Arrest and Laying Charges

[P Kaye]

Is there a resource for CF personnel to ask questions regarding the Code of Service Discipline, laying of charges, authority and procedure to arrest, etc?
Does JAG have a resource for answering such questions?

 

[WATCHDOG-81]

Besides the many references available to anyone, including the National Defence Act, CFAO, DOAD, and QR&O, you can also access the area DJA's (legal officers).  Some information is also available online at the Directorate of Defence Counsel Services which can be found at:

http://www.forces.gc.ca/jag/military_justice/ddcs/default_e.asp?format=print#info

Their toll-free number is 1-888-715-9636

 

[P Kaye]

I have heard officers on training courses talk about wanting to "charge" their instructors with service offences (such as threatening to use, or using physical violence).  In the case where the instructors are NCMs, I've heard officers (course candidates) claim the authority to lay charges.
I was always skeptical of this, and have done some detailed research of the NDA and the QR&Os to clarify.
Here is what I have determined (please correct me if I've missed anything).

1)  Authority to lay charges rests with a "commanding officer", or MP, or any officer authorised by the commanding officer to lay charges. 
2)  On a course, the "commanding officer" would be the course officer.  The course officer does not (usually) authorise course candidates to lay charges against instructors.  So NO, officers on course can NOT charge their instructors directly.
BUT...
3) ANY officer has the authority to "arrest" an NCM for a service offence.  I have not found anything in the  NDA or QR&Os that removes this authority from officers on course.  So YES, an officer on course can arrest their instructors.
BUT...
After the arrest, the officer on course who made the arrest would have to appeal to the course officer to lay charges.  The course officer could proceed to lay charges against the instructor, OR turn around and take administrative action against the officer who arrested his instructor.
So, unless your instructor physically assaults you in a serious way, my research has concluded that officers on course should not even think about threatening to arrest or charge their instructors.
But I'm not a lawyer.  Have I gotten anything wrong here, or overlooked anything?

 

[George Wallace]

You may want to look into the question of:   Is the officer in fact an officer, or only an officer Candidate?   Does he/she in fact hold a commission?

You   must remember that an Officer Candidate, as a student, is subordinate to the Staff.   The NCMs are in "Delegated" positions.   That being said, they would have more power to charge an officer candidate, than vis versa.

End result.   The Crse Offr has the power.   It goes higher also.   The CI and CO of the School would also become involved eventually.  


(EDIT: If I am not wrong, anyone has the authority to perform an arrest.  The matter of laying charges is different.)

GW

 

[WATCHDOG-81]

2)   On a course, the "commanding officer" would be the course officer.   The course officer does not (usually) authorise course candidates to lay charges against instructors.   So NO, officers on course can NOT charge their instructors directly.

A course officer is not a commanding officer.  The commanding officer refers to the officer who is in command of a unit, school, establishment, etc.  Accordingly, the School Commandant or Commanding Officer of the school has the authority to lay charges or to delgate that authority to someone else.  Normally a CO will appoint the DCO or Adjudant as the charging authority in order that the CO can hear the charge if it is a summary trial procedure.

 

[Aerobicrunner]

Watchdog 81 wrote:"Normally a CO will appoint the DCO or Adjudant as the charging authority in order that the CO can hear the charge if it is a summary trial procedure."

Actually, the CO may do a memo stating that all persons above the rank of MCpl (for instance) has the authority to lay charges, or conversely he may just state that CSM's and the RSM have the authority.   Depending on the CO and the unit on the specifics.  

QR&O 107.02 â “ AUTHORITY TO LAY CHARGES

  The following persons may lay charges under the Code of Service Discipline:
   
  (a) a commanding officer;
     
   (b) an officer or non-commissioned member authorized by a commanding officer to lay charges; and
     
  (c) an officer or non-commissioned member of the Military Police assigned to investigative duties with the Canadian Forces National Investigation Service.
     
(G) (P.C. 1999-1305 of 8 July 1999 effective
1 September 1999)
     NOTE

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.

The CO will appoint Delegated Officers, often comprised of the Adjt, DCO or OC's or 2 I/C's, based on the following:

108.10 â “ DELEGATION OF A COMMANDING OFFICER'S POWERS
 
(1) Subsection 163(4) of the National Defence Act provides:
 
   xx"163. (4) A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer deems fit, delegate powers to try an accused person by summary trial to any officer under the commanding officer's command, but an officer to whom powers are delegated may not be authorized to impose punishments other than the following:
 
 
(a) detention not exceeding fourteen days;
 
(b) severe reprimand;
   
(c) reprimand;
 
(d) a fine not exceeding basic pay for fifteen days; and
 
(e) minor punishments."

