Annex E — 2018-2019 Summary Trial Stakeholder Survey Results – Military Justice Stakeholder Engagement Project

Executive Summary

The Judge Advocate General (JAG) has directed that the superintendence of the military justice system (MJS) be enabled in a manner that ensures that the Government of Canada, the Department of National Defence (DND), the Canadian Armed Forces (CAF) and Canadians have confidence that the MJS is legitimate, effective and efficient; thereby promoting the discipline, efficiency and morale of the CAF.

With this strategic direction, the Military Justice Stakeholder Engagement Project (MJSEP) was created to connect with military justice stakeholders in order to measure the efficiency, effectiveness, and legitimacy of the MJS and to make data-driven improvements. MJSEP is part of the Office of the JAG’s initiative to gather and analyze data on the administration of the MJS and to identify and correct weaknesses in the system.  This initiative saw the creation of the Superintendence Enhancement and Assessment Project (SEAP) and the Superintendence Enhancement and Assessment Team (SEAT).

In addition to MJSEP, the SEAT also oversees the development of the Justice Administration and Information Management System (JAIMS) and the Military Justice System – Performance Monitoring Framework (MJS-PMF).  Improved stakeholder engagement will complement the quantitative data which will be available through JAIMS (once fully launched). JAIMS, MJSEP and MJS-PMF form part of DND’s responses to recommendations made in the 2018 reports by the Office of the Auditor General on the Administration of Justice in the Canadian Armed Forces, and by the Standing Committee on Public Accounts.Footnote 3

The aim of the MJSEP is to collect subjective and qualitative (but also quantifiable and measurable) data from actors across the spectrum of the MJS. The 2018-2019 survey focused on military justice at the summary trial level, and in particular, the perceived fairness of the summary trial system.  In order to collect the required data, electronic surveys were sent to all CAF members who had participated in the MJS at the summary trial level during the reporting period of 1 April 2018 to 31 March 2019. Of the 1330 participants involved, 996 received the MJSEP email survey request and 436 surveys were completed (a total response rate of 32.7%). Responses were received from 73 Accused members, 92 Assisting Officers, 119 Charge Layers, 110 Presiding Officers, 36 Commanding Officers, and 6 Review Authorities. Each respondent was asked a number of questions, which varied depending on their role in the summary trial system.

It is important to note that the accuracy and reliability of the survey results is uncertain. Given the response rate of 32.7%, the Director General Military Personnel Research and Analysis (DGMPRA) cannot certify that the results are necessarily representative of the entire population surveyed. In fact, bias will typically enter into a survey with a response rate below 80%. As such, the data collected by MJSEP is potentially affected by bias and partiality. This statistical frailty does not, however, eliminate the data’s value altogether.  The purpose of MJSEP is to deliver a snapshot of experiences from across the spectrum of the military justice system; not to declare with certitude that their views are necessarily representative of the stakeholders as a whole. Furthermore, one of the key goals of the 2018-2019 survey was to create a baseline of qualitative data, from which trends can be monitored in reporting periods to come.

Survey questions ranged from demographic information (years in the CAF, current unit and rank, official language, ethnic or visible minority status, etc.), to length of proceedings, adequacy of training and experience, resources consulted, opinion on legal assistance received, and overall experience within the military justice system. The questionnaire focused on the respondent’s perceived fairness of the summary trial system. In some cases respondents were given the opportunity to provide comments in free-form text boxes.

The results of the 2018-2019 MJSEP are presented in this Summary Trial Stakeholder Survey Results document.  The majority of non-accused respondents believed the summary trial system to be fair. 82% of Assisting Officers, 92% of Charge Layers, 97% of Commanding Officers, 99% of Presiding Officers, and 100% of Review Authorities responded that the military justice system is fair. Their concerns were primarily with regard to the timeliness of proceedings, and the adequacy of training and resources. Conversely, 51% of Accused respondents felt that the system is unfair. Issues were raised with respect to the training and preparedness of Assisting Officers, the timeliness of proceedings, the ability to make full answer and defence, and fairness in sentencing.

The 2018-2019 MJSEP provides the JAG with a window into the perceptions of more than 400 actors involved in the summary trial system in the past year. This data is a valuable resource – especially as a baseline against which to evaluate future results – and its continued collection will help to develop a management action plan in order to improve the efficiency, effectiveness and legitimacy of the military justice system moving forward.

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Background

Sub-section 9.2 (1) of the National Defence Act (NDA) confers on the Judge Advocate General (JAG) “the superintendence of the administration of military justice in the Canadian Forces.”  To fulfill this mandate, the JAG directed the DJAG MJ within the Office of the JAG to survey stakeholders in the military justice system on a regular basis. 

