QR&Os: Volume II - Chapter 108 Summary Proceedings

Official Format

Effective 1 August 2015, the official version of the QR&O is that published in PDF format on this website. In the event of any inconsistency between this consolidation and any printed or electronic copy, this consolidation prevails to the extent of the inconsistency. The HTML version on this website is provided solely for the convenience of readers. Any discrepancies between the HTML and the official PDF version should be reported to the DSCS, Corporate Secretary.

Amendment List:

  • 1 June 2014 – amended article: 108.20
  • 1 June 2014 – amended article: 108.24
  • 12 September 2008 – Amended Article: 108.06
  • 12 September 2008 – Amended Article: 108.12
  • 18 July 2008 – Amended Article: 108.05
  • 18 July 2008 – Amended Article: 108.06
  • 18 July 2008 – Amended Article: 108.12
  • 5 June 2008 – Amended Article: 108.07
  • 5 June 2008 – Amended Article: 108.10
  • 5 June 2008 – Amended Article: 108.13
  • 5 June 2008 – Amended Article: 108.16
  • 5 June 2008 – Amended Article: 108.20
  • 5 June 2008 – Amended Article: 108.21
  • 5 June 2008 – Amended Article: 108.24
  • 5 June 2008 – Amended Article: 108.25
  • 5 June 2008 – Amended Article: 108.35
  • 5 June 2008 – Amended Article: 108.36
  • 5 June 2008 – Amended Article: 108.37
  • 5 June 2008 – Amended Article: 108.45

History:

Section 1 – Introduction

108.01 – APPLICATION

This chapter applies in respect of summary proceedings conducted by a delegated officer, commanding officer or superior commander.

(G) [P.C. 1997-1584 effective 30 November 1997]

108.02 – PURPOSE

The purpose of summary proceedings is to provide prompt but fair justice in respect of minor service offences and to contribute to the maintenance of military discipline and efficiency, in Canada and abroad, in time of peace or armed conflict.

(G) [P.C. 1997-1584 effective 30 November 1997]

108.03 – DEFINITIONS

In this chapter,

"assisting officer" (officier désigné pour aider l'accusé)
means an officer or a non-commissioned member who has been appointed to assist an accused pursuant to article 108.14 (Assistance to Accused); and
"delegated officer" (officier délégué)
means an officer to whom a commanding officer has delegated powers of trial and punishment pursuant to subsection 163(4) of the National Defence Act (see article 108.10 – Delegation of a Commanding Officer's Powers).

(G) [P.C. 1997-1584 effective 30 November 1997]

108.04 – SUMMARY TRIAL – NON-INTERVENTION BY SUPERIOR AUTHORITY

The conduct of the proceedings of a summary trial is the sole responsibility of the officer presiding at the trial and no superior authority shall intervene in the proceedings.

(G) [P.C. 1997-1584 effective 30 November 1997]

108.05 – JURISDICTION – LIMITATION PERIOD

Section 69 of the National Defence Act provides

"69. (1) A person who is subject to the Code of Service Discipline at the time of the alleged commission of a service offence may be charged, dealt with and tried at any time under the Code.

(2) Despite subsection (1), if the service offence is punishable under section 130 or 132 and the act or omission that constitutes the service offence would have been subject to a limitation period had it been dealt with other than under the Code, then that limitation period applies."

(C) [18 July 2008]

NOTES

(A) A summary trial begins once paragraphs (1) and (2) of article 108.20 (Procedure) have been complied with.

(B) The following two civil offences that a presiding officer may try by summary trial are subject to a six-month limitation period under paragraph 69(a) of the National Defence Act (see articles 108.07 – Jurisdiction – Offences and 108.125 – Jurisdiction – Offences):

  1. possession of a substance contrary to subsection 4(1) of the Controlled Drugs and Substances Act where the subject-matter of the offence is a substance described in subsection 4(5) of that Act and does not exceed 1 gram in the case of Cannabis resin or 30 grams in the case of Cannabis (marihuana); and
  2. taking of a motor vehicle or vessel without consent contrary to section 335 of the Criminal Code.

All other offences that a presiding officer may try by summary trial are subject to a one-year limitation period under paragraph 69(b) of the National Defence Act.

(C) [27 July 2000]


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Section 2 – Jurisdiction of Commanding Officers

108.06 – JURISDICTION OF COMMANDING OFFICER TO TRY ACCUSED PERSON

Subsections 163(1) and (1.1) of the National Defence Act provide

"163. (1) A commanding officer may try an accused person by summary trial if all of the following conditions are satisfied:

  1. the accused person is either an officer cadet or a non-commissioned member below the rank of warrant officer;
  2. having regard to the gravity of the offence, the commanding officer considers that his or her powers of punishment are adequate;
  3. if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;
  4. the offence is not one that, according to regulations made by the Governor in Council, the commanding officer is precluded from trying; and
  5. the commanding officer does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.

(1.1) A commanding officer may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed."

(C) [18 July 2008; 12 September 2008]

108.07 – JURISDICTION – OFFENCES

(1) A commanding officer may try an accused person by summary trial in respect of the offences set out in paragraphs (2) and (3).

(2) The offences under the National Defence Act that a commanding officer may try by summary trial are those contrary to the following provisions:

  • 83 (Disobedience of Lawful Command),
  • 84 (Striking or Offering Violence to a Superior Officer),
  • 85 (Insubordinate Behaviour),
  • 86 (Quarrels and Disturbances),
  • 87 (Resisting or Escaping from Arrest or Custody),
  • 89 (Connivance at Desertion),
  • 90 (Absence Without Leave),
  • 91 (False Statement in Respect of Leave),
  • 93 (Cruel or Disgraceful Conduct),
  • 95 (Abuse of Subordinates),
  • 96 (Making False Accusations or Statements or Suppressing Facts),
  • 97 (Drunkenness),
  • 98 (Malingering or Maiming),
  • 99 (Detaining Unnecessarily or Failing to Bring Up for Investigation),
  • 100 (Setting Free Without Authority or Allowing or Assisting Escape),
  • 101 (Escape from Custody),
  • 101.1 (Failure to Comply with Conditions), (1 September 1999)
  • 102 (Hindering Arrest or Confinement or Withholding Assistance When Called on),
  • 103 (Withholding Delivery Over or Assistance to Civil Power),
  • 106 (Disobedience of Captain's Orders – Ships),
  • 107 (Wrongful Acts in Relation to Aircraft or Aircraft Material),
  • 108 (Signing Inaccurate Certificate),
  • 109 (Low Flying),
  • 110 (Disobedience of Captain's Orders – Aircraft)
  • 111 (Improper Driving of Vehicles),
  • 112 (Improper Use of Vehicles),
  • 113 (Causing Fires),
  • 114 (Stealing),
  • 115 (Receiving),
  • 116 (Destruction, Damage, Loss or Improper Disposal),
  • 117 (Miscellaneous Offences),
  • 118 (Contempt of Service Tribunals),
  • 118.1 (Failure to Appear or Attend), (1 September 1999)
  • 120 (Offences in Relation to Billeting),
  • 122 (False Answer or False Information on Enrolment), (5 June 2008)
  • 123 (Assisting Unlawful Enrolment), (5 June 2008)
  • 125 (Offences in Relation to Documents), (5 June 2008)
  • 126 (Refusing Immunization, Tests, Blood Examination or Treatment),
  • 127 (Negligent Handling of Dangerous Substances),
  • 129 (Conduct to the Prejudice of Good Order and Discipline), subject to paragraph (4) of this article,
  • 130 (Service Trial of Civil Offences), but only in respect of a civil offence referred to in paragraph (3) of this article.

(3) The civil offences punishable under section 130 of the National Defence Act that a commanding officer may try by summary trial are those contrary to the following provisions of the Criminal Code and the Controlled Drugs and Substances Act:

  1. in respect of the Criminal Code (Revised Statutes of Canada, 1985, Chapter C-46):
    • 129 (Offences Relating to Public or Peace Officer),
    • 266 (Assault),
    • 267 (Assault with a Weapon or Causing Bodily Harm),
    • 270 (Assaulting a Peace Officer),
    • 334 (Punishment for Theft), where the value of what is stolen does not exceed five thousand dollars,
    • 335 (Taking Motor Vehicle or Vessel Without Consent),
    • 430 (Mischief), except mischief that causes actual danger to life,
    • 437 (False Alarm of Fire); and
  2. in respect of the Controlled Drugs and Substances Act (Statutes of Canada, 1996, Chapter 19):
  • 4(1) (Possession of Substance).

