Chapter 15: Review of Summary Trial Proceedings

SECTION 1 - GENERAL

1. The opportunity to have an authority, other than the officer who presided at the summary trial, review any finding of guilty made or sentence imposed at summary trial is important for maintaining fairness in the summary trial process. In this regard the Special Advisory Group stated:

…we agree with the concept that a meaningful right of appeal or review should exist when a significant penalty is imposed following a summary proceeding. Such a right would improve the prospects that the constitutionality of the summary trial process would be upheld.1

The Special Advisory Group went on to recommend that a person convicted at a summary trial have the right to request that “the appropriateness of the conviction and/or sentence” be reviewed by the next level of command.2

2. As a result of subsequent military justice reforms in this area, new provisions applicable to summary trial findings and sentences were developed and incorporated into the NDA3 and QR&O.4 These provisions provide a mechanism for reviewing the findings made and punishments imposed at summary trial, including: who can request a review; who can conduct a review as a review authority; how the review is to be conducted; and the review authority's powers.

3. These review procedures function to protect the offender's right to be dealt with fairly while satisfying the CF requirement to be able to promptly deal with minor service offences at the unit level.

4. In addition to the review processes available under QR&O, an offender may also request judicial review from the Federal Court or from the Superior Court in any province.5

SECTION 2 - REVIEW UNDER QR&O 108.45

5. One of the mechanisms for review available after a summary trial is set out in QR&O 108.45. The distinguishing feature of this review process is that it is initiated on the request of the offender and is conducted in accordance with defined procedural requirements.

Entitlement and Grounds to Request Review

6. Any member who has been found guilty of a service offence at a summary trial may request a review authority to set aside the finding of guilty on the ground that it is unjust.6 Similarly, the offender may also request a review authority to alter any punishment imposed on the ground that it is unjust or too severe.7

Review Authority

7. The term review authority is defined in QR&O.8 In the context of a review conducted under QR&O 108.45, the term review authority only refers to the officers mentioned in QR&O 108.45(2). When determining who can act as a QR&O 108.45 review authority, you must consider the status of the presiding officer who tried the case, as follows:

  1. when a delegated officer presided at the summary trial, the review authority is the CO of the unit.
  2. when a CO presided at the summary trial, the review authority is the next superior officer to whom the CO of the unit is responsible in matters of discipline; and
  3. when the presiding officer is a superior commander, the review authority is the next superior officer to whom the superior commander is responsible in matters of discipline.9

8. A checklist detailing the role of the review authority in the review process under QR&O 108.45 is attached at Annex V.10

Referral by Review Authority

9. Where an officer is of the opinion that it would be inappropriate to act as a review authority in a particular case, having regard to the interests of justice and discipline,11 the officer must:

  1. not make any determination with respect to the request for review;12 and
  2. refer the request to the next superior officer to whom that officer is responsible in matters of discipline.13

Redress of Grievance

10. A redress of grievance cannot be used with respect to any matter at summary trial that may be dealt with by a request for review under QR&O 108.45.14 Therefore, if an offender disagrees with the finding of guilty, or the sentence imposed, the offender should request a review rather than submit a grievance.

Contents of a Request for Review

11. The request for review must be made in writing and may be in the form of either a memorandum or letter. The request must set out the relevant facts and reasons why the finding is unjust or why the punishment is unjust or too severe.15

12. Since there is no requirement for an audio or written record of the summary trial to be made, it is essential that this initial request contain as much relevant information as possible to support the request for review. The regulations do not limit the information that can be provided on review. The member submitting the request for review is not obligated to obtain a copy of the RDP and attachments, or the investigation report, since the review authority will be able to obtain these from the Unit Registry of Disciplinary Proceedings. However, it may be helpful for the member to attach witness statements where they are considered relevant. It may also be appropriate to provide information to the review authority on the punishments that have been imposed within the unit for similar offences, even though that information was not given at the summary trial.