In the 2015/16 JAG Annual Report, the JAG announced the creation of an audit team in order to “develop and pilot a process for… [the collection of] objective and measurable data from a variety of sources and through a variety of mechanisms in order to assess the unit level administration of the Code of Service Discipline.”  In 2017, the JAG directed that the superintendence of the administration of the military justice system be enabled in a manner that ensures that the Government of Canada, the Department of National Defence, the Canadian Armed Forces and Canadians have confidence that the military justice system is legitimate (i.e., is lawful and meets Canadian values, such as fairness and transparency), effective and efficient, thereby promoting the discipline, efficiency and morale of the Canadian Armed Forces.

Based on this mandate, the Superintendence Enhancement and Assessment Project (SEAP) was created and personnel were assigned to the Superintendence Enhancement and Assessment Team (SEAT). The SEAT is working on two main sub-projects under SEAP: the Justice Administration and Information Management System (JAIMS)Footnote 4  and the Military Justice Stakeholder Engagement Project (MJSEP).  Additionally, the SEAT is developing a Military Justice System Performance Monitoring Framework (MJS-PMF) in consultation with an internationally renowned criminal justice expert, Professor Yvon Dandurand.Footnote 5

On 29 May 2018, the Office of the Auditor General (OAG) tabled its report on the Administration of Justice in the Canadian Armed Forces and provided nine recommendations to improve the administration of military justice.Footnote 6  The OAG report was studied in the fall of 2018 by the House of Commons Standing Committee on Public Accounts (the “Committee”).Footnote 7  The Committee’s report echoed and supplemented the findings and conclusions of the OAG. The Government agreed with all nine recommendations and, on 5 April 2019, submitted to the Committee a detailed Management Action Plan describing the measures the Government would undertake to address them.Footnote 8  Five of the nine departmental responses to the recommendations are related to the ongoing work of the SEAP.  MJSEP represents one of the current efforts by the Office of the JAG related specifically to recommendation #7 which provides that the DND should present the Committee with a report detailing what progress has been made with regard to its efforts to regularly assess the efficiency and effectiveness of the administration of the military justice system and to correct any identified weaknesses.

The MJSEP also aligns itself with the vision of the CAF Data Strategy, in that it promotes data being “leveraged in all aspects of Defence programs…” in order to provide “business intelligence and analytics for planning, reporting, and support to decision-making” as well as “to provide foresight and recommendations…”Footnote 9

The MJSEP consists of a focused survey designed primarily to collect subjective and qualitative (but also quantifiable and measurable) data from a variety of military justice stakeholders. In FY 2018/2019, individuals who participated in the summary trial process within the military justice system were surveyed to collect data in order to help assess the efficiency, effectiveness and legitimacy (including perceived fairness) of the system and to make data-driven improvements.

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Methodology

MJSEP

The primary objective of the 2018-2019 survey was to establish a baseline regarding stakeholder engagement and satisfaction with the MJS – specifically, within the summary trial process – for future monitoring. The secondary objective was to identify areas of concern to the members of the chain of command who perform specific roles within the MJS, and to examine matters that may not be evident from the available quantitative data.

The Office of the JAG currently collects and reports on military justice data on an annual basis.Footnote 10  Once JAIMS is fully operational, it is expected that much more data about the MJS will become available for instantaneous reporting and analysis. Additionally, the MJS-PMF will use justice indicators to summarize and communicate large amounts of critical data drawn from JAIMS, MJSEP and other means, on various aspects of the MJS. The MJS-PMF is designed to monitor performance, identify potential issues, assist with establishing baselines, track progress, and assess the impact of interventions or reforms. Through these initiatives, the system can be improved by implementing evidence-based solutions to identified areas of concern.  Such improvements will aim to increase the perceived and actual fairness of the system by improving its effectiveness, efficiency and legitimacy. 

While the JAG Annual Report collects and reports on objective information about the MJS, objective data cannot always provide full insight regarding how stakeholders subjectively perceive and engage with the MJS.  MJSEP seeks to explore the overarching issue of whether or not stakeholders are satisfied, on a qualitative basis, with the MJS. 

Qualitative data can help measure the overall performance of the MJS, identify problematic areas, and develop strategies to improve and correct them. The 2018-2019 survey focused on individual actors’ perceptions of “fairness” within the summary trial process. Understanding this qualitative data is crucial to a proper evaluation of the overall efficiency, effectiveness and legitimacy of the MJS.Footnote 11

In consultation with Professor Dandurand, indicators have been developed to help measure fairness over time.  Once data has become available for more than two years, these indicators can be used for multi-year comparisons in order to better identify trends. This MJSEP Summary Trial Survey Results document sets the baseline against which future qualitative data may be compared. Table 1 sets out the indicators as developed for multi-year analysis.

