Annex V: Review Authority (under QR&O 108.45) Checklist
Disclaimer
This publication has not yet been updated to reflect the legislative amendments resulting from the Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24, which came into force on 1 September 2018.
PRE-REVIEW CONSIDERATIONS1
1. Has the offender's CO complied with the offender's request, if any, to have an officer of NCM above the rank of sergeant appointed to assist in the preparation of a request for review (QR&O 108.45(18)).
2. Before commencing a review, determine if you have jurisdiction to conduct the review. Have the following conditions been met:
- If a delegated officer presided at the summary trial you are the CO of the unit (QR&O 108.45(2)(a));
- If a CO presided at the summary trial you are the next superior officer to whom the CO of the unit is responsible in matters of discipline (QR&O 108.45(2)(b));
- If a superior commander presided at the summary trial you are the next superior officer to whom the superior commander is responsible in matters of discipline (QR&O 108.45(2)(c)); and
- It is not inappropriate for you to review this case having regard to the interests of justice and discipline (QR&O 108.45(3)).
3. If you determine that you have jurisdiction, ensure that the following procedures have been complied with:
- The request for review is in writing, states the relevant facts and the reasons why the finding or sentence was unjust or the punishment too severe (QR&O 108.45(4));
- The request was delivered within 14 days of the termination of the summary trial (QR&O 108.45(5)). This time limit may, in the interests of justice, be extended (QR&O 108.45(13));
- A copy of the request for review has been delivered to the officer who presided at the summary trial (QR&O 108.45(5)); and
- If the offender was sentenced to detention at summary trial, suspend the carrying into effect of the punishment of detention pending the completion of the review (QR&O 108.45(17)).
REVIEW PROCESS
4. Within 7 days of receiving the copy of the request for review the presiding officer must deliver comments concerning the request to you and a copy provided to the member making the request (QR&O 108.45(6)).
5. The offender may deliver further representations within 7 days of receiving a copy of the comments of the presiding officer (QR&O 108.45 (7)).
6. Within 21 days of receiving a request you must review the summary trial and determine whether to set aside any finding or alter any punishment (QR&O 108.45(10)).
7. Legal advice must be obtained before making a determination on the request (QR&O 108.45 (8)), but may not be provided by any legal officer who provided advice with respect to laying the charges or concerning any of the summary proceedings (QR&O 108.45(9)).
8. If you are unable to make a determination because additional information is required, you must:
- Seek the necessary information;
- Notify the offender that further information has been sought; and
- Provide the offender with a copy of any subsequent information obtained (QR&O 108.45(11)).
9. Consider any further representations delivered by the offender within 7 days of being provided with the subsequent information referred to at paragraph 8 above (QR&O 108.45(12)).
10. When additional information has been requested in IAW QR&O 108.45(11) you have 35 days from the date of request to review the summary trial and make a determination (QR&O 108.45(13)).
11. When determining whether a finding is unjust, consider the following:
- The consequences of any deviation from the required procedures for summary trials as set out in QR&O (QR&O 101.06);
- Whether the evidence presented at summary trial established all the elements of the offence for which the offender was found guilty; and
- Was the finding imposed as a result of an error or improper action.
12. When determining whether a punishment is unjust or too severe, consider the following:
- Was the punishment illegal;
- The consequences of any deviation from the required sentencing procedures as set out in QR&O (QR&O 101.06); and
- Whether the punishment is consistent with the punishments usually given for that type of offence in those circumstances, having regard to the considerations set out in QR&O 108.20 Note F.
REMEDIES AVAILABLE
13. When the finding is found to be unjust, you may (QR&O 108.45 Note B):
- Quash the findings (NDA s.249.11) after noting the effect of doing so (QR&O 116.05); or
- Substitute the finding with another finding (NDA s.249.12).
14. When the punishment is found to be unjust due to the fact that it was beyond the powers of the presiding officer to impose, you may substitute an appropriate punishment (NDA s.249.13), after considering the conditions applicable to new punishments (NDA s. 249.15).
15. When the punishment is not unjust, but is found to be too severe, you may alter the sentence by:
- Mitigating, commuting or remitting the punishment (NDA s.249.14); or
- Suspending the punishment, in the case of a sentence of detention (QR&O 114.02(3)).
POST-REVIEW PROCEDURES
16. Inform the offender, the presiding officer and, where you are not the offender's CO, the offender's CO of your decision in writing (QR&O 108.45(14)(a). The offender's CO will be required to cause the appropriate entries to be made to the offender's service records, including the conduct sheet, and take any other action necessary to give effect to the decision IAW QR&O 108.45(15)).
17. Comply with QR&O 107.14(b) by causing a copy of the decision to be placed on the Unit Registry of Disciplinary Proceedings on with the original RDP was placed.
18. Cause the appropriate entries to be made on the RDP (QR&O 108.45(14)(c)).
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.
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