Elements of The Offence

INTRODUCTION
The aide memoire on the Elements of the Offence is not an official DND/CF publication.
It was designed as a document to help junior prosecutors; however, it soon became
apparent that this publication would be a useful resource tool to the broader military
audience of law enforcement. From the initial investigation, through to the final decision
at trial, the elements of a particular offence are those essential ingredients which must be
proven in order to establish that an offence has occurred.
This disciplinary tool is designed to assist the user in effectively applying the Code of
Service Discipline. As such, its focus is on the most common military offences dealt with
at both the summary trial and court martial. In addition to a listing of the essential
elements to be proven for each of the offences covered, the aide memoire provides
examples of proper wording for charges, a summary of the law for each section, and
selected cases that have been decided under each section. This publication is not
designed as the definitive replacement for the consultation process between lawyer and
client, it is however, an aid to understanding the formal requirements to prove certain
military offences. This initial edition is reasonably current to year-end 2000.
The efforts of military prosecutors, students-at-law and support staff in the design,
research, compilation of materials, analysis of issues and production of this aide
memoire, in bilingual format, are acknowledged with grateful appreciation.
Observations or comments regarding this publication can be forwarded to:
Director of Military Prosecutions

Office of the Judge Advocate General
National Defence Headquarters
305 Rideau Street
Ottawa, Ontario
K1A 0K2
TABLE OF CONTENTS
Introduction…………….…………………………………………………………….(i)
s.83 – Disobedience of a Lawful Command

Statute………………………………………………………………………..83-1/6
General……………………………………………….………….…………...83-1/6
Wording of Charge..…………………………………………………………83-1/6
Elements of the Offence……………………………………………………..83-2/6
Summary of Law…………………………………………………………….83-2/6
Cases/Examples……………………………………………………………...83-5/6
s.84 – Striking or Offering Violence to a Superior Officer

Statute………………………………………………………………………..84-1/5
General…………………………………………………………………….…84-1/5
Summary of Law…………………………………………………………….84-3/5
Cases/Examples……………………………………………………………...84-4/5
s.85 – Insubordinate Behaviour

Statute………………………………………………………………………..85-1/4
General…………………………………………………………………….…85-1/4
Summary of Law…………………………………………………………….85-3/4
Cases/Examples……………………………………………………………...85-4/4
s.86 – Quarrels and Disturbances

Statute………………………………………………………………………..86-1/3
General…………………………………………………………………….…86-1/3
Summary of Law…………………………………………………………….86-3/3
Cases/Examples……………………………………………………………...86-3/3
s.90 – Absence Without Leave

Statute………………………………………………………………………..90-1/5
General…………………………………………………………………….…90-1/5
Summary of Law…………………………………………………………….90-2/5
Cases/Examples……………………………………………………………...90-5/5
s.93 – Cruel or Disgraceful Conduct
Statute………………………………………………………………………..93-1/2
General…………………………………………………………………….…93-1/2
Summary of Law…………………………………………………………….93-2/2
Cases/Examples……………………………………………………………...93-2/2
s.95 – Abuse of Subordinates

Statute………………………………………………………………………..95-1/3
General…………………………………………………………………….…95-1/3
Summary of Law…………………………………………………………….95-2/3
Cases/Examples……………………………………………………………...95-3/3
s.97 – Drunkenness
Statute………………………………………………………………………..97-1/4
General…………………………………………………………………….…97-1/4
Summary of Law…………………………………………………………….97-2/4
Cases/Examples……………………………………………………………...97-4/4
s.112 – Unauthorized Use of CF Vehicles

Statute………………………………………………………………………112-1/6
General……………………………………………………………………...112-1/6
Wording of Charge..………………………………………………………..112-2/6
Elements of the Offence……………………………………………………112-3/6
Summary of Law…………………………………………………………...112/3/6
Cases/Examples…………………………………………………………….112-5/6
s.114 – Stealing
Statute………………………………………………………………………114-1/7
General……………………………………………………………………...114-2/7
Summary of Law…………………………………………………………...114-4/7
Cases/Examples…………………………………………………………….114-6/7
s.117(f) – An Act of a Fraudulent Nature

Statute……………………………………………………………………117(f)-1/8
General…………………………………………………………………...117(f)-1/8
Wording of Charge..……………………………………………………..117(f)-2/8
Elements of the Offence…………………………………………………117(f)-2/8
Summary of Law- False Submission/Alteration…..……………..……...117(f)-3/8
Cases/Examples…..………………………………………………… ….117(f)-3/8
Summary of Law- Deceitful Practice…..……….………………..……...117(f)-4/8
Cases/Examples…………………………………………………… .. ….117(f)-4/8
Summary of Law- Deprivation………………..… ……………..……...117(f)-4/8
Cases/Examples…………………..………………………………… ….117(f)-4/8
Summary of Law- Blameworthiness……..……..………………..……...117(f)-5/8
Cases/Examples………………..…………………………………… ….117(f)-8/8
s.124 – Negligent Performance of a Military Duty

Statute………………………………………………………………………124-1/6
General……………………………………………………………………...124-1/6
Summary of Law…………………………………………………………...124-3/6
Cases/Examples…………………………………………………………….124-4/6
s.125(a) – Wilfully or Negligently Making a False Entry in a Document

Statute……………………………………………………………………125(a)-1/6
General……………………………….…………………………………..125(a)-1/6
Wording of Charge..…………………………...……………………….. 125(a)-1/6
Elements of the Offence…………………………………………………125(a)-3/6
Summary of Law………………………………………………………...125(a)-3/6
Cases/Examples…………………………………………………...…….125(a)-4/6
s.129 – Conduct to the Prejudice of Good Order and Discipline

Statute……………………………………………………………..………129-1/12
General……………………………………………………………..……...129-2/12
Wording of Charge..……………………………………………..………..129-2/12
Summary of Law……………………………..…………...………………129-4/12
Elements of the Offence………………………………………………......129-6/12
Cases/Examples…………………………………………………………...129-7/12
s.130 – An act punishable under s. 130 of the NDA, that is to say “...”
s.83
ELEMENTS OF THE OFFENCE

s. 83 DISOBEDIENCE OF A
LAWFUL COMMAND
STATUTE
Section 83 of the National Defence Act provides:
83. Every person who disobeys a lawful command of a superior officer is guilty of an
offence and on conviction is liable to imprisonment for life or to less punishment."
GENERAL
The offence of Disobedience of a Lawful Command is unique to the National Defence
Act and has no counterpart in Canadian civilian criminal or penal law. All military
personnel must obey lawful orders given to them by a superior officer. These orders may
be oral or written and may be given either personally or on behalf of the superior officer.
Only unlawful orders may be disobeyed. Moral objections to a lawful order do not
constitute a defence against this charge.
This charge should not be used when an individual is absent without leave. It can,
however, be used if an individual is ordered to report to a certain location for duty and
fails to do so.
WORDING OF CHARGE
Specimen Charge
DISOBEYED A LAWFUL COMMAND OF A SUPERIOR OFFICER
Particulars: In that he, on (date), at (indicate place of offence), did not leave the canteen
when ordered to do so by (number, rank and name).
Examples of Charges
Particulars: In that s/he between (dates), at (indicate place of offence), did cause public
funds to be expended for a trip to (place), contrary to an order given to him by Colonel
(name).
Particulars: In that s/he, on (date), at (indicate place of offence), did not carry out the
duties of the Combat Training Centre Base Duty Officer as s/he was ordered by
Lieutenant-Colonel (name), Commanding Officer of (unit).
83-1/6
s.83
Particulars: In that s/he, between (dates), at (indicate place of offence) used the Base
Personnel Selection Office Internet computer workstation when ordered not to do so by
Major (name).
Particulars: In that s/he, on or about (date) at (indicate place of offence), did not obtain
approval prior to giving a pay advance when ordered to do so by Sgt (name).
Particulars: In that s/he, from (date) to (date) at (indicate place of offence), while duty
Medical Officer, was employed as an on call physician at (town) General Hospital and
(another hospital) contrary to the orders of LCol (name).

In order to establish an offence under s.83 of the NDA, the following essential items must
all be proven beyond a reasonable doubt:
1. Identity of the offender

2. Date of the offence
3. Place of the offence
4. The act itself
5. Contrary to an order given
6. Guilty intent
From 2007 CM 4005:
1. The identity of the accused as the offender;
2. The date and place of the offence;
3. That the accused was given an order;
4. That the order was lawful;
5. That the accused received or knew the order;
6. That the order was given by a superior officer (officer or NCM authorized to give a
lawful command to the accused);
7. That the accused knew the person was a superior officer; and
8. That accused did not comply with the order.
SUMMARY OF LAW
83-2/6
s.83
The expression "superior officer" is defined in section 2 of the National Defence Act to
mean:
"Any officer or non-commissioned member who, in relation to any other officer
or non-commissioned member, is by that Act, or by regulations or by custom of
the service, authorized to give a lawful command to that other officer or non-
commissioned member."1
Unless this relationship exists, the charge must be laid under section 129 of the National
Defence Act2.
To establish an offence under this section it is necessary to prove non-compliance with a

command, i.e., disobedience. The disobedience must relate
a) to the time when the command is to be obeyed and
b) may arise from the failure to comply at once with a command which, requires
prompt and immediate obedience or,
c) a failure to take a proper opportunity to carry out a command which, requires
compliance sometime in the future.
A person must therefore have and fail to take the opportunity of carrying out a command
before it is an offence under this section. One who merely says "I will not do it" does not
disobey a command if in fact he repents and carries it out when it is to be done, although
he may be liable under section 129 of the National Defence Act. 3
A service tribunal should be satisfied, before conviction that the accused knew that the
person, with respect to whom the offence prescribed in this section was committed, was a
superior officer. If the superior did not wear the insignia of his rank, and was not
personally known to the accused, evidence would be necessary to show that the accused
was otherwise aware that he was his superior officer.4
Where the accused is charged with an offence against a superior officer who is of the
same rank, evidence must be adduced to show that the latter is the accused’s superior on
some other grounds, for example, by reason of the appointment which the superior officer
holds.5
An omission arising from misapprehension is not an offence under this section, nor is
failure to obey a command where obedience would be physically impossible.6
A command, in order to be lawful must be one relating to military duty, i.e., the
disobedience of which must tend to impede, delay or prevent a military proceeding. A
superior officer has the right to give a command for the purpose of maintaining good
order or suppressing a disturbance or for the execution of a military duty or regulation or
for a purpose connected with the welfare of troops or for any generally accepted details
1
QR&O article 103.16 note A.
2
See article 103.60 of the Queen's Regulation and Orders "Conduct to the Prejudice of Good Order and
Discipline".
3
QR&O 103.16 note D.
4
QR&O 103.16 note B.
5
QR&O 103.16 note C.
6
QR&O 103.16 note E
83-3/6
s.83
of military life. He has no right to take advantage of his military rank to give a command,
which does not relate to military duty or usage which has for its sole object the attainment
of some private end.7
To establish an offence under this section, it is not necessary to prove that the superior
officer gave the command personally. It is sufficient to show that someone whom the
accused might reasonably suppose to have been duly authorized to notify him of the
command gave it on behalf of a superior officer.8
A civilian cannot give "a lawful command" to members of the service but it may well be
the duty of an officer or non-commissioned member to do the act indicated. Apart from
any order and, if he does not do so, he may be liable under section 129 of the National
Defence Act.9
The command must be a lawful one10.
19.015 – Lawful Commands and Orders

Every officer and non-commissioned member shall obey lawful commands and orders of
a superior officer.
NOTES
A) The expression "superior officer" includes a non-commissioned member. (See
article 1.02 - Definitions.)
B) Usually there will be no doubt as to whether a command or order is lawful or

unlawful. In a situation, however, where the subordinate does not know the law or
is uncertain of it he shall, even though he doubts the lawfulness of the command,
obey unless the command is manifestly unlawful.
(C) An officer or non-commissioned member is not justified in obeying a command

or order that is manifestly unlawful. In other words, if a subordinate commits a
crime in complying with a command that is manifestly unlawful, he is liable to be
punished for the crime by a civil or military court. A manifestly unlawful
command or order is one that would appear to a person of ordinary sense and
understanding to be clearly illegal; for example, a command by an officer or non-
commissioned member to shoot a member for only having used disrespectful
words or a command to shoot an unarmed child.
7
QR&O 103.16 note F
8
QR&O 103.16 note G
9
QR&O 103.16 note H
10
See article 19.015 of the Queen's Regulations and Orders "Lawful Commands and Orders" and notes
thereto.
83-4/6
s.83
(D) With respect to riots, subsection 32(2) of the Criminal Code (Revised Statutes of
Canada, 1985, Chapter C-46) states:
"32. (2) Every one who is bound by military law to obey the command of
his superior officer is justified in obeying any command given by his
superior officer for the suppression of a riot unless the order is manifestly
unlawful."
With respect to non-compliance with one of two conflicting commands, see article 19.02
QR&O (Conflicting Lawful Commands and Orders).
19.02 – Conflicting Lawful Commands and Orders

(1) If an officer or non-commissioned member receives a lawful command or
order that he considers to be in conflict with a previous lawful command or
order received by him, he shall orally point out the conflict to he superior
officer who gave the later command or order.
(2) If the superior officer still directs the officer or non-commissioned member to
obey the later command or order, he shall do so.
Cases/Examples
In R. v. LS Maier, 41/97 (SCM) the member was found guilty of s. 83 NDA. His
supervisor, Sgt Isabelle, had ordered him not to provide advances on pay accounts
without prior approval from her. He provided a pay advance to himself and one of his
counterparts and was found to have wilfully disobeyed a lawful order from a superior
officer. In this case, the President of the Court, Cdr Barnes, took judicial notice that
failure to comply with the direction, instructions, command, order of a superior is
prejudicial to good order and discipline.11
In R. v. Capt. McCallum, 25/96(SCM), the member was found guilty of s. 83 NDA. He

had been awarded extra duties by his Commanding Officer in order to correct perceived
problems in his performance. He refused to carry out the duty of the Combat Training
Centre Base Duty Officer as he was ordered. He believed that the order to do extra duties
or to work longer periods of normal duty constituted a minor punishment and, since he
had not been charged with any offence, considered that order to be unlawful. The
president of the court, Cdr Barnes, found that the order for the performance of the extra
duties did not constitute the minor punishment of extra training. The order was not
unlawful. The accused was fined 1,000.00$ and given a severe reprimand. 12
11
R. v. LS Maier (17-20 February 1998) CFB Esquimalt, Court-Martial Transcript 41/97 (SCM) at 230.
12
R. v. Capt. McCallum, (1-2 October 1996) CFB Gagetown, Court-Martial Transcript 25/96 at 89-90.
83-5/6
s.83
In R. v. Capt. Gray, 16/98(SCM), the member was found guilty of s. 83 NDA in that, he
used the Base Personnel Internet workstation after he had been ordered by the Base
Personnel Selection Officer not to do so
In R. v. LCol Creech, 19/98(SCM), the member, the Commanding Officer of a reserve

artillery unit, pleaded guilty to s. 83 NDA in that, he did cause public funds to be
expended for a unit trip to Gettysburg Pennsylvania, contrary to an order given to him by
his Brigade Commander.
In R. v. WO Turnbull, 73/89(DCM), the member was found guilty of s. 83 NDA in that,

he failed to report when ordered to do so by a superior officer. In this case, special
findings stated that the member failed to report to HMCS Cataraqui and not failed to
report for duty.
In R. v. LCdr Hartman, 53/91(GCM), the member was found guilty of s. 83 NDA in that,
while on duty Medical Officer, was employed as "on call" physician at Pembroke
General Hospital and Pembroke Civic Hospital, contrary to the orders of his
Commanding Officer.
83-6/6
s.84

s. 84 STRIKING OR OFFERING VIOLENCE
TO A SUPERIOR OFFICER
STATUTE
Section 84 of the NDA provides that:
Every person who strikes or attempts to strike, or draws or lifts up a weapon against, or
use, attempts to use or offers violence against a superior officer is guilty of an offence
and on conviction is liable to imprisonment for life or to less punishment.
GENERAL
Charges under s.84 commonly arise in situations where the accused is intoxicated. This
is a general intent offence and intoxication is not a defence under this section. In cases
where drunkenness is involved, the accused, in addition to being charged under s.84,
should be charged under s.97 with an alternative to the s.97 charge being laid under
s.129.
The basic elements of this charge correspond with s.266 (assault) of the Criminal Code.
Defences to a charge under s.84 incorporate all of the defences to assault as per the
Criminal Code. In addition however, the relationship of “superior officer” must exist and
it must be proven that the accused was aware that the victim was a superior officer. This
section cannot operate when the victim is a civilian. In such cases, charges should be laid
under s.129 and/or s.130 (s.265 of the Criminal Code).
WORDING OF CHARGE
The statement of the offence in a charge under this section should be in one of the
following forms:
Struck
a superior officer
Attempted to Strike
Drew
a weapon against a superior officer
Lifted up
84-1/5
s.84
Used
Attempted to use violence against a superior officer
Offered
Specimen Charge
Particulars: In that he, on (date) at (indicate place of offence), hit (number, rank and
name) on the head with a stick.
Examples of Charges
STRUCK A SUPERIOR OFFICER
Particulars: In that s/he, on (date) at the combined kitchen, (place), punched (number,
rank and name) in the face.
USED VIOLENCE TOWARD A SUPERIOR OFFICER:
Particulars: In that s/he on (date) on board HMCS Gatineau, at (place), choked the duty
coxswain, (number, rank and name).
Particulars: In that s/he on (date) at approximately (time) at (location), overturned a

desk on top of (number, rank and name).
Particulars: In that s/he, on (date) at (place) pushed (number, rank and name).
Particulars: In that s/he, on (date) at (place) grabbed (number, rank and name).
Particulars: In that s/he, on (date) at (place) lifted up under the arms and threw (number,
rank and name) down the stairs.
Particulars: In that s/he, on (date) at (place) grabbed (number, rank and name) by the
neck and shoved him out of the way.

