Chapter 4 – Review – Military Justice at the Unit Level Policy

Context

An essential aspect of ensuring procedural fairness in the summary hearing process is the opportunity to have a military justice authority other than the officer who conducted the summary hearing review the results of that summary hearing when the person charged was found to have committed a service infraction.

This chapter of the Policy is to be read in conjunction with the provisions contained in Division 5 of the National Defence Act (NDA) (Summary Hearings) and Chapter 124 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) (Review), which provide a framework for reviewing the findings made and the sanctions imposed at a summary hearing. This chapter addresses how a review can be requested, who can act as a review authority, how the review is to be conducted and the review authority’s powers.

4.1 Initiation of review

4.1.1    There are two ways by which a review can be initiated.

4.1.2    Firstly, a person found to have committed a service infraction has the right to submit an application for review.^{Footnote 71} The officer conducting the summary hearing (OCSH) must inform them of this right upon finding that the person committed a service infraction.^{Footnote 72} The person found to have committed a service infraction must submit their application for review to a review authority (RA), which is an officer superior in matters of discipline to the officer who conducted their summary hearing (SH).^{Footnote 73}

4.1.3    Secondly, an RA may also initiate a review on their own initiative.^{Footnote 74}

4.2 Referral of review

4.2.1    An RA who is of the opinion that it would be inappropriate to act as an RA in a particular case having regard to the interests of military justice and discipline^{Footnote 75} must:

1. Refrain from making any determination in respect of the application for review; and
2. Refer the application for review to another officer who is superior in matters of discipline to the officer who conducted the SH.

4.3 Powers of review authorities

4.3.1    The powers and limitations of RAs in respect of reviewing a finding and any sanction imposed are set out below.

Reviewing a finding

4.3.2    When reviewing a finding, the RA may:

1. Leave the finding as it is and make no change;
2. Quash the finding; or
3. Quash the finding and substitute a new finding.

4.3.3    The review of a finding may be based on one or both of the following grounds: (1) the finding was invalidly made or (2) the finding cannot be supported by the evidence, including any new information as described in s 4.5.

4.3.4    An invalidly made finding is one that: arises from a hearing that did not conform to the applicable legal requirements, including those set out in the NDA, QR&O and those pertaining to procedural fairness; or one that is based on faulty legal analysis. A faulty legal analysis is one that does not accord with para 3.5.1; for example, if the officer who conducted the SH in determining whether or not a person charged committed a service infraction failed to consider whether the person charged took reasonable care and did not act negligently, or made an honest and reasonable mistake of fact. If an RA determines that a finding was not validly made or cannot be supported by the evidence, the finding must be quashed.

4.3.5    A finding that cannot be supported by the evidence is one that is made without an adequate factual foundation. An RA is to consider whether there are facts proved at the hearing sufficient to support the finding. The RA must not re-consider the interpretation of the facts found by the officer who conducted the SH.

4.3.6    If an RA determines that a finding was not validly made or cannot be supported by the evidence, the finding must be quashed. On the other hand, the RA has no authority to quash a finding that was validly made and is supported by the evidence. In other words, the RA may not quash a finding simply because they would not have proceeded with the charge if they had been the officer who conducted the SH.

The outcome of a quashed finding

4.3.7    When a finding is quashed, it is rendered void and treated as if never made.

4.3.8    A new finding may be substituted in place of the quashed finding only if, in accordance with NDA subsection (subs) 163.8(1) (Substitution of invalid or unsubstantiated findings), the new finding could validly have been made on the charge; and the new finding can be based on the facts the officer who conducted the SH was satisfied with at the hearing.^{Footnote 76}  In other words, the new finding must not be based on factual findings made by the RA separately from the facts the officer who conducted the SH was satisfied with. When a finding is substituted, in accordance with NDA subs 163.8(2) (Effect on sanction) the sanction may also need to be substituted.

