing the administration of justice into disrepute;
  9. the availability and appropriateness of alternatives to military prosecution, such as, for example, prosecution by civilian authorities or administrative action by service authorities, and administrative or quasi-criminal action initiated by a jurisidiction other than the Canadian Forces;
  10. the prevalence of the alleged offence in the unit or military community at large and the need for general and specific deterrence;
  11. whether the consequences of a prosecution or conviction 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;
  12. whether the alleged offence is of considerable public concern;
  13. the attitude of the victim of the alleged offence to a prosecution, and any evident impact a decision to prosecute (or not prosecute) may have on him or her;
  14. the resources required or available to conduct the proceedings;
  15. whether the accused agrees to cooperate in the investigation or prosecution of others, or the extent to which the accused has already done so;
  16. the likely sentence in the event of a conviction;
  17. whether prosecuting would require or cause the disclosure of information that would be injurious to international relations, national defence, or national security; and
  18. the effect of prosecution, or failure to prosecute, on the maintenance of good order and discipline in the Canadian Forces, including the likely impact, if any, on military operations.

Annex B

PUBLIC INTEREST FACTORS NOT TO BE CONSIDERED

A recommendation to DMP must clearly not be influenced by any of the following criteria:

  1. the rank, status or position of the accused in and of themselves;
  2. any personal characteristic of the accused, or any other person involved in the investigation, which constitutes a prohibited ground of discrimination under section 3 of the Canadian Human Rights Act;
  3. the Referral Authority 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;
  5. the possible effect of the decision on the personal or professional circumstances of those responsible for the investigation or prosecution or any other member of the CF or DND.