2. Date and place of the offence
3. Actus reus, the use of violence
4. The recipient of the violence was a superior officer
5. Knowledge by the accused that the person was a superior officer
6. Guilty intention to offer violence
84-2/5
s.84
3. That the accused offered violence toward another person;
4. That the recipient of violence was a superior officer (an officer or NCM authorized to
give a lawful command to the accused);
5. That the accused knew the person was a superior officer; and
6. That the accused offered the violence intentionally.
SUMMARY OF LAW
Notes from QR&O 103.17
(A) The expression "superior officer" is defined in section 2 of the National Defence Act
to mean any officer or non-commissioned member who, in relation to any other officer or
non-commissioned member, is by that Act, or by regulation or by custom of the service,
authorized to give a lawful command to that other officer or non-commissioned member.
Unless this relationship exists, the charges must be laid under section 129 of the National
Defence Act (see article 103.60 – Conduct to the Prejudice of Good Order and
Discipline).
(B) A service tribunal should be satisfied, before conviction, that the accused knew that
the person, with respect to whom an offence prescribed in section 84 of the National
Defence Act was committed, was a superior officer. If the superior did not wear the
insignia of his rank, and was not personally known to the accused, evidence would be
necessary to show that the accused was otherwise aware that he was his superior officer.
(C) Where an accused is charged with an offence against a superior officer who is of the
same rank, evidence must be adduced to show that the latter is the accused's superior on
some other ground, for example, by reason of the appointment which the superior officer
holds.
D) "Strikes" means that a blow is struck with the hand or fist or something which is held
in the hand.
E) "Uses violence" includes all forms of violence other than striking. Kicking or butting
with the head should be charged as "using violence" and not as "striking".
84-3/5
s.84
(F) The words "offers violence" include any threatening gesture or act which, if
completed, would end in violence, but they do not extend to an insulting or impertinent
gesture or act from which violence could not result. For example, a non-commissioned
member who throws down arms on parade, but in such a direction that they could not
strike a superior officer, could not be deemed to have offered violence within the
meaning of this section. On the other hand, the throwing of arms at or the pointing of a
loaded firearm at a superior would amount to offering violence. Conduct not amounting
to offering violence, but which is insubordinate in nature, would properly be charged
under section 129 of the National Defence Act (see article 103.60 – Conduct to the
Prejudice of Good Order and Discipline) or might amount to "behaving with contempt"
under section 85 thereof (see article 103.18 – Insubordinate Behaviour).
(G) In order to constitute an offence of attempting to strike, or of attempting to use

violence, the following elements must be present:
(i) an intent to commit the offence.
(ii) an act towards the commission of the offence.
An intent alone is not sufficient if nothing is done to carry it into effect. A distinction
must, however, be drawn between an act toward the commission of an offence and an act
which is mere preparation. It may be difficult to draw a clear line of distinction, but, in
general, preparation consists in devising or arranging the means for the commission of an
offence while, on the other hand, an act or omission sufficient to support a charge of
attempting must involve a direct step toward the commission of the offence after the
preparations have been made. For example a person, having an intent to strike a superior
officer, might go some distance away and pick up a stick. The procurement of the stick
would merely be a stage in his preparations and not such an act as to justify a charge of
attempting to strike. An example of an act justifying a charge of attempting to strike
would be the picking up of a stick in the vicinity of the superior officer concerned in such
circumstances as to indicate that the act of picking up was the first of an intended
continuous series of movements which, if continued would have resulted in an actual
offence of striking.
(H) If violence is used in self-defence and it is shown that it was necessary, or at the
moment the accused had reason to believe that it was necessary for his actual protection
from injury and that he used no more violence than was reasonably necessary for that
purpose he is legally justified in using it, and commits no offence.
(I) Unless it is established that violence is needed for self-defence, provocation is not a
ground of acquittal but tends merely to mitigate the punishment. Evidence of
provocation, if tendered, must be admitted.
(J) See section 133 of the National Defence Act (article 103.62 – Conviction of Related
or Less Serious Offences) under which a person charged with any one of the offences
prescribed in this section 84 of the National Defence Act may be found guilty of any
other offences prescribed in this section.
84-4/5
s.84
Cases/Examples
In R. v. Sgt Truskoski, 21/96 (SCM), the member was found guilty of s. 84 NDA in that,
he attacked and punched a warrant officer in the face. He was also found guilty of s. 85
NDA. A charge under s.130 (s.266 CCC) was stayed. The member was sentenced to 30
days (suspended) detention.
In R. v. OS Allen, 35/90 (SCM), the accused had been barred from mess earlier in the
evening for being drunk. When the coxwain tried to bar the accused from entry into the
mess and ordered him to go to his bunk. When the coxwain turned and walked away, the
accused grabbed him by the throat and pushed him against the bulkhead. The member
pleaded guilty to s. 84 NDA. He was also found guilty s. 97 NDA (drunkenness). The
member was sentenced to 4 months detention.
In R. v. Sgt Rodgers, 39/92 (SCM), the member was found guilty of (x2) s. 84 NDA in
that, he used violence against a superior officer after he pushed his platoon commander
and threw another officer down the stairs of the armouries in which they worked. The
accused pleaded guilty to s. 97 NDA. He was sentenced to 4 months imprisonment.
84-5/5
s.85

s. 85 INSUBORDINATE BEHAVIOUR
STATUTE
85. Every person who uses threatening or insulting language to, or behaves with
contempt toward, a superior officer is guilty of an offence and on conviction is liable to
dismissal with disgrace from Her Majesty's service or to less punishment.
GENERAL
This charge is frequently laid at the unit level and is one of the most common offences at
the summary trial level. Although it is common to see this charge at courts martial, it is
often laid as an alternative to a charge under s.129 and is regularly stayed in favour of the
s.129 charge in accordance with note (H) of QR&O 103.18.
This charge cannot be laid when the victim is a civilian. In such cases, charges should be
laid under s.129.
In most cases, if the individual has been charged only under s.85, that person will not be
given the right to elect court martial and the trial will be conducted at the summary level.
However, in situations where the officer exercising summary trial jurisdiction concludes
that a punishment of reduction in rank, detention, or fine in excess of 25% of monthly
basic pay would be warranted if the accused were found guilty of the offence, the
member must be given the right to elect court martial.
WORDING OF CHARGE
Used threatening language to
Used insulting language to a superior officer
Behaved with contempt toward
85-1/4
s.85
Specimen Charge
USED THREATENING LANGUAGE TO A SUPERIOR OFFICER

Particulars: In that s/he on (date) at (indicate place of offence), said to (number, rank
and name)”I’ll catch up with you some night and you’ll wind up in the hospital” or words
to that effect.
Examples of Charges
USED INSULTING LANGUAGE TO A SUPERIOR OFFICER

Particulars: In that s/he, on (date) at the combined kitchen at (base) said to (a superior
officer) “Now you son of a bitch, you have something to charge me with” or words to that
effect.
USED INSULTING LANGUAGE TO A SUPERIOR OFFICER

Particulars: In that s/he on or about (date) at approximately 0300 hrs, at (place), said to
(superior officer), “you disgust me” or words to that effect and “you coward” or words to
that effect.
BEHAVED WITH CONTEMPT TOWARD A SUPERIOR OFFICER

Particulars: In that s/he on or about (date) at approximately 0300 hrs, at (place), said to
(superior officer), “let’s take this thing outside and sort it out” or words to that effect.

1. Identity of the offender;
2. Date and place of the offence;
3. Actus Reus, the act of using threatening or insulting language;
4. Recipient was a superior officer;
5. Knowledge by the accused that the person was a superior officer;
6. Insubordinate intention to use threatening or insulting language; and
7. Blameworthy state of mind.
3. That the accused used threatening or insulting language to another person;
4. That the other person was a superior officer (an officer or NCM authorized to give a
lawful command to the accused);
5. That the accused knew the other person was a superior officer; and
6. Insubordinate intention to use threatening or insulting language.
85-2/4
s.85
SUMMARY OF LAW
The expression "superior officer" is defined in section 2 of the National Defence Act to
mean:
"any officer or non-commissioned member who, in relation to any other
officer or non-commissioned member, is by that Act, or by regulation or
by custom of the service, authorized to give a lawful command to that
other officer or non-commissioned member."
Unless this relationship exists, the charge must be laid under section 129 of the National
Defence Act. (See article 103.60 – Conduct to the Prejudice of Good Order and
Discipline).1
A service tribunal should be satisfied, before conviction, that the accused knew that the
person, with respect to whom an offence in this section was committed, was a superior
officer. If the superior did not wear the insignia of his rank, and was not personally
known to the accused, evidence would be necessary to show that the accused was
otherwise aware that he was his superior officer.2
In the case of R v MCPL Bona, 18/99(SCM), the victim, a Captain, was not wearing a
uniform and was downtown Pembroke when the offence occurred. The accused used
offensive language toward the Captain and invited him to go outside the establishment
and fight. The accused knew him to be a superior officer, one of the essential
requirements in proving the charge.
Where the accused is charged with an offence against a superior officer who is of the
same rank, evidence must be adduced to show that the latter is the accused’s superior on
some other ground, for example, by reason of the appointment which the superior officer
holds.3
Where a charge is for using threatening or insulting language, the particulars must state
the expressions or their substance and the superior officer to whom they were addressed.4
In the case of threatening or insulting words, they must have been expressed to a superior
officer and with an insubordinate intent, that is to say, they must be, either in themselves,
or in the manner or circumstances in which they were spoken, insulting or disrespectful.5
In the case of contemptuous behaviour, the act or omission complained of must have
been within the sight or hearing of the superior officer in question.6
1
QR&O 103.18 note A
2
QR&O 103.18 note B
3
QR&O 103.18 note C
4
QR&O 103.18 note D
5
QR&O 103.18 note E
6
QR&O 103.18 note F
85-3/4
s.85
Insubordinate language or conduct not falling within Notes (E) or (F) may only be
charged under section 129 of the National Defence Act (see article 103.60 – Conduct to
the Prejudice of Good Order and Discipline).7
Mere abusive or violent language used by, or contemptuous behaviour on the part of, a
drunken person should not be charged under section 85 of the National Defence Act. As a
general rule, the interests of discipline would be served by laying a charge under section
97 of the National Defence Act (see article 103.30 – Drunkenness) or section 129 of the
National Defence Act (see article 103.60 – Conduct to the Prejudice of Good Order and
Discipline).8
As LCol Menard, the president of the court in R. v. MCPL Bona noted, the offence under
s.85 of the NDA is a general intent offence.9 Mere intoxication or drunkenness does not
act as a defence to a charge under s.85. In this case, the accused, who was intoxicated at
the time of the offence, was found guilty under s. 85 NDA in that he said to a Captain
whom he knew, "you disgust me", "you coward" and "let's take it outside and sort things
out" or words to that effect. He was found guilty under s.85 and several other charges,
and sentenced to a reduction in rank to private.
Cases/Examples
In R. v Sgt. Truskoski, 21/96(SCM), the member was found guilty of s. 85 NDA in that,
he said to WO "now you (very derogatory word), you have something to charge me with"
or words to that effect. Found guilty of section 84 NDA in that, he punched a warrant
officer in the face. Sentenced to 30 days (suspended) detention.
In R. v. Sdt Pépin, 09/90(DCM), the member pleaded guilty to section 85 NDA in that he
said, "Je vais vous avoir en dehors d'ici," or words to that effect while in a prison
compound. Pleaded guilty to (x2) section 84 NDA that of, pushed and, with a baseball
bat, struck a Corporal. Sentenced to 12 months imprisonment.
7
QR&O 103.18 note G
8
QR&O 103.18 note H
9
R v MCPL Bona (2-5 February 1999) CFB Petawawa, Court-Martial Transcript 18/99 at 178.
85-4/4
s.86

s. 86 QUARRELS AND DISTURBANCES
STATUTE
86. Every person who
(a) quarrels or fights with any other person who is subject to the Code of Service
Discipline, or
(b) uses provoking speeches or gestures toward a person so subject that tend to
cause a quarrel or disturbance,
is guilty of an offence and on conviction is liable to imprisonment for less than two years
or to less punishment.
GENERAL
The offences in section 86 are prescribed so that those in authority will have a suitable
means of suppressing quarrels or disturbances in circumstances in which they might have
serious consequences. For example, a fight in a ship, in an aircraft, or in a place where
explosive or valuable and delicate apparatus is situated, might produce extremely serious
results. Charges should not be laid indiscriminately under this section for mere isolated
squabbles.
WORDING OF CHARGE
Para. 86(a)
FOUGHT WITH A PERSON SUBJECT TO THE CODE OF SERVICE DISCIPLINE
Para. 86 (b)
USED PROVOKING SPEECHES TOWARD A PERSON SUBJECT TO THE

CODE OF SERVICE DISCIPLINE, TENDING TO CAUSE A QUARREL
86-1/3
s.86
Specimen Charge
USED PROVOKING SPEECHES TOWARD A PERSON SUBJECT TO THE

CODE OF SERVICE DISCIPLINE, TENDING TO CAUSE A QUARREL
Particulars: In that he, on (date), at (indicate place of offence), said to (number, rank and
name) "If you weren't afraid of him, you would take (rank and name) outside and teach
him a lesson" or words to that effect.
Examples of Charges
QUARRELLED WITH A PERSON SUBJECT TO THE CODE OF SERVICE

DISCIPLINE
Particulars: In that s/he, on or about (date) at building 10, (place) did enter into a quarrel
with (number, rank and name)
Particulars: In that s/he on (date), at (place) said to (number, rank, name) “Go ahead
coward, I want you to hit me. Come on coward, you don’t have the guts to hit me.”or
words to that effect.
ELEMENTS OF THE OFFENCE - Quarreling

1. Identity of the accused
3. Indication of what was said
4. Words were said by the accused
5. Words directed at person subject to the Code of Service Discipline
6. Words were provoking
7. Words were intended to cause a quarrel
8. Blameworthy state of mind
ELEMENTS OF THE OFFENCE - Fighting
1. Identity of the accused
86-2/3
s.86
3. That the accused fought with another person who was subject to the Code of Service
Discipline
4. Blameworthy state of mind.
SUMMARY OF LAW
Cases/Examples
In R v WO Tozer, 50/92 (DCM), the accused pleaded guilty to s.86. He said to a Private,
“Go ahead, I want you to hit me. Come on you coward, you don’t have the guts to hit
me, pussy” or words to that effect. He was fined $2500.00 and given a severe reprimand.
In R v LS Ballantine, 08/96 (SCM), the accused was upset with a fellow sailor for
spreading false rumours about her on HMCS IROQUOIS. She grabbed the other sailor
by the wrist and told him “if he didn’t shut his mouth, she would have someone shut it for
him.” She pleaded guilty for use of provoking speeches toward a person subject to the
Code of Service Discipline tending to cause a disturbance, plus being absent without
leave for four hours. She was sentenced to a severe reprimand and a fine of $3500.00.
In R v Cpl Bailey, 09/00 (SCM), the accused and the victim were attending a course
graduation party. The two were involved in a heated debate all evening. The debate
turned into an argument and the victim decided to leave. The accused then hit the victim
in the head with a beer bottle, cutting an arteriole and cartilage in the victim’s left ear.
The accused was found guilty of s.86 (Quarrelling), s.130 (s. 267(b) CCC - Assault
Causing Bodily Harm), and s.97 (Drunkenness). He was sentenced to 90 days detention
(suspended) and a $3,000.00 fine.
86-3/3
s.90

s. 90 – ABSENCE WITHOUT LEAVE
STATUTE
(1) Every person who absents herself without leave is guilty of an offence and on
conviction is liable to imprisonment for less than two years or to less punishment.
(2) A person absents herself without leave who
(a) without authority leaves her place of duty;
(b) without authority is absent from her place of duty; or
(c) having been authorized to be absent from her place of duty, fails to return to
her place of duty at the expiration of the period for which the absence of that
person was authorized."
GENERAL
Absent Without Leave is the most common offence in the Canadian Forces. The vast
majority of charges under s.90 are dealt with at the summary trial level. In most cases,
where s.90 charges are dealt with at court martial, the individual will have been charged
with other offences that occurred while the member was absent without leave.
given the right to elect court martial. However, in situations where the officer exercising
summary trial jurisdiction concludes that a punishment of reduction in rank, detention, or
fine in excess of 25% of monthly basic pay would be warranted if the accused were found
guilty of the offence, the member must be given the right to elect court martial.
WORDING OF CHARGE
Specimen Charges
Absented Herself Without Leave
Particulars: In that she, at (time) hours, (date), without authority was absent from (unit)
and remained absent until (time) hours, (date).
Particulars: In that she, on (date), at (indicate place of offence), without authority was
absent from colour-hoisting parade.
90-1/6
s.90
Particulars: In that she failed to return to (unit), at (time) hours, (date), on expiration of
his annual leave, and remained absent without authority until (time) hours, (date).
Examples of Charges
ABSENTED HER/HIMSELF WITHOUT LEAVE
Particulars: In that s/he, on (date) at (place), without authority, was absent from the
Area Sergeants Major Conference.
Particulars: In that s/he at (time & date) on board HMCS (ship’s name), at (place)
without authority, was absent from his/her duty watch and remained absent until (time &
date).
Particulars: In that s/he failed to return to the Garrison Support Unit (place) at (time and
date) on expiration of his leave, and remained absent without authority until (time &
date).
Particulars: In that s/he, at (date & time), without authority was absent from the
Canadian Forces Support Unit (place) Health Care Centre and remained absent until (date
& time).

