Chapter 13: Conduct of Summary Trial
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.
SECTION 1 - GENERAL
1. 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.1
The QR&O regulating summary proceedings were designed with this purpose in mind.
1. Chapter 108 of QR&O prescribes the procedure for each step in the summary trial process. Fairness is essential in the conduct of summary trials and in order to ensure it is maintained, presiding officers are required to follow all procedural requirements contained in the QR&O.
2. Occasionally issues will arise for which procedures or specific considerations have not been set out in regulations. Presiding officers must exercise their discretion in resolving such issues in accordance with the principles of fairness and the purpose of summary trials. The principles and requirement of fairness are discussed in Chapter 4, Fairness and the Application of the Charter.
Place of Trial
4. The NDA and QR&O provide that any accused charged with having committed a service offence may be dealt with and tried under the Code of Service Discipline either in or outside of Canada. The determination of the location of the trial will depend upon a number of factors, including:
- circumstances of the accused;
- location of witnesses; and
- operational posture of the unit.
The discretion should be exercised based upon a balancing of convenience and disciplinary interests, bearing in mind the principles of fairness and the unit's duty to act expeditiously.2
5. A limitation period is a specified period of time in which a charge must be laid. In general, the limitation period begins the instant conduct occurs that may be subject to a charge. If charges are not laid within the applicable limitation period, the authority to try the accused for the offence charged is lost.
6. With respect to service offences, the general rule is that anyone subject to the Code of Service Discipline at the time of the alleged commission of a service offence, can at any time be charged, dealt with and tried under the Code of Service Discipline.3 There are two exceptions to this rule. First, if the offence is punishable under NDA sections 1304 or 1325 and would have been subject to a limitation period if it had been dealt with other than under the Code of Service Discipline (i.e. under another federal statute or foreign law), that other limitation period applies. In the summary trial context this exception would have application in the case of an accused charged with an offence under section 335 (Taking Motor Vehicle or Vessel Without Consent) of the Criminal Code or section 4(1) of the Controlled Drugs and Substances Act (Possession) where the amount is less than 1 gram of cannabis resin or 30 grams of marihuana and tried by a CO or superior commander.6 The limitation period in that case would be six months.7
7. The second exception is that summary trials must begin within one year of the date on which the offence is alleged to have been committed.8 The summary trial does not have to be completed before the one year date, only begun within that time. A trial is begun when the accused is brought before the presiding officer and the presiding officer takes the oath and causes the charges to be read.9
8. An offence involving a series of acts occurring over an extended period of time may form the basis of a single charge where they constitute a continuous transaction.10 For example, if someone steals money from their roommate's wallet on a regular basis over a six month period, these incidents may all support one charge of stealing rather than a number of separate charges for each act. The relevant date for determining the limitation period in such a case would be the last date of the continuous transaction.11 Therefore, the limitation period would not expire until one year from the date on which the last incident in the continuous act of theft is alleged to have occurred.
No Joint Trials
9. When two or more accused are tried together for the same or similar offences, the trial itself is called a joint trial. The regulations allow the DMP to prefer charges jointly and try by court martial two or more accused who are alleged to have committed an offence together.12 However, there is no similar provision with respect to summary trials. Therefore, where two or more accused acted as accomplices in committing offences they cannot be tried together. Normally in such circumstances the least serious case will be dealt with first.13
Records of Summary Trials
10. Once completed, the RDP will reflect the findings and sentence, if any, as well as pre-trial decisions. While a formal transcript of the proceedings is not made, the presiding officer should prepare a list to identify the witnesses heard and all documentary or physical evidence accepted at the summary trial, including witnesses or evidence called or presented by or on behalf of the accused, and attach this list to the RDP.14 The RDP, together with the attachments and a copy of the report of investigation conducted in accordance with QR&O Chapter 106, will be placed on the Unit Registry once the summary trial has been completed.15 This ensures that a record of the summary trial will exist which can be accessed by a review authority, should the need arise.16
11. The electronic recording of summary trial is not provided for in QR&O and is a practice that may well involve significant administrative requirements under the Privacy Act, Access to Information Act, and National Archives of Canada Act. Although a recording of the summary trial may be considered useful for the presiding officer to review the evidence that was presented, if the evidence is expected to be so lengthy or complex to require making a record, it may be appropriate to refer the case for court martial. A presiding officer who decides to record a summary trial must request and consider advice from the unit legal advisor about compliance with access to information and privacy legislation, as well as the importance of making an accurate and complete recording.
SECTION 2 - PRE-TRIAL ISSUES AND PROCEDURES
12. There are various procedural issues that may arise for consideration at the pre-trial stage, and QR&O provide how many of these issues are to be handled. Checklists detailing the role of COs, delegated officers and superior commanders as presiding officer at summary trial, are attached at Annexes P, Q and R.17
Appointment of an Assisting Officer
13. As soon as possible after a charge has been laid, the accused's CO or someone authorized by the CO shall appoint an assisting officer to help the accused.18 The assisting officer is normally an officer, but in exceptional circumstances a NCM above the rank of sergeant may be appointed. For information on the appointment, role and duties of the assisting officer, see Chapter 9, Assisting Officer.
Referral of Charges
14. After a charge is laid, and at various times before and during a summary trial, it may be necessary or appropriate for the officer exercising summary trial jurisdiction to refer the charge to another officer with a view to having the charges disposed of at summary trial or court martial.19 The procedures and considerations involved with referring charges are discussed in Chapter 8, Laying of Charges and Chapter 11, Jurisdiction.
Election to be Tried by Courts Martial
15. Any accused who has been charged with an offence that can be tried by summary trial, has the right to be tried by court martial unless the accused has been charged with one of five minor offences and the circumstances would not warrant certain specified punishments.20 The election to be tried by court martial is discussed in detail in Chapter 12, Election.
Provision of Information to the Accused
16. In order for the accused to be able to make an informed decision on the election, or to properly prepare the accused's case for trial, the accused must be provided with, or given access to, certain prescribed information about the charges and any investigation held. Presiding officers are responsible for ensuring that the required information is made available to the accused.21 The provision of information to an accused is discussed in detail in Chapter 10, Provision of Information.
Application for Legal Representation at Summary Trial
17. An accused must be given the opportunity to consult legal counsel with respect to the making of the election to be tried by court martial,22 and has the right to be represented by legal counsel if tried by court martial. Although legal advice of a general nature will be available to an accused or an assisting officer through the office of the DDCS there is no right to be represented by legal counsel at a summary trial.23 Instead, the accused will be assisted throughout the summary trial process by an assisting officer who is specifically appointed for that purpose.24
18. The nature of the summary trial process, being less formal and intended to deal with less serious service offences at the unit level, does not normally require the accused be represented by legal counsel.25 Nonetheless, the accused may request legal representation and it is within the discretion of the presiding officer to allow the accused to have legal representation at the summary trial.26 The QR&O do not provide a specific procedure to an accused for requesting legal representation at summary trial. Since the presiding officer controls the process at summary trial, it is within the presiding officer's discretion as to how the request is made. For example, such a request can be made in writing or in person.
19. When considering a request for legal representation, the presiding officer should consider at least the following:
- the nature of the offence;
- the complexity of the offence;
- the interests of justice;
- the interests of the accused; and
- the exigencies of the service.27
Further, the presiding officer should also consult with the unit legal advisor.
20. Having considered the relevant factors, the presiding officer has the discretion to:
- permit the accused to have legal representation at the summary trial;
- deny the accused's request and proceed with the summary trial without legal representation for the accused; or
- apply for disposal of the charges against the accused by court martial.28
No Funding for Legal Representation at Summary Trial
21. If legal representation is permitted it is at the personal expense of the accused.29 Unlike the procedure followed where the accused will be tried by court martial, a legal advisor with DDCS will not be appointed to represent an accused who is to be tried by summary trial.
Attendance of the Accused
22. Although the assisting officer will only assist the accused in the preparation and presentation of the accused's case to the extent that the accused desires, both the accused and the assisting officer must be present throughout the summary trial. There are no exceptions to this requirement.30 The right of the accused to be present at the accused's summary trial is a fundamental feature of Canada's system of justice. This right provides the accused with the opportunity to make full answer and defence to the charges.31
Procurement of Witnesses
23. The presiding officer has a duty to ensure the attendance of any witness, including witnesses requested by the accused. However, this duty is limited to those witnesses whose attendance may be reasonably obtained without legal process.32 There is no authority to issue a summons or subpoena to compel a witness to attend at a summary trial.
24. Military witnesses may be ordered to attend. Civilian witnesses may only be requested or invited to attend to give evidence at summary trials. At courts martial, the president has the authority to issue a Summons to a Witness requiring the attendance of civilian witnesses. Where it is necessary in the interests of justice to compel the attendance of a civilian witness, the matter may have to be referred to court martial.33
25. The attendance of any witness is, however, subject to the requirement that their attendance may be reasonably obtained. A factor that must be considered is the exigencies of the service.34 The QR&O do not specify what would be considered reasonable in the circumstances. However, if a witness is on temporary duty overseas, and another person is available at the unit who could give the same evidence, it would not be reasonable in that case to require the witness to return from overseas to attend the summary trial.
