QR&O: Volume II - Chapter 116 Review Of Findings and Punishments

Effective 1 january 2006, the official version of the QR&O is that published in PDF format on this website.

The consolidation of the QR&O is current as of 3 July 2019. The last modifications to the QR&O came into force on 28 June 2019.

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Amendment List:

  • 1 September 2018 – note (B) amended: 116.02

History:

(Refer carefully to article 1.02 (Definitions) when reading every regulation in this chapter.)

116.01 – APPLICATION

This chapter applies in respect of the review of findings made and punishments imposed at summary trials and courts martial.

(G) [P.C. 1999-1305 effective 1 September 1999]

116.02 – REVIEW AUTHORITIES – SUMMARY TRIALS

(1) Subsections 249(3) and (4) of the National Defence Act provide:

"249. (3) The review authorities in respect of findings of guilty made and punishments imposed by persons presiding at summary trials are the Chief of the Defence Staff and such other military authorities as are prescribed by the Governor in Council in regulations.

(4) A review authority in respect of any finding of guilty made and any punishment imposed by a person presiding at a summary trial may act on its own initiative or on application of the person found guilty made in accordance with regulations made by the Governor in Council."

(2) In addition to the Chief of the Defence Staff, the following officers may act as review authorities in respect of findings of guilty made and punishments imposed at summary trials:

(a) an officer commanding a command;

(b) an officer commanding a formation;

(c) subject to paragraph (3), a commanding officer; and

(d) an officer acting as a review authority under article 108.45 (Review of Finding or Punishment of Summary Trial).

(3) A commanding officer may only exercise the powers and jurisdiction of a review authority in respect of findings made or punishments imposed at a summary trial when:

(a) the offender is under the commanding officer's command; and

(b) the finding was made or the punishment was imposed at a summary trial, other than a trial before a superior commander.

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTES

(A) The powers and limitations of review authorities are set out in the following provisions of the National Defence Act:

(i) section 249.11 (Quashing of Findings),

(ii) section 249.12 (Substitution of Findings),

(iii) section 249.13 (Substitution of Punishments),

(iv) section 249.14 (Mitigation, Commutation and Remission of Punishments), and

(v) section 249.15 (Conditions Applicable to New Punishments).

(B) There are two processes established for the review of the findings made and punishments imposed at summary trials:

(i) pursuant to article 108.45 (Review of Finding or Punishment of Summary Trial), a person found guilty at a summary trial may apply for review of any finding of guilty made or the sentence imposed, and

(ii) under article 107.15 (Forwarding and Review of Documents Placed on the Unit Registry), Records of Disciplinary Proceedings are reviewed monthly by legal officers on behalf of command authorities for errors on the face of the record and non-compliance with procedural requirements.

While these processes are designed to deal with most review cases, review authorities may also act on their own initiative in individual cases.

(C) Mitigation is awarding a lesser amount of the same punishment, as, for example, by reducing the term of imprisonment to which an offender has been sentenced.

(D) Commutation is replacing a punishment by awarding another punishment lower in the scale of punishments.

(E) Remission is dispensing with the requirement to undergo the whole of a punishment or any part that remains. For example, in the case of a sentence of 30 days detention, where a member has served 10 days of the punishment of detention, a review authority could remit up to 20 days of the remaining period of detention.

(C) [1 September 1999; 1 September 2018 – Note (B)(ii)]


116.03 – ADMINISTRATIVE ACTION REQUIRED – FINDING QUASHED, FINDING SUBSTITUTED OR SENTENCE ALTERED

(1) Where an officer referred to in subparagraphs (2)(a), (b) or (c) of article 116.02 (Review Authorities – Summary Trials) exercises the powers and jurisdiction of a review authority and quashes a finding of guilty, substitutes a new finding for any finding of guilty or alters a sentence in respect of an officer or non-commissioned member, the officer shall:

(a) ensure that the member, the presiding officer and, where the review authority is not the member's commanding officer, the member's commanding officer are notified in writing of the decision as soon as practicable after it is made;

(b) comply with paragraph (7) of article 107.14 (Maintenance of Unit Registry of Disciplinary Proceedings); and

(c) cause the appropriate entries to be made to Part 7 of the original Record of Disciplinary Proceedings.

(2) When the member's commanding officer receives written notification of a review authority's decision to quash a finding of guilty, substitute a new finding for any finding of guilty or alter a sentence the commanding officer shall:

(a) cause the appropriate entries to be made to the member's service records, including the conduct sheet (see DAOD 7006-0, Conduct Sheets); and

(b) take any other action necessary to give effect to the decision.

(G) [P.C. 1999-1305 effective 1 September 1999]

116.04 – REVIEW AUTHORITY – COURTS MARTIAL

Subsections 249(1) and (2) of the National Defence Act provide:

"249. (1) The review authority in respect of findings of guilty made and punishments imposed by courts martial is the Governor in Council.

(2) The review of a finding of guilty made and any punishment imposed by a court martial must be on application of the person found guilty or the Chief of the Defence Staff."

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTE

The powers of the Governor in Council to quash a finding of guilty, substitute a new finding for any finding of guilty and alter the sentence of a court martial, which are set out in Part III, Division 11 of the National Defence Act, draw their origins from the Crown Prerogative. These powers are discretionary and may be used to grant exceptional remedies under exceptional circumstances.

(C) [1 September 1999]

116.05 – EFFECT OF QUASHING OF FINDING

(1) After a finding of guilty has been quashed (see section 249.11 of the National Defence Act) and no other finding of guilty remains, any fine, forfeiture, deduction or other diminution of pay and allowances, as well as any loss of rank, seniority or advantages accruing from service that have resulted from the sentence imposed, shall be restored to the person in respect of whom the finding was made.

(2) If a charge tried by summary trial has been quashed, a new trial shall not be conducted by the officer who conducted the initial summary trial unless it is not practical, having regard to all the circumstances, to have the case tried by another officer.

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTE

The quashing of a finding does not, in and of itself, affect the legality of the disciplinary proceedings in which the finding was made, the carrying out of any part of the sentence prior to the finding being quashed, or the legality of a release from the Canadian Forces resulting from the finding. After a finding is quashed and set aside, the person may be tried as if no previous trial of the charge had been held.

(C) [1 September 1999]

[116.06 to 116.99: not allocated]

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