Chapter 11: Jurisdiction and Pre-Trial Determinations

SECTION 1 - GENERAL

1. The term jurisdiction has numerous meanings and is used in a variety of ways. The Concise Oxford Dictionary1 defines it as “a. legal or other authority. b. the extent of this; the territory it extends over.” Jurisdiction is further defined in Black's Law Dictionary as follows:

The word is a term of large and comprehensive import, and embraces every kind of judicial action … It is the authority by which courts and judicial officers take cognizance of and decide cases … The legal right by which judges exercise their authority … It exists when court has cognizance of class of cases involved, proper parties are present, and point to be decided is within powers of court … Power and authority of a court to hear and determine a judicial proceeding … The right and power of a court to adjudicate concerning the subject matter in a given case.2

2. Within the context of summary trials, jurisdiction is the legal authority held by the presiding officer to hear and determine issues relating to the summary trial of the accused.

3. Jurisdiction over an accused or a summary trial is not automatic. Jurisdiction is granted to COs, delegated officers and superior commanders to act as the presiding officer over a summary trial in certain circumstances. If the circumstances which provide jurisdiction to act do not exist or cease to exist, then the officer has no jurisdiction to act and may not do so. In such circumstances the presiding officer would have to refer the case to another officer.3

Jurisdiction over the Person in General

4. A person may be tried in the Canadian military justice system if that individual is subject to the Code of Service Discipline. The NDA provides that a wide range of persons are subject to the Code of Service Discipline including:

  1. members of the CF, both regular and reserve force;4
  2. members of a "special force" established by the CF;5
  3. members of foreign armed forces attached or seconded to the CF;6
  4. persons attending certain educational institutions;7 and
  5. alleged spies for the enemy.8 Officers and NCMs continue to be subject to QR&O even if they become prisoners of war.9

5. The following persons, who would not otherwise be subject to the Code of Service Discipline, are also subject to it and to trial by the military justice system:

  1. persons serving in the positions of officers or NCMs of any force raised and maintained by Canada outside of its territory;10
  2. persons who accompany any unit or other element of the CF that is on service or active service anywhere;11
  3. persons who, in respect of any service offences committed or alleged to have been committed by them, are in civil custody or in service custody;12 and
  4. persons serving with the CF who have agreed under an engagement with the MND to be subject to the Code of Service Discipline.13

Jurisdiction over Members of the Regular and Reserve Forces

6. Although the Code of Service Discipline applies to all members of the CF, the circumstances in which each member is liable under that Code depends on whether the member belongs to the Regular or Reserve Force.

7. Members of the Regular Force are liable under the Code of Service Discipline at all times and in all circumstances. This means that members of the Regular Force can be charged and proceeded against under the Code of Service Discipline for any offence provided therein from their enrolment to release. Further, proceedings can be started under the Code of Service Discipline after the date of release for offences alleged to have been committed before the release.14

8. The liability of a member of the Reserve Force under the Code of Service Discipline depends on the circumstances and the terms of that member's enrolment. Members of the Reserve Force are subject to the Code of Service Discipline when:

  1. undergoing drill or training, whether in uniform or not;
  2. in uniform;
  3. on duty;
  4. called out under Part VI in aid of the civil power;
  5. called out on service;
  6. placed on active service;
  7. in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence;
  8. serving with any unit or other element of the regular force or the special force; or
  9. present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces.15

9. The Reserve Force is composed of two main sub-components: the Supplementary Reserve and the Primary Reserve.16 Members of the Supplementary Reserve, except when on active duty, are not required to train or perform any other military duty.17 Members of the Primary Reserve, however, are obliged to perform such military duty and training as may be required of them.18

10. There are three types of reserve service: Class C, B and A and the description for each is as follows:

  1. Class C service19 involves full-time service filling an establishment or supernumerary in a Regular Force position and includes proceeding to and returning from the place of duty.
  2. Class B service20 involves full-time service in a temporary position as an instructor, administrator, or candidate at a school or other training establishment, while proceeding on such duties, or while employed on other approved duties of a temporary nature. Class B service includes proceeding to and returning from the place of duty.
  3. Class A service21 involves part-time training or duties other than Class B service, and includes proceeding to and returning from the place where training or duty is performed, except when that duty is performed at local headquarters. For example, upon arrival at the armoury, a reservist reporting for weekly drill would be considered to be on Class A service.

11. While there are limits on the liability of Reserve Force members under the Code of Service Discipline, a finding that the member committed an offence while in any of the above circumstances, is sufficient for jurisdiction to be found.22

12. A Reserve Force member is considered to be on duty and subject to QR&O when performing any lawful duty. Lawful duty means any duty that is military in nature and includes any duty involving public service authorized pursuant to section 273.6 of the NDA.23

13. The Governor in Council, or the Minister in certain circumstances, may authorize the CF to perform any duty involving public service.24 This includes providing assistance in respect of any law enforcement matter if the Governor in Council or the Minister considers the assistance to be in the national interest and the matter cannot be effectively dealt with except with the assistance of the CF.25 The requirement for approval from the Governor in Council or the Minister may not be required for assistance of a minor nature, which is limited to logistical, technical or administrative support.26 Such assistance may be approved by officers who have been delegated approval authority under the Minister's Provision of Services Policy.27

14. A CF component, unit, individual officer or NCM can only be placed on active service by the Governor in Council in certain circumstances.28 Pursuant to Order in Council P.C. 1989-583 of 6 April, 1989, the Governor in Council has, for the purpose of fulfilling Canada's role in NATO, placed all members of the Regular and Reserve Force on active service while outside Canada. Therefore, any officer or NCM who has been placed on active service, or is a member of, serving with, or attached or seconded to a component, unit or other element of the CF that has been placed on active service, shall be deemed to be on active service for all purposes.29

15. Members of the Reserve Force may be lawfully ordered to train for such periods of time as are prescribed in regulations. For example, QR&O provide that members of the Primary Reserve on Class B service may be ordered to train in each training year for a period not exceeding fifteen days, and members on Class A service may be ordered to train for a period not exceeding sixty days.30

16. Further, members of the Reserve Force may be called out to perform any lawful duty other than training at such time and in such manner as prescribed by regulations or Order in Council.31 For example, the Regulations allow the Minister to call out members or units of the Primary Reserve Force, in an emergency32 to perform any military duty other than training.33

Jurisdiction over Persons at Summary Trial

17. Only service members below the rank of lieutenant-colonel can be tried by way of summary trial. Civilians cannot be tried by summary trial.