1. The identity of the accused as the offender,
2. Date and place of offence occurred,
3. Absent without authority / leaves place of duty / does not return at end of time
specified
From 2005 CM 33 referring to R. v. Gauthier [1998] C.M.A.J. No. 4:
3. A duty upon the accused to be in a given place at a specified time;
4. That the accused failed to be there;
5. That the accused did not have authority for failing to be there; and
6. A mental element; that is to say, knowledge on the part of the accused of the duty
imposed upon him or her to be at the specified place.
90-2/6
s.90
SUMMARY OF LAW
Notes from QR&O 103.23
(A) The offence of absence without leave is defined in subsection 90(2) of the
National Defence Act. When the offence has been committed it is regarded as
continuing until such time as the absentee returns to the absentee's place of duty or
until the absence ceases to be "without authority". Accordingly, the circumstances
under which it was committed, the length of the absence and the circumstances of its
termination, e.g., by apprehension or surrender, are material to the gravity of the
offence and taken into consideration for this purpose and for administrative purposes,
having regard to the effect on pay which is a consequence of a conviction for this
offence.
(B) A person who escapes from custody and thus absents himself without leave may
legally be charged and convicted of both offences; but as a rule, it is preferable to
charge only the absence without leave, alleging in the particulars, for purposes of
increasing the gravity of the offence, that it was committed "when in custody".
(C) An officer or non-commissioned member charged with desertion or attempted

desertion may, under section 133 of the National Defence Act (see article
103.62 – Conviction of Related or Less Offences), be found guilty of absence
without leave; but if charged only with absence without leave he cannot be convicted
of desertion or attempted desertion.
DRAFTING CHARGES
(D) The particulars should state the date that the absence began and the date that it
ended and, if significant for the purpose of proving a day's absence, the hour of
departure and return.
(E) Where a person is charged with being absent from a particular parade, that parade
should be specified in the statement of particulars. (It must be proved that the accused
knew or should have known of the time and place appointed by the commanding
officer, but the place for the parade need not have been specifically mentioned if it
can be proved that it was well understood and known to the accused. Such a charge
should seldom be preferred unless orders stating both the time and place of parade can
be produced.)
INTENT
(F) It is not necessary to establish that an absentee had a specific intent to commit
the offence. As long as there are no circumstances amounting in law to a defence (and
it may be so presumed until it is raised by the defence) the fact of the absence without
authority together with the knowledge the absentee had or is presumed to have had as
90-3/6
s.90
to his duty to be where required if wanted is sufficient to establish a guilty state of

mind, whether the absence was deliberate or arose from forgetfulness, carelessness or
negligence.
TERMS USED IN DEFINITION
(G) What the accused's "place of duty" was is a question of fact to be decided by the
service tribunal from the evidence submitted to it and the service tribunal must call
upon military knowledge, practice and custom to determine the issue in each case.
Normally it is the duty of an officer or non-commissioned member to be with his unit
at a place where he ought to be found if wanted or where his duties take him. However
he may have a place of duty with a particular part of the unit at a particular time and
place and his duty is to be there at that time. Subject to Note (1), it is customary to
regard an officer or non-commissioned member in hospital as being at his place of
duty.
(H) The expression "without authority" in section 90 of the National Defence Act
signifies that the accused was absent with neither the approval of a competent
superior nor the sanction of law, practice or custom. It has been the practice not to
regard a non-commissioned member as absent without authority whom while on
authorized leave becomes too ill to travel without severely affecting his health or is
detained by civil or service authorities and thus unable to report on time, unless he
fails to rejoin at the earliest opportunity after his recovery or release from custody
and then regard him as being absent only from the date on which he could have
returned.
TERMINATION
(I) Absence without leave terminates when an absentee returns to the place where for
the time being the absentee has a duty to be. It has been customary to consider
absence as terminated on the date an absentee finally surrenders to or is apprehended
by civil or service authorities, or is admitted to a military hospital, and normally this
is the date which should be taken. An absentee who is admitted to a civilian hospital
or is arrested by the civil police and committed to civil custody is generally regarded
as having ceased to be absent on the date of his admission or arrest but if he does not
rejoin his unit as soon as practicable after discharge from hospital or release from
civil custody, he may be regarded as having been absent without leave from the time
he first was absent until he is apprehended or surrenders.
(J) The mere reporting by an absentee to a civil or military authority will not of itself
terminate absence without leave nor will the mere giving of orders to an absentee to
return to his unit. If, however, on reporting the absentee is taken into custody or is
treated under service orders, custom or practice as having ceased to be absent, his
absence will be considered to have terminated.
DRAFTING CHARGES
90-4/6
s.90
(K) Illustrations of circumstances which might be considered not to excuse an offence

under this section:
(i) the lack of orders to report when an officer or non-commissioned member has
been told the orders as to reporting will be sent to him at home. (There is a duty to
ask for orders should none reach him within a reasonable time and the period
between the date any honest and reasonable person would recognize as the date
such orders should normally have arrived and the date of actually reporting may
be regarded as absence without leave);
(ii) getting so drunk as to be unable to return in time;
(iii) going to sleep when returning to duty, thereby being carried past his station
and unable to get back in time;
(iv) losing his railway ticket and having insufficient money to get back in time;
(v) failing to leave home in time to be on parade;
(vi) failing to catch a train to return from leave on time;
(vii) failing to obey an order of which he ought to have been aware (although
misapprehension arising from want of clarity in the order may be ground for
excuse).
Cases/Examples
In R v Pte Bailey, 42/99 (SCM), the accused was 15 minutes late for training which began
at 0730. He had three previous convictions under s.90. He was fined $350.00.
In R v Capt Hassan,02/98 (SCM), the accused, a medical officer, was absent from his
place of duty for three days without authority. While he was absent he was working at a
civilian medical facility. He was fined $8000.00.
In R v MS Lindahl, 01/91 (SCM), the accused was absent on several occasions from his
ship, once while he was on Duty Watch. He was sentenced to a fine of $3200.00, a
severe reprimand, and a forfeiture of seniority.
In R v Cpl White, 23/97 & 22/97 (SCM) the accused pleaded guilty to being absent
without leave for 177 days 23 hours and for three days. He also pleaded guilty to a charge
under s.101 (Escaped Lawful Custody). He was sentence to 45 days detention and
dismissal.
In R v CWO Ward, 06/92 (DCM), the accused was absent from the Area Sergeants Major
Conference being conducted in CFB Esquimalt. He was also charged under s.112 (Using
90-5/6
s.90
a CF Vehicle for an Unauthorized Purpose) and was sentenced to a reduction in rank to

Warrant Officer.
90-6/6
s.93

s. 93 CRUEL OR DISGRACEFUL
CONDUCT
STATUTE
93. Every person who behaves in a cruel or disgraceful manner is guilty of an offence and
on conviction is liable to imprisonment for a term not exceeding five years or to less
punishment."
GENERAL
This charge is rarely laid. The maximum sentence for cruel or disgraceful conduct is
significant and is a reflection of the seriousness of this offence. When charges are laid,
there are often accompanied by charges in the alternative to which the accused may plead
in order to have the s.93 charges stayed. In most cases where s.93 charges are laid, the
accused will have been drinking. Drunkenness is not a defence to this charge.
Racial slurs and acts of sexual perversion are examples of disgraceful conduct.
WORDING OF CHARGE
The statement of the offence in a charge under section 93 should be in the following
form:
cruel
Behaved in a manner
disgraceful
Specimen Charge
BEHAVED IN A CRUEL MANNER
Particulars: In that he, on (date), at (indicate place of offence), burned a dog alive.
93-1/2
s.93
Examples of Charges
BEHAVED IN A DISGRACEFUL MANNER
Particulars: In that he, on or about (time & date) at (place) ejaculated on (person)
Particulars: In that s/he on (date), at (place), while intoxicated and in uniform, did
assault (person), a civilian employee of the establishment.

1. The identity of the accused,
3. Accused behaved in a cruel or disgraceful manner
SUMMARY OF LAW
Offences involving indecency or unnatural conduct might he charged under this section
but, as a general rule, should be charged under section 130 of the National Defence Act
(see article 103.61 – Offences Against other Canadian Law), that is to say, the service
offence should be the offence prescribed in the Criminal Code.
Cases/Examples
In R v Cpl Lauzon, 20/97 (SCM), the accused was found guilty of s.93, s.97
(Drunkenness), s.130 (s.271 of the Criminal Code (Sexual Assault)), and s.130
(s.173(1)(a) (indecent Exposure)of the Criminal Code). He, while drunk, exposed
himself to several people and masturbated on another who was asleep at the time. He
was sentenced to 90 days imprisonment. Appealed (CMAR 1998 No. 415)
In R v Capt Buchanan, 31/98 (SCM), the accused, while drunk and in uniform, assaulted
a female employee of the CANEX mall at CFB Gagetown. Charges under s.93 were
stayed and the accused pleaded guilty to a charge of assault and drunkenness. He was
fined $4000.00 and given a severe reprimand.
93-2/2
s.95

s. 95 ABUSE OF SUBORDINATES
STATUTE
95. Every person who strikes or otherwise ill-treats any person who by reason of rank or
appointment is subordinate to him is guilty of an offence and on conviction is liable to
imprisonment for less than two years or to less punishment."
GENERAL
This offence is similar in many respects to s.84, Striking or Offering Violence to a
Superior Officer. This charge should be laid whenever an assault is committed on a
subordinate by a superior.
Ill-treatment of a subordinate includes the offering of violence toward the individual,

grabbing, kicking, head butting and other forms of violence. “Striking” is limited in
scope to mean a blow that is struck with the hand or fist or something which is held in the
hand.
This charge is often laid along with charges under s. 97 (Drunkenness). Abuse of
Subordinates, as part of the family of assault offences, is a general intent offence.
Drunkenness is not a defence to a charge under this section.
WORDING OF CHARGE
Struck rank
a person who by reason of was subordinate to her
Ill-treated appointment
Specimen Charge
STRUCK A PERSON WHO BY REASON OF RANK WAS SUBORDINATE TO HIM
Particulars: In that he, on (date), at (indicate place of offence), struck with his fist
(number, rank and name), in the face.
95-1/3
s.95
Examples of Charges
ILL-TREATED A PERSON WHO BY REASON OF RANK WAS SUBORDINATE TO

HIM/HER
Particulars: In that s/he, on the evening of (date) ill-treated (number, rank and name),
by grabbing him/her around the head, neck and throat.
Particulars: In that s/he, on or about (date) at or near (place), said to (number, rank,
name), “You (racial slur), I’ll get you” or words to that effect.
STRUCK A PERSON WHO BY REASON OF RANK WAS SUBORDINATE TO

HIM/HER
Particulars: In that s/he, on or about (date) at or about 2000 hrs, at the Officers’ Mess,
(place) struck (number, rank and name) on the face with his/her hand.
Particulars: In that s/he between (dates) on board HMCS (ship’s name) struck with
his/her hand (number, rank and name).


3. Identity of the accuser
4. Evidence of how ill treatment or striking took place
5. By reason of rank, the victim was a subordinate
From 2007 CM 3018:
3. That the accused ill-treated another person (acted cruelly in disregarding or taking
pleasure in the other person’s pain or suffering);
4. That the other person was subordinate to the accused by rank or appointment;
5. That the accused knew the other person was subordinate to him.
95-2/3
s.95
SUMMARY OF LAW
"Strikes" means that a blow is struck with the hand or fist or something which is held in
the hand. Violence other than striking, such as butting with the head, grabbing by the
throat, and kicking, is included, for the purposes of section 95 of the National Defence
Act, under "ill-treatment".
Striking a sentinel may be a more serious offence under section 75 of the National
Defence Act (see article 103.08 – Offences Related to Security).
“Subordinate” is easily determined when the accused is of higher rank than the victim. In
cases where the victim is subordinate to the accused because of appointment, that
relationship will have to be proved.
Cases/Examples
In R v Maj Roy, 19/95 (SCM), the accused pleaded guilty to having punched a Captain in
the face while they were in the officers’ Mess in Toronto. He was sentenced to a Severe
Reprimand and a fine of $7000.00.
In R v LCol Tysiaczny, 15/97(SCM), the accused pleaded guilty to having ill-treated a

subordinate. While at graduation party for a Flight Surgeons’ course at Exhibition Place
in Toronto, he grabbed Lieutenant (N) by the head, neck and throat and wrestled her to
the ground. He was sentenced to a severe reprimand and given a fine of $1000.00.
In R v MCpl Kennedy, 36/91 (DCM), the accused was found guilty of harassing and
making racial slurs toward a coloured soldier who was subordinate to him. He was
sentenced to a severe reprimand and a fine of $500.00.
95-3/3
s.97

s. 97 DRUNKENNESS
STATUTE
Section 97 of the NDA provides:
97. (1) Drunkenness is an offence and every person convicted thereof is liable to
imprisonment less than two years or to less punishment, except that, where the offence is
committed by a non-commissioned member who is not on active service or on duty or
who has not been warned for duty, no punishment of imprisonment, and no punishment
of detention for a term in excess of ninety days, shall be imposed.
(2) For the purposes of subsection (1), the offence of drunkenness is committed where a
person, owing to the influence of alcohol or a drug,
(a) is unfit to be entrusted with any duty that the person is or may be required to
perform; or
(b) behaves in a disorderly manner or in a manner likely to bring discredit on Her

Majesty’s service."
GENERAL
A charge under s.97 must arise from the member being too drunk to perform any duty
which s/he may be required to perform, or from the member behaving in such a
disorderly manner as to bring discredit on Her Majesty’s service. The “duty” aspect must
be reasonable and foreseeable. For example, a member who has been drinking in the
mess on a Friday evening and has no weekend duties should not be charged under sub-
paragraph 2(a) of this section. If however, that person behaves in a disorderly manner
due to her drunkenness, she may be charged under sub-paragraph 2(b), irrespective of
whether or not she is unfit to perform a foreseeable duty.
This offence is one of the most common offences dealt with at the summary trial level.
In most cases, other charges such as quarreling, or Criminal Code charges such as
assault, or mischief will accompany the charge under s.97.
97-1/4
s.97
WORDING OF CHARGE
Specimen Charge
DRUNKENESS
Particulars: In that s/he, on (date) at (indicate place of offence) while on duty at the
orderly room of (unit) was drunk.
Examples of Charges
Particulars: In that s/he on (date) at Bleachers Canex mall at (place) was drunk.
Particulars: In that s/he, on (date) while on board HMCS (ship’s name) while alongside
at HMC Dockyard, CFB Halifax, Nova Scotia, was drunk.

In order to establish an offence under s.97 of the NDA, the following essential elements
must all be proven beyond a reasonable doubt:

2. Date of the offence
3. Place of the offence
4. The fact that the accused was drunk because of indulgence in alcohol or drug
5. Individual is unfit to entrust with any duty likely to be imposed on her or behaves in a
disorderly manner or in a manner likely to bring discredit on Her Majesty’s Service.
6. Guilty state of mind.
3. That the accused was under the influence of alcohol or drug;
4. That the accused consumed the alcohol or drug voluntarily; and
5. That the accused was unfit to entrust with any duty likely to be imposed on him, or
that the accused behaved in a disorderly manner or in a manner likely to being
discredit on Her Majesty’s service.
97-2/4
s.97
SUMMARY OF LAW
Drunkenness for the purposes of the NDA means that the individual, owing to the
influence of alcohol or another drug:
(a) is unfit to be entrusted with any duty that the person is or may be required to
perform; or
(b) behaves in a disorderly manner or in a manner likely to bring discredit

on Her Majesty’s service."
Proof of drunkenness can be established through the observations of reasonable persons.

Slurred speech, inability to walk in a straight line and the scent of alcohol on the
accused’s breath are some of the signs of drunkenness. Breathalyzer or blood tests are
not required to establish this offence. For example, in R v LCol Bryan1 the accused was
the Commanding Officer of the 1PPCLI battle group in Kosovo. Contrary to the policy
as set for the Canadian contingent he became intoxicated while attending a function with
another contingent. When he arrived back at the Canadian camp he appeared
uncoordinated, unbalanced and his speech was slurred. His DCO concluded that he was
drunk and put him to bed for the evening. Upon being charged, LCol Bryan was relieved
of his command and returned to Canada. At his court martial LCol Bryan pleaded guilty
and was sentenced to a fine of $1500.00 and a reprimand.
The mens rea (guilty state of mind) for drunkenness is established through the accused
voluntarily drinking enough to become drunk. Colonel Brais, as the president of the
court in R v Capt Buchanan, noted that in a charge of drunkenness, the guilty intent is
established by the voluntary consumption of alcohol. If one consumes alcohol
voluntarily to the point drunkenness, the intent to become drunk is established.2
The fact that the accused person was on duty at the time aggravates the offence of
drunkenness; but, in general, when a person is unexpectedly called on to perform some
duty for which the person has not been warned and is found to be unfit for duty by reason
of excessive indulgence in alcohol, the person should be dealt with as for drunkenness
not on duty.3
It is not necessary for the prosecutor to prove that the accused, through liquor or a drug,
was in any extreme condition nor is the accused entitled to an acquittal by showing that
on the occasion in question he could, or actually did, do some duty without manifest
failure. In short, if the service tribunal, upon considering all of the evidence, comes to the
conclusion that he was, through the effect of liquor or a drug unfit to be entrusted with his
duty, he may be found guilty on a charge under section 97 of the National Defence Act.4
1
R v LCol Bryan, (7&14 December 1999 & 18 January 2000) Camp Maple Leaf, Skopje, Macedonia, and
Hull, Quebec, Court-Martial Transcript 46/99.
2
R v Capt Buchanan, (22 September 1998), CFB Gagetown, Court-Martial Transcript 31/98at 11.
3
QR&O 103.30 note A
4
QR&O 103.30 note B
97-3/4
s.97
In a case of this nature, should there be any doubt as to the reason for the accused’s
condition, it is desirable that the opinion of a medical officer be obtained at once in order
that the medical officer may be able to testify as to whether the condition of the accused
is attributable to illness or to the influence of alcohol or a drug.5
A witness testifying that an accused person was drunk must state the reasons for his
opinion.6
Cases/Examples
In R v Capt Buchanan, 31/98(SCM), the member was found guilty of s. 97 NDA and s.
130 (s.266 CCC-Assault). Section 93 NDA (Cruel and Disgraceful Conduct) and s. 129
NDA (Aggressive behaviour and abusive language) were stayed. Fined 4,000.00$ and
severe reprimand.
In R. v. Maj Doucette, 16/94(GCM), the member was found not guilty of s. 97 NDA. The
prosecution in that case failed to establish the identification of the accused through either
the witnesses pointing her out or giving a detailed description of her. The mere
mentioning of her name and referring to “a female Canadian Major in a flight suit in
Tinker AFB”did not suffice to prove the essential element of identification.
In R. v. MBDR McMullin, 34/98(SCM) the member was found not guilty of section 97
NDA (Drunkenness). The president of the court in finding him not guilty stated, there is
“…reasonable doubt in my mind as to whether [he] was drunk or unfit to perform any
duty that he may be required to perform on the evening of 6th June. This was the start of
his weekend. Accordingly, I’m not satisfied that the offence of drunkenness has been
made out.” 7
In R. v. Maj Johnstone, 22/94(GCM) the member pleaded guilty to s. 97 NDA

