ARCHIVED - Chapter 3: Review of the Summary Trial System

3.1 Introduction

In order to establish and maintain a well-disciplined military force, it is vital to have a system of military justice which provides for the timely, effective and fair disposition of service offences. The military justice system is designed to be portable and can be applied anywhere CF personnel are located.1 Those subject to the Code of Service Discipline2 (CSD) are liable to be charged and tried for breaches of the CSD, which includes violations of the provisions of the Criminal Code and other federal statutes, no matter where the offence takes place. In effect, the military justice system accompanies and deploys with the CF.

The military justice system as provided in the CSD is comprised of two types of tribunals for dealing with service offences: the summary trial3 system and the more formal court martial system, which will be reviewed in Chapter 4. The summary trial system is used to deal with the vast majority of disciplinary matters in the military justice system. It has two principal purposes: to provide prompt but fair justice in respect of minor service offences and to contribute to the maintenance of military discipline and efficiency, in Canada and abroad, in time of peace or armed conflict.4

This chapter sets out the statistical data collected in relation to summary trials and provides an analysis of the results of the Survey on the Summary Trial Process.

3.2 Summary Trials conducted during the Reporting Period

Detailed statistics of summary trials held between 1 April 2008 and 31 March 2009 are provided at Annex E while key statistics and analysis are set out below.

A total of 1,9635 disciplinary proceedings were held during the reporting period. Of the total number of CF members charged, 536 members had the right to elect trial by court martial and 28 members, or 5.2% of the accused, elected to be tried by court martial. This percentage has remained relatively consistent over the past few years; namely, it was 6.60% in 2005-2006, 8.49% in 2006-2007 and 6.80% in 2007-2008 with the overall average for the four year period of 6.78%.6 The consistency in these figures over recent reporting periods suggests that members facing charges have continued confidence in the summary trial process. This confidence is supported by the fact that the overwhelming majority of accused members elect to be tried in the summary trial process when given the choice between summary trial and court martial.

According to the summary trial data collected for the 2008-2009 reporting period7, a total of 1,898 summary trials were conducted. This represents a decrease of 147 summary trials, or 7.1%, from the previous reporting period. Although an earlier cut-off date was used during the current reporting period for the inclusion of Records of Disciplinary Proceedings (RDPs)(from 9 September 09 as opposed to 1 October 08), this is not believed to be a significant factor affecting the reported decrease in the total number of summary trials. As was noted in the 2007-2008 Annual Report, the number of summary trials held during each of the past six reporting periods varies both up and down over time. For instance, between the 2002-2003 and 2007-2008 reporting periods, the range of summary trials varied between 1482 and 2045 with an average of 1715.8 Therefore, it would appear that the 1898 summary trials conducted during the reporting period, while above average, remains consistent with the 2002-2008 figures.

Specifically, the summary trial statistics indicate some notable changes within certain commands. For example, the Canadian Expeditionary Force Command (CEFCOM) experienced a decrease in the number of summary trials from 164 to 107, or 34.8%, while the Chief of the Land Staff (CLS) and Chief of the Maritime Staff (CMS) reported respective decreases of 39 and 38 summary trials during the reporting period.

With regard to the nature of the charges laid during the reporting period, the statistics indicate that 1,264 or 53.2% of charges were laid under section 129 of the NDA – Conduct to the Prejudice of Good Order and Discipline. This figure is virtually identical to that of the 2007-2008 reporting period (53.3%). When collecting data on charges laid under section 129 of the NDA, it is important to note that four categories exist for statistical purposes: (1) offences of a sexual nature9, (2) offences related to drug or alcohol, (3) offences where an election to be tried by court martial is offered (excluding offences captured by the first two categories), and (4) offences where no election to be tried by court martial is offered. In this reporting period, the distribution of summary trials by category of section 129 offences was as follows: 1.35% for offences of a sexual nature, 6.14% for offences related to drugs or alcohol, 13.85% where a right to elect was offered and 31.86% where no election was offered. This distribution of NDA section 129 charges was, with one exception, generally consistent with and varied minimally from the distribution reported during the 2007-2008 period. The number of section 129 offences of a sexual nature increased from 19 charges to 32 charges, representing an increased proportion from 0.72% to 1.35%. This category of offence will be monitored in order to observe any future trends.

The last annual report included an in-depth analysis of charges under section 129 of the NDA concerning the negligent discharge of weapons. During the 2006-2007 and 2007-2008 reporting periods summary trials related to the negligent discharge of a weapon represented 22.8% and 25% of the total number of summary trials. As was reported in the 2007-2008 Annual Report, it was determined that the overwhelming majority of negligent discharges involved CF members in training or in the early stages of their military careers when familiarity with weapons is at its lowest. Further, over the last few reporting periods, representatives of the chain of command have advised the Office of the JAG that training for overseas deployments has become more robust and realistic given the nature of the missions in which the CF is involved. Weapons training is conducted more frequently, more ammunition is being made available and consequently, the opportunity for negligent discharges has increased as more personnel train more frequently with weapons.

