QR&Os: Volume II - Chapter 109
Application for Referral Authority for Disposal of a Charge

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109.01 – APPLICATION

This chapter applies in respect of an application made to a referral authority for disposal of a charge.

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

109.02 – REFERRAL AUTHORITIES

The officers who are authorized to refer a charge to the Director of Military Prosecutions are the Chief of the Defence Staff and any officer having the powers of an officer commanding a command.

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

109.03 – APPLICATION TO REFERRAL AUTHORITY FOR DISPOSAL OF A CHARGE

(1) 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.

(2) The application shall include:

  1. the reasons for making the application;
  2. a brief summary of the circumstances surrounding the commission of the alleged offence and the evidence supporting the charge as disclosed by the investigation conducted pursuant to Chapter 106 (Investigation of Service Offences); and
  3. any recommendation concerning the disposal of the charge considered appropriate.

(3) If a commanding officer or superior commander forwards an application to a referral authority who is not the immediate superior of the commanding officer or superior commander in matters of discipline, a copy of the application shall be sent for information to the other superior officers to whom the officer submitting the application is responsible in matters of discipline.

(4) When a commanding officer or superior commander forwards an application to a referral authority, the commanding officer or superior commander shall comply with paragraph (3) of article 107.14 (Maintenance of Unit Registry of Disciplinary Proceedings).

(5) When an officer or non-commissioned member of the Canadian Forces National Investigation Service forwards an application to a referral authority (see article 107.12 – Decision Not to Proceed – Charges Laid by National Investigation Service), the officer or non-commissioned member shall

  1. send a copy of the application, together with a copy of the accompanying documents referred to in subparagraphs (6)(a), (b) and (c), to the commanding officer or superior commander who decided not to proceed with the charge for information and necessary action in accordance with paragraph (3) of article 107.14;
  2. send a copy of the application for information, together with a copy of the Record of Disciplinary Proceedings, to those other officers to whom the commanding officer or superior commander referred to in subparagraph (a) is responsible in matters of discipline; and
  3. where the commanding officer or superior commander who decided not to proceed with the charge is not the commanding officer of the accused, send a copy of the application, together with a copy of the Record of Disciplinary Proceedings, to the accused’s commanding officer for information and necessary action in accordance article 109.04 (Right to Legal Counsel).

(6) The application under paragraph (1) shall be accompanied by:

  1. the Record of Disciplinary Proceedings (see Chapter 107, Section 2 – Record of Disciplinary Proceedings);
  2. a copy of any report of investigation conducted pursuant to Chapter 106;
  3. in the case of an application forwarded by an officer or non-commissioned member of the National Investigation Service, a copy of the decision and reasons referred to at paragraph (1) of article 107.12;
  4. the conduct sheet, if any, of the accused; and
  5. the record of service or a certified copy of the certificate of service of the accused, if available.

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

NOTES

(A) A commanding officer or superior commander will be required to refer a charge to a referral authority for disposal where the commanding officer or superior commander has determined that a charge should be proceeded with but is precluded from trying the accused by summary trial and it would not be appropriate to refer the charge to another officer having summary trial jurisdiction (see article 108.16 – Pre-Trial Determinations). Such a referral would also be required in certain other circumstances (see article 108.34 – Referral to Another Authority During Summary Trial). In some cases, the decision to refer a charge to a referral authority will be discretionary (see article 108.19 – Action by Commanding Officer Where Charge Referred by Delegated Officer and article 108.195Action by Superior Commander Where Charge Referred by Commanding Officer).

(B) Where an officer or non-commissioned member of the Canadian Forces National Investigation Service refers a charge to a referral authority, unit authorities have the responsibility to make available to the National Investigation Service any document required under this article.

(C) Prior to making an application to a referral authority, the commanding officer or superior commander will have obtained advice from the unit legal officer pursuant to article 107.11 (Requirement to Obtain Advice from Unit Legal Officer – Disposal of Charges). The legal advice obtained and the factual basis for that advice may be of assistance in preparing the summary required under subparagraph (2)(b) of this article. That summary should contain sufficient detail to inform the referral authority as to the circumstances surrounding the commission of the alleged offence including the nature and prevalence of the alleged offence, degree of premeditation, harm caused, and any other extenuating or aggravating circumstance that may be considered relevant.

(C) (1 September 1999)


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109.04 – RIGHT TO LEGAL COUNSEL

(1) When an application is forwarded under article 109.03 (Application to Referral Authority for Disposal of a Charge), the commanding officer of the accused shall cause the accused to be advised of the application and inquire of the accused whether he:

  1. desires legal counsel to be appointed by the Director of Defence Counsel Services to represent him;
  2. intends to retain legal counsel at his own expense; or
  3. does not require legal counsel at this time.

(2) When the accused desires to have legal counsel appointed by the Director of Defence Counsel Services, the commanding officer shall ascertain whether the accused desires a particular legal officer assisting the Director to act as legal counsel, or whether the accused is willing to accept any legal officer assisting the Director to represent him.

(3) The commanding officer shall advise the Director of Defence Counsel Services of the accused’s wishes.

(4) Where the accused has requested the services of a particular legal officer, the Director of Defence Counsel Services shall endeavour to have that officer made available for that purpose. If the particular officer requested by the accused is not available, the Director shall ensure that another legal officer is made available.

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

NOTE

The Director of Defence Counsel Services provides prescribed legal services pursuant to article 101.20 (Duties and Functions of Director of Defence Counsel Services) and is assisted by members of the Canadian Forces who are barristers or advocates with standing at the bar of a province.

(C) (1 September 1999)

109.05 – ACTION BY REFERRAL AUTHORITY

(1) Subject to paragraph (2), a referral authority who receives an application prepared in accordance with article 109.03 (Application to Referral Authority for Disposal of a Charge) shall 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.

(2) A referral authority may direct that a commanding officer or superior commander try an accused by summary trial in respect of a charge that has been referred if:

  1. the charge was referred because the commanding officer or superior commander did not consider his or her powers of punishment to be adequate to try the accused person by summary trial; and
  2. the referral authority is of the opinion that the commanding officer or superior commander has adequate powers of punishment to try the accused by summary trial.

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

(109.06 TO 109.99 INCLUSIVE: NOT ALLOCATED)