DATE: May 20, 2008
SUBJECT: VISITING MILITARY PERSONNEL IN ALBERTA
To provide a procedure for dealing with foreign military personnel who are charged with offences in Alberta.
Foreign military personnel, their dependant(s), and, in some cases, their civilian staff present in Canada in connection with their official duties, are subject to the criminal jurisdiction of both the Canadian civil (i.e. civilian) court and of their military courts.
Pursuant to Part II of the Visiting Forces Act R.S. c. V-6, the civil courts have the primary right to exercise jurisdiction in respect of any act or omission constituting an offence against any law in force in Canada alleged to have been committed by a member of a visiting force or a dependant, except the offence involves the property or security of the designated state, the person or property of another member of the visiting force, or a dependant, or an act done or anything omitted in the performance of official duty. In such cases, the visiting force’s service courts have the primary right to exercise jurisdiction.
Provision exists for the state having primary jurisdiction to waive its jurisdiction in favour of the other state. Canada's treaty obligations to NATO and the general principle of comity of nations require that sympathetic consideration be given to request from a foreign state for such a waiver.
- In a situation in which a Crown prosecutor determines that a person accused of a criminal offence is a member of a visiting force, the accused person’s Commanding Officer should be informed forthwith, and the position of the visiting force ascertained. It may be necessary to adjourn the matter for this purpose.
- If the offence is one over which the visiting force’s service courts have the primary right to exercise jurisdiction, and the visiting force does wish to exercise that right, proceedings in the civil court should be withdrawn and the matter left to the visiting military authorities.
If the visiting force does not wish to exercise that right, a waiver in Form 4 of the Visiting Forces Regulations C.R.C., c. 1598 should be obtained from the accused person’s Commanding Officer.
- If the offence is one over which the civil court has the primary right to exercise jurisdiction, and the visiting force does not wish to exercise jurisdiction, the Crown prosecutor may proceed with the case in the ordinary manner.
If the visiting force wishes to assume jurisdiction in such cases, the Crown prosecutor should forward the request to the responsible Chief Crown Prosecutor. If it appears that it is in the public interest to waive jurisdiction to the visiting service court, the Chief Crown Prosecutor shall advise the Assistant Deputy Minister (Criminal Justice) of the request, and shall provide a waiver in Form 1 of the Visiting Forces Regulations for signing by the Deputy Minister.
The signed waiver should then be forwarded to the accused person’s Commanding Officer, and, in the event that an Information has already been laid, filed with the court. No waiver may be made after the civil court has made an adjudication.