Chapter 9: Assisting Officer
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. Assisting Officer means an officer or a NCM who has been appointed to assist an accused pursuant to QR&O article 108.14.1 An assisting officer shall ensure, before an accused makes a decision to be tried by summary trial or court martial, that the accused is aware of the nature and gravity of the offence and the differences between trial by court martial and by summary trial.2 Further, an assisting officer must, to the extent desired by the accused, assist the accused in preparing and presenting the case to be tried by summary trial. Personnel who are appointed to assist members with other matters, such as grievances or preparing requests for review of summary trials, do not have the same duties or responsibilities as assisting officers who are appointed pursuant to Article 108.14.3
2. An assisting officer is not legal counsel and does not act as a defending officer for an accused. The duties, responsibilities and protection applicable to lawyers, including solicitor-client privilege,4 do not apply to assisting officers.
Reference for Assisting Officers
3. A handbook entitled The Election To Be Tried by Summary Trial or Courts Martial - Guide for Accused and Assisting Officers, A-LG-050-000/AF-001 has been prepared by the office of the Judge Advocate General.5 The guide is available in electronic form on the Defence Information Network, and is attached as Annex H to this manual.
When an Assisting Officer is Appointed
4. An assisting officer shall be appointed by the CO as soon as possible after a charge has been laid.6 Once appointed, the name and rank of the assisting officer must be recorded in the appropriate space in Part 1 of the RDP.7
Who may be Appointed as an Assisting Officer
5. The assisting officer will normally be an officer, but in exceptional circumstances, such as where no officers are available because they are absent from the unit on duty, or all officers are unavailable due to other essential duties, an NCM above the rank of sergeant may be appointed.8
6. If the accused requests a particular service member to act as assisting officer, that member must be appointed unless the exigencies of the service do not permit the appointment or the member is unwilling to act as assisting officer.9
7. It is usually someone from the accused's unit who is appointed as assisting officer; however, a member from another unit may also be appointed. Circumstances where it may be more practical to appoint a member of another unit to act include where no one suitable is available from the accused's unit due to its small size, or where the accused is being tried by the CO of another unit.10
General Duties of Assisting Officer
8. An assisting officer is appointed to assist the accused in the pre-election, pre-trial, trial and sentencing phases of the summary trial process.
9. An assisting officer has the duty to assist an accused, to the extent that the accused desires, in preparing and presenting the accused's case. These duties include assisting in preparing the accused's case and advising the accused regarding witnesses, evidence and any other matters relating to the trial or the charges,11 as well as assisting and speaking for the accused during the trial.12
Replacement of Assisting Officer
10. If an assisting officer becomes unable or unwilling to act for any reason, another assisting officer must be appointed.13 The assisting officer is not required to provide reasons for withdrawing. Although the QR&O do not prohibit the CO from inquiring about the assisting officer's reasons for withdrawing, the CO should be careful not to become privy to information prior to a summary trial which could create a perception of bias for or against the accused.
11. If an accused wants a different assisting officer, the CO should consider appointing another one. While the accused does not have the right to demand the replacement of the assisting officer it may be advisable, in the interests of fairness, to appoint a new assisting officer where the accused is dissatisfied with the assisting officer or where a conflict has arisen between the assisting officer and the accused.
12. Depending on the circumstances it might be argued on review that the failure to appoint a new assisting officer had an effect upon the fairness of the proceedings. A new assisting officer need not be appointed when the request is frivolous or vexatious.14
SECTION 2 - PRE-TRIAL DUTIES
13. The assisting officer has the following pre-trial duties:
- ensure the presiding officer has provided the accused with the information relevant to the charge;15
- advise the accused with respect to witnesses, evidence or any other matters relating to a summary trial, including the rights of the accused at a summary trial;16 and
- assist the accused in the election process,17 if applicable, which includes:
- ensuring that the accused is aware of the nature and gravity of any offence charged; and
- ensuring that the accused is aware of the differences between a trial by summary trial or by court martial.18
Duties Regarding the Provision of Information – Role of Assisting Officer
14. With respect to the provision of information, it is the duty of the presiding officer to ensure that the accused and assisting officer have been provided with or been given access to any evidence that:
- is to be relied on at the summary trial; or
- tends to show that the accused did not commit the offence charged.19
15. See Chapter 10, Provision of Information for the type of information that the accused or assisting officer may be provided or made accessible. This must be done in sufficient time to allow the accused to consider it:
- to make an election, if one is to be offered; and
- to properly prepare the accused's case for summary trial.20
16. One of the initial steps taken during a summary trial is that the accused is asked whether there has been sufficient time to prepare for trial. If information has not been provided to an accused in time to prepare for trial, the presiding officer must ensure that all relevant information is provided and grant a reasonable adjournment to allow the accused an opportunity to prepare for the summary trial.21 In such circumstances, the assisting officer should assist the accused in requesting a reasonable adjournment.