(Drunkenness) and s.129 NDA (Racial Harassment). He was fined $500.00 and given a
severe reprimand.
In R v. BDR Keenan, 23/96(SCM) the member pleaded guilty of s. 97 NDA, and s.130 (s.
266 CCC (Assault)). Found guilty of s.130 (s.266 CCC (Assault) and s. 90 NDA
(AWOL). Found not guilty of s.130 (s.267 (1)(a) CCC-Assault with a Weapon)).
Sentenced to 60 days imprisonment.
In R. v. OS Allen, 35/90(SCM), the member was found guilty of s. 97 NDA. Found guilty
of s. 84 NDA and s.130 (s.267 (1)(a) CCC- Assault with a Weapon). A second charge
under s.130 (s.267 (1)(a) CCC) was stayed. Sentenced to 4 months detention.
5
QR&O 103.30 note C
6
QR&O 103.30 note D
7
R .v MBDR McMullin (28-30 April 1998) CFB Petawawa, Court-Martial Transcript 34/98 at 183.
97-4/4
s.112

s. 112 - UNAUTHORIZED USE OF VEHICLES
STATUTE
Every person who
(a) uses a vehicle of the Canadian Forces for an unauthorized purpose,
(b) without authority uses a vehicle of the Canadian Forces for any purpose, or
(c) uses a vehicle of the Canadian Forces contrary to any regulation, order or
instruction,
(2) is guilty of an offence and on conviction is liable to imprisonment for less than two
years or to less punishment. R.S., c. N-4, s. 102.
GENERAL
When considering charges under s.112, the fundamental issues that must be resolved are
that a CF vehicle1 was used and that that vehicle was used2 without authority3 which has
stemmed either from regulation or superior orders4. If the vehicle does not belong to the
CF, then the member cannot be convicted, nor plea guilty to the offence5. CF vehicles
include rented vehicles when used for CF purposes (official purpose)6.
In R v CPO2 Belleville, 05/00 (SCM) it was ruled by the President of the court, LCol
Menard, that DND vehicles are vehicles of the Canadian Forces.
Vehicles owned by the United Nations and operated by Canadian Forces personnel are
not “CF vehicles”7
1
This includes rented vehicles for the purpose of CF such as MP duties.
2
R. v. MCpl. Ukleja, 165/83 (DCM), at 172.
3
R. v. Pte Glover, 31/82 (DCM), at 43; R. v. Pte Laidlaw, 164/83 (SCM), at 6; R. v. MCpl. Ukleja, 165/83
(DCM), at 172.
4
R. v. Pte Laidlaw, 164/83 (SCM), at 6.
5
R. v. Pte Laidlaw, 164/83 (SCM), at 6.
6
R. v. Capt. Bell, 49/92 (SCM), at 140.
7
In Rwanda in 1994, a Cpl serving with OP LANCE was tried and convicted at summary trail for
unauthorized use of a vehicle. The vehicle belonged to the UN and the accused was a driver for the UN
Headquarters staff. The accused successfully redressed her conviction because the UN vehicle was not a
CF vehicle.
112-1/6
s.112
Whereas one may have authority to use a military vehicle, it does not imply that every
use of that vehicle is authorized. For example, a MSE operator may have authority to
drive a truck. That authority, however, does not extend to her being permitted to use the
truck to take a load of lumber from a lumber store to her personal residence, or for any
other personal purpose.
Subsection 112(a) NDA contemplates the unauthorised use of a CF vehicle even though,
the driver who holds a service operator's permit (DND 404)8.
Subsection 112(b) NDA contemplates an offence where a member without a service

operator's permit9 uses a vehicle for any purpose10.
WORDING OF CHARGE
Used a vehicle of the Canadian Forces for an authorized purpose
Without authority, used a vehicle of the Canadian Forces.
a regulation
Used a vehicle of the Canadian Forces contrary to an order
an instruction
Specimen Charges
Para. 112 (a)
Used A Vehicle of the Canadian Forces for an Unauthorized Purpose
Particulars: In that he, on (date), at (indicate place of offence), without authority used
vehicle (type and CFR number), a vehicle of the Canadian Forces, to transport him from
his residence at (place), in the city of, (city name)to the civil airport in the vicinity of that
city when proceeding on leave.
Para. 112 (b)
Without Authority Used A Vehicle of the Canadian Forces
Particulars: In that he, on (date), at (indicate place of offence), without authority,

drove vehicle (type and CFR number), a vehicle of the Canadian Forces, between the
Officers' Mess at (unit), and the railway station at (place).
8
R. v. Pte. Laidlaw, 164/83 (SCM), at 5.
9
R. v. MCpl. Ukleja, 165/83 (DCM), at 172
10
R. v. Pte. Laidlaw, 164/83 (SCM), at 5.
112-2/6
s.112
Examples of Charges
Without Authority Used A Vehicle of the Canadian Forces
Particulars: In that s/he, on or about (date), within the region of (place), without
authority used (CFR Number), a vehicle of the Canadian Forces.
Used A Vehicle of the Canadian Forces for an Unauthorized Purpose
Particulars: In that s/he, between approximately (times) on (date), without authority

used a vehicle of the Canadian Forces, namely a white 1990 Ford Econoline van License
BPU 971 (Nova Scotia), for a private purpose, to wit: to transport himself from his
residence at (place) to a location at (place) and back, a distance of approximately 70 km.

In order to establish an offence under s.112 of the NDA, the following essential elements
3. Offender used11 the vehicle,
4. The vehicle was a vehicle of the CF,
5. The vehicle was used for a purpose without authority, and
6. The member used the vehicle12 with intent.
SUMMARY OF LAW
(A) The class of offence contemplated by paragraph 112(a) of the National Defence Act
is the use of a vehicle for some personal purpose even though the driver holds a service
operator's permit, whereas paragraph 112(b) of the National Defence Act contemplates a
case wherein a person without a service operator's permit uses a vehicle for any purpose,
whether such purpose in itself is proper or not. In this case, however, it would be possible
for an unauthorized driver to put forward an excuse. For example if a vehicle were parked
near a burning building, a person, even though not holding a driver's permit, should
obviously take reasonable steps to remove it and would not render himself liable under
this section for so doing.
11
R. v. MCpl. Riley, 06/99 (SCM), at 9.
12
112-3/6
s.112
(B) Paragraph 112(c) of the National Defence Act applies to a great range of
circumstances not covered by either 112(a) or (b) of the National Defence Act. For
example, a driver who carries a civilian whom he is not authorized to transport cannot be
charged with using a vehicle for an unauthorized purpose if he were on a duty run at the
time. In those circumstances it would be necessary to lay a charge under paragraph
112(c) of the National Defence Act and the particulars of that charge should contain a
reference to the regulation, order or instruction alleged to have been violated.
Pursuant to section 112 of the National Defence Act, the term "use" has been applied as
"to drive"13, "to operate"14 and "to transport"15.
“Use” is defined as follows:
The Dictionary of Canadian Law16
Use: (v)
"1 … Utilization or employment of, with some aim or purpose …17
2. … Connotation of the actual carrying into action, operation or effect …18
4. … The working, manipulation, operation, handling or employment of the vehicle, not

just merely making use of it by riding in it. …19"
The Concise Oxford Dictionary20
"1. Cause to act or serve for a purpose; bring into service; avail oneself of (rarely uses the
car; use your discretion)"21
In R. v. MCpl. Riley, the court stated:
"…Now, how do you use the vehicle? Well, I suppose you can operate it, in some way
you can drive it, whatever, its use in the sense of use."22
13
14
15
R. v. Capt. Bell, 49/92 (SCM), at 139.
16
Daphne Dukelow & Betsy Nuse, The Dictionary of Canadian Law, Second Edition (Scarborough:
Carswell, 1995)
17
Daphne Dukelow & Betsy Nuse, The Dictionary of Canadian Law, Second Edition (Scarborough:
Carswell, 1995), at 1313; Andison Estate, Re (1986), 44 Man. R. (2d) 135, at 137 (Q.B.).
18
Daphne Dukelow & Betsy Nuse, The Dictionary of Canadian Law, at 1313; R. v. Change (1989), 50
C.C.C. (3d) 413, at 422 (B.C.C.A.).
19
Daphne Dukelow & Betsy Nuse, The Dictionary of Canadian Law, at 1313; Watts v. Centennial
Insurance Co. (1967), 62 W.W.R. 175, at 177, [1969] I.L.R. 1-220, 65 D.L.R. (2d) 529 (B.C.S.C.)
20
H.W. Fowler and F.G. Fowler, The Concise Oxford Dictionary of Current English, Ninth Edition
(Oxford: Clarendon Press, 1995)
21
H.W. Fowler and F.G. Fowler, The Concise Oxford Dictionary of Current English, Ninth Edition
(Oxford: Clarendon Press, 1995), at 1545.
22
112-4/6
s.112
Cases/Examples
In R. v. Pte Laidlaw, 164/83, (SCM), the member pleaded guilty of section 102 NDA
(now 112 NDA) (Used a CF Vehicle for an Unauthorised purpose) in that, he used a CF
2-1/2 ton SMP vehicle to transport him from Unsingen Altes Lager to the London Pub in
the town of Munsingen, in the Federal Republic of Germany. The member was fined
400.00$.
In R. v. MCpl Ukleja, 165/83, (DCM), the member was found guilty of section 102 NDA
(now section 112 NDA) (Used a CF Vehicle for an Unauthorised purpose) in that, he
drove a CF 2 1/2 ton vehicle without a valid service operator's permit (DND 404). The
member’s seniority was forfeited for a period of one year and eleven months.
In R. v. Lt Chapdelaine, 148/84, (DCM), the member was found guilty of section 102
NDA (now s.112 NDA) (Without authority used a CF vehicle) in that, he drove a SMP 1/4
ton (Jeep) without a valid service operator's permit (DND 404). The member received a
reprimand.
In R. v. PO1 O'Malley, 60/85, (SCM), the member pleaded guilty of section 102(a) NDA
(now section 112 NDA) Used a CF Vehicle for an Unauthorised purpose () in that, he
used a CF Dodge Ram pickup truck to transport plywood to a civilian residence. The
member pleaded guilty to section 104 NDA (now section 114 NDA) (Stealing).
In R. v. Pte Clarke, 105/85, (SCM), the member was found guilty of section 102 NDA
(now s. 112 NDA) (Used a CF Vehicle for an Unauthorised purpose) in that, he used a CF
vehicle to transport him from CFB London to a flower shop in London ON and return to
CFB London.
In R. v. CWO(R) Ward, 06/92, (DCM), the member pleaded guilty to section 112(a) NDA
(Used a CF Vehicle for an Unauthorised purpose) in that, he used a CF vehicle to
transport him from CFB Esquimalt to Yakima in the State of Washington USA and return
for a personal trip. The member pleaded guilty to section 90 NDA (AWOL). The member
was reduced in rank to Warrant Officer.
In R. v. Capt Bell, 49/92, (SCM), the member was found guilty of section 112(a) NDA in
that, he used a CF vehicle to transport him from his residence to a civilian airport when
proceeding on leave. The member was also found guilty of section 117(f) NDA
(Fraudulent Offence). The member was fined 5,000.00$ and a reduction in rank to
Second Lieutenant.
In R. v. Capt Bartlett, 59/92, (SCM), the member was found guilty of section 112(a) NDA
(Used a CF Vehicle for an Unauthorised purpose) in that, he used a CF Van to transport
himself from his residence in Sydney River NS to a location near Big Bras d'Or NS and
back (approximately 70 Km). The member was also found guilty of (x4) sections 114
NDA (Stealing). The member was fined 3,000.00$ and a severe reprimand.
In R. v. Sgt Herrick, 06/97, (SCM), the accused, a member of the Military Police, pleaded
guilty to section 112(a) NDA (Used a CF Vehicle for an Unauthorised purpose) in that,
112-5/6
s.112
he used a CF Pickup Truck to transport himself to the residence of another military

person for a purpose unrelated to military police duty. The member was fined 350.00$.
In R. v. MCpl Riley, 05/99, (SCM), the member pleaded guilty to section 112 NDA (Used
a CF Vehicle for an Unauthorised purpose) in that, he used a CF vehicle without
authority. The member pleaded guilty to section 97 NDA (Drunkenness). Section 114
NDA (Stealing) for taking the vehicle was stayed. The member was sentenced to 30 days
detention (suspended).
112-6/6
s. 114
s.114 STEALING
STATUTE
114. (1) Every person who steals is guilty of an offence and on conviction, if by reason of
the person's rank, appointment or employment or as a result of any lawful command the
person, at the time of the commission of the offence, was entrusted with the custody,
control or distribution of the thing stolen, is liable to imprisonment for a term not
exceeding fourteen years or to less punishment and, in any other case, is liable to
imprisonment for a term not exceeding seven years or to less punishment.
(2) For the purposes of this section,
(a) stealing is the act of fraudulently and without colour of right taking, or fraudulently
and without colour of right converting to the use of any person, any thing capable of
being stolen, with intent
(i) to deprive, temporarily or absolutely, the owner of it or a person who has a

special property or interest in it, of the thing or of that property or interest,
(ii) to pledge it or deposit it as security,
(iii) to part with it under a condition with respect to its return that the person who
parts with it may be unable to perform, or
(iv) to deal with it in such a manner that it cannot be restored in the condition in
which it was at the time when it was taken and converted;
(b) stealing is committed when the offender moves the thing or causes it to move or to be
moved, or begins to cause it to become movable, with intent to steal it;
(c) the taking or conversion may be fraudulent, although effected without secrecy or
attempt at concealment; and
(d) it is immaterial whether the thing converted was taken for the purpose of conversion,
or whether it was, at the time of the conversion, in the lawful possession of the person
who converts it.
(3) Every inanimate thing that is the property of any person and that either is or may be
made movable is capable of being stolen as soon as it becomes movable, although it is
made movable in order that it may be stolen."
114-1/7
s. 114
GENERAL
The offence of “stealing” under section 114 of the National Defence Act is similar to
“theft” as found in section 322 of the Criminal Code of Canada. The NDA offence,
however, differentiates between “stealing”, an offence punishable by imprisonment for a
term not exceeding seven years or to less punishment; and, “stealing when entrusted with
the custody, control or distribution of the thing stolen,” an offence punishable by
imprisonment for a term not exceeding fourteen years or to less punishment. Under the
Criminal Code, unless the property stolen is a testamentary instrument, or the value of the
thing stolen exceeds $5000, the maximum penalty is two years imprisonment for
indictable offences and under summary conviction to a fine of not more than $2000 or to
a term of imprisonment not exceeding six months, or both.1
In most cases of stealing, s.114 should be preferred to charges of theft under the Criminal
Code via s.130 of the NDA. This is particularly true in cases of stealing while entrusted.
In cases where a particular form of theft is alleged, such as theft of telecommunications,
the Criminal Code may be preferred.
WORDING OF CHARGE
The statement of the offence in a charge under section 114 should be in one of the
following forms:
STEALING
his rank
Stealing when entrusted, his appointment with the custody, control or distribution of
by reason of his employment the thing stolen
a lawful command
Specimen Charges
STEALING
Particulars: In that s/he, on (date), at (indicate place of offence), stole a wristwatch

bearing the initials "_____", the property of (number, rank and name).
1
It should be noted that under article QR&O article 103.61, when dealing with a charge laid under s.130 of
the NDA, the military tribunal may impose the punishment prescribed for the offence under Part XXVII of
the Criminal Code or that other act, or impose dismissal with disgrace from her majesty's service or less
punishment. Generally, for charges laid under s.130, the tribunal will give strong consideration to the
Criminal Code sentencing provisions.
114-2/7
s. 114
STEALING, WHEN ENTRUSTED BY REASON OF HIS EMPLOYMENT, WITH

THE CUSTODY, CONTROL OR DISTRIBUTION OF THE THING STOLEN
Particulars: In that s/he, on (date), at (indicate place of offence), when employed as

steward in the bar at the Sergeant's Mess of (unit), and so entrusted with the custody,
control or distribution of the beverages there maintained for sale, stole two bottles of
Canadian whisky, part of the beverages so entrusted to him/her.
Examples – Stealing
Particulars: In that s/he, between (dates) at (place) did steal cheques No.001, 123, 124
and 125 for Royal Bank account (number) the property of (owner of the cheques).
Particulars: In that s/he, between (dates), at (place) stole public property, to wit, the
articles listed in Annex A. (Attach Annex with items listed individually)
Particulars: In that s/he on (date), at or near 1 Hangar, (place) stole 12 sheets of

4’x10’x5/8” thick gyproc building material, the property of Chamberlain Construction.
Examples – Stealing While Entrusted
Particulars: In that s/he, between (dates), at or near (place), when employed as chief
clerk at (unit) and so entrusted with the custody and control of DND Unit Acquisition
MasterCard (number) stole $1321.13 from the Department of National Defence by using
said MasterCard for personal use.
Particulars: In that s/he, between (dates) when employed at the Directorate of History
and Heritage, and so entrusted with the custody, control or distribution of military
medals, stole 10 Somalia medals, part of the medals so entrusted to her/him.
Particulars: In that s/he, between (dates), at or near (place), when employed as non-
commissioned officer in charge of non-public funds, and so entrusted with the custody,
control or distribution of the non-public funds maintained there, stole approximately
$31,055.55, part of the public funds so entrusted to her/him.
Particulars: In that s/he between (dates) at or near (place) when employed as

Administration Clerk at (unit), and so entrusted with the custody, control or distribution
of the Minor Travel Expense Claim float in the amount of $1000.00, stole the $1,000.00
so entrusted to him.
ELEMENTS OF THE OFFENCE – Stealing

2. Date and place of the commission of the offence
114-3/7
s. 114
3. The act of fraudulently and without colour of right taking or converting to the use of
any person the items listed
4. The items taken were either public property or private property not belonging to the
accused.
5. Blameworthy State of Mind – intent to deprive the rightful owner of her property
ELEMENTS OF THE OFFENCE – Stealing While Entrusted
2. Date and place of the commission of the offence
3. The act of fraudulently and without colour of right taking or converting to the use of
any person items listed
4. The items stolen were public property or private property not belonging to the
accused.
5. At the time of the stealing, the accused was entrusted by reason of employment
(aggravating factor)
SUMMARY OF LAW
The term “fraudulently”, as it relates to stealing or theft offences means dishonestly,

deceitfully or immorally.2 The Ontario Court of Appeal defined “fraudulently” to mean
“that the taking is done intentionally, under no mistake and with knowledge that the thing
taken is the property of another person.”3 It is unclear whether or not a “prank” suffices
to constitute a fraudulent intent. Courts of Appeal have split on the subject. In R v
Theroux, the Supreme Court of Canada, when reviewing fraud noted the following:
“an act of deceit which is made carelessly without any expectation of consequences, as
for example, an innocent prank or a statement made in debate which is not intended to be
acted upon, would not amount to fraud because the accused would have no knowledge
that the prank would put the property of those who heard it at risk.”4
If someone deliberately takes an item without the intention to keep it, she has temporarily
deprived the owner of the property. In Lafrance v. The Queen,5the accused had taken a
2
R v Hohne, 7-8 May 1996) CFB Toronto, Court Martial Transcript 17/96 at 8, see also
R v Pohjolainan, (2-3 June 1999), CFB Gagetown, Court Martial Transcript 13/98 at 12
3
R v Wilkins, [1964] 2 O.R. 365, 44 C.R. 375(C.A.) at 383.
4
R v Theroux [1993] 2 S.C.R. 5 at
5
Lafrance v. The Queen, [1975] 2 S.C.R. 201
114-4/7
s. 114
car with the intention of returning it later. The Supreme Court was faced with the issue
of whether this amounted to theft. Martland J. (for the majority) held that it did and that
the taking was fraudulent, at p. 214: "The taking was intentional, under no mistake and
with knowledge that the motor vehicle was the property of another. In my opinion this
made the taking fraudulent."
In order to prove that an article is capable of being stolen, it must be established that
some person other than the accused owns it and, though the owner may be a person
unknown, an indication must be given in the charge of his identity, at least by describing
such owner in relation to some circumstances. 6
The property stolen should be described in detail. It is improper to allege that the accused
stole certain named things and "other articles" or “numerous items”.7 Items should be
listed in the body of the charge, or, in the case where many items have been taken, should
be listed in a separate annex attached to the charge sheet. For example, in R v Lowe8 the
accused allegedly stole five items. The charge sheet read in part, “stole public property,
to wit, the articles listed in Annex A.”
To constitute theft, the taking or conversion mentioned in paragraph 114(2)(a) of the