Table 1. Indicators Established to Help Measure the Perception of Fairness of the Military Justice System

DIMENSION (Source) INDICATORS DESIRED TREND DIRECTION RATIONALE
Perceived fairness of the Military Justice System (MJS) a. Changes in the perceived fairness of the MJS among Accused/convicted members (By gender, rank, type of offences, and component) Increasing levels of fairness These indicators provide information on the perceived fairness of the MJS by Accused/convicted members and other MJS participants, and are measures of the effectiveness of the system and possibly proxy measures for the “legitimacy” of the system.
b. Changes in the perceived fairness of the MJS among MJS participants (COs, POs, AOs, and Witnesses)
(By gender, rank, environment, and component)
Increasing levels of fairness

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Survey Framework

To meet these objectives, an online survey was sent out to individuals who had participated in one or more summary trials between 1 April 2018 and 31 March 2019 (“the reporting period”). Survey methodology and questions were developed by the SEAT, with assistance and approval by the Office of the Director General Military Personnel Research & Analysis (DGMPRA).  DGMPRA digitalized and administered the surveys and provided the SEAT with the results. 

The following actors within the summary trial process were sent surveys as military justice stakeholders:

  • Accused
  • Assisting Officer (AO)
  • Charge Layer (CL)
  • Commanding Officer (CO)
  • Presiding Officer (PO)
  • Review Authority (RA)

The study included 412 summary trial processes that occurred between 1 April 2018 and 31 March 2019 within 136 different units across Canada.Footnote 12

Table 2 lists the number of summary trials that occurred per unit.  At most units across the CAF, very few summary trials were held in the reporting period.  For instance, 79% of units held only 1, 2, or 3 summary trials, representing 41% of the total summary trials during the reporting period.  By comparison, 17% of the total of summary trials held during the same period took place within 3 units. Units with a large frequency of summary trials tend to be those with large populations or high rates of turnover, such as the Canadian Forces Leadership and Recruit School (CFLRS) or the Royal Canadian Electrical and Mechanical Engineers School (RCEMES).


Table 2. Number of Summary Trials per Unit in the CAF

Number of Summary Trials Number of Units Total
1 62 62
2 27 54
3 18 54
4 6 24
5 4 20
6 4 24
7 4 28
8 3 24
9 1 9
10 3 30
12 1 12
13 1 13
14 1 14
44 1 44
Total 136 412

 

From the 412 identified summary trials taking place during the reporting period, 1330 known individuals were identified as having participated in the summary trial process. Out of these known individuals, 1248 email addresses were obtained, from which 1179 unique email addresses were identified. 69 individuals were identified as having played multiple roles in the system.


Table 3. Number of Actors and Number of Emails Gathered

S/N Roles Number of Actors Number of Emails Gathered %
1 Accused 395 350 89%
2 Assisting Officer 349 327 94%
3 Charge Layer 229 222 97%
4 Commanding Officer 85 84 99%
5 Presiding Officer 256 249 97%
6 Review Authority 16 16 100%
Total 1330 1248 94%

 

The online survey was sent out to the identified individuals on 7 May 2019 and closed on 3 June 2019.  Some emails were not received due to Out of Office notifications, full mailboxes, and invalid email addresses. In sum, 996 of the 1248 identified emails were sent without any reported issues.

Individuals were given approximately one month to complete the survey. An introductory email was sent with the link to the survey to all identified participants.  A reminder email to complete the survey was sent a week before it closed.

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Survey Software

The Snap Survey Software was used to conduct this survey. The software is used by DGMPRA for all of their supported surveys and is approved for use on the DWAN.Footnote 13  It is managed by Military Personnel Command (MILPERSCOM) / Military Personnel Generation (MILPERSGEN) in Kingston. Once the survey closed, reports were automatically generated by the Snap Survey Software with the results of each question. The results outlined in this document are based off of the numbers provided in the Snap Survey Software reports. Random checks of the raw data were conducted in order to ensure accuracy of the Snap Survey Software reports.Footnote 14

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General Information

Response Rates

Survey participants were given the opportunity to skip any questions they did not wish to answer, and to terminate their participation at any stage of the survey. A survey was considered complete if an individual completed the following two sections of the survey:

  • Demographics; and,
  • At least 1 section related to a role played in the summary trial system.

Individuals who participated in more than one role in the summary trial process in the reporting period were asked to fill out multiple sections of the survey. For example, certain respondents acted as a Commanding Officer in one proceeding, and a Presiding Officer in another.Footnote 15  30 respondents indicated that they had 2 roles within the reporting period and 5 respondents indicated they had 3 roles. Graph 1 shows that a total of 436 results were received for all of the roles in the summary trial survey:

Graph 1. Total Number of Actors per Role in the Summary Trial Process in the 2018/2019 Reporting Period

In the past 12 months, in which summary trial role(s) were you involved?
Please check all that apply.