26. The presiding officer has no duty to procure the attendance of a witness where the presiding officer believes that the request is frivolous or vexatious.35
27. According to The Concise Oxford English Dictionary, frivolous is defined as “
adj. 1 paltry, trifling, trumpery. 2 lacking seriousness; given to trifling; silly”.36
28. Vexatious is defined as “
adj. 1 such as to cause vexation. 2 Law not having sufficient grounds for action and seeking only to annoy the defendant.”37 The term 'vexation' is defined as
n. 1 the act or instance of vexing; the state of being vexed. 2 an annoying or distressing thing.", while vex is defined as "v.tr. 1 anger by a slight or a petty annoyance; irritate. 2 archaic grieve, afflict."38
29. An example, of a frivolous or vexatious request for a witness would be if the accused is charged with being improperly dressed on a battalion parade and wants to call all the other unit members on parade as witnesses.
30. In exercising the discretion on whether to require the attendance of a witness, QR&O specify the factors to be considered by presiding officers: whether the request is frivolous or vexatious, and whether the witness can, having regard to the exigencies of the service, be reasonably procured without legal process.39 To consider other issues not related to these factors in making the decision would be improper. For example, if a presiding officer refuses the accused's request for the attendance of a witness only because it would require the trial to continue on a second day and there is no reason to believe the request is frivolous or vexatious, the decision would be improper.
31. When assessing requests for a witness, the presiding officer must bear in mind the requirements of fairness, and respect the accused's right to make full answer and defence to the charges laid. Therefore, subject to any limitations specifically provided for in QR&O, all efforts should be made to accommodate requests by an accused for the attendance of witnesses.
32. The failure to make a witness available, or the refusal to grant a reasonable request for the attendance of a witness, could result in a review and a subsequent quashing of any finding of guilt. This does not mean that all requests for witnesses must be granted, only that all requests must be given proper consideration and a reasoned decision made.
33. The QR&O also allow for witnesses to give evidence by telephone or other telecommunication device.40 This issue will be discussed in more detail in Section 3 on summary trial procedures.
Attendance of the Public
34. Summary trials will ordinarily be open to the public. The QR&O direct that, in general, members of the public, both civilian and military, be permitted to attend as spectators to the extent that accommodation permits.41 There is no requirement that the summary trial be moved to a larger venue to accommodate members of the public who may wish to attend. For example, trials could be held in the base theatre, in an aircraft hanger, or on the flight deck of a ship.
35. Despite the general rule allowing the public to attend a summary trial, the presiding officer may direct that the public be excluded for the whole or any part of the summary trial.42 The public may be excluded where the presiding officer considers it to be in the interests of justice and discipline, public safety, defence or public morals.43
36. Another exception to the general rule of openness could arise where classified information will be given in evidence at a summary trial. In such circumstances members of the public without appropriate security clearance and without a need to know must be excluded from those portions of summary trials during which such evidence is to be presented.44
Right to Summary Trial in Either Official Language
37. An accused has the right to have a summary trial conducted in either English or French. The presiding officer must be able to understand the trial in the official language chosen for the proceedings without the assistance of an interpreter. This is determined by the presiding officer. If the presiding officer does not have the required language ability, the presiding officer should refer the case to another presiding officer who does have the language ability to try the case.45
Language of Witness Testimony
38. Witnesses may testify in their preferred language, and if it is not the official language chosen by the accused for the proceedings, an interpreter must be provided.46 The accused, however, may consent to dispense with the interpreter if the witness will be using the official language not chosen for the summary trial where the accused understands that language.47 The presiding officer is not required to dispense with the interpreter in such circumstances, and should not do so despite the accused's consent where the presiding would not consider it appropriate to do so. For example, if the presiding officer does not understand the official language which that witness will be using it would not be appropriate to dispense with the requirement for an interpreter.
Protection against Self-Incrimination
39. The term self-incrimination refers to any acts or declarations made by a person which implicate that person as a party to an offence or crime. Any witness who testifies in any proceeding, including at a summary trial, has the right not to have incriminating evidence used against the witness in any other proceedings. The only exceptions are where the witness is being prosecuted for perjury or where the incriminating evidence is used for the purpose of cross-examining that witness on a prior inconsistent statement.48
SECTION 3 - SUMMARY TRIAL PROCEDURE
40. The procedure which must be followed during a summary trial is set out in QR&O.49 These procedures not only create an underlying consistency in the summary trial process for presiding officers and accused, but also help ensure that the summary trial process is procedurally fair.
41. Although much of the summary trial procedure is set out in QR&O, there are also practical details which are left to the discretion of the presiding officer. In the exercise of this discretion the presiding officer must always act fairly.
42. The conduct of the proceedings of a summary trial are the sole responsibility of the officer presiding at the trial and no superior authority shall intervene in the proceedings.50 It would therefore be inappropriate for a superior officer to contact the presiding officer in order to influence the outcome of a particular case. Care must also be taken to ensure that no action is taken or statements made with respect to a case, that will create the perception that a superior authority is attempting to influence the result in a particular summary trial.
43. Before the summary trial commences the presiding officer and the public will take their places. The accused, accompanied by the assisting officer, will be brought before the presiding officer.51 The practical aspects of how this occurs such as, whether the public stands or sits, whether members of the public remove their head-dress, and where the accused and the assisting officer will stand in relation to the presiding officer and the witnesses, typically do not affect the procedural fairness of the trial and will normally be determined in advance by the presiding officer, having due regard to unit or environmental (Navy, Army, or Air Force) traditions and practices.
44. Once the accused has been brought before the presiding officer, the presiding officer will take the oath or solemn affirmation to duly administer justice according to law without partiality, favour or affection.52 At this time all present may be asked to stand and remove head-dress, if applicable, and once the oath or affirmation has been taken, to resume their seats and replace head-dress.
45. The charges will then be read out by the presiding officer or by someone appointed by the presiding officer to do so.53 Although the accused should have been given a copy of the RDP prior to the trial,54 as well as copies of or access to any information related to the charges, the formal reading of the charges provides added assurance that the accused knows the case that has to be met, it also completes the series of steps which must be taken to officially begin the summary trial.55
46. Once the charges have been read, and before any evidence can be put forward, the presiding officer will ask the accused whether more time is required to prepare the accused's case. The presiding officer must grant any reasonable adjournment requested by the accused for that purpose.56
47. To ensure that the proceedings are fair, the accused must be informed of the case to be met, and provided with adequate time to prepare a defence. The ability to request a reasonable adjournment serves these purposes.
48. It is the presiding officer who decides what is a reasonable adjournment. The reasonableness of an adjournment is based on the circumstances of that case. Although not provided in QR&O, the presiding officer should at least consider the following factors:
- the time which has passed since the accused was provided with a copy of the RDP;
- the time which has passed since the accused was provided with a copy of, or was given access to, all the information referred to in QR&O 108.15;
- the number of charges contained in Part 1 (Charge Report) of the RDP;
- the seriousness and complexity of the charges;
- the number of witnesses being called;
- the availability of defence witnesses; and
- the volume of documentary and real evidence being considered.
Admission of Particulars
49. If an adjournment is not required, the presiding officer may continue with the summary trial by asking the accused whether the accused wishes to admit any of the particulars of the charges.57 By admitting particulars, the accused is agreeing with certain facts related to the alleged offence that are set out in the statement of particulars and consenting to dispense with the requirement that they be proven by calling evidence.58
50. The accused can admit none, some, or all the particulars of any charge. For example, an accused is charged with Disobeying a Lawful Command of a Superior Officer (NDA s.83), and the statement of particulars read “
in that he at Canadian Forces Base Edmonton, at approximately 1630 hours, 12 July 1999, did not leave the non-commissioned members' canteen when ordered to do so by B87 654 321 Sergeant Green, A.B.”. The accused can admit that he was at the CFB Edmonton NCM's canteen at 1630 hours on 12 July 1999, but not admit the remaining particulars. It would still be open to him to defend himself by arguing that Sergeant Green did not order him to leave the canteen.
51. Although the accused can admit all the particulars of the charge, it is not possible at summary trial for the accused to plead guilty to the charge. The presumption is that the accused is innocent and must be proven guilty. Where the accused has admitted all the particulars, there is no need to call evidence on that charge unless the presiding officer considers that it would be appropriate to do so at this stage in the proceedings in order to better understand the case. Even where no evidence is called, the presiding officer must still review the particulars of the charge to ensure they contain all the elements that must be present for the accused to be found guilty of the offence charged. The presiding officer can make a finding of guilty only when all the required elements of the offence are met.59
52. Although the accused may admit all the particulars, if the particulars are flawed and do not describe all the required elements of the offence, then the presiding officer would have to make a finding of not guilty. Using the earlier example, if the charge failed to state it was Sgt Green who gave the command, the charge would be flawed since there is no allegation that an order was given by a superior officer.60
Hearing the Evidence
53. Once all issue of admission of particulars has been dealt with, the presiding officer will hear the evidence.61 The presiding officer can receive any evidence the presiding officer considers to be of assistance and relevant in determining whether the accused committed any of the offences charged.62 The evidence may be received by hearing witnesses or by accepting documentary or physical evidence.63 A discussion on the types of evidence available and the considerations that can be taken to determine if evidence will be of assistance and relevant, are found in Section 4 of this chapter.