4.3.9    When a finding is quashed but not substituted and no other findings remain, the sanction is also automatically quashed. A new SH may be held in relation to that service infraction as if the original hearing had not occurred.^{Footnote 77} When a finding is quashed and there are other findings that remain, the sanction may need to be substituted in accordance with NDA subs 163.7(3) (Effect of partial quashing).

Reviewing a sanction

4.3.10  The review of a sanction is based on the grounds that it is either invalid or too severe. An invalid sanction is one that did not conform to the applicable legal requirements, including those set out in the NDA, QR&O and those pertaining to procedural fairness; or one that is based on faulty legal analysis. A sanction is invalid when, for example, the sanction imposed was not within the sanctioning powers of the officer who conducted the SH, or when the person charged was not given appropriate procedural fairness.

4.3.11  If a sanction is found to be invalid, it may be substituted by any other sanction that the RA considers appropriate, as long as the new sanction is not higher in the scale of sanctions than the one that was originally imposed.^{Footnote 78}

4.3.12  A sanction may also be reviewed on the ground that it is too severe. A sanction may be considered too severe if it is of a much greater severity than the range of sanctions that would normally or reasonably be given for the same infraction in similar circumstances. The RA should exercise restraint in reviewing a sanction on the ground that it is too severe, as the RA may not be in a better position to assess the sanction than the officer who conducted the SH. Therefore, as a general rule, RAs should avoid disturbing a sanction on the ground that it is too severe unless it is clearly unreasonable.

4.3.13  In the event the RA determines the sanction was too severe, the RA may commute, mitigate or remit any or all of the sanctions imposed by an OCSH.^{Footnote 79}

4.3.14  Aside from when the RA determines that a sanction is invalid or too severe, the RA may not change a sanction unless the finding for which it was imposed has changed. In such cases, see paragraphs (paras) 4.4.8-4.4.9 and NDA sections (ss) 163.7-163.8.

Conclusion of review

4.3.15  Once the review has been completed, the RA must produce written reasons for their decision and provide a copy to the person found to have committed the infraction, their CO and the officer who conducted the SH. The written reasons must:

1. Address all issues identified in the application for review or in the reasons for initiating a review;
2. Identify any evidence relied upon by the RA in the conduct of the review; and
3. Explain the basis for the decisions made.

4.3.16  The RA must cause the written reasons and copies of their correspondence with the officer who conducted the SH and the person found to have committed the service infraction to be appended to the charge report.

4.4 Process

Information requirements

4.4.1    In the circumstances where the person charged is found to have committed a service infraction against a person or has caused a person to suffer physical or emotional harm, property damage or economic loss, the RA must ensure that person is informed that a review is to be conducted and then informed of the outcome of the review.

Assisting Member

4.4.2    An assisting member may assist, advise and make representations on behalf of the person found to have committed a service infraction throughout the review process.^{Footnote 80}

Review requested by the person found to have committed a service infraction

4.4.3    If the person found to have committed a service infraction seeks to exercise their right to a review of the finding and any sanction imposed at SH, the application for review must be submitted in writing to the RA within 14 days of receiving the written reasons in respect of the finding and any sanction imposed.^{Footnote 81} The application must state the grounds for the review and describe the evidence that supports those grounds.^{Footnote 82}

4.4.4    Upon receiving an application for review and confirming that they are an appropriate authority to conduct the review, the RA must, as soon as practicable, forward the application to the officer who conducted the SH and inform that officer and the person found to have committed a service infraction of the timelines relevant to the review.

Review initiated by review authority

4.4.5    An RA has the authority to undertake a review of a finding that a person committed a service infraction and any sanction imposed on their own initiative.^{Footnote 83} This may occur, for example, when a legal officer upon review of the documents placed on the Unit Registry of Disciplinary Proceedings advises of errors on the face of the charge report or of potential non-compliance with procedural requirements during the SH process.

4.4.6    Upon deciding to initiate a review and confirming that they are an appropriate authority to conduct the review, the RA must, as soon as practicable, forward the written reasons for initiating the review and the timelines relevant to the review to the officer who conducted the SH and to the person found to have committed a service infraction.