(4) A commanding officer may only try an accused person, pursuant to section 129 of the National Defence Act, as a party to an offence or in respect of an attempt to commit an offence, where the offence is referred to in paragraph (2) or (3) of this article.

(G) [P.C. 2008-1015 effective 5 June 2008]

[108.08 – repealed by P.C. 1999-1305 of 8 July 1999 effective 1 September 1999]

108.09 – LIMITATION ON JURISDICTION – INVESTIGATIONS, SEARCH WARRANTS AND CHARGES

Subsection 163(2) of the National Defence Act provides:

"163. (2) Unless it is not practical, having regard to all the circumstances, for any other commanding officer to conduct the summary trial, a commanding officer may not preside at the summary trial of a person charged with an offence if

  1. the commanding officer carried out or directly supervised the investigation of the offence;
  2. the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the commanding officer; or
  3. the commanding officer laid the charge or caused it to be laid."

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTE

The limitations in this article also apply to an officer to whom a commanding officer has delegated summary trial powers.

(C) [1 September 1999]


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Section 3 – Delegation of Commanding Officer's Powers

108.10 – DELEGATION OF A COMMANDING OFFICER'S POWERS

(1) Subsection 163(4) of the National Defence Act provides:

"163. (4) A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer deems fit, delegate powers to try an accused person by summary trial to any officer under the commanding officer's command, but an officer to whom powers are delegated may not be authorized to impose punishments other than the following:

  1. detention not exceeding fourteen days;
  2. severe reprimand;
  3. reprimand;
  4. a fine not exceeding basic pay for fifteen days; and
  5. minor punishments."

(1 September 1999)

(2) Delegation of powers of trial and punishment by a commanding officer pursuant to subsection 163(4) of the National Defence Act is subject to the following limitations:

  1. a commanding officer may not delegate his powers of trial and punishment to an officer who:
    1. has not been trained, in accordance with a curriculum established by the Judge Advocate General, and certified by the Judge Advocate General as being qualified to perform the duties of a delegated officer, or (1 April 2000)
    2. is below the rank of captain;
  2. a commanding officer may only delegate powers of trial and punishment in respect of officer cadets and non-commissioned members below the rank of warrant officer; and (5 June 2008)
  3. a commanding officer may not delegate powers of trial and punishment in respect of the civil offences referred to in paragraph (3) of article 108.07 (Jurisdiction – Offences).

(3) Powers of trial and punishment shall be delegated in writing and the delegated officer shall be identified by name or by reference to the officer's appointment or the duties the officer performs.

(G) [P.C. 2008-1015 effective 5 June 2008]

NOTES

(A) The punishments that may be imposed by a delegated officer under this article are further limited pursuant to section 147 of the National Defence Act. The maximum punishments that may be imposed are contained in the table to article 108.25 (Powers of Punishment of a Delegated Officer).

(B) If provided for in the commanding officer's delegation of summary trial authority, a delegated officer has jurisdiction in respect of an officer cadet or non-commissioned member who is not a member of, but who is present at, the unit to which the delegated officer belongs. If the trial of an officer cadet or non-commissioned member of another unit can be held just as conveniently by the commanding officer of the officer cadet or non-commissioned member or by the commanding officer of the unit at which the officer cadet or non-commissioned member is present, a delegated officer should not exercise jurisdiction. (5 June 2008)

(C) [5 June 2008]

108.11 – TRIAL IN FIRST INSTANCE BY COMMANDING OFFICER

Nothing in this section precludes a commanding officer from trying an accused who has not previously been dealt with by a delegated officer.

(G) [P.C. 1997-1584 effective 30 November 1997]


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Section 4 – Jurisdiction of Superior Commanders

108.12 – JURISDICTION OF SUPERIOR COMMANDER TO TRY ACCUSED PERSON

Subsections 164(1) and (1.1) of the National Defence Act provide

"164. (1) A superior commander may try an accused person by summary trial if all of the following conditions are satisfied:

  1. the accused person is an officer below the rank of lieutenant-colonel or a non-commissioned member above the rank of sergeant;
  2. having regard to the gravity of the offence, the superior commander considers that his or her powers of punishment are adequate;
  3. if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;
  4. the offence is not one that, according to regulations made by the Governor in Council, the superior commander is precluded from trying; and
  5. the superior commander does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.

(1.1) A superior commander may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed."

(C) [18 July 2008; 12 September 2008]

NOTES

(A) Under section 162.3 of the National Defence Act, superior commanders are defined as officers of the rank of brigadier-general or above and officers appointed by the Chief of the Defence Staff. The Chief of the Defence Staff has appointed, pursuant to section 162.3 of the National Defence Act, the following categories of officers to be superior commanders:

  1. officers, other than general officers, commanding a formation, including base commanders not below the rank of lieutenant-colonel, and commanders of squadrons of Her Majesty's Canadian Ships; and (27 July 2000)
  2. commanding officers of Her Majesty's Canadian Ships who do not have a superior commander on board or in company with the ship.

Individual officers may be appointed as superior commanders where it is necessary for a particular military operation such as a peacekeeping mission. Details of individual appointments are available from the Office of the Judge Advocate General. Pursuant to the definition of "commanding officer" contained in article 101.01 (Meaning of "Commanding Officer"), executive officers of ships that do not have a superior commander on board or in company with the ship are commanding officers for the purpose of proceedings under the Code of Service Discipline against a non-commissioned member above the rank of sergeant or an officer below the rank of major.

(B) A superior commander may exercise summary trial jurisdiction where a charge has been referred to the superior commander by a commanding officer or another superior commander. For the procedures to refer charges to a superior commander, see Section 6 – Pre-Trial Procedures.

(C) [27 July 2000]

108.125 – JURISDICTION – OFFENCES

A superior commander may try an accused person by summary trial in respect of the offences set out in paragraphs (2) and (3) of article 108.07 (Jurisdiction – Offences).

(G) [P.C. 1999-1305 effective 1 September 1999]

108.13 – LIMITATION ON JURISDICTION – INVESTIGATIONS, SEARCH WARRANTS AND CHARGES

Subsection 164(2) of the National Defence Act provides:

"164. (2) Unless it is not practical, having regard to all the circumstances, for any other superior commander to conduct the summary trial, a superior commander may not preside at the summary trial of a person charged with an offence if

  1. the superior commander carried out or directly supervised the investigation of the offence;
  2. the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the superior commander as a commanding officer; or
  3. the superior commander laid the charge or caused to be laid."

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTE

While a superior commander has the jurisdiction to try an officer cadet, the superior commander should not normally do so given that a commanding officer or delegated officer has adequate jurisdiction to conduct such a trial.

(C) [5 June 2008]


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Section 5 – Provision of Assistance and Information To Accused

108.14 – ASSISTANCE TO ACCUSED

(1) As soon as possible after a charge has been laid (see article 107.015Meaning of "Charge"), an officer or, in exceptional circumstances, a non-commissioned member above the rank of sergeant shall be appointed by or under the authority of the commanding officer to assist the accused. (1 September 1999)

(2) Where the assisting officer is unable or unwilling to continue to assist the accused, a new assisting officer shall be appointed.

(3) The accused may request that a particular person be appointed as the assisting officer and the request shall be complied with if:

  1. the exigencies of the service permit; and
  2. the person requested is willing to act in that capacity.

(4) The assisting officer shall, to the extent desired by the accused,

  1. assist in the preparation of the accused's case and advise the accused regarding witnesses, evidence and any other matter relating to the charge or trial; and
  2. assist and speak for the accused during the trial.

(5) Before the accused makes an election under article 108.17 (Election To Be Tried by Court Martial), the assisting officer shall, ensure that the accused is aware of:

  1. the nature and gravity of any offence with which the accused has been charged; and
  2. the differences between trial by court martial and trial by summary trial, including the differences between
    1. the powers of punishment of a court martial and a summary trial,
    2. the accused's rights to representation at a court martial and assistance at a summary trial,
    3. the rules governing reception of evidence at a court martial and a summary trial, and
    4. the accused's right to appeal the finding and sentence of a court martial and to make a request for review of a summary trial.

