Military Justice at the Unit Level Policy
Chapter 3 – Hearing

Context

This chapter of the Policy is intended to provide guidance on the summary hearing process during the hearing stage. This chapter includes guidance on matters including hearing attendance, taking oaths, pronouncing a decision and imposing a sanction, if applicable. This chapter is to be read in conjunction with the provisions contained in Division 5 of the National Defence Act (NDA) (Summary Hearings) and Chapters 120 (Service Infractions) and 122 (Summary Hearings) of the Queen’s Regulations and Orders for the Canadian Forces (QR&O).

3.1 Conduct of the hearing

3.1.1    The conduct of a summary hearing (SH) is the sole responsibility of the officer conducting the summary hearing (OCSH), and no superior authority may interfere in the proceedings. The OCSH may seek legal advice at any time with respect to the SH.

3.1.2    By default, an SH will be open to the public. However, the OCSH may order all or part of the SH to be held in private when they are of the opinion that any of the circumstances set out at QR&O subparagraphs (subparas) 122.02(1)(a) to (c) have been met. Reasons must be provided when a decision is made to hold all or part of an SH in private.^{Footnote 52} 

3.1.3    Before commencing the SH, the OCSH must ensure that the person charged with having committed a service infraction (person charged) and the assisting member (AM), if one has been requested by the person charged, are present and that all witnesses to be called to give evidence are available in person or by telephone or electronic means.^{Footnote 53} 

3.2 Oath or solemn affirmation

3.2.1    Once the person charged is present, the next step is for the OCSH to take an oath or solemn affirmation. The language of the OCSH oath or solemn affirmation is set out at QR&O article (art) 122.06 (Oath or solemn affirmation). After taking the oath or solemn affirmation, the OCSH will next cause the charges as they appear on Part 1 of the charge report^{Footnote 54} to be read aloud.

3.3 Preliminary questions

3.3.1   Prior to receiving any evidence, the OCSH must ask the preliminary questions set out at QR&O art 122.07 (Preliminary questions) to the person charged. For more information relating to the preliminary question set out at QR&O para 122.07(a) concerning reasonable adjournments, see section (s) 2.7 in Chapter 2 (Pre-hearing). For more information on the preliminary question set out at QR&O para 122.07(b) concerning the OCSH’s lack of ability to conduct the SH, see s 2.6 in Chapter 2 (Pre-hearing).

3.3.2    When the OCSH asks the person charged whether they wish to admit any of the details of the charge^{Footnote 55} or admit to any of the charges laid, the response must be recorded in writing and appended to the charge report. The admission of any of the details of a charge or of a whole charge means that evidence does not need to be presented at the SH to prove that particular detail or charge. A written record of the admitted details and charges is important for the purpose of informing the finding, the reasons and any potential review.

3.4 Hearing evidence and representations

3.4.1    Once the steps detailed in sections (ss) 3.1 through 3.3 have been completed, the OCSH can begin to receive the evidence relating to the charge.

3.4.2    An SH is an inquisitorial process. This means that the OCSH conducts the hearing as a fact finding activity. The OCSH is responsible for calling and questioning witnesses and receiving any evidence that may assist them in deciding whether or not the person charged committed the alleged service infraction. The evidence to be considered may be introduced in different ways, such as through the questioning of witnesses or the acceptance of documentary or physical evidence.

3.4.3    The person charged must be given a reasonable opportunity to engage during the SH—to speak about the evidence as it is introduced, to introduce their own evidence, to question witnesses and to make representations during all phases of the hearing^{Footnote 56} Once all the evidence has been introduced, the person charged must also have the opportunity to make representations on whether the evidence shows that the service infraction was committed or whether their conduct can be otherwise excused. The person charged has the option of engaging and making representations personally or having their AM do so on their behalf.

3.4.4    During the SH, the person charged must request permission from the OCSH if they wish to question any person against whom a charged service infraction is alleged to have been committed or any person who is alleged to have suffered physical or emotional harm, property damage or economic loss as a result of the alleged service infraction. This request must include a general description of each question the person charged wishes to ask.

3.4.5     In response, the OCSH must, after consultation with the person to be questioned, decide what questions may be asked and whether the person charged may question that person directly themselves, or indirectly (such as through their AM or the OCSH). The OCSH should give reasons for their decision, including reasons for refusing to allow certain questions to be put to the person to be questioned.

3.4.6    Before giving evidence, a witness, including the person charged, must take an oath or solemn affirmation in accordance with QR&O paras 122.06(3) - (4) (Oath or solemn affirmation).

3.4.7    Witnesses who will be giving evidence during the SH, other than the person charged, must be excluded from the hearing room until they are called in to give their evidence. Additionally, the OCSH should inform those witnesses that until they are called to give their evidence, they must not:

1. Discuss what they may say during the SH with any other witness, or
2. Receive any information on what other witnesses may say, or have said, during the SH.

3.4.8    The OCSH is required to maintain a list of all evidence that was received during the SH, which includes the names of all witnesses and all documentary and physical evidence presented. This list must be attached to the charge report at the end of the SH.

