QR&Os: Volume I - Chapter 21
Summary Investigations And Boards Of Inquiry

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Section 1 - Summary Investigations

21.01 - SUMMARY INVESTIGATIONS - GENERAL

(1) In this chapter, "summary investigation" means an investigation, other than a board of inquiry, ordered by the Chief of the Defence Staff, an officer commanding a command or formation or a commanding officer.

(2) The Chief of the Defence Staff may order that a summary investigation be conducted where:

  1. he requires to be informed on any matter connected with the control and administration of the Canadian Forces; and
  2. a board of inquiry is not required by the regulations.

(1 September 1999)

(3) An officer commanding a command or formation or a commanding officer may order that a summary investigation be conducted where:

  1. he requires to be informed on any matter connected with his command, formation, base, unit or element or affecting any officer or non-commissioned member under his command;
  2. a board of inquiry is not required by the regulations; and
  3. a board of inquiry or summary investigation has not been convened or ordered by a superior authority.

(1 September 1999)

(4) Subject to paragraph (5) and to any direction by the officer who orders the investigation, the report of a summary investigation may be in synopsis form and on completion, if required to be forwarded to higher authority, shall include the recommendations of the officer who ordered the summary investigation.

(5) Where a summary investigation concerns a matter the nature of which requires or warrants specific findings or where the officer who orders the investigation directs that findings be made, the report referred to in paragraph (4) shall contain findings and recommendations and all information that would normally be contained in the report of a board of inquiry.

(5 March 2009)

(6) The ordering of a summary investigation does not preclude the subsequent convening of a board of inquiry.

(M) (5 March 2009)

(21.02 TO 21.05 INCLUSIVE: NOT ALLOCATED)


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Section 2 - Boards of Inquiry

21.06 - CONVENING AUTHORITIES - BOARDS OF INQUIRY

(1) Subsection 45(1) of the National Defence Act provides:

"45. (1) The Minister, and such other authorities as the Minister may prescribe or appoint for that purpose, may, where it is expedient that the Minister or any such other authority should be informed on any matter connected with the government, discipline, administration or functions of the Canadian Forces or affecting any officer or non-commissioned member, convene a board of inquiry for the purpose of investigating and reporting on that matter."

(2) The following persons may convene a board of inquiry:

  1. the Minister;
  2. the Chief of the Defence Staff;
  3. an officer commanding a command;
  4. an officer commanding a formation; and
  5. a commanding officer.

(3) No person shall convene a board of inquiry if:

  1. a real or perceived conflict of interest exists or may arise given the relationship of the person to the subject matter of the investigation;
  2. the person or any superior of the person may be adversely affected by any finding or recommendation of the investigation; or
  3. the person or any superior of the person may be called as a witness.

(5 March 2009)

(M) (5 March 2009)

21.07 - POWERS OF BOARDS OF INQUIRY

Subsection 45(2) of the National Defence Act provides:

"45. (2) A board of inquiry has, in relation to the matter before it, power

  1. to summon any person before the board and compel the person to give oral or written evidence on oath and to produce any documents and things under the person's control that it considers necessary for the full investigation and consideration of that matter;
  2. to administer oaths;
  3. to receive and accept, on oath or by affidavit or otherwise, any evidence and other information the board sees fit, whether or not the evidence or information is or would be admissible in a court of law; and
  4. to examine any record and make any inquiry that the board considers necessary."

(C) (1 September 1999)

NOTE

In addition to the acceptance by a board of inquiry of evidence under oath or by affidavit under paragraph 45(2)(c) of the National Defence Act, section 16 of the Canada Evidence Act, which applies to civil proceedings such as those of a board of inquiry, permits evidence that is unsworn or made without a solemn declaration. This would normally only apply in the case of a proposed witness who is a person under the age of 14 years or a person whose mental capacity is challenged. The legal adviser to the Board or the nearest representative of the Office of the Judge Advocate General should be consulted in all such cases.

