Military Justice at the Unit Level Policy
Chapter 3 – Hearing

Context

This chapter of the Military Justice at the Unit Level Policy is intended to provide guidance on the summary hearing (SH) 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 Part III of the National Defence Act (NDA) (Summary Hearings) and Chapters 120 (Service Infractions), 122 (Summary Hearings) and 123 (Sanctions) 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 SH is solely the 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, a 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 122.02(1)(a) to (c) (Public Hearings) have been met. Reasons must be provided during the hearing when a decision is made to hold all or part of a SH in private.^{Footnote 76}

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 77} The person charged may be ordered to appear before the OCSH, and failure to appear may constitute a service infraction pursuant to QR&O paragraph (para) 120.03(f) (Infractions in Relation to Military Service) or a service offence pursuant to NDA section (s) 118.1 (Failure to appear or attend).

3.2 Oath or solemn affirmation and reading of charges

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 78} to be read aloud. It is at this point in the proceedings when the commencement of the SH occurs.^{Footnote 79}

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3.3 Preliminary questions

3.3.1   Prior to receiving any evidence, the OCSH must, in accordance with QR&O art 122.07 (Preliminary Questions), ask the person charged whether they:

1. Require more time to prepare for the hearing;^{Footnote 80}
2. Wish to make representations with respect to the OCSH’s lack of ability to conduct the summary hearing, including a lack of jurisdiction;^{Footnote 81} and
3. Wish to admit to any details of the charge.

3.3.2   When the OCSH asks the person charged whether they wish to admit any of the details of the charge^{Footnote 82} 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. If the person charged admits to details of the charge without admitting to the charge itself, the OCSH must still determine whether the person charged actually committed the service infraction. For example, the OSCH must still consider whether the person charged had taken all reasonable care or made an honest and reasonable mistake of fact.^{Footnote 83} 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 3.1 through 3.3, above, have been completed, the OCSH can begin to receive the evidence relating to the charge.

3.4.2   A SH is an inquisitorial process. This means that the OCSH conducts the hearing as a fact-finding activity and “takes charge of the gathering of evidence in an independent and impartial way.”^{Footnote 84} In that role, the OCSH fully controls the process of the SH and the order in which evidence is to be presented. Evidence and representations can be presented at any time and in any order. There is no set format for the SH.

3.4.3   The OCSH is responsible for receiving any evidence that may assist them in deciding whether or not the person charged committed the alleged service infraction. This responsibility includes introducing evidence that tends to show the person charged committed the service infraction and evidence that tends to show the person charged did not commit the service infraction, including evidence relating to the person charged taking all reasonable care or making an honest and reasonable mistake of fact. The evidence to be considered may be introduced in different ways, such as through the questioning of witnesses or the acceptance of documentary, electronic or physical evidence.

3.4.4   The person charged must be given a reasonable opportunity to engage during the SH. The person charged may, if they wish, speak about the evidence as it is introduced, introduce their own evidence, including calling their own witnesses,^{Footnote 85} question any witnesses, and make representations during all phases of the hearing.^{Footnote 86} The OCSH cannot compel the person charged to give evidence,^{Footnote 87} which includes giving oral evidence under oath or solemn affirmation. The OCSH also cannot compel the person charged to make any representations. The person charged has no responsibility or requirement to give any evidence or speak during the SH. After the OCSH has received and heard all the evidence, 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.

3.4.5   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 commission of the service infraction. This request must include a general description of each line of questioning the person charged wishes to ask.

3.4.6   In response, the OCSH must, after consultation with the person to be questioned, decide what lines of questioning 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 determination as to what lines of questioning may be asked should be based solely on whether each line of questioning is relevant to the matters to be determined in the SH. The OCSH should give reasons for their decision, including reasons for refusing to allow certain lines of questioning to be put to the person to be questioned.

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

3.4.8   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.^{Footnote 88}

3.4.9   The OCSH is required to maintain a list of all evidence that was received during the SH, which includes the names of all witnesses heard and any documentary, electronic and/or physical evidence received. 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 OCSH must next make a finding as to whether or not the person charged committed the alleged service infraction.^{Footnote 89} When making such a finding, the OCSH may consider only the evidence and representations received during the SH, which may include:

1. Written statements and/or oral evidence;
2. Documentary, electronic and physical evidence;
3. Any admitted details of the charge (see para 3.3.2); and
4. Representations by the person charged.

