Chapter 12: Election

1. The term election refers to the process by which an accused who is triable by summary trial in respect of a service offence, but has the right to be tried by court martial, decides whether to elect to be so tried.

Purpose of the Election

2. The election process was designed to provide the accused with the opportunity to make an informed choice regarding the type of trial to be held, bearing in mind that an accused who elects not to be tried by court martial is in effect waiving the right to be tried by that form of trial, with full knowledge of the implications.¹

3. There are many differences between summary trials and courts martial. Courts martial are more formal and provide the accused more procedural safeguards than those available at summary trial, such as the right to be represented by legal counsel. The election process was designed to provide the accused a reasonable opportunity to be informed about both types of trial, to decide whether to exercise the right to be tried by court martial and to communicate and record the choice.

4. The QR&O set out the specific procedures to be followed for giving and recording the election. These procedures help ensure that the election process is procedurally fair.² A failure to observe these procedural requirements would call into question the legal validity of any subsequent trial.

Circumstances in which an Election must be Offered

5. Certain offences can only be tried by court martial³. Where an offence can be tried by both court martial or by summary trial an accused has the right to elect to be tried by court martial for all but the most minor of service offences, unless the CO decides to refer the matter directly to court martial.

6. The service offences for which an accused does not automatically have the right to an election are:

1. NDA section 85, Insubordinate Behaviour;
2. NDA section 86, Quarrels and Disturbances;
3. NDA section 90, Absence Without Leave;
4. NDA section 97, Drunkenness; and
5. NDA section 129, Conduct to the Prejudice of Good Order and Discipline, but only where the offence relates to military training, maintenance of personal equipment, quarters or work space, or dress and deportment.⁴

7. An election may still be required for these offences where, based on the circumstances surrounding the offence, the officer exercising summary trial jurisdiction concludes that a punishment of detention, reduction in rank or a fine in excess of 25 percent of monthly basic pay would be warranted if the accused were found guilty of the offence.⁵ If the officer determines that these punishments are not warranted, the accused can be tried by summary trial with no opportunity to elect trial by court martial.

8. This means that in many cases the accused must be offered the right to elect to be tried by court martial before an officer having summary trial jurisdiction will be in a position to conduct a summary trial.

Who may offer an Election

9. An election may be offered by any officer exercising summary trial jurisdiction over the accused.⁶ The considerations that must be taken into account when determining whether that officer has jurisdiction to try a summary trial are discussed in Chapter 11, Jurisdiction and Pre-trial Determinations.

Process used to give an Election

10. Where an accused has the right to be tried by court martial, the officer exercising summary trial jurisdiction must cause the accused to be informed of that right prior to the commencement of the summary trial.⁷ Once the accused has been informed of the right to elect trial by court martial, the officer exercising summary trial jurisdiction must ensure that the accused is given a reasonable period of time, of not less than 24 hours, to consult legal counsel with respect to the election, to decide whether to elect to be tried by court martial, and to make that decision known.⁸

11. It is the officer exercising summary trial jurisdiction who stipulates the manner in which the accused is to make known the election decision. Therefore, there is some flexibility in the process. For example, the accused may be required to communicate the decision directly to the presiding officer by directing that the decision be communicated through another person such as the unit adjutant. The practice in some units has been for the accused to appear before the presiding officer at a specific time in order to make the election decision known.

Recording the Election

12. To ensure that all the necessary procedures for the election have been completed, QR&O require that the following information concerning the election be recorded in Part 3 of the RDP:⁹

1. the time and date the accused was informed of the right to be tried by court martial;
2. the time and date the accused was required to make the election decision known;
3. the accused's election decision;
4. the signature of the accused;
5. the signature of the person receiving the election decision; and
6. the date and time that the election decision was received.¹⁰

13. Further, in endorsing Part 3 the accused will be confirming:

1. the election decision;
2. that the accused has discussed, with the accused's assisting officer, the nature and gravity of the offence(s) with which the accused has been charged;
3. that the accused has discussed the differences between trial by court martial and summary trial with the assisting officer; and
4. that the accused has had an opportunity to consult legal counsel about the election.¹¹

Effect of Refusal to Make an Election

14. When an accused refuses to make an election, the refusal is treated as an election to be tried by court martial and the accused must be so informed.¹²