18. With respect to service members subject to summary trial, the CO of the accused's unit, or the CO of the unit where the accused is present when proceedings are taken, has jurisdiction over the accused.34 Whether a summary trial can be held with respect to a particular charge and who can actually preside over the summary trial is affected by both the rank of the accused, the specific charge that has been laid and any prior involvement the specific officer may have had with the case.35 This is discussed in more detail in Section 2 of this Chapter.

Military Nexus

19. In the past, when determining whether the CF had jurisdiction over offences under the Criminal Code and other Acts of Parliament pursuant to section 130 of the NDA, the courts applied an interpretation of military law requiring the offences to have military nexus.36 To have a military nexus, an offence had to be “so connected with the service in its nature and in the circumstances of its commission, that it would tend to affect the general standard of discipline and efficiency of the service”.37 The need to prove military nexus for such offences has been eliminated by the CMAC.38 However, in many circumstances it is more appropriate for civilian authorities to exercise criminal jurisdiction. For assistance with respect to the decision whether military authorities should proceed with prosecution , the advice of the unit legal advisor should be sought.

Types of Summary Trials

20. There are three types of summary trials. They are defined by the status of the presiding officer who is to try the case. Summary trials may be held by superior commanders, COs or delegated officers.

21. The status of a superior commander and CO is generally determined by the rank or appointment of the officer concerned and in the case of COs, by reference to the definition of commanding officer contained in QR&O 101.01.39 The status of delegated officers is dependent upon a CO having delegated the powers of trial and punishment.40

Limitation Period

22. A limitation period is a specified period of time within which a charge must be laid.41 In general, the limitation period begins the instant conduct occurs that may be subject to a charge. If a charge is not laid within the applicable limitation period, the authority to try the accused for the offence charged is lost.42

23. In order to proceed by summary trial with respect to any offence, the summary trial must begin within one year of the date on which the service offence is alleged to have been committed.43 The summary trial does not have to be completed before the one-year date, only started.44 However, if the trial does not start within one year, the summary trial cannot proceed.

Civilian versus Military Jurisdiction

24. Not all offences can be charged and tried within the military justice system. The CF has no jurisdiction to try any person charged with having committed within Canada the offences of murder, manslaughter, or any offence under sections 280 to 283 of the Criminal Code.45 There are also cases where both the civilian and military systems could have jurisdiction over a matter and a decision must be taken on who will take jurisdiction. For example, if a service member is drunk and disorderly in a bar off the base, the civilian authorities could pursue charges, as could the military authorities for drunkenness.46

25. In any case where the military and civilian jurisdictions overlap, the matter should be discussed with the unit legal advisor.

Rule against Double Jeopardy

26. As a general rule, an accused cannot be tried more than once for the same offence, regardless of the result from the initial trial.47 This rule applies equally to both the military and the civilian criminal justice systems. Therefore, an accused that has been tried for an offence in a civilian jurisdiction cannot then be tried for the same offence in another civilian or military jurisdiction. This rule is the same if the initial trial is held under the military justice system, regardless of whether it is summary trial or court martial.

27. The rule also applies to substantially similar charges arising out of the same circumstances.48 For example, a service member in uniform is accused of hitting another member, who is a superior officer to the accused, at a civilian bar. If the member is charged and tried by the civilian authorities for assault pursuant to section 266 of the Criminal Code, regardless of the outcome of the trial for that charge, the accused cannot subsequently be charged by the military authorities for Striking a Superior Officer pursuant to section 84 of the NDA.49

28. This rule does not apply to a subsequent charge arising from the same circumstances, which is not a substantially similar charge. Using the above example, the accused cannot be charged with striking a superior officer; however, given the importance of maintaining discipline in the CF, the accused may be charged with Drunkenness.50

29. There are three exceptions to this general rule. The first exception is where the conviction at summary trial or court martial is quashed or set aside by the review authority.51 The second would only occur following court martial where a petition for a new trial is granted52. The third exception would arise where the finding at a court martial is appealed, and in allowing the appeal the CMAC or the Supreme Court of Canada directs that a new trial be held.53 Therefore, in such cases the accused could be tried again for the same offence, provided the service authority decides to proceed with a second trial.

30. Within the military justice system, the rule against double jeopardy also applies with respect to offences admitted at court martial. At the sentencing stage of a court martial, the accused can admit additional service offences that are similar in nature to the offence for which the accused has been convicted.54 If the admitted offence is considered in sentencing, the accused cannot later be tried by court martial or summary trial for the admitted offence.55

SECTION 2 - JURISDICTION TO PROCEED BY SUMMARY TRIAL

General

31. Not every service member who has been charged with a service offence will have the matter heard by summary trial. The factors that determine whether an offence will be tried by summary trial include the rank or status of the accused and the specific offence with which the accused has been charged.

32. In general, when a service member below the rank of lieutenant-colonel is charged with one of the following service offences defined in the NDA, jurisdiction exists for the accused to be tried by summary trial:

  • 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
  • 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
  • 120 Offences in Relation to Billeting
  • 122 False Answer on Enrolment
  • 123 Assisting Unlawful Enrolment
  • 125 Offences in Relation to Documents
  • 126 Refusing Immunization, Tests, Blood Examination or Treatment
  • 127 Negligent Handling of Dangerous Substances
  • 129 Conduct to the Prejudice of Good Order and Discipline (including the offence of being a party to or attempting to commit one of the offences listed in this paragraph)
  • 130 Service Trial of Civil Offences, in respect of one of the civil offence referred to below:
    1. in respect of the Criminal Code
      • 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;
    2. in respect of the Controlled Drugs and Substances Act
      4(1) Possession of a Substance56

Jurisdiction of Presiding Officers

33. The three types of summary trials are differentiated by the status of the officer who will be presiding over the summary trial: commanding officers, delegated officers and superior commanders. The jurisdiction for each of these officers to act as presiding officer is provided in the NDA and the QR&O which specifically prescribe who the officers may try, the offences over which they have jurisdiction, and the officer's powers of punishment. The specific jurisdiction given to each class of presiding officer is as stated below.