Long description follows

Graph 1 breakdown
Charge Layer (119) 30%
Presiding Officer (110) 28%
Assisting Officer (92) 23%
Accused (73) 18%
Comanding Officer (36) 9%
Review Authority (6) 2%

 

In terms of actual response rates, returns were relatively low.Footnote 16  See Table 4, below:

Table 4. Response Rates

S/N Roles Number of Actors Emails Sent Responses Representation of
Stakeholder Group
1 Accused 395 349 73 18.4%
2 Assisting Officer 349 322 92 26.3%
3 Charge Layer 229 221 119 51.9%
4 Commanding Officer 85 79 36 42.3%
5 Presiding Officer 256 199 110 42.9%
6 Review Authority 16 9 6 37.5%
Total 1330 1179 436 32.7%

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Demographics

Overall, 90% of respondents reported being in the Regular Force of the CAF, while 10% reported being in the Reserve Force. 68% of reservists who participated in the survey were Class B reservists, 28% were Class A and 5% were class C. 

87% of respondents identified as male and 13% identified as female.  72% respondents reported English as their official language of choice for the report and 28% selected French.

73% of respondents indicated that they were over the age of 35. Specifically, 37% of respondents stated they were over the age of 45 and 36% were between 35-44 years of age. 23% of respondents were between the ages of 25-34 and 4% were between the ages of 16-24.

91% of respondents self-identified as not belonging to any ethnic or visible minority group.  5% stated that they identified with one or more groupsFootnote 17  and 4% did not self-identify.  Per Graph 2, of the 5% of respondents who self-identified as being part of an ethnic or minority group, 78% identified as visible minority, 22% reported being a person with a disability, and 11% identified as a Canadian indigenous person.

Graph 2. Respondents who self-identified as being indigenous peoples of Canada, visible minority, or a person with disability

Please check all that apply.

Long description follows

Graph 2 breakdown
Visible Minority (14) 78%
Person with a disability (4) 22%
Canadian Indigenous Person (2) 11%
I do not wish to self-identify (-) -

 

The following graphs provide information about the makeup of the population of respondents as members of the Canadian Armed Forces (CAF):

Graph 3. Respondents corresponding element

Which CAF environmental uniform do you currently wear?

Long description follows

Graph 3 breakdown
Army (262) 64%
Air Force (94) 23%
Navy (53) 13%

 

As shown in Graph 3, more than half of respondents (64%) reported being in the Canadian Army, while 23% were in the Air Force and 13% were in the Navy.  Graph 4 below illustrates the number of years each respondent has been a member of the CAF.  The majority of respondents (66%) have spent over 15 years in the CAF with half of these (33%) having spent 26 years or more.

Graph 4. The number of years respondents have served in the CAF

How many years have you served in the CAF (in both the Regular Force and the Primary Reserve)?

Long description follows

Graph 4 breakdown
26+ years (137) 33%
16-20 years (69) 17%
21-25 years (68) 16%
11-15 years (55) 13%
6-10 years (52) 13%
0-5 years (36) 9%

 

As seen in Graph 5 below, 47% of the respondents’ units belong to the Army, while the Air Force (14%) and Navy (11%) combined made up nearly another quarter of the respondents.

Graph 5. The CAF organization to which the respondent’s unit reports

What organization does your unit report to?

Long description follows

Graph 5 breakdown
Canadia Army (CA)(197) 47%
Royal Canadian Air Force (RCAF)(58) 17%
Royal Canadian Navy (RCN)(44) 11%
Military Personal Command (MPC) (42) 10%
Canadian Joint Operations Command (CJOC)(17) 4%
Other (17) 4%
Vice Chief of the Defence Staff VCDS)(13) 3%
Canadian Forces Intelligence Command (CFINTCOM)(9) 2%
Canadian Special Operations Force Command (CANSOFCOM)(7) 2%
Don't Know (6)
1%
Assistan Deputy Minister (Material) (ADM(Mat))(4)
1%
Assistan Deputy Minister (Information Management) (ADM(IM))(2)
1%
Assistan Deputy Minister (Infrastructure and Environment) (ADM(IE))(2)
1%

 

Graph 6 shows the overall categories of ranks of the respondents. Over 63% of respondents reported being of a senior rank, with 32% as either a Senior NCM or 31% as Senior Officer/General/Flag Officer. 26% reported being a junior officer or 11% a junior NCM.

Graph 6. Military Ranks for the Respondents

What is your military rank?

Long description follows

Graph 6 breakdown
Senior NCM (135) 32%
Senior Officer/General/Flag Officer (129) 31%
Junior Officer (108) 26%
Junior NCM (45) 11%

 

Graphs 7 through 10 depict the ranks of the respondents per rank category:

Graph 7. Rank of Respondents within the Senior Officer/General/Flag Officer Category

Long description follows

Graph 7 breakdown
Major/LCdr (79) 62%
LCol/Cdr (31) 24%
Col/Capt(N) (14) 11%
BGen/Cmdre, MGen/RAdm, LGen/VAdm, Gen/Adm(3) 2%
Graph 8. Rank of Respondents within the Junior Officer Category

Long description follows

Graph 8 breakdown
Capt/Lt(N) (86) 80%
Lt/SLt (15) 14%
2Lt/A-SLt (6) 6%
OCdt/NCdt (-) -
Graph 9. Rank of Respondents within the Junior NCM category

