Chapter 4: Fairness and the Application of the Charter

SECTION 1 - GENERAL

1. Tribunals such as civilian courts, courts martial and summary trials have a duty to act fairly.¹ The importance of fairness to legal proceedings is found in the fact that the principles of fairness are reflected in a number of sections in the Charter (see Annex A). Those sections include section 7 (principles of fundamental justice), section 8 (search and seizure), section 9 (detention or imprisonment), section 10 (arrest or detention), section 11 (proceedings in criminal and penal matters), section 12 (treatment or punishment), section 13 (self-incrimination) and section 14 (interpreter).

2. One way in which fairness is achieved is through procedural fairness. Procedural fairness has traditionally been expressed in two common law rules of natural justice: nemo judex in causa sua (no one is to be a judge in their own cause)² and audi alteram partem (hear the other side; the parties are to be given a fair hearing).³ In other words the person trying a case should be unbiased and impartial, and an accused should have adequate notice of the case to be met, and a meaningful opportunity to be heard. The requirement of procedural fairness existed prior to the enactment of the Canadian Charter of Rights and Freedoms.

3. The procedures governing the summary trial process set out in QR&O are designed to enhance the fairness of how charges are dealt with and trials are conducted. The regulations set out the procedures for handling pre-trial issues such as Provision of Information and access to legal counsel, the conduct of the summary trial itself, and post-trial procedures such as the review process. The unit CO, the presiding officer and the review authority all have the responsibility to ensure that the summary trial process is fair. This Chapter will review a number of the basic principles of procedural fairness in order to highlight their application to the summary trial process.

SECTION 2 - FAIRNESS

4. Any proceeding that can make decisions adverse to a person's interests must be conducted in a fair manner.⁴ There is no one definition for procedural fairness. However, it is generally accepted that in order to be fair in a legal sense, the common law rules of natural justice, freedom from bias on the part of the decision maker and a meaningful and informed participation by the person in the proceedings, must be followed throughout the process.

5. The principles associated with procedural fairness can include: the right to counsel, adequate notice of the case to be met, pre-trial release of information, the ability to make submissions, evidentiary standards and the provision of reasons for decisions that are taken. The following is a brief outline of how a number of these principles are addressed in the summary trial context.

Disinterested and Unbiased

6. Presiding officers must act impartially and separate their personal interests and beliefs from their decision-making powers and duties. If a presiding officer has a direct personal or financial interest in the outcome of a case, that officer cannot preside over the matter.

7. It is essential that the presiding officer must be seen to be impartial and without having any preference for any position. Not only is it important that the presiding officer be unbiased, but more importantly that there be no appearance or apprehension of bias. The test to ensure fairness is whether a reasonably informed bystander would perceive bias on the part of an adjudicator.⁵

8. However, it cannot be forgotten that in relation to summary trials, presiding officers will always have an interest in the discipline of the unit. Discipline within the CF depends upon the personal interaction between members who serve together. The officers responsible for the conduct of operations are the ones to whom the habit of obedience must be directly owed.⁶

9. In order to enhance impartiality, presiding officers are required to take an oath or solemn affirmation at the commencement of every trial⁷, and authorities superior to a presiding officer authority are prohibited from interfering in the conduct of the trial. Further, QR&O indicate that a CO who has carried out or supervised an investigation; signed a search warrant; or laid a charge or caused it to be laid should not preside at the summary trial.⁸

10. In the final analysis members must know and believe that leaders will deal fairly and objectively with all members' problems, including lapses of discipline.

Notice of Case and Opportunity to be Heard

11. An accused must be given the opportunity to make representations about the case against them, but before this can be done, the accused must be informed of the case to be met and given an adequate opportunity to put together representations.⁹ An accused cannot effectively exercise the right to be heard if that accused does not have knowledge of the matters in issue.¹⁰

12. Giving notice of the case to be met includes disclosing facts and documents pertaining to the matter in issue. Information about the case must be given to the accused even if the information may not be used in the hearing. The specific requirements for providing information to an accused at summary trial is provided in QR&O¹¹ and is discussed in detail in Chapter 10, Provision of Information.

13. An accused must also be given an opportunity to properly prepare the case and respond to all allegations raised. The QR&O set out the procedure that must be followed during a summary trial. The procedures include the accused being present throughout the trial, and the accused being given an opportunity to question all witnesses, give evidence and make representations about the evidence provided.¹² The procedures at summary trial are discussed in detail in Chapter 13, The Conduct of Summary Trials.