34. Commanding Officers. A CO is the officer in command of a base, unit or element, except when otherwise directed by the CDS; or, any other officer designated as a CO by or under the authority of the CDS.57 For the purposes of proceeding under the Code of Service Discipline, a CO also includes a detachment commander, and in relation to the accused, it further includes the following:

  1. the CO of the base, unit or element to which the accused belongs, or in which the accused is present when proceedings in respect of the accused are taken under the Code of Service Discipline;
  2. where the accused is a CO, the next superior officer to whom the CO is responsible in matters of discipline or such other officer as the CDS may designate; and
  3. the executive officer of a ship, where there is no superior commander on board or in company with the ship.58

35. A CO has the discretion to try an accused charged with any offence detailed in QR&O article 108.0759 provided the following conditions are satisfied:

  1. the accused is either an officer cadet or non-commissioned member below the rank of warrant officer;
  2. having regard to the gravity of the offence, the CO considers that the powers of punishment are adequate;
  3. the accused has not elected to be tried by court martial;60
  4. the offence is not one that the regulations preclude the CO from trying; and
  5. the CO does not have reasonable grounds to believe the accused is unfit to stand trial or was suffering from a mental disorder61 when the alleged offence was committed.62

36. COs have jurisdiction to award the punishments of detention, reduction in rank, reprimand, fine, confinement to ship or barracks, extra work and drill, stoppage of leave, or caution.63

37. Additional limitations on the jurisdiction of officers to preside at a summary trial, are reviewed in detail in Section 3 of this Chapter. A checklist detailing the role of COs at summary trial is attached at Annex P.64

38. Delegated Officers. Any officer to whom a CO has delegated powers of trial and punishment pursuant to subsection 163(4) of the NDA is a delegated officer.65 The jurisdiction of a delegated officer is determined by QR&O and the written delegation provided by the CO.

39. The NDA and QR&O place limitations on the ability of COs to delegate their powers of trial and punishment:

  1. delegated officers must be under the command of the CO who is delegating the powers;66
  2. delegated officers must hold the rank of captain or above;67
  3. delegated officers must be trained and certified as being qualified to perform the duties of a delegated officer;68
  4. only the power to try officer cadets NCMs below the rank of warrant officer may be delegated;69
  5. only the power to try accused members charged with the service offences listed in QR&O 108.07 may be delegated.70 However, NDA section 130 offences, which are listed in article 108.07 may not be delegated;71 and

40. The QR&O restrict the delegated officer's powers of punishment to reprimand, a fine of not more than 25% of the accused's basic monthly pay, 14 days confinement to ship or barracks, 7 days extra work and drill, 14 days stoppage of leave or a caution.72

41. COs have the discretion to delegate their powers of trial and punishment to the full extent allowed by regulation or they may limit the delegated officer's powers. While the considerations to be taken by a CO when exercising this discretion are not listed in QR&O, the delegated officer's rank, degree of experience and the requirements within the unit may well be relevant. All delegations of power by the CO must be in writing and the delegated officer identified by name, or by reference to the officer's appointment, or the duties the officer performs.73 Any restrictions placed on the delegated officer's powers of punishment by the CO should be set out in the written delegation of power.74

42. A delegated officer should not normally exercise jurisdiction over an NCM who is not a member of, but who is present at, the unit to which the delegated officer belongs where the trial could just as conveniently be conducted by that delegated officer's CO or by the accused's CO.75

43. Additional limitations on the jurisdiction of officers to preside over a summary trial are reviewed in detail in Section 3 of this Chapter. A checklist detailing the role of delegated officers at summary trial is attached at Annex Q.76

44. Superior Commander. According to the NDA, the following officers are considered to be superior commanders:

  1. officers of the rank of brigadier-general or above; and
  2. any officer appointed by the CDS to be a superior commander.77

45. According to the regulations, the CDS has appointed the following categories of officers to be superior commanders:

  1. officers other than general officers who are commanding a formation, including base commanders not below the rank of lieutenant-colonel and commanders of squadrons of HMC Ships; and
  2. commanding officers of HMC Ships when there is no superior commander on board or in company with the ship.78

46. Individual appointments may also be made when necessary for a particular military operation such as peace support operations.79 Details of individual appointments are available from the Office of the JAG.

47. Superior commanders have the jurisdiction to try an accused by summary trial provided the following conditions are satisfied:

  1. the accused 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 the powers of punishment, which include severe reprimand, reprimand, or fine up to 60% of the accused's monthly basic pay, are adequate;80
  3. the accused has not elected to be tried by court martial;81
  4. the offence is not one that the regulations preclude the superior commander from trying. Superior commanders are specifically authorized to try an accused for any offence set out in QR&O 108.0782; and
  5. the superior commander does not have reasonable grounds to believe that the accused is unfit to stand trial or was suffering from a mental disorder83 when the alleged offence was committed.84

A superior commander may exercise summary trial jurisdiction when a charge has been referred to the superior commander by a commanding officer, or by another superior commander.85

48. Additional limitations on the jurisdiction of officers to preside over a summary trial are reviewed in detail in the following Section of this Chapter. A checklist detailing the role of superior commander at summary trial is attached at Annex R.86

SECTION 3 - LIMITATIONS ON JURISDICTION

General

49. There are a number of factors that will affect the jurisdiction of officers to act as presiding officers at summary trial, and when these factors exist, the presiding officer may be precluded from trying the matter.