Assistance to Offender Requesting Review

13. When an offender requests assistance in preparing the request for review, the CO must appoint an officer or NCM above the rank of sergeant to provide that assistance. If the offender requests a particular member to provide assistance, the CO should appoint that member where practical.16 For example, it would not be practical for the requested member to be appointed if that member is on temporary duty away from the unit or if the member is unavailable because of other duties.

Procedural Requirements - Timings

14. A request for review must be delivered to the review authority and the officer who presided at the summary trial within 14 days of the termination of the summary trial.17 The review authority may, in the interests of justice, extend the period for making a request for review, based on what is reasonable in the circumstances.18

15. The factors to be considered in determining what is reasonable in the circumstances are not provided in QR&O. The review authority should make such a determination having regard to such factors as the reason for the delay, the complexity of the issues and the amount of effort required to prepare the application.

16. Upon receiving a copy of the request, the presiding officer has 7 days to deliver the presiding officer's comments to the review authority and provide a copy of these comments to the offender.19 It is important that the presiding officer comment on the request in as much detail as possible to ensure the review authority has sufficient information to make a decision.

15. Within 7 days of receiving the presiding officer's comments, the offender may deliver further representations to the review authority.20

Suspension of Punishment of Detention

18. Where a non-commissioned offender has been sentenced to detention, the review authority shall suspend the carrying into effect of the punishment of detention pending the completion of the review.21

Legal Advice

19. The review authority must obtain legal advice before making a determination on any request for review.22 However, the legal officer who provided advice with respect to laying the charge or concerning any of the summary proceedings related to the matter to be reviewed cannot provide legal advice to the review authority.23

Review Process

20. The review authority must, within 21 days of receiving a request, review the summary trial and determine whether to set aside any finding or alter any punishment imposed.24 Once the review authority has determined whether to set aside a finding or alter a punishment, the review authority must, as soon as practicable, cause the offender, the presiding officer, and the offender's CO to be notified in writing of the decision.25

21. In determining whether to set aside a finding of guilty or alter any punishment imposed, the review authority shall consider the offender's request and the presiding officer's comments. However, if the review authority is unable to make a determination because more information is required, the review authority shall:

  1. seek the necessary information;
  2. notify the offender that further information has been sought; and
  3. provide the offender with a copy of any information subsequently obtained.26

22. Where additional information is sought, the review authority has 35 days from the date the request for review was received to review the summary trial and determine whether to set aside a finding of guilty or alter any punishment imposed.27

23. QR&O 108.45 does not specify what must be established to show that a finding or punishment is unjust or that any punishment is too severe. A finding of guilty would be unjust if it is contrary to the law or is fundamentally unfair. A finding might be considered unjust if any of the following circumstances exist:

  1. the principles of fairness were not observed during the summary trial process.28 This involves more than just the conduct of the trial. It also includes pre-trial activities such as the release of information, the election procedures and any applications made for legal representation, etc.29 A departure from the procedural safeguards contained in QR&O may indicate a failure to uphold the principles of fairness;30
  2. the required procedures set out in QR&O were not followed;31 or
  3. the evidence presented at the summary trial did not establish all the elements of the offence for which the offender was found guilty.

24. With respect to a breach of the procedures set out in the regulations, it is important to show not only that a breach occurred, but also that there is a link between the breach and the finding of guilty, i.e. that the breach somehow renders the finding unjust. The effect of such a breach will depend on the nature of the breach having regard to the circumstances of the case. If the breach was inconsequential with no effect on the final outcome, then the finding will not be considered unjust for that reason alone.

25. For example, during the questioning of a witness by the accused, the presiding officer stops the questioning before the accused is finished. If the accused is asking the witness embarrassing questions that are irrelevant to the charges, this would not impact on the accused's right to make full answer and defence to the charges. However, where the accused is prevented from asking the witness questions which are directly related to the charges, this would affect the accused's ability to make full answer and defence and call into question the validity of the findings.