(C) (1 September 1999)

21.08 - COMPOSITION OF BOARDS OF INQUIRY

(1) Subject to paragraphs (3), (4) and (5), a board of inquiry shall be composed of two or more officers, or two or more officers together with one or more non-commissioned members above the rank of sergeant, as determined by the convening authority.

(2) In determining the composition of a board of inquiry the convening authority shall:

  1. subject to paragraph (5), appoint as president an officer who holds the rank of captain or higher; (5 March 2009)
  2. where practical, appoint as president an officer equal or superior in rank to any officer whose reputation may be affected as a result of the investigation;
  3. not appoint as a member an officer senior in rank to the president;
  4. not appoint any person as a member if
    1. a real or perceived conflict of interest exists or may arise given the relationship of the person to the subject matter of the investigation,
    2. the person or any superior of the person may be adversely affected by any finding or recommendation of the investigation, or
    3. the person or any superior of the person may be called as a witness;

    (5 March 2009)
  5. appoint, if practical, at least one member with the required qualifications if the investigation may involve technical or professional knowledge or skill. (5 March 2009)

(3) Where the matter to be investigated by a board of inquiry involves a civilian employee, the convening authority may appoint as additional members of the board one or more civilian employees of the Government of Canada who are employed by or with the Department.

(4) Where, under exceptional circumstances, the convening authority is of the opinion that one or more civilians should be part of a board of inquiry, the convening authority may appoint the person or persons as additional members of the board.

(5) Where a board of inquiry is convened by the Minister, the Minister may, under exceptional circumstances, appoint a civilian as president of the board.

(M) (5 March 2009)

21.081 - BOARDS OF INQUIRY CONDUCTED BY A MILITARY JUDGE

(1) Notwithstanding article 21.08 (Composition of Boards of Inquiry), a military judge may, with the concurrence of the Chief Military Judge, be appointed by the Minister or the Chief of the Defence Staff as a board of inquiry.

(2) The provisions of this chapter that apply to a board of inquiry composed of persons appointed under article 21.08 shall apply with any necessary changes to a board of inquiry convened under this article.

(M) (1 September 1999)

21.09 - CONVENING ORDER (5 March 2009)

The convening authority shall provide a board of inquiry with a written convening order containing full and specific instructions as to: (5 March 2009)

  1. the investigation to be undertaken;
  2. the information required;
  3. the matters on which findings or recommendations are required; and
  4. the security classification of the matter to be investigated.

(M) (5 March 2009)

21.10 - PROCEDURE

(1) A board of inquiry shall:

  1. receive and record all available evidence that is relevant;
  2. attach as exhibits to the original report all relevant documents produced; and (5 March 2009)
  3. attach a certified true copy of each exhibit to each copy of the report. (5 March 2009)

(2) Unless the president of the board of inquiry otherwise directs, all testimony before the board shall be taken on oath.

(3) A witness testifying before a board of inquiry shall:

  1. take the following oath:

    "I swear that the evidence to be given by me shall be the truth, the whole truth, and nothing but the truth. So help me God.";

  2. where the witness objects to swearing in the above manner, take such oath in such manner and form and with such ceremonies as the witness declares it to be binding on the person's conscience; or
  3. make the following solemn affirmation:

    "I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth, and nothing but the truth."

(4) Subject to paragraph (7), if the president at any time during the proceedings of a board of inquiry considers that the evidence appears likely to adversely affect a person, the president shall

  1. provide that person with a written notice to that effect;
  2. receive that person’s evidence as a witness; and
  3. allow that person
    1. to be given a reasonable opportunity to review all relevant evidence received by the board of inquiry prior to that person being called as a witness,
    2. to be present during any further testimony of witnesses, and
    3. to make a concluding statement.

(5 March 2009)

(5) Subject to paragraph (7), any person who is provided with a notice under paragraph (4) may request that the president

  1. recall any witness who has previously testified;
  2. call further witnesses; and
  3. ask further questions of any witness.

(5 March 2009)

(6) Any request made under paragraph (5) shall be recorded in the report of the board of inquiry.