Election

50. An accused has the right to elect trial by court martial for all but a very limited number of service offences where the likely punishment is also limited.87 When an accused is charged with an offence that carries the right to elect trial by court martial, the accused must be informed of that right before the summary trial begins, and be given a reasonable opportunity of not less than 24 hours to consult counsel and make a decision on the election. There may also be circumstances when an election must be given to the accused during the course of the summary trial.88 If the accused elects trial by court martial, the presiding officer cannot conduct a summary trial, and must refer the matter to the another authority.89 For more information see Chapter 12, Election.

Previous Involvement in the Case

51. Certain involvement in a case by the presiding officer prior to the summary trial, will affect that presiding officer's jurisdiction to act. A presiding officer who has carried out or directly supervised the investigation of an offence, has issued a search warrant, or has laid or caused a charge to be laid with respect to an offence, may not preside at the summary trial of the person charged with that offence. The only way the presiding officer should try the summary trial in such a case is, if in all the circumstances, it is not practical to have another presiding officer try the matter.90

52. The obvious concern in any case where the presiding officer has been involved in laying the charge, issuing a search warrant, or with the investigation, is that the presiding officer may appear to be biased or interested in the outcome of the case as a result of that prior involvement. While a presiding officer may not have engaged in any of these activities the degree of previous involvement should always be considered when determining whether it would be inappropriate for the officer to try the case having regard to the interests of justice and discipline.91

53. This does not mean that presiding officers must totally distance themselves from a case they may be required to try. As part of the presiding officer's normal duties, the presiding officer must review the investigation report or be familiar with the general circumstances of a case. It is a general requirement of command that an officer know what is occurring in a unit, and such general knowledge does not preclude that officer from trying the accused. Moreover, investigation reports must necessarily be used when making certain pre-trial determinations. However, presiding officers must base their findings at summary trial on the actual evidence received at trial.92

Mental Fitness of the Accused

54. A presiding officer must not conduct a summary trial when 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 the alleged offence was committed.93

55. The term unfit to stand trial means:

Unable on account of mental disorder to conduct a defence at any stage of a trial by court martial before a finding is made or to instruct counsel to do so, and in particular, unable on account of mental disorder to:

  1. understand the nature or object of the proceedings,
  2. understand the possible consequences of the proceedings, or
  3. communicate with counsel.94

56. Mental disorder means “a disease of the mind”,95 and this term includes any illness, disorder or abnormal condition, which impairs the human mind and its functioning. However, mental disorder does not include self-induced states caused by alcohol or drugs, or transitory mental states such as hysteria or concussion.

57. The assessment of an accused person's fitness to stand trial is a complicated legal area and requires careful consideration of current legislation and case law with respect to whether mental fitness, unfitness or a mental disorder may be present at any given time, and if so, what the legal consequences will be. If a question regarding the mental fitness or possible mental disorder of an accused arises, the advice of unit legal advisor should be sought.

Interests of Justice and Discipline

58. An officer, having summary trial jurisdiction would be precluded from trying a case where it would be inappropriate to do so having regard to the interests of justice and discipline.96 Variations of this wording appear in the Criminal Code, and the NDA.97 The regulations do not specify what the interests of justice and discipline require since this will largely depend on the circumstances of the case. Therefore, it is important to understand what is meant by the phrase and how it is to be employed.

59. The interests of justice portion of the phrase has been judicially considered. It is commonly employed as a judicial yardstick when exercising a discretion to decide how to proceed or whether to act in the circumstances of a particular case. The term encompasses both:

  1. the interests of the accused including the accused member's interest in having legal rights and procedural safeguards respected; and
  2. the interests of the state98 including the requirement that members and others who commit offences be duly convicted and punished and the related need to maintain public confidence in and respect for the administration of military justice.

These interests may sometimes appear to be in conflict. This explains the importance of the decision-maker's role in assessing the weight to be accorded to the various interests when determining what the interests of justice require in the circumstances of a particular case.

60. While the phrase interests of justice includes both individual and collective interests, not all interests of justice relate to interests held exclusively by either the accused or the state. Examples of shared interests would include the interest in ensuring that:

  1. the decision-maker acts fairly;
  2. the procedures set out in regulations are observed;
  3. each side has an opportunity to be heard;
  4. each meritorious issue is resolved; and
  5. the matter is brought to a final resolution.

61. To illustrate how the interests of justice determination might be applied in a particular case, imagine a situation where a potential presiding officer has had a close personal relationship with the accused or with a witness who was to be called to give evidence at a summary trial. To an impartial observer, it might appear that such an individual would be biased and therefore incapable of acting as a fair decision-maker. In such a case, it would not be in the interests of justice for such an officer to preside at the summary trial.99

62. The interests of discipline portion of the phrase interests of justice and discipline refers, in its broadest sense, to the requirement to maintain discipline and, by implication, military efficiency at all levels of the CF, in Canada and abroad, in time of peace or armed conflict. At the unit level, the interests of discipline further require that unit authorities' responsibilities in respect of the Code of Service Discipline be exercised promptly and fairly. This would include presiding officers' duties in respect of members charged with minor service offences and is fully in keeping with the purpose of summary proceedings100 and the unit's obligation to act expeditiously.101

63. To illustrate how the interests of discipline determination might be applied in a particular case, imagine a situation where there have been numerous summary trial convictions for the same offence within a unit over a short period of time – such as 15 convictions for negligent discharge of weapons during the first 3 months of a deployment. The unit CO may well be concerned that unit discipline is not being effectively maintained given the high frequency of negligent discharges. In such circumstances, it may well be appropriate, in the interests of discipline, for the CO to refer any subsequent charge of this nature to a referral authority, with a view to having the matter dealt with by a court martial, rather than by summary trial.