3.5.2   When making a finding, it is essential for the OCSH to consider the following:

1. First, whether there is clear and convincing evidence^{Footnote 90} which shows, on a balance of probabilities,^{Footnote 91} 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 92}
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; or
   • (2) Made an honest and reasonable mistake of fact.^{Footnote 93}

3.5.3   For it to be established that all reasonable care was taken, the evidence must show that the person charged took the steps that a reasonable person would have taken in similar circumstances to avoid committing the service infraction.^{Footnote 94}

3.5.4   The factors relevant to the determination as to whether all reasonable care had been taken may 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 95}

3.5.5   For it to be established that the person charged made an honest and reasonable mistake of fact, the evidence must show that the person charged made an honest mistake of fact relevant to the finding of whether they committed a service infraction, and that a reasonable person could have made a similar mistake in similar circumstances.^{Footnote 96} 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 97}

3.5.6   The OCSH must find that the person charged committed a service infraction if they conclude on a balance of probabilities that:

1. There is clear and convincing evidence that the person charged committed the service infraction;
2. The person charged did not take all reasonable care; and
3. The person charged did not make an honest and reasonable mistake of fact.

3.5.7   Conversely, the OCSH must find that the person charged did not commit a service infraction if they conclude on a balance of probabilities either that:

1. The person charged did not commit the service infraction;
2. The person charged took all reasonable care; or
3. The person charged made an honest and reasonable mistake of fact.

3.5.8   Having received and 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 at para 3.5.2 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.

3.5.9   The reasons, which are given orally at the SH and subsequently in writing,^{Footnote 98} must explain how and why the OCSH has arrived at the particular finding they are pronouncing. 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 3.5.2.

3.5.10   Where the person charged is found to have committed the service infraction, the hearing proceeds to the sanction stage and the OCSH must notify the person found to have committed a service infraction of their right to make an application for a review of the finding and/or sanction and of the process and deadline for requesting a review.^{Footnote 99} 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   Sanctions

Sanctioning principles and objectives

3.6.1   The fundamental principle of sanctioning is that sanctions must be proportionate to the gravity of the service infraction and the degree of responsibility of the person found to have committed a service infraction.^{Footnote 100} A sanction must also be imposed in accordance with the other principles outlined at NDA s 162.92 (Other principles). Particularly, a sanction should be increased to account for any aggravating circumstance, such as evidence of abuse of rank or other position of trust or authority, evidence the infraction was motivated by bias, prejudice, or hate, or evidence of harm to military operations or training.^{Footnote 101} A sanction should be reduced to account for any relevant mitigating factors,^{Footnote 102} which may include the age, rank, or years of service of the person found to have committed a service infraction, the fact that this is a first infraction, and any admissions that simplified the SH process.

3.6.2   Along with the fundamental principles of sanctioning, sanctions should also be intended to achieve at least one of the objectives of sanctioning stated in the NDA, including maintaining public trust, denouncing undisciplined conduct, and promoting a sense of responsibility.^{Footnote 103}

Sanctioning powers

3.6.3   The sanctions that can be imposed at a SH are listed in order of severity at NDA s 162.7 (Scale of sanctions). Minor sanctions for the purposes of NDA para 162.7(e) are listed at QR&O art 123.02 (Minor Sanctions). The sanctioning powers available to the OCSH depend on whether the OCSH is a superior commander, Commanding Officer (CO) or delegated officer^{Footnote 104} and may depend on the rank of the person found to have committed a service infraction.^{Footnote 105} The following table summarizes the sanctioning powers available to the different types of OCSH. Each sanction is discussed in more detail below the table.