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTES

(A) The exceptional circumstances referred to in paragraph (1) of this article include cases where no eligible officer could act as the assisting officer due to the exigencies of the service. For example, the exigencies of the service would not permit a person to act as an assisting officer when requested to do so by the accused where that person:

  1. is absent from the unit on duty; or
  2. is unavailable due to the requirement to perform other duties of an essential nature.

(B) An accused person does not have a right to be represented by legal counsel at a summary trial. However, if an accused requests such representation, the officer having summary trial jurisdiction has the discretion to:

  1. permit representation by legal counsel;
  2. proceed without representation by legal counsel; or
  3. apply for disposal of the charges against the accused by a court martial.

(C) In the exercise of the discretion referred to in Note (B) of this article, the officer having summary trial jurisdiction should consider at least the following:

  1. the nature of the offence;
  2. the complexity of the offence;
  3. the interests of justice;
  4. the interests of the accused; and
  5. the exigencies of the service.

An officer having summary trial jurisdiction who is considering the exercise of the discretion to permit representation by legal counsel should consult with a representative of the Judge Advocate General.

(D) The guide titled "The Election To Be Tried by Summary Trial or Court Martial – Guide to Accused and Assisting Officers" describes, in a general way, the jurisdiction of certain officers to conduct summary trials, the charging process, the role of the assisting officer, the process for the provision of information to accused and the election process. This guide places the election to be tried by court martial in its procedural context and provides a convenient summary of the differences between summary trials and courts martial so that service members are in a position to make an informed election. The guide is generally available within all units. If there is difficulty in obtaining the guide, the nearest office of the Judge Advocate General should be contacted.

(C) [30 November 1997]

108.15 – PROVISION OF INFORMATION TO ACCUSED

(1) An officer having powers of summary trial who intends to dispose of a charge against an accused by summary trial shall ensure that the accused and the assisting officer are provided with a copy of, or given access to, any information that

  1. is to be relied on as evidence at the summary trial; or
  2. tends to show that the accused did not commit the offence charged.

(2) The information shall be made available in sufficient time to permit the accused to consider it

  1. in making an election pursuant to article 108.17 (Election to be Tried by Court Martial); and
  2. in properly preparing the accused's case prior to the summary trial.

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTES

(A) An officer having powers of summary trial will have made a decision to proceed by summary trial once it has been determined that the matters set out in subparagraph (1)(a) of article 108.16 (Pre-Trial Determinations) do not preclude the officer from conducting the trial. In many cases, the officer will need to take the additional step of determining if disposal by summary trial is precluded by an election to be tried by court martial pursuant to article 108.17 (Election To Be Tried by Court Martial).

(B) Examples of the kind of information that could be provided to the accused and his assisting officer would include:

  1. a copy of any statement made by the accused;
  2. a copy of any documentary evidence;
  3. a copy of any written statement made by a witness; and
  4. a copy of any unit or military police investigation report made pursuant to article 106.02 (Investigation Before Charges Laid) or, where applicable, the relevant portions of the report.

In the case of physical evidence, such as clothing or a watch, and certain kinds of recordings, access to the evidence should be given. In the case of a military police report dealing with more than one individual or events not forming the basis of the charge to be heard, the accused would be provided with those portions of the report containing the information that would be relied on at the summary trial or that would tend to show that the accused did not commit the offence.

(C) The operation of this article is intended to ensure that the accused is provided with the information referred to in paragraph (1) of this article, in a timely fashion. In this respect, it must be appreciated that in most cases the commencement of the summary trial or, where applicable, compliance with paragraph (2) of article 108.17 (Election to be Tried by Court Martial), will occur without any significant delay, once the decision to dispose of a charge against an accused by summary trial has been made. This is in keeping with the purpose of summary proceedings and the requirement to deal with charges as expeditiously as the circumstances permit (see articles 108.02 – Purpose and 107.08 – Duty to Act Expeditiously). However, in rare cases, there may be a delay in proceeding, such as where a critical witness is unavailable to testify due to illness or injury. In this respect, it should be noted that nothing in this article would prevent an officer having powers of summary trial from complying with an accused's request to be provided with the requisite information before it becomes necessary to do so under this article, where it is reasonably practical to do so.

(D) Part 2 of the Record of Disciplinary Proceedings (see article 107.07Form of Record of Disciplinary Proceedings) requires that a list of all information provided to the accused in accordance with this article be attached to the Record of Disciplinary Proceedings. The list of information provided to the accused should be in the following form:

INFORMATION PROVIDED IN ACCORDANCE WITH ARTICLE 108.15

(service number, rank, name and unit)

(To be attached to RDP and provided to the accused)

  1. Investigation reports, witness statements or other information made available to the accused: _____
  2. Witnesses to be presented at summary trial: _____
  3. Documentary and real evidence to be presented at summary trial: _____

Information provided to accused on (date) by (date) (name, rank and position).

(signature)

(E) The following is an example of a list of information to be attached to the Record of Disciplinary Proceedings pursuant to article 107.07 (Form of Record of Disciplinary Proceedings):

INFORMATION PROVIDED IN ACCORDANCE WITH ARTICLE 108.15

C34 567 890 Sergeant Green D.E., RCD

(To be attached to the RDP and provided to the accused)

I. Investigation reports, witness statements or other information made available to the accused:

Investigation Report: MPIR CFBP 910-23-99 dated 23 August 1999
Investigation Report: MPIR CFBP 910-24-99 dated 24 August 1999

II. Witnesses to be presented at summary trial:

B98 765 432 Capt Johns (21A)
H44 555 666 Sgt D. Joyce (011)
A11 222 333 Sgt A. Anderson (831)
K11 222 666 Cpl J.P. Bouchard (811)
A23 456 789 Cpl B. Jackson (011)

III. Documentary and real evidence to be presented at summary trial:

Cautioned statement provided to the Military Police by C34 567 890 Sergeant Green
Dated 19 August 1999

Information provided to accused on 1 Sep 99 by CWO Gagnon, RSM, RCD.

A.B. Gagnon
CWO
RSM
RCD
999-8888

(C) [1 September 1999 – Notes (B)(iv), (C), (D) and (E)]


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Section 6 – Pre-Trial Procedures

108.16 – PRE-TRIAL DETERMINATIONS

(1) Before commencing a summary trial, an officer having summary trial jurisdiction shall:

  1. determine if he is precluded from trying the accused because
    1. of the accused's rank or status,
    2. the officer's power to try the offence is limited pursuant to articles 108.05 (Jurisdiction – Limitation Period) 108.07 (Jurisdiction – Offences), 108.09 (Limitation on Jurisdiction – Investigations, Search Warrants and Charges), 108.10 (Delegation of a Commanding Officer's Powers), 108.125 (Jurisdiction – Offences) or 108.13 (Limitation on Jurisdiction – Investigations, Search Warrants and Charges), (1 September 1999)
    3. the officer's powers of punishment are inadequate having regard to the gravity of the alleged offence,
    4. there are reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the alleged offence (see Chapter 119Mental Disorder), or
    5. it would be inappropriate for the officer to try the case having regard to the interests of justice and discipline; and
  2. determine, after complying with article 108.17 (Election to be tried by Court Martial), if he is precluded from trying the accused because the accused has elected to be tried by court martial. (1 September 1999)

(2) Where the officer has determined that he is not precluded from trying the accused, he shall proceed with the trial as prescribed in section 7 (Procedure, Reception of Evidence and Powers of Punishment).

(3) Where the officer has determined that he is precluded from trying the accused, he shall not commence the trial but shall:

  1. if the officer is a delegated officer, refer the charge to the commanding officer or, where appropriate, to another delegated officer;
  2. if the officer is a commanding officer, refer the charge to a superior commander, to a referral authority (see Chapter 109Application to Referral Authority for Disposal of a Charge) or, where appropriate, to another commanding officer;
  3. if the officer is a superior commander who is not a referral authority, refer the charge to a referral authority (see Chapter 109) or, where appropriate, to another superior commander; or
  4. if the officer is a superior commander who is a referral authority, refer the charge to the Director of Military Prosecutions (see Chapter 109) or, where appropriate, to another superior commander.

(1 September 1999)

(4) The accused and the accused's assisting officer shall be notified of any action taken pursuant to paragraph (3).