Procedure after Election is Made

15. Where an accused has not elected to be tried by court martial, the officer having summary trial jurisdiction retains jurisdiction over the matter and must, unless otherwise precluded, proceed with the summary trial.¹³

16. Where the accused has elected to be tried by court martial the officer having summary trial jurisdiction will be precluded from trying the case and must refer the case to a referral authority for disposal.¹⁴ If that officer proceeds to try the case by summary trial despite the election, any subsequent finding of guilty would be invalid and would be quashed on review.¹⁵

17. Where the accused elects to be tried by court marital the officer who gave the election will be required to refer the case to a referral authority. If the officer who gave the election is a delegated officer, the case will instead be referred to the CO.¹⁶ The action that must be taken by the CO as a result of the referral is discussed in Chapter 11, Jurisdiction and Pre-Trial Determinations.

18. Where the officer who gave the election is a CO, the case will be referred to a referral authority.¹⁷ If the officer who gave the election to the accused is a superior commander who is not a referral authority, the case will be referred to a referral authority, and if the superior commander is a referral authority, the case will be referred to the DMP.¹⁸ The action that must be taken by the referral authority or DMP as a result of the referral is set out in Chapter 11, Jurisdiction and Pre-Trial Determinations.

Opportunity to Consult Legal Counsel

19. An officer exercising summary trial jurisdiction shall ensure that the accused is provided with a reasonable opportunity, during the period given to make the election, to consult with legal counsel.¹⁹ The opportunity to consult with legal counsel regarding the election enhances the accused's ability to make an informed choice when deciding whether or not to be tried by court martial. The consultation with counsel is in addition to any advice offered by the assisting officer.²⁰

20. What constitutes a reasonable opportunity will depend on the circumstances, including the operational posture of the unit. It may be that more than 24 hours is needed to allow the accused to have a private consultation with legal counsel.²¹ If the accused is not able to consult counsel concerning the election or is unable to make the election within the period provided, an extension may be requested.²²

21. Legal officers within the office of the DDCS are available to provide legal advice to the accused with respect to the making of the election.²³ The consultation with the legal officer will normally take place by telephone at no expense to the accused.²⁴ While the accused is not precluded from contacting civilian counsel, any consultation with civilian counsel will be at the accused's own expense.

22. The accused is not obliged to consult legal counsel regarding the election. The decision is that of the accused.²⁵

Withdrawal of Election to be Tried by Courts Martial

23. An accused who has elected to be tried by court martial has the right to withdraw that election and have the matter tried by summary trial at any time prior to the DMP preferring the charge to be tried by court martial.²⁶

24. After the DMP has preferred the charge to be tried by court martial the accused may, with the consent of the DMP, withdraw that election and have the matter tried by summary trial at any time prior to the commencement of the court martial.²⁷

Election During Summary Trial

25. When the accused has been charged with one of the five minor service offences described in paragraph 6 above, and an election was not given to the accused before the summary trial, it may become necessary during the summary trial for the presiding officer to stop the proceedings and offer the accused an election. An election must be offered if during the summary trial for one of the minor service offences the presiding officer, being either a CO or superior commander, decides in the circumstances that a punishment of detention, reduction of rank or a fine in excess of 25% of the accused's basic monthly pay would be appropriate if the accused were to be found guilty.²⁸

26. This requirement only applies to presiding officers who are COs and superior commanders. Delegated officers do not have the power to impose punishments of detention, reduction in rank or a fine in excess of 25% of monthly basic pay.²⁹

27. The procedure for giving the election during a summary trial is the same procedure used when the election is given before the trial.³⁰ If the accused elects trial by court martial the presiding officer must adjourn the summary trial and refer the case to a referral authority.³¹

Subsequent Elections

28. The regulations require that an officer having summary trial jurisdiction comply with QR&O 108.17 and consider extending the right to elect court martial to an accused before conducting a summary trial.³² The requirement to comply with QR&O 108.17 arises whenever an officer having summary trial jurisdiction intends to try an accused summarily. This requirement would even apply where charges have been referred to an officer having summary trial jurisdiction by another officer who has already complied with QR&O 108.17 and extended the right to elect court martial to the accused. This situation might arise where, for example, a case is referred to a CO for disposal by a delegated officer in accordance with QR&O 108.34(1)(b) (Referral to Another Authority During Summary Trial),³³ or where charges are referred from one officer to another officer in the period between the giving of the election (initial) and the commencement of the summary trial.³⁴