Duties regarding Trial Preparation
17. The assisting officer shall, to the extent desired by the accused, assist in the preparation of evidence, witnesses and representations which may be required during the summary trial.22 This may include making a request that the accused be permitted to be represented by legal counsel at the summary trial, making a request that certain witnesses be required to attend, assisting the accused in deciding which, if any, of the particulars may be admitted at the trial, preparing questions for witnesses, and preparing representations with respect to the guilt or innocence of the accused and the appropriate sentence should the accused be convicted.
18. The assisting officer must make the accused aware of the accused's rights at a summary trial.23 These rights include:
- to have the trial conducted in either English or French;
- to be assisted by the assisting officer to the extent desired by the accused;
- to admit any of the particulars of the charge;
- to request the presence of witnesses, within certain limits;
- to present evidence on the accused's own behalf;
- to testify on the accused's own behalf, but only if the accused so desires;
- to ask relevant questions of any witness;
- to be found not guilty of any charge unless the presiding officer is convinced beyond a reasonable doubt that the accused committed the offence charged or any other related, attempted, or less serious offence for which the accused may be found guilty on that charge; and
- if found guilty, to present evidence and to make representations concerning the sentence.24
Duties regarding the Election
19. With respect to the election, the assisting officer must ensure that the accused is aware of the nature and gravity of any offence with which the accused has been charged. This involves describing the offence charged to the accused, as well as maximum punishment which could be awarded under the NDA.25
20. The assisting officer must also ensure that the accused is aware of the differences between a summary trial and a court martial. The important differences between a summary trial and a court martial include:26
- Right to Legal Counsel. While there is no right to representation by legal counsel at a summary trial, the accused may be represented at his or her own expense by civilian legal counsel at the discretion of the presiding officer.27 At a court martial the accused has the right to legal representation, free of charge, by a legal advisor with DDCS or the accused may hire civilian legal counsel at the accused's own expense28.
- Powers of Punishment. The punishments that may be imposed at summary trial are significantly less severe than the punishments that may be imposed at court martial.29 A comparison of the punishments that may be imposed at a summary trial and at a court martial is contained in Annex A of the Guide for Accused and Assisting Officers.30
- Right to Challenge Officers conducting the Trial. The accused has no right to object to being tried by the specific officer who is presiding at a summary trial. However, where appropriate, the accused may bring this issue to the attention of the presiding officer prior to or during the trial. Conversely, at a court martial, the accused has the right to object to being tried by the members of the court and to the military trial judge.31
- Appointment of a Prosecutor. At a summary trial, the charges are dealt with exclusively by the presiding officer. At a court martial, a legal advisor is appointed as prosecutor to present the case against the accused.32 This may include calling witnesses, making legal arguments, representations and cross-examining the accused if the accused chooses to testify.
- Charges. At summary trial, the presiding officer will proceed with the trial in respect to the charges indicated in the RDP. When a court martial is to be held, a prosecutor makes a further assessment of the case. There may be a further investigation of the case and the charges may be amended or additional charges may be laid.33
- Procurement of Witnesses. The presiding officer will arrange for the attendance of all military witnesses at summary trial; however, the presiding officer has no authority to compel civilian witnesses to attend.34 Instead, the presiding officer can only invite civilian witnesses to attend in order to give evidence. Witnesses may be summoned to appear at a court martial regardless of whether they are military or civilian.35
- Reception of Evidence. The Military Rules of Evidence do not apply at a summary trial.36 Instead, the presiding officer may consider all evidence which the officer considers to be relevant and of assistance in determining whether the accused committed the offence charged and in imposing sentence, if the accused is found guilty.37 At both summary trials and courts martial, all evidence must be provided under oath or affirmation;38 however, at a court martial the Military Rules of Evidence also apply39 and may limit what or how evidence is received.