Long description follows

Graph 9 breakdown
Cpl/LS (18) 41%
Avr/Pte/OS/AB (13) 30%
MCpl/MS (13) 30%
Graph 10. Rank of Respondents within the Senior NCM category

Long description follows

Graph 10 breakdown
MWO/CPO2 (64) 48%
CWO/CPO1 (40) 30%
WO/PO1 (17) 13%
Sgt/PO2 (12) 9%

 

Given the demographic statistics collected by this survey, the majority of respondents involved in the summary trial system were non-minority Anglophone males over the age of 35 enrolled in the Regular Force of the Canadian Army and a member of the CAF for over 15 years.Footnote 18

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Statistical Reliability

As in any statistical exercise, it is important to keep in mind the limits of the data collected. In the context of a survey, one of the key criteria in determining reliability is the response rate.

Typically, a survey will aim for a response rate of 80%. If rates fall below this threshold, the likelihood of statistical bias increases. As indicated in the above section, the 2018/2019 survey had an overall response rate of 32.7%.

Statistical bias is defined as “the tendency of a measurement process to over- or under-estimate the value of a population parameter.” A parameter is defined as “a measurable characteristic of a population.”  In the context of the present survey, statistical bias “would be the tendency of a sample statistic to systematically over- or under-estimate a population parameter.”Footnote 19

With a response rate of 32.7%, it is probable that bias has entered into the results of the 2018-2019 Stakeholder Survey. As such, DGMPRA cannot certify that the results are necessarily representative of the entire population surveyed.Footnote 20  The aim of the survey, however, was to provide a snapshot of qualitative data from across the spectrum of the summary trial system and to create a baseline for comparison with future results. More than 400 actors chose to complete the survey and provide written feedback. This type of subjective data is critical to an appreciation of the perceptions of relevant actors and their day-to-day experiences, and can be used as a comparison point in future reporting periods.Footnote 21

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Results: Fairness in the Summary Trial Process

Not only must Justice be done; it must also be seen to be done.Footnote 22   This well-known judicial statement properly situates the purposes of the 2018-2019 Summary Trial Stakeholder Survey. Ultimately, the efficiency, effectiveness and legitimacy of a justice system are directly linked to its perception.

All of the participants in the survey were asked the same question regarding the fairness of the summary trial processFootnote 23 :

Do you feel the Canadian Armed Forces’ summary trial process is:

  1. Fair
  2. Unfair

In reviewing the responses, a clear divide emerged between the Accused and every other actor involved in the summary trial process that was surveyed:

  • Accused – 51% unfairFootnote 24 
  • Assisting Officers – 82% fair
  • Charge Layers – 92% fair
  • Commanding Officers – 97% fair
  • Presiding Officers – 99% fair
  • Review Authority – 100% fairFootnote 25

Accused members accounted for 18% of total survey respondents.  A total of 22% of accused members who were sent surveys completed them (73 of 324) and 94% of those who completed the survey reported being found guilty at summary trial.  53% of Accused respondents had also been an Accused in a previous summary trial proceeding.

In order to identify future initiatives to ensure the summary trial system process remains legitimate, effective and efficient, it is helpful to review the survey respondents’ views on fairness at each stage of the summary trial process: pre-trial, during the trial, and post-trial.  This section provides an overview of the key results emerging from each of those stages.

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Pre-Summary trial

a. Access to Information and Disclosure

74% of Accused respondents stated that they were provided access to information about the overall summary trial process. 18% stated that they did not need any information, and the remaining 8% felt that they did not receive adequate information about the summary trial process after being charged.Footnote 26  Questions about the summary trial process ranged from information on summary trial procedure, reasons for charges, possible sentences, to whether the case would end up on their personal record.Footnote 27

89% of Accused respondents stated that they were given access to all of the evidence used in their summary trial. 96% of Assisting Officers agreed.Footnote 28  11% of Accused said that they were not provided access to all the evidence used in their summary trial.  Among those who stated that they did not receive all of the evidence, concerns related primarily to witness statements or other documentary evidence being provided at the last minute or changing at the summary trialFootnote 29 .  86% of Accused respondents said that the evidence was provided in an organized and readable manner, while 15% said that it was not.Footnote 30

In answering the question of when disclosure had been provided, 13% of Accused respondents selected before “deciding on whether to waive a limitation period,” 30% selected before “deciding on whether to elect court martial,” and 84% noted that it was provided before “the start of the summary trial.”Footnote 31

b. Procedure, Process, and Decisions

The majority of Charge Layers are officers or NCMs authorized by a Commanding Officer to lay charges (97%).Footnote 32   For 75% of Charge Layer respondents, laying a charge is the only duty related to military justice that they perform.Footnote 33 

86% of Charge Layers reported feeling that their career and background prepared them for this role, with comments generally suggesting that most Charge Layers learned how to perform this duty without specific or formal training.Footnote 34  The main identified source of training for Charge Layers was the Presiding Officer Certification Training provided by the Office of the JAG.Footnote 35