29. The right to elect trial by court martial should not ordinarily be extended to an accused more than once by the same officer. Before offering an accused what would amount to a second election, the advice of the unit legal advisor should be obtained.³⁵

Footnotes

¹ The importance of the right to elect court martial is discussed in the Summary Trial Working Group Report, 2 March 1994, Volume I pages 209 - 226. The Summary Trial Working Group stated at page 225 that “The right to elect court martial provisions should be used as a safety valve to enhance the protection of an accused's rights.” Friedland likens an election not to be tried by court martial to a waiver of trial by guilty plea (Friedland, at p.99).

² QR&O 108.17. See also Chapter 4, Fairness and the Application of the Charter.

³ All offences listed in the Code of Service Discipline must be tried by court martial except those listed in QR&O 108.07(2).

⁴ QR&O 108.17(1)(a).

⁵ QR&O 108.17(1)(b).

⁶ QR&O 108.17(2).

⁷ QR&O 108.17(2). The summary trial begins once the accused has been brought before the officer presiding at the trial and that officer has taken the presiding officer's oath and caused the charges to be read in accordance with QR&O 108.20(1) and (2). See QR&O 108.05 Note.

⁸ QR&O 108.17(2).

⁹ QR&O 107.07. A copy of the RDP, the Provision of Information form and a completed sample of both are attached as Annex B.

¹⁰ QR&O 107.07.

¹¹ QR&O 108.17(3). See also QR&O 108.14(5) and para. 12 and 19 of The Election to be Tried by Summary Trial or Courts Martial: A Guide for Accused and Assisting Officers, A-LG-050-000/AF-001, found at Annex H.

¹² QR&O 108.17(4).

¹³ QR&O 108.16(2).

¹⁴ QR&O 108.16(1)(b) and (3).

¹⁵ See Chapter 15, Request for Review.

¹⁶ QR&O 108.16(3)(a).

¹⁷ QR&O 108.16 (3)(b).

¹⁸ QR&O 108.16 (3)(c) and (d).

¹⁹ QR&O 108.18(1).

²⁰ QR&O 108.18 Note A.

²¹ QR&O 108.18 Note B.

²² The Election to be Tried by Summary Trial or Courts Martial: A Guide for Accused and Assisting Officers, A-LG-050-000/AF-001, para. 13 and 16.

²³ QR&O 101.20(2)(d).

²⁴ QR&O 108.18(2) and Note C and The Election to be Tried by Summary Trial or Courts Martial: A Guide for Accused and Assisting Officers, A-LG-050-000/AF-001, para. 15 and 17.

²⁵ QR&O 108.18(2) and The Election to be Tried by Summary Trial or Courts Martial: A Guide for Accused and Assisting Officers, A-LG-050-000/AF-001, para. 16.

²⁶ QR&O 108.17(5)(a).

²⁷ QR&O 108.17(5)(b) and The Election to be Tried by Summary Trial or Courts Martial: A Guide for Accused and Assisting Officers, A-LG-050-000/AF-001, para. 14.

²⁸ QR&O 108.17(6).

²⁹ QR&O 108.17(6) Note A. Where the delegated officer's powers of punishment are inadequate the delegated officer would adjourn the trial and refer it to the CO. See Chapter 11, Section 5.

³⁰ QR&O 108.17(6). See para. 11 and 12 in this chapter.

³¹ See para. 18 and 19 in this chapter and Section 6 of Chapter 13, Conduct of Summary Trial.

³² QR&O 108.16(1)(b) and 108.17(2).

³³ The failure to grant what amounts to a "second" election in these circumstances would clearly be contrary to 108.16(1)(b). It would also be "unfair" as the CO's powers of punishment exceed those of a delegated officer, bearing in mind that in electing not to be tried by court martial, the accused would only have considered the differences between the delegated officers powers of punishment and those of a court martial (see QR&O 108.14(5)(b)(i)).

³⁴ For example, a referral from one CO to another CO. Such referrals are provided for in QR&O 108.16(3), 108.19 and 108.195.

³⁵ The unit legal officer may recommend this course of action where a procedural error has occurred and the error is capable of being corrected through a repetition of the election procedures set out in QR&O 108.17(2).