SECTION 4 - PRE-TRIAL DETERMINATIONS

64. Before commencing a summary trial, an officer having summary trial jurisdiction102 must make several determinations in order to ascertain whether the officer would be precluded from trying the case.103 In doing so, the following factors must be considered:

  1. the accused's rank or status;104
  2. any limitations on the officer's power to try the offence, having regard to:
    1. the specific offence charged;
    2. the prohibition on presiding where the officer: conducted or supervised the investigation; laid or caused the charge to be laid; issued a search warrant in the matter; and
    3. where the officer is a delegated officer, any limitation contained in the CO's delegation of authority.105
  3. the adequacy of the presiding officer's powers of punishment having regard to the gravity of the alleged offence;106
  4. whether there are reasonable grounds to believe that the accused is unfit to stand trial or was suffering from a mental disorder at the time the alleged offence was committed;107
  5. whether it would be inappropriate for the officer to try the case having regard to the interests of justice and discipline;108 and
  6. whether the accused has elected to be tried by court martial.109

65. For presiding officers to assess whether they are precluded from trying the case on any of the above grounds, they must be sufficiently aware of the circumstances of the case and of the accused. This issue is dealt with under Section 3 of this Chapter.

66. If it is determined that the presiding officer is not precluded from trying the case, the presiding officer must then proceed with the summary trial.110 However, if the determination is that the presiding officer is precluded from trying the accused, with respect to any of the factors detailed in paragraph 64 above, then the presiding officer must refer the matter to another authority.111 The procedure to be used for referring to another authority is set out in Section 6 of this chapter.

SECTION 5 - DETERMINATIONS OF JURISDICTION DURING THE SUMMARY TRIAL

67. Even where it has been determined that an officer has summary trial jurisdiction, that jurisdiction can be lost at any time due to a change in the circumstances of the case.

68. One situation where the presiding officer could lose jurisdiction to continue with a summary trial might arise during the trial for one of the five minor offences listed in QR&O 108.17.112 In the event an election was not initially required and the presiding officer, being either a CO or superior commander, decides in the circumstances that if the accused is found guilty a punishment of detention, reduction of rank or a fine in excess of 25% of the accused's monthly basic pay would be appropriate, the presiding officer must give the accused the opportunity to elect trial by court martial.113

69. This requirement only applies to COs and superior commanders who are acting as the presiding officer since delegated officers do not have the power to impose punishments of detention, reduction in rank or a fine in excess of 25% of the monthly basic pay.114 Instead, where the delegated officer's powers of punishment would be inadequate, the delegated officer would adjourn the trial and refer the matter to the CO.115

70. The procedure for giving the election during a summary trial, is the same procedure used when the election is given before the trial.116 If the accused elects trial by court martial, the presiding officer cannot continue with the summary trial and must refer the case to another authority.117

71. In addition, if during the summary trial the presiding officer determines there are reasonable grounds to believe the accused is unfit to stand trial or was suffering from a mental disorder at the time of the alleged offence, the presiding officer must adjourn the trial and refer the case to another authority.118 Similarly, if the presiding officer determines that it would be inappropriate to continue trying the case having regard to the interests of justice or discipline, the presiding officer must adjourn and refer the case.119

SECTION 6 - REFERRAL

72. The regulations allow certain service authorities to refer charges to other service authorities in a number of circumstances. The regulations stipulate when a charge or case is to be referred, to whom the charge or case can be referred, and the procedures to be used.

73. While charges may be referred to any number of service authorities in accordance with QR&O, the term referral authority only refers to those specific officers who may refer a charge to the Director of Military Prosecutions (DMP) for disposal. The CDS and any officer having the power of an officer commanding a command are designated as referral authorities in the regulations.120

Referral and Pre-Trial Disposal of Charges

74. The QR&O set out specific requirements and procedures for the referral of charges by the member who laid the charge. These requirements and procedures are discussed at Section 2 of Chapter 8, Laying of Charges.

Referral of Charges before Summary Trial

75. There are circumstances where an officer having summary trial jurisdiction would be precluded from commencing a summary trial, and would have to refer the matter to another authority. The QR&O dictate the procedures to be used to refer the charge. These procedures vary somewhat depending on whether the officer is acting as a delegated officer, CO, or superior commander or a referral authority.

76. Before a summary trial commences, if it is determined that the officer is precluded from hearing the matter as a presiding officer, the officer must do the following:

  1. if the officer is a delegated officer, refer the charge to the CO or, where appropriate, to another delegated officer;121
  2. if the officer is a CO, refer the charge to a superior commander, to a referral authority or, where appropriate, to another CO;122
  3. if the officer is a superior commander who is not a referral authority, refer the charge to a referral authority or, where appropriate, to another superior commander;123 or
  4. if the officer is a superior commander who is a referral authority, refer the charge to the DMP or, where appropriate, to another superior commander.124

77. If a charge is referred as provided above, the accused and the assisting officer must be informed of the action taken.125 In addition, any referrals must be noted on Part 4 of the RDP and any correspondence related to the referral must be attached to the RDP.126

78. Referral to a CO by Delegated Officer. When a delegated officer refers a charge to the CO, there is particular action that the CO must take.

79. If the referral is made because the accused has elected to be tried by court martial, then the CO may chose not to proceed with the charge if, in the CO's opinion, the charge should not be proceeded with.127 Alternatively, the CO may choose to refer the charge to a referral authority.128

80. If the case has been referred to the CO for any reason other than the accused electing to be tried by court martial, the CO may do one of the following:

  1. not proceed with the charge if, in the CO's opinion, the charge should not be proceeded with;
  2. refer the charge back to the delegated officer or to another delegated officer for trial;
  3. try the accused if the CO has the power to do so, and in the CO's opinion it would be appropriate to do so;
  4. refer the charge to a superior commander or, where appropriate, to another CO; or
  5. refer the charge to a referral authority.129

81. Referral to a Superior Commander by CO. When a CO refers a charge to a superior commander, the superior commander may do one of the following:

  1. not proceed with the charge if in the superior commander's opinion the charge should not be proceeded with;
  2. when the accused is a NCM below the rank of warrant officer, refer the case back to the CO or to another CO with directions to proceed with the summary trial unless the accused has elected trial by court martial;
  3. try the accused if the superior commander has the power to do so and if in the superior commander's opinion, it would be appropriate to do so;
  4. if the superior commander is not a referral authority, refer the charge to a referral authority, or where appropriate, to another superior commander; or
  5. if the superior commander is a referral authority, refer the charge to the DMP, or where appropriate, to another superior commander.130

Referral of Charges During Summary Trial

82. During a summary trial, the circumstances of the case or the presiding officer's perception of those circumstances may change in a way that affects the jurisdiction of the presiding officer to try the matter.131 In such a situation, the trial must be adjourned and the charge referred to another authority. The status of the presiding officer and the reason for the adjournment and referral determines to which authority the charge is referred.