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTES

(A) An accused may, pursuant to the Official Languages Act (Revised Statutes of Canada, 1985, Chapter 31 (4th Supp.)), choose to have his summary trial conducted in either English or French. An officer exercising summary trial jurisdiction must be able to understand the official language in which the proceedings are to be conducted without the assistance of an interpreter. Consequently, when deciding how to dispose of charges, an officer exercising summary trial jurisdiction must satisfy himself that he has the required language ability to conduct the summary trial. If the officer determines that he does not have the required language ability, the officer should, in accordance with paragraph (3) of this article, refer the charge to another officer who has the required language ability.

(B) A commanding officer has jurisdiction in respect of an officer cadet or non-commissioned member who is not a member of, but who is present at, the unit. In these circumstances, depending on the delegation made under subsection 163(4) of the National Defence Act (see article 108.10Delegation of a Commanding Officer's Powers), a delegated officer may also have jurisdiction over the officer cadet or non-commissioned member. If the trial of an officer cadet or non-commissioned member of another unit can be held just as conveniently by the commanding officer of the officer cadet or non-commissioned member, the charge should be referred to that commanding officer. (5 June 2008)

(C) Where a charge is referred to another commanding officer, the accused must be sent to that commanding officer's unit before that commanding officer would have jurisdiction (see sub-subparagraph (1)(b)(i) of article 101.01 – Meaning of "Commanding Officer").

(C) [5 June 2008]

108.17 – ELECTION TO BE TRIED BY COURT MARTIAL

(1) An accused person triable by summary trial in respect of a service offence has the right to be tried by court martial unless:

  1. the offence is contrary to one of the following provisions of the National Defence Act:
    • 85 (Insubordinate Behaviour),
    • 86 (Quarrels and Disturbances),
    • 90 (Absence Without Leave),
    • 97 (Drunkenness),
    • 129 (Conduct to the Prejudice of Good Order and Discipline), but only where the offence relates to military training, maintenance of personal equipment, quarters or work space, or dress and deportment; and
  2. the circumstances surrounding the commission of the offence are sufficiently minor in nature that the officer exercising summary trial jurisdiction over the accused concludes that a punishment of detention, reduction in rank or a fine in excess of 25 per cent of monthly basic pay would not be warranted if the accused were found guilty of the offence.

(2) Where the accused has the right to be tried by court martial, the officer exercising summary trial jurisdiction shall, before commencing a summary trial, cause the accused to be informed of that right and given a reasonable period of time, that shall be in any case not less than 24 hours, to:

  1. decide whether to elect to be tried by court martial;
  2. consult legal counsel with respect to the election (see article 108.18 – Opportunity to Contact Legal Counsel on Election); and
  3. make his decision known in the manner stipulated by the officer exercising summary trial jurisdiction.

(3) The accused shall in writing confirm his election and that he:

  1. has discussed the matters set out in paragraph (5) of article 108.14 (Assistance to Accused) with his assisting officer; and
  2. has had an opportunity to consult legal counsel in respect of the election.

(4) Where the accused refuses to make an election, that refusal shall be treated as an election to be tried by court martial and the accused shall be so informed.

(5) The accused may withdraw an election to be tried by court martial:

  1. at any time prior to the Director of Military Prosecutions preferring a charge to be tried by court martial; and
  2. with the consent of the Director of Military Prosecutions, at any time after the Director of Military Prosecutions has preferred a charge to be tried by court martial but prior to the commencement of the trial.

(1 September 1999)

(6) A commanding officer or superior commander who has commenced a summary trial in respect of an accused who does not at the commencement of the trial have the right to be tried by court martial pursuant to paragraph (1), shall comply with the procedure set out in paragraph (2), if at any time during the trial prior to a finding of guilty or not guilty the officer concludes that a punishment of detention, reduction in rank or a fine in excess of 25 per cent of monthly basic pay would be appropriate, if the accused were found guilty of the offence.

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTES

(A) A delegated officer will never have to apply subparagraph (1)(b) of this article to determine if he can try an accused without giving the election because a delegated officer is not empowered to impose a punishment of detention, reduction in rank or a fine in excess of 25 per cent of monthly basic pay.

(B) The guide titled "The Election To Be Tried by Summary Trial or Court Martial – Guide for Accused and Assisting Officers" describes, in a general way, the jurisdiction of certain officers to conduct summary trials, the charging process, the role of the assisting officer, the process for the provision of information to accused and the election process. This guide places the election to be tried by court martial in its procedural context and provides a convenient summary of the differences between summary trials and courts martial so that service members are in a position to make an informed election. The guide is generally available within all units. If there is difficulty in obtaining the guide, the nearest office of the Judge Advocate General should be contacted.

(C) [30 November 1997]

108.18 – OPPORTUNITY TO CONSULT LEGAL COUNSEL ON ELECTION

(1) An officer exercising summary trial jurisdiction shall ensure that an accused making an election pursuant to article 108.17 (Election To Be Tried by Court Martial) is provided with a reasonable opportunity, during the period given to make the election, to consult with legal counsel with respect to the making of the election.

(2) Where a legal officer is consulted pursuant to paragraph (1), it shall be at no expense to the accused.

(G) [P.C. 1997-1584 effective 30 November 1997]

NOTES

(A) The purpose of this article is to enhance the accused's ability to make an informed choice between trial by court martial and trial by summary trial. The article supplements the advice provided by the assisting officer pursuant to paragraph (5) of article 108.14 (Assistance to Accused).

(B) The opportunity to contact legal counsel must be a reasonable one. What is reasonable will depend on the circumstances, in particular, the operational posture of the unit. However, it will be rare when an accused cannot be put in private communication with legal counsel by telephone.

(C) Legal officers who have been tasked to provide this service will be available, normally by telephone, at no expense to the accused. The accused may choose to consult with civilian legal counsel at his own expense.

(C) [30 November 1997]

108.19 – ACTION BY COMMANDING OFFICER WHERE CHARGE REFERRED BY DELEGATED OFFICER

(1) Where a charge is referred to a commanding officer by a delegated officer because the accused has elected to be tried by court martial, the commanding officer may:

  1. not proceed with the charge if, in the commanding officer's opinion, the charge should not be proceeded with (see Chapter 107, Section 3 – Pre-trial Procedures); or
  2. refer the charge to a referral authority (see Chapter 107, Section 3, Chapter 109 – Application to Referral Authority for Disposal of a Charge and article 107.10 – Appointment of Legal Counsel – Accused Unfit to Stand Trial).

(2) Where a charge is referred to a commanding officer by a delegated officer for a reason other than a reason referred to in paragraph (1), the commanding officer may:

  1. not proceed with the charge if, in the commanding officer's opinion, the charge should not be proceeded with (see Chapter 107, Section 3);
  2. refer the charge back to the delegated officer or to another delegated officer for trial (see Chapter 107, Section 3);
  3. try the accused if empowered to do so (see article 108.06 – Jurisdiction of Commanding Officer to Try Accused) and, in the commanding officer's opinion, it would be appropriate to do so (see Chapter 107, Section 3 and article 108.16 – Pre-trial Determinations);
  4. refer the charge to a superior commander or, where appropriate, to another commanding officer (see Chapter 107, Section 3); or
  5. refer the charge to a referral authority (see Chapter 107, Section 3 and Chapter 109).

(G) [P.C. 1999-1305 effective 1 September 1999]

108.195 – ACTION BY SUPERIOR COMMANDER WHERE CHARGE REFERRED BY COMMANDING OFFICER

Where a charge is referred to a superior commander by a commanding officer, the superior commander may:

  1. not proceed with the charge if, in the superior commander's opinion, the charge should not be proceeded with (see Chapter 107, Section 3 – Pre-Trial Procedures);
  2. where the accused is a non-commissioned member below the rank of warrant officer, refer the charge back to the commanding officer or to another commanding officer with directions to proceed with a summary trial, unless the accused has elected to be tried by court martial (see Chapter 107, Section 3);
  3. try the accused if empowered to do so (see article 108.12 – Jurisdiction of Superior Commander to Try Accused) and, in the superior commander's opinion, it would be appropriate to do so (see Chapter 107, Section 3 and article 108.16 – Pre-trial Determinations);
  4. if the superior commander is not a referral authority, refer the charge to a referral authority or, where appropriate, to another superior commander (see Chapter 107, Section 3 and Chapter 109 – Application to Referral Authority for Disposal of a Charge); or
  5. if the superior commander is a referral authority, refer the charge to the Director of Military Prosecutions or, where appropriate, to another superior commander (see Chapter 109).