54. The majority of evidence will be presented orally, through witnesses, preferably those who have first hand knowledge of an event who should be called to testify.64 Before giving evidence, a witness must either take an oath or make a solemn affirmation to tell the truth, the whole truth, and nothing but the truth.65 A witness remains under this obligation throughout the witnesses' testimony even if it is interrupted by a break or begins on one day and continues on the next day. The presiding officer may choose to remind a witness of this after any adjournment.
55. Although most witnesses will be present at the summary trial to give evidence, the presiding officer has the discretion to allow evidence to be given by means of a telephone or other telecommunications device that permits the presiding officer and the accused to hear and examine the witness.66 In making this determination the presiding officer shall consider all the circumstances including:
- the location and personal circumstances of the witness;
- the costs that would be incurred if the witness had to be physically present;
- the nature of the witness' anticipated evidence; and
- any potential prejudice to the accused or adverse impact on the presiding officer's ability to evaluate the evidence caused by the fact that the witness would not be physically present.
For example, a witness may not be reasonably produced because the witness is too far away from the trial, or because it would not be practical to have the witness attend such as where the witness is in the base hospital with a broken back.
56. Before a witness can testify by telephone, the witness must be sworn and the identity established to the satisfaction of the presiding officer.67 This can be achieved by having an officer or NCM at the witness' location check the witness' identification and confirm the witness' identity. Also before giving evidence, the witness must take an oath or solemn affirmation. This can be administered by the presiding officer over the telephone or other telecommunications device, in the presence of a witness.68
57. Where the presiding officer decides not to allow the witness to give evidence by telephone or other telecommunications device, the summary trial should normally be adjourned to allow the witness to attend, rather than proceeding with the summary trial, unless the witness' testimony is no longer required (for example, where another witness could provide the same evidence). Alternatively, the presiding officer may refer the case to a referral authority with a recommendation that the charges be disposed of by court martial.
58. At the summary trial, the presiding officer will first hear all the evidence against the accused, and during the presentation of this evidence the presiding officer will normally question the witness. The accused may also question each witness.69 The ability to question witnesses called against the accused is an important part of the accused's right to make full answer and defence to the charges laid, and contributes to the overall fairness of the proceedings.70 The questioning of witnesses called against the accused is also a valuable tool for the presiding officer to use to evaluate the credibility or honesty of a witness by observing the witness' demeanour during questioning.
59. The failure to provide an accused with the opportunity to question a witness called against the accused would be contrary to QR&O. It would also be procedurally unfair. If the accused is found guilty in such circumstances, the accused would be entitled to ask the review authority to set aside a finding of guilty on the ground that it is unjust.71
60. Witnesses should remain outside the location of the hearing until such time as they are called to give evidence in order to avoid the appearance that their testimony has been influenced by the evidence of the other witnesses. Once finished giving evidence, witnesses should be requested to leave the summary trial so that they would not be influenced by anything they would hear in the event that they are subsequently required to give further evidence. The witness may be allowed to return to the witness' place of duty if it is nearby or it is unlikely the witness will be called again to give evidence.
61. After the evidence against the accused has been heard, the accused may present evidence in defence of the charges by calling witnesses or producing documentary or real evidence.72 The accused may also call witnesses to discredit or call into question the evidence of previous witnesses. During the presentation of the evidence the accused and the presiding officer may question the witness.73
62. The accused may choose to testify but is not required to do so.74 One of the basic principles of fundamental justice is that accused persons have the right to remain silent and not be compelled to give evidence in proceedings taken against them.75 As well, it is improper for the presiding officer to consider or take a negative view of the fact that the accused has not testified.76
63. If the accused decides to testify, the accused must do so under oath or solemn affirmation, the same as any other witness. The presiding officer may only question the accused if the accused chooses to testify.77
Representations by the Accused
64. After all the evidence has been presented, the accused may make representations with respect to the evidence heard during the summary trial,78 which would include offering an interpretation of the evidence in its best possible light from the accused's perspective or suggesting why some of the witnesses were not credible and should not be believed. For example, if the identity of the offender is in issue and the evidence disclosed that a key witness was not wearing their glasses at the time of the commission of the offence, the accused's representations might include comments on that witness' ability or inability to identify the accused as the offender.
65. To the extent desired by the accused, the assisting officer may assist and speak for the accused during the summary trial. This could include presenting evidence, questioning witnesses and making representations on behalf of the accused.
Findings on Guilt and Sentence
66. The presiding officer must consider the evidence received as well as the representations of the accused and determine whether it has been proved beyond a reasonable doubt that the accused committed the offence charged.79 In order to make such a finding, the presiding officer must conclude that all the required elements of the offence have been proved beyond a reasonable doubt.80 The required elements would include, as a minimum, the following: that the accused was the person who committed the offence; that the accused intended to commit the offence; that the offence was committed on the date that was alleged in the charge report portion of the RDP; and that the acts or omissions alleged occurred.
67. Presiding officers must take care to keep an open mind throughout the trial. It is very important not to pre-judge a case after hearing only part of the evidence. It is only after hearing all of the evidence, both for and against an accused, and the accused's representations, that a measured assessment may be made as to the guilt or innocence of the accused on each charge. It may be appropriate for the presiding officer to adjourn the summary trial while making this determination. A service tribunal must not find a person guilty unless evidence is presented which proves guilt beyond a reasonable doubt.81
68. Once the guilt or innocence of the accused has been determined the presiding officer must pronounce the finding in respect of each charge.82 Where the accused is found not guilty the member will be allowed to proceed. In cases where an accused is found guilty, the sentencing phase of the summary trial commences.
69. During the sentencing phase the presiding officer must receive any evidence concerning the appropriate sentence to be imposed including aggravating and mitigating factors.83 During this phase of the trial, the offender is entitled to present evidence, including calling witnesses and presenting documentary evidence, and questioning each witness about any matter concerning sentence. During the presentation of sentencing evidence the presiding officer may question each witness, including the accused, where an accused chooses to testify.84 For a detailed discussion on the factors to consider with respect to sentencing see Chapter 14, Sentencing and Punishment.
Summary Trial Procedure in Special Cases
70. Circumstances may arise during the course of a summary trial that require a presiding officer to depart from the typical summary trial procedures. These include situations where an election or an adjournment becomes necessary after the trial has started, or where a situation arises that is not provided for in QR&O.
71. Election during Summary Trial. When an accused has not been given an election before the summary trial commences, there could be circumstances which require that the accused be given the opportunity to elect trial by court martial during the summary trial.85
72. An accused has the right to elect trial by court martial for all but a limited number of service offences. If an accused has been charged with one of the five minor service offences, and the presiding officer determines that, prior to commencing the summary trial, if found guilty the punishments of detention, reduction in rank or a fine in excess of 25% of the accused basic monthly pay would not be warranted, then no election need be given.86 However, if at any time during the summary trial, before making a finding on guilt, the presiding officer decides that if found guilty at least one of these punishments would be warranted, the presiding officer must give the accused the opportunity to elect to be tried by court martial.87
73. The presiding officer must apply the same considerations and procedures for an election given during a trial as one given prior to the trial commencing.88 Therefore, the summary trial will be adjourned to allow the accused a reasonable opportunity (not less than 24 hours), to consult legal counsel, to decide whether to elect to be tried by court martial, and to make that decision known.89
74. The following is an example of when an accused might be given the right to elect court martial during the summary trial. An accused is charged with Insubordinate Behaviour (s. 85 of NDA) in that the accused acted with contempt towards a superior officer. The evidence heard at summary trial reveals that the contemptuous behaviour took place in front of the accused's subordinates. The presiding officer might decide that the facts establish that a punishment of detention, reduction in rank or fine in excess of 25% of the accused's basic monthly pay would be appropriate if the accused is found guilty.
75. Adjournments during a Summary Trial. The presiding officer may adjourn a summary trial at any time on the initiative of the presiding officer or at the request of the accused, if the presiding officer considers it desirable.90 For example, as adjournment may be given to allow the accused the opportunity to discuss the case with the assisting officer or respond to new evidence disclosed.91 The presiding officer must act fairly when exercising discretion to allow an accused's adjournment request.
76. There are also circumstances when the presiding officer will be required to adjourn the summary trial. A summary trial must be adjourned when there are reasonable grounds to believe that the accused is unfit to stand trial or was suffering from a mental disorder at the time of the alleged offence.92 It must also be adjourned where the CO or superior commander decides to offer the accused the election to be tried by court martial after the summary trial has begun.93
77. The summary trial must also be adjourned if the presiding officer concludes that it is inappropriate to try the case, having regard to the interests of justice and discipline.94 For example, this could arise in circumstances where evidence is led which puts the presiding officer into a conflict of interest situation.
78. If the presiding officer adjourns a summary trial in circumstances where it would be inappropriate for that officer to continue with the trial, the case must be adjourned and the charge referred to another officer who has the authority to deal with the case.95 Furthermore, the accused must be informed that the case is being referred to another authority.96
79. An accused who was in custody prior to the commencement of the summary trial or who was ordered into custody during the trial97 may be kept in custody on the direction of the presiding officer when the trial is adjourned for the purpose of referring the case to another authority for disposal.98 Alternatively, the presiding officer may order that the accused be released from custody.