70% of Charge Layers reported having received training on how to conduct Unit Disciplinary InvestigationsFootnote 36  and 66% on how to lay charges from a member of the Office of the JAG.Footnote 37   92% of those who completed the training found it prepared them to lay charges.Footnote 38  Most Charge Layers (63%) confirmed their work with a legal adviser and some indicated through the free text comments that their unit Standard Operating Procedures require that legal advice is always sought prior to laying a charge.Footnote 39 96% of summary trials were reported as being offered in the official language of choice of the Accused, and 99% of Accused members stated that the Presiding Officer and the Assisting Officer had the ability to work in the language of his/her choice throughout the entire summary trial process.Footnote 40  The majority of summary trials (82%) were held for one of the offences enumerated at QR&O Chapter 108.17(1)(a) for which an election to be tried at court martial need not be given.Footnote 41  Of those charged with such an offence, 57% were not offered an election to court martial and automatically proceeded to summary trial. 

Of the Accused respondents who were offered an election to court martial, 17% stated that they asked for more than 24 hours to make their decision. Of those who made the request for additional time, 60% (3 out of 5 respondents) were granted the request.Footnote 42

100% of Accused respondents stated that they were assigned an Assisting Officer, and 82% were satisfied with the amount of time that it took for an Assisting Officer to be assigned.Footnote 43  As shown in Graph 11, Assisting Officers were generally assigned on the same day or within a few days of charges being laid:Footnote 44

Graph 11. Responses by the Accused Regarding Length of Time for an AO to be Assigned

How long after the charge was laid, was the assisting officer assigned to you:

Long description follows

Graph 11 breakdown
Same day (30) 42%
1-5 days (29) 40%
More than 10 days (7) 10%
6-10 days (6) 8%

 

19% of Accused respondents stated that they requested a specific Assisting Officer.Footnote 45  Of that number, 57% stated that they were assigned the individual of their choice while 43% reported that they were not.Footnote 46 

Graph 12 lists the topics Accused members inquired about with their Assisting Officer. From this graph, it is clear that Assisting Officers are expected to be knowledgeable in many aspects of the summary trial process and are relied upon to provide a broad range of advice.Footnote 47 

Graph 12. Responses by the Accused Indicating the Information Sought from his/her Assisting Officer

Please indicate what your Assisting Officer explained or helped you with prior to and during your summary trial.
Please check all that apply.

Long description follows

Graph 12 breakdown
The nature of the offence (53) 83%
Reviewing the disclosure package (46) 72%
The seriousness of the offence (45) 70%
The potencial consequences of choosing summary trial or court martial (41) 64%
The differences between summary trial and court martial (40) 63%
A full explanation of the process that you chose (36) 56%
The right to speak to military defence counsel (Defence Cpunsel Services) (36) 56%
The right to request a review of any finding of guilty and/or sentence imposed (27) 42%
Obtaining evidence from witnesses (24) 38%
Preparing questions for witnesses (23) 36%
Limitation periods, right to waive, and potential consequences (18) 28%
Questioning witnesses (16) 25%

 

The majority of Accused respondents (84%) indicated that they were unfamiliar with military justice system limitation periods or the right to waive them, although only 10% of respondents reported that they had to make a decision regarding their right to waive a limitation period in their particular case.Footnote 48 None of the Accused respondents stated that they requested more than 24 hours to make the decision.Footnote 49

Graph 13. Responses by the Accused Regarding Knowledge of the Right to Waive Limitation Periods

In general, do you know about the right to waive both the 6 month limitation period for charge laying and/or the 1 year limitation period for summary trial commencement?

Long description follows

Graph 13 breakdown
No (58) 84%
Yes (11) 16%

 

60% of the Accused respondents indicated that they were provided contact information for Defence Counsel Services (DCS) prior to making a pre-trial decision and 34% of Accused respondents reported contacting DCS regarding their case.Footnote 50

68% of Accused respondents stated that there was enough time to make pre-trial decisions after receiving their disclosure package, 12% said that there was not enough time to make a pre-trial decision, and 20% responded that the question was not applicable to their case.Footnote 51 64% of Accused respondents (44 out of 69 respondents) reported that they had been given access to information that was beneficial to their defence, while 36% said that they had not.Footnote 52

c. Resources Used

A number of the survey questions focused on the use of resources throughout the trial.  The most commonly used resources for each actor in the summary trial process were as follows (acronyms expanded in footnote below):Footnote 53

  • Accused – Assisting Officer (81%), Colleague (36%), Supervisor (25%), MJSTL (25%)
  • Assisting Officers – GAAO (95%), MJSTL (60%)
  • Charge Layers – CLAM (76%), MJSTL (70%), JAG CWO (64%), and Legal Adviser (59%)
  • Commanding Officers – Legal Adviser (100%), MJSTL (94%), NDA/QR&Os (65%), GAAO (50%)
  • Presiding Officers – MJSTL (98%), Legal Adviser (94%), NDA/QR&Os (76%), GAAO (58%)
  • Review Authority – MJSTL (100%), Legal Adviser (100%), NDA/QR&Os (83%)Footnote 54

Considered as a whole, the data reflects two different experiences of resource use. The first grouping includes Accused and Assisting Officers, while the second grouping includes Charge Layers, Commanding Officers, Presiding Officers, and Review Authorities.