26. A punishment may be considered unjust if the punishment imposed is illegal. A punishment is illegal if it is not in the presiding officer's table of punishments.32 The punishment may also be unjust if the procedures set out in the regulations for the sentencing phase of the summary trial were not followed.33

27. A sentence may be considered too severe if it is far more severe than what is usually given for the same offence in similar circumstances. The review authority should exercise restraint in reviewing sentences on the basis that the review authority may not be in any better position to assess the sentence than the presiding officer at trial. Therefore, as a general rule, review authorities should avoid disturbing a sentence unless it is clearly unreasonable.34 For example, an accused is convicted of drunkenness and receives a fine in the amount of $1000. However, in the previous six months there were five other convictions for drunkenness in the unit and the maximum punishment was a $100 fine. The heavier fine may be considered far too severe in the circumstances.

28. A review authority under QR&O 108.45 has the authority to quash findings and alter findings made and punishments imposed at summary trial and to suspend the carrying into effect of a punishment of detention.35 These powers are reviewed in detail in Section 4 of this Chapter.

SECTION 3 - REVIEW UNDER QR&O 116.02

29. A second form of summary trial review is provided for in QR&O 116.02. There are a number of significant differences between a review conduct under this article and a review conducted pursuant to QR&O 108.45.

30. For example, a wider group of officers can act as a review authority for a QR&O 116.02 review than is available under QR&O 108.45. While an officer having authority to act as a review authority under QR&O 108.45 may also conduct a review under QR&O 116.02, the term review authority also refers to the following military authorities:

  1. the CDS;
  2. an officer commanding a command;
  3. an officer commanding a formation; and
  4. a CO when the offender is under the CO's command and the presiding officer at the summary trial was not a superior commander.36

31. There is no formalized procedure required to initiate a QR&O 116.02 review. Nor is it necessary for an offender to request a review in order for a review authority to have jurisdiction to conduct a QR&O 116.02 review. In fact, a review conducted pursuant to this article can be initiated by the review authority directly. However, a review authority cannot initiate a review under QR&O 116.02 involving an offence for which the accused has been found not guilty.

32. A review can be undertaken by a review authority pursuant to QR&O 116.02 regardless of whether a review has already been requested or conducted under QR&O 108.45. It is the general policy behind the regulations that QR&O 108.45 be used by members who have been found guilty at summary trial, while QR&O 116.02 reviews will be conducted on the initiative of a review authority in exceptional situations such as to correct an error identified during a post-trial review, for example, an error found during a review conducted by the unit legal advisor.37

33. In as much as the regulations do not provide the offender with a right to a review under QR&O 116.02, such reviews are not subject to the same procedural requirements and limitations as in QR&O 108.45. For example, there are no time limits placed on the review authority when determining a QR&O 116.02 review. However, the review authority is bound to exercise its discretion fairly both in the conduct of the review and in determining whether to quash a finding or alter a punishment. The powers that can be exercised by a review authority in relation to any matter being reviewed are discussed in Section 4 of this Chapter.

SECTION 4 - POWER OF REVIEW AUTHORITIES

34. Should a review authority conclude that the finding of guilty is not unjust or that the punishment is neither unjust nor too severe, the findings made or punishments imposed at the summary trial will stand. On the other hand, the review authority may, in the circumstances, decide that it is appropriate to set aside a finding or alter a punishment.

35. The powers and limitations of review authorities are set out in the following sections of the NDA:38

  1. 249.11 (Quashing Findings);
  2. 249.12 (Substitution of Findings);
  3. 249.13 (Substitution of Punishments);
  4. 249.14 (Mitigation, Commutation and Remission of Punishments); and
  5. 249.15 (Conditions Applicable to New Punishments).