80. Situations not provided for in the QR&O. Occasionally, a situation may arise during a proceeding which is not provided for in QR&O, the NDA or other applicable orders. In such circumstances, the course to follow is that which seems best calculated to do justice.99 The unit legal advisor should be contacted in such a case to provide input on any law or legal principles, and to determine how similar cases may have been dealt with in the past.
Irregularities in Procedure
81. Deviations from procedure do not make findings or sentences invalid, unless an injustice has been done to the accused as a result of the deviation.100 Defects of a technical nature, which do not affect the merits of the case, would not invalidate the finding or sentence.101 For example, if the presiding officer caused the charges to be read before taking the oath set out in QR&O 108.27.
82. A substantial (non-technical) deviation in procedure which affects the merits of the case, such as not allowing an accused or the assisting officer to ask questions of a witness at a summary trial, could invalidate the result.102 Deviations of this nature go to the heart of the fairness of the proceeding. On review summary trial findings arrived at in such circumstances would ordinarily be set aside as unjust.103
83. The fact that a finding or sentence may still be valid despite a deviation in procedure, does not relieve a service member of the consequences of contravening QR&O.104 Presiding officers and others involved in administering the summary trial process are clearly accountable for any failure to comply with the regulations.105
SECTION 4 - EVIDENTIARY ISSUES
84. To determine whether an accused is guilty of any of the charges, the presiding officer shall only consider the evidence received at the summary trial and any representations made by the accused.106 The rules of evidence set out in the Military Rules of Evidence107 which apply at a court martial, and the law applicable to the admissibility of evidence in civilian courts, do not apply at a summary trial.108 However, QR&O provide guidance to the presiding officer on the evidence to be received and the weight to be given to it.109
85. The QR&O state that a presiding officer may receive any evidence the officer considers to be of assistance and relevant in determining whether or not the accused committed the offences charged and, where applicable, in determining an appropriate sentence.110 A presiding officer may receive any evidence which is sufficient to establish any relevant fact, whether the evidence establishes the fact on its own or when considered with other evidence. The presiding officer shall only give the evidence the weight it is warranted by its reliability.111
86. To fully appreciate what evidence can be received, the terms relevant, weight, and reliability must be defined along with the factors that affect them.
87. Relevant. Relevance is determined by looking at the substance or contents of the evidence put forward. Evidence is relevant if it is related in some way to a fact in issue, if reasonable inferences112 can be drawn from the evidence regarding a fact in issue, or if it sheds light on a contested matter.113
88. Relevant facts, in this context, mean those facts which assist the presiding officer determine whether the accused is guilty or not guilty of the offence charged. Evidence which will not assist the presiding officer in assessing whether a fact in issue has been proven, or which will not assist in the determination of an appropriate sentence, will not be relevant and should not be heard.
89. To determine what is relevant, a presiding officer must first identify the facts that are in issue in the case. Those are the facts that must be proved to establish all the elements of the offence charged.114 For example, if an accused is charged with having assaulted another service member, the following elements must be proved, in order for the accused to be found guilty:
- the accused's identity as the perpetrator;
- that the accused applied force or the threat of force against the alleged victim at the date, time and place alleged;
- that the accused intended the application of force or threat of force; and
- that the alleged victim did not consent.
In this hypothetical assault case, a fact in issue that would relate to the element of identity might be whether an identifying tattoo on the accused was visible to a witness.
90. In general, evidence called to prove any of the facts in issue will be considered relevant. However, evidence called for reasons other than to prove a fact in issue may also be relevant if a relationship exists between the evidence and at least one of these facts in issue.115 This would include facts relating to the credibility of a witness who has given evidence.
91. Evidence relating to the credibility of a witness would not be directly relevant to whether the assault occurred, but would be relevant to the extent it impacts on the reliability of a witness' testimony. For example, the fact that a witness is near sighted and must wear glasses does not directly relate to whether an assault occurred; however, it may be relevant when trying to prove the element of identity.
92. When considering whether evidence is relevant, the presiding officer should look at the evidence as a whole. Although a particular fact may not appear to be relevant on its own, it may be relevant in light of all the evidence received.
93. Reliability. The reliability of evidence refers to its trustworthiness, and the amount of confidence the presiding officer can have in its accuracy.116 There are various factors that will affect the reliability of the evidence including the truthfulness of the witness, the ability of the witness to perceive and later recall the particular event, as well as the type of evidence being called. Some types of evidence are more reliable and therefore more acceptable than others. Details on the types of evidence as well as the factors affecting the credibility of witnesses are outlined later in this Section.
94. Weight. The term weight refers to the amount of consideration that is to be given to a particular piece of evidence to help in reaching a decision on the guilt or innocence of the accused. The reliability of the evidence will affect the weight it is given by the presiding officer.117 Based on its reliability, the presiding officer may give a piece of evidence a lot of weight; some weight; or none at all.
95. For example, testimony from a credible witness who has perceived the offence with one of the five senses (hearing, sight, taste, smell and touch) and who has first hand knowledge of an event should be considered more reliable than testimony from someone who does not have first hand knowledge and is only relating what someone else has told them. Therefore, the presiding officer should give more weight to a credible first-hand evidence, than to the evidence of a witness who was not present when the offence was committed, or who has no personal knowledge of what took place.
Types of Evidence
96. The nature or type of evidence that is presented may affect the reliability of that evidence. Although the Military Rules of Evidence and common law rules of admissibility do not apply at summary trials, the concerns which led to the establishment of these rules are instructive to the presiding officer when deciding what evidence to accept based on its relevance, the amount of assistance it will give the presiding officer, as well its weight and reliability.
97. Direct Evidence. Direct evidence is the testimony of a witness with respect to something that witness perceived with one or more of their five senses and which directly relates to one of the facts in issue. For example, when someone witnesses an assault and gives testimony that it was the accused who struck the victim, that is direct evidence.
98. Direct evidence is given as the truth of what was perceived, and as the proof of a relevant fact in issue. Of the different types of evidence which may be presented at a summary trial, direct evidence provided by a witness testifying at the summary trial is preferred.118 Like any other form of evidence, the presiding officer must determine what weight should be given to direct evidence.
99. Various factors can affect the reliability of direct evidence, including the ability of the witness to perceive what the witness is testifying about, the witness' ability to recall the event and the witness' ability to express and to describe what was observed. In addition, the manner in which questions are asked of a witness and the witness' ability to understand the questions asked may also affect the witness' evidence. Presiding officers must consider the presence of any of these factors when deciding how much weight to give the evidence.119
100. The reliability of direct evidence can be tested by questioning the witness. Questioning by either the accused or the presiding officer can assist in determining not only the witness' credibility but also whether any factors exist that affect the reliability of the witness' evidence, such as the fact that the witness had consumed alcohol prior to witnessing the occurrence or the existence of poor lighting conditions.
101. Circumstantial Evidence. Unlike direct evidence that relates directly to a fact in issue, circumstantial evidence is evidence which proves facts or circumstances from which the existence or non-existence of the fact in issue may be inferred.120 For example, the evidence of a witness who saw the accused stab the victim is direct evidence, while evidence that the accused owns the same kind of knife as the one used in the stabbing, the same type of gloves as the ones found beside the victim, and was seen in the vicinity of the stabbing shortly before the stabbing, is circumstantial evidence.
102. One concern about circumstantial evidence is its reliability. To be reliable and useful, the circumstantial evidence must be sufficiently connected to a relevant fact to assist in either proving or disproving that fact. Another concern with circumstantial evidence is that the correct inference be drawn from the evidence.121 For example, if the grass and ground are wet, one may infer that it rained. However, this is not the only possible conclusion; there could have been a heavy dew or a sprinkler may have been used in the area.
103. It is not necessary that each piece of circumstantial evidence lead inevitably to the conclusion that the accused's guilt in order to be accepted. Circumstantial evidence may be used like other types of evidence either in isolation or in conjunction with other evidence to determine guilt or lack of guilt.122 For example, the evidence that the victim was seen being assaulted by someone wearing a red jacket with the number 23 on it, and the evidence that the accused owns the same type of jacket may be sufficient when considered in conjunction with further evidence that the accused was seen in the same area immediately before the assault wearing a red jacket with the number 23 on it.
104. Hearsay Evidence. Hearsay evidence is a statement originally made by someone other than a witness testifying at the summary trial, and which is submitted for the purpose of proving the truth of the original statement.123 For example, if Cpl Jones gave evidence that at work on Tuesday, Sgt Smith told her he saw the accused hit the victim, and the purpose behind Cpl Jones's evidence is to prove that the accused assaulted the victim, then the statement of Sgt Smith is hearsay.
105. Hearsay evidence may be of questionable reliability because the person who made the original statement is not present to be questioned. That person's credibility and honesty cannot be tested and the truth of the statement cannot be assessed. The danger of unreliability increases each time a statement is repeated.
106. However, a statement which is made by someone who is not in court which is repeated by a witness not to prove that the original statement is true, but simply that the statement was made, is not hearsay. Evidence such as this could be used to show that the witness recognised a person by their voice or that the person the witness heard speak was present at a particular time. For example, if the purpose of Cpl Jones's evidence is only to prove that Sgt Smith was at work on Tuesday, then the evidence is not hearsay. In this case the reliability of the actual statement is not a concern, only the reliability of Cpl Jones' evidence that Sgt Smith was present needs to be tested through questioning.