14. Although the basic procedure that must be followed in summary trial is set out in QR&O, there are situations where the presiding officer must exercise discretion when determining when to apply these procedures. In following the procedures provided in QR&O for pre-trial, trial and post-trial activities, there are many situations where the CO of the unit, the presiding officer, and review authority are required to exercise their discretion. As well, there are many practical details not specified in QR&O that are left to the discretion of the CO of the unit and the presiding officer. This discretion must be exercised fairly taking into consideration the facts of the particular case.

15. For example, the Regulations do not expressly provide the right to counsel to the accused; however, the presiding officer has discretion to allow legal counsel to participate and, if so, to determine the level of participation to be allowed. When deciding whether to permit an accused to be represented by legal counsel at the summary trial, QR&O indicate that the presiding officer should, at the least, consider the nature and complexity of the offence, the interests of justice, the interests of the accused, and the exigencies of the service.¹³ The presiding officer should also consider whether justice will be done if a non-legally trained presiding officer is placed in the position of having to rule on legal arguments made by a trained lawyer. In many cases the appropriate forum for resolving such legal issues will be a court martial.

16. If procedural fairness is not observed throughout a summary trial the decision may be quashed on review.¹⁴ The availability of a review after a summary trial is discussed in Chapter 15, Request for Review.

Exercising Discretion

17. When exercising discretion, presiding officers are required to act in good faith and not abuse their powers or exercise those powers arbitrarily or dishonestly. There is also a requirement not to discriminate against an accused or witnesses based on irrelevant criteria such as religion, race or language.¹⁵

18. There are, however, limitations on the discretion exercised by the CO of the unit and presiding officer. Discretion must be used to promote the policies and objectives of the governing statute, in this case the NDA,¹⁶ and not used to achieve an improper purpose, which would be one not contemplated by the NDA. For example, under QR&O a presiding officer shall ask whether the accused requires more time to prepare the accused's case and grant any reasonable adjournment required for that purpose.¹⁷

19. In exercising discretion, all relevant evidence should be considered and weighed, and the decision should be based only on the proper or specified considerations.¹⁸ For example, when QR&O dictate factors that must be considered when making a decision on a specific matter, it would be improper for the presiding officer not to consider those factors. However, when QR&O do not specify the factors to be considered, the presiding officer must exercise the discretion to achieve the purpose contemplated by the NDA. For summary trials, QR&O provide that “the purpose of summary proceedings is 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”.¹⁹

20. The discretion given to a presiding officer under Statute and Regulation cannot be fettered or restricted by such means as policies and guidelines unless the Statute specifically provides for such. For example, in QR&O 108.14, Note B, general guidelines are given on what is to be considered by the presiding officer when deciding on the application by an accused member for legal representation at the summary trial. It must be emphasized that the Notes are guidelines. They are not to be construed as if they have the force and effect of law although they should not be deviated from without good reason.²⁰ It would be improper for a superior officer to produce a policy that puts rigid constraints on the factors to be considered by the presiding officer when making a decision at a summary trial.

21. When the authority to exercise discretion has been provided, the presiding officer cannot refuse to exercise that discretion. Using the earlier example, if an accused applies for legal counsel the presiding officer cannot flatly refuse to hear or consider the matter,²¹ or deal with the issue in a terse manner that would otherwise constitute a failure to consider the matter. For example, if the accused makes a verbal application for legal representation and the presiding officer denies the application before allowing the accused a chance to put forward an argument.

22. If during the course of the summary trial process a presiding officer improperly exercises discretion and the accused is eventually found guilty this could result in a finding of guilty being quashed on review.²² The Regulations embody the legal principles of fairness in order to ensure that in the maintenance of discipline the decisions are made fairly.

Duty to Act Expeditiously

23. The NDA and QR&Os expressly require that charges under the Code of Service Discipline be dealt with as expeditiously as the circumstances permit.²³ This regulation, which is fully consistent with the stated purpose of summary trials²⁴, prescribes an obligation upon units that was designed with the interests of justice and discipline in mind. The interests given emphasis here include the interest accused members have in ensuring that their Charter right to be tried within a reasonable time is respected,²⁵ as well as the unit's interest in ensuring that minor breaches of the Code of Service Discipline are dealt with promptly. For a full discussion of the interests of justice and discipline see Chapter 11, Jurisdiction and Pre-Trial Determinations.

24. The term expeditiously (“acting or done with speed and efficiency”²⁶) refers to the steps that must be taken to bring the charges to a prompt resolution. From the accused's perspective, the expeditious handling of charges reduces the stress and possible prejudice of lingering charges. From the standpoint of the unit, the requirement serves to emphasize the need to restore or maintain unit discipline.

