Military Justice at the Unit Level Policy
Chapter 4 – Review

Context

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

This chapter of the Military Justice at the Unit Level Policy (the Policy) 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 Chapter 124 (Review) of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) which provide a framework for reviewing the findings made and the sanctions imposed at a SH. This chapter addresses how a review can be initiated, who can act as a review authority (RA), the RA’s powers, and how the review is to be conducted.

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 132} The officer conducting the summary hearing (OCSH) must inform them of this right upon finding that the person committed a service infraction.^{Footnote 133} The person found to have committed a service infraction must submit their application for review to a RA, which is the next officer superior in matters of discipline to the officer who conducted their SH.^{Footnote 134}

4.1.3   Secondly, a RA may also initiate a review on their own initiative.^{Footnote 135} For example, this may occur when a legal officer, upon review of the documents placed on the Unit Registry of Disciplinary Proceedings, alerts a RA to the presence of a ground for review.

4.1.4   Mistakes on the face of the charge report, such as missing or inaccurate information, may not necessarily constitute a ground for review, and as such, may in some circumstances be remedied outside of the review process.

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4.2 Referral of review

4.2.1   A RA who is of the opinion that it would be inappropriate to act as a RA in a particular case having regard to the interests of military justice and discipline^{Footnote 136} 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 reviewing a sanction imposed are set out below.

Reviewing a finding

4.3.2   Upon completing a review of a finding, a RA has the authority to quash that finding.^{Footnote 137} The RA must quash a finding if the RA determines that one of the following grounds exist: (1) the finding was invalidly made or (2) the finding cannot be supported by the evidence presented at the SH and/or any new information as described at section (s) 4.5. If the RA determines that neither of these grounds exist, the RA must leave the finding as it is. The RA should consider first whether the finding was invalidly made, and only if the finding was validly made should the RA proceed to determine whether the evidence cannot support it.

4.3.3   An invalidly made finding is one that:

1. arises from a hearing that did not conform to the applicable legal requirements, including those set out in the NDA, QR&O and the common law governing administrative decisions; or
2. is based on faulty legal analysis. A faulty legal analysis is one that does not accord with para 3.5.2; 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 all reasonable care or made an honest and reasonable mistake of fact.

4.3.4   A finding that cannot be supported by the evidence is one that is made without an adequate factual foundation. A 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.

4.3.5   If a RA determines that a finding was not validly made or cannot be supported by the evidence, the RA may not leave the finding as it is. 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 arrived at the same finding as the officer who conducted the SH.

The effect of a quashed finding on sanctions

4.3.6   If a person was found to have committed only one service infraction at the SH and that finding is quashed by a RA, then every sanction imposed is automatically quashed.^{Footnote 138} If a person was found to have committed more than one service infraction at the SH and all of those findings are quashed by a RA, then every sanction imposed is also automatically quashed.^{Footnote 139} After the finding(s) and sanction(s) are quashed, they are rendered void and treated as if they were never made.

4.3.7   If a person was found to have committed more than one service infraction at the SH and one or more but not all findings are quashed by a RA, the RA must consider the appropriateness of the sanction(s) imposed at the SH. If the RA forms the opinion that the sanction(s) is unduly severe in respect of the remaining finding(s), the RA must substitute the sanction(s) with any new sanction(s) they consider appropriate.^{Footnote 140}

4.3.8   There remains the possibility that a new SH may be held in respect of the same service infraction(s) when all of the findings made at the SH are quashed by the RA.^{Footnote 141} However, the new SH still must be commenced within the six-month limitation period.^{Footnote 142} If a new SH is to be held, legal advice should be sought with respect to who may act as the OCSH.

Reviewing a sanction

4.3.9   The RA may modify a sanction if they make one of the following two determinations: (1) the sanction is invalid or (2) the sanction is too severe. If the RA determines that the sanction is neither invalid nor too severe, the RA must leave the sanction as it is. The RA should consider first whether the sanction is invalid, and only if the sanction is valid should the RA proceed to determining whether it is too severe.

