Guide for Accused and Assisting Officers

Supersedes A-LG-050-000/AF-001 dated 2002-08-31
Issued on Authority of the Chief of the Defence Staff
OPI: JAG/DLaw/MJP&R
2009-10-06

BACKGROUND

1. The requirement for a separate system of military justice has long been recognized in Canadian law. The safety and security of Canadians depend in large measure upon the efficiency and discipline of the Canadian Forces. For that reason, CF members are subject to the Code of Service Discipline in addition to the ordinary law applicable to all Canadians.

2. The Code of Service Discipline is designed to deal with service offences ranging from those that are minor in nature to those that are serious and criminal. Two categories of service tribunals have been established to deal with service offences: summary trials and courts martial. Summary trials are designed to provide prompt and fair justice in dealing with service offences that are relatively minor in nature but which have an important impact on the maintenance of military discipline and efficiency, in Canada and abroad, in time of peace or armed conflict.

3. The vast majority of charges under the Code of Service Discipline are dealt with by summary trial. Prior to holding a summary trial, the accused is given the opportunity to elect to be tried by court martial, except in the case of certain disciplinary offences where the circumstances surrounding the commission of the offence charged are considered to be minor in nature as provided in QR&O article 108.17 (Election to be Tried by Court Martial).

PURPOSE

4. The purpose of this guide is to place the election to be tried by court martial in its procedural context and to provide a convenient summary, for use by accused service members and their assisting officers, of the differences between summary trials and courts martial, so that accused are in a position to make an informed election. This guide describes, in a general way, the jurisdiction of certain officers to conduct summary trials, the charging process, the role of the assisting officer and the process for the provision of information concerning charges to an accused.

TYPES OF SUMMARY TRIAL

5. Three categories of officers are authorized to conduct summary trials: commanding officers, officers to whom commanding officers have delegated certain powers of trial and punishment (delegated officers) and superior commanders. The jurisdiction of these officers is determined by the offences that they may try, the rank and status of the individuals that they may try and the powers of punishment that they possess.

1. Commanding Officers. A commanding officer, as defined in QR&O article 101.01 (Meaning of "Commanding Officer"), is authorized to try an officer cadet or a non-commissioned member below the rank of warrant officer who is a member of the unit or present in the unit. The offences that may be tried by a commanding officer are some of the less serious military offences under the National Defence Act (NDA) and a limited number of civil offences laid under section 130 of the NDA that are considered to have an important impact on the maintenance of internal unit discipline. These offences are listed in QR&O article 108.07 (Jurisdiction – Offences). The powers of punishment of a commanding officer are listed in the table to article 108.24 of QR&O (Powers of Punishment of a Commanding Officer). To learn more about the punishments that may be imposed by a commanding officer, refer to Annex A of this guide.
2. Delegated Officers. A commanding officer may, within certain limitations, delegate powers of trial and punishment to officers not below the rank of captain who are serving under the commanding officer's command. Delegated officers may only try non-commissioned members below the rank of warrant officer and may not try civil offences punishable under section 130 of the NDA. The maximum powers of punishment of a delegated officer are listed in the table to article 108.25 of QR&O (Powers of Punishment of a Delegated Officer). To learn more about the punishments that may be imposed by a delegated officer, refer to Annex A of this guide.
3. Superior Commanders. The following officers may conduct summary trials as superior commanders: officers of the rank of brigadier-general and above and officers appointed by the Chief of the Defence Staff. This includes officers other than general officers commanding a formation, including base commanders not below the rank of lieutenant-colonel, commanders of squadrons of Her Majesty's Canadian Ships and commanding officers of Her Majesty's Canadian Ships who do not have a superior commander on board or in company with the ship. These officers may try an officer below the rank of lieutenant-colonel or a non-commissioned member above the rank of sergeant in respect of any service offence referred to in QR&O paragraphs 108.07(2) and (3) (Jurisdiction – Offences). The powers of punishment of a superior commander are listed in the table to article 108.26 of QR&O (Powers of Punishment of a Superior Commander). To learn more about the sentences that may be imposed by a superior commander, refer to Annex A of this guide.