25. As is often the case, the regulatory requirement cannot be considered in a vacuum. The obligation on unit authorities to deal with charges expeditiously must be considered in light of the circumstances surrounding the charge. For instance, if the investigation is necessarily prolonged, the unit is not required by the regulation to prematurely prosecute an accused. Also, the accused member may wish a reasonable delay in commencement of the summary trial to allow for the interview of a number of witnesses. As always, the exercise of discretion in these pre-trial decisions must be made fairly and in conformity with the procedural requirements, such as, for example, the need to comply with election procedures, where applicable.

SECTION 3 - THE CHARTER OF RIGHTS AND FREEDOMS

26. There can be no doubt that the Charter applies to the summary trial process. In the words of the Special Advisory Group “….this [military justice] system must be compatible with our Constitution, including the Canadian Charter of Rights and Freedoms”²⁷ Of particular note are the expectations of persons subject to the Code of Service Discipline that they will be dealt with according to principles enshrined in the Charter.

27. The significance of the Charter cannot be overstated. It is reflective of basic human rights that are recognized under both international human rights law and law of armed conflict treaties.²⁹

28. The right to a fair hearing is directly protected in two sections of the Charter: section 7 (Life, Liberty and Security of the Person) and section 11 (Proceedings in Criminal and Penal Matters). The application of these provisions of the Charter depends in part on the type of offence and the nature and severity of the punishments which can be imposed by the tribunal in question.³⁰ Charter rights are not absolute.

Section 7 – Principles of Fundamental Justice

29. Under the subject heading "Legal Rights" within the Charter, section 7 provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

30. The principles of fundamental justice must be followed in any proceedings where a person's life, liberty and security of the person are in jeopardy. An accused's right to liberty may be affected by a summary trial where detention is a possible punishment.³¹

31. The term fundamental justice is not defined in the Charter, and the courts have not developed a complete definition. It is accepted that some of the principles of fundamental justice are procedural in nature.³²

32. It has also been accepted that if an accused were deprived of any of the legal rights defined in sections 8 to 14 of the Charter, depending on the circumstances, it would be a violation of the principles of fundamental justice.³³ This includes the right not to be arbitrarily detained or imprisoned, the right to be presumed innocent, and the right not to be compelled to be a witness in a proceeding against one's self. It is from the right to not be compelled to be a witness against one's self that the right against self-incrimination and the right to remain silent have emerged.³⁴

Section 11 - Proceedings in Criminal and Penal Matters

33. Section 11 of the Charter contains a number of provisions related to procedural fairness. For example, section 11(d) states:

34. For example, Charter rights must be assessed in light of the unique requirement of maintaining a disciplined armed force as found in the Special Advisory Group Report discussion of the right to be tried by an independent and impartial tribunal under section 11(d) of the Charter. The Special Advisory Group concluded that the chain of command must remain directly involved in the conduct of summary trials. They were also convinced that this approach could be justified under the Charter, notwithstanding the fact that presiding officers were neither independent, nor impartial, in the legal sense. The Special Advisory Group Report stated:

35. The requirement of presiding officers to take an oath³⁶, the protection from interference from superior authorities³⁷, and the limitation on trying a case if the presiding officer performed certain pre-trial functions³⁸ all support an argument under section 1 of the Charter that the infringement of an accused's right to be tried by an independent and impartial tribunal is justified.

Section 1 of the Charter

36. In assessing the application of the Charter to the summary trial process it cannot be forgotten that rights under Canadian law are not unlimited. As is stated in section 1 of the Charter:

Therefore, even if it could be argued that a part of the summary trial process limits the rights under section 7 or 11 of the Charter, the provisions of the NDA and QR&O have been designed to address these limits. As a result, the legality of the summary trial process would still be upheld.³⁹

37. Therefore when discussing the application of the Charter to the summary trial process it should never be done in isolation from the purposes and needs of discipline in the CF. An effective presiding officer must act fairly. At the same time a presiding officer must meet the needs of military service in order to maintain a disciplined armed force. The “…military must be in a position to enforce internal discipline effectively and efficiently.”⁴⁰ Therefore, there are times when the summary trial process applies standards of fairness which are different than those applicable to courts martial or civilian criminal courts.