National Defence Act must not only be done with the necessary intent but also must be
done fraudulently and without colour of right.9
The phrase "colour of right" in s.114 (2)(a) of the National Defence Act refers to an
honest belief in a state of facts which, if it existed, would furnish a legal justification or
excuse for the act. For example, a person who takes possession of property in the belief
that it is his own is not guilty of stealing even though his belief may be mistaken.
Reasonableness of the mistake does not apply, as the defence is colour of right, not
mistake. However, if the claim of colour of right is so absurd as to be unbelievable, the
trier of fact can take the reasonableness of the explanation into account in determining
whether or not to believe the individual.10 As the Supreme Court of Canada noted in
Hewson v The Queen:
“the unreasonableness of a belief when objectively considered does not necessarily
destroy the honesty of the belief, but the unreasonableness may be considered along with
other evidence in determining whether the Crown has established that these articles were
taken without colour of right.”11
Professor Stuart notes the following:
“In the cases in which the colour of right defence operates, the requirements of the
defence are now reasonably clear. There must be a mistake rather than simple ignorance,
advertance rather than not thinking at all. It is accepted that the belief must be as to a
legal rather than a moral right. Since the offences for which the defence operates are full
6
QR&O 103.46, note B.
7
QR&O 103.46, note C.
8
R v Lowe, (10-14 December 1996) CFB Cold Lake, Court-Martial Transcript 32/96.
9
QR&O 103.46, note D.
10
R v Lowe, supra note at 320.
11
Hewson v The Queen, (1978) 42 C.C.C. (2d) 507 at 513.
114-5/7
s. 114
mens rea offences and none of the colour of right clauses import reasonability, the courts
have…consistently required the mistake to be honest and not necessarily reasonable.”12
As an example, in the case of R v Howson13 the accused had posted “no parking’ signs on
his private property. He had a trespasser’s vehicle towed away and was charged with
theft. Although Mr. Howson was mistaken in his belief that he had the right to have the
vehicle towed away and impounded, he had a valid defence in colour of right in that he
believed that he had the right to tow and impound the vehicle.
A colour of right defence is not made out where the accused merely believes that no one
would object to the taking of the property.14
The words "converting" in paragraph 114(2)(a) and "conversion" in paragraphs 114(2)(c)

and (d) of the National Defence Act mean the wrongful appropriation and application of
the property of another to one's own use.15
Where a systematic course of petty thefts from the same owner has been perpetrated over
a period, it is not necessary to charge each act as a separate offence. The transaction may
be treated as one continuous act of stealing and charged in a single charge in which the
total amount involved is set out.16 For example, in R v Hohne,17 the accused stole
approximately $31,055.55 over a period of ten months. All of the incidents of theft were
combined into one charge.
Cases/Examples – Stealing
In R v Cpl Sparkes, 14/00(SCM), the accused pleaded guilty to stealing $10.00 from a
canteen cash box. He was fined $350.00 in a joint submission.
In R v MCpl Castillo, 21/00(SCM), the accused was found guilty of the lesser offence of
stealing after having been charged with stealing when entrusted for using a unit credit
card for his personal use. He also pleaded guilty to charges under s.112(a), s.117(f) and
s.129. He was sentenced to a reduction in rank to Private and a $2000.00 fine.
In R v Cpl Healy, 27/99(SCM), the accused pleaded guilty to two charges of theft for
stealing regimental colours and several medals while he was employed at the Directorate
of History and Heritage. He was also charged with stealing while entrusted but pleaded
guilty to the lesser charge of stealing after having stolen 10 Somalia medals. He was
sentenced to 90 days detention (suspended).
In R v Gunner Pohjolainen, 13/98(SCM) the accused pleaded guilty to one charge under
s.114 for stealing cheques from his roommate in the barracks. He also pleaded guilty to
12
Stuart, Canadian Criminal Law 2d Edition, 1987, Toronto: Carswell, p.287.
13
R v Howson, [1966] 2 O.R. 63 (C.A.).
14
R v Pace, [1965] 48 D.L.R. (2d) 532 (N.S.C.A.)
15
QR&O 103.46, note E.
16
QR&O 103.46, note G
17
R v Hohne, supra note 1.
114-6/7
s. 114
to five charges under s.130 (s.380 (1) CCC- Fraud) for using the cheques and a telephone
credit card that he had also stolen. He was sentenced to detention for a period of three
months.
In R v WO Lowe,32/96(SCM), the accused was found guilty of stealing metal pickets,

sandbags, an A-frame spool mount and a magnetic FOD sweeper from CFB Cold Lake.
He was also found guilty of improperly using a vehicle contrary to s.112 (a) NDA. He
was sentenced to sixty days detention (suspended).
In R v PO2 Cole, 26/96(SCM), the accused, a supply technician and Distribution Account
Holder, was found guilty of stealing several thousand items contrary to s.114. He was
sentenced to 3 months detention.
In R v Capt Gerbrandt,18/96(SCM), the accused pleaded guilty to fourteen charges under

s.114 for stealing money from unit funds, unit canteens etc., and to nine charges under
s.117(f) for falsifying claims. He was sentenced to five months imprisonment with the
included punishment of Dismissal from Her Majesty’s Service.
Cases/Examples – Stealing While Entrusted
In R v Sgt Benard, 51/99(SCM), the accused, a member of the military police, was found
guilty of stealing while entrusted for stealing camera equipment from the CF School of
Intelligence and Security. He was also found guilty of making false entries in a
Distribution Account Verification Form. He was reduced in rank to Corporal and fined
$2000.00.
In R v Sgt Hohne, 17/96(SCM), the accused was the NCO in charge of NPF at CFB
Toronto. She stole aproximately $31,055.55 from NPF accounts. She pleaded guilty to
stealing while entrusted and was sentenced to nine months detention.
114-7/7
s.117(f)

s. 117(f) AN ACT OF A FRAUDULENT NATURE
STATUTE
117. Every person who:
(f) commits any act of a fraudulent nature not particularly specified in sections 73 to 128,
is guilty of an offence and on conviction is liable to imprisonment for less than two years
or to less punishment.
GENERAL
The word “fraudulent” in paragraph 117(f) of the National Defence Act refers to some
deceitful practice or device resorted with intent to deprive another of her rights, or in
some manner to do her an injury. 1
The words "fraudulent nature" mean deceit, falsehood or any other type of conduct that
can be objectively considered dishonest.2
Fraud differs from theft in that in theft the owner of the thing stolen has no intention to
part with his property therein to the person taking it, while in the case of deceit, falsehood
or other fraudulent means the owner does intend to part with his property in the money or
chattel, but it is obtained from him by an act of deliberate deception, practiced with the
object of gaining something of recognized value from the owner to his prejudice.3
Section 117(f) deals with any act of a fraudulent nature. Because of its wording, this
section of the NDA is more comprehensive than the offence of fraud found under s. 380
of the Criminal Code of Canada. Whereas its wording to fraud restricts the operation of
s.380 of the Criminal Code, s.117 (f) is much broader and encompasses virtually all acts
of a fraudulent nature contemplated within the Criminal Code.
The words in s.117 (f) “not particularly specified in sections 73 to 128” limit the scope of
this section so that it can only be applied when other acts of a fraudulent nature are not
contemplated in other sections of the Code of Service Discipline. Therefore, acts such as
false statements with respect to prolongations of leave (s.91); stealing (s.114); fraudulent
enrolment (s.121); false answer on enrolment (s.122); and, “willfully or negligently
making a false entry in a document” (s.125 (a)), will not fall under the scope of s.117 (f).
1
QR&O 103.49 note C.
2
R v OCdt Lere, (18-20 August 1992), CFB Winnipeg, Court Martial Transcript 35/92 at 13.
3
R v Lake, (1953) 17 C.R. 317 (O.C.A.) at 320.
117(f)-1/8
s.117(f)
WORDING OF CHARGE
AN ACT OF A FRAUDULENT NATURE NOT PARTICULARLY SPECIFIED IN
SECTIONS 73 TO 128 OF THE NATIONAL DEFENCE ACT.
Particulars: In that he/she, on (date) at (indicate place of offence), with intent to defraud,
(specific act upon which charges are based).
Examples of Charges
AN ACT OF A FRAUDULENT NATURE NOT PARTICULARLY SPECIFIED IN

SECTIONS 73 TO 128 OF THE NATIONAL DEFENCE ACT
Particulars : In that he, on or about (date), in (place), with intent to defraud, made travel
arrangements at public expense for (name of person), for travel between (places)and
return.
Particulars: In that he/she, between (date), and (date), both dates included, at or near
(place), with intent to defraud, submitted a claim for lodgings at the New York Hilton,
New York, New York, USA in the amount of $200.00 (U.S.) knowing the expense had
not been incurred.
Particulars: In that he/she, between (date), and (date), at (place), with intent to defraud,
made false entries on forms entitled “Request For Accountable Advance of Public Funds”
(DND 432).
Particulars: In that he/she, between 14 April and 31 July 1989 inclusive, at (place),
while employed as the contract NCO at the Base Electrical and Mechanical Engineering
(BEME) section, did with intent to defraud, arrange for the improper expenditure of
$1715.00 of public property to be spent on a privately owned motor vehicle, namely a
1979 Ford F-150 pick up truck.
Particulars: In that he/she, between (date), and (date), at (place) did knowingly make a
false document, to wit, Canadian Forces Travel Order and Claim, dated (date), with
intent that it be acted upon as genuine.
Particulars: In that he/she on or about (date), at (place), with intent to defraud,

submitted a Canadian Forces Travel Order and Claim for 278.52, for settlement,
certifying that he/she had been in (place), and on temporary duty from (date) to (date),
knowing that he had been on temporary duty, and had no entitlement to the money.

In order to establish an offence under s.117 (f), all of the the following must be proved
beyond a reasonable doubt:
117(f)-2/8
s.117(f)
1. identity of the accused;
2. date and place of the offence;
3. a false submission or alteration of a document;
4. deceitful practice (knowledge that documents or submissions were false or falsified) ;
5. deprivation of another of their rights or property; and,
6. blameworthy state of mind (intent to defraud).
SUMMARY OF LAW – False Submission/Alteration Of The Document

Making a false document includes:
• altering a genuine document in any material part
• making a material addition to a genuine document or adding to it a false date,
seal or other thing that is material
• making a material alteration in a genuine document by erasure, obliteration,
removal or in any other way.
Anyone who wilfully misleads injures or defrauds any person by giving her anything in
writing that purports to be a receipt or an entitlement to property that has been delivered,
or is to be delivered, to her has made a false submission.
Anyone who wilfully alters, creates or copies anything in writing that puports to be a
receipt or an entitlement to property that has been delivered, or is to be delivered, has
altered that document.
Cases/Examples
The forging of taxi or hotel receipts in the case of R v Cdr LeGaarden, 11/98(SCM), was
found to be an alteration of a document. In the same case, the use of homemade taxi
receipts developed on the accused’s home computer was found to be alteration and false
submission.
In R v Cpl Askeland, 28/96(SCM), the accused, a pay clerk, made false entries on forms
called “Request For Accountable Advance of Public Funds.” The impugned entries
constituted false submissions.
In R v Sgt Flynn, 44/93(SCM), the accused arranged for invoices to be paid by the
Government of Canada for work that was done on his personal motor vehicles. The
invoices constituted false submissions.
In R v OCdt Lere, 35/92(SCM), the accused was posted to Winnipeg after having been
legally separated from his wife. While in Winnipeg he claimed separation expenses and
117(f)-3/8
s.117(f)
free rations and quarters for the period 27 November 1990 thru 1 May 1991. By signing
the “Application for Single Quarters or Rations Without Charge” which required him to
certify that he was married, he made a false submission.
SUMMARY OF LAW - Deceitful Practice

Deceit has been definitively defined as the fact of inducing [another] person to believe
something which the person practicing the deceit knows to be false.4
“Generally the primary objective of fraudsmen is to advantage themselves. The

detriment that results to their victims is secondary and incidental. It is “intended” only in
the sense that it is a contemplated outcome of the fraud that is perpetrated. If the deceit
that is employed emperils the economic interest of the person deceived, this is sufficient
to constitute fraud even though in the event no actual loss is suffered and notwithstanding
that the deceiver did not desire to bring about an actual loss.5
Generally, in a case where it is proven that a receipt has been forged or altered by the
accused, the court will infer that the accused intended to defraud the victim.
Cases/Examples
In LeGaarden, where the accused forged receipts from restaurants instead of using no-
receipt verification forms (statutory declaration), the court inferred that the reason for the
forgery was to defraud the public.6 As Col Brais, President of the Court stated, "In the
face of a forged receipt the court is led to the inescapable conclusion that the accused
intended to defraud the public by submitting this claim, and that beyond a reasonable
doubt."7
SUMMARY OF LAW – Deprivation

Deprivation occurs when when the victim is induced to make a payment or participate in
a transaction which it would not have made had it known the true state of affairs.
It is not necessary to prove that the accused actually obtained the property or the benefit;
only that the victim was deprived of it.8
The element of deprivation is satisfied on proof of detriment, prejudice, or risk of

prejudice to the economic interests of the victim. It is not essential that there be actual
economic loss as to the outcome of the fraud.9
4
See Re London & Globe Finance Corpn.,[1903] 1 Ch. 728 at 732.
5
R v Allsop (1976), 64 Cr. App. R. 29 at 31-32, as reviewed favourably by Dickson J., in R v Olan [1978]
2 S.C.R. 1175 at 1182-83.
6
R v Cdr LeGaarden, 11/98 (SCM) at 149 (appealed Feb 99 CMAC-423).
7
Ibid. at 147.
8
R v Huggett (1978), 4 C.R. (3d) 208, (Ont. C.A.).
9
R v Olan [1978] 2 S.C.R. 1175 at 1182
117(f)-4/8
s.117(f)
In R v Olan, and R v Theroux10 the S.C.C. found that “It is not essential that there be
actual economic loss as the outcome of the fraud.” “ The element of deprivation is
established by the proof of detriment, prejudice, or risk of prejudice to the economic
interests of the victim, caused by the dishonest act.”
The accused must have subjective awareness, at the very least, that his or her conduct
will put the property or economic expectations of others at risk. As noted above, this
does not mean that the Crown must provide the trier of fact with a mental snapshot
proving exactly what was in the accused's mind at the moment the dishonest act was
committed. In certain cases, the inference of subjective knowledge of the risk may be
drawn from the facts as the accused believed them to be. The accused may introduce
evidence negating that inference, such as evidence that his deceit was part of an innocent
prank, or evidence of circumstances which led him to believe that no one would act on
his lie or deceitful or dishonest act. But in cases, where the accused tells a lie knowing
others will act on it and thereby puts their property at risk, the inference of subjective
knowledge that the property of another would be put at risk is clear.11
SUMMARY OF LAW – Blameworthiness

The actus reus of fraud is established by proof of a prohibited act, be it an act of deceit,
falsehood or other fraudulent means, and by proof of deprivation caused by the prohibited
act (which may consist in actual loss or the placing of the victim's pecuniary interests at
risk). Just as what constitutes a falsehood or a deceitful act for the purpose of the actus
reus is judged on the objective facts, the actus reus of fraud by "[any act of a fraudulent
nature] " is determined objectively, by reference to what a reasonable person would
consider to be a dishonest act. Correspondingly, the mens rea of fraud is established by
proof of subjective knowledge of the prohibited act, and by proof of subjective
knowledge that the performance of the prohibited act could have as a consequence the
deprivation of another (which deprivation may consist in knowledge that the victim's
pecuniary interests are put at risk). In certain cases, the subjective knowledge of the risk
of deprivation may be inferred from the act itself, barring some explanation casting doubt
on such inference. Where the conduct and knowledge required by these definitions are
established, the accused is guilty whether he actually intended the deprivation or was
reckless as to whether it would occur. The accused's belief that the conduct is not wrong
or that no one will in the end be hurt affords no defence to a charge of fraud.12
To establish the actus reus of fraud, the Crown must establish beyond a reasonable doubt
that the accused practised deceit, lied, or committed some other fraudulent act....
Deprivation or the risk of deprivation must then be shown to have occurred as a matter of
fact. To establish the mens rea of fraud the Crown must prove that the accused
knowingly undertook the acts which constitute the falsehood, deceit or other fraudulent
means, and that the accused was aware that deprivation could result from such conduct.13
10
R v Theroux [1993] 2 S.C.R. 5
11
Ibid. at 20-21.
12
Ibid. at 6-7
13
Ibid. at 25-26.
117(f)-5/8
s.117(f)
In R v Theroux14, the S.C.C. noted that “In instances of deceit or falsehood, …all that
need be determined is whether the accused, as a matter of fact, represented that a
situation was of a certain character, when, in reality, it was not.”
The actus reus of fraud will be established by proof of:

a. the prohibited act, be it an act of deceit, a falsehood or some other
fraudulent means; and,
b. deprivation caused by the prohibited act which may consist in
actual loss or the placing of the victim’s pecuniary interest at risk
Correspondingly, the mens rea for fraud is established by proof of:

a. subjective knowledge of the prohibited act; and,
b. subjective knowledge that the prohibited act could have as a
consequence the deprivation of another.
Where the conduct and knowledge required are established, the

accused is guilty whether she actually intended the prohibited
consequences or was reckless as to whether it would occur. 15
... the mental element of the offence of fraud must not be based on what the accused
thought about the honesty or otherwise of his conduct and its consequences. Rather, it
must be based on what the accused knew were the facts of the transaction, the
circumstances in which it was undertaken and what the consequences might be of
carrying it to a conclusion. [The] accused’s belief that the conduct is not wrong or that
no one will in the end be hurt affords no defence to a charge of fraud.16
In the Standing Court Martial of R. v. Capt Dupont, 11/94(SCM), in the explanation of a

guilty plea to a subsection 117(f) charge, the President, LCol Pitzul, stated that intent was
also required as an element of the offence, and that the word defraud is the same in
respect of this charge as in charges under section 380(1)(a) of the Criminal Code.17 This
means that the prosecution would have had to prove beyond a reasonable doubt that the
accused intentionally or deliberately carried out the acts or business transactions alleged
with knowledge or recklessness or willful blindness of the facts and circumstances that
made the accused conduct in the eyes of reasonable persons dishonest and also that the
accused intentionally or deliberately carried out the acts or business transactions alleged
knowing or being reckless or willfully blind that they would create prejudice or a risk of
prejudice to the economic interests of one or more persons, whether or not the public was
among those persons. Provided that the accused acted intentionally knowing the facts,
14
Ibid. at 17.
15
Ibid. at 20.
16
Ibid. at 23.
17
R. v. Capt. Dupont, 11/94 (SCM), p.17.
117(f)-6/8
s.117(f)
circumstances and consequences mention in the charge, the prosecution would have
proven and intent to defraud even if the accused personally believed that the conduct was
not dishonest and did not know that reasonable people would see the conduct as
dishonest.18
In the case of R v LCol Jamieson, 34/97(SCM), the accused was charged with having
spent public money for a hockey team to attend a DCinC Hockey Tournament. The court
found that LCol Jamieson was not aware of the change in policy that had been instituted
which prohibited the use of public monies for such activities. The court could not prove
beyond a reasonab;e doubt that the accused knew that he was getting involved in a
fraudulent act. He was thus found not guilty.
Standard of Dishonesty
The wording of s.117(f) “any act of a fraudulent nature”, serves to incorporate into the
section a standard of dishonesty, in the same respect that “other fraudulent means”
incorporates a dishonesty standard into s.380 of the Criminal Code of Canada.
The words “any act of a fraudulent nature” include means which are not in the nature of a
falsehood or a deceit; they encompass all other means which can be properly stigmatized
as dishonest.19
Dishonesty is determined on an objective standard. The established rule after Theroux is