6. Before superior commanders and commanding officers assume their duties, they must be trained in accordance with a curriculum established by the Judge Advocate General and certified as qualified to perform their duties in the administration of the Code of Service Discipline by the Judge Advocate General, pursuant to QR&O article 101.09 (Training and Certification of Superior Commanders and Commanding Officers).

7. QR&O article 108.10 (Delegation of a Commanding Officer's Powers) also requires the same training and certification for delegated officers to perform their duties in the administration of the Code of Service Discipline.

THE CHARGING PROCESS

8. The decision whether or not to lay a charge under the Code of Service Discipline is made by a commanding officer, an officer or non-commissioned member authorized to do so by a commanding officer, or an officer or non-commissioned member of the Military Police assigned to investigative duties with the Canadian Forces National Investigation Service (see QR&O article 107.02 – Authority to Lay Charges). The facts surrounding the incident determine what, if any, charges are to be laid.

9. Generally speaking, it is the rule rather than the exception to seek legal advice before laying charges. Effectively, legal advice must be obtained, unless a person of or below the rank of sergeant is to be charged with one of five minor offences listed in QR&O article 107.03 (Requirement to Obtain Advice From Legal Officer – Charges To Be Laid) and the charge would not give rise to an election.

10. A charge is laid when it is reduced to writing on a Record of Disciplinary Proceedings (RDP) and signed by a person authorized to lay charges. A copy of the RDP must be provided to the accused. This guide is not intended to provide detailed information concerning specific types of charges, including any alternative charges which may be laid. That information may be found in QR&O Chapter 103 (Service Offences) and article 107.05 (Laying of Alternative Charges).

THE ASSISTING OFFICER

11. In accordance with QR&O article 108.14 (Assistance to Accused), as soon as possible after a charge has been laid, a commanding officer shall appoint an officer to assist the accused. A non-commissioned member above the rank of sergeant may be appointed in exceptional circumstances. Normally, the assisting officer will be a member of the accused's unit. However, there may be circumstances where it would be more practical to appoint as an assisting officer, a member of another unit such as, for example, where the accused's trial is to be held by the commanding officer of another unit or where, due to the small size of the unit, no officer is available to assist. An accused may also request that a particular officer be appointed to act as the assisting officer and that officer shaIl be made available if the officer is willing to act and the exigencies of the service permit.

12. The role of the assisting officer is to assist the accused, to the extent that the accused desires, in the preparation and presentation of his case. Two important facets of the assisting officer's role are to assist the accused to understand the nature of the proceedings during both the pre-trial and trial stages and to assist the accused in making an informed election.

13. Prior to the accused making an election with respect to trial by court martial, the assisting officer shall ensure that the accused is aware of:

1. the nature and gravity of any offence with which the accused has been charged; and
2. the differences between trial by court martial and trial by summary trial, including the differences between:
   1. the powers of punishment of a court martial and a summary trial,
   2. the accused's rights to representation at a court martial and assistance at a summary trial,
   3. the rules governing reception of evidence at a court martial and a summary trial, and
   4. the accused's right to appeal the finding and sentence of a court martial and to submit a request for review of a summary trial.

PROVISION OF INFORMATION TO THE ACCUSED

14. Prior to the summary trial, the officer having powers of summary trial will, in accordance with QR&O article 108.15 (Provision of Information to Accused), ensure that the accused and the assisting officer are provided with or given access to any information to be relied on at the summary trial, including any information that tends to show that the accused did not commit the offence charged. The information will be made available in sufficient time to permit the accused to properly prepare for the summary trial and, where the accused is offered the right to elect to be tried by court martial, to consider the information in making the election (see QR&O article 108.17 – Election To Be Tried by Court Martial).