3.5 Findings

3.5.1    Once the OCSH has received and heard all the evidence and representations, the OSCH must next make a finding as to whether or not the person charged committed the alleged service infraction.^{Footnote 57} When making such a finding, it is essential for the OCSH to consider the following:

1. First, whether there is clear and convincing evidence^{Footnote 58} which shows, on a balance of probabilities, that the person charged committed the service infraction. In other words, in order to make a finding that a person committed a service infraction, there must be clear and convincing evidence that it is more likely than not that the person charged committed the service infraction. It is not relevant to this determination whether the person charged knew they were committing the service infraction or intended to commit it.^{Footnote 59}
2. Second, whether on the balance of probabilities the evidence establishes that in the course of their conduct the person charged had either:
   • (1) Taken all reasonable care to avoid committing the service infraction and not acted negligently; or
   • (2) Made an honest and reasonable mistake of fact.^{Footnote 60}

3.5.2    To demonstrate that they had taken all reasonable care, the person charged must show that they had taken the steps that a reasonable person would have taken in similar circumstances to avoid committing the service infraction.^{Footnote 61}

3.5.3    The factors relevant when determining whether all reasonable care had been taken include:

1. Whether the situation was beyond the person’s control;
2. The skill level expected of a member belonging to that occupation and holding that rank; and
3. The complexities involved.^{Footnote 62}

3.5.4    To demonstrate an honest and reasonable mistake of fact, the person charged must show that they had made an honest mistake in their understanding of a fact related to the commission of the service infraction, and that a reasonable person could have made a similar mistake in similar circumstances.^{Footnote 63} However, such misunderstandings do not include a failure to understand that the act or conduct in question gives rise to a service infraction. This concept is illustrated by the phrase “ignorance of the law is no excuse.”^{Footnote 64}

3.5.5    The OCSH must find that the person charged committed a service infraction when, after hearing all of the evidence, the OCSH concludes there is clear and convincing evidence that shows on a balance of probabilities that the person charged committed the service infraction; and that the person did not take all reasonable care or did not make an honest and reasonable mistake of fact.

3.5.6    Conversely, the OCSH must find that the person charged did not commit a service infraction when, after hearing all of the evidence, the OCSH concludes that the evidence shows on a balance of probabilities either that: the person charged did not commit the service infraction; or took all reasonable care, or made an honest and reasonable mistake of fact.

3.5.7    Having heard the evidence with respect to the charges, the OCSH may adjourn the hearing to consider the evidence in accordance with the two matters set out above, and determine the finding they believe is supported by the available evidence. Having made the finding, the OCSH may resume the SH, if adjourned, and pronounce the finding, with reasons.

3.5.8    The reasons, which are given orally at the SH and subsequently in writing,^{Footnote 65} must explain how and why the OCSH has arrived at the particular finding they are announcing. The reasons must demonstrate that the OCSH considered the evidence and the representations relevant to the service infraction before them and considered the two matters set out above at para 3.5.1.

3.5.9    Where the person charged is found to have committed the service infraction, the hearing proceeds to the sanction stage and the OCSH must notify them of their right to make an application for a review of the finding or sanction and of the process and deadline for requesting a review.^{Footnote 66} If the person charged is found to have not committed the service infraction, the OCSH will close the SH and dismiss the participants and any other persons in attendance.

3.6 Sanction

3.6.1    At the beginning of the sanction phase of the SH, the OCSH must ask the person found to have committed a service infraction whether they are ready to proceed. If the person is not ready to proceed, the OCSH must grant a reasonable adjournment in order for them to prepare.

3.6.2    When a service infraction is found to have been committed against a person or is found to have caused a person to have suffered physical or emotional harm, property damage or economic loss, the OCSH will inform that person that they are invited, but not required, to make a statement during the sanction phase. The person found to have committed the service infraction may not ask any questions of the person making this statement.

3.6.3    In determining a sanction, the OCSH must consider all of the circumstances surrounding the commission of the service infraction. The OCSH may impose one or more sanctions^{Footnote 67} in respect of a service infraction found to have been committed. If more than one service infraction is found to have been committed and more than one sanction is imposed, the sanctions must be imposed for the totality of the service infractions found to have been committed, and not in respect of each particular service infraction. For example, a member found to have been both late and intoxicated upon reporting for duty may receive a single sanction, which accounts for both their lateness and their intoxication.

3.6.4    Having considered the circumstances of the service infraction, including any statement from a person described at para 3.6.2, the OCSH will pronounce the sanction, with oral reasons. The reasons for the sanction(s) must, like the reasons for the finding(s), show that the OCSH considered the evidence and representations relevant to the service infraction(s).

3.6.5    In respect of the imposition and subsequent implementation of minor sanctions,^{Footnote 68} Commanding Officers should ensure that rules governing persons undergoing minor sanctions are issued, that the rules are made known to those persons and that they are enforced. In cases where no such rules have been issued, the OCSH should, upon giving reasons for the sanction, provide the administrative details necessary for the appropriate implementation of the sanction.

3.7 Written reasons

3.7.1    Written reasons with respect to the findings (and sanctions if applicable) must be attached to the charge report, and provided to the person who committed the service infraction and to the person’s Commanding Officer within three days following the pronouncement of the decision.^{Footnote 69} A copy of the written reasons will also be provided to any person against whom a service infraction is alleged to have been committed or who is alleged to have suffered physical or emotional harm, property damage or economic loss as a result of the alleged commission of the infraction, if they so desire. The written reasons should be similar in content to the oral reasons.

3.7.2    Giving reasons helps the person charged to understand the basis for the finding, and permits a review authority to scrutinize the finding if requested.^{Footnote 70}

3.8 Mental health supports

3.8.1    When needed, mental health supports should also be made available during the hearing phase to those who are involved, including the person charged with having committed a service infraction and any person alleged to have suffered physical or emotional harm, property damage or economic loss as a result of the alleged commission of the infraction. Military justice authorities should make it known that if any such individual wishes to seek out mental health supports, such supports are available, and those authorities should provide relevant mental health support contact information.