Reduction in rank

3.6.4   Reduction in rank is the most severe sanction that can be imposed at a SH. It only applies to officers above the rank of second lieutenant and to non-commissioned members above the rank of private.^{Footnote 106} The rank of the person found to have committed a service infraction can only be reduced by one substantive rank at the highest classification in the reduced rank.^{Footnote 107} Officers cannot be reduced to a rank lower than a commissioned rank (i.e. an officer rank above the rank of officer cadet or naval cadet).^{Footnote 108}

3.6.5   Reduction in rank may have a long lasting and significant financial impact on the person found to have committed a service infraction.^{Footnote 109} The reduction in rank continues even if the service infraction is removed from the conduct sheet, and will remain effective until the person found to have committed a service infraction is once again promoted to the rank they previously held. The OCSH should weigh the financial impact of this sanction, having regard to the seriousness of the infraction and the degree of responsibility. This sanction may be appropriate when a person has been found to have abused their rank or other position of trust or authority,^{Footnote 110}  or has acted in a manner which demonstrates the person cannot meet the standards of leadership expected at that rank level.

3.6.6   The CO of the person against whom the sanction of reduction in rank has been imposed must, as soon as practicable, notify the National Defence Headquarters (Director General Military Careers) (only accessible on the Defence Wide Area Network).

Severe reprimand and reprimand

3.6.7   A severe reprimand or a reprimand is intended to reflect a sanction against misconduct. They are intended to stand out as a blemish on the career record of the person found to have committed a service infraction. In imposing a severe reprimand or a reprimand, the OCSH should recognize that these sanctions are more severe than deprivation of pay and minor sanctions.

Deprivation of pay

3.6.8   NDA subsection 162.7(d) provides for the deprivation of pay and any allowances prescribed in regulations. However, there are currently no allowances prescribed in regulations. Therefore, this sanction is currently limited to only deprivation of pay. Deprivation of pay can be used to impress upon a person found to have committed a service infraction the gravity of that infraction, but should not cause unnecessary hardship. Deprivation of pay must be expressed in a number of days or fractions of days, up to a maximum of 18 days.^{Footnote 111} It is not to be expressed as a dollar amount.

Minor sanctions

3.6.9   The rationale of minor sanctions is to address the conduct of a person found to have committed a service infraction while allowing them to remain a productive member of the unit. Minor sanctions must in all cases be completed within 30 days of the day they are imposed.^{Footnote 112}

Confinement to ship or barracks

3.6.10   Confinement to ship or barracks can help instill the habit of obedience with respect to time and routine by preventing the person found to have committed a service infraction from leaving the geographic limits of their base or unit without permission.^{Footnote 113} There is no discretion to define the geographic limits of confinement to be any smaller than the geographic limits of the base or unit. Confinement can be for no more than 14 days^{Footnote 114} and cannot be completed in a service prison, detention barrack, or unit detention barrack.^{Footnote 115} The sanction cannot interfere with the performance of normal duties,^{Footnote 116} and the person found to have committed a service infraction must enjoy at least eight hours within each 24 hour period where they are not required to perform normal duties or carry out the sanction of extra work and drill, if also imposed.^{Footnote 117} The sanction of confinement to ship or barracks does not automatically include extra work and drill, but the two sanctions can be imposed with respect to one charge.

Extra work and drill

3.6.11   Extra work and drill can help improve military efficiency and discipline, and the extra work and drill should be linked to the service infraction. It may include the performance of normal duties for longer periods than would be required, other useful work and extra drill, or other military training. The extra work and drill may be of any type that the person found to have committed a service infraction is medically fit to carry out. As such, any medical limitations must be considered when determining the type of extra work and drill to impose. Extra work and drill can be imposed for no more than 14 days.^{Footnote 118}

Withholding of leave

3.6.12   Withholding leave includes withholding annual leave, accumulated leave, special leave, and short leave for not more than 30 days.^{Footnote 119} It can be effective in operational deployments. The person found to have committed a service infraction shall not be granted leave during the term of the sanction.

Administrative details

3.6.13   In respect of the implementation of minor sanctions,^{Footnote 120} COs should ensure that orders^{Footnote 121} governing persons undergoing minor sanctions are issued, that the orders are made known to those persons, and that they are enforced. While these orders can provide details for confinement, extra work and drill, and withholding of leave, these details cannot contravene the QR&O. For example, these orders cannot limit confinement beyond what is defined in QR&O para 123.03(1) (Confinement to Ship or Barracks), and they cannot automatically impose the sanction of extra work and drill without the OCSH imposing this sanction.