During the 2008-2009 reporting period, the number of summary trials conducted for negligent discharges decreased by 102 (from 510 to 408). This represents 22% of the total number of summary trials held during the reporting period. This percentage remains consistent from percentages reported in the 2006-2007 and 2007-2008 reporting periods.

It is important to note that the percentage of summary trials held in operational settings for negligent discharges decreased significantly during the reporting period. During 2008-2009, 29 summary trials related to negligent discharge offences were conducted in an operational setting. This represents 19% of all summary trials conducted in such theatres. As previously reported, the percentage of summary trials related to negligent discharge offences were 37% in 2007-2008, 43% in 2006-2007 and 33% in 2005-2006. This suggests that both enhanced training and the deterrent effect of sentencing at service tribunals is having an effect regarding the handling of weapons during operations.

3.3 Survey on the Summary Trial Process

Survey Process

For the third year, the Office of the JAG has sought the assistance of the Director Military Personnel Operational Research and Analysis (DMPORA) to conduct a CF-wide survey on the administration of summary trials. This survey is designed to:

  • indicate how well CF members and units are complying with the regulations concerning the conduct of summary trials;
  • contribute to the growing body of statistical information against which the performance of the military justice system can be measured;
  • contribute to the ongoing review of the NDA reforms; and
  • determine the effect of enhanced military justice training over the past six years.

The survey questionnaire targeted commanding officers (COs) and all other persons who were involved in the summary trial process; namely: accused members, assisting officers, presiding officers, review authorities and charge-laying authorities. The survey was widely publicized throughout the CF and was made available to potential respondents on the Defence Information Network (DIN) and in paper form from 3 March to 2 April 2009. In total, 451 responses to this year's survey were received. Respondents included 38 former accused members, 123 assisting officers, 121 presiding officers, 37 COs, 8 review authorities and 124 charge-laying authorities. The number of respondents represents a decrease of 26.7% when compared to the 2007–2008 reporting period during which there were 615 responses. In comparison, 691 responses were received by DMPORA in 2006-2007.

Given that the number of former accused members who responded to the survey was only 38 out of a potential 1,963, it would be unsafe to make definitive conclusions on trends or percentages. What is discussed below is a review of the survey results and analysis with this caveat in mind.

Survey Results and Analysis

The format of the 2009 survey was based on previous versions of the questionnaire. A question was inserted asking the respondents to identify the means by which they had been made aware of the existence of the survey. This information was used to determine the effectiveness of the various means of survey distribution. Responses to this question are examined below. As well, several changes were made to the wording of certain questions to improve clarity. Further, for the third year, questions were posed seeking respondents' views on the overall fairness of the summary trial process. Seeking such input from participants is important to evaluate the level of trust stakeholders have in the summary trial process. Providing respondents an opportunity to give specific details to this effect contributes to future improvements of the summary trial process. Collecting views on matters such as the timeliness of the process, the training of presiding and assisting officers and the access to evidence by the accused is significant in this regard.

This year's survey indicates that most of the respondents learned of its existence through the direct e-mail distribution method (50.1%), followed by the e-mail distribution by supervisors (21.3%). The CANFORGEN informed 17.6% of the respondents while notification of the survey through the DIN and JAG websites was the least reported source of information (at 4.6% and 9.0% respectively).

The survey continues to measure adherence to the three tenets of fairness in the summary trial system.

Tenet 1: Compliance with regulatory requirements.

  1. COs are certified by the JAG to perform their duties in the administration of the CSD after having successfully completed the Presiding Officer Certification Training (POCT);10
  2. Unit Registry of Disciplinary Proceedings are maintained by each unit and contain documents such as: Records of Disciplinary Proceedings (RDPs), reports of investigations and decisions following the review of a summary trial;11
  3. RDPs are completed correctly, including the final disposition of all charges, and submitted for review to the local Deputy Judge Advocate (DJA) or to the regional Assistant Judge Advocate General (AJAG) and ultimately to the JAG;
  4. Timely feedback is provided by legal advisors and review authorities; and
  5. Requests from the public for access to the Unit Registries of Disciplinary Proceedings are handled appropriately.12

This year's survey indicates a high and increasing degree of compliance among respondents with regard to the regulatory requirements related to the administration of summary trials. Further, survey results indicate that COs are complying with the regulations requiring that they be qualified as presiding officers and maintain a Unit Registry of Disciplinary Proceedings. However, this year's survey did disclose one presiding officer who presided at summary trial without proper certification. This reporting is somewhat similar to last year's reporting period, whereby one CO, one presiding officer and one review authority had indicated having fulfilled duties related to summary trials without proper certification. As with the results in the 2007-2008 reporting period, legal officers in the field were reminded to ensure that those responsible for the administration of the CSD become and remain qualified. The DLaw/MJP&R will continue to consult and work with AJAGs and command legal advisors to develop and institute measures aimed at verifying that all presiding officers are certified or receive an exemption from the CDS to participate in the administration of military justice.13 With regard to the provision of feedback, 85.7% of responding COs indicated having received timely comments from legal advisors, which represents a decrease from the 91.4% reported in last year's Annual Report. This issue has been brought to the attention of DJAG/Regional Services.