4.3.10   An invalid sanction is one that:

1. did not conform to the applicable legal requirements, including those set out in the NDA, QR&O and the common law governing administrative decisions; or
2. 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, the RA may substitute 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 143}

4.3.12   An RA may also determine that a sanction is too severe. When considering whether a sanction is too severe, the RA must comply with the principles of sanctioning set out at NDA sections 162.91 (Fundamental principle) - 162.92 (Other principles), which in part require sanctions be proportionate to the gravity of the infraction and the degree of responsibility of the person found to have committed a service infraction. 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 this ground unless it is clearly or obviously too severe.

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 officer who conducted a SH.^{Footnote 144}

4.3.14   Aside from when the RA determines that a sanction is invalid or too severe, the RA must leave the sanction as it is, unless either the finding for which it was imposed has been quashed and no other finding remains; or another finding made at the same SH has been quashed. In such cases, see paragraphs (paras) 4.3.6-4.3.7 and NDA subsections 163.7(2) (Effect of complete quashing) - (3) (Effect of partial quashing).

4.4 Review process

4.4.1   In circumstances where the person charged committed a service infraction against a person or caused a person to suffer physical or emotional harm, property damage or economic loss as a result of the commission of a service infraction, the RA must ensure this person affected by a service infraction is informed that a review is to be conducted and then provided with a copy of the written reasons for the RA’s determination if requested (see paras 4.4.14-4.4.15).

4.4.2   An assisting member (AM) may assist, advise, and make representations on behalf of the person found to have committed a service infraction throughout the review process.^{Footnote 145}

4.4.3   In accordance with QR&O paragraph (para) 124.02(2) (Review Authorities), the RA must obtain legal advice prior to conducting a review. That is, the RA must obtain legal advice before considering any of the information listed at para 4.4.13.

Review initiated by application

4.4.4   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 (see figure 4.1), the person must apply in writing to the RA within 14 days of receiving the written reasons in respect of the finding and any sanction imposed.^{Footnote 146} The application must state the grounds for the review and describe the evidence that supports those grounds.^{Footnote 147}

4.4.5   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

4.4.6   A RA has the authority to conduct a review, on their own initiative, of a finding that a person committed a service infraction and any sanction imposed (see figure 4.2).^{Footnote 148}

4.4.7   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

4.4.8   The officer who conducted the SH may, upon receipt of the application for review or the written reasons for the RA’s initiated review, provide representations concerning the review, including in relation to the ground for review and any other matter relevant to the RA’s determination. Any representations must be provided to the RA within 7 days of receiving either the application or the reasons for initiating the review. The RA will then, within 3 days, forward the representations of the officer who conducted the SH to the person found to have committed a service infraction, or inform that person that no representations were provided by the officer who conducted the SH within the 7 days.

4.4.9   In respect of an application for review, if the officer who conducted the SH provides representations, the person found to have committed a service infraction may provide a response (to the representations of the officer who conducted the SH) to the RA within 7 days of receiving the representations of the officer who conducted the SH. If the officer who conducted the SH does not provide representations within 7 days (provided no extensions were granted; see para 4.4.11), there will be no further response from the person found to have committed a service infraction. In such cases, the RA must determine the outcome of the review within 21 days of the date on which the officer who conducted the SH received the application for review.

4.4.10   In respect of a review initiated by a RA, if the officer who conducted the SH provides representations, the person found to have committed a service infraction may provide both a response to the representations of the officer who conducted the SH, as well as any representations concerning the review itself. 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 representations of the officer who conducted the SH or of being informed that the officer who conducted the SH did not provide representations.

4.4.11  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.^{Footnote 149}

4.4.12   Within 14 days of receiving the response and/or representations from the person found to have committed a service infraction, or within 14 days of the expiry of the appropriate time limit, the RA must determine the outcome of the review.

4.4.13   When conducting 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);
4. Any representations 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 AM on their behalf; and
5. Any new information the RA determines is relevant to the review (see para 4.5.1).

Conclusion of review

4.4.14   Once the RA has determined the outcome of the review, the RA must record in writing the reasons for the determination.^{Footnote 150} A copy of the written reasons for the determination must be provided to the person found to have committed a service infraction, their Commanding Officer (CO), the officer who conducted the SH, and if requested, any person against whom a service infraction was committed, or who suffered physical or emotional harm, property damage or economic loss as a result of the commission of a service infraction. 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 determinations made.