15. Information provided to the accused and the assisting officer would normally include a copy of the unit investigation report, a copy of any written statement made by a witness or the accused and a copy of any other documentary evidence that is not included in the unit investigation report. In the case of a military police report dealing with more than one individual or events not forming the basis of the charges to be heard, the accused would be provided only with those portions of the report containing the information that would be relied on at the summary trial or that would tend to show that the accused did not commit the offence charged.

16. Examples of the kind of information normally provided to the accused is set out in Note B to QR&O article 108.15 (Provision of Information to Accused). A list of all information provided is also attached to the Record of Disciplinary Proceedings provided to the accused.

PRE-TRIAL CONSIDERATIONS

17. Certain steps related to the process of laying charges, where they are taken by officers having powers of summary trial, may have an impact on the officer's ability to proceed with the case. Except in very limited circumstances, an officer may not conduct the trial where the officer has carried out or has directly supervised the investigation of an offence, issued a search warrant with respect to the case or where the officer has laid or recommended the charges relating to the offence (see 108.09 – Limitation on Jurisdiction – Investigations, Search Warrants and Charges).

18. Before the commencement of the summary trial, the officer having jurisdiction in the matter must determine if he is precluded from trying the accused (see QR&O article 108.16 – Pre-Trial Determinations) due to:

1. the accused's rank or status;
2. any limitation on jurisdiction that would impede him from hearing the case, such as:
   1. the type of offence (QR&O 108.07 - Jurisdiction - Offences and QR&O 108.125 - Jurisdiction - Offences);
   2. the passage of time since the alleged offence has been committed (QR&O 108.05 Jurisdiction - Limitation Period); and
   3. restrictions imposed by the commanding officer on a delegated officer's powers relating to the imposition of punishment (QR&O 108.10 - Delegation of a Commanding Officer's Powers);
3. whether the officer's powers of punishment are inadequate having regard to the gravity of the alleged offence;
4. whether there are reasonable grounds to believe that the accused is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence;
5. whether it would be inappropriate to try the case having regard to the interests of justice and discipline; and
6. whether the accused has elected to be tried by court martial.

ELECTION TO BE TRIED BY COURT MARTIAL

19. An accused person charged with a service offence triable by summary trial must be offered an election to be tried by court martial unless the offence is contrary to (see QR&O art. 108.17 – Election to be Tried by Court Martial):

1. section 85 (Insubordinate Behaviour);
2. section 86 (Quarrels and Disturbances);
3. section 90 (Absence Without Leave);
4. section 97 (Drunkenness); and
5. section 129 (Conduct to the Prejudice of Good Order and Discipline), but only where the offence relates to military training, maintenance of personal equipment, quarters or work space, or dress and deportment.

20. Even where the offence is contrary to one of the provisions in paragraph 19 above, the presiding officer must offer the accused an election where he or she determines that detention, reduction in rank or a fine in excess of 25% of monthly basic pay could reasonably be imposed if the accused is found guilty of the offence (see QR&O 108.17 - Election to be Tried by Court Martial).

21. Where an accused has been offered the right to elect to be tried by court martial, the assisting officer must ensure that the accused is aware of the following:

1. the nature and gravity of any offence with which the accused has been charged; and
2. the differences between a summary trial and a court martial (see paragraph 29).

22. An accused person will be given a reasonable period of time to make an election. That period, which shall not in any case be less than 24 hours, is intended to be of sufficient length to permit the accused to consider the charge and the information provided, to contact legal counsel if the accused wishes to do so, to decide whether to elect to be tried by court martial and to make the accused's decision known in the manner prescribed by the presiding officer. Should the accused not be able to make an election within the prescribed period, an extension may be requested. The accused will be required to record this decision on the Record of Disciplinary Proceedings in the presence of a witness in the manner prescribed by the officer having summary trial jurisdiction or in accordance with directions issued for that purpose within the unit.

23. The accused's refusal to make an election will be interpreted as an election to be tried by court martial, and the accused will be so advised.

24. Where an accused has elected to be tried by court martial, the accused may withdraw the election at any time before charges are preferred by the Director Military Prosecutions (DMP). After charges have been preferred by the DMP, the election may only be withdrawn with the consent of the DMP.