The same officers who may act as review authorities may also act as suspending authorities for the purposes of NDA sections 216-218.39

Quashing Findings

36. A review authority may quash any finding of guilty made at summary trial.40 When a finding of guilty has been quashed, and no finding of guilty remains, the whole of the sentence passed by the service tribunal ceases to have force and effect. Further, when a finding of guilty has been quashed, the offender may be tried again for the offence as if no previous trial had been held.41

37. Where a finding has been quashed and another finding of guilty remains and the review authority believes the punishment that was originally imposed is now unduly severe, the review authority shall substitute such new punishment(s) as the authority considers appropriate.42 For example, an accused is found guilty of Drunkenness43 and Improper Driving of a CF Vehicle44 and is sentenced to 10 days detention. If the finding of guilty on the charge of Improper Driving is quashed, the review authority must determine if the sentence of 10 days detention is unduly severe in respect of the Drunkenness charge, and if so, must substitute a new punishment. The conditions applicable to new punishments discussed below would apply in such a case.

Substitution of Findings

38. If the review authority determines that a finding of guilty made at summary trial on a particular charge is illegal or cannot be supported by the evidence, the review authority may substitute the finding of guilty with a new finding. For example, the review authority can substitute a finding of guilty with a finding of not guilty.

39. The review authority can only substitute the finding if the new finding could validly have been made by the presiding officer at the summary trial, and if it appears from the comments given by the presiding officer for the review for that charge that the presiding officer was satisfied that the facts given at the summary trial established the offence specified or involved in the new finding.45

40. A review authority may also substitute a finding of guilty with a new finding of guilty on a different offence, if it appears that the facts proved the offender guilty of the other offence, provided that:

  1. the presiding officer could have found the offender guilty of the other offence under sections 133, 134 or 136 of the NDA;46 or
  2. the presiding officer could have found the offender guilty of the other offence or on any alternative charge that was laid.47

41. For example, a member is charged with Stealing (NDA s. 114) and in the alternative Receiving (NDA s. 115). At summary trial the member is found guilty of Stealing and the proceedings on the Receiving charge is stayed. If on review the finding of guilty is found to be unjust, the review authority can quash that finding. In addition, if the review authority is satisfied the facts proved the offender guilty of the alternative offence of Receiving and the presiding officer could have found the offender guilty of that offence, then the review authority can substitute the stay of proceedings with a finding of guilty on the alternative charge of Receiving.

42. When substituting a finding the review authority must ensure that the punishment imposed at the summary trial is appropriate for the new finding. If the punishment imposed at the summary trial is more than what is allowed by the NDA for the new finding or if the review authority is of the opinion that the punishment would be unduly severe in light of the new finding, the authority must substitute an appropriate new punishment(s).48 The power to substitute a punishment is subject to the conditions applicable to new punishments discussed below.

Substitution of Punishments

43. When a review authority determines that the presiding officer has imposed an illegal punishment, the review authority may substitute, for the illegal punishment, any new punishment or punishments that the review authority considers appropriate and legal.49

Mitigation, Commutation and Remission of Punishments

44. A review authority can mitigate, commute or remit any or all of the punishments included in a sentence imposed at the summary trial.50 Mitigation refers to awarding a lesser amount of the same punishment. For example, by reducing the term of detention which has been imposed.51

45. The term commutation refers to replacing the type of punishment by awarding a punishment lower in the scale of punishments.52 For example, a sentence of detention can be commuted to a fine. The review authority can remit or dispense with the requirement to undergo the whole or any part of a sentence that remains. For example, in a case of a sentence of 30 days detention, where the offender has served 10 days of the sentence, a review authority could remit up to 20 days of the remaining period of detention.53

Conditions Applicable to New Punishments

46. The following conditions apply where a review authority replaces a punishment imposed at summary trial with a new punishment imposed by way of substitution or commutation.