4.4.15   Personal information, as defined in section 3 of the Privacy Act,^{Footnote 151} may only be included in the written reasons if it is necessary for the RA to meet the above requirements set out at para 4.4.14. When disclosing the written reasons to any person against whom a service infraction was committed, or who suffered physical or emotional harm, property damage or economic loss as a result of the commission of a service infraction, only the minimal amount of personal information that is required to fulfill the specific purpose may be disclosed.^{Footnote 152} The specific purpose of providing personal information to this person is to ensure they understand the basis for the determination of the RA. The RA 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.

4.4.16   The RA must cause the written reasons and copies of their correspondence with the following persons to be appended to the charge report:

1. The officer who conducted the SH;
2. The person found to have committed a service infraction; and
3. Any person against whom the service infraction is found to have been committed or who has suffered harm, damage or loss as a result of the commission of the service infraction.

4.5 New information

4.5.1   When a review is conducted, whether on application or initiated by a RA, and new information is brought to the attention of the RA, the RA must first determine whether the information is admissible.^{Footnote 153} Information is admissible when:

1. It could not reasonably have been presented during the SH;
2. It is relevant in that it bears upon a ground of review; and
3. If believed, it can reasonably be expected to affect the result of the review.

4.5.2   If the information is determined to be admissible, the information must be disclosed to the following persons (see figure 4.3):

1. The officer who conducted the SH;
2. Any person against whom a service infraction was committed or who has suffered physical or emotional harm, property damage or economic loss as a result of the commission of a service infraction, if the RA determines the new information is relevant to their interests; and
3. The person found to have committed a service infraction.

4.5.3   The officer who conducted the SH and any person against whom the service infraction is found to have been committed or who has suffered harm, damage or loss as a result of the commission of the service infraction both have 7 days to provide representations about the new information to the RA. The RA will then, within 3 days, forward the representations to the person found to have committed a service infraction, or inform that person that no representations were provided by either or both parties within the 7 days. Upon receipt of any such representations or notice, the person found to have committed a service infraction has 7 days to provide any response to the representations provided and/or any further representations to the RA.

4.5.4   In conducting the review, the RA must assess the impact of the new information on the finding(s) in order to determine whether one or more findings must be quashed as a result. Once the outcome of the review has been determined, the RA must explain in the written reasons any impact the new information has had on their decision, including any conclusion that the new information was not sufficient to result in the quashing of a finding. The RA must also explain in the written reasons why the new information was deemed either relevant or irrelevant to the interests of any person against whom the service infraction is found to have been committed or who has suffered harm, damage or loss as a result of the commission of the service infraction.^{Footnote 154}

4.5.5   The timelines for the review process when new information is introduced, as set out at figure 4.3, may vary depending on when the new information is received by the RA.

4.6 Mental health supports

4.6.1   When appropriate, mental health supports should also be made available throughout the review 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. 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.

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4.7  Review authority’s administrative duties

4.7.1   Upon completion of the review, the RA must cause Part 7 of the charge report to be completed and cause it and any appended documents, including the written reasons for the RA’s decision, to be forwarded to the CO of the person found to have committed a service infraction.

4.7.2   The CO of the person found to have committed a service infraction must place the completed charge report and any appended documents, including the written reasons of the RA, on the Unit Registry of Disciplinary Proceedings and take any necessary action to give effect to the determination.

4.7.3   If, upon review, a sanction of reduction in rank is quashed, substituted by a new sanction or commuted,^{Footnote 155} the National Defence Headquarters (Director General Military Careers) (only accessible on the Defence Wide Area Network) must be notified.

4.7.4   Should the sanction of deprivation of pay be quashed, substituted, commuted, mitigated or remitted,^{Footnote 156} only the deprivation (if any) set out in the new sanction imposed by the RA may be carried out, and any additional amount deducted from the pay account of the person found to have committed a service infraction from the previous sanction must be restored.^{Footnote 157}

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4.8  Judicial review

4.8.1   If dissatisfied with the decision of a RA, the person found to have committed a service infraction may make an application for judicial review by the Federal Court at their own expense, in accordance with the Federal Courts Act^{Footnote 158} and the Federal Courts Rules.^{Footnote 159} The person found to have committed a service infraction normally has 30 days from the date the decision of the RA was communicated to them to make their application for judicial review.^{Footnote 160}