Responses and representations

4.4.7    The officer who conducted the SH may provide any response they have concerning the review, including in relation to each identified ground for review and to any other matter relevant to RA’s determination. Any response must be provided to both the RA and to the person found to have committed a service infraction within 7 days of receiving either the application or the reasons for initiating the review.

4.4.8    The person found to have committed a service infraction may respond to the response of the officer who conducted the SH, and in the case of a review initiated by the RA, may also provide representations. Any response and/or representations by the person found to have committed a service infraction must be provided to the RA within 7 days of receiving the response of the officer who conducted the SH, or within 14 days of receiving the RA’s reasons for initiating the review if the officer who conducted the SH does not provide any response.

4.4.9    If the officer who conducted the SH or the person found to have committed a service infraction requires more time to prepare their response or representations, the RA may grant a reasonable extension.

4.4.10  Within 14 days of receiving the response and/or representations from the person found to have committed a service infraction or upon expiry of the appropriate time limit for their response and/or representations to have been submitted, the RA must determine the review.

4.4.11  In accordance with QR&O para 124.02(2) (Review authorities), the RA must obtain legal advice prior to conducting a review. When determining a review, the RA must consider only the following:

1. The reasons for initiating the review;
2. The charge report and anything appended to the charge report in accordance with this policy;
3. The reasons furnished in accordance with QR&O para 122.09(4) (Decision and sanction); and
4. Any response provided by the officer who conducted the SH and any response or representations by the person found to have committed a service infraction, or the assisting member on their behalf.

4.5 New information

4.5.1    When an application for review contains information that was unknown at the time of the SH, the RA must determine whether the information is relevant. If the information is relevant, the RA must assess its impact upon the finding(s) in order to determine whether one or more findings must be quashed as a result. Once the review has been completed, the RA must explain in their decision any impact the new information has had on their decision, including any conclusion that the new information was not relevant and therefore had no impact.

4.5.2    When the RA determines that new information is relevant, the RA must then determine whether that information is relevant to the interests of any person in relation to whom a service infraction is found to have been committed or who has suffered physical or emotional harm, property damage or economic loss as a result of a service infraction. If the information is deemed relevant to them, the RA must give them a reasonable opportunity to provide representations, and in accordance with the principles of procedural fairness, the RA must also give the person found to have committed a service infraction a reasonable opportunity to provide further representations in response. If the new information is not relevant to the interests of any such person, the RA must follow the process for a review as set out at s 4.4 and para 4.5.1.

4.6  Mental health supports

4.6.1    When needed, mental health supports should also be made available throughout the review to those who are involved, including the person found to have committed a service infraction and any person against whom a service infraction was committed or who is alleged to have suffered physical or emotional harm, property damage or economic loss as a result of the 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.

4.7 Review authority’s administrative duties

4.7.1    Upon completion of the review, the RA must cause the charge report to be updated and cause it to be forwarded to the CO of the person found to have committed a service infraction along with the following documents:

1. The written reasons for the decision; and
2. The order concerning any decision made to quash, substitute, commute, mitigate or remit any finding, sanction, or part thereof under NDA ss 163.7 (Quashing of Findings), 163.8 (Substitution of Findings), 163.9 (Substitution of Sanctions) and 163.91 (Commutation, Mitigation and Remission of Sanctions).

4.7.2    The CO of the person found to have committed a service infraction must place the documents listed above on the Unit Registry of Disciplinary Proceedings and take any necessary action to give effect to the determination.

4.7.3    Should the RA quash or substitute a sanction of reduction in rank with another sanction, the National Defence Headquarters (Director General Military Careers) must be notified.

4.7.4    Should the sanction of deprivation of pay and allowances be substituted, commuted or remitted, any amount constituting an excessive deprivation from the pay account of the person found to have committed the service infraction as a result of the RA’s decision, must be restored.^{Footnote 84}