Waiver and the Right to Elect Courts Martial

38. The broad right to elect trial by court martial,⁴¹ and the opportunity to consult with legal counsel prior to making that election,⁴² have been incorporated into the summary trial procedures to permit an accused to waive trial by court martial.⁴³ The waiver must be clear and unequivocal and the person must make the waiver with the full knowledge of the rights being given up.⁴⁴ In Korponay v. A.G. Canada, the Supreme Court of Canada stated:

39. An accused may choose, in most cases, to be tried by a court martial which provides a more complete set of procedural and fundamental legal guarantees. The requirement to record the election on the RDP and to indicate that opportunity to consult legal counsel has been provided to an accused is designed to ensure the presiding officer has confirmed the accused is making an informed choice before opting to proceed by way of summary trial.⁴⁶

SECTION 4 - OBLIGATION ON PARTICIPANTS IN THE DISCIPLINARY PROCESS

40. As has been noted the role of summary trials is to allow for a speedy, efficient and effective process to deal with breaches of discipline at the unit level. None of the participants in the disciplinary process: the presiding officer, the accused, the assisting officer or unit personnel who lay charges, conduct arrests or administer the summary trial process are required to be lawyers or Charter scholars. However, there is a clear obligation to respect and uphold the constitutional rights of an accused person and act fairly throughout the summary trial process.

41. This obligation can best be fulfilled by studying, learning and applying the NDA and QR&O in all aspects of dealing with service offences. The ability of presiding officers to meet this obligation is enhanced through the completion of certification training. For other members the successful completion of other training programs, and a commitment to treating all persons fairly will help ensure that constitutional and other legal obligations are met.

Footnotes

¹ Martineau v. Matsqui Institution (No. 2), (1979), 106 D.L.R. (3d) 385.

² For more on the principle of nemo judex in causa sua see Sara Blake, Administrative Law In Canada, 2^nd ed. (Toronto: Butterworths, 1997) at 86.

³ S.A. De Smith, Juridical Review of Administrative Action, 4^th Edition. By J.M. Evans (London: Stevens, 1980) at 158.

⁴ Sara Blake, Administrative Law In Canada, 2^nd ed. (Toronto: Butterworths, 1997) at 9.

⁵ Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 at 636.

⁶ Summary Trial Working Group Report, Volume 1, 2 March 1994 at 74-75.

⁷ QR&O 108.20(2)

⁸ NDA ss. 163(2), QR&O 108.09.

⁹ The case Painter v. Liverpool Oil Gas Light Co. (1936), 3 A&E 433 has codified, to some extent, the rule on giving adequate notice and the opportunity to be heard. The rule is defined by Mr. Justice McRuer in the "First McRuer Report", vol. 1, at 137, as cited in The Canadian Legal System (3d), Gerald L. Gall (Toronto: Carswell, 1990) at 360, note 25, as including the following elements:

1. Notice of the intention to make a decision should be given to the party whose rights may be affected.
2. The party whose rights may be affected should be sufficiently informed of the allegations against his interest to enable him to make an adequate reply.
3. A genuine hearing should be held at which the party affected is made aware of the allegations made against him and is permitted to answer.
4. The party affected should be allowed the right to cross-examine the party giving evidence against his interest.
5. A reasonable request for adjournment to permit the party affected to properly prepare and present his case should be granted.
6. The tribunal making the decision should be constituted as it was when the evidence and argument were heard.

¹⁰ Desjardins v. Bouchard (1982), 51 N. R. 204 at 214 (F.C.A.).

¹¹ QR&O 108.15.

¹² QR&O 108.20.

¹³ QR&O 108.14 Note B.

¹⁴ QR&O 108.045 and 116.02 and Federal Court Act, R.S.C. 1985, Chap. F-7, s. 18.1.

¹⁵ Blake, Administrative Law at 82 – 83.

¹⁶ Padfield v. Minister of Agriculture, Fisheries & Food, [1968] A.C. 997 at 1030 (H.L.) applied in Oakwood Developments Ltd. V. St Francois Xavier (Rural Municipality) (1985), 61 N.R. 321 at 331 (S.C.C.).

¹⁷ QR&O 108.20(3)(a).

¹⁸ Sara Blake, Administrative Law In Canada, 2nd ed. (Toronto: Butterworths, 1997) 81.

¹⁹ QR&O 108.02. Also see QR&O 101.07 which states: “Where in any proceedings under the Code of Service Discipline a situation arises that is not provided for in QR&O or in orders or instructions issued to the Canadian Forces by the Chief of the Defence Staff, the course that seems best calculated to do justice shall be followed.”

²⁰ QR&O 1.095.

²¹ Blake, Administrative Law at 84 – 85.

²² QR&O 108.45. See Chapter 15 for a detailed discussion on the review process.

²³ NDA s. 162 and QR&O 107.08.