  1. The new punishment must not be one that could not legally have been imposed by the presiding officer for the charge with which the offender was found guilty.54 For example, if the presiding officer was a CO, the punishment of a severe reprimand could not be substituted for the punishment of reduction in rank imposed at the offender's summary trial.
  2. The new punishment must not be higher in the scale of punishments than the punishment originally imposed by the presiding officer at the summary trial. Further, if the punishment imposed by the presiding officer included a period of detention, the new punishment must not involve a period of detention longer than that imposed at the summary trial.55

SECTION 5 - POST REVIEW ADMINISTRATION

47. The QR&O set out administrative action to be completed by a review authority acting pursuant to QR&O 108.45 once the decision on the review has been made, and the offender, the presiding officer and, where the review authority is not the offender's CO,56 the offender's CO have been notified of this decision in writing.57

48. The review authority must:

  1. cause a copy of the review decision to be placed on the Unit Registry on which the original RDP was placed;58 and
  2. cause the appropriate entries to be made to Part 7 of the original RDP.59

49. An officer conducting a review pursuant to QR&O 116.02 will be obligated to take the same action whenever a finding of guilty is quashed or a sentence altered.60

SECTION 6 - JUDICIAL REVIEW

50. In addition to the review procedures contained in QR&O which relate to summary trials, anyone found guilty at a service tribunal may apply for civilian judicial review.61 Civilian judicial review is available through two means: by application to the Federal Court of Canada62; or by application to the superior court of the province where the summary trial took place (if applicable).

51. Judicial review is not the same as an appeal. It is the purpose of judicial review to evaluate whether the tribunal has exceeded its jurisdictional limits. To initiate this evaluation, the offender must make an application to the civilian court for prerogative relief.63 Prerogative relief originated with the exercise of the extraordinary power held by the Crown in situations where the government was directly interfering with someone's liberty or property. Therefore, prerogative relief can be issued by a superior court only where proper cause is shown and not as a matter of right.

52. The application requirements and procedures related to civilian judicial review are set out in the statute or rules of procedure which apply to the court being asked to conduct the review.


Footnotes

1 Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (March 25, 1997) at 63.

2 Id. at Recommendation 33.

3 NDA s. 249(3) and (4).

4 QR&O 108.45, 116.02 and 107.14.

5 Federal Court Act, R.S.C. 1985, c. F-7, s. 18 and 18.1 and Summary Trial Working Group Report, Volume 1, 2 March 1994 at 187.

6 QR&O 108.45(1)(a).

7 QR&O 108.45(1)(b).

8 QR&O 116.02(2).

9 QR&O 108.45(2)(c). The applicable CFOO identifies the next superior officer responsible in matters of discipline.

10 This checklist is a guide only. It must be used in conjunction with the appropriate sections of QR&O and this Manual.

11 See Chapter 11, Section 3, Interests of Justice and Discipline.

12 QR&O 108.45(3)(a).

13 QR&O 108.45(3)(b).

14 QR&O 19.26(5.1). The separation of the review process at summary trial from the grievance process serves to highlight the right of review available to offenders.

15 QR&O 108.45(4) and 108.45 Note A. Also see discussion on relevance at Section 4 in Chapter 13, Conduct of Summary Trial.

16 QR&O 108.45(18).

17 QR&O 108.45(5).

18 QR&O 108.45(16).

19 QR&O 108.45(6).

20 QR&O 108.45(7).

21 QR&O 108.45(17).

22 QR&O 108.45(8).

23 QR&O 108.45(9).

24 QR&O 108.45(10).

25 QR&O 108.45(14).

26 QR&O 108.45(11) and (12). The offender may deliver further representations to the review authority within seven days of receiving a copy of the additional information.

27 QR&O 108.45(13).

28 See Chapter 4, Fairness and the Application of the Charter.

29 See Section 3 of Chapter 13, Conduct of Summary Trials.

30 QR&O 101.06. For example, a failure to comply with QR&O 108.20(5) by not allowing the accused to testify at the accused's summary trial.