3.6.14   In cases where no such orders have been issued, the OCSH should, upon giving reasons for the sanction, provide the administrative direction necessary for the appropriate implementation of the minor sanction(s). Administrative details necessary for the appropriate implementation of minor sanctions may include:

1. Any required or prohibited behaviours during confinement (i.e. limitations on electronic devices, prohibitions on alcohol, etc.); and
2. A daily schedule while confined and/or a schedule for any performance of extra work and drill imposed (i.e. daily drill requirements and expectations).

The sanction process

3.6.15   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 found to have committed a service infraction is not ready to proceed, the OCSH must grant a reasonable adjournment in order for them to prepare.

3.6.16   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 as a result of the commission of a service infraction, the OCSH will inform that person that they are permitted, but not required, to make a statement during the sanction phase.^{Footnote 122} The person found to have committed a service infraction may not ask any questions of the person making this statement.

3.6.17   During the sanction phase, the SH continues to be an inquisitorial process. This means the OCSH must also conduct the sanction phase as a fact-finding activity. The evidence to be considered may be introduced in the same ways described at para 3.4.2 above. The OCSH may hear any relevant evidence relating to sanctioning, including any mitigating or aggravating factors.^{Footnote 123}

3.6.18   With the exception of statements described at para 3.6.16, above, the OCSH must give the person found to have committed a service infraction a continued reasonable opportunity to engage, as described at para 3.4.4 above. After the OCSH has received and heard all the evidence, the person found to have committed a service infraction (or their AM) may make representations concerning the appropriate sanction.

3.6.19   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 124} 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 person found to have committed a service infraction for being both late and intoxicated upon reporting for duty may receive a single sanction, which accounts for both infractions, or may receive multiple sanctions, which together account for both infractions. They may not receive separate sanctions for each individual infraction.

3.6.20   Having considered the circumstances of the service infraction, including any statement from a person described at para 3.6.16 above, 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).

3.7 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 found to have committed a service infraction or to the person found to not have committed a service infraction (collectively “the person charged”), and to that person’s CO, within three days following the pronouncement of the decision.^{Footnote 125}

3.7.2   On request, 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. When disclosing the written reasons to any such person, only the minimal amount of personal information, as defined in s 3 of the Privacy Act^{Footnote 126} required to fulfill the specific purpose may be disclosed.^{Footnote 127} The specific purpose of providing personal information to this person is to ensure they understand the basis for the decision. The OCSH must redact any personal information that is not necessary for this specific purpose. See para 2.1.5 for examples of personal information that may need to be redacted.

3.7.3   Giving written reasons allows the OCSH to communicate the rationale for their decision and helps the person charged to understand the basis for the finding and sanction, if applicable. It also permits an authority undertaking a review to scrutinize the finding(s) and sanction(s) if requested.^{Footnote 128} The decision should be “based on an internally coherent and rational chain of analysis” and be “justified in relation to the facts and law that constrain the decision maker”.^{Footnote 129} The reasons should also be intelligible and transparent, allowing the person charged and any authority undertaking a review to understand why the decision was made.^{Footnote 130}

3.7.4   This means the reasons should include, without being limited to:

1. The relevant facts;
2. Any relevant legal authorities;
3. The key issues raised by the person charged;
4. A rational and logical line of reasoning, leading from the evidence and legal authorities to the decision made;
5. An understanding of the impact of the decision, including any sanctions, on the person charged; and
6. If applicable, the relevant sanctioning principles, including aggravating and mitigating factors.^{Footnote 131}

3.7.5   The written reasons should be similar in content to the oral reasons and must identify the appropriate review authority, if applicable.

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3.8 Mental health supports

3.8.1   When appropriate, mental health supports should also be made available during the hearing phase to those who are involved, including the person charged and any person who has or who has alleged to have had a service infraction committed against them or who has suffered or who has alleged to have suffered physical or emotional harm, property damage or economic loss as a result of the commission of a service infraction. Appropriate 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.