Guideline for initiating judicial pre-trial custody hearing - Custody Review Officers and unit's responsibilities

1.  This guideline is issued to complement references A and B in establishing the steps to follow when the Custody Review Officer (CRO) causes a person in custody to be taken before a military judge.

2.  Pre-Trial Custody Review Hearings are an important element of the Canadian military justice system. In fact, a pre-trial custody entails that a person is deprived of his or her freedom while being presumed innocent. Therefore, the Office of the Chief Military Judge deals with the requests as expeditiously as possible. The aim is to facilitate holding the judicial hearing within 24 to 48 hours following the request signed and submitted by the CRO, and received at the Office of the Chief Military Judge, or as soon thereafter the person in custody is ready to proceed.

3.  A judicial review of pre-trial custody is initiated when the CRO has decided not to release the person in custody. The CRO “shall, as soon as practicable, cause the person to be taken before a military judge”. The CRO does so by filling out the Request for Pre-trial Custody Hearing (Annex), and sending it during or after hours, to the Court Martial Administrator (CMA) by email, non-encrypted. It is essential that all of the requested information be included in the Request in order to avoid any unnecessary delays in holding the hearing. Any other information or documents related to this process (for example, the documents listed in sections 158 and 158.1 of the NDA) are to be provided to the representative of the Canadian Armed Forces (CAF) and to the person in custody or his/her counsel.

4.  Unit authorities find it beneficial, and are encouraged to, seek assistance from their assigned legal advisor to prepare the Request and to be ready to provide the administrative support required to hold the hearing. Responsibility for providing support such as a suitable room for the hearing, offices and court staff for a Pre-Trial Custody Review Hearing that occurs at a unit, as with a court martial, is the responsibility of the unit Commanding Officer. The CMA can provide guidance and assistance with these matters upon request.

5.  On receipt of the CRO’s request, the CMA will request counsel to advise of their availability to proceed with the hearing. Once this information is received, the CMA will seek from the Chief Military Judge the assignment of a military judge to preside at the hearing. Following judicial assignment, the assigned court reporter will arrange for a conference call between the military judge, the representative of the CAF and the counsel of the person in custody to deal with procedural matters and set a date and time for the hearing.

6.  If the military judge assigned to preside at the hearing directs that a videoconference process is to be initiated, the assigned court reporter will take the necessary steps to establish a videoconference between the locations of the military judge, the person in custody, his or her counsel and the representative of the CAF. The latter will forward as soon as possible to the assigned court reporter, by email, the documentary evidence intended to be introduced at the hearing only in the case where he or she will not physically be present at the location of the hearing. Such evidence will then be under the custody and control of the assigned court reporter, to hand over to the military judge when the representative of the CAF introduces them as exhibits at the hearing and instructs the court reporter to do so.


7.  If at any time the Pre-Trial Custody Review Hearing is no longer required because the person in custody has been released by the CRO before the hearing, both unit authorities and the representative of the CAF are to advise the CMA of this fact as soon as possible and follow up with a written confirmation that the person in custody has been released from custody. The CMA will then advise the military judge assigned to preside at the hearing, the Chief Military Judge and the Court Reporter and the CMA will then cancel all administrative arrangements made for the hearing.

Bruno Noury, CD
Court Martial Administrator

Annex

Fill out the form below to submit a request for a pre-trial custody hearing, or download and complete the form and email it to: JMC-CMJ@forces.gc.ca, Bruno.Noury@forces.gc.ca and Michel.Saindon@forces.gc.ca.

You must complete all fields marked with an asterisk (*) and any other fields that apply. An incomplete form might result in a delay or rejection of your request.

1. Personal information of the person in custody
2. Detention details

Name and phone number of the person responsible for custody (i.e. Military Police Duty Non-Commissioned Officer or unit Warrant Officer):

3. Custody review
4. Charges
5. CAF Representation (Director of Military Prosecutions)
6. Legal Representation (Queen's Regulations and Orders (QR&O) article 105.26)
7. Nearest Video Conference Facility

References 

A. section 159 of the NDA
B. QR&O articles 105.25 and 105.26

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