107. Hearsay evidence may be presented in the form of oral evidence given during the testimony of a witness, or in writing through a witness presenting a document for the truth of its contents. For example, if a witness submits a letter written by the victim detailing the events of an alleged assault, the contents of the letter is hearsay if it is being submitted to prove the circumstances of the assault.
108. Traditionally, hearsay evidence was excluded in civilian courts and at courts martial because of its unreliability unless one of the exceptions applied. For example, statements made spontaneously and concurrently with an event are considered part of the event, such as if the victim of an assault is heard yelling “
stop hitting me Bob” during an assault. A statement made by a dying individual is a further exception to the hearsay evidence rule. In these circumstances it is considered unlikely that the statement was concocted. This general exclusion of hearsay evidence has expanded and courts are now more open to accept hearsay evidence in circumstances where it is shown to be reliable and necessary.124
109. At summary trials evidence will not be excluded solely because it is hearsay evidence. Presiding officers can accept hearsay evidence provided it is relevant and of assistance. However, the presiding officer must pay particular attention to the question of reliability when evaluating hearsay evidence and determining how much weight it will be given. If the presiding officer decides the evidence is not reliable, even where it may be relevant, the evidence would be of no use and should not be given any weight.
110. Admissions. Voluntary admissions made by an accused and reported by another witness, fall outside the hearsay rule and may be admissible.125
111. Documentary Evidence. Documentary evidence is traditionally defined as “
any written thing capable of being made evidence no matter on what material it may be inscribed.”126 This may include documents, books, cards, photographs, sound recordings, films, videotapes, microfiche, computer records, and other information recorded or stored by means of any device.127
112. The QR&O do not require that only original documents be produced at a summary trial. Like all other evidence, the presiding officer can accept any document, including a photocopy of a document, if it is considered relevant and of assistance in the matter; however, the presiding officer must consider the reliability of the document in determining what weight to give it.128
113. To determine the reliability of documentary evidence there are a number of factors, related to the nature and quality of the document that the presiding officer should consider. For example, a video recording may be unclear in sound or in image, handwriting may be illegible or the condition of a document may make the contents impossible to accurately decipher.
114. If the document is a videotape or picture, the presiding officer should verify that it has not been tampered with or the images altered, and that what is shown is a true depiction of what the document is supposed to be showing. If the document is a paper document, it is important that all the information be readable or visible, and if it is a paper copy of the original, that the contents have not been altered.
115. Further, no matter what kind of document is presented, the presiding officer must be satisfied that the contents are accurate before relying on the document. For example, an accounting ledger may be authentic and unaltered, but it has little evidentiary value if the person who made the entries in the ledgers failed to total the figures correctly.
116. There may be reliability concerns with certain documentary evidence. A document can be tampered with and is only as reliable as the person who created it. Although close examination of a document may help the presiding officer detect any problems such as tampering, it is important that someone who has personal knowledge about the document be available to give evidence and be questioned about the evidence where that would be of assistance.
117. The QR&O provide some guidance on the use of particular kinds of documentary evidence. With respect to investigation reports, although they are recognized as a means to summarize and compile information, QR&O provide that such documents are not evidence in their own right and are not to be received as evidence at summary trials.129
118. Although an investigation report cannot be used as evidence, the maker of a report may be called to testify with respect to how the investigation was conducted, the contents of any statements made to the maker by the accused, and any other matters of relevance contained in the report about which the maker of the report has personal knowledge. As well, there may be documents attached to the report such as statements by an accused which are relevant and which the presiding officer may accept as evidence in their own right. Statements by other witnesses may also be introduced. Where possible statements should be introduced through the person who actually gave the written statement or the person who received it.
119. The QR&O also provide that the minutes of a board of inquiry or the report of a summary investigation may not be received as evidence at a summary trial except to the extent provided for in QR&O 21.16.130
120. Real Evidence. Real (physical) evidence refers to things presented to a summary trial for inspection or observation. Real evidence can include material objects, such as a weapon or item of clothing, and demonstrations or experiments conducted for the presiding officer.
121. Where real evidence that is determined to be of assistance and relevant is received into evidence, the presiding officer will still have to determine the weight to be given to it. As with other forms of evidence, the reliability of real evidence will have to be assessed. Normally, this arises in relation to the identity of the object. To ensure the object presented as evidence is the same object related to the alleged offence, a witness would ordinarily be called to introduce the object, and to give evidence about where the object was found, how it was found, and where it has been kept since it was found.131 The need to establish the identity of the object will be especially important if the object is somehow linked to the accused or the commission of the offence.
122. For example, the accused is charged with assaulting someone with a book, and a book is found at the scene of the alleged offence has the accused's name in it. It is important to have a witness who can confirm that the book was found at the scene after the alleged assault, explain how it was found and indicate that it has been kept safe with no possibility of tampering or being switched before the summary trial.
123. Another related concern about the reliability of real evidence is that on its own, it provides only circumstantial evidence. Depending on the circumstances, the presiding officer must be cautious not to infer too much from its existence. Real evidence can be used to corroborate the direct evidence given by a witness. For example, the mere fact that the book used in an assault belongs to the accused is not proof on its own that it was the accused who used the book and committed the assault. However, proof that the book belongs to the accused may corroborate a witness' evidence that the witness saw the accused throw the book and strike the victim.
124. On completion of the summary trial, any property that has been received as evidence is to be returned to the person who is entitled to have it.132
125. Opinion Evidence. Unlike evidence involving the personal knowledge of a witness on particular facts, opinion evidence is evidence of what a witness thinks, believes or infers regarding the facts in dispute.133 The opinion must be based on facts that have been received into evidence.
126. The regulations do not place any limits on the presiding officer's ability to accept opinion evidence provided it is relevant and will be of assistance. However, the reliability of opinion evidence will depend on the subject matter and the experience and knowledge of the witness giving the opinion.
127. For example, an accused is charged pursuant to NDA section 111(1)(a) with improperly driving an armoured personnel carrier in a manner that is dangerous to any person or property. An opinion from the accused's supervisor who has experience with the same vehicle and who has driven that vehicle under similar conditions, about the quality of the accused's driving on this occasion, should be considered more reliable and useful than an opinion given by someone who was not present or who has no experience driving that particular type of vehicle.
128. It is not necessary that a witness be an expert on the subject in order to be able to give reliable opinion evidence. There are many everyday occurrences and experiences that most people could give an opinion on. For example, most people can give a reliable opinion on whether someone was intoxicated on a particular occasion, without any medical expertise, based on having observed people who were intoxicated on other occasions.
129. If opinion evidence is given at summary trial, there is no requirement for a presiding officer to automatically accept any opinion evidence given. Like all other evidence, once the opinion is found to be relevant and of assistance, the presiding officer must then determine the weight it is to be given. The presiding officer could decide not to give the opinion any weight. When considering opinion evidence the presiding officer must be cautious not to allow the opinion of any witness to circumvent the role of the presiding officer to decide what occurred in a particular circumstance.
130. Unsworn Evidence. Each witness called to give evidence at a summary trial, must do so under oath134 or solemn affirmation.135 In the event that a witness does not appear to understand the nature of an oath or a solemn affirmation, due to their age or apparent mental incapacity, the unit legal advisor should be consulted.
131. The presiding officer must consider the evidence received and the representations of the accused before determining whether it has been proved beyond a reasonable doubt that the accused committed the offence charged.136 The first consideration in this analysis is to decide how reliable the evidence is and how much weight it will be given.
132. Common sense and close observation are key to deciding whether the evidence is reliable and the weight to be given to it. Presiding officers already possess the necessary skills to do this and should quickly become proficient at assessing the evidence received at a summary trial.
133. Assessing a witness' credibility is the role of the presiding officer alone and the following list details a number of considerations that should be made:
- Was there something specific that helped the witness remember the details of the event the witness described? In other words, was there something unusual or memorable about the event so that one would expect the witness to remember the details? Or was the event relatively unimportant at the time, so the witness might easily be mistaken about some of the details?
- Did the witness have a good opportunity to observe the event described? How long was the witness watching or listening? Was there anything else happening at the same time that might have distracted the witness?
- Did the witness appear to have a good memory?
- How did the witness appear when giving evidence? Was the witness forthright and responsive to questions? Or was the witness evasive, hesitant, or argumentative?
- Was the testimony of the witness reasonable and consistent, or was the evidence contradictory? Was the witness's testimony consistent with the testimony of the other witnesses?
- Was the witness biased or have some interest in the outcome of this case? Was there some reason why the witness might tend to favour or not favour the accused?137
134. Presiding officers must be cautious to assess each witness individually and not simply apply a standard set of rules to measure credibility. The presiding officer should also consider any cultural or individual attributes, such as a stutter, that may appear to affect the demeanour of a witness, bearing in mind that testifying can be a very stressful experience. A witness who appears very uncomfortable, who does not make eye contact with the questioner, who gives long rambling answers or short terse answers, or who trips over words may be seen as not being credible, where in fact the witness may be very nervous and unfamiliar with the trial setting. One must be careful not to confuse polish with honesty.