83. If during a summary trial the presiding officer decides the accused is unfit to stand trial or was suffering from a mental disorder at the time of the alleged offence, or that it is inappropriate for the presiding officer to try the matter in the interests of justice and discipline, then the presiding officer shall adjourn the summary trial and refer the case as follows:

  1. if the officer is a delegated officer, refer the case to the CO, or where appropriate, to another delegated officer;
  2. if the officer is a CO, refer the case to a superior commander, to a referral authority, or where appropriate, to another CO;
  3. if the officer is a superior commander who is not a referral authority, refer the case to a referral authority 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 DMP, or where appropriate, to another superior commander.132

84. If a charge is referred as provided above, the accused must be informed of the action taken.133 In addition, any referrals must be noted on Part 4 of the RDP and any correspondence related to the referral must be attached to the RDP.134

85. It would normally not be appropriate to refer a charge to another presiding officer of the same status when the presiding officer has decided that the accused is unfit to stand trial or was suffering from a mental disorder at the time of the alleged offence, or when the presiding officer concludes the powers of punishment are not adequate in the circumstances.

86. As discussed in Section 5, circumstances may arise during the summary trial, which require the trial to be adjourned and the accused given the opportunity to elect trial by court martial. Should the accused elect trial by court martial, the presiding officer must refer the case in the same manner as had the election been made before the summary trial commenced.135 See paragraph 76 for more detail.

Application to Referral Authority For Disposal of a Charge

87. Applications to a referral authority can be made by a CO, a superior commander, or by any member of the NIS. QR&O detail the form that the application must take, what must be included in the application, what must accompany the application and the action which is to be taken by a referral authority on receipt of the application.136

88. All applications must be in the form of a letter and forwarded directly to the appropriate referral authority. The application must include the reasons for the application, a brief summary of the circumstances surrounding the commission of the alleged offence and the evidence disclosed by the investigation that supports the charge, and any recommendation that may be considered appropriate concerning the disposal of the charge.137 Other documentation that must accompany the application includes the following:

  1. the RDP;
  2. a copy of any report of investigation conducted pursuant to Chapter 106;
  3. when an application is forwarded by a member of the NIS, the written reasons provided by the CO or superior commander for not proceeding with the charge;
  4. the accused's conduct sheet, if there is one; and
  5. the record of service or a certified copy of the certificate of service of the accused, if available.138

89. If an application is forwarded to a referral authority, who is not the immediate superior in matters of discipline of the CO or superior commander who is making the application, a copy of the application must be forwarded to the officer's immediate superior in matters of discipline.139 Further, if an application is forwarded by a member of the NIS, a copy of the application must be sent to the CO or superior commander who decided not to proceed with the charge, and to the officer to whom that CO or superior commander is responsible in matters of discipline.140

90. When an application is made to a referral authority for disposal of a charge, the commanding officer or superior commander shall cause a copy of the application and the RDP, together with a copy of the report of investigation conducted in accordance with Chapter 106 to be placed on the Unit Registry.141 Also see Chapter 16, Post-trial Administration.

91. When an application is made to the referral authority, the accused's CO must cause the accused to be advised of the application and inquire whether the accused:

  1. wants legal counsel to be appointed by the Director of Defence Counsel Services (DDCS) to represent the accused;
  2. intends to retain legal counsel at the accused's own expense; or
  3. does not require legal counsel at that time.142

92. When the accused wants legal counsel to be appointed by the DDCS143 to represent the accused, the CO must determine if the accused prefers a particular legal advisor, or if the accused is willing to accept any legal advisor. The CO must also inform the DDCS of the accused's wishes.144 Should the accused request to be represented by a particular legal advisor, the DDCS must attempt to have that officer made available for that purpose, but if that legal advisor is not available, the DDCS must ensure that another legal advisor is made available.145

Action by Referral Authority

93. Upon receipt of an application for disposal of a charge, the referral authority must either forward the application to the DMP, with any recommendations regarding the disposal of the charge that the referral authority considers appropriate,146 or direct that a CO or superior commander try the accused by summary trial in respect of the charges referred.

94. A referral authority will only be able to direct that a CO or superior commander try the accused by summary trial if:

  1. the charge was referred because the CO or superior commander did not consider their powers of punishment to be adequate to try the accused by summary trial; and
  2. the referral authority believes the CO or superior commander has adequate powers of punishment to try the accused by summary trial.147

Footnotes

1 The Concise Oxford Dictionary, 9th ed. (Toronto: Oxford University Press, 1995) at 737.

2 Black's Law Dictionary, 5th ed. (St. Paul, Minnesota: West Publishing Co., 1979) at 766.

3 QR&O 108.16(3) and 108.34(2).

4 NDA s. 60(1) (a) and (c). Members of the reserve force are not subject to the Code of Service Discipline at all times, and s. 60(1) (c) of the NDA sets out the specific circumstances in which they are subject to the Code of Service Discipline.

5 NDA s. 60(1) (b). Pursuant to s. 16 of the NDA, the Government of Canada may establish a component of the CF, known as a "special force," for any action undertaken by Canada under the United Nations Charter, North Atlantic Treaty or any other similar instrument for collective defence entered into by Canada.

6 NDA s. 60(1)(d).

7 NDA s. 60(1)(g).

8 NDA s. 60(1)(h).

9 QR&O 1.03(2).

10 NDA s. 60(1)(e) Note 6.

11 NDA s. 60(1)(f).

12 NDA s. 60(1)(i).

13 NDA s. 60(1)(j).

14 NDA s. 60(2).

15 NDA s. 60(1)(c) and QR&O 102.01.

16 Pursuant to QR&O 2.034 there are two other much smaller sub-components of the Reserve Force: the Cadet Instructors Cadre and the Canadian Rangers.

