Annex R: Presiding Officer Checklist (for Superior Commanders)

PRE-TRIAL DETERMINATIONS¹

1. When a charge has been referred to you in accordance with QR&O 107.09(3) determine whether or not the charge ought to be proceeded with in accordance with Chapter 108.

• Unit legal officer to be consulted when making this determination when the offence cannot be tried by summary trial, carries the right to elect Court Martial, or where accused is an officer or NCM above rank of sergeant (QR&O 107.11);
• Any pre-trial decision you make not to proceed with one or more charges is recorded on RDP (Part 5); and
• Where the decision not to proceed amounts to a final disposition of all charges the original RDP is placed on the Unit Registry of Disciplinary Proceedings (QR&O 107.13).

2. Where you have determined that the charge ought to be proceeded with in accordance with Chapter 108, determine if you have jurisdiction to act as a presiding officer and are not otherwise precluded from trying the accused:

• You are a superior commander (NDA s. 162.3 and QR&O 108.12 Note A);
• The offence is one that can be tried by Summary Trial (QR&O 108.06 and 108.07);
• The accused person is either an officer below the rank of lieutenant-colonel or an NCM above the rank of sergeant (QR&O 108.12);
• You consider your powers of punishment adequate having regard to the gravity of the alleged offence (QR&O 108.26);
• The offence is not one that you are precluded from trying (QR&O 108.125);
• The accused has the right to elect trial by court martial and has not elected to be so tried (QR&O 108.16(3));
• Reasonable grounds do not exist for believing that the accused person is unfit to stand trial or suffered from a mental disorder at the time of the alleged offence (QR&O 108.16(1) and 119.02);
• You have the required language ability to conduct the summary trial (QR&O 108.16 Note A);
• The accused has not previously been dealt with by any other presiding officer or any other military tribunal or civil court (QR&O 108.11);
• The limitation period of one year will not have expired by the time the summary trial commences (QR&O 108.05); and
• It is not inappropriate to try this case in the interests of justice and discipline (QR&O 108.16(1)(a)).

3. If you lack jurisdiction or are otherwise precluded from trying the accused, refer the charge to another authority having summary trial jurisdiction or refer the charge to a referral authority for disposal together with any recommendations that you consider appropriate (QR&O 108.16(3)(a) and 109.03(2)).

4. If you are not precluded from presiding at the summary trial, continue the summary trial process. Ensure all pre-trial procedures have been completed:

• Copy of RDP provided to the Accused (QR&O 107.09);
• Assisting officer appointed and appointment recorded on the RDP (Part 1);
• The language of the proceedings chosen by the accused recorded on the RDP (Part 1); and
• Information provided to the accused. Information identified in a list attached IAW the RDP (Part 2). Copy of list provided to the accused. (QR&O 108.15).

ELECTION

5. Where the accused person has the right to elect trial by court martial, the following steps must be taken:

• Cause the accused to be informed of the right to elect court martial (QR&O 108.17(1));
• Record the date and time the accused was informed of the right to elect Court Martial and the date and time the accused will be required to make the decision on the election known on the RDP (Part 3); and
• Provide a reasonable period of time of not less than 24 hours for the accused to:
  • Consult with legal counsel with respect to the election (QR&O 108.18);
  • Decide whether to elect to be tried by court martial; and
  • Make the accused's decision known.
  Military legal officer numbers for elections are (613) 992-2778 or toll free in North America 1-888-715-9636

6. Once the accused has decided on the election:

• Have the accused complete and sign Part 3 of the RDP (QR&O 108.17(3)); and
• Have the officer who received the election sign the RDP and indicate the date and time the election was received (Part 3).

7. If the accused elects trial by court martial, refer the charge to a referral authority for disposal (e.g. disposal by court martial), together with any recommendations that you consider appropriate (QR&O 108.16(3)(b) and 109.03(2)).

SUMMARY TRIAL PROCEDURE

8. Prior to conducting the summary trial consider whether a direction ought to be made to exclude members of the public from the trial or any part of the trial (QR&O 108.28).