(1 September 1999)
 
(2) Delegation of powers of trial and punishment by a commanding officer pursuant to subsection 163(4) of the National Defence Act is subject to the following limitations:
   
  (a) a commanding officer may not delegate his powers of trial and punishment to an officer who:
   
  (i) has not been trained, in accordance with a curriculum established by the Judge Advocate General, and certified by the Judge Advocate General as being qualified to perform the duties of a delegated officer, or (1 April 2000)

(ii) is below the rank of captain;
   
  (b) a commanding officer may only delegate powers of trial and punishment in respect of non-commissioned members below the rank of warrant officer; and
 
(c) a commanding officer may not delegate powers of trial and punishment in respect of the civil offences referred to in paragraph (3) of article 108.07 (Jurisdiction â “ Offences).

 

[George Wallace]

Usually you will find that MCpls will be recommending to a SSM that a person be Charged, and the SSM will initiate the Charge Process.  In most cases, Units will allow WOs and above to lay charges on their own initiatives.

The original question, however, was that a Student (officer Candidate) felt that they could lay charges against Course Staff.  The answer is usually NO, except under extremely extenuating circumstances.  In most cases, Students can only lay a complaint up through the normal Chain of Command following the procedures laid out in Regs.  If they do not get a satisfactory response in the alloted timeframe, they may proceed to the next level of Command.  The Buck eventually stops at the Governor General.

 

[big_johnson1]

When you are a student on a course, you are just that, a student. The instructor, regardless of rank, is your superior in the class room because they are (supposed to be) qualified to be there. If there are problems with an instructor, the student should make a complaint, but disciplinary action comes from his chain of command. Think about the ranges.. It doesn't matter what rank you are, the RSO outranks you out there, and for good reason.

 

[P Kaye]

>> Is the officer in fact an officer, or only an officer Candidate?  Does he/she in fact hold a commission?

One of the cases I heard about was a 2Lt on his MOC course.  As a 2Lt, the officer was a course candidate, but he was indeed an officer with a commission.
One of his instructors allegedly made a violent threat against the candidate while on course.  In this case, I was curious if Section 85 of the National Defence Act applies:

85. Every person who uses threatening or insulting language to, or behaves with contempt toward, a superior officer is guilty of an offence...

The question is whether the candidate would be considered a "superior officer" of a course NCM while he is on the course.

There is a provision in the National Defence Act regarding "customs of the service".  It might be a considered a "custom of the service" that an officer on course is not considered a "superior officer" over the course instructors, for the purposes of interpreting the NDA.  I'm interested in this from a legal perspective.

 

[Glorified Ape]

Aren't officer cadets, for all intents and purposes (short of pay), rankless? Am I wrong in thinking a private outranks me (and behaving as such)?

 

[P Kaye]

That is not correct.  As an OCdt, you are an "Officer", but not a "Commissioned Officer".  You are not supposed to be saluted.  NCMs *should*, however, address you as "Sir".  At your unit, Cpls and MCpls should generally treat you with respect, for example, by not yelling at you in front of troops.  Instead, they should quietly take you aside and say "excuse me Sir, but...".
An OCdt, or 2Lt should always, of course, listen carefully to the advice of all trained NCMs.
On course, it's a different matter.  OCdts and 2Lts are untrained officers, and on course we're simply "candidates".
But a Private certainly does NOT "outrank" an OCdt, under any circumstances.

 

[garb811]

>> Is the officer in fact an officer, or only an officer Candidate?   Does he/she in fact hold a commission?

One of the cases I heard about was a 2Lt on his MOC course.   As a 2Lt, the officer was a course candidate, but he was indeed an officer with a commission.
One of his instructors allegedly made a violent threat against the candidate while on course.   In this case, I was curious if Section 85 of the National Defence Act applies:

85. Every person who uses threatening or insulting language to, or behaves with contempt toward, a superior officer is guilty of an offence...

The question is whether the candidate would be considered a "superior officer" of a course NCM while he is on the course.

There is a provision in the National Defence Act regarding "customs of the service".   It might be a considered a "custom of the service" that an officer on course is not considered a "superior officer" over the course instructors, for the purposes of interpreting the NDA.   I'm interested in this from a legal perspective.

Is this Academic "curious" or finding out if there is action you can take, which you will do so if you find out you can, curious?  If it's the latter, I strongly suggest you contact your nearest MP Det as from the limited information you have provided not only is Sect 85 of the NDA possibly an issue but the Criminal Code Offence of Uttering Threats may be as well.

 

[P Kaye]

Honestly, the situation has NOT occurred in my case, and I have not yet directly observed such a situation.
I have heard about this situation through a colleague.   He said at the time of the incident he had only been in the military a very short time and didn't know his rights.   He later was told he could have arrested the NCM who uttered the threats (even though that NCM was one of his instructors).
This got me curious, for a number of reasons:

1) People seem to make claims about what can and can't be done, without really knowing.   You ask them to point you to the reference, and they make vague references to "somewhere in the QR&Os".   Usually it's something they've heard by word-of-mouth, and passed along without questioning.   I've even been taught things on course that when I later looked them up, found out were incorrect.   I've developed the philosophy that for certain things, the only way to be sure is to go look at the relevant documentation myself.