(G) [P.C. 1999-1305 effective 1 September 1999]


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Section 7 – Procedure, Reception of Evidence and Powers of Punishment

108.20 – PROCEDURE

(1) At the commencement of a summary trial, the accused, accompanied by the assisting officer, shall be brought before the officer presiding at the trial.

(2) The presiding officer shall take the oath set out in article 108.27 (Oath to be Taken by Officer Authorized to Preside at Summary Trial) and cause the charges to be read.

(3) Prior to receiving any evidence, the presiding officer shall

  1. confirm with the assisting officer that he or she has ensured that the accused was made aware of the matters contained in paragraph 108.14(5) (Assistance to Accused) prior to making an election under article 108.17 (Election to be Tried by Court Martial);
  2. ask whether the accused requires more time to prepare the accused's case and grant any reasonable adjournment requested for that purpose; and
  3. ask whether the accused wishes to admit any of the particulars of any charge.

(5 June 2008)

(4) The presiding officer shall hear the evidence against the accused and, during the presentation of the evidence, the accused and the presiding officer may question each witness. (1 September 1999)

(5) After the presiding officer has heard the evidence against the accused, the accused may present evidence and testify and, during the presentation of the evidence, the accused and the presiding officer may question each witness, including the accused if the accused chooses to testify.

(6) After the evidence on behalf of the accused has been heard, the accused may make representations concerning the evidence received during the trial.

(7) The presiding officer shall consider the evidence received and the representations of the accused and shall determine whether it has been proved beyond a reasonable doubt that the accused committed the offence charged or any other offence of which the accused may be found guilty on that charge (see note (D)).

(8) After consideration of the evidence received and the representations of the accused, the presiding officer shall pronounce the finding in respect of each charge and, where the presiding officer pronounces a finding of guilty other than on the offence charged, inform the accused of that finding.

(9) Where offences have been charged in the alternative and the accused has been found guilty of one of the alternative charges, the presiding officer shall pronounce the finding of guilty in respect of that charge and direct that the proceedings be stayed on any alternative charge.

(10) Where the presiding officer has found the accused guilty in respect of any charge, the presiding officer shall receive any evidence concerning the appropriate sentence to be imposed, including aggravating and mitigating factors, and

  1. the offender may present evidence, testify on his own behalf and question each witness about any matter concerning the sentence;
  2. during the presentation of any evidence, the presiding officer may question each witness, including the offender where the offender chooses to testify, on any matter concerning the sentence; and
  3. the offender may make representations concerning the sentence.

(11) The presiding officer shall pass sentence taking into consideration the matters referred to in paragraph (10). (1 September 1999)

(12) After passing sentence, the presiding officer shall inform the offender of the right under article 108.45 (Review of Finding or Punishment of Summary Trial) to request a review authority to

  1. set aside a finding of guilty on the ground that it is unjust; and
  2. alter the sentence on the ground that it is unjust or too severe.

(G) [P.C. 2008-1015 effective 5 June 2008]

NOTES

(A) Responsibilities and entitlements in the Canadian Forces are often assigned based on a member's rank and position in the service. For example, a warrant officer serving in a unit will have certain responsibilities for the well-being of his subordinates which those who hold lesser rank may not have. Similarly, pay and other entitlements reflect the increased responsibilities which ordinarily accompany promotion to higher rank. These necessary distinctions are reflected in a number of provisions of the National Defence Act and regulations made thereunder. For example, a member's rank may, in part, dictate the range of punishments available to the presiding officer at a summary trial. However, in other matters, it is essential that members be treated equally, regardless of their rank, particularly in the administration of the Code of Service Discipline. For instance, it is the evidence surrounding the alleged commission of the offence and not the accused's rank, which will be determinative when deciding whether or not to lay a charge. It would be improper to give any preferential treatment to a particular accused simply because of his rank.

(B) An accused has the right to a fair trial and should be allowed a great deal of latitude in making a defence, particularly when not represented by legal counsel. While the defence is bound by the normal rules of evidence, the presiding officer should not interpret them so strictly as to prejudice the accused’s right to make a full and complete defence. This should not, however, be regarded as conferring on the accused the right of insisting on the reception by the presiding officer of clearly irrelevant evidence or evidence having no probative value.

(C) At the outset of the summary trial, the accused is presumed to be innocent. That presumption must be displaced by evidence which satisfies the presiding officer, beyond a reasonable doubt, that the accused is guilty. The benefit of any reasonable doubt must be given to the accused. A reasonable doubt is not an imaginary or frivolous doubt nor is it based on sympathy or prejudice. A reasonable doubt is a doubt which is based on reason and common sense. It must be logically derived from the evidence or the lack of evidence. The evidence must prove more than that the accused is probably guilty but does not involve proof to an absolute certainty; i.e. proof beyond any doubt. A reasonable doubt should not arise where, based on a fair and impartial consideration of all the evidence, the presiding officer has a decided and firm conviction that the accused is guilty. (1 September 1999)

(D) A witness may testify in his preferred official language. An interpreter shall be provided for a witness wishing to testify in the official language not chosen for the proceedings by the accused or in any other language. A witness may, with the consent of the accused, testify without an interpreter in an official language other than the official language of the proceedings. The accused may consent to dispensing with an interpreter where the accused understands the official language in which the witness is testifying.

(E) An accused may not be found guilty of an offence other than the offence charged except where the National Defence Act makes provision for a finding of guilty of some other offence. Under section 134 of the Act (see article 103.62Related or Less Serious Offences), an accused charged with using insulting language to a superior officer may be found guilty of behaving with contempt toward a superior officer. Under section 137 of the National Defence Act (see article 103.63Attempt to Commit Offence), an accused charged with escaping from custody may be found guilty of attempting to escape from custody. Under section 138 of the National Defence Act (see article 103.64Special Findings), an accused charged with being absent without leave from 1 Nov – to 15 Nov – could be found guilty of being absent without leave from 5 Nov – to 10 Nov –.

(F) A presiding officer trying an accused against whom there is more than one charge may pass one sentence only in respect of all the charges (see article 104.15One Sentence Only May be Passed). (1 September 1999)

(G) Before pronouncing sentence, the presiding officer will have considered all the evidence surrounding the commission of the offence and any evidence received concerning the appropriate sentence to be imposed, including all aggravating and mitigating factors. In weighing that evidence, the presiding officer is required to take all relevant circumstances and factors into account, including:

  1. the deterrent effect of the sentence on the offender and other members, bearing in mind that one of the purposes of summary proceedings is the maintenance of military discipline at both the individual and unit level;
  2. the number, gravity and prevalence of the offences committed;
  3. the degree of premeditation and the consequential harm caused;
  4. the degree of provocation and any other extenuating circumstances;
  5. any time spent in custody prior to or during trial;
  6. where applicable, any sentence imposed on a co-accused or accomplice;
  7. the need for consistency in sentencing, having regard to punishments imposed on other offenders;
  8. the offender's circumstances and previous character including his age, rank, length of service, rate of pay and financial situation, family and personal problems, background, training and experience in the Canadian Forces having regard to his military record and in particular any previous convictions, honours, awards, medals and decorations; and
  9. any indirect consequence of the finding or sentence.

(H) The discretion that the presiding officer possesses in relation to the sentencing function, must be exercised fairly and equitably. As a general rule, the proper punishment is the least that will maintain discipline. The punishment must be appropriate to both the offence and the offender and serve as an adequate deterrent to the accused and others who may be tempted to commit similar offences. It is essential to differentiate between offences involving calculated and premeditated misconduct and those attributable to youth, hot temper, sudden temptation or inexperience. The effectiveness of any punishment will be enhanced where it is imposed as soon as possible after the commission of the offence.

(I) Before sentencing an offender to a punishment of detention, the commanding officer must be satisfied that the punishment is both appropriate and essential. Detention should normally only be used as a last resort when other lesser punishments have failed to improve the member's conduct. This particular punishment may also be imposed as a means of dealing with particularly serious incidents of misconduct.

(J) Where a fine is to be imposed, it should be a reasonable amount having regard to the pay of the offender and the need to impress upon the offender the gravity of the offence. While a fine should be meaningful, it should not cause unnecessary hardship. A fine is not restitution and should not be equated with any financial loss resulting from the commission of the offence.

(C) [1 September 1999; 1 June 2014 – Notes (B) to (J)]

108.21 – RECEPTION OF EVIDENCE

(1) The Military Rules of Evidence (see QR&O Volume IV, Appendix 1.3) do not apply at a summary trial.

