Laying of Charges

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Chapter 8

• Laying of Charges

2
Objectives

• Describe the principles related to the laying of
  charges

3
Main Points

• Laying of Charges
• Drafting Charges
• Referral of Charges

4
Introduction

• A charge is a formal accusation that a person
  subject to the CSD has committed a service
  offence
• A charge is laid once it has been reduced to
  writing in Part 1 of the Record of Disciplinary
  Proceedings signed by a person authorized to lay
  charges

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Laying of Charges

• Authority to Lay a Charge
• a CO
• an officer or NCM authorized by a CO to lay
  charges
• an officer or NCM of the military police assigned
  to investigative duties with the NIS

Matters investigated by MP referred to the unit
for laying of charges. NIS personnel will lay
charges when appropriate in all cases they
investigate
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CO Should Consider

• officers delegated as summary trial presiding
  officers cannot try a charge laid by them or
  caused by them to be laid
• limiting the number of personnel authorized to
  lay charges in order to ensure a consistent
  approach to charging and maintain a high standard
  of charge drafting

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Grounds to Lay Charges

• sufficient grounds to charge
• test has two elements
• a subjective element-the member who proposes to
  lay the charge must have an actual belief that
  the person to be charged is guilty

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Grounds to Lay Charges

• an objective element-that belief must be
  reasonable

Note A Both elements must be present Note B A
reasonable belief is one which would lead any
ordinary, prudent and cautious person to the
conclusion that the person is probably guilty of
the offence alleged
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Charging Discretion

• Decision to charge lays with service authorities
• In addition to the sufficiency of evidence,
• the interests of discipline must also be taken
  into consideration

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Double Jeopardy

• Consider whether or not the person to be charged
  has already been tried for same or substantially
  similar offence
• Under criminal law cannot be placed in jeopardy
  for the same matter twice. However, both
  administrative action and disciplinary action may
  be taken in relation to the same incident

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Double Jeopardy

• Administrative sanctions address employment
  aspects of a members conduct. Action under the
  CSD involves the potential imposition of
  disciplinary sanctions. Administrative action is
  not a substitute for disciplinary action

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Mandatory Consultation with Unit Legal Advisor

• Must obtain advice under the following
  circumstances
• when an offence is not authorized to be tried by
  summary trial under QRO 108.07
• when an offence is alleged to have been committed
  by an officer or NCM above the rank of sergeant
• if a charge would give rise to a right to elect
  trial by court martial

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Obtain legal advice concerning

• the sufficiency of the evidence
• whether a charge should be laid in the
  circumstances
• what the appropriate charge is

Sufficiency of evidence demonstrate a
reasonable prospect of conviction based on an
assessment of the availability, competence and
the objective credibility of witnesses, and the
admissibility of evidence implicating the accused.
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Drafting Charges

• Selection of Appropriate Charges
• possible and specimen charges are listed in QRO
  103
• each charge must contain
• a statement of the offence under the applicable
  section of the NDA
• the particulars of the act, omission, conduct,
  disorder or neglect constituting the offence

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Drafting Charges

• Charges must be set out in Part 1 of a Record of
  Disciplinary Proceedings (RDP). Ideally, all
  charges should appear on one RDP
• Worded as indicated in QRO 103 and each charge
  should allege only one offence i.e. quarrelled
  or fought with a person subject to the CSD
• A correct statement could be quarrelled with
  or fought with

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Drafting Charges

• Every statement of the particulars shall include
  sufficient details to enable the accused to be
  reasonably informed of the offence alleged
• Should, when practical, include an allegation of
  the place, date and time

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Drafting Charges

• If not certain, may be described as on or
  about, on a day between two limiting date
• When more than one offence, each should be set
  out in a separate charge with the more serious
  charge preceding the less serious charges

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Alternative Charges

• The allegations in the particulars are considered
  capable of supporting a finding of guilty of one
  of several offences or of a particular offence
• example a charge under s. 114 of the NDA for
  stealing and, in the alternative, a charge under
  s. 129 for improper possession

Annotated as such and the more serious charge
should precede the less serious charge
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Alternative Charges

• Members laying charges under s. 130 of the NDA
  (offences under other Canadian laws) should
  consider that many offences permit conviction for
  included offences even though they are not
  charges
• Example a person charged with assault causing
  bodily harm can be convicted of the lesser but
  included offence of assault

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Drafting Particulars

• All charges must contain statement in sufficient
  detail for the accused to be informed of the
  alleged offence
• In addition, Superior Commanders and CO may try
  as service offences under s. 130 of the NDA
  certain offences under the Criminal Code and the
  Controlled Drugs and Substances Act

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Essential Elements

• Essential elements must e proven before a finding
  of guilty can be made
• Certain elements are common to all offences
• date on which the offence was allegedly committed
• place of offence
• identity of accused
• act or omission constituting the alleged offence

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Essential Elements

• In addition, each offence has two components
• an act or some form of misconduct (actus reus)
• a mental element or fault requirement (mens rea)
• Actus Reus may consist of an act of commission
  (an active misconduct) or an act of omission
  (failure to do something)

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Essential Elements

• Mens Rea refers to the guilty mind and is
  reserved for offence involving fault based on
  awareness or state mind such as
• intent knowledge
• recklessness
• willful blindness (as to the circumstance and/or
  consequences)

Fault can also be based on negligence - an
inadvertence or carelessness based on an
objective test - how a reasonable person would
have acted. Criminal negligence requires a
marked departure from the standard of a
reasonable person.
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Record of Disciplinary Proceedings

• RDP is divided into seven parts, part 1 being
  relevant to the laying of charges
• Part 1 contains
• the statement of offence(s)
• statement of particulars
• name, rank, service number of the accused
• unit of the accused
• name, rank and position and signature of the
  member laying the charge
• name and rank of assisting officer

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Referral of Charges

• A member who lays a charge, including an
  investigator with the NIS, shall
• refer the charge to
• the CO of the accused
• the CO of the base, unit or element in which the
  accused was present when the charge was laid or
• a delegated officer (DO)
• cause a copy of the RDP to be provided to the
  accused

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Referral of Charges

• All referrals will be recorded on the RDP
• When the charge is referred to DO, that DO must
  either proceed with the charge or refer it to the
  CO
• Officer receiving the referral must decide
  whether to proceed with the charge or not proceed
  with the charge

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Referral of Charges

• Before the officer decides whether to proceed,
  must obtain advice from the unit legal officer if
  the charge related to any of the following
  offences
• an offence that is not listed under QRO 108.07
  as one authorized to be tried by summary trial

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Referral of Charges

• an offence that is alleged to have been committed
  by a member above the rank of sergeant
• the offence is one that gives rise to the right
  to elect trial by court martial

Should CO or Superior Commander decide not to
proceed with a charge laid, the NIS must be
informed and may decide to refer the charge
directly to the DMP.
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Chapter 8

• Laying of Charges
• The End

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