2) If a time ever comes that I find myself in such a situation, it would be far better to know ahead of time what my rights and authorities are.

3) If troops ever ask questions like this of me, I'd rather be able to pull out my FMP and give them the exact reference, rather than pass them bull*** based on second-hand information of questionable validity.

 

[Wizard of OZ]

I would not try to arrest a crse DS while being a student on a crse.  I would take it through the chain of command. 

Your abilities as a Commissioned Officer are not in effect while a candidate at a school.  This is in most school policies.  The DS does out rank you so there for you are no longer a "superior officer".  But the use of threats of physical violence is a criminal act if the person actually felt threatened.  That is a criminal matter and should be dealt with accordingly.  Through the chain to the MP's and then NIS or the SIIS branch of us depending on rank or circumstances.

 

[garb811]

Ahh...seen.  OK, check out Sect 154 and 155 of the NDA.   Technically your friend could have arrested the instructor, however whether he should have is another matter entirely.  

Your abilities as a Commissioned Officer are not in effect while a candidate at a school. This is in most school policies. The DS does out rank you so there for you are no longer a "superior officer".

So you're saying the School Cmdt, normally of the rank of Maj or LCol, has the authority to issue a Standing Order which will then override the NDA?   Next thing you'll be telling me is that Base Commanders can direct the MPs that they can process any Impaired Driver they want as long as it's not an Officer...

 

[P Kaye]

Thanks MP.

>>Technically your friend could have arrested the instructor, however whether he should have is another matter entirely.

Personally, I would say the only reason why it might be necessary to use this authority is if the incident happened in the field, the instructor was obviously irrational, and the candidate (or another candidate observing the incident) was actually concerned for his/her safety.   Or if the instructor actually rose a hand or began to shove or otherwise offer physical force against the candidate.   In THIS case, as a candidate (whether the victim of, or an observer of the incident). I might order one of the other course instructors to arrest the violent instructor.   The next step, I guess, would be to get the offender and the victim to the course officer, and turn the offender over to the custody of the course officer?   From there the course officer would presumeably turn the matter over the MPs, or at the very least investigate the matter fully himself.

 

[Glorified Ape]

That is not correct.   As an OCdt, you are an "Officer", but not a "Commissioned Officer".   You are not supposed to be saluted.   NCMs *should*, however, address you as "Sir".   At your unit, Cpls and MCpls should generally treat you with respect, for example, by not yelling at you in front of troops.   Instead, they should quietly take you aside and say "excuse me Sir, but...".
An OCdt, or 2Lt should always, of course, listen carefully to the advice of all trained NCMs.
On course, it's a different matter.   OCdts and 2Lts are untrained officers, and on course we're simply "candidates".
But a Private certainly does NOT "outrank" an OCdt, under any circumstances.

Ahhh, that clears up alot. Thanks. I thought, given my perception, that it was kind of wierd that my liaison corporal called me "sir" in correspondence. Now I know why.

 

[Wizard of OZ]

"So you're saying the School Cmdt, normally of the rank of Maj or LCol, has the authority to issue a Standing Order which will then override the NDA?  Next thing you'll be telling me is that Base Commanders can direct the MPs that they can process any Impaired Driver they want as long as it's not an Officer... "

 Really is that what it says or does it say that while attending a school you don't carry that rank with the instructors as superiors?

read my friend don't assume, they set the policy from the NDA and make it fit to the needs of that particular environment.

or how bout a base commander himself?

 

[Wizard of OZ]

I am not saying that they are not officers by any stretch.  I am saying that they should be careful attempting to arrest a DS as a student on a crse.  Most schools do not allow this to happen.  That is what the chain of command at most schools do. 

Your right it does say that and a whole bunch of other lovely things.  But it is up to the individual to place limitations on them and at a school i think those limitations are imposed by those higher.  Am i not correct here or would not NCMs be arrested all the time teaching officers if things did not go well?  As DS of a crse they hold a higher standing not necessarily rank in the real world.

 

[HollywoodHitman]

This is BRUTAL. You mean to tell me that a Sgt who is teaching for example, a bunch of future Infantry Officers needs to say something like 'Sir, I would highly recommend that you engage yourself accordling to the level required of this particular field operation, or I will be sad, and might have to give you a failing grade"??????????? Or do you say "Sir, if you don't get your ass moving, I'm gonna stick my foot in it".....? - Either way, there is not a chance in hell it's a serious threat. I'm willing to bet a bruised ego and some embarassment are at the roots of all of this.

Brutal.