17 QR&O 2.034(b).

18 QR&O 2.034(a).

19 QR&O 9.08.

20 QR&O 9.07.

21 QR&O 9.06.

22 Two examples where courts martial have reached this conclusion are: R. v. Cpl Foley, Courts Martial Transcript, 33/1987; R. v. MCpl Erath, Courts Martial Transcript, 60/1990. In certain circumstances, members of the reserve force may be lawfully ordered to train (see QR&O 9.04(2)). However, there are no procedures available under the Code of Service Discipline to compel such members to report for the training. In order to enforce such an order by proceeding against the member under the Code of Service Discipline, the member must submit to military jurisdiction by engaging in any of the circumstances listed in paragraph 8 above. In addition, the NDA provides, in Part 12, a number of offences that can be prosecuted by civil courts and includes failure to attend parade. Such prosecutions must be commenced within 6 months after the date the alleged offence was committed and require the written consent of the accused's CO. Before any investigation or prosecution is commenced under Part 12, the unit legal advisor should be consulted.

23 NDA s. 33(4).

24 NDA s. 273.6 (1).

25 NDA 273.6(2).

26 NDA 273.6(3).

27 Minister of National Defence Provision of Services Order, effective 1 November 1997, B-GS-055-000/AG-001.

28 NDA s. 31 and QR&O 9.01.

29 NDA s.31(2).

30 QR&O 9.04(2).

31 NDA s. 33(2) and (3).

32 QR&O 1.02 provides the meaning of the term emergency for this Section: emergency means war, invasion, riot or insurrection, real or apprehended.

33 QR&O 9.04(3). The Governor in Council could do the same thing under an Order in Council pursuant to NDA s. 31(1).

34 QR&O 101.01(1)(b)(i) and 108.16 Notes B and C.

35 NDA ss. 163 & 164, and QR&O 108.06, 108.07, 108.09, 108.10, 108.12, 108.25 and 108.13. See also Section 2 of this Chapter on Jurisdiction to Proceed by Summary Trial.

36 Brown v. R., [1995] CMAC-372, R. Catudal (1985), 18 C.C.C. (3d) 189, and R. v. MacEachern (1985), 4 C.M.A.R. 447, R. v. MacDonald (1983), 4 C.M.A.R. 277.

37 MacKay v. The Queen (1980), 54 C.C.C.(2d) 129 (S.C.C) as quoted in Brown v. R., [1995] CMAC-372.

38 R. v. Reddick (1996), 112 C.C.C. (3d) 491. In this case the CMAC concluded that the issue of military nexus is no longer relevant and there is no longer any burden on the prosecution to demonstrate that military nexus exists. Prior to the decision in R. v. Reddick, it was the practice that an accused could bring a preliminary motion calling into question the military nexus of the offence with which the accused was to be tried. The prosecution would then have to prove that there was sufficient military nexus before the trial could proceed. All such applications had to be heard and decided upon on a case-by-case basis.

39 NDA s. 162.3 defines superior commanders as “officers of the rank of brigadier-general or above and officers appointed by the Chief of Defence Staff”, see also QR&O 108.12 Note A, and Section 2 of this Chapter. Commanding Officers are defined at QR&O 1.02 and 101.01(1).

40 NDA s.163(4) and QR&O 108.03. QR&O 108.10 provides the authority for COs to delegate powers of trial and punishment to a delegated officer.

41 See also Chapter 13, Conduct of Summary Trial, para 5-8.

42 In R. v. Tobjinski, Courts Martial Transcript 89/1989, the Court stated the following on the effect of missing a limitation period: “…there seems to be no dispute that the period of liability of the accused under the Code of Service Discipline has elapsed and that this court has no jurisdiction to proceed with the trial of the accused in respect of the fourth charge”.

43 NDA Section 69(b) and QR&O 108.05. See Chapter 13, Conduct of Summary Trials, Section Two.

44 A summary trial commences when the accused, accompanied by the assisting officer, is brought before the presiding officer and the presiding officer takes the oath and causes the charges to be read (QR&O 108.05 Note).

45 NDA s. 70. Sections 280 to 283 of the Criminal Code relate to the abduction of children from a parent or guardian.

46 NDA s. 97 and QR&O 103.30.

47 NDA s. 66(1) and (2), see also QR&O 102.17.

48 In Kienapple v. The Queen (1974), 15 C.C.C. (2d) 524, the Supreme Court of Canada held that there can not be multiple convictions for the same cause or matter (delict).

49 QR&O 103.17.

50 NDA s. 97.

51 NDA s.249.11 and QR&O 115.12.

52 NDA s.249.16, see also QR&O 103.30.

53 NDA s. 238(1) and s. 245(3), see also QR&O 102.17.

54 NDA s. 194.

55 NDA s.66(3), see also QR&O 102.18.

56 QR&O 108.07 (2) and (3) and QR&O 108.125.

57 QR&O 1.02 definition of "commanding officer". Further, QR&O 3.23 authorizing a Commanding Officer to designate an acting CO may not apply to COs designated by or under the authority of the CDS. R. v. Gallagher, (Courts Martial Transcript, 21 October 1997).

58 QR&O 101.01(1).

59 The offences in QR&O 108.07 are listed in para. 32 of this Chapter.

60 The procedure involved in making such an election is reviewed in Section 3 of this chapter and also Chapter 12, Elections.

61 The terms "unfit" to stand trial, and "mental disorder" are defined in Section 3 of this chapter.

62 NDA 163(1) and QR&O 108.06.

63 QR&O 108.24. See also Chapter 14, Sentencing and Punishment.

64 This checklist is a guide only. It must be used in conjunction with the appropriate sections of QR&O and this Manual.

65 QR&O 108.03.

66 NDA 163(4) and QR&O 108.10(1).

67 QR&O 108.10(2)(a).

68 QR&O 108.10(2).

69 QR&O 108.10(2)(b).

70 The offences in QR&O 108.07 are listed in para. 32 of this Chapter.

71 QR&O 108.10(2)(c). The offences in QR&O 108.07 are listed in para. 32 of this Chapter.

72 See Table to QR&O 108.25. Some of these punishments may be combined and some may only be imposed on Master Corporals and below.