that the Crown must “prove that the accused intended to act dishonestly as defined by
objective community standards.” That is to say, “the accused must have acted with
deliberate dishonesty in the sense that the accused must have known that the act was
dishonest and had intended to act dishonestly, and the accused must have known that his
act would be considered dishonest be reasonable and honest people.”20
The use of the objective standard does not mean that negligent behaviour will ground a
conviction for fraud. In Theroux, the court stated the following:
The requirement of intentional fraudulent action excludes mere negligent

misrepresentation. It also excludes improvident business conduct or
conduct which is sharp in the sense of taking advantage of a business
opportunity to the detriment of someone less astute. The accused must
intentionally deceive, lie or commit some other fraudulent act for the
offence to be established. Neither a negligent misstatement, nor a sharp
business practice, will suffice, because in neither case will the required
intent to deprive by fraudulent means be present. A statement made
carelessly, even if it is untrue, will not amount to an intentional falsehood,
subjectively appreciated. Nor will any seizing of a business opportunity
18
Ibid at 13-14., regarding intent to defraud for s.380(1)(a) CC, and as applied to s.117(f) NDA.
19
R v Olan, supra note at
20
R v Gray, [1991] O.J. No. 2599 (Ont. Ct. (Gen Div) (affirmed (1995), 76 O.A.C. 387).
117(f)-7/8
s.117(f)
which is not motivated by a person's subjective intent to deprive by

cheating or misleading others amount to an instance of fraud. Again, an
act of deceit which is made carelessly without any expectation of
consequences, as for example, an innocent prank or a statement made in
debate which is not intended to be acted upon, would not amount to fraud
because the accused would have no knowledge that the prank would put
the property of those who heard it at risk. We are left then with
deliberately practised fraudulent acts which, in the knowledge of the
accused, actually put the property of others at risk. Such conduct may be
appropriately criminalized, in my view.21
Cases/Examples
In R v Capt Bell, 49/92(SCM), the accused left a note on the desk of his Commanding
Officer with an address and contact number prior to going on leave. This he did in order
to avoid submitting a leave pass to cover his absence. This dishonest conduct constituted
fraud.
21
R v Theroux, supra note at 26.
117(f)-8/8
s.124
s. 124 NEGLIGENT PERFORMANCE

OF A MILITARY DUTY
STATUTE
124. Every person who negligently performs a military duty imposed on that person is
guilty of an offence and on conviction is liable to dismissal with disgrace from Her
Majesty's service or to less punishment.
GENERAL
The leading cases under s.124 are R v Pte Brocklebank 1and R v LCol Mathieu2. In those
cases, two fundamental issues were decided as follows:
1) First, with respect to negligence, the standard of care applicable to the charge of
negligent performance of a military duty is that of the conduct expected of the
reasonable person of the rank and in all the circumstances of the accused at the time
and place the alleged offence occurred. In the context of a military operation, the
standard of care will vary considerably in relation to the degree of responsibility
exercised by the accused, the nature and purpose of the operation, and the exigencies
of a particular situation. An emergency, or the heightened state of apprehension or
urgency caused by threats to the security of Canadian Armed Forces personnel or
their materiel might mandate a more flexible standard than that expected in relatively
non-threatening scenarios. Furthermore, in the military context, where discipline is
the linchpin of the hierarchical command structure and insubordination attracts the
harshest censure, a soldier cannot be held to the same exacting standard of care as a
senior officer when faced with a situation where the discharge of his duty might
bring him into direct conflict with the authority of a senior officer. 3
2) Secondly, with respect to duty, a military duty, for the purposes of section 124, will
not arise absent an obligation which is created either by statute, regulation, order from
a superior, or rule emanating from the government or Chief of Defence Staff. ...It is
necessary to ground the offence in a concrete obligation which arises in relation to the
discharge of a particular duty, in order to distinguish the charge from general
negligence in the performance of military duty per se, which, upon a plain
1
R. v Pte Brocklebank (2 April 1996) CMAC 383 at 17
2
R v LCol Mathieu (6 November 1995), CMAC 379.
3
Brocklebank at ¶18.
124-1/6
s.124
interpretation of section 124, it was clearly not Parliament's intention to sanction by

that section.4
WORDING OF CHARGE
NEGLIGENTLY PERFORMED A DUTY IMPOSED ON HIM
Particulars: In that he, on (date), at (indicate place of offence), while acting as

(appointment), failed to ensure, as it was his duty to do, (act or omission forming basis of
charge).
Examples of Charges
Particulars: In that he, on or about (date), near (place of offence), while Officer
Commanding (unit), by issuing an instruction to his subordinates that prisoners could be
abused, failed to properly exercise command over his subordinates, as it was his duty to
do.
Particulars: In that he, between (dates), inclusive, at or near (place of offence), while
acting as the Officer Commanding (unit), failed to ensure, as it was his duty to do, that
adequate safety precautions were taken with respect to electrical wires overhead at a
storage shed construction site.
Particulars: In that he, on (date), at (place of offence), while acting as a range safety
officer, failed to ensure, as it was his duty to do, that all personnel were clear of the target
area before giving the order for firing to commence.

In order to establish an offence under s.124 of the NDA, the following essential items
1. Identity of the accused as the offender;
2. Date and place of the commission of the offence;
3. That the accused had a particular military duty imposed upon him;
4. That the accused was aware of the duty that was imposed on him;
5. The standard of care to be exercised by the accused;
6. The conduct of the accused; that is his acts or omissions were in relation to that
military duty;
4
Brocklebank at ¶41.
124-2/6
s.124
7. That the that the conduct of the accused breached the required standard; and,
8. that he had the condition of mind imported by the use of the term “negligently.”
SUMMARY OF LAW
In R. v Pte Brocklebank , (CMAC 383), the Court Martial Appeals Court ruled that in
order to find a military duty, the offence must be grounded in a concrete obligation in
relation to the discharge of a particular military duty imposed on that person.5
A military duty, for the purposes of s.124, will not arise absent an obligation which is
created either by statute, regulation, order from a superior, or rule emanating from the
government or Chief of Defence Staff.6
“Imposed” means to “demand the attention or commitment of a person.” Thus the

individual must be aware of the imposition of the specific duty before he can be held
accountable for performance of that duty.
SUMMARY OF LAW – NEGLIGENCE

The correct definition of "negligently" is that the word signifies that the accused either
did something or omitted to do something in a manner which would not have been
adopted by a reasonably capable and careful person in his position in the service under
similar circumstances.7
The negligence standard for s.124 is the penal standard as defined in R v Creighton.8 The
impugned act or omission of the accused must constitute a marked departure from the
expected standard of conduct in the performance of a military duty, as distinguished from
a general duty of care.9
The standard of care applicable to the charge of negligent performance of a military duty
is that of the conduct expected of the reasonable person of the rank and in all the
circumstances of the accused at the time and place the alleged offence occurred. In the
context of a military operation, the standard of care will vary considerably in relation to
the degree of responsibility exercised by the accused, the nature and purpose of the
operation, and the exigencies of a particular situation.10
Mere error in judgment does not constitute negligence.11

5
R. v Brocklebank (2 April 1996) CMAC 383 at 17.
6
Ibid. at 21.
7
Empringham v The Queen (1959), 2 C.M.A.R. 125 at 128.
8
R v Creighton [1993] 3 S.C.R. 3
9
Brocklebank, supra note 1 at 16.
10
Ibid. at 10.
11
R v Seward (June 94) CFB Petawawa, Court-Martial Transcript 15/94 at 862.
124-3/6
s.124
The [trier of fact should] consider the rank, status and training of the respondent as these
are characteristics which the [trier could] otherwise ascribe to the reasonable person in
the circumstances of the [accused].12
Except where the accused claims incapacity, the objective standard (what a reasonable
person would have done in the circumstances) applies to establish both the actus reus and
the mens rea. Since the standard is objective, it is the act itself that must be assessed; the
actor's intention, will and alleged good faith are simply irrelevant.13 Personal factors are
not relevant, except on the question of whether the accused possessed the necessary
capacity to appreciate the risk.14
Cases/Examples
In R v Maj Paik, 28/00(SCM), the accused was the Officer Commanding 24 Field
Engineer Squadron in Bosnia Herzegovina. A storage shed was being built near high
voltage wires in his compound and a Sapper was electrocuted while working on the roof
of the shed. Maj Paik’s failure to ensure that proper safety precautions were taken by
those involved in constructing the shed was found to be a negligent performance of
duties. He was sentenced to severe reprimand and a reduction in rank to Lieutenant.
In R v Maj Hirter, 27/96 (SCM), a case in which a soldier was killed as a result of a range
training accident, the court found that Maj Hirter, as a company commander, had a duty
imposed on him to ensure that the required number of safety staff was present by virtue
of directives set out in his unit’s training safety manual. It was his duty and
responsibility to supervise his staff and to ensure that there was the required number of
safety staff supervising the live fire section attack range. His conduct in not doing so was
found clearly to be a marked departure from the conduct of a reasonable member of a
similarly experienced or specialized group.
In R v Maj Seward, 15/94(GCM), the Officer Commanding 2 Commando, Canadian

Airborne Regiment, in Somalia, issued instructions to his subordinates that prisoners
could be abused. Through issuing this order he was found not to be properly exercising
command over his subordinates and was guilty of negligent performance of a military
duty.
In R v MCpl Smith, 04/94(GCM), the accused pleaded guilty to negligent performance of

duties. While stationed in Somalia he went into a friend’s tent to socialize. While there
he began to clean his weapon. He dry fired it several times and later put the magazine
back on. Forgetting that the magazine was on, he fired his weapon again, accidentally
shooting his friend in the head. He was sentenced to detention for four months with the
included sentence of reduction in rank to Private. His appeal against sentence was
dismissed by the CMAC (CMAC- 373).
12
Ibid. at 11.
13
R v Mathieu (6 November 1995), CMAC-379 at 3.
14
R v Creighton [1993] 3 S.C.R. 3.
124-4/6
s.124
In R. v. Capt Sox, 03/95 (GCM), the member was found guilty of section 124 NDA in
that, he failed to properly exercise command over his subordinates following the capture
of a Somali detainee. The member received a reduction in rank to Lieutenant and a severe
reprimand.
In R. v. Maj Wickware, 36/94 (GCM), the member was found guilty of section 124 NDA
in that, he failed to ensure that the LDSH (RC) BG SOP 3/2/1 was complied with as the
acting Officer Commanding Recce Squadron. The member received a severe reprimand
and forfeiture of seniority of 1 year.
In R. v. Capt Green, 51/91 (DCM), the member was guilty of section 124 NDA in that, as
Officer in Charge of a range practice, failed to advise CFB Shilo Range Control of an
ammunition accident.
In R. v. Cdr Caie,09/97 (SCM), the member pleaded guilty to section 124 NDA in that,
he failed to provide the records known as "Response to Queries" as required by an AIA
tasking. Found not guilty of section 125(a) NDA and section 129 NDA (PGOD). The
member was fined 2,000.00$ and a reprimand.
In R. v. Sgt Boland, 10/94 (GCM), the member pleaded guilty to section 124 NDA in that,
he failed to ensure that a Somali prisoner was safeguarded. Section 130 NDA (s269.1
CCC –Torture) was stayed as the alternative charge to section 124 NDA. The member
was sentenced to 90 days detention.
In R. v. MCpl Smith, 04/94 (GCM), the member pleaded guilty to section 124 NDA in
that, he failed to take proper precautions against unsafe discharge of his rifle. Section 130
NDA (s.220 CCC – Causing Death by Criminal Negligence) was stayed as the alternative
charge to section 124 NDA. The member was sentenced to four months detention.
In R. v. Sdt Lebouthillier, 60/91 (CMD), the member was found guilty of section 124
NDA in that, he failed to stay awake while safeguarding a CC-130 aircraft armed with a
60 mm mortar as an armed guard. Found not guilty of section 90 NDA. The member was
fined 350.00$.
In R. v. LCdr Hartman, 53/91(GCM), the member was found guilty of section 124 NDA
in that, he was unavailable as the Medical Officer. Found guilty of section 83 NDA.
Found not guilty of (x2) section 129 NDA (PGOD). The member received a reduction in
rank to Lt (N). His conviction was over-turned while awaiting appeal as a result of the
supreme court decision in R v Genereux, which ruled that the procedures in General
Courts Martial at that time were unconstitutional.
In R. v. WO Reid, 49/90(DCM), the member pleaded guilty to (x5) section 124 NDA in
that, he failed to ensure that an investigation was carried out in a proper manner as the
acting Special Investigation Unit Investigator with respect to the security clearance field
investigation of a Corporal, a Brigadier General, an Officer Cadet, a Sergeant and a
124-5/6
s.124
Captain. Four charges under s.125 NDA were stayed as alternative charge to section 124
NDA. The member received a reprimand.
In R. v. Pte Irrgang, 17/90(DCM), the member was found guilty of section 124 NDA in
that, he failed to maintain a listening watch on the Exercise Control radio net and the
Range Safety radio net as the duty radio operator at Radio Rebroadcast Detachment
Number 3. Section 90 NDA was stayed. The member was sentenced to 30 days detention.
In R v WO Drew, 14/97(SCM), the accused was acquitted of four counts of Negligent

Performance of Duties after a grenade on a live-fire range killed a soldier. In that case, it
was found that WO Drew had neither been properly appointed as a platoon commander
nor as range safety officer (RSO) in accordance with CFP304-3. Therefore it was
determined that he had not had a military duty imposed upon him. The president of the
court in that case, Cdr Barnes, also found that even if the duties would have been
properly imposed, the conduct of the accused did not constitute a marked departure from
the norm and therefore did not constitute negligence.
124-6/6
s. 125 (a)

s.125(a) WILFULLY OR NEGLIGENTLY MAKING A FALSE
ENTRY IN A DOCUMENT
STATUTE
125. Every person who
(a) willfully or negligently makes a false statement or entry in a document made or

signed by that person and required for official purposes or who, being aware of
the falsity of a statement or entry in a document so required, orders the making
or signing thereof,
is guilty of an offence and on conviction is liable to imprisonment for a term not

exceeding three years or to less punishment.
GENERAL
Section 125(a) is similar in many respects to the offences of s. 367(1) (forgery) and s.368
(1) uttering a false document under the Criminal Code of Canada. There are, however,
two substantial differences between the Criminal Code offences and the National
Defence Act offences. First, the NDA incorporates negligence into the offence whereas
the Criminal Code requires subjective knowledge. The negligence standard is based on
the marked departure from the norm. Secondly, the NDA offence limited in that only
official documents required for a military purpose are covered. Thus, for example, a
false statement on a civilian driver’s license application would not be an offence under
s.125 (a) of the NDA. In the case of civilian documents, charges should be laid under the
Criminal Code or under s.129 of the NDA.
WORDING OF CHARGE
Willfully entry made by her
made a false in a document that was required for official purposes
Negligently statement signed by her
Specimen Charge
WILFULLY MADE A FALSE ENTRY IN A DOCUMENT MADE BY HIM THAT

WAS REQUIRED FOR OFFICIAL PURPOSES
or
125(a)-1/6
s. 125 (a)
WILFULLY MADE A FALSE STATEMENT IN A DOCUMENT SIGNED BY

HIM/HER THAT WAS REQUIRED FOR OFFICIAL PURPOSES
Particulars: In that s/he, on (date) at, (indicate place of offence), made an entry in the
civilian attendance records showing that (name) had reported for work at (time) knowing
that the said (name) had not so reported.
Examples
WILFULLY MADE A FALSE STATEMENT IN A DOCUMENT SIGNED BY

HIM/HER THAT WAS REQUIRED FOR OFFICIAL PURPOSES
Particulars: In that s/he, on (date) on board the HMCS (ship’s name) near (place), gave
information in message (message number) to the effect that the gun was fired in
secondary procedure and that the order to engage was given at 4000 yards, knowing the
said information was false.
Particulars: In that s/he, between (dates) at (place), made an entry in a Progress Card
ACM-5 dated (date), showing that (person) gave him/her a superior score knowing that
(person) had not given him/her a superior score.
Particulars: In that s/he between (dates) at (place), made entries in his/her fighter pilot
course Progress Book summary card knowing these entries to be false.
Particulars: In that s/he on or about (date), at (place), made an entry in a medical

attendance report CF 2016 form showing that (person) should receive 2 to 3 weeks rest
for reasons of stress related to a career change, knowing such entry to be false.
Particulars: In that s/he, on or about (date) at (place) willfully made a false statement in
signing box 4 of a Canadian Forces Minor Travel Expense Claim certifying that the
amounts claimed had been paid by him as the advance holder to the individual claimants
concerned in respect of their travel on (dates), knowing that the said statement was false.
Particulars: In that s/he, on or about (date) at (place), made a statement in a

Memorandum stating that all of the conditions required for recognition of a common law
relationship had been met effective (date), knowing that the statement was false.
Particulars: In that s/he, on or about, (date) at or near (place), caused to be submitted a

CF 52 (General Allowance Claim) in the amount of $504.00 for the payment of (name) as
a Civilian Officiating Clergyman for the period (dates) inclusive, knowing that the said
(name) had not been so employed.
125(a)-2/6
s. 125 (a)