(5 March 2009)

(7) The president may dispense with compliance with any of the provisions of paragraphs (4) and (5) if

  1. the evidence is likely to adversely affect a person other than an officer or non-commissioned member; and
  2. potentially injurious information or sensitive information, as those terms are defined in section 38 of the Canada Evidence Act, could be disclosed.

(5 March 2009)

(M) (5 March 2009)

21.11 - DATE, TIME AND PLACE OF ASSEMBLY

(1) Unless the convening authority otherwise directs, the president of a board of inquiry shall fix the date, time and place for its assembly and shall cause notice of the meetings to be given to all members of the board, witnesses and other interested persons.

(5 March 2009)

(2) A board of inquiry may re-assemble as often as necessary to:

  1. examine additional witnesses;
  2. further examine any witnesses; or
  3. make any additional findings or recommendations.

(M) (5 March 2009)

21.12 - MEETINGS NOT OPEN TO THE PUBLIC

Unless the convening authority otherwise directs, a board of inquiry shall exclude from its meetings all persons except:

  1. a witness while giving evidence;
  2. an officer or non-commissioned member whose presence is permitted under paragraph (4) of article 21.10 (Procedure) or under article 21.14 (When Adviser to Board of Inquiry Permitted); (1 September 1999)
  3. a person whose attendance is required by the president; and
  4. counsel while his client is giving evidence.

(M) (1 September 1999)

21.13 - WITNESSES NOT EXCUSED FROM TESTIFYING

Section 45.1 of the National Defence Act provides:

"45.1 (1) No witness shall be excused from answering any question relating to a matter before a board of inquiry when required to do so by the board of inquiry on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.

(2) No answer given or statement made by a witness in response to a question described in subsection (1) may be used or receivable against the witness in any disciplinary, criminal or civil proceeding, other than a hearing or proceeding in respect of an allegation that the witness gave the answer or made the statement knowing it to be false."

(C) (1 September 1999)

21.14 - WHEN ADVISER TO BOARD OF INQUIRY PERMITTED

The convening authority may appoint or arrange for the attendance of civilian or service specialists to act as advisers to a board of inquiry.

(M)

21.15 - PROCEDURE ON COMPLETION OF A BOARD OF INQUIRY

(1) The report of a board of inquiry shall be: (5 March 2009)

  1. signed by the president and each member; and
  2. unless otherwise directed by the convening authority, submitted by the president
    1. directly to the convening authority, or
    2. to the commanding officer where the board of inquiry has been convened under article 21.56 (Investigation of Aircraft Accidents).

(2) If the members are unable to agree on a matter within the convening order, a dissenting member shall state his or her opinion in writing for transmission with the report.

(5 March 2009)

(3) The convening authority and any other authority through whom the report are transmitted shall record on the minutes his concurrence in or opinion of the report, findings or recommendations.

(5 March 2009)

(M) (5 March 2009)

21.16 - ADMISSIBILITY - REPORT OF A BOARD OF INQUIRY - REPORT OF A SUMMARY INVESTIGATION (5 March 2009)

(1) In accordance with paragraph 55(d) of the Military Rules of Evidence (QR&O Volume IV, Appendix 1.3), the report of a board of inquiry and the report of a summary investigation shall not be admitted as evidence or used at a court martial, except that the transcript of a statement made before a board of inquiry or at a summary investigation by a person who is, after having given that statement, accused of an offence involving a matter mentioned in subsection 40(2) of the Military Rules of Evidence, may, in accordance with the Military Rules of Evidence, be admitted in evidence or used at his trial for that offence.

(5 March 2009)

(2) The report of a board of inquiry and the report of a summary investigation shall not be admitted in evidence or used at a summary trial except that the transcript of a statement made before a board of inquiry or at a summary investigation by a person who is, after having given that statement, accused of an offence involving a matter mentioned in subsection 40(2) of the Military Rules of Evidence, may be admitted in evidence or used at his trial for that offence. (For inadmissibility in proceedings before a civil court, see article 19.55 - Attendance as Witness in Civil Court.)