(2) The officer presiding at a summary trial may receive any evidence that the officer considers to be of assistance and relevant in determining whether or not the accused committed any of the offences charged and, where applicable, imposing an appropriate sentence.

(3) The presiding officer may receive any evidence that is sufficient to establish any relevant fact, either taken alone or considered with other evidence, but the officer shall only give it the weight that is warranted by its reliability.

(4) Subject to paragraph (5), the presiding officer may allow evidence to be given by means of a telephone or other telecommunications device that permits the presiding officer and the accused to hear and examine a witness who has been sworn. (1 September 1999)

(5) In deciding whether to allow a witness to give testimony by means of a telephone or other telecommunications device, the presiding officer shall consider all the circumstances including:

  1. the location and personal circumstances of the witness;
  2. the costs that would be incurred if the witness had to be physically present;
  3. the nature of the witness' anticipated evidence; and
  4. any potential prejudice to the accused or adverse impact on the presiding officer's ability to evaluate the evidence caused by the fact that the witness would not be physically present.

(1 September 1999)

(G) [P.C. 1999-1305 effective 1 September 1999]

NOTES

(A) Evidence may be received at a summary trial by hearing witnesses or accepting documentary or real evidence. Direct evidence is to be preferred and in this regard, witnesses who have first hand knowledge should be called to testify before the presiding officer.

(B) The issue of potential prejudice to the accused or adverse impact on the presiding officer's ability to evaluate the evidence could, for example, arise where it is proposed to examine a witness by means of a telephone or other telecommunications device and the identification of the accused, as the perpetrator of the offence, or the credibility of the witness, is in issue. For this reason, the use of a telephone or other telecommunications device should be used only in exceptional circumstances where it is impracticable to have a witness appear personally or through video link technology. Like all other witnesses, witnesses giving evidence by means of telephone or other telecommunications device will be sworn by the presiding officer. This will be done in the presence of an officer or a non-commissioned member who can confirm the identity of the witness.

(C) While an investigation report is a means of summarizing and compiling evidence, the report itself is not evidence and therefore, is not to be received at a summary trial. Investigation reports must necessarily be used, for example, when making the determinations required under article 107.09 (Referral and Pre-trial Disposal of Charge), 108.16 (Pre-Trial Determinations), 108.17 (Election to be Tried by Court Martial), 108.19 (Action by Commanding Officer Where Charge Referred by Delegated Officer) and 108.195 (Action by Superior Commander Where Charge Referred by Commanding Officer). However, presiding officers must base their findings at summary trial on the actual evidence received at trial.

(D) Pursuant to paragraph (2) of article 21.16 (Admissibility – Minutes of a Board of Inquiry – Report of a Summary Investigation), the minutes of a board of inquiry and the report of a summary investigation may not be received as evidence at a summary trial, except to the extent otherwise provided for in that regulation.

(E) To ensure that the trial record is as complete as possible the officer presiding at the summary trial should prepare a list to identify the witnesses heard and all documentary or real evidence accepted at the summary trial, including witnesses and evidence called or presented by or on behalf of the accused. Where evidence was received by telephone or a telecommunications device, the list should fully identify the officer or non-commissioned member in whose presence the witness was sworn. The list is to be attached to the Record of Disciplinary Proceedings once the officer presiding at the summary trial has completed the summary trial.

(F) If any evidence concerning a prior conviction of the accused arises during a summary trial before the finding in respect of each charge is pronounced, the presiding officer should seek legal advice from the unit legal adviser. Given the potentially prejudicial nature of evidence concerning any prior conviction of an accused, the presiding officer should rarely receive such evidence. (5 June 2008)

(C) [5 June 2008]

108.22 – CUSTODY DURING TRIAL

(1) An accused person is not in custody during a summary trial unless the accused person was in custody immediately prior to the commencement of the trial or is ordered into custody during the trial.

(2) An accused person may be ordered into custody or released from custody for all or part of the trial, including any adjournment, by the officer presiding at the summary trial.

(G) [P.C. 1999-1305 effective 1 September 1999]

108.23 – EFFECT OF STAY OF PROCEEDINGS

Except to the extent that a finding can be substituted in respect of an alternative charge under subsection 249.12(2) of the National Defence Act, a stay of proceedings shall have the effect of a finding of not guilty of the charge on which it has been directed.

(G) [P.C. 1999-1305 effective 1 September 1999]

108.24 – POWERS OF PUNISHMENT OF A COMMANDING OFFICER

The powers of punishment of a commanding officer are limited to the punishments and subject to the conditions prescribed in the table to this article.

TABLE TO ARTICLE 108.24

A
Punishment Number
B
Authorized Punishment
C
Maximum Amount
D
Applicable to
E
Optional Accompanying Punishments
F
Consequential Penalties
G
QR&O
References
1 Detention 30 days Sergeants, master corporals, corporals and privates 2 and 4
  1. Deemed reduction in rank to the rank of private for the period of detention
  2. Pay as a private during the period of detention
  3. Effect on pay field
  4. Possible forfeiture of entitlement to, or time toward, any medal awarded for good conduct
104.09
208.30
2 Reduction in rank One substantive rank Sergeants, master corporals and corporals Nil
  1. Effect on pay field
  2. Possible forfeiture of entitlement to, or time toward, any medal awarded for good conduct
104.10
3 Reprimand   Officer cadets, sergeants, master corporals and corporals 4 Possible forfeiture of entitlement to, or time toward, any medal awarded for good conduct  
4 Fine 60% of monthly basic pay, expressed in dollars Officer cadets, sergeants, master corporals, corporals and privates 5, 6 and 7 Nil 104.12
203.065
5 Confinement to ship or barracks 21 days Officer cadets, master corporals, corporals and privates Nil Includes extra work and drill for an equal term 104.13
108.37
6 Extra work and drill 14 days Officer cadets, master corporals, corporals and privates Nil Nil 104.13
108.35
7 Stoppage of leave 30 days Officer cadets, sergeants, master corporals, corporals and privates Nil Nil 104.13
108.36
8 Caution   Officer cadets, sergeants, master corporals, corporals and privates Nil Nil 104.13
108.38

(G) [P.C. 1997-1584 effective 30 November 1997; P.C. 2008-1015 effective 5 June 2008]

NOTES

(A) The table to this article includes the restrictions on punishments contained in the National Defence Act, together with additional limitations pursuant to section 147 of the Act. The table is a complete statement of the powers of punishment that may be exercised by a commanding officer.

(B) Pursuant to section 145 of the National Defence Act, the terms of payment of a fine are in the discretion of the presiding officer who imposes that punishment. The presiding officer may also vary the terms of payment of a fine imposed by that officer. (1 September 1999)

(C) The powers of a commanding officer to quash a finding of guilty, substitute a new finding for any finding of guilty and alter a sentence are prescribed in article 116.02 (Review Authorities – Summary Trials). Those powers may be exercised pursuant to an application under article 108.45 (Review of Finding or Punishment of Summary Trial) or on the commanding officer's own initiative. (1 September 1999)

(D) The maximum reduction in rank that may be imposed at a summary trial is reduction in rank by one substantive rank only. An appointment to master corporal is not a rank. Accordingly, a sergeant who is sentenced to reduction in rank would be reduced to the rank of corporal whereas a master corporal and a corporal would be reduced to private. An offender who is reduced in rank holds the highest classification within that rank (see article 104.10Reduction in Rank). Under paragraph (6) of CBI 204.015 (Pay Increments), if an officer or non-commissioned member is reduced in rank, that officer or non-commissioned member may count for pay increments in the lower rank all qualifying service in the higher rank together with all previous qualifying service in the lower rank. Under sub-subparagraph (3)(b)(ii) of article 3.09 (Order of Seniority), the Chief of the Defence Staff has prescribed that the same conditions be used to determine seniority in rank for promotion purposes. (1 September 2001)

(C) [1 September 2001; 1 June 2014 – Note (D)]

108.25 – POWERS OF PUNISHMENT OF A DELEGATED OFFICER

The powers of punishment of a delegated officer shall be limited to the punishments and subject to the conditions prescribed in the table to this article and to such further limitations as the commanding officer may from time to time impose in writing.

