Proceedings and hearings

Courts martial are formal military courts, with powers and procedures established under the NDA to deal with serious service offences. Service offences are listed in Part III, Division 2 of the NDA.

Courts martial are presided over by military judges who have powers of punishment up to and including imprisonment for life. Powers of punishment refers to the range of penalties that can be imposed on a person found guilty of an offence.

Courts martial are conducted according to the NDA and Military Rules of Evidence, and procedures are similar to those used in civilian criminal courts. As such, a Military Prosecutor is assigned to each trial and the accused is represented by defence counsel, either military or civilian.

At courts martial, the standard of proof is beyond a reasonable doubt.

Summary hearings are a non-penal, administrative process to deal with service infractions, which are minor breaches of military discipline and are held at the unit level. Service infractions are defined in Chapter 120 of the QR&Os and cover a variety of behaviours, omissions, or misconduct in three categories: property and information, military service, and drugs and alcohol.

Summary hearings are conducted by an officer who is at least one rank above the member charged with the infraction. The OCSH may impose a sanction according to their status.

Summary hearings are conducted according to the principles of Canadian administrative law, particularly the principles of procedural fairness and natural justice. As such, the member charged with the service infraction must be given the opportunity to request the presence of witnesses, present evidence, and make representations at all stages of the hearing.

At summary hearings, the standard of proof is on a balance of probabilities. That means the OCSH will find a service infraction has been made out if, based on the evidence, they determine it is more likely than not that the service infraction was committed.

The location of a court martial is decided collectively by the military judge, Military Prosecutor, defence counsel, and Court Martial Administrator based on a number of factors.

Courts martial are typically held at the base or unit where you are serving at the time that charges are laid.

In some cases, your trial may be held elsewhere from your unit or base (for example, if you were serving at another unit at the time of the alleged offence or if most of the witnesses are located at another unit).

If you are with a unit deployed or posted outside of Canada, courts martial proceedings can be conducted in operational theatres or on ship. Alternatively, depending on your circumstances, you may be sent home to stand trial.

Summary hearings are typically conducted at the base or unit where you are serving at the time that charges are laid.

The location of a summary hearing will depend on:

• the availability and location of the accused, the witnesses, or any person against whom a service infraction is alleged to have been committed
• the location of the incident that gave rise to the charge
• the operational posture of the unit

The location for a summary hearing needs to balance the convenience and disciplinary interests of the unit with the principles of fairness and the six-month limitation period.

When a court martial is scheduled by the Court Martial Administrator, the accused person will receive the original Summons to the Accused Person, which contains information about the date, time, and location of the trial.

Additionally, the Court Martial Administrator sends the Convening Order to the CO of the person accused. Included in the Convening Order are instructions for the CO to provide the accused person with copies of:

• the Convening Order
• the charge sheet
• the Summons to the Accused Person
• sections 118.1 and 249.23 of the NDA, which explain what happens if the accused fails to appear at their trial

You will be required to sign a Delivery of Documents to Accused Person form, acknowledging that you have received these files from your CO.

If a summary hearing is to be commenced, you will be given written notice that the hearing will be convened, including the date and time where it will be held. Your CO and the OCSH must ensure you have also received any documents that will be relied upon as evidence.

If you are charged with a service offence, your case will be subject to a presumptive ceiling. Presumptive ceilings establish the time limit to hear a matter at trial. For courts martial, there is a presumptive ceiling of 18 months. The time between when your charge is laid and your court martial concludes should not exceed 18 months.

If your case exceeds the presumptive ceiling, without evidence of exceptional circumstances, the delay can be considered unreasonable and the military judge may issue a stay of proceedings and cease the trial.

If you are charged with a service infraction, there is a limitation period that stipulates your summary hearing must begin within six months from the day you allegedly committed the infraction.

When the limitation period has passed, there is no jurisdiction to hear your case, and as a result, the charge cannot be proceeded with. When a case cannot proceed due to an expired limitation period, you must be informed by your CO or the officer to whom the charge was subsequently referred.

There are two types of courts martial: standing courts martial and general courts martial.

Military judges preside over both types of trial, although the authority who determines a verdict (whether you are found guilty or not guilty of a service offence) differs between the two types of trial.

Standing courts martial

At standing courts martial, the military judge sits alone and determines the finding of your case and, if applicable, passes a sentence.

General courts martial

At general courts martial, a military judge presides over proceedings, but a panel of five CAF members determines your verdict. If you are found guilty, the military judge passes the sentence.  

A court martial panel performs a function similar to a jury in a civilian court, and is composed of CAF members selected at random by the Court Martial Administrator on behalf of the Office of the Chief Military Judge. If the person facing charges is an officer, the panel members will all be officers. If the person facing charges is a NCM, two members of the panel must also be NCMs, both holding the rank of Warrant Officer or above.

The type of court martial that is convened depends on the maximum punishment for the offence.

• For offences that are punishable by imprisonment for less than two years, or a punishment that is lower in the scale of punishments, standing courts martial are normally convened.
• For offences that are punishable by a maximum penalty of imprisonment for life, general courts martial are convened, unless both parties consent to appear before a standing court martial.
• For offences that are punishable by other punishments, the accused is given the right to choose the type of trial between a standing court martial and a general court martial: standing or general.

To understand who else is involved in conducting courts martial, you can consult the Court martial procedure guide.

Summary hearings are conducted by either a superior commander, a CO, or a delegated officer (an officer to whom a commanding officer has delegated powers of punishment) who was not involved with the investigation, issuing a warrant, or laying the charge. The member who conducts a summary hearing is the OCSH.

In the case where the person facing charges is an officer, the OCSH must be at least one rank above the accused member.

The OCSH is responsible alone for hearing your case and finding whether you committed a service infraction or not. At the start of a summary hearing the OCSH must swear an affirmation or oath to administer justice according to law without partiality, favour, or affection.