Group 1: Accused Persons and Assisting Officers

Accused respondents identified the Assisting Officer as their greatest resource.Footnote 55 However, while 81% of Accused respondents stated that they received  information regarding the summary trial process from his/her Assisting Officer,Footnote 56 21% “disagreed” or “strongly disagreed” with the statement that their Assisting Officer had been helpful throughout the process.Footnote 57

Likewise, some Assisting Officers reported that they did not feel as though they had adequate knowledge or experience to complete their tasks.  Some Assisting Officers reported that they felt unprepared to be involved in the process.Footnote 58 95% of Assisting Officers relied on the Guide for Accused and Assisting Officers.Footnote 59  Module 3 of the Canadian Forces Junior Officer Development Program (CAFJOD) was also cited as a useful resource relied on by Assisting Officers.Footnote 60 A number of Assisting Officers suggested that a course which allows them the opportunity to run through some of the required tasks and duties in advance of taking on the position should be provided.Footnote 61

Group 2: Charge Layers, Commanding Officers, Presiding Officers, and Review Authorities

This group as a whole tended to rely mostly on the MJSTL, the legal adviser, the NDA, and the QR&Os. In their free text comments, Presiding Officers, Review Authorities and Charge Layers referred to the value of checklists or aide-memoires in performing their duties, which was borne out by the responses to the survey questions.  94% of Presiding Officers “always” or “almost always” used the Presiding Officer checklist in the MJSTL.Footnote 62 Commanding Officers most often provided the GAAO (91%) and the MJSTL (85%) as resources to their members.Footnote 63

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The Summary trial

Process

93% of Accused respondents reported that they were found guilty at their summary trial.Footnote 64 This percentage is in line with overall numbers reported in the JAG Annual Report for Fiscal Year 2018/2019 which reported that 89% of Accused members were found guilty.Footnote 65

All of the Presiding Officers surveyed indicated that they had completed Presiding Officer Certification Training, the re-certification training, and the Presiding Officer Certification Training-Update training.Footnote 66

Submissions, Evidence & Witnesses

90% of Accused respondents reported that they were given an opportunity to present all of the evidence that they wished to submit at summary trial, while 10% reported that they were not.Footnote 67 84% of Accused respondents indicated that they were permitted to question witnesses and/or make representations, and 81% reported they were given the opportunity to call their own witnesses.Footnote 68 Conversely, 16% stated that they had not been allowed to question witnesses and/or make representations, and 19% reported that they had not been given the chance to call their own witnesses.

Assisting Officers, on the other hand, reported being permitted to respond to the evidence and present evidence in 97% of cases.Footnote 69 85% said they were confident in their ability to question witnesses.Footnote 70

Timeliness of Summary Trials

The following percentages of each respondent group expressed concerns with the timeliness of summary trials:

  • Accused – 36% unreasonable delay
  • Assisting Officers – 17% unreasonable delay
  • Commanding Officers – 11% unreasonable delay
  • Presiding Officers – 8% unreasonable delayFootnote 71

Of the 36% of Accused respondents who stated that the summary trial was not conducted in a reasonable time, some noted in the free text comments waiting months or even a year for the summary trial to commence.Footnote 72 Some Commanding Officers stated in the free text comments that issues with MP investigations and a negative effect on unit morale were the biggest concerns caused by delay.Footnote 73

In other situations, summary trials took place quickly, at times within a few days of the alleged offence. In those cases, some Accused respondents reported that there was not enough time to adequately prepare for their summary trial.Footnote 74

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Post-Summary trial

Sentencing & Punishments

Fines were reported as being by far the most common punishment imposed at a summary trial and were often paired with another punishment (usually reprimand or severe reprimand).  94% of Commanding Officers reported that they followed up to confirm that the punishment has been fully implemented.Footnote 75

The most common punishments imposed at summary trial and the length of time it took for them to be completed as reported by the Accused, are listed in the following two graphs:Footnote 76

Graph 14. Responses by the Accused Regarding Punishments Received at Summary Trial

What punishment(s) were imposed in your sentence?
Please check all that apply.

Long description follows

Graph 14 breakdown
Fine (42) 67%
Extra work and drill (15) 24%
Confinement to Ship or Barrack (14) 22%
Detention (5) 8%
Reprimand (3) 5%
Absolute discharge (3) 5%
Other (3) 5%
Severe Reprimand (2) 3%
Stoppage of Leave (2) 3%
Caution (2) 3%
Reduction in Rank (-) -
Graph 15. Responses by Accused Regarding Time to Complete a Punishment after a Summary trial

How long did it take to complete your punishment(s)?