135. Although a witness may be quite credible, the witness' testimony may not be reliable because of failings in the witness' original perceptions of the event or ability to recall and explain what was perceived. The witness' ability to perceive the event in the first place may have been impaired by the presence of any of a number of factors. The witness may have been distraught, under the influence of alcohol, too far away to see clearly, not wearing prescription glasses or hearing aid when they witnessed an event. Such circumstances may have prevented the witness from perceiving the event accurately, although at the time of trial the witness states a clear recollection.
136. The witness' ability to recall an event and to clearly express what was seen, heard or felt may also affect the value of that witness' evidence. The passage of time since an event as well as other factors such as certain illnesses or an accident may affect a witness' memory.
137. Similarly, the manner in which questions are asked and the ability of a witness to understand the questions will obviously affect the quality of any responses given. Age, education, vocabulary and sophistication may all have an effect on how questions are understood and answered.
138. While the reliability of, and weight to be given, each piece of evidence must be assessed when determining the ultimate guilt or innocence of the accused the presiding officer will be required to consider the evidence in its totality:138
…each piece of evidence must be carefully examined, because that is the accused's right and that is your duty, the case is not decided by a series of separate and exclusive judgements on each item or by asking what does that by itself prove, or does it prove guilt? That is not the process at all. It is the cumulative effect…139
139. Real or documentary evidence which corroborates the direct evidence of a witness may increase the weight that is given to that witness' evidence. Where evidence is contradicted by other evidence, an assessment will have to be made regarding the relative weight be given to all the evidence on that issue.
SECTION 5 - DETERMINATIONS
140. There are various decisions that a presiding officer must make throughout the summary trial process. Examples of some of these have already been discussed in this chapter. There are also certain formal determinations that must be made. Determinations are findings or conclusions made by a presiding officer which have a direct bearing on the matters in issue or impact on the final disposition of the summary trial.
Referral of Charges
141. Before commencing a summary trial, as well as during the trial, there are various situations where the presiding officer must determine if it is appropriate for that officer to try the matter or whether the case should be or must be referred to another authority. The situations where these determinations are made as well as the procedures to be followed are reviewed in Section 6 of Chapter 11, Jurisdiction and Pre-trial Determinations.
142. Findings refer to the presiding officer's determination as to whether it has been proven, beyond a reasonable doubt, that the accused committed the offence charged. They include determinations regarding the guilt of the accused for any included offence or an attempt to commit an offence with which the accused has been charged.
143. The purpose of hearing evidence at a summary trial is to allow the presiding officer to determine whether the charge has been proven. To make this determination the presiding officer considers the evidence received at the summary trial relating to each matter in issue, as well as the representations made by the accused and the assisting officer.140 Having assessed reliability and weight to be given to this evidence, the presiding officer will be in a position to conclude what happened at the relevant time and place.
144. After the presiding officer has determined what occurred, the presiding officer must apply the facts to the charges to determine whether all the required mental and physical elements of the offence have been proved beyond a reasonable doubt. For most offences, in addition to proving that the accused committed the improper act or omission, it must also be proved that the proper mental element was also present. Depending on the offence, it may be necessary to prove that the accused acted wilfully, intentionally, recklessly, negligently, etc. In order to do this, the presiding officer must understand the elements which are required in order for the charge to be made out. For a discussion on the required elements of an offence, see Chapter 8, Laying of Charges.
145. Different considerations apply when determining credibility in situations where only one version of the facts is presented as opposed to situations where the defence has raised a version of events that conflicts with the one that supports the charges. Both situations are discussed below.
146. One Version of the Facts. Where the evidence only supports one version of the facts, the presiding officer will still be required to assess the evidence presented and reach a finding based on the presiding officer's own assessment of the evidence. Of course, the presiding officer must always bear in mind that the accused can only be found guilty where guilt is proven beyond a reasonable doubt.
147. Conflicting Versions of the Facts. Where the evidence conflicts, the presiding officer should not automatically accept the version of the events which supports the charge in preference to the version which is most favourable to the accused. However, the presiding officer may do so where the presiding officer is:
satisfied beyond all reasonable doubt, having regard to all the evidence, that the events took place in this manner; otherwise, the accused is entitled, unless a fact has been established beyond a reasonable doubt, to the finding of fact the most favourable to him provided of course that it is based on evidence in the record and not mere speculation.141
When the presiding officer is in doubt as to which of two conflicting versions of the facts to accept the presiding officer must give the benefit of that doubt to the accused.
148. When there are two different versions of the facts, the presiding officer should consider the following when deciding which version to accept:
- first, if you accept the version of the facts of the accused or the defence witnesses you must acquit;
- second, if you do not believe the testimony of the accused or defence witnesses, but are left with a reasonable doubt after considering the evidence as a whole, you must acquit; and
- third, even if you are not left with a doubt by the testimony of the accused and the defence witnesses, you must determine whether, based on the evidence you accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused.142
149. Considering Statements of Offence and Particulars. In considering the elements of a particular offence, the statement of offence and the statement of particulars are to be read and construed together.143 This means that omissions in one could be cured by the inclusion of information in the other. For example, it would not be fatal to the charge if the statement of offence indicated that an accused had committed an act to the prejudice of good order and discipline, within the meaning of NDA section 129, where the statement of particulars indicated the circumstances without making reference to the prejudicial effect on good order and discipline. There would be no injustice to the accused in such circumstances since that information is already provided to the accused in the statement of offence. For further guidance concerning sufficiency of the particulars of a charge see Chapter 8, Laying of Charges.
150. In addition, QR&O state that in the interpretation of a charge, including a charge contained on a RDP in Part 1 (Charge Report), every proposition that may be reasonably implied, even though not expressed, shall be presumed in favour of supporting the charge.144
151. With all of the above in mind, the presiding officer must determine whether or not the accused is guilty of the offence charged. The presiding officer must consider the evidence as a whole and determine whether guilt is proved beyond a reasonable doubt.145 This requires that each element of the offence be proved beyond a reasonable doubt.146
152. Proof Beyond a Reasonable Doubt. The QR&O provide the following guidance on what is meant by reasonable doubt:
At the outset of the summary trial, the accused is presumed to be innocent. That presumption must be displaced by evidence which satisfies the presiding officer, beyond a reasonable doubt, that the accused is guilty. The benefit of any reasonable doubt must be given to the accused. A reasonable doubt is not an imaginary or frivolous doubt nor is it based on sympathy or prejudice. A reasonable doubt is a doubt that is based on reason and common sense. It must be logically derived from the evidence or lack of evidence. The evidence must prove more than that the accused is probably guilty but does not involve proof to an absolute certainty; i.e. proof beyond any doubt. A reasonable doubt should not arise where, based on a fair and impartial consideration of all the evidence, the presiding officer has a decided and firm conviction that the accused is guilty.147
153. When offences have been charged in the alternative,148 an accused can only be found guilty of one offence. The presiding officer shall pronounce a finding on the alternative charge in respect of which the accused was found guilty and direct that the proceedings be stayed on the other charge.149
Stay of Proceedings
154. While a stay of proceedings is not a finding, per se, it has the effect of halting or suspending the trial proceedings for an indefinite period. Therefore, although there are certain circumstances where another finding can be substituted for a stay of proceedings,150 for most practical purposes, a stay of proceedings has the same effect as a finding of not guilty for the charge on which the stay has been directed.151 At the summary trial a stay of proceedings is used when alternative charges have been laid. When the presiding officer finds the accused guilty of one of the alternative charges, the presiding officer will pronounce a finding of guilt for that charge, and direct that the proceedings be stayed on all the alternative charges.152
155. A person charged with a service offence may, in certain circumstances, be convicted of a related or less serious offence. Related or less serious offences are known as included offences. An accused may sometimes be convicted of an included offence where the charge laid has not been proved.153 For example, a charge of assault causing bodily harm contains the included offence of common assault. A charge of desertion contains the included offence of being absent without leave. Included offences have a specific characteristic: the required elements of the less serious (included) offence form a clear sub-set of the required elements of the more serious offence with which the accused was charged. Therefore it is not necessary to charge a person alternatively in respect of the related or less serious offence.154
156. In general, findings in respect of included offences can only be made when the evidence does not support the charge laid but is capable of supporting the included offence. For example, in a charge of assault causing bodily harm, if there is evidence that a victim was assaulted by the accused but no evidence was presented that the victim suffered bodily harm, the accused could be found guilty of common assault. Further, in a charge of desertion, if there is evidence that an accused was absent from their place of duty for an extended period of time but no evidence was presented with respect to the accused's intention to remain absent, the accused could be found guilty of being absent without leave, despite the fact that there would be insufficient evidence to find the accused guilty of desertion.
157. Not every offence contains an included offence.155 Consequently, great care must be taken when determining whether an accused may be convicted of an included offence. The unit legal advisor should be consulted when determining whether a conviction for an included offence can be made.