LEGAL ADVICE

25. An officer exercising summary trial jurisdiction has a duty to ensure that the accused is provided with a reasonable opportunity, during the period given to make the election, to consult with legal counsel concerning the making of the election. Of course, the decision whether or not to actually consult counsel will be left up to the accused. As noted in paragraph 22 above, an accused may request additional time to make an election.

26. The assisting officer and the accused may consult legal counsel concerning the making of an election to be tried by court martial. Legal counsel from the office of the Director of Defence Counsel Services (DDCS) has been mandated to provide legal advice in these circumstances (see QR&O article 101.20(2)(c) – Duties and Functions of Director of Defence Counsel Services). They are available, normally by telephone, at no expense to the accused. An accused may consult civilian legal counsel at his or her own expense.

27. Instructions for contacting DDCS counsel for advice concerning the making of an election will ordinarily be available within each unit. In the event that those instructions are not available within the unit, the accused or the assisting officer should contact the nearest Office of the Judge Advocate General. In addtion, on the JAG'S Web site, you can find the phone number to reach the DDCS at the following address: http://jag.dwan.dnd.ca/mj_directorate_e.html#top

RIGHTS OF ACCUSED AT A SUMMARY TRIAL

28. At any summary trial, an accused has the right:

1. to have the trial conducted in English, French or both official languages;
2. to have an officer appointed to assist him or her to the extent he or she desires;
3. to admit any of the particulars of the charge;
4. to request the presence of witnesses whose attendance may, having regard to the exigencies of the service, reasonably be procured without issuing a summons;
5. to present evidence;
6. to remain silent, meaning that the accused is not required to testify, unless he or she so desires;
7. to ask relevant questions of any witness;
8. to be found not guilty in respect of a charge, unless the presiding officer is convinced beyond a reasonable doubt that the accused committed the offence charged or any other related, attempted or less serious offence for which the accused may be found guilty on that charge; and
9. if found guilty, to present evidence and make representations concerning the severity of the sentence.
10. to request a review of a finding of guilt on the ground that it was unjust and/or the sentence imposed on the ground that it was unjust or too severe.

DIFFERENCES BETWEEN SUMMARY TRIALS AND COURTS MARTIAL

29. The following summary highlights the important differences between a summary trial and a court martial:

1. Right to legal counsel. At a summary trial, an accused does not have the right to be represented by legal counsel, but may be represented at his or her own expense by civilian legal counsel at the discretion of the officer trying the case (see Note B to QR&O article 108.14). At a court martial, the accused has a right to be represented by legal counsel. He may hire civilian legal counsel at his or her own expense or he may have legal counsel appointed by the Director Defence Counsel Services at no expense to the accused. Legal counsel prepares the defence case for trial, cross-examines prosecution witnesses, presents defence witnesses, and acts on behalf of the accused at aIl stages of the court martial.
2. Powers of punishment. A court martial has significantly greater powers of punishment than an officer conducting a summary trial. See Annex A for a comparison of the punishments that may be imposed at a summary trial and at a court martial.
3. Right to challenge officers conducting the trial. No provision is made for an accused to object to being tried by the officer presiding at a summary trial. However, the accused may bring this issue to the attention of the presiding officer by raising it before or during the summary trial. At court martial, the accused has the right to object to being tried by the members of the court martial panel and/or the military judge.
4. Appointment of prosecutor. At a summary trial, exclusively the presiding officer deals with the charges. At a court martial, a legal officer is appointed as prosecutor by the Director of Military Prosecutions. The prosecutor presents evidence by calling and examining witnesses, introducing documents etc., and argues the prosecution case at all stages of the trial.
5. Charges. At a summary trial, the presiding officer will proceed on all charges contained in the Record of Disciplinary Proceedings. Where an accused elects trial by court martial, the case will be further assessed by a prosecutor and may be further investigated. Based on that further analysis and investigation, charges may be amended or added.
6. Procurement of witnesses. The officer exercising summary trial jurisdiction will arrange for the attendance of aIl military witnesses at trial. That officer will also try to obtain the attendance of civilian witnesses, by seeking their cooperation, bearing in mind that he does not have authority to issue a summons to compel civilian witnesses to attend a summary trial. At a court martial, a military judge, the Court Martial Administrator or the court martial may, by summons, compel the attendance of any witness, civilian or military.
7. Reception of evidence. At a summary trial, proceedings will be conducted under oath, although the Military Rules of Evidence will not apply. The officer presiding at the summary trial will hear and consider aIl evidence that the officer determines to be relevant in deciding whether or not the accused committed the offence charged and, where applicable, imposing an appropriate sentence. At a court martial, the Military Rules of Evidence apply and evidence will only be admitted in accordance with those rules.
8. Right to appeal. There is no appeal from the findings and sentence of a summary trial. However, the accused may challenge the findings and/or the sentence of a summary trial by submitting a request for review, together with a statement of the relevant facts and reasons why a finding is unjust or a punishment is unjust or too severe, to the appropriate review authority within 14 days of the termination of the summary trial (for more details, see QR&O article 108.45 – Review of Finding or Punishment of Summary Trial).