Long description follows

Graph 15 breakdown
0-1 week (31) 52%
1 week - 1 month (19) 32%
1 month - 1 year (10) 17%
1+ year (-) -

 

48% of Accused persons felt they had been sentenced unfairly. Presiding Officers were not surveyed on their view of the fairness of the punishment that they imposed. Certain free-text comments, however, suggested that in some cases Presiding Officers wish for better sentencing resources to help them determine a fair and proper punishment which is consistent across the CAF.Footnote 77

Graph 16. Responses by the Accused Regarding Perceived Fairness of the Sentence Imposed at Summary Trial

Do you think the sentence imposed was:

Long description follows

Graph 16 breakdown
Fair (33) 52%
Unfair (30) 48%

 

Review of the Summary Trial Outcome

Given the option to select all choices they believed apply, 94% of Commanding Officers stated that they believed it was the Presiding Officer’s responsibility to inform the Accused of the right to request a review, while 71% and 66% felt it was the Assisting Officer and Commanding Officer’s responsibility respectively.

Graph 17. Responses by COs Regarding the Responsibility to Inform the Accused of the Right to Request a Review of a Summary Trial OutcomeFootnote 78 

Who in your unit is resposible for informing the accused of the right to request a review of the outcome of the summary trial? Please check all that apply.

Long description follows

Graph 17 breakdown
Presiding Officer (33) 94%
Assisting Officer (25) 71%
You (the Comanding Officer) (23) 66%
Unit Chief Warrant Officer/Chief Petty Officer (11) 31%
Unit Adjutant (8) 23%
Other (2) 6%

 

62% of the Accused respondents said they knew they could request a review of the Presiding Officer’s decision after the Summary trial, whereas 38% noted that they were unaware.Footnote 79 60% reported that the Assisting Officer advised them of this process.Footnote 80 36% of Accused respondents stated that they found out about the possibility of requesting a review through other means.Footnote 81

91% of Assisting Officers stated that if the Accused was found guilty, they informed him/her of the right to request a review.Footnote 82

Graph 18. Reponses by the Accused Regarding the Source of Information on Requesting a Review of a Summary Trial Outcome

How did you find out about the possibility of requesting a review? Please check all that apply.

Long description follows

Graph 18 breakdown
Assisting Officer (25) 60%
Other (15) 36%
Presiding Officer (11) 26%
Comanding Officer (4)
10%

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Satisfaction with Legal Advisers

The survey results indicate that the role of the legal adviser is highly regarded throughout the summary trial process. Participants were positive when speaking about the legal advice they received and their interactions with JAG legal officers and generally reported being satisfied with their legal adviser:

  • Accused - 67% satisfied
  • Assisting Officers – 87% satisfied
  • Charge Layers – 92% satisfied
  • Commanding Officers – 98% satisfied
  • Presiding Officers – 97% satisfied
  • Review Authority – 100%Footnote 83 satisfied

Timeliness of Legal Advice

Overall, 97% of the respondents stated that legal advice was provided in a timely manner, including 100% of Accused persons and Assisting Officers, 97% of Commanding Officers, 95% of Presiding Officers, and 100% of Review Authorities.Footnote 84 14% of Charge Layers found that legal advice was occasionally delayed.Footnote 85 In particular, one Charge Layer free-text comment noted a delay of more than a month.Footnote 86 As well, 29% of Commanding Officers found that legal advisers gave feedback on a submitted RDP sometimes, almost never, or never.Footnote 87

Access and Availability of Legal Advisers

Access to legal advisers is important to all actors in the summary trial system. Review Authorities reported seeking legal advice 100% of the time.Footnote 88 Amongst Commanding Officers and Presiding Officers, there was a tendency to desire more “face time” with legal advisers, and a more consistent connection throughout the summary trial process.Footnote 89 One individual commented that it is difficult for reservists to access legal advisers.Footnote 90 According to Presiding Officers, even in cases where they were not required to seek advice from legal advisers, 78% still chose to do so.Footnote 91 Similarly, Charge Layers chose to obtain legal advice “always” or “almost always” in 80% of cases where it was not required.Footnote 92

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Conclusion

The 2018-2019 Summary Trial Stakeholder Survey sought to gather qualitative data on the summary trial process as part of the Office of the JAG’s initiative to collect and analyze data on the administration of the MJS.  In doing so, the survey has provided a snapshot of the perceptions and experiences of more than 400 actors in the military justice system.

This data supports the JAG in her statutory superintendence function and ensures that the military justice system is administered in a manner that provides the Government of Canada, DND, the CAF and Canadians with confidence that the system is legitimate, effective and efficient; thereby promoting the discipline, efficiency and morale of the CAF.

 

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