31 For example, a failure to consider a limitation period referred to in QR&O 108.05.

32 See Chapter 14, Sentencing and Punishment.

33 QR&O 108.20(10). See also Chapter 13, Conduct of Summary Trial.

34 As C.J. Strayer observed in R. v. Seward, CMAC-376 at 13-14: “...I have no doubt that we must show restraint in the exercise of this power over sentence appeals, consistently with the position recently restated and confirmed by the Supreme Court of Canada in R. v. Shropshire [(1995) 102 C.C.C. (3d) 193]. Writing for the Court in that case Iacobucci J. stated that a provincial court of appeal, acting under subsection 687(1) of the Criminal Code which is similar to section 240.1 of the National Defence Act, should not find that a sentence is "not fit" unless the sentence is "clearly unreasonable". Other language which he endorsed to express the same idea would require that to alter a sentence it must be "clearly or manifestly excessive", "clearlyexcessive or inadequate" or "falling outside the 'acceptable range' of orders"”.

35 QR&O 108.45 Note B.

36 QR&O 116.02(2) and (3).

37 QR&O 116.02 Note B. See also Chapter 16, Post-trial Administration, Section 6. Unit legal advisors review all unit RDPs on a monthly basis for mistakes on the face of the document, such as missing information, and non-compliance with the procedural requirements. If a problem is found that could have resulted in the finding of guilty or could have affected the punishment imposed, the unit legal officer will bring the matter to the attention of a review authority.

38 QR&O 108.45 Note B and QR&O 116.02 Note A.

39 QR&O 114.02(3). See Chapter 14, Section 5 for more detail.

40 NDA s. 249.11(1).

41 NDA s. 249.11(2).

42 NDA s. 249.11(3).

43 NDA s. 97.

44 NDA s. 111(1)(b). The precise statement of the offence would be: “While his ability to drive was impaired by alcohol, drove a vehicle of the Canadian Forces”.

45 NDA s. 249.12(1).

46 NDA s. 133 provides that a person charged with desertion can be found guilt of attempting to desert or being absent without leave, whereas a person charged with attempting to desert can be found guilty of absence without leave. NDA s. 134 provides that anyone charged with any offence under s. 84 can be found guilty of any other offence in that section. NDA s. 134 also provides that anyone charged with an offence under s. 85 can be found guilty of any other offence in that section. NDA s. 136 provides that when an accused is charged with an offence under NDA s. 130, and had the accused been tried by a civil court in Canada for that offence could have been found guilty of another offence, then the accused may be found guilty of the other offence. For additional guidance concerning the application of these sections of the NDA see the Notes to QR&O 103.62.

47 NDA s. 249.12(2).

48 NDA s. 249.12(3).

49 NDA s. 249.13.

50 NDA s. 249.14.

51 QR&O 116.02 Note C.

52 QR&O 116.02 Note D.

53 QR&O 116.02 Note E.

54 NDA s. 249.15(a). This assumes that the finding has not been quashed or substituted.

55 NDA s. 249.15(b).

56 The offender's CO also has certain administrative obligations upon being notified of the review authority's decision. They are discussed at QR&O 108.45(15).

57 QR&O 108.45(14)(a).

58 For more information on the Unit Registry see Chapter 16, Post-Trial Administration.

59 QR&O 108.45(14)(c).

60 QR&O 116.03(1). For the CO's duty see QR&O 116.03(2).

61 Fontaine v. Canada (Minister of National Defence) (1990), 44 F.T.R. 266 (Fed. T.D.); and Glowczeski v. Canada (1989), 27 F.T.R. 112 (Fed. T.D.).

62 Federal Court Act, R.S.C. 1985, c. F-7, s. 18 and 18.1.

63 The refers to prerogative writs that can be issued by a court when the specific requirements are met, and include certioari, mandamus, quo warranto, habeas corpus, prohibition, injunction and declaratory relief.

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