Attempts to Commit an Offence
158. The NDA provides that an accused may be convicted of an attempt to commit an offence, either as a result of having been charged with having committed a complete offence or as a result of having been charged with having attempted to commit an offence.156
159. With respect to attempts to commit an offence, it is not an offence to think about committing or to prepare to commit an offence. An attempt involves conduct beyond mere preparation, but which falls short of the actual commission, provided the accused has the intention to commit the offence.157 There is no generally accepted line between preparation and an attempt. In making this determination the presiding officer must consider the facts of the case, including the proximity between what the accused did and the completed offence as well as the intention of the accused to actually commit the offence and not merely to prepare to commit it.
160. An accused who is charged with a complete offence may be found guilty of attempting to commit that offence. If the accused was charged with attempting to commit an offence and the entire offence is proved, the presiding officer can direct that the accused be charged with having committed the complete offence. Alternatively, the presiding officer can find the accused guilty of only the attempted offence with which the accused was charged. However, the presiding officer may not find the accused guilty of the complete offence, as the accused was not charged with and did not stand trial with respect to that offence. In addition, if the accused has been convicted of attempting to commit an offence, the accused cannot later be tried for committing the complete offence based upon the same facts.158
161. A presiding officer, faced with the situation where an attempt to commit an offence has been charged and the whole offence has been proved, must decide which is the better course of action to follow: to make a finding of guilt on the offence charged or to direct that the accused be charged with the complete offence. When making this decision, issues such as the availability of witnesses and the interests of justice and discipline should be considered.
162. If the presiding officer decides that the accused should be charged with the complete offence, the presiding officer would be required to adjourn the proceedings and refer the matter back to a charge laying authority.159 Any new charge that is subsequently laid would have to be dealt with in accordance with prescribed pre-trial procedures, just as if no trial had been held.160 In addition, a different presiding officer should hear the case as that the knowledge that the original presiding officer has of the case would preclude that officer from trying the new charge.
Standard of Proof – Attempts to Commit an Offence and Included Offences
163. An accused has the right to a fair trial and should not be found guilty of any offence unless sufficient evidence has been heard or introduced at the trial, to prove the accused's guilt beyond a reasonable doubt.161 The legal presumption that the accused is innocent, unless the evidence proves guilt beyond a reasonable doubt applies equally to determinations made to attempts to commit offences or included offences.
164. While a presiding officer may find an accused guilty of an attempt to commit an offence or of an included offence, as opposed to the charge that actually appears on the RDP, such a finding should only be reached with great caution and after seeking advice from the unit legal advisor concerning the law of attempts and included offences.
165. A presiding officer may make a special finding of guilty instead of not guilty when the facts proved at the summary trial differ materially from the facts alleged in the statement of particulars, but are sufficient to establish the commission of the offence charged. However, the difference in the facts alleged and the facts proved must not have prejudiced the accused in preparing a defence.162 Presiding officers should consult with unit legal advisors when considering making special findings.
166. For example, where an accused was charged with being absent without leave from 1-15 Nov and the evidence showed that the accused was actually absent without leave from 5-10 Nov, the accused could, by special finding, be found guilty of being absent without leave from 5-10 Nov.163
Informing the Accused of all Findings
167. As with any other finding, where a presiding officer makes a special finding, finds an accused guilty of an attempt to commit the offence charged, or finds an accused guilty of an included offence, the accused must be informed of that finding.164
168. The wording used in the findings portion (Part 6) of the RDP must reflect the actual findings made at trial including findings of guilty on included offences, attempts to commit offences, as well as stays of proceedings or special findings.165
1 QR&O 108.02.
2 QR&O 107.08
3 NDA s. 69 and QR&O 102.22.
4 NDA s. 130 includes any act or omission that takes place in or outside of Canada and that is punishable under Part VII of the NDA, the Criminal Code, or any other Act of Parliament, as a service offence.
5 NDA s. 132 includes any act or omission that takes place outside of Canada and would, under the law applicable in the place where the act or omission occurred, be an offence itcommitted by a person subject to that law, as a service offence.
6 QR&O 108.05 Note B.
7 The offence is classified as a summary conviction offence under the Criminal Code. The six-month limitation period is set out in Criminal Code s.786(2).
8 NDA s. 69(b).
9 QR&O 108.05 Note A.
10 QR&O 107.04(2). R. v. Voszler (1972), 6 C.C.C. (2d) 212, 18 C.R.N.S. 120 (Alta. C.A.) indicates that a single scheme of operation constituting one continuing offence may be defined as a single transaction. An example of the "single transaction rule" is set out in R. v. German (1989), 51 C.C.C.(3d) 175, 77 Sask. R. 310 (C.A.) in which the Court allowed a single charge with respect to allegations of sexual assault of a very young victim at a specified premises over a two and a half year period.
11 In the case of a continuing summary conviction offence that commenced more than 6 months before the charge was laid, the charge has been held to be valid provided the offence continued during the 6 months preceding the charge. R. v. Belgal Holding Ltd.,  3 C.C.C. 34, 1 O.R. 405 (H.C.J.); and Dressler v. Tallman Gravel and Sand Supply Ltd.,  2 C.C.C. 25, 36 D.L.R. (2d) 398 (Man. C.A.).
12 QR&O 110.08.
13 When determining the order in which the accused will be tried the unit legal advisor should be consulted.
14 QR&O 108.21 Note E.
15 QR&O 107.14(4) and (5) and Note B.
16 See the Report of the Special Advisory Group on Military Justice and Military Police Investigation Services, p.51 for Recommendation 26: “
We recommend that uniform records of summary trials be prepared … .”
17 These checklists are guides only. They must be used in conjunction with the appropriate sections of QR&O and this Manual.
18 QR&O 108.14(1).
19 QR&O 107.09. 108.16(3) and 108.34(2).
20 QR&O 108.17.
21 QR&O 108.15.
22 QR&O 108.17(2)(b) and QR&O 108.18.
23 QR&O 101.20(2)(c) and QR&O 108.14 Note B.
24 QR&O 108.14, See also Chapter 9, Assisting Officers. It should be noted that the accused has the right to have access to free and immediate advice from duty counsel provided by the DDCS, on arrest or detention (see QR&O 105.08(10(d)) and will have counsel appointed where there are reasonable grounds to believe the accused is unfit to stand trial (QR&O 107.10).
25 The following was stated on why there is no right to the legal counsel at summary trial in the Summary Trial Working Group Report, at 143 -144: “
The decision not to provide a right to counsel at a summary trial is rationally connected to the objective of enforcing discipline effectively and efficiently and thereby maintaining an operationally ready, armed force. The lack of counsel helps in keeping the proceedings uncomplicated, avoids delays in proceeding with the hearing and assists in ensuring the trials can be conducted world wide and in remote areas of Canada.”
26 QR&O 108.14 Note B.
27 QR&O 108.14 Note C.
28 QR&O 108.14 Note B.
29 See Chapter 9, Assisting Officers 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. 19(a) at Annex H.
30 QR&O 108.14(4) and QR&O 108.20(1).
32 QR&O 108.29(1).
33 NDA s. 249 and QR&O 111.63, including Note and form for Summons to a Witness.
34 QR&O 108.29(1).
35 QR&O 108.29(2).
36 Concise Oxford English Dictionary, 9th ed. (Toronto: Oxford University Press) at 543.
37 Id. at 1560.
38 Id. at 1560.
39 QR&O 108.29.
40 QR&O 108.21(4). Where available, video conferencing could be used. If the accused objects to the witness testifying in this manner, the summary trial may be adjourned in order to allow the witness to attend. Alternatively, the matter may be referred for court martial.
41 QR&O 108.28(1).
42 QR&O 108.28(2).
43 QR&O 108.28 (2).
44 QR&O 108.28(3).
45 QR&O 108.16 Note A refers to the right of an accused to have proceedings conducted in either official language pursuant to the Official Languages Act (Revised Statutes of Canada, 1985, Chapter O-3.01).
46 Charter s.14 provides that: “
A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. Although the QR&O do no require that the interpreter possess formal, professional or academic qualifications in the sense of courses or certification, it is necessary to ensure the interpreter is competent to translate the witness' testimony into the language chosen for the proceedings.”
47 QR&O 108.20 Note C.
48 The Canadian Charter of Rights and Freedoms s. 13.
49 QR&O 108.20.
50 QR&O 108.04. see also Nye v. The Queen (1973) 3 C.M.A.R. 85, and Braun v. The Queen (1974-88) 4 C.M.A.R. 115
51 QR&O 108.20(1).
52 The requirement for the oath is set out in QR&O 108.20(2). The precise wording of the oath can be found in QR&O 108.27, while provision for taking an affirmation in place of an oath, and the wording to be used are found in QR&O 108.32.
53 QR&O 108.20(2).
54 QR&O 107.09(1)(b).
55 QR&O 108.05. This would be relevant where a limitation period is about to expire. Also see Chapter 4, Fairness and the Application of the Charter.
56 QR&O 108.20(3)(a).
57 QR&O 108.20(3)(b).
58 The Statement of Particulars is found in Part 1 of the RDP.
59 QR&O 103 provides guidance concerning the elements of most service offences. This guidance should be reviewed by the presiding officer prior to commencing the summary trial. Additional advice concerning the elements of the offence may be obtained from the unit legal advisor.
61 QR&O 108.20(4) and (5).
62 QR&O 108.21.
63 QR&O 108.21 Note A.
64 QR&O 108.21 Note A.
65 The requirement for the oath is set out in QR&O 108.30. The precise wording of the oath can be found in QR&O 108.31, while the authority to use an affirmation in place of an oath and the wording to be used for an affirmation is found in QR&O 108.32.