In order to establish an offence under s.125 (a) of the NDA, the following essential items
1. identity of the accused as the offender
2. date and place of the commission of the offence
3. that the accused made the false entry/statement
4. that the accused willfully or negligently made the entry/statement
5. knowledge of the accused that the entry was false
6. document was required for an official purpose.
7. That the accused had a blameworthy state of mind
ELEMENTS OF 125(C)
From 2009 CM 3002
3. That the accused knew the document was forged (goes to intent – proof can include
knowledge that it was forged when accused used the doc);
4. That the accused used the forged document (other person does not have to have used
the doc); and
5. That the accused presented the document as being genuine (goes to intent to mislead).
SUMMARY OF LAW
The word "willfully in s.125(a) of the National Defence Act signifies that the alleged
offender knew what he was doing, intended to do what he did, and was not acting under
compulsion.1
In making a statement or an entry in an official document a person has a duty in law to

take reasonable steps to ascertain the accuracy of the statement or entry. If a statement or
1
QR&O 103.57, note A.
125(a)-3/6
s. 125 (a)
entry is inaccurate, the failure to have taken these steps constitutes "negligence" under
s.125 of the National Defence Act.
A trifling error in a report should not be made the ground of a charge under s. 125 of the
National Defence Act.2
The classes of documents contemplated by s. 125 of the National Defence Act are those
which an officer or non-commissioned member submits either as part of his military duty
or because he desires to obtain some benefit or advantage permitted by regulations or
orders, and the benefit or advantage is obtainable only after completion of prescribed
documents. 3
In some cases, in their decisions, military judges have included “that the act was
committed while performing duties” as an element of the offence. An example of this is
found in R v Brule where Menard J., when listing the elements of the offence, noted that
the accused “committed that act while performing [his] duties as a military police
officer.”4 In that case, this element was included because of the wording in the charge
“while performing his duties as a military police officer.” In most cases, “military duty”
is not an element of the offence.
The person should not be charged under this s. in respect of documents which he is
required to complete in his civilian capacity such as civilian income tax returns,
succession duty forms, birth and death registrations, etc.5
The word "intent" merely has the effect of imposing upon the prosecution a duty, more
onerous than would otherwise be the case, of proving that the accused did or omitted to
do the act in question deliberately. In the case of most offences, however, although the
word "intent" does not appear in the s. prescribing them, intent is an essential element but
it is inferred from the facts and circumstances established. There are some offences,
however, in which intent is not an essential element.6 In such cases, negligence will
suffice to establish the mens rea for the offence.
Cases/Examples
In R. v. LCdr Morrissey, 42/97(SCM), the member was found guilty of four charges
under s.125(a) NDA in that he signed false statements in a Minor Travel Expense Claim.
He received payment on bulk claims for meal entitlements for the cadet organization that
he commanded. The accused signed a number of Canadian Forces Minor Travel Expense
Claims certifying that the amount had been paid to the claimants whose names appeared
on the claims. The court concluded that he had not paid the all money to all of the
claimants and that by signing that he had paid the monies owed to the claimants had
2
QR&O 103.57 note E.
3
QR&O 103.57 note D.
4
R v Brule, (9-10 February 1999), CFB Borden, Court-Martial Transcript 9/99 at 88.
5
QR&O 103.57 note D.
6
QR&O 103.57 note C.
125(a)-4/6
s. 125 (a)
willfully made a false statement about the money spent. He was also charged with
forgery under s.130 of the NDA contrary to s.367 of the Criminal Code. The accused was
found not guilty of the forgery charge because, in absence of evidence such as a
handwriting expert's opinion or some proof that no other person could have made the
forgery, there was no positive evidence that the accused actually forged the signatures of
the claimants named on the claim. The member was fined 1,500.00$ and a severe
reprimand.
In the case R v Cpl Smith, 55/93(SCM) the accused wrote a memorandum stating that he
had met all of the conditions required to establish a common law relationship in order to
qualify for an entitlement to moving expenses and accommodation assistance allowance.
He had not met those conditions. He pleaded guilty to willfully making a false statement
in a document. He was fined $2000.00 plus a reprimand.
In R. v. MCpl Rees, 29/98 (SCM), the member pleaded guilty to s.125 NDA in that, he
made a false entry in a Request for Accountable Advance of Public Funds. Pleaded guilty
to s.130 NDA (s.380 (1) CCC - Fraud). Found not guilty of s.129 NDA (PGOD). The
member was fined 1,500.00$ and a severe reprimand.
In R. v. Lt(N) Deg, 32/98 (SCM), the member pleaded guilty to 23 charges under s.125
NDA in that, he signed the name of a Lieutenant Commander on Minor Travel Expense
Claims and Government Purchase Orders. Found not guilty of s.117 (f) NDA. Pleaded
guilty to s. 129 NDA. Pleaded guilty to s.114 NDA. Found not guilty of a charge under
s.124 NDA. The member was sentenced to 4 months detention.
In R. v. Cpl Wills, 15/98 (SCM), the member was found guilty of s.125 (a) NDA in that,
he false entry in an Application for House Hunting Trip. Found not guilty (x2) s.125 (a)
NDA in that, he allegedly made false claims in an Application for Posting Allowance
(Dependant Allowance Entitlement) and made false statements in a Statutory Declaration
before a Captain. Found guilty of s. 117(f) NDA. The member was fined 1,200.00$ and a
severe reprimand.
In R v Capt Bertrand, 24/97(SCM), the accused was a fighter pilot on a CF-18 course.
He made false entries in his flight training progress cards when his performance dropped.
The accused shredded the originals and produced new progress cards showing higher
assessments in his flying proficiency. He also forged the signatures of his instructors.
He pleaded guilty to 12 charges under s.125 (a). He was sentenced to Dismissal from
Her Majesty’s Service.
In R v Sgt Stewart, 27/92(SCM), the accused, a Military Police security clearance field
investigator made statements in field investigation contact sheets stating that he had
interviewed individuals when in reality he had not. He pleaded guilty to 11 charges of
willfully making a false entry in a document required for official purposes. He was
sentenced to a reduction in rank to the rank of Private.
125(a)-5/6
s. 125 (a)
In R. v. LCdr Smith, 16/96 (SCM), the member was found guilty of s. 125(a) NDA in that,
he made false entry in a Medical Attendance Report Form, giving one of his patients an
extended period of sick leave in return for a canoe. He was found not guilty of s.125 (a)
NDA in that, he allegedly made false entry in a Sick Report Form because nowhere in the
form did he state that the patient was ill. Found guilty of 2-x s.130 NDA (s.121 (3) CCC-
Fraud on the Government). The member was fined $2,000.00 and a severe reprimand.
In R. v. Cpl Lamazzi, 01/96 (SCM), the member pleaded guilty to s. 125(a) NDA in that,
he made false entry and signed a Statutory Declaration. Pleaded guilty to s.117 (f) NDA.
Found not guilty to 2 x s. 117(f) NDA. The member was fined $1,000.00.
In R. v. Adjum Duperron, 08/95 (SCM), the member was found guilty of three charges
under s.125 NDA in that he made false entries in general reimbursement forms. Also
found guilty of s.117 (f) NDA. The member was fined $2,500.00 and a severe reprimand.
In R. v. LCol Smith, 27/94 (SCM), the member pleaded guilty to two charges under
s.125(a) NDA in that, he signed Reserve Force Basic Attendance Register Forms. The
member received a reduction in rank to Major.
In R. v. MCpl Stewart, 21/91 (DCM), the member was found guilty of one charge under
s.125 (a) NDA in that he made a false statement in an Investigation report following an
injury of an individual due to a pyrotechnics accident. He was also found guilty of s. 129
NDA. A charge under s.124 NDA was stayed. The member was dismissed from Her
Majesty's service.
In R. v. Maj Caruana, 66/90 (GCM), the member was found guilty of two charges under
s.125 NDA in that he made false statements in General Allowance Claims. The member
was fined $10,000.00 and a severe reprimand.
125(a)-6/6
s.129

s.129 CONDUCT TO THE PREJUDICE OF
GOOD ORDER AND DISCIPLINE
STATUTE
129.(1) Any act, conduct, disorder or neglect to the prejudice of good order and discipline
is an offence and every person convicted thereof is liable to dismissal with disgrace from
Her Majesty’s service or to less punishment.
(2) An act or omission constituting an offence under section 72 or a contravention by any

person of
(a) any of the provisions of this Act
(b) any regulations, orders or instructions published for the general information
and guidance of the Canadian Forces or any part thereof, or
(c) any general, garrison, unit, station, standing, local or other orders,
is an act, conduct, disorder or neglect to the prejudice of good order and discipline.
(3) An attempt to commit any of the offences prescribed in sections 73 to 128 is an act,
conduct, disorder or neglect to the prejudice of good order and discipline.
(4) Nothing in subsection (2) or (3) affects the generality of subsection (1)
(5) No person may be charged under this section with any offence for which special
provision is made in sections 73 to 128 but the conviction of a person so charged is
not invalid by reason only of the charge being in contravention of this subsection
unless it appears that an injustice has been done to the person charged by reason of
the contravention.
(6) The responsibility of any officer for the contravention of subsection (5) is not
affected by the validity of any conviction on the charge in contravention of that
subsection.”
129-1/13
s.129
GENERAL
Section 129 of the NDA is an umbrella provision designed to punish acts which effect the
maintenance of good order and discipline. In order for a member to be convicted under
this section, it is required that the member’s act be prejudicial to both good order and to
discipline. Section 129 is regularly used as a charge in the alternative when charges are
being laid under the NDA.
Breaches of regulations and orders by CF members are considered to be acts that are
prejudicial to good order and discipline. However, because regulations and orders are not
laws in the same respect as federal acts such as the Criminal Code and National Defence
Act, ignorance of the order or regulation is a defence to a charge under this section. If for
example, a commander wishes to charge an individual for breach of an order, she must
show that the member had either actual knowledge of the order, constructive notice of the
order, or deemed knowledge. In order to establish deemed knowledge, there must be
proof that the member’s unit issued and published the order in a manner prescribed by
either article 1.20 or 1.21 and article 4.26 of Queen’s Regulations and Orders. If the
orders are not properly published, promulgated, or kept up to date by the unit, it will not
be possible to establish deemed knowledge under s.129.
Negligent discharges of firearms are dealt with as neglect to the prejudice of good order
and discipline under s.129.
Attempts to commit offences under the NDA are, with a few exceptions as outlined in the
notes below, offences under s.129.
WORDING OF CHARGE
The statement of the offence in a charge under section 129 should be in the following
form;
An Act
Conduct
to the prejudice of good order and discipline
Disorder
Neglect
Specimen Charge (QR&O)
AN ACT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE
129-2/13
s.129
Particulars: In that s/he, on (date), at (indicate place of offence), while undergoing the
punishment of confinement to barracks, attempted to break out of barracks by trying to
walk past the sentry on duty.
Particulars: In that s/he, on (date), at (indicate place of offence), entered the premises of
(name) in the city of________ contrary to paragraph_______of________standing orders
for (unit), dated____________.
Particulars: In that s/he, on (date), at (indicate place of offence), entered into direct
communication with the Department of External Affairs on subjects connected with his
future employment, contrary to article 19.38 of the Queen’s Regulations and Orders for
the Canadian Forces.
NEGLECT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE
Particulars: In that s/he, on (date), at (indicate place of offence), failed to conduct a

monthly audit of the non-public property account, as it was his duty to do.
CONDUCT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE
Particulars: In that s/he, on (date), at (indicate place of offence), did attempt to take
ashore from HMCS “(ship’s name)” one case of Scotch whisky on which duty had not
been paid, contrary to article _________ of Ship’s Standing Orders.
Charges-Examples from Case Law
Particulars: In that s/he, on or about (date), at Corydon Avenue Winnipeg Manitoba, did
sexually harass (name) by kissing him/her, contrary to CFAO ________.
Particulars: In that s/he, on or about (date) at or near (place), used DND Acquisition
Card, Master Card Number _______ to purchase goods for personal use, in the
approximate amount of $_______, contrary to the Department of National Defence
Financial Administration Directive No._____, Acquisition Card Policy.
Particulars: In that s/he, in (date), at (place) instructed (name) to destroy departmental

material relating to the Canadian Forces deployment to Somalia.
129-3/13
s.129
SUMMARY OF LAW
A service tribunal would not be warranted in convicting an accused of an offence laid

under section 129 of the National Defence Act unless it was of the opinion that the act,
etc., was to the prejudice of both good order and discipline, having regard to its nature
and to the circumstances in which it took place.1
The word “neglect” refers to a failure to perform any duty imposed by law, practice or
custom and of which the accused knew or ought to have known. To be punishable under
section 129 of the National Defence Act “neglect” must be blameworthy. If neglect is
willful, i.e. intentional, it is clearly blameworthy. If it is caused by an honest error of
judgment and involves no lack of zeal and no element of careless or intentional failure to
take the proper action it is equally clear that it is blameless and cannot be a ground for
conviction. Where it is not thus completely blameless, the degree of blameworthiness
naturally varies, and a court trying such a case must consider the whole circumstances in
the case and in particular the responsibility of the accused. For example, a high degree of
care can rightly be demanded of an officer or non-commissioned member who is in
charge of a dangerous article where a slight degree of negligence may involve danger to
life; in such circumstances a small degree of negligence may be so blameworthy as to
justify conviction and punishment. On the other hand, such a slight degree of negligence
resulting from forgetfulness or inadvertence, in relation to a matter that does not rightly
demand a very high degree of care, would not be judged so blameworthy as to justify
conviction and punishment. The essential thing for the court to consider is whether in the
whole circumstances of the case as they existed at the time of the offence the degree of
neglect proved is such as, having regard to the evidence and their military knowledge as
to the amount of care that ought to have been exercised, renders the neglect so
substantially blameworthy as to be deserving of punishment.2
The expression “good order” used in section 129 of the National Defence Act is wide
enough to include good order in the sense in which the words would be understood in
civil life and applicable to civilians and in the sense in which they would be understood
in military life as applicable to members of a military force. It is not sufficient to prove
that the act, etc., is prejudicial to good order but it must also be proved that the act was
prejudicial to discipline. For example, an officer on leave, away from his unit and in
civilian clothes, who creates a disturbance in a theatre by talking too loudly might have
committed an act to the prejudice of good order, but not necessarily to the prejudice of
discipline. On the other hand, once it is established that the conduct, etc., is found to be
prejudicial to discipline it is also prejudicial to good order in the military sense as
applicable to members of a military force.3
If there is a real doubt as to whether one of the other offences prescribed in the National
Defence Act has been committed and the circumstances would justify a less serious
1
QR&O article 103.60 note A
2
QR&O article 103.60 note B
3
QR&O article 103.60 note C
129-4/13
s.129
charge under section 129 of the National Defence Act, the charge should be laid under
this section.4
Where a contravention mentioned in subsection 129(2) of the National Defence Act is the
basis of a charge, all that the prosecutors needs to prove is;
(i) that the alleged contravention actually occurred, and
(ii) in the case of a breach of regulations, orders or instructions under paragraph

129(2)(b) or (c) of the National Defence Act, that the regulation, order or
instruction was issued and published in a manner prescribed by article 1.205 or
1.216 as appropriate.
Upon proof by the prosecutor that the regulation, order or instruction was issued and
promulgated in the manner so prescribed, the accused is deemed to have knowledge of its
contents, and it is no defence for him to say that he was unaware of its existence or was
ignorant of its contents. The regulation, order or instruction must be a lawful one.7
In most cases attempts may be charged only under section 129 of the National Defence
Act but exceptions are to be found in section 848, section 889, section 10110 and section
130.11 There are two essential elements of an attempt;
(i) an intent to commit the offence
(ii) an act or omission towards the commission of the offence. An intent alone
is not sufficient if nothing is done to carry it into effect. A distinction
must, however, be drawn between acts or omissions toward the
commission of an offence and those which are mere preparation. It is not
possible to draw a clear line of distinction but, in general, preparation
consists in devising or arranging the means for the commission of an
offence while, on the other hand, an act or omission sufficient to support a
charge based upon attempting must involve a direct movement towards the
commission of an offence after the preparations have been made. For
example, a person, having an intent to set fire to a building, might
purchase matches for the purpose. The purchase would merely be a stage
in his preparations and such an act as to justify a charge based upon
4
QR&O article 103.60 note D
5
See Notification of Regulations, Orders, and Instructions – Reserve Force
6
See Notification by Receipt of Regulations, Orders and Instructions
7
QR&O article 103.60 note E, and See article 19.015 - Lawful Orders and Commands and Notes thereto
and article 19.02 – Conflicting Lawful Commands and Orders
8
See article 103.17 – Striking or Offering Violence to a Superior Officer
9
See article 103.61 – Desertion
10
See article 103.34 – Escape from Custody
11
See article 103.61 – Offences Against Other Canadian Law
129-5/13
s.129
attempting. An example of an act justifying a charge based upon

attempting would be the application of a lighted match to the building.12
The following are a few instances of matters commonly charged and alleged in the
statement of particulars of a charge under section 129 of the National Defence Act:
Being in improper possession of property belonging to a comrade where there is no

evidence of actual theft;
Producing a medical certificate, knowing it not to be genuine;
Improperly wearing a uniform, rank badges, ribbons or medals to which the accused
person was not entitled;
Giving a false name to a military policeman; and
Being unfit for duty by reason of previous indulgence in alcoholic stimulants.13
s. 129(1)
basis of a charge the prosecutor needs to prove;
1. Identity of the accused as the offender
2. The date(s) and place(s) of the offence
3. Conduct of the accused
4. The prejudice to good order and discipline resulting from the conduct
5. The blameworthy state of mind of the accused
s. 129(1) NEGLIGENCE
1. Identity of the accused as the offender
2. The date(s) and place(s) of the offence
3. That the alleged omission actually occurred;
12
QR&O article 103.60 note F
13
QR&O article 103.60 note G
129-6/13
s.129
4. That the omission amounted to blameworthy negligence; and
5. The prejudice to good order and discipline.
6. The blameworthy state of mind of the accused

[2008 CM 3017 and 2008 CM 3021 do not list a mental element to neglect under 129(1)]
s. 129(2)
basis of a charge, all that the prosecutors needs to prove is;
1. that the alleged contravention actually occurred, and
2. in the case of a breach of regulations, orders or instructions under paragraph

