Supersedes A-LG-050-000/AF-001 dated 2002-08-31
Issued on Authority of the Chief of the Defence Staff
1. The requirement for a separate system of military justice has long been recognized in Canadian law. The safety and security of Canadians depend in large measure upon the efficiency and discipline of the Canadian Forces. For that reason, CF members are subject to the Code of Service Discipline in addition to the ordinary law applicable to all Canadians.
2. The Code of Service Discipline is designed to deal with service offences ranging from those that are minor in nature to those that are serious and criminal. Two categories of service tribunals have been established to deal with service offences: summary trials and courts martial. Summary trials are designed to provide prompt and fair justice in dealing with service offences that are relatively minor in nature but which have an important impact on the maintenance of military discipline and efficiency, in Canada and abroad, in time of peace or armed conflict.
3. The vast majority of charges under the Code of Service Discipline are dealt with by summary trial. Prior to holding a summary trial, the accused is given the opportunity to elect to be tried by court martial, except in the case of certain disciplinary offences where the circumstances surrounding the commission of the offence charged are considered to be minor in nature as provided in QR&O article 108.17 (Election to be Tried by Court Martial).
4. The purpose of this guide is to place the election to be tried by court martial in its procedural context and to provide a convenient summary, for use by accused service members and their assisting officers, of the differences between summary trials and courts martial, so that accused are in a position to make an informed election. This guide describes, in a general way, the jurisdiction of certain officers to conduct summary trials, the charging process, the role of the assisting officer and the process for the provision of information concerning charges to an accused.
5. Three categories of officers are authorized to conduct summary trials: commanding officers, officers to whom commanding officers have delegated certain powers of trial and punishment (delegated officers) and superior commanders. The jurisdiction of these officers is determined by the offences that they may try, the rank and status of the individuals that they may try and the powers of punishment that they possess.
6. Before superior commanders and commanding officers assume their duties, they must be trained in accordance with a curriculum established by the Judge Advocate General and certified as qualified to perform their duties in the administration of the Code of Service Discipline by the Judge Advocate General, pursuant to QR&O article 101.09 (Training and Certification of Superior Commanders and Commanding Officers).
7. QR&O article 108.10 (Delegation of a Commanding Officer's Powers) also requires the same training and certification for delegated officers to perform their duties in the administration of the Code of Service Discipline.
8. The decision whether or not to lay a charge under the Code of Service Discipline is made by a commanding officer, an officer or non-commissioned member authorized to do so by a commanding officer, or an officer or non-commissioned member of the Military Police assigned to investigative duties with the Canadian Forces National Investigation Service (see QR&O article 107.02 – Authority to Lay Charges). The facts surrounding the incident determine what, if any, charges are to be laid.
9. Generally speaking, it is the rule rather than the exception to seek legal advice before laying charges. Effectively, legal advice must be obtained, unless a person of or below the rank of sergeant is to be charged with one of five minor offences listed in QR&O article 107.03 (Requirement to Obtain Advice From Legal Officer – Charges To Be Laid) and the charge would not give rise to an election.
10. A charge is laid when it is reduced to writing on a Record of Disciplinary Proceedings (RDP) and signed by a person authorized to lay charges. A copy of the RDP must be provided to the accused. This guide is not intended to provide detailed information concerning specific types of charges, including any alternative charges which may be laid. That information may be found in QR&O Chapter 103 (Service Offences) and article 107.05 (Laying of Alternative Charges).
11. In accordance with QR&O article 108.14 (Assistance to Accused), as soon as possible after a charge has been laid, a commanding officer shall appoint an officer to assist the accused. A non-commissioned member above the rank of sergeant may be appointed in exceptional circumstances. Normally, the assisting officer will be a member of the accused's unit. However, there may be circumstances where it would be more practical to appoint as an assisting officer, a member of another unit such as, for example, where the accused's trial is to be held by the commanding officer of another unit or where, due to the small size of the unit, no officer is available to assist. An accused may also request that a particular officer be appointed to act as the assisting officer and that officer shaIl be made available if the officer is willing to act and the exigencies of the service permit.
12. The role of the assisting officer is to assist the accused, to the extent that the accused desires, in the preparation and presentation of his case. Two important facets of the assisting officer's role are to assist the accused to understand the nature of the proceedings during both the pre-trial and trial stages and to assist the accused in making an informed election.
13. Prior to the accused making an election with respect to trial by court martial, the assisting officer shall ensure that the accused is aware of:
14. Prior to the summary trial, the officer having powers of summary trial will, in accordance with QR&O article 108.15 (Provision of Information to Accused), ensure that the accused and the assisting officer are provided with or given access to any information to be relied on at the summary trial, including any information that tends to show that the accused did not commit the offence charged. The information will be made available in sufficient time to permit the accused to properly prepare for the summary trial and, where the accused is offered the right to elect to be tried by court martial, to consider the information in making the election (see QR&O article 108.17 – Election To Be Tried by Court Martial).
15. Information provided to the accused and the assisting officer would normally include a copy of the unit investigation report, a copy of any written statement made by a witness or the accused and a copy of any other documentary evidence that is not included in the unit investigation report. In the case of a military police report dealing with more than one individual or events not forming the basis of the charges to be heard, the accused would be provided only 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 charged.
16. Examples of the kind of information normally provided to the accused is set out in Note B to QR&O article 108.15 (Provision of Information to Accused). A list of all information provided is also attached to the Record of Disciplinary Proceedings provided to the accused.