(5 March 2009)

(M) (5 March 2009)

21.17 - FEES AND ALLOWANCES

A witness, other than an officer or non-commissioned member of the Canadian Forces or an officer or employee of the Department, who attends a board of inquiry is entitled to the fees and allowances authorized in article 210.60 (Witness Fees and Allowances).

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


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Section 3 - Special Provisions Concerning Summary Investigations and Boards of Inquiry

21.18 - INVESTIGATION OF SEVERAL MATTERS

Where several matters for each of which a summary investigation or board of inquiry would normally be assembled arise out of the same occurrence, the appropriate authority may:

  1. order one summary investigation or convene one board of inquiry to investigate all those matters; or
  2. if he considers that they cannot be suitably dealt with by one summary investigation or board of inquiry, order separate summary investigations or boards of inquiry.

(M)

21.19 - WHERE CLAIM BY OR AGAINST THE CROWN APPEARS LIKELY

(1) Where it appears at a summary investigation or board of inquiry inquiring into any occurrence that a claim by or against the Crown may arise, the authority who ordered the summary investigation or convened the board of inquiry shall be informed immediately.

(2) Where the appropriate authority receives information under paragraph (1), he shall order an investigation as prescribed in Section 4 (Claims by and Against the Crown) of this chapter.

(M)

(21.20 - NOT ALLOCATED)


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Section 4 - Claims By and Against the Crown

21.21 - INVESTIGATION OF CLAIMS BY OR AGAINST THE CROWN

A board of inquiry or summary investigation concerning an occurrence that involves or may involve a claim by or against the Crown shall (5 March 2009)

  1. proceed as prescribed by or under the authority of the Governor in Council or in orders issued by the Chief of the Defence Staff; and
  2. comply with this chapter except so far as it may be inconsistent with subparagraph (a).

(M) (5 March 2009)

(21.22 TO 21.40 INCLUSIVE: NOT ALLOCATED)


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Section 5 - Missing or Absent Officers and Non-commissioned Members

21.41 - GENERAL

(1) Where an officer or non-commissioned member is missing and in the opinion of his commanding officer his absence is neither voluntary (see article 21.43 - Investigation of Illegal Absence) nor due to enemy action (see article 21.44 - Investigation Where Officer or Non-commissioned Member Missing Due to Enemy Action), the commanding officer shall investigate and submit a full report to the officer commanding the command or formation.

(2) Upon receipt of a report made under paragraph (1), the officer commanding the command or formation may:

  1. order a summary investigation; or
  2. convene or order the convening of a board of inquiry.

(3) A summary investigation or board of inquiry held in respect of a missing officer or non-commissioned member shall make findings as to:

  1. the circumstances in which the officer or non-commissioned member is missing; and
  2. whether it is considered that the officer or non-commissioned member is dead and, if so, the probable date of death.

(M)

(21.42: NOT ALLOCATED)

21.43 - INVESTIGATION OF ILLEGAL ABSENCE

(1) The commanding officer shall investigate the illegal absence of an officer or non-commissioned member as soon as practicable after the expiration of 14 days from the date of commencement of the absence. (See article 1.08 - Calculation of Time.)

(2) The investigation shall determine:

  1. the date and hour of the commencement of the illegal absence;
  2. whether the officer or non-commissioned member has returned between that date and the date on which the investigation is held;
  3. whether the officer or non-commissioned member is still absent; and
  4. the items of personal equipment that the officer or non-commissioned member left at the base, unit or element and that have been impounded.

(3) Where it is determined that the officer or non-commissioned member absented himself without authority and is still absent after 14 days, the commanding officer shall take such action as may be prescribed in orders issued by the Chief of the Defence Staff.

(M)

21.44 - INVESTIGATION WHERE OFFICER OR NON-COMMISSIONED MEMBER MISSING DUE TO ENEMY ACTION

The commanding officer shall order a summary investigation where an officer or non-commissioned member is missing due to enemy action and report the results of the investigation to National Defence Headquarters in the manner prescribed by the Chief of the Defence Staff.