(G) [P.C. 1997-1584 effective 30 November 1997]

TABLE TO ARTICLE 108.25

A
Punishment Number
B
Authorized Punishment
C
Maximum Amount
D
Applicable to
E
Optional Accompanying Punishments
F
Consequential Penalties
G
QR&O
References
1 Reprimand   Officer cadets, sergeants, master corporals and corporals 2 Possible forfeiture of entitlement to, or time toward, any medal awarded for good conduct  
2 Fine 25% of monthly basic pay, expressed in dollars Officer cadets, sergeants, master corporals, corporals and privates 3, 4 and 5 Nil 104.12
203.065
3 Confinement to ship or barracks  14 days Officer cadets, master corporals, corporals and privates Nil Includes extra work and drill for an equal term 104.13
108.37
4 Extra work and drill 7 days Officer cadets, master corporals, corporals and privates Nil Nil 104.13
108.35
5 Stoppage of leave 14 days Officer cadets, sergeants, master corporals, corporals and privates Nil Nil 104.13
108.36
6 Caution 14 days Officer cadets, sergeants, master corporals, corporals and privates Nil Nil 104.13
108.38

(G) [P.C. 2008-1015 effective 5 June 2008]

NOTES

(A) This article includes the restrictions on punishment contained in subsection 164(4) of the National Defence Act, together with additional limitations pursuant to section 147 of the Act. The table is a complete statement of the powers of punishment that may be exercised by a superior commander.

(B) Pursuant to section 145 of the National Defence Act, the terms of payment of a fine are in the discretion of the presiding officer who imposes that punishment. The presiding officer may also vary the terms of payment of a fine imposed by that officer.

(C) [1 September 1999]

108.26 – POWERS OF PUNISHMENT OF A SUPERIOR COMMANDER

The powers of punishment of a superior commander are limited to the punishments and subject to the conditions prescribed in the table to this article.

(G) [P.C. 1997-1584 effective 30 November 1997]

TABLE TO ARTICLE 108.26

AUTHORIZED
PUNISHMENT
MAXIMUM
AMOUNT
REMARKS
Severe Reprimand --- May be accompanied by a fine.
Reprimand --- May be accompanied by a fine.
Fine 60% of monthly basic pay, expressed in dollars (see articles 104.12 – Fine and 203.065 – Computation of Entitlements, Forfeitures and Fines – Reserve Force – Other than Class "C" Reserve Service.)

(G) [P.C. 1997-1584 effective 30 November 1997]

NOTES

(A) This article includes the restrictions on punishment contained in subsection 164(4) of the National Defence Act, together with additional limitations pursuant to section 147 of the Act. The table is a complete statement of the powers of punishment that may be exercised by a superior commander.

(B) Pursuant to section 145 of the National Defence Act, the terms of payment of a fine are in the discretion of the presiding officer who imposes that punishment. The presiding officer may also vary the terms of payment of a fine imposed by that officer.

(C) [1 September 1999]


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Section 8 – General Rules for Summary Trial

108.27 – OATH TO BE TAKEN BY OFFICER AUTHORIZED TO PRESIDE AT SUMMARY TRIAL

The oath to be taken by an officer authorized to exercise summary trial jurisdiction shall be in the following form:

"I swear that I will duly administer justice according to law, without partiality, favour or affection. So help me God."

(G) [P.C. 1997-1584 effective 30 November 1997]

NOTE

For making a solemn affirmation in lieu of an oath, see article 108.32 (Affirmation in Lieu of Oath).

(C) [30 November 1997]

108.28 – WHO MAY BE PRESENT AT A SUMMARY TRIAL

(1) Subject to paragraphs (2) and (3), summary trials shall be public and, to the extent that accommodation permits, members of the public, military and civilian, shall be permitted to attend the proceedings as spectators.

(2) The officer presiding at a summary trial may direct that the public be excluded during the trial or any part of the trial where the presiding officer considers it to be in the interests of justice and discipline, public safety, defence or public morals.

(3) Except for those with an appropriate security clearance and a need to know, members of the public shall be excluded from those portions of a summary trial where classified information will be given in evidence.

(4) Any direction made under this article shall be recorded in a minute to be signed by the officer presiding at the summary trial and attached to the Record of Disciplinary Proceedings.

(G) [P.C. 1999-1305 effective 1 September 1999]

108.29 – PROCUREMENT OF WITNESSES

(1) The officer presiding at a summary trial has the duty to procure the attendance of any witness requested by the accused whose attendance may, having regard to the exigencies of the service, reasonably be procured without legal process.

(2) Nothing in paragraph (1) requires the procurement of a witness where the request is, in the opinion of the officer presiding at a summary trial, frivolous or vexatious.

(G) [P.C. 1997-1584 effective 30 November 1997]

108.30 – WITNESSES TESTIMONY TO BE UNDER OATH

Each witness shall testify under oath before an officer presiding at a summary trial.

(G) [P.C. 1997-1584 effective 30 November 1997]

108.31 – OATH TO BE TAKEN BY WITNESSES

The oath to be taken by a witness at a summary trial shall be in the following form:

"I swear that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth. So help me God."

(G) [P.C. 1997-1584 effective 30 November 1997]

NOTE

For making a solemn affirmation in lieu of an oath, see article 108.32 (Affirmation in Lieu of Oath).

(C) [30 November 1997]

108.32 – AFFIRMATION IN LIEU OF OATH

(1) A person to whom an oath is required to be administered for the purpose of a summary trial may make a solemn affirmation instead of being sworn.

(2) A solemn affirmation has the same force and effect as an oath.

(3) The form of a solemn affirmation shall be as prescribed for the appropriate oath, but the words "I solemnly affirm" shall be substituted for the words "I swear," and the words "So help me God" shall be omitted.

(G) [P.C. 1997-1584 effective 30 November 1997]

108.33 – ADJOURNMENT OF SUMMARY TRIAL

A summary trial may be adjourned at any time, either on the initiative of the presiding officer or at the request of the accused, if the presiding officer considers it desirable.

(G) [P.C. 1997-1584 effective 30 November 1997]

108.34 – REFERRAL TO ANOTHER AUTHORITY DURING SUMMARY TRIAL

(1) An officer presiding at a summary trial shall adjourn the trial where the officer determines during the trial that:

  1. there are reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the alleged offence (see article 107.10Appointment of Legal Counsel – Accused Unfit to Stand Trial); or
  2. it is inappropriate, in the opinion of the presiding officer, for the officer to try the case having regard to the interests of justice and discipline.

(2) A presiding officer who adjourns a summary trial pursuant to paragraph (1) shall:

  1. if the officer is a delegated officer, refer the case to the commanding officer or, where appropriate, to another delegated officer;
  2. if the officer is a commanding officer, refer the case to a superior commander, to a referral authority (see Chapter 109 - Application to Referral Authority for Disposal of a Charge) or, where appropriate, to another commanding officer;
  3. if the officer is a superior commander who is not a referral authority, refer the case to a referral authority (see Chapter 109) or, where appropriate, to another superior commander; or
  4. if the officer is a superior commander who is a referral authority, refer the case to the Director of Military Prosecutions (see Chapter 109) or, where appropriate, to another superior commander.

(3) The presiding officer shall inform the accused that he is referring the case to another authority and shall, if required, direct that the accused be kept in custody pending further proceedings (see article 108.22 – Custody During Trial).

(G) [P.C. 1999-1305 effective 1 September 1999]


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Section 9 – Rules Respecting Minor Punishments

108.35 – EXTRA WORK AND DRILL

(1) The punishment of extra work and drill is intended to improve a service member's military efficiency and discipline.

(2) The punishment of extra work and drill may include performance of:

  1. normal duties for longer periods than would have been required of the offender if the punishment had not been imposed;
  2. any other useful extra work; and
  3. extra drill, at such times as may be authorized under unit orders, or other military training.

(3) The punishment of extra work and drill shall not be carried out on Sunday but that day shall count toward the completion of the term of the punishment.

(G) [P.C. 1997-1584 effective 30 November 1997]

NOTE

Under paragraph 104.13(4) (Minor Punishments), a minor punishment imposed on an officer cadet may only be supervised by an officer. The definition of "officer" in article 1.02 (Definitions) includes a person who holds the rank of officer cadet.

(C) [5 June 2008]

108.36 – STOPPAGE OF LEAVE

(1) Where the punishment of stoppage of leave is imposed, the offender shall not be granted leave during the term of the sentence, unless in exceptional cases the commanding officer otherwise directs.