17. Certain steps related to the process of laying charges, where they are taken by officers having powers of summary trial, may have an impact on the officer's ability to proceed with the case. Except in very limited circumstances, an officer may not conduct the trial where the officer has carried out or has directly supervised the investigation of an offence, issued a search warrant with respect to the case or where the officer has laid or recommended the charges relating to the offence (see 108.09 – Limitation on Jurisdiction – Investigations, Search Warrants and Charges).
18. Before the commencement of the summary trial, the officer having jurisdiction in the matter must determine if he is precluded from trying the accused (see QR&O article 108.16 – Pre-Trial Determinations) due to:
19. An accused person charged with a service offence triable by summary trial must be offered an election to be tried by court martial unless the offence is contrary to (see QR&O art. 108.17 – Election to be Tried by Court Martial):
20. Even where the offence is contrary to one of the provisions in paragraph 19 above, the presiding officer must offer the accused an election where he or she determines that detention, reduction in rank or a fine in excess of 25% of monthly basic pay could reasonably be imposed if the accused is found guilty of the offence (see QR&O 108.17 - Election to be Tried by Court Martial).
21. Where an accused has been offered the right to elect to be tried by court martial, the assisting officer must ensure that the accused is aware of the following:
22. An accused person will be given a reasonable period of time to make an election. That period, which shall not in any case be less than 24 hours, is intended to be of sufficient length to permit the accused to consider the charge and the information provided, to contact legal counsel if the accused wishes to do so, to decide whether to elect to be tried by court martial and to make the accused's decision known in the manner prescribed by the presiding officer. Should the accused not be able to make an election within the prescribed period, an extension may be requested. The accused will be required to record this decision on the Record of Disciplinary Proceedings in the presence of a witness in the manner prescribed by the officer having summary trial jurisdiction or in accordance with directions issued for that purpose within the unit.
23. The accused's refusal to make an election will be interpreted as an election to be tried by court martial, and the accused will be so advised.
24. Where an accused has elected to be tried by court martial, the accused may withdraw the election at any time before charges are preferred by the Director Military Prosecutions (DMP). After charges have been preferred by the DMP, the election may only be withdrawn with the consent of the DMP.
25. An officer exercising summary trial jurisdiction has a duty to ensure that the accused is provided with a reasonable opportunity, during the period given to make the election, to consult with legal counsel concerning the making of the election. Of course, the decision whether or not to actually consult counsel will be left up to the accused. As noted in paragraph 22 above, an accused may request additional time to make an election.
26. The assisting officer and the accused may consult legal counsel concerning the making of an election to be tried by court martial. Legal counsel from the office of the Director of Defence Counsel Services (DDCS) has been mandated to provide legal advice in these circumstances (see QR&O article 101.20(2)(c) – Duties and Functions of Director of Defence Counsel Services). They are available, normally by telephone, at no expense to the accused. An accused may consult civilian legal counsel at his or her own expense.
27. Instructions for contacting DDCS counsel for advice concerning the making of an election will ordinarily be available within each unit. In the event that those instructions are not available within the unit, the accused or the assisting officer should contact the nearest Office of the Judge Advocate General. In addtion, on the JAG'S Web site, you can find the phone number to reach the DDCS at the following address: http://jag.dwan.dnd.ca/mj_directorate_e.html#top
28. At any summary trial, an accused has the right:
29. The following summary highlights the important differences between a summary trial and a court martial:
The assisting officer must inform the accused of the right to submit a request for review. If requested by the offender, the commanding officer shall appoint an officer or non-commissioned member above the rank of sergeant to assist in the preparation of the offender's request for review. Where an offender has been sentenced to detention, the submission of a request for review shall result in a suspension of the carrying out of the sentence until such time as the review has been completed.
In the case of a court martial, the accused, or the Minister of National Defence may appeal the findings or sentence, or both, to the Court Martial Appeal Court. In addition, where a sentence of imprisonment or detention has been imposed at a court martial, the accused may ask to be released from imprisonment or detention, pending the appeal, by applying to the court martial that imposed the sentence or to the Court Martial Appeal Court. In some circumstances, the accused may be entitled to legal counsel appointed at public expense, to assist with the appeal of the decisions of the court martial.
30. The Officer responsible for this publication is the Director of Law/Military Justice Policy & Research. Questions concerning the content of this publication or recommendations for improvement should be forwarded to the nearest Office of the Judge Advocate General or to the following address:
Office of the Judge Advocate General
National Defence Headquarters
305 Rideau Street, 11th floor
Ottawa ON K1A 0K2
Attention to Directorate of Law/Military Justice Policy & Research
The following table shows the powers of punishment of commanding officers, delegated officers and superior commanders and those of General and Standing Courts Martial.
A commanding officer may impose the following punishments (for more details concerning the conditions that apply to these punishments, see QR&O art. 108.24):
A delegated officer may impose the following punishments, subject to limitations that may be imposed by the commanding officer in writing (for more details concerning the conditions that apply to these punishments, see QR&O art. 108.25):
A superior commander may impose the following punishments (for more details concerning the conditions that apply to these punishments, see QR&O art. 108.26):
A Standing Court Martial (SCM) may impose any of the following punishments (see QR&O 104.02 – Scale of punishments and section 175 of the National Defence Act):
A General Court Martial (GCM) may impose any of the punishments listed above (see QR&O 104.02 – Scale of punishments subject to section 166.1 of the National Defence Act).
1 All courts martial may impose a minor punishment (see QR&O art. 104.13 – Minor punishments), subject to the same limitations imposed upon a commanding officer (see QR&O art. 108.24 – Powers of punishment of a commanding officer).