Chapter 10: Miscellaneous Matters - Defence Counsel Services Manual

ARREST, CUSTODY AND RELEASE FROM CUSTODY¹

The NDA places a continuing obligation on arresting and custodial authorities to justify retaining in custody a person who has been arrested. An arrested person is to be released from custody as soon as it is practicable after arrest unless the arresting person reasonably believes that retention in custody is necessary.² In making this determination, the arresting person must consider all of the circumstances of the situation, including³

• the gravity of the alleged offence;
• the need to establish the identity of the arrested person;
• the need to secure or preserve evidence of or relating to the alleged offence;
• the need to ensure that the arrested person will appear before a service tribunal;
• the need to prevent the continuation or repetition of the alleged offence or the commission of another offence; and
• the need to ensure the safety of the arrested person or of any other person.

The person delivering an arrested person to be retained in custody must furnish the custodian with an account in writing⁴ that sets out why the arrested person is being committed to custody, and must provide a copy to the person retained in custody.⁵ In turn, the custodial officer must, within 24 hours of the arrest, deliver to the custody review officer⁶ a report of custody,⁷ the account in writing and any representations made by or on behalf of the person retained in custody.⁸ The custody review officer must review the report of custody and accompanying documents within 48 hours of the arrest⁹ and direct the release of the person in custody unless he or she reasonably believes

The custody review officer may require a person being released from custody to sign an undertaking¹¹ to comply with some or all of the following conditions:¹²

• to remain under military authority;
• to report at specified times to a specified military authority;
• to remain within the confines of a specified defence establishment or at a location within a geographical area;
• to abstain from communicating with specified persons or to refrain from attending specified places; and
• to comply with such other reasonable conditions as are specified.

Where an application is made to that effect, a direction to release a person from custody may be reviewed by¹³

• the custody review officer's commanding officer if the custody review officer was designated by a commanding officer; and
• the next officer in the disciplinary chain of command if the custody review officer is a commanding officer.

The officer conducting the review of the direction to release from custody, after affording both a representative of the CF and the subject of the release direction an opportunity to be heard, may impose any conditions of release from custody¹⁴ set out in NDA sections 158.6(1)(a)-(e).

The custody review officer who does not direct release from custody must take the person before a military judge for a show cause hearing to have the matter reviewed.¹⁵

In such instances, the person in custody is entitled to DDCS counsel,¹⁶ and the custody review officer is responsible for ascertaining the person's desires respecting counsel for the hearing.¹⁷

In most cases, the Director of Military Prosecutions will represent the CF at a show cause hearing. Should that not be possible, the custody review officer will appoint someone to be the representative of the CF.¹⁸ Where the person in custody is not charged with a designated offence, the burden of persuasion (i.e., to show that custody should be continued) is on the representative of the CF on a balance of probabilities. However, in those cases where the person is charged with a designated offence, the burden (i.e., to show that release should be directed) is on a balance of probabilities on the person in custody who is seeking release from custody.

The procedure¹⁹ at the show cause hearing is similar to that at other proceedings presided over by a military judge.

At the conclusion of the hearing, if the military judge releases the person in custody, he or she is returned to duty. However, the military judge may, at his or her discretion, direct release from custody upon the person's giving an undertaking or undertakings.²⁰ Both the CF and the person who is the subject of the hearing may appeal the military judge's direction to the Court Martial Appeal Court.²¹

FITNESS TO STAND TRIAL²²

An accused person is considered "unfit to stand trial" when he or she is

"Mental disorder", as used in the above definition, means a "disease of the mind."²⁴ This term includes any illness, disorder or abnormal condition that impairs the human mind and its functioning. The term does not include self-induced states caused by alcohol or drugs or transitory mental states such as hysteria or concussion.

An issue of fitness to stand trial that arises during a summary trial deprives the summary trial of jurisdiction,²⁵ and the presiding officer must refer the matter to a court martial for determination.²⁶ Accused persons are presumed fit to stand trial unless the contrary is established on a balance of probabilities.²⁷

Accused persons at hearings to determine fitness to stand trial are entitled to be represented by DDCS counsel.²⁸ The issue of fitness to stand trial can be brought

• as a preliminary proceeding, by either the defence or prosecution;²⁹
• as a plea in bar of trial, by the defence;³⁰ or
• at any time during the court martial, at the instance of either party or of the judge.³¹

If the issue is brought by either the defence or the prosecution, that party has the burden of persuasion.³² In arriving at a determination of the issue, a court martial may, of its own volition or at the insistence of either the defence or prosecution,³³ order an assessment³⁴ of the accused.³⁵

If the issue of fitness to stand trial is raised as a preliminary proceeding or as a plea in bar of trial, the procedure for such proceedings is followed. In all other instances a voir dire is conducted³⁶ in which the applicant followed by the other party, respectively,

• makes an opening statement;
• adduces their evidence; and
• makes their closing addresses, with the applicant having the right of reply.