(M)

(21.45: NOT ALLOCATED)


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Section 6 - Personal Injuries and Death

21.46 - INVESTIGATION OF INJURY OR DEATH

(1) This article applies to an officer or non-commissioned member of:

  1. the Regular Force;
  2. the Reserve Force when the member is on service; and
  3. the Special Force.

(2) Where an officer or non-commissioned member to whom this article applies dies otherwise than as a result of wounds received in action, the member's commanding officer shall order a summary investigation or convene a board of inquiry.

(3) The commanding officer shall order a summary investigation or convene a board of inquiry if an officer or non-commissioned member suffers an injury, other than one received in action, that (5 March 2009)

  1. a medical officer certifies to be
    1. serious, or
    2. likely to cause a permanent disability; or
  2. is suspected to be the result of his own wilful act.

(4) A report of a summary investigation ordered under paragraph (2) or (3) shall be submitted to higher authority in the same manner as the report of a board of inquiry. (5 March 2009)

(M) (5 March 2009)

21.47 - FINDINGS ON INJURY OR DEATH

The report of a summary investigation or board of inquiry submitted in accordance with article 21.46 (Investigation of Injury or Death) shall contain findings as to

  1. the cause and contributing factors of the injury or death;
  2. whether the deceased or injured officer or non-commissioned member was on duty at the time of the injury or death; and
  3. whether the injury or death was attributable to military service.

(M) (5 March 2009)

(21.48: REPEALED BY MND EFFECTIVE 5 MARCH 2009)

(21.49 AND 21.50: NOT ALLOCATED)


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(Section 7 - NOT ALLOCATED)

(21.51 TO 21.54 INCLUSIVE: NOT ALLOCATED)


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Section 8 - Aircraft Accidents

21.55 - DEFINITION OF "AIRCRAFT ACCIDENT"

The phrase "aircraft accident" means an event involving an aircraft that is not caused by enemy action and that results in death or serious injury to personnel or damage to the aircraft to the extent described in orders issued by the Chief of the Defence Staff.

(M)

21.56 - INVESTIGATION OF AIRCRAFT ACCIDENTS

(1) Where an aircraft accident occurs, the commanding officer shall report it in accordance with orders issued by the Chief of the Defence Staff.

(2) The officer commanding the command or formation shall convene a board of inquiry to investigate an aircraft accident:

  1. where a person is killed or seriously injured; or
  2. as prescribed in orders issued by the Chief of the Defence Staff.

(3) The commanding officer shall convene a board of inquiry to investigate an aircraft accident as directed in orders issued by the Chief of the Defence Staff.

(M)

21.57 - FINDINGS REQUIRED BY A BOARD OF INQUIRY ON AN AIRCRAFT ACCIDENT

A board of inquiry convened to investigate an aircraft accident shall make findings:

  1. as to the cause of the accident;
  2. as to whether all flying and aircraft maintenance orders were complied with; and
  3. where an officer or non-commissioned member was killed or injured in the accident, in accordance with article 21.47 (Findings on Injury or Death).

(M)

(21.58 TO 21.60 INCLUSIVE: NOT ALLOCATED)


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Section 9 - Fire, Explosion or Similar Occurrence

21.61 - INVESTIGATION OF A FIRE

(1) Where a fire, explosion or similar occurrence damages or destroys public or non-public property, the commanding officer shall immediately report it to the officer commanding the command or formation.

(2) Where a report under paragraph (1) is received, the officer commanding the command or formation may:

  1. order a summary investigation; or
  2. convene or order the convening of a board of inquiry.

(M)

21.62 - PROCEEDINGS OF INVESTIGATION ON A FIRE

The report of a summary investigation or the report of a board of inquiry inquiring into a fire shall: (5 March 2009)

  1. include such information as is required in orders issued by the Chief of the Defence Staff; and
  2. be transmitted in accordance with orders issued by the Chief of the Defence Staff.

(M) (5 March 2009)

21.63 - FINDINGS AND RECOMMENDATIONS OF INVESTIGATION RESPECTING A FIRE

A summary investigation or board of inquiry inquiring into a fire shall:

  1. make findings as prescribed in orders issued by the Chief of the Defence Staff; and
  2. where appropriate, make recommendations for the improvement of existing fire precautions and the prevention of future fires.