129(2)(b) or (c) of the National Defence Act, that the regulation, order or instruction
was issued and published in a manner prescribed by article 1.2014 or 1.2115 as
appropriate.
Cases/Examples
In R. v. MCpl Bona1618/99(SCM), the accused pleaded guilty to 1 x s.129. The President

defined “neglect” as meaning a marked departure from the conduct expected of a
reasonable member of a similarly experienced or specialist group. The accused was
sentenced to a reduction in rank to Private. [Ed. Note: The President addressed the
offender after he had pled guilty. In his explanation of the offence the President equated
the standard of proof for neglect to that of negligence under s. 124 NDA and criminal
negligence i.e. Marked departure. This characterization of the standard of proof conflicts
with Note B of QR&O 103.60. The offence is neglect to the prejudice, not negligence to
the prejudice.]
According to the President in R. v. LS Maier1741/97(SCM), the term “prejudice to good

order [sic] and discipline” does not require an actual harm or damage to good order in
military discipline. All that is required, according to the President, to establish prejudice
is a situation, which has the potential to harm good order and discipline. The President
adopted the decision of LCol Mathieu v. R 18(CMAC 379) with respect to the mens rea
for the offence of neglect to the prejudice of good order and discipline laid under s.129
NDA. The decision of Mathieu, although a negligent performance of a military duty
under s. 124 NDA, held that the actus reus of penal negligence is a marked departure
from the objective standard of care of a reasonably prudent person in the circumstances
and that this marked departure is sufficient to establish the mens rea, absent any evidence
14
See Notification of Regulations, Orders, and Instructions – Reserve Force
15
See Notification by Receipt of Regulations, Orders and Instructions
16
R. v. Bona, Court-Martial Transcript 18/99 at page187.
17
R. v. LS Maier, Court Martial Transcript 41/97, at page 55
18
Mathieu v. R. CMAC-379.
129-7/13
s.129
of incapacity to appreciate the risk involved in the conduct.19 LS Maier was found guilty
of 1 x.83 NDA and 1 x s.129 NDA (improperly misused his position as pay writer
onboard HMCS HURON to obtain a loan). He was sentenced to a severe reprimand and
a fine in the amount of $1,500.
The Judge Advocate in R. v. Col Haswell2005/97(GCM), defined “prejudice” by resorting

to the Concise Oxford Dictionary. The Judge Advocate defined the word when used in
the phrase “to the prejudice of” as meaning; “harm or injury that results or may result
from some action or judgement”. The Judge Advocate stated that the way in which the
term was used in the s.129 charge against the accused in this particular instance, (in that
he instructed an individual to destroy departmental material relating to the Canadian
Forces deployment to Somalia) meant an injury that results or may result to good order
and discipline. In other words, for the prosecution to prove prejudice to good order and
discipline, it does not have to prove that an actual injury to good order and discipline has
occurred, but only that such an injury may have or could have resulted from what the
accused did. One must ask whether the action of the accused, if found proven, was such
as to cause damage to, or adversely affect, or bring into danger the concepts of both good
order and discipline in all the circumstances of the case. If it is found that it was, then the
element of prejudice is present. The accused was found not guilty.
Judicial Notice of Propositions
The President in R. v. LS Maier21 found that the proposition of failure to comply with
direction, instructions, command, order of a superior is prejudicial to good order and
discipline, and is a matter of general service knowledge not subject to any reasonable
dispute. The President also found that the use of one’s position in the Canadian Forces
for personal purpose was prejudicial to good order and discipline and also qualified as
general service knowledge not subject to any reasonable dispute.
The court in R. v. MCpl London,2218/97(SCM) at the request of the prosecution and with
consent of defence, took judicial notice of the fact that the conduct of a subordinate in
knowingly giving a false statement to a superior officer could be prejudicial to good order
and discipline. However, the court pointed out that the prosecution still had the burden of
proving beyond a reasonable doubt that in making false statements the accused
understood that what he was doing was wrong. The accused was found not guilty of 1 x
s. 129 NDA (in reply to a question, the accused stated that the only information he had of
prior drug use by Leroux, Patrick was that Leroux had used drugs as a teenager and not
while a member of the Canadian Forces, knowing that this was a false statement). The
court held that the accused did not intentionally prejudice good order and discipline and
therefore lacked the mens rea to commit the service offence.
19
R. v. LS Maier, supra at page 230.
20
R. v. Col Haswell, Court-Martial Transcript 05/97 at 409.
21
R. v. LS Maier, supra at page 55.
22
R. v. MCpl London, Court-Martial Transcript 18/97(SCM) at 270-271 (Appeal dismissed, CMAC-413).
129-8/13
s.129
In the Court Martial Appeal Decision Pte McCully v. R,23 (CMAC-360), the accused
argued that the Court Martial was not properly instructed when told it could take judicial
notice of the fact that possession of the quantity of public property proved to have been in
the Appellant’s possession could be conduct to the prejudice of good order and discipline.
The appeal was dismissed, however, the court held that the Court Martial was not entitled
to take judicial notice of the mens rea essential to the offence and if it was the Judge
Advocate’s intent to so instruct the panel, he erred.
No Prima Facie Case
In R. v. Maj Gauvin,24 24/99(SCM), the President found that no prima facie case had
been made out on 8 x s.129 N.D.A. (sexually harassed a Corporal contrary to CFAO 19-
39). The President held that the prosecution must prove two conditions; firstly, that the
CO took measures to ensure that the orders were drawn to the attention of the accused,
and secondly that they are available to the accused. In this instance, the President found
that all CFAO’s were available at the accused’s unit either on paper or on CD-ROM.
However, there was no evidence to the effect that CFAO 19-39, which was available, was
in its current form. The current one had 25 pages while the one at the accused’s unit had
5 pages.
In R. v. LCdr Morrissey,2542/97(SCM) the President found no prima facie case on 4 x s.

129 NDA (improperly submitted for payments for leave transportation allowance,
mileage rates, and requesting an advance of which he was no longer authorized for). The
President stated that the prosecution must prove a standard of conduct, which may be
opposed to the accused i.e. a standard of conduct which had to be followed by the
accused and which was knowingly breached by the accused. In order to show that such
standard exists, the President stated that it has been customary to ask courts martial to
take judicial notice of propositions of general service knowledge. The President noted
that courts have agreed to do so “where it was demonstrated that such propositions, like
those which the prosecution submitted to this court earlier in this proceeding, were so
well known in the military community that they were not the subject of reasonable
dispute. Such propositions could therefore be opposed to the accused as binding on the
accused.” The prosecution requested 5 propositions to be judicially noticed;
1) the general obligation of Canadian Forces members not to expend or use
public property or funds for purposes not approved by proper military
authority;
2) That claiming allowances that one is not entitled to is prejudicial to good
order and discipline;
3) That claiming high rate mileage without entitlement is prejudicial to good
order and discipline;
4) That asking a superior to sign a document that such a superior is not
authorized to sign could be prejudicial to good order and discipline; and
23
Pte McCully v R, CMAC-360.
24
R. v. Maj Gauvin, Court-Martial Transcript 24/99(SCM) at page183.
25
R. v. LCdr Morrissey, Court-Martial Transcript 42/97(SCM), at pages 421-422.
129-9/13
s.129
5) That requesting a standing advance knowing that one is not authorized to hold
such an advance would be prejudicial to good order and discipline
Although the evidence was relevant to the issues, the President would not take judicial
notice of these five propositions as the defence was not made aware by the prosecution
that the case it had to meet included some general service knowledge which would be
tendered through judicial notice. Further, the President found that the prosecution
attempted to “fill gaps” in the evidence and therefore denied the request for judicial
notice.26 The denial resulted in a total lack of evidence on the required standard for all
four charges.
In R. v. Capt Plourde, 14/99(SCM), the accused was not guilty of 1 x. 129 (furnished a
person not authorized to receive copies of official reports) because no prima facie case
had been made out on the charge. The President followed the Court Martial Appeal
Court decision of R. v. MCpl London, which held that the accused had to intend some
prejudice to good order and discipline. In this instance, the President was not persuaded
that the accused intended to contravene the article or that he intended to cause any
prejudice to good order and discipline.
The President in R. v. Bdr Blouin 09/98(SCM) found that no prima facie case had been
made out against the accused with respect to 1 x s.129 NDA (used a drug contrary to the
QR&O’s). The QR&O’s at the accused’s unit were found to be historically and presently
out of date and therefore, the President was not convinced that the accused was aware of
the current regulations.
Deemed Knowledge
The accused in R. v. Maj Gauvin27 was charged with 8 offences under s.129. The
President stated that the court must be satisfied that the order allegedly contravened was
published and sufficiently notified to the accused. According to the court, QR & O 1.21
provides that
…all regulations, orders and instructions issued to the Canadian Forces shall be
held to be published and sufficiently notified to any person whom they may
concern if:
a) they are received at the base, unit or element at which that person is serving;
and
b) the commanding officer of the base, unit or element takes such measures as
may seem practical to ensure that the regulations, orders and instructions are
drawn to the attention of and made available to those whom they may
concern.
26
R. v. LCdr Morrissey, supra at page 400-401.
27
R. v. Maj Gauvin, supra at pages 184-186.
129-10/13
s.129
According to the President, if the court is satisfied that the order has been received at the
unit at which the accused person is serving, the court should go on to consider QR & O
1.21 (b) and its reference to QR & O 4.26 which reads;
..a commanding officer shall ensure that all regulations, orders, instructions,
correspondence and publications affecting members, whether in the performance
of their duties or in the conditions of their service, are given such publicity as will
enable those members to study them and become acquainted with the contents..
Therefore, the court held, it must be satisfied that the commanding officer of the accused
has taken the necessary measures required to draw the attention of the order to those
whom it concerns, including the accused. Then, by operation of the law, the accused is
deemed to have knowledge of the contents of the order, and it is no defence for him to
say that he was unaware of its existence or was ignorant of its contents. The court found
that the prosecution must prove two conditions; that the CO took measures to ensure that
the orders are drawn to the attention of the accused, and are made available to him and
that the accused was aware of the order through some sort of constructive notice. Major
Gauvin was found not guilty on all charges.
The accused in R. v. Capt Gray 16/98(SCM), was charged with 1 x s. 83 NDA (disobeyed
a lawful command) and 1 x s.129. (Conduct to the prejudice of good order and
discipline). The president in an application found that a prima facie case had not been
established against the accused (i.e. that the CFAO in question was published and
sufficiently notified to the accused). The court held that it must be satisfied that the order
was published and sufficiently notified to the accused. The President referred to QR&O
1.21, stating that if the court is satisfied that the order has been received at the unit at
which the accused person is serving, the court should go on to consider QR&O 1.21 (b)
and its reference to QR&O article 4.26. Therefore, the court found that it must be
satisfied that the commanding officer of the accused has taken the necessary measures to
draw the attention of the order to those whom it concern, including the accused, then by
operation of the law the accused is deemed to have knowledge of the contents of the
order and it is no defence for him to say that he was unaware of its existence or was
ignorant of its contents. The President found that there was no evidence as to what, if
any, measures were taken by the commanding officer to draw Captain Gray’s attention to
the CFAO in question. The court found there was also no evidence that the commanding
officer ensured the CFAO was given publicity that would have enabled Captain Gray to
study it and become acquainted with the contents. The court found Captain Gray guilty
of s.83. He was sentenced to a severe reprimand and a fine in the amount of $2,500.
Constructive Notice
In an application, the court in R. v. Sgt Strand 14/98 (SCM) found a prima facie case had
been established against the accused on three charges under s. 129. The President found
that the prosecution established that the accused was aware of the order through some
sort of constructive notice. The President found that the first part of QR&O was met (the
orders were received at the unit when Sgt Strand was serving there). According to the
court, Captain Duff brought the policy contained in the order on harassment to the
129-11/13
s.129
attention of Sgt Strand in some formal or informal fashion when he counseled him on it.
It was found that an exhibit signed by the commanding officer or wing commander
appeared to be an effort by the commanding officer to comply with the CFAO’s and
article 4.26 of the QR &O’s since the document effectively brought out the harassment
policy, the crux of it, to the attention of members who read it.
The accused in R. v. MBdr McMullin, 34/98(SCM), was found guilty of 1 x 129 N.D.A.
(sexually harassed a MCpl contrary to CFAO 19-39) The President found that the
CFAO’s in question were within the meaning of QR&O article 1.21 when published in
the Canadian contingent of the United Nations Disengagement Observer Force. The
accused was sentenced to a fine in the amount of $800.
The accused in R.v.Ex-Sgt Reddick, 40/97(SCM), was found guilty of 5 charges under
s.129 (sexually harassed a service member) and not guilty of one charge under s.129.
The President found that Sergeant Reddick’s behaviour, (putting his left hand inside a
female member’s shirt until he touched her bra, leaning down and biting her arm while
blowing in her ear, drawing a big penis on a pad located on her desk, telling her to clear
the blemishes on her face with sperm) was improper conduct pursuant to CFAO 19-39,
and further that he, a sergeant, or any reasonable person, ought to have known such
conduct would be unwelcome. The President found that the comment “Are you losing
weight? Looking good” by Sergeant Reddick to the female member could have been
interpreted as a compliment by other women and therefore, was left with a reasonable
doubt as to the nature of what really took place in that instance. Sgt Reddick was
sentenced to 30 days imprisonment (suspended) and a fine in the amount of $3,000.
Actual Knowledge
The accused in R. v. LCol Creech, 19/98(SCM), pleaded guilty to 1 x. s. 83 NDA and 1 x

s.129 (used foreign ammunition contrary to Canadian Forces Publication). The President
in explaining the elements of the offence stated that the prosecution must show beyond a
reasonable doubt that the accused is aware of the regulation. In this instance the accused
plead guilty which meant, according to the President, that the accused was aware that he
could not use foreign ammunition in breach of the Publication. The accused was
sentenced to a severe reprimand and a fine in the amount of $1,000.
Negligent Discharge Cases
Negligent discharges of weapons pose a threat to all personnel. When a weapon is

negligently discharged, the person in control of that weapon has made an error in
handling that weapon. Fines for this offence vary significantly. Generally, if the
discharge occurs in a theatre of operations, the fine will be higher than if it had occurred
on a firing range in Canada. If the weapon is discharged into a proving barrel, the fine
will generally be lower than if the accused had fired a round through a door or a wall
while conducting unloading drills. If the accused is in a position where she uses her
weapon on a daily basis, (e.g. Military Police) that person should be held to a greater
129-12/13
s.129
standard of care than, for example, one who is handling the weapon for their first time.
Most negligent discharge offences are dealt with at the summary trial level.
Cases/Examples
In R v LCol McEachern, 05/00(SCM) the accused, the Comanding Officer of a reserve

unit, was participating in a run-down on a rifle range in CFB Borden when his
C-7 discharged accidentally. The accused pleaded guilty to the single charge against him
and he was fined $750.00.
In R v LCol Atkinson, 31/00(SCM) the accused was the Commanding Officer of the
Royal Canadian Dragoons and was visiting one of his tank troops in Kosovo. While in
Leopard Tank, he failed to carry out proper safety drills on the tank’s coaxial machine
gun. Later he bent over to straighten a 105mm round that had become slightly dislodged.
He bumped the trigger on the machine gun with his helmet and fired three rounds into the
tank in front of him. He pleaded guilty to a charge under s.129 and was fined $5,000.00.
129-13/13
s.130

s.130
AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE
NATIONAL DEFENCE ACT, THAT IS TO SAY, “…”
ELEMENTS OF OFFENCES
CARELESS USE OF A PROHIBITED WEAPON

S. 86(1) CRIMINAL CODE
From 2008 CM 1003:

3. That the accused used a prohibited weapon;
4. That the accused used a prohibited weapon in a careless manner; and
5. That the accused had no lawful excuse for his use of the prohibited weapon.
ASSAULT
SECTION 265 OF THE CRIMINAL CODE

3. That the accused intentionally applied force to another person;
4. That the person did not consent to the force that the accused intentionally applied.
ASSAULT CAUSING BODILY HARM

SECTION 257 OF THE CRIMINAL CODE
From 2005 CM 39:

8. That the person did not consent to the force that the accused intentionally applied;
9. That bodily harm resulted from the application of force.
ASSAULT WITH A WEAPON

S. 267(A) OF THE CRIMINAL CODE
From 2008 CM 1003:

4. That the person did not consent to the force that the accused intentionally applied;
130-1/2
s.130
5. That the accused knew that the person did not consent to the force that the accused intentionally
applied; and
6. That a weapon was involved (either the carrying or the use).
EXTORTION
S. 346 OF THE CRIMINAL CODE
From 2006 CM 06

3. An inducement of the complainant by the accused to do something;
4. The use of a threat as an inducement;
5. An intention on the part of the accused to obtain something by the making of the threat; and,
6. A lack of any reasonable justification or excuse for the conduct of the accused.
130-2/2

Elements of The Offence

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Elements of The Offence

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INTRODUCTION

Observations or comments regarding this publication can be forwarded to:

Director of Military Prosecutions

s.83 – Disobedience of a Lawful Command

s.84 – Striking or Offering Violence to a Superior Officer

s.85 – Insubordinate Behaviour

s.86 – Quarrels and Disturbances

s.90 – Absence Without Leave

s.95 – Abuse of Subordinates

s.112 – Unauthorized Use of CF Vehicles

s.117(f) – An Act of a Fraudulent Nature

s.124 – Negligent Performance of a Military Duty

s.125(a) – Wilfully or Negligently Making a False Entry in a Document

s.129 – Conduct to the Prejudice of Good Order and Discipline

ELEMENTS OF THE OFFENCE

DISOBEYED A LAWFUL COMMAND OF A SUPERIOR OFFICER

ELEMENTS OF THE OFFENCE

1. Identity of the offender

From 2007 CM 4005:

1. The identity of the accused as the offender;

2. The date and place of the offence;

3. That the accused was given an order;

4. That the order was lawful;

5. That the accused received or knew the order;

8. That accused did not comply with the order.

To establish an offence under this section it is necessary to prove non-compliance with a

The command must be a lawful one10.

19.015 – Lawful Commands and Orders

B) Usually there will be no doubt as to whether a command or order is lawful or

(C) An officer or non-commissioned member is not justified in obeying a command

19.02 – Conflicting Lawful Commands and Orders

In R. v. Capt. McCallum, 25/96(SCM), the member was found guilty of s. 83 NDA. He

In R. v. LCol Creech, 19/98(SCM), the member, the Commanding Officer of a reserve

In R. v. WO Turnbull, 73/89(DCM), the member was found guilty of s. 83 NDA in that,

ELEMENTS OF THE OFFENCE

STRUCK A SUPERIOR OFFICER

USED VIOLENCE TOWARD A SUPERIOR OFFICER:

Particulars: In that s/he on (date) at approximately (time) at (location), overturned a

ELEMENTS OF THE OFFENCE

1. Identity of the offender

1. The identity of the accused as the offender;

2. The date and place of the offence;

3. That the accused offered violence toward another person;

6. That the accused offered the violence intentionally.

(G) In order to constitute an offence of attempting to strike, or of attempting to use

(ii) an act towards the commission of the offence.

ELEMENTS OF THE OFFENCE

Used insulting language to a superior officer

Behaved with contempt toward

USED THREATENING LANGUAGE TO A SUPERIOR OFFICER

USED INSULTING LANGUAGE TO A SUPERIOR OFFICER

USED INSULTING LANGUAGE TO A SUPERIOR OFFICER

BEHAVED WITH CONTEMPT TOWARD A SUPERIOR OFFICER

ELEMENTS OF THE OFFENCE

1. The identity of the accused as the offender;

2. The date and place of the offence;

3. That the accused used threatening or insulting language to another person;

6. Insubordinate intention to use threatening or insulting language.

ELEMENTS OF THE OFFENCE

FOUGHT WITH A PERSON SUBJECT TO THE CODE OF SERVICE DISCIPLINE

USED PROVOKING SPEECHES TOWARD A PERSON SUBJECT TO THE

USED PROVOKING SPEECHES TOWARD A PERSON SUBJECT TO THE