(2) An officer cadet or non-commissioned member undergoing a punishment of stoppage of leave shall not, without the specific permission of the commanding officer, be permitted during the hours the member is not on duty to go beyond the geographic limits prescribed by the commanding officer in standing orders. (5 June 2008)

(G) [P.C. 2008-1015 effective 5 June 2008]

NOTES

(A) Under paragraph 104.13(4) (Minor Punishments), a minor punishment imposed on an officer cadet may only be supervised by an officer. The definition of "officer" in article 1.02 (Definitions) includes a person who holds the rank of officer cadet.

(B) The area contained in the geographic limits to be prescribed by the commanding officer in standing orders should be wide enough to permit the offender to have access to the normal amenities and routine of military life.

(C) [5 June 2008]

108.37 – CONFINEMENT TO SHIP OR BARRACKS

(1) An officer cadet or non-commissioned member undergoing a punishment of confinement to ship or barracks shall not, without the specific permission of the commanding officer, be permitted during the hours the member is not on duty to go beyond the geographic limits prescribed by the commanding officer in standing orders.

(2) The punishment of confinement to ship or barracks includes the punishment of extra work and drill for the same term as the term of confinement to ship or barracks.

(G) [P.C. 2008-1015 effective 5 June 2008 – (1)]

NOTE

Under paragraph 104.13(4) (Minor Punishments), a minor punishment imposed on an officer cadet may only be supervised by an officer. The definition of "officer" in article 1.02 (Definitions) includes a person who holds the rank of officer cadet.

(C) [5 June 2008]

108.38 – CAUTION

A caution should be imposed where it is desired to give an offender a formal warning without other punishment.

(G) [P.C. 1997-1584 effective 30 November 1997]

[108.39 to 108.41: repealed by P.C. 1999-1305 effective 1 September 1999]


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Section 10 – Administrative Action

108.42 – ADMINISTRATIVE ACTION WHERE SUMMARY TRIAL COMPLETED

(1) When a summary trial has been completed, the officer who presided at the summary trial shall:

  1. complete Part 6 of the Record of Disciplinary Proceedings and comply with paragraph (4) or (5), as applicable, of article 107.14 (Maintenance of Unit Registry of Disciplinary Proceedings); and
  2. where the presiding officer is not the commanding officer of the officer or non-commissioned member tried, cause a copy of the Record of Disciplinary Proceedings to be forwarded to the member's commanding officer for information and necessary action in accordance with paragraph (2).

(2) Where a sentence has been imposed on an offender at a summary trial, the offender's commanding officer shall:

  1. take the necessary action to ensure that the sentence is carried out; and
  2. cause the appropriate entries to be made to the offender's service records, including the conduct sheet (see DAOD 7006-0, Conduct Sheets).

(G) [P.C. 1999-1305 effective 1 September 1999]

[108.43: repealed by P.C. 1999-1305 effective 1 September 1999]

108.44 – NOTIFICATION AFTER PUNISHMENT OF DETENTION OR REDUCTION IN RANK IMPOSED

A commanding officer who imposes a punishment of detention or reduction in rank shall cause National Defence Headquarters (Director General Military Careers) to be notified by message.

(G) [P.C. 1997-1584 effective 30 November 1997]


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Section 11 – Review

108.45 – REVIEW OF FINDING OR PUNISHMENT OF SUMMARY TRIAL

(1) An officer or non-commissioned member found guilty of a service offence at a summary trial may request a review authority to:

  1. set aside the finding of guilty on the ground that it is unjust; and
  2. alter the sentence on the ground that it is unjust or too severe. (1 September 1999)

(2) For the purposes of this article:

  1. the review authority for a summary trial by delegated officer is the commanding officer of the unit;
  2. the review authority for a summary trial by a commanding officer is the next superior officer to whom the commanding officer of the unit is responsible in matters of discipline; and (1 September 1999)
  3. the review authority for a summary trial by a superior commander is the next superior officer to whom the superior commander is responsible in matters of discipline.

(3) Where an officer referred to in paragraph (2) is of the opinion that it would be inappropriate for him to act as a review authority in a particular case, having regard to the interests of justice and discipline, the officer shall:

  1. not make any determination in respect of the request for review; and
  2. refer the request for review to the next superior officer to whom he is responsible in matters of discipline.

(4) A request for review must be made in writing and state the relevant facts and the reasons why a finding is unjust or a punishment is unjust or too severe. (1 September 1999)

(5) A request for review must be delivered to the review authority, and a copy delivered to the officer who presided at the summary trial, within 14 days of the termination of the summary trial.

(6) Within seven days of receiving a copy of a request for review, the officer who presided at the summary trial shall deliver his or her comments concerning the request to the review authority and a copy to the member who requested the review.

(7) An officer or non-commissioned member requesting a review may deliver further representations to the review authority within seven days of receiving a copy of the comments of the officer who presided at the summary trial.

(8) Before making a determination in respect of the request for review, a review authority shall obtain legal advice.

(9) A legal officer who provided advice in respect of the laying of a charge or any summary proceedings relating to the charge shall not provide legal advice to the review authority in relation to that case.

(10) Within 21 days after receiving a request for review, the review authority shall review the summary trial and determine whether to set aside any finding made or alter any punishment imposed.

(11) If a review authority is unable to make a determination under paragraph (10) because further information is required, the review authority shall:

  1. seek the necessary information;
  2. notify the member requesting the review that further information has been sought; and
  3. provide the member requesting the review with a copy of any information subsequently obtained.

(1 September 1999)

(12) An officer or non-commissioned member requesting a review may deliver further representations to the review authority within seven days of receiving a copy of the information referred to at paragraph (11). (1 September 1999)

(13) If additional information is sought under paragraph (11), the review authority shall, within 35 days after receiving the request for review, review the summary trial and determine whether to set aside any finding made or alter any punishement imposed. (1 September 1999)

(14) As soon as practicable after the review authority has made a decision, the review authority shall:

  1. cause the officer or non-commissioned member making the request, the presiding officer and, where the review authority is not the member's commanding officer, the member's commanding officer to be notified in writing of the decision;
  2. comply with paragraph (6) of article 107.14 (Maintenance of Unit Registry of Disciplinary Proceedings); and
  3. cause the appropriate entries to be made to Part 7 of the original Record of Disciplinary Proceedings.

(1 September 1999)

(15) When the officer or non-commissioned member's commanding officer receives written notification of a review authority's decision, the commanding officer shall:

  1. cause the appropriate entries to be made to the service records of the member, including the conduct sheet in any case where the finding or sentence has been altered (see DAOD 7006-0, Conduct Sheets); and
  2. take any other action necessary to give effect to the decision.

(1 September 1999)

(16) A review authority may, in the interests of justice, extend the period for making a request for review to such period as that authority considers reasonable in the circumstances. (1 September 1999)

(17) In the case of a non-commissioned member sentenced to detention, a review authority shall suspend the carrying into effect of the punishment of detention pending the completion of the review. (1 September 1999)

(17.1) The suspension of a punishment of detention is automatically terminated on the completion of the review, and the non-commissioned member shall be immediately taken into custody and required to serve the balance of the detention unless, as a result of the review, the sentence ceases to have effect or has been altered and no longer includes the punishment of detention. (5 June 2008)

(18) If requested by an officer or non-commissioned member requesting a review, the commanding officer shall appoint an officer or non-commissioned member above the rank of sergeant to assist in the preparation of a request for review and should, where practical, appoint any officer or non-commissioned member requested by the applicant. (1 September 1999)

(G) [P.C. 2008-1015 effective 5 June 2008]

NOTES

(A) A request for review under this article may be in the form of a memorandum or letter.

(B) A review authority acting under this article is an authority having the power to quash a finding of guilty, substitute a new finding for any finding of guilty and alter a sentence imposed at summary trial (see article 116.02Review Authorities – Summary Trials and the notes to that article) and to suspend the carrying into effect of a punishment of detention (see article 114.02Authority to Suspend).

(C) [1 September 1999]

[108.46: repealed by P.C. 1999-1305 effective 1 September 1999]

[108.47 to 108.50: repealed by P.C. 1997-1584 effective 30 November 1997]

[108.51: not allocated]

[108.52 and 108.53: repealed by P.C. 1997-1584 effective 30 November 1997]

[108.54 to 108.99 inclusive: not allocated]