9. At the commencement of a summary trial, the accused, accompanied by the assisting officer and escort (where applicable), will be brought before you.

10. You will take the following oath (QR&O art 108.27)²,

Or make the following solemn affirmation (QR&O 108.32).³:

11. You will cause the charges to be read (QR&O 108.20(2)).

12. Prior to receiving any evidence, you will ask whether the accused:

• Requires more time to prepare the accused's case and grant any reasonable adjournment requested for that purpose;
• Ask whether the accused wishes to admit any of the particulars of any charge. (QR&O 108.20(3)).

13. Hear the evidence against the accused.

• All witnesses must give evidence either under oath (QR&O 108.31)⁴,

  I swear that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth. So help me God.

  or solemn affirmation (QR&O 108.32):⁵

  I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth.

• During the evidence of any witness against the accused, you and the accused (or the assisting officer on behalf of the accused) can question the witness. (QR&O 108.20(4)).

14. After you have heard the evidence against the accused, the accused may present evidence and testify.

• During the presentation of evidence for the accused, you and the accused (or the assisting officer on behalf of the accused may question each witness. (QR&O 108.20(5)).
• You many only question the accused if the accused chooses to give evidence (QR&O 108.20(5)).

15. After the evidence on behalf of the accused has been heard, the accused or the assisting officer on behalf of the accused may make representations concerning the evidence received during the trial (QR&O 108.20(6)).

16. Consider the evidence received and the representations of the accused. Determine whether it has been proven beyond a reasonable doubt that the accused committed the offence charged or any other offence of which the accused may be found guilty on that charge (QR&O 108.20 (7), (8) and Note D). You will then:

• Pronounce the finding in respect of each charge and, where you pronounce a finding of guilty other than on the offence charged, inform the accused of that finding (QR&O 108.20(8));
• Where offences have been charged in the alternative and the accused has been found guilty of one of the alternative charges, direct that the proceedings be stayed on the alternative charge (QR&O 108.20(9)); and
• Record the findings on the RDP (Part 6).

17. Where the accused is found guilty in respect of any charge, you shall receive any evidence concerning the appropriate sentence to be imposed, including aggravating and mitigating factors (QR&O 108.20(10)).

• The offender may present evidence, testify on his own behalf and question each witness about any matter concerning the sentence;
• During the presentation of any evidence, you may question each witness, including the offender where the offender chooses to testify, on any matter concerning the sentence; and
• The offender (or the assisting officer on behalf of the accused) may make representations concerning the sentence.

18. Take into consideration the evidence heard in support of the charges and during the sentencing phase of the trial, the representations made regarding sentence, the factors affecting sentence as set out in Note to QR&O 108.20 and decide on appropriate punishment having regard to the Table to QR&O 108.24. Pronounce sentence and endorse the sentence passed on the RDP (Part 6). Inform the offender of the right to request review of the finding or sentence as set out in QR&O 108.45.

POST-TRIAL PROCEDURES

19. Prepare a list to identify the witnesses heard and all documentary or physical evidence accepted at the summary trial. Attach the list to the RDP (QR&O 108.21 Note E).

20. Cause the original RDP, together with a copy of any report of investigation completed pursuant to QR&O 106, to be placed in the Unit Registry of Disciplinary Proceedings (QR&O 107.14(3) and 108.42(1)(a)).

21. Forward a copy of the RDP to the offender's CO for action and information (QR&O 108.42(1)(b)).

Footnotes

¹ This checklist is a guide only. It must be used in conjunction with the appropriate sections of the QR&O and the Military Justice at the Summary Trial Level Manual.

² To administer your oath, stand, remove your headdress, and hold the Bible in your right hand. If you do not wish to swear an oath on the Bible, a solemn affirmation must be given.

³ The form of a solemn affirmation will be made without a Bible.

⁴ To administer an oath to the witness, both you and the witness stand with headdress removed. The witness holds the Bible in his right hand.

⁵ If the witness does not wish to swear an oath on the Bible, a solemn affirmation must be given without a Bible.