Tenet 2: Fair treatment at summary trial.

  1. Trials are held in the official language chosen by the accused.
  2. Accused persons who are entitled to elect trial by court martial are given the opportunity and legal support to do so.14
  3. Accused persons receive:15
    1. all information identified in the regulations;
    2. access to the evidence that will be used to support the charge; and
    3. a list of witnesses who will testify to support the charge.
  4. Accused persons are given the opportunity to exercise their right to put their case to the presiding officer before a finding is made.16
  5. Accused persons are given the opportunity to exercise their right to present evidence of mitigating considerations at sentencing.17

This year's results reveal a substantial and increasing degree of compliance in all of the above mentioned areas. Such results indicate that in general, fair treatment was accorded to accused persons. Responses from former accused members were mostly positive, and indicated that the indices of fairness noted above were observed in the vast majority of cases. One issue of concern raised however, was the perception of bias of the presiding officer. For example, comments expressed by the accused, assisting officers, presiding officers and charging authority include the perception of pre-determined outcomes for summary trials and the notion that the chain of command holds significant influence over the summary trial process. Bias was also raised as a concern in the last two surveys.

While presiding officers are required to act impartially and separate their personal interests and beliefs from their decision-making powers and duties, they also have a vested interest in the discipline of the unit. The NDA and QR&O set out a number of specific requirements to enhance impartiality at the summary trial level:

  1. unless it is unavoidable, those who carry out or supervise an investigation, sign a search warrant or lay or cause a charge to be laid may not preside at the summary trial of the same matter;18
  2. at the commencement of every summary trial, all presiding officers are required to take an oath or solemn affirmation to administer justice according to law, without partiality, favour or affection;19 and
  3. superior authorities are prohibited from intervening in any summary trial.20

As noted in last year's report, the issue of bias within the summary trial process was referred to the Canadian Forces Military Law Centre (CFMLC) with a request to provide additional guidance relating to the issue of bias being incorporated in military justice training. In Chapter 5 of this report, the efforts of the CFMLC in this regard are discussed, particularly as they relate to improvements in the POCT training course syllabus and materials. Bias in particular, has been addressed in the training instructions.

Tenet 3: A fair and responsive review process.

  1. All accused persons are informed of their right to seek review.
  2. The review process is efficient.

In the current reporting period, 71% of respondents indicated an awareness of the option to request a review of the finding and sentence passed by the presiding officer. Further, 76.9% of respondents indicated they were made aware of this right by their assisting officer. In contrast, 95.1% of the assisting officers responding indicated that they informed the accused of the right to request a review. These results are generally consistent when compared to the previous reporting period, where 5 of 8 former accused members stated that they were made aware of the right to request a review with 95.6% of assisting officers reporting they communicated this right to the accused.

As reported in last year's report, the attempts to increase awareness through military justice training and the distribution of CF publications such as the Code of Service Discipline and Me and the Guide for Accused and Assisting Officers have been met with limited success.21 In Chapter 5 of this report, details are provided with respect to the CFMLC Code of Service Discipline Familiarization Project. This project is being developed to improve awareness of the rights and responsibilities of CF members with regard to military justice issues and to improve the ability of those involved in the military justice process to provide complete information and assistance to accused members.


Footnotes

1 National Defence Act, R.S.C. 1985, c. N-5 [NDA] s. 60.

2 The CSD is the foundation of the military justice system. It sets out disciplinary jurisdiction and describes service offences, punishments, powers of arrest and the organization and procedures for service tribunals, appeals and post-trial review.

3 See generally NDA, Part III Code of Service Discipline, at ss. 162.3 – 164.2, and the Queen's Regulations and Orders for the Canadian Forces [QR&O], Chapter 108.

4 QR&O, article 108.02.

5 This figure includes the total number of summary trials (1898) and courts martial (65) conducted.

6 The JAG Summary Trial Statistics for each of the reporting periods from 2006-2007 to 2008-2009.

7 As of 9 September 2009.

8 Note the summary trial statistics have been corrected to reflect the issue discussed in Chapter 2.2.

9 Offences of a 'sexual nature' heard at summary trial generally involve sexual harassment, inappropriate comments, inappropriate use of the internet and fraternization. Serious offences of a sexual nature such as sexual assault are dealt with at courts martial.

10 QR&O, article 101.09.

11 QR&O, article 107.14.M

12 QR&O, article 107.16.

13 QR&O, article 101.09.

14 QR&O, articles 108.17 and 108.18.

15 QR&O, article 108.15.

16 QR&O, article 108.20.

17 Ibid.

18 Supra note 1 at s. 163(2).

19 QR&O, article 108.20(2) - Procedure.

20 QR&O, article 108.04 - Summary Trial – Non-Intervention by Superior Authority.

21 These publications can be found in PDF at: www.forces.gc.ca/jag/publications/pubpages/TMLC-FCDM-eng.asp [sic].

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