73 QR&O 108.10(3).

74 QR&O 108.25.

75 QR&O 108.10 Note B.

76 This checklist is a guide only. It must be used in conjunction with the appropriate sections of QR&O and this Manual.

77 NDA s. 162.3 and QR&O 108.12 Note A.

78 QR&O 108.12 Note A.

79 QR&O 108.12 Note A.

80 See the Table to QR&O 108.26.

81 The procedures involved in making an election is reviewed in Section 3 of this Chapter and also Chapter 12, Election.

82 QR&O 108.125. The offences set out in QR&O 108.07 are listed in para. 32 of this chapter.

83 The terms "unfit to stand trial", and "mental disorder" are defined in Section 3 of this Chapter.

84 NDA s. 164 and QR&O 108.12.

85 QR&O 108.12 Note B.

86 This checklist is a guide only. It must be used in conjunction with the appropriate sections of QR&O and this Manual.

87 QR&O 108.17(1).

88 During a summary trial for one of the five minor offences, where an election is not initially required, if the presiding officer is a CO or superior commander and decides in the circumstances that if the accused is found guilty a punishment of detention, reduction of rank or a fine in excess of 25% of the accused's monthly basic pay would be appropriate, the presiding officer must stop the summary trial and give the accused the opportunity to elect a new trial by court martial (QR&O 108.17(6)). See also Section 5 in this chapter on Determinations of Jurisdiction During the Summary Trial.

89 QR&O 108.16(3).

90 NDA ss. 163(2) and 164(2) and QR&O 108.09, 108.09 Note and 108.13.

91 QR&O 108.16 (a) (v).

92 QR&O 108.21 Note C lists pre-trial duties that would require the presiding officer to use the investigative report before the summary trial, such as, with respect to referral and pre-trial disposal of a charge (QR&O 107.09), pre-trial determinations (QR&O 108.16), election to be tried by court martial (QR&O 108.17) etc.

93 QR&O 108.16 (1)(a)(iv).

94 QR&O 119.02.

95 QR&O 119.02.

96 QR&O 108.16(1)(v).

97 See for example ss. 276(4) of the Criminal Code, s.16 of the Supreme Court Act, and NDA ss. 180(2).

98 In the broadest sense, the phrase "interests of the state" may be taken to mean the interests of the public at large. In a military justice context, the public would include the military public. The interests of the state are incorporated into the decision-making process through duties imposed on various participants in the military justice system. For example, the Director of Military Prosecutions will consider, among other factors, the public interest when considering whether a charge should be proceeded with by court martial.

99 The key to this circumstance is whether there would be an apprehension of bias. For there to be a reasonable appearance of bias, the relationship between the presiding officer and the witness should be more than a passing professional or social acquaintance. For example, speaking to someone at the mess occasionally or attending meetings that include the other person should not lead to anapprehension of bias. However,ifthe presiding officer andwitness are golfing partners, or work closely together on a regular basis, it is more likely and reasonable that an apprehension of bias will exist. See also Chapter 4, Fairness and the Application of the Charter.

100 QR&O 108.02.

101 QR&O 107.08.

102 In most cases an officer having summary trial jurisdiction will become a presiding officer once the trial commences.

103 QR&O 108.16.

104 QR&O 108.16(1)(a)(i).

105 QR&O 108.10 and 108.16(1)(a)(ii).

106 QR&O 108.16(1)(a)(iii).

107 QR&O 108.16(1)(a)(iv). See also discussion at Section 3 of this Chapter.

108 QR&O 108.16(1)(a)(v).

109 QR&O 108.16(1)(b). See also discussion at Section 3 of this Chapter.

110 QR&O 108.16(2). See also Chapter 13, Conduct of Summary Trials.

111 QR&O 108.16(3). See also Section 6 in this Chapter.

112 The following are the offences listed in QR&O 108.17(1)(a):

  • 85 (Insubordinate Behaviour);
  • 86 (Quarrels and Disturbances);
  • 90 (Absence Without Leave);
  • 97 (Drunkenness); and
  • 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 workspace, or dress and deportment.

113 QR&O 108.17(6).

114 QR&O 108.17(6) Note A.

115 QR&O 108.34. See Section 6 of this Chapter, Referral.

116 QR&O 108.17(6).

117 See Section 6 of this Chapter for the procedure involved in making a referral.

118 QR&O 108.34(1)(a). See Sections 3 and 4 of this Chapter.

119 QR&O 108.34(1)(b). See Sections 3 and 4 of this Chapter.

120 QR&O 109.02.

121 QR&O 108.16(3)(a).

122 QR&O 108.16(3)(b).

123 QR&O 108.16(3)(c).

124 QR&O 108.16(3)(d). For example, it would be appropriate for the superior commander to refer the charge to another superior commander instead of to the DMP directly, in the situation where it is alleged that the superior commander is biased against the accused.

125 QR&O 108.16(4).

126 See the RDP provided in QR&O 107.07.

127 QR&O 107.09(3)(b).

128 QR&O 108.19(1).

129 QR&O 108.19(2).

130 QR&O 108.195.

131 See Section 5 of this Chapter for further detail.

132 QR&O 108.34.

133 QR&O 108.34(3).

134 See the RDP provided in QR&O 107.07.

135 QR&O 108.17(6). See also Section 5 of this Chapter; Chapter 13, Conduct of Summary Trials; and Chapter 12, Elections.

136 QR&O 109.03 and 109.05.

137 QR&O 109.03(1) and (2).

138 QR&O 109.03(6).

139 QR&O 109.03(3).

140 QR&O 109.03(5).

141 QR&O 107.14(3).

142 QR&O 109.04(1).

143 QR&O 109.04(2).

144 QR&O 109.04(3).

145 QR&O 109.04(4).

146 QR&O 109.05(1).

147 QR&O 109.05(2).

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