66 QR&O 108.21(4).
67 QR&O 108.21 Note B.
68 QR&O 108.21(4).
69 QR&O 108.20(4). The accused will have been provided with a list of the witnesses who are to be called at the summary trial. See QR&O 108.15 Note D and E.
70 In R. v. Potvin (1989), 47 C.C.C.(3d) 289, the court stated that it is “
a principle of fundamental justice that the accused have had the opportunity to cross-examine the adverse witness”. See also Chapter 4, Fairness and the Charter.
72 QR&O 108.20(5).
73 QR&O 108.20(5).
74 QR&O 108.20(5).
75 Canadian Charter of Rights and Freedoms. 11(c).
76 In Regina v. Symonds (1983), 9 C.C.C. (3d) 225 at 227, the Ontario Court of Appeal stated “
It is fundamental that a person charged with a criminal offence has the right to remain silent and a jury is not entitled to draw any inference against an accused because he chooses to exercise that right.”
77 QR&O 108.20(5).
78 QR&O 108.20(6).
79 QR&O 108.20(7). See also Section 5 of this Chapter, Determinations.
80 Further discussion on the elements of an offence is found in Chapter 8, Laying of Charges. As well, the term reasonable doubt, and the factors to be considered by the presiding officer in deciding on the innocence or guilt of the accused is detailed in Section 5 of this Chapter, Determinations.
81 QR&O 108.20(7) and 108.20 Note B.
82 QR&O 108.20(8).
83 QR&O 108.20(10).
84 QR&O 108.20(10)(a)-(c).
86 QR&O 108.17(1).
87 QR&O 108.17(6). See Chapter 12, Elections. This requirement only applies to COs and superior commanders who are acting as the presiding officer (see QR&O 108.17 Note A). Delegated officers do not have the power to impose punishments of detention, reduction in rank or a fine in excess of 25% of the monthly basic pay, and therefore, they would not give an election if one of these punishments would be warranted. Instead, where the delegated officer's powers of punishment would be inadequate, the delegated officer would adjourn the trial and refer the matter to the CO. (QR&O 108.34(1)).
88 QR&O 108.17(6).
89 QR&O 108.17(2).
90 QR&O 108.33.
92 QR&O 108.34(1)(a).
93 QR&O 108.17(6).
94 QR&O 108.34(1)(b).
95 QR&O 108.34(2).
96 QR&O 108.34(3).
97 QR&O 108.22(1).
98 QR&O 108.34(3).
99 QR&O 101.07.
100 QR&O 101.06(1).
101 QR&O 101.06 Note A. A deviation from the RDP form would not, by reason of that deviation, invalidate the summary trial proceeding. See QR&O 1.11(1).
104 QR&O 101.06(2).
105 Presiding officers and others involved in administering the summary trial process are not liable for the diligent and honest execution of their duties under the Code of Service Discipline. NDA s. 270 states: “
No action of other proceeding lies against any officer or non-commissioned member in respect of anything done or omitted by the officer or non-commissioned member in the execution of his duty under the Code of Service Discipline, unless the officer or non-commissioned member acted, or omitted to act, maliciously and without reasonable and probable cause.”
106 QR&O 108.20(7)&(8).
107 QR&O Volume IV, Appendix 1.3.
108 QR&O 108.21(1).
109 QR&O 108.20(7) and 108.21.
110 QR&O 108.21(2).
111 QR&O 108.21(3).
112 An inference is a deduction or conclusion from facts and reasoning. It also includes something implied or suggested. Concise Oxford English Dictionary at 696.
113 Black's Law Dictionary, 5th ed. (St. Paul, Minnesota: West Publishing Company, 1979) at 1160. As well, the Ontario Court of Appeal provided the following explanation of relevance in R. v. Watson, (1996), 108 C.C.C. (3d) 310 as quoted in P.K. McWilliams, Canadian Criminal Evidence, 3rd ed. (Aurora: Canada Law Book Inc., loose leaf) at 3-7: “
Relevance …requires a determination of whether as a matter of human experience and logic the existence of 'Fact A' makes the existence or non-existence of 'Fact B' more probable than it would be without 'Fact A'. If it does then 'Fact A' is relevant to 'Fact B' as long as 'Fact B' is itself a material fact in issue or is relevant to a material fact in issue in the litigation then 'Fact A' is relevant…”
114 J. Sopinka, S.N. Lederman, A.W. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992) at 23, and P.K. McWilliams, Canadian Criminal Evidence at 3-4.
115 J. Sopinka, S.N. Lederman, A.W. Bryant, The Law of Evidence in Canada at 24.
116 Black's Law Dictionary, 5th ed. (St. Paul, Minnesota: West Publishing Company, 1979), at 1160.
117 QR&O 108.21(3).
118 QR&O 108.21, Note (A).
119 QR&O 108.21(3).
120 Black's Law Dictionary at 221. For definition of inference see note 112 above.
121 John v. R. (1971), 2 C.C.C. (2d) 157 (S.C.C.).
122 R. v. Cooper (1978) 34 C.C.C. (2d) 18 (S.C.C.).
123 Black's Law Dictionary, at 649.
124 There is a series of Supreme Court of Canada cases that have set out and adopted the more flexible test for the admissibility of hearsay evidence: R. v. Khan,  2 S.C.R. 531, R. v. Smith,  2 S.C.R. 915, R. v. F.J.U.,  3 S.C.R. 764. There is a two-part test for hearsay evidence to be accepted. The evidence must be reliable. Where the statement “
is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken … a circumstantial guarantee of trustworthiness is established” (R. v. Smith at 933). As well, it must be necessary to use the evidence in order to prove a fact in issue, which would exist when “
[t]he person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing [by cross-examination]” or “[
t]he assertion may be such that we cannot expect, again or at this time, to get evidence of the same value from the same or other sources” (R. v. Smith at 934).
125 McCormick on Evidence, (4th ed. 1992), Vol. 2, at 140 as cited with approval in R. v. Evans,  3 S.C.R. 653 (S.C.C.).
126 R. v. Daye,  2 K.B. 333 at 340; also Fox v. Sleeman (1987), 17 P.R. 492 (Ont C.A.) as quoted in The Law of Evidence in Canada , at 927.
127 The Law of Evidence in Canada, at 927 and 928 at notes 4 through 10.
128 QR&O 108.21(2) & (3).
129 QR&O 108.21 Note C.
130 QR&O 108.21 Note D. QR&O 21.16(2) indicates that such statements may be used where the maker is accused of an offence involving a matter mentioned in Military Rules of Evidence s.40(2), i.e. perjury or giving false of contradictory evidence.
131 The procedures for collecting and safeguarding such evidence prior to trial is dealt with in Chapter 5, Powers of Investigations, Inspections, Search & Seizure.
132 QR&O 101.055.
133 Black's Law Dictionary at 985.
134 QR&O 108.30 and QR&O 108.31.
135 QR&O 108.32.
136 QR&O 108.20(7).
137 Based on instruction for juries provided in G.A. Ferguson & J.C. Bouck, Canadian Criminal Jury Instructions, 3rd ed. (Vancouver: The Continuing Legal Education Society of British Columbia, 1995) 4.12-4 and 4.12-5.
138 R. v. Morin (1988), 44 C.C.C. (3d) 193 at 208 (S.C.C.).
139 Thomas v. The Queen,  N.Z.L.R. 34 (C.A.) as cited in R. v. Morin at 209.
140 QR&O 108.20(7).
141 Nadeau v. R. (1984), 15 C.C.C. (3d) 499 (S.C.C.).
142 R. v. D.W.,  1 S.C.R. 742 (S.C.C.) and R .v. Haroun,  1 S.C.R. 593 (S.C.C.).
143 QR&O 101.065(2).
144 QR&O 101.065(1).
145 QR&O 108.20 Note B.
146 R. v. Morin at 210.
147 QR&O 108.20 Note B. This guidance concerning the meaning of reasonable doubt takes into account the Supreme Court of Canada decision in R. v. Lifchus (1997), 118 C.C.C. (3d) 1.
149 QR&O 108.20(9).
150 The Minister and certain other authorities may do so pursuant to NDA s.209(1)(b)(ii).
151 QR&O 108.23.
152 QR&O 108.20(9).
153 NDA sections 133, 134, and 135 as referred to in QR&O 103.62 and Notes.
154 QR&O 103.62 Note A.
155 QR&O 108.20 Note D.
156 NDA s. 137 as provided in QR&O 103.63.
157 Criminal Code s. 24 discussed in Procedure in Canadian Criminal Law (Scarborough, ON: Carswell, 1997) at 476.
158 NDA s. 137 and QR&O 103.63.
159 In this situation the original charge would be held in abeyance rather than stayed. Neither would the charge that is stayed amount to a final disposition.
160 These procedures are referred to in Section 4 of Chapter 8, Laying of Charges and Chapter 11, Jurisdiction & Pre-Trial Determinations.
161 QR&O 108.20 Note B.
162 QR&O 103.64.
163 QR&O 108.20 Note D.
164 QR&O 108.20(8).
165 QR&O 103.64 Note.
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