²⁴ QR&O 108.02.

²⁵ Canadian Charter of Rights and Freedoms, s. 11(b). The majority decision in R. v. Askov, [1990] 2 S.C.R. 1199, 59 C.C.C. (3d) 449, 79 C.R. (3d) 273 stated, as per Cory J.: “Although the primary aim of s.11 (b) is the protection of the individual's rights and the provision of fundamental justice for the accused, none the less there is, in my view, at least by inference, a community or societal interest implicit in s.11 (b). That community interest has a dual dimension. First, there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Secondly, those individuals on trial must be treated fairly and justly.” (C.C.C., p.474). In a military context the community interest would arguably include the requirement to bring the matter to trial promptly in order that unit discipline within the military community might be restored.

²⁶ The Concise Oxford Dictionary (9^th ed.), (1995, Clarendon Press, Oxford) p. 474.

²⁷ Report of the Special Advisory Group on Military Justice and Military Police Investigation Services, March 14, 1997 at 9.

²⁸ Report of the Special Advisory Group on Military Justice and Military Police Investigation Services, March 14, 1997 at 11. See also the legal opinion found at Annex F to that Report, at 6-7 and R. v. Wigglesworth, [1987] 2 S.C.R. 541.

²⁹ For example, the Universal Declaration of Human Rights, 10 December 1948, the 1949 Geneva Conventions, the International Covenant on Civil and Political Rights (1966) 999 U.N.T.S. 171 and Additional Protocol I to the Geneva Conventions of 12 August 1949 (section 75).

³⁰ Wigglesworth v. R., (1987), 37 C.C.C. (3d) 385 (S.C.C.). Also see Re Howard and Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution (1985), 19 C.C.C. (3d) 195 (F.C.A.).

³¹ For a review of the concept of liberty in military context see the Summary Trial Working Group Report, 2 March 1994, Vol 1 at 119-124, and P. Rowe, The Loss of Liberty in a Military Context. Summary Proceedings in the British Armed Forces, Summary Trial Working Group Report, 2 March 1994, Vol, Tab E.

³² Reference re Section 94(2) of the B.C. Motor Vehicle Act R.S.B.C., [1985] 2 S.C.R. 486 as cited in J.M. Evans, "The Principles of Fundamental Justice: The Constitution and the Common Law" (1991) 29 Osgoode Hall Law Journal 51. However, fundamental justice is not limited to the principles of natural justice since while many of the principles of fundamental justice are procedural in nature they are not limited to procedural guarantees. The principles of fundamental justice are to be found in the basic tenets and principles not only of our judicial process, but also in other components of the legal system.

³³ Reference re S. 94(2) of the Motor Vehicle Act (British Columbia), [1985] 2 S.C.R. 486 at 500-504. See also Annex A for sections 7 – 14 of the Charter.

³⁴ Sections 9, 11(c) & (d) of the Charter.

³⁵ Report of the Special Advisory Group on Military Justice and Military Police Investigation Services, March 14, 1997 at 50-51.

³⁶ QR&O 108.20(2).

³⁷ QR&O 108.04.

³⁸ QR&O 108.09.

³⁹ The recommendations of the Summary Trial Working Group, 25 March 1994, upon which many of the 1997 and 1998 amendments to the summary trial system were based, specifically reviewed the constitutionality of the summary trial process and possible s. 1 justifications. The work of the Special Advisory Group on Military Justice and Military Police Investigation Services was based in part on the 1994 Working Group Report.

⁴⁰ R. v. Genereux, [1992] 1 S.C.R. 259.

⁴¹ QR&O 108.17.

⁴² QR&O 108.18.

⁴³ See Clarkson v. R, [1986] 1 S.C.R. 383, Korponay v. A.G. Canada, [1982] 1 S.C.R. 41, R. v. Manninen (1987), 58 C.R. (3d) 97 (S.C.C.), R. v. Bartle, [1994] 3 S.C.R. 173 and Middendorf v. Henry 425 U.S. (1976). For a discussion of the concept of "waiver" and its application to the summary trial process see the report of the Summary Trial Working Group, 25 March 1994, Vol I at 209-226.

⁴⁴ M.L. Friedland, Controlling Misconduct in the Military (Minister of Public Works and Government Services, 1997) at 98-100.

⁴⁵ Korponay v. A.G. Canada, [1982] 1 S.C.R. 41 (S.C.C.) at 49-50.

⁴⁶ Report of the Special Advisory Group on Military Justice and Military Police Investigation Services, March 14, 1997, Annex F at 15-16.