(M)

21.64 - EXPLOSION OR SIMILAR OCCURRENCE

A summary investigation or board of inquiry inquiring into an explosion or similar occurrence shall comply with orders issued by the Chief of the Defence Staff.

(M)

(21.65 TO 21.70 INCLUSIVE: NOT ALLOCATED)


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Section 10 - Public or Non-public Property

21.71 - LOSS OF OR DAMAGE TO PUBLIC PROPERTY OTHER THAN PUBLIC FUNDS

(1) This article does not apply when an investigation involves:

  1. an aircraft accident;
  2. a fire, explosion or similar occurrence;
  3. a claim by or against the Crown; or
  4. public funds.

(2) When public property is lost, stolen, damaged or destroyed otherwise than by enemy action or by efforts to avoid enemy action, the commanding officer shall report it immediately to the officer commanding the command or formation unless:

  1. it is within the powers of the commanding officer to write-off the loss (see A-FN-100-002/AG-006, Delegation of Authorities for Financial Administration for the Department of National Defence and the Canadian Forces); or (26 February 2003)
  2. the damage does not exceed $100.

(3) Where a report pursuant to paragraph (2) is received, the officer commanding the command or formation may:

  1. order a summary investigation; or
  2. convene or order the convening of a board of inquiry.

(4) The commanding officer of any of Her Majesty's Canadian Ships or the master of another vessel of the Canadian Forces that is involved in a collision or grounding shall make a report as prescribed in orders issued by the Chief of the Defence Staff.

(M) (26 February 2003)

21.715 - LOSS OR OVERAGE OF PUBLIC FUNDS

(1) An officer or non-commissioned member who discovers or suspects any loss or overage in public funds shall immediately report the loss or overage to the officer in command of the base, unit or element concerned.

(2) An officer to whom a report is made under paragraph (1) shall immediately notify the officer commanding the command, for the information of the command comptroller, and National Defence Headquarters in the manner prescribed by the Chief of the Defence Staff.

(3) When a loss or overage of public funds is reported, action shall be taken in accordance with orders issued by the Chief of the Defence Staff.

(M)

21.72 - LOSS OF OR DAMAGE TO NON-PUBLIC PROPERTY

(1) Subject to Section 9 (Fire, Explosion or Similar Occurrence) of this chapter, where a loss of or damage to non-public property is discovered, the commanding officer shall, unless he adjusts the loss or damage in the manner prescribed by the Chief of the Defence Staff, make a complete report to the officer commanding the command or formation.

(2) Where a report made under paragraph (1) is received, the officer commanding the command or formation may:

  1. order a summary investigation; or
  2. convene or order the convening of a board of inquiry.

(M)

21.73 - INVESTIGATION INTO LOSS, OVERAGE OR DAMAGE DUE TO A SERVICE OR CRIMINAL OFFENCE

(1) In addition to action taken under article 21.71 (Loss of or Damage to Public Property), 21.715 (Loss or Overage of Public Funds) or 21.72 (Loss of or Damage to Non-public Property), where loss of or damage to public or non-public property or overage of public funds is suspected to be the result of a service or criminal offence, action shall be taken in accordance with orders issued by the Chief of the Defence Staff.

(2) Where a person who is not subject to the Code of Service Discipline is suspected of implication in theft or another criminal offence involving loss of or damage to public or non-public property or overage of public funds, the commanding officer shall:

  1. immediately inform the military police authorities; and
  2. leave to the military police or civil authorities any questioning of the suspected person.

(M)

(21.74: NOT ALLOCATED)

21.75 - INVESTIGATION OF MISSING CLASSIFIED MATERIEL

(5 March 2009)

Where any materiel that is classified "CONFIDENTIAL" or higher is missing, the commanding officer shall immediately inform the officer commanding the command or formation and order an investigation in accordance with orders issued by the Chief of the Defence Staff.

(M) (5 March 2009)

(21.76 TO 21.99 INCLUSIVE: NOT ALLOCATED)