A court martial that finds an accused unfit to stand trial sets aside any plea that was entered and holds a disposition hearing.³⁷ A military judge³⁸ conducts the disposition hearing “in as informal a manner as appropriate in the circumstances”.³⁹ Nonetheless, the parties may adduce evidence, make oral or written submissions, call witnesses and cross-examine witnesses called by the other party.⁴⁰ The disposition⁴¹ subsequently ordered is “the least onerous and least restrictive to the accused person”⁴² of either of the following:

• release from custody, subject to such conditions as the court martial considers appropriate; or
• detention in custody in a hospital or other appropriate place, subject to such conditions as the court martial considers appropriate.⁴³

However, psychiatric or other treatment of the accused may not be ordered without the consent of the accused.⁴⁴

Where an accused person is found by a court martial to be unfit to stand trial, the Review Board⁴⁵ of the province or territory where the court martial was held is required to hold a hearing either to review the disposition made by the court martial or to make its own disposition.⁴⁶ Where the court martial was held outside of Canada the Review Board with which the Minister of National Defence has made arrangements for the benefit and welfare of the accused person is required to hold the hearing.⁴⁷

PROOF OF A PRIMA FACIE CASE⁴⁸

Not later than two years after a finding that an accused was unfit to stand trial – and every two years thereafter – a court martial

Accused persons are entitled to be represented by DDCS counsel at this prima facie case inquiry.⁵⁰ The procedure⁵¹ followed at the inquiry is, once again, similar to that at other proceedings presided over by a military judge.

If the prosecution fails to establish a prima facie case, the court martial must find the accused not guilty of the charge(s) in question.⁵²

Footnotes

¹ See QR&Os art. 105.12–105.30 for actions respecting arrest, custody and review of custody.

² NDA subss. 158(1)(a) to (f).

³ NDA subss.158(1)(a) to (f).

⁴ See QR&O art. 105.16(3) for the form of the account in writing.

⁵ QR&O art. 105.16(2).

⁶ NDA s. 153 defines "custody review officer" as a commanding officer or an officer so designated by a commanding officer.

⁷ NDA subs. 158.1(1).

⁸ NDA subs. 158.1(5).

⁹ NDA subs. 158.2(1).

¹⁰ NDA subs. 158.2(2). However, NDA subs. 158.4 requires retention in custody if the arrested person is charged with a "designated offence" as defined in NDA s. 153 (offences listed in s. 469 of the Criminal Code; offences contrary to subss. 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act or conspiracy to commit those offences; offences the minimum punishment for which is life imprisonment; offences committed while at large after having been released in respect of another offence and for which a punishment greater than imprisonment for less than two years may be imposed; and a criminal organization offence).

¹¹ NDA subs. 158.6(1).

¹² Ibid., subss. (a) – (e). The form of the undertaking is set out in subs. (2).

¹³ NDA subs. 158.6(2).

¹⁴ NDA subs. 158.6(3).

¹⁵ NDA subs. 159(1).

¹⁶ QR&O arts. 101.20(2)(e) and 105.26(2).

¹⁷ QR&O art. 105.26(2)–(5).

¹⁸ QR&O art. 105.27(1).

¹⁹ The procedure at the show cause hearing is set out at QR&O art. 105.27. See also QR&O art. 105.29.

²⁰ NDA subs. 159.4(1). See QR&O art. 105.28 for the Form of Direction and Undertaking.

²¹ NDA subs. 159.9(1).

²² See QR&O art. 119.03–119.19.

²³ QR&O art. 119.02.

²⁴ Ibid.

²⁵ NDA subss. 163(1)(e) and 164(1)(e) and QR&O art. 108.16(1)(a)(iv).

²⁶ At General and Disciplinary Courts Martial, the issue of fitness to stand trial is a matter to be determined by the panel.

²⁷ NDA subs. 198(1).

²⁸ QR&O arts. 101.20(2)(b) and 119.07.

²⁹ QR&O art. 112.05(5)(b) and (e).

³⁰ QR&O art. 112.24(1)(e).

³¹ NDA subs. 198(2).

³² NDA subs. 198(3).

³³ QR&O art. 119.05(2).

³⁴ See QR&Os arts. 119.53–119.59 for the regulations respecting assessment orders and assessment reports.

³⁵ NDA subs. 198(4).

³⁶ QR&O art. 119.10(1).

³⁷ NDA subs. 200(2). See QR&O arts. 119.44–119.52 for the regulations respecting disposition hearings.

³⁸ QR&O art. 119.44(2).

³⁹ QR&O art. 119.44(3).

⁴⁰ QR&O art. 119.44(9).

⁴¹ See QR&O arts. 119.12–119.19 for the regulations respecting dispositions.

⁴² NDA subs. 201(1).

⁴³ NDA subss. 201(1)(a) and (b).

⁴⁴ NDA subs. 201(2).

⁴⁵ NDA s. 197 defines the Review Board as “the Review Board established or designated for a province pursuant to subsection 672.38(1) of the Criminal Code.” Under s. 35 of the Interpretation Act "province" includes "territory".

⁴⁶ NDA s. 202.25.

⁴⁷ Ibid.

⁴⁸ See QR&O arts. 119.23–119.31.

⁴⁹ NDA subs. 202.12(1). For military personnel, a Standing Court Martial conducts the inquiry; for civilians, a Special General Court Martial conducts the inquiry.

⁵⁰ QR&O art. 101.20(3)(c).

⁵¹ See QR&O art. 119.29.

⁵² NDA subs. 202.12(2).