- Right to Appeal. The accused has no right to appeal the findings or sentence of a summary trial. However, accused may submit a request for review of the findings and/or sentence of a summary trial.40 The accused may have an officer, or NCM above the rank of sergeant, appointed to assist in preparing the request for review.41 The details of this process are provided in Chapter 15. On the other hand, both the accused or the Minister of National Defence may appeal the findings or sentence of a court martial,42 and in some circumstances civilian or military legal counsel may be appointed to assist the accused with the appeal.43 A punishment of detention imposed at summary trial will be suspended where a review under QR&O 108.45 has been requested.44 A sentence of detention or imprisonment imposed at court martial may be suspended pending the outcome of the appeal.45
Consultation with Legal Counsel Regarding the Election
21. There is no obligation on an accused to contact legal counsel regarding the election; however, the presiding officer must ensure that the accused has had a reasonable opportunity to do so prior to making an election.46
22. Although the assisting officer is not required to assist the accused in contacting legal counsel, the assisting officer should do so in cases where the accused has been given an election and the accused requires assistance in contacting legal counsel. The intention behind giving the accused a reasonable opportunity to consult legal counsel about the election, is to allow the accused to make an informed choice with respect to the type of trial.47
23. With respect to contacting legal counsel, the assisting officer should ensure that the accused is provided with the telephone number for the DDCS who may be consulted at no expense to the accused. Civilian legal counsel may be consulted, at the accused's own expense. Provincially funded legal aid is not normally available for all the types of offences tried at summary trial.
24. If the accused is unable to consult counsel, or was unable to consult counsel in private, the assisting officer may assist the accused in requesting additional time, prior to making the election, in order to have the opportunity to consult with legal counsel.48
SECTION 3 - CONFIDENTIALITY OF COMMUNICATIONS BETWEEN ASSISTING OFFICERS AND ACCUSED
25. Regardless of whether military or civilian legal counsel is used, solicitor-client privilege exists between legal counsel and client. No money need to have changed hands in order for the person to be considered a client; it is the seeking of legal advice about a case that creates the solicitor-client relationship.49
26. Legal counsel for an accused is prohibited from disclosing information with respect to the case which has been provided by an accused without the accused's express consent. This may include information shared between legal counsel or their agents and the accused or agents for the accused.50 Agents for legal counsel could include clerks,51 secretaries or interpreters.52 Neither the accused nor an agent for the accused can be compelled to disclose such communications. Only the accused is able to release the lawyer from the privilege, which continues even if the solicitor-client relationship terminates.53
27. Solicitor-client privilege is limited to communications between a client and a person whom the client believes is professionally qualified to practise law.54 Solicitor-client privilege does not apply to communications between clients and law students,55 or judges,56 and it also would not apply to assisting officers. This means that an assisting officer could be compelled, in certain circumstances, to disclose information communicated to that officer by the accused.
28. At law, an assisting officer could be required to reveal the contents of communications overheard between a lawyer and the accused.57 Therefore, the assisting officer should take special care not to be party to conversations between the accused and legal counsel, as communications in the presence of third parties, which would include assisting officers, are not subject to solicitor-client privilege.58 It is the accused's decision whether to include the assisting officer in communications with counsel.
Communications between Assisting Officers and Accused
29. The integrity of the assisting officer's role and the effectiveness of the summary trial process could be adversely affected if an assisting officer is required to disclose communications with an accused. Therefore, in the military context, the communications between an assisting officer and the accused should, for policy reasons, be treated in a manner similar to communications between a lawyer and their client. The unit legal advisor should be consulted in any case where consideration is being given to requiring an assisting officer to disclose communications between an assisting officer and an accused.
30. An assisting officer who is asked to reveal the contents of any communications with an accused should seek advice from a legal advisor with DDCS prior to disclosing the contents of any such communications. An assisting officer should not disclose information obtained or conversations occurring with an accused without being ordered in writing to do so, and then only after seeking legal advice.
SECTION 4 - TRIAL DUTIES
31. If the accused elects summary trial or if no election is offered and a summary trial is held, the assisting officer must assist the accused to the extent the accused desires, which may include:59
- questioning witnesses during the summary trial;
- calling evidence on behalf of the accused;
- making representations regarding the evidence and regarding the guilt or innocence of the accused; and
- making representations regarding sentence if the accused is found guilty.