CONCLUSION

30. The Officer responsible for this publication is the Director of Law/Military Justice Policy & Research. Questions concerning the content of this publication or recommendations for improvement should be forwarded to the nearest Office of the Judge Advocate General or to the following address:

ANNEX A
POWERS OF PUNISHMENT – SERVICE TRIBUNALS

The following table shows the powers of punishment of commanding officers, delegated officers and superior commanders and those of General and Standing Courts Martial.

SUMMARY TRIAL

COMMANDING OFFICER

A commanding officer may impose the following punishments (for more details concerning the conditions that apply to these punishments, see QR&O art. 108.24):

1. detention (to a maximum of 30 days);
2. reduction in rank, but for one substantive rank only;
3. reprimand;
4. fine (to a maximum of 60% of member's monthly basic pay);
5. confinement to ship or barracks (to a maximum of 21 days);
6. extra work and drill (to a maximum of 14 days);
7. stoppage of leave (to a maximum of 30 days); and
8. caution.

DELEGATED OFFICER

A delegated officer may impose the following punishments, subject to limitations that may be imposed by the commanding officer in writing (for more details concerning the conditions that apply to these punishments, see QR&O art. 108.25):

1. reprimand;
2. fine (to a maximum of 25% of the member's monthly basic pay);
3. confinement to ship or barracks (to a maximum of 14 days);
4. extra work and drill (to a maximum of 7 days);
5. stoppage of leave (to a maximum of 14 days); and
6. caution.

SUPERIOR COMMANDER

A superior commander may impose the following punishments (for more details concerning the conditions that apply to these punishments, see QR&O art. 108.26):

1. severe reprimand;
2. reprimand; and
3. fine (to a maximum of 60% of the member's monthly basic pay).

COURT MARTIAL

STANDING COURT MARTIAL

A Standing Court Martial (SCM) may impose any of the following punishments (see QR&O 104.02 – Scale of punishments and section 175 of the National Defence Act):

1. imprisonment for life;
2. imprisonment for two years or more;
3. dismissal with disgrace from Her Majesty's service;
4. imprisonment for less than two years;
5. dismissal from Her Majesty's service;
6. detention;
7. reduction in rank;
8. forfeiture of seniority;
9. severe reprimand;
10. reprimand;
11. fine; and
12. minor punishments¹.

GENERAL COURT MARTIAL

A General Court Martial (GCM) may impose any of the punishments listed above (see QR&O 104.02 – Scale of punishments subject to section 166.1 of the National Defence Act).

Footnotes

¹ All courts martial may impose a minor punishment (see QR&O art. 104.13 – Minor punishments), subject to the same limitations imposed upon a commanding officer (see QR&O art. 108.24 – Powers of punishment of a commanding officer).