SECTION 5 - POST-TRIAL DUTIES
32. An assisting officer's duties end after the sentencing phase of the summary trial is completed where the accused has been found guilty. It is not the responsibility of an assisting officer to assist the convicted accused with a request for review. However, if the member requests assistance in preparing the application for review, an officer or NCM above the rank of sergeant will be appointed to help prepare the application for review.60 This is discussed in more detail in Chapter 15, Review of Summary Trial Proceedings.
1 QR&O 108.03.
2 QR&O 108.14(5).
3 The appointment of an officer or NCM above the rank of sergeant to assist a member requesting a review of a summary trial, is not an assisting officer. The role of an officer of NCM performing this function is discussed in Section 5 of this Chapter on Post-Trial Duties.
4 The issue of solicitor-client privilege as it applies to assisting officers is discussed in Section 3 of this Chapter.
5 QR&O 108.14 Note D.
6 QR&O 108.14(1).
8 QR&O 108.14(1) and Note A.
9 QR&O 108.14(3)
10 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. 8. See Annex H.
11 QR&O 108.14(4)(a).
12 QR&O 108.14(4)(b).
13 QR&O 108.14(2).
16 See para. 18 of this Chapter.
18 QR&O 108.14(5).
19 QR&O 108.15(1).
20 QR&O 108.15(2).
21 QR&O 108.20(3).
22 QR&O 108.14(4).
24 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. 18.
25 QR&O 108.14(5)(a).
26 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.
27 QR&O 108.14 Notes B and C.
28 QR&O 101.21.
29 Table to QR&O 108.24, 108.25 and 108.26.
31 QR&O 112.05(3), (9), and 112.14.
32 NDA s. 165.11.
33 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(e).
34 QR&O 108.29.
35 NDA s. 249.22 and QR&O 111.08, 111.09 and Notes.
36 QR&O 108.21 and Notes.
37 QR&O 108.21(2).
38 NDA s. 251 and QR&O 108.30, 112.20 and 112.21.
39 NDA s. 181(1).
40 QR&O 108.45(1).
41 QR&O 108.45(15).
42 NDA ss. 230 and 230.1 and QR&O 115.02 and Note; NDA s. 230.1 and QR&O 115.03 and Notes.
43 QR&O 115.03 Note A, QR&O 118.23 and Courts Martial Appeal Rules, Rule 20, referred to in 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 (h), see also R. v. Boland re: Rule 20 tests regarding financial hardship and R. v. Brown regarding appointment of civilian counsel for the respondent when the CF files an appeal.
45 NDA s. 248.3 and QR&O 108.45(14).
46 QR&O 108.18 (1).
47 QR&O 108.18 and Notes.
48 The Election to be Tried by Summary Trial or Courts Martial: A Guide for Accused and Assisting Officers, A-LG-050- 000/AF-001, para. 13.
49 Cross, Sir Rupert, Evidence, 4th ed (London: Butterworths, 1974) at 248-250.
50 Carpmael v. Powis, 1 Phillips 687 (1846) as cited in Wigmore on Evidence, vol 8 (Toronto: Little, Brown and Co., 1983) at 619.
51 Lyell v. Kennedy, 27 Ch. D. 1, 19 (C.A. 1881) as cited in Wigmore on Evidence, vol 8, at 583.
52 Du Barré v. Livette, Peake N.P. 77 (1791) as cited in Wigmore on Evidence, vol 8, at 618.
53 Bullock v. Corrie, 3 Q.B.D. 356 and Chant v. Brown, 7 Hare 790 as cited in Cross on Evidence (4th ed) at 596.
54 Naujokat v. Bratushesky,  2 W.W.R. 97 at 107 and R. v. Choney (1908), 17 Man. R. 467 (C.A.).
55 Andrews v. Soloman, 1 Fed. Cas. 899 at 901, as cited in Wigmore on Evidence, vol 8, at 581. However, privilege does exist if the law student is acting as an agent of the solicitor.
56 Pritchard v. United States, 181 F. 2d 326 (6th Cir. 1950) as cited in Wigmore on Evidence, vol 8, at 581.
57 Wigmore on Evidence, vol 8, at 633-635.
58 Wigmore on Evidence, vol 8, at 633-634 and adopted in R. v. Kanester,  1 C.C.C. 97n.
59 QR&O 108.14(4)(b).
60 QR&O 108.45 (18).
- Date modified: