Canadian Military Justice System - Structure of the System :::  

• Summary Trials
• Review of Summary Trials
• Right to be Tried by Court Martial
• Referral to Court Martial
• Role Of DMP In Court Martial Process
• Courts Martial
• Types of Court Martial
• Appeal of a Court Martial Decision

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The military justice system has a two-tiered tribunal structure that includes the summary trial system (where most disciplinary matters are dealt with) and the more formal court martial system. The term “service tribunal” means either a summary trial or a court martial. The regulations outline procedures for the trial of a matter by summary trial, as well as procedures for referral of charges for trial by court martial.

 

Summary Trials

The purposes of a summary trial are as follows:

• to provide prompt, fair justice in respect of minor service offences; and
• to contribute to the maintenance of military discipline and efficiency in Canada and abroad, in peacetime and during armed conflicts.

Once jurisdiction exists to conduct a summary trial, it may be held wherever the unit is located, whether it is in garrison, in an exercise area or deployed abroad. Generally, summary trials are conducted across Canada, at sea in Her Majesty’s Canadian ships, and in various locations during operations abroad.

When a CF member is charged with an offence under the Code of Service Discipline, the summary trial process usually permits the case to be tried and disposed of in the unit, by unit authorities. Before conducting a summary trial, however, the presiding officer must (in most circumstances) be trained and certified in the administration of the Code of Service Discipline in accordance with the curriculum established by the JAG. 

During a summary trial, the accused is provided with an assisting officer. The primary functions of an assisting officer are to assist the accused in the preparation of his or her case and to assist and the accused during the trial to the extent desired by the accused.

In addition, 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 the nature and gravity of the offence with which the accused has been charged and the differences between trial by court martial and trial by summary trial.

Although the summary trial is still the overwhelmingly predominant form of service tribunal, not all service offences can be dealt with at summary trial.  The QR&O lists the offences that can be dealt with at summary trial. Some offences, including most Criminal Code offences charged pursuant to section 130 of the NDA, must be tried by court martial.

 

Review of Summary Trials

All offenders found guilty at summary trial have the right to request a review in accordance with QR&O article 108.45 (to the officer who is the next superior officer in matters of discipline to the officer who presided at the summary trial) of the finding and/or punishment imposed at summary trial. Review authorities acting under QR&O article 108.45 must obtain legal advice before making any determination on requests for review. As well, the findings and punishment imposed at summary trial may also be reviewed on the independent initiative of a review authority.

Offenders convicted at summary trial may also request judicial review from the Federal Court or from the Superior Court in any province.

 

Right to be Tried by Court Martial

Accused member have the right to elect trial by court martial in relation to the vast majority of service offences.  In effect, the presiding officer must offer an election unless the accused is facing only a “minor disciplinary” charge or the offence is one that must be dealt with at court martial. The QR&O specify when an accused has the right to elect to be tried by court martial, and under what circumstances an accused is not provided the opportunity to choose. Generally, there are two instances where the opportunity to choose is unavailable:

• where the charge laid is "minor" and, in the judgment of the officer who will conduct the summary trial, any of the following penalties would not be appropriate upon a finding of guilt:
  • detention,
  • reduction in rank; and
  • a fine in excess of 25 percent of monthly basic pay.

• where the charge is for a serious offence under the Code of Service Discipline (e.g. negligent performance of duty, or offences under the Criminal Code or other Acts of Parliament that are not eligible to be dealt with at summary trial) or the accused person is of a rank of lieutenant-colonel or higher, a trial by court martial is the only available option.

In most circumstances, if a matter is to proceed by way of summary trial the proceeding cannot be presided over by a commanding officer or superior commander who was also responsible for the investigation or laying of the charge for that particular accused.

 

Referral to Court Martial

When the service offence charged requires trial by court martial, an accused has elected to be tried by court martial, or the commanding officer has determined that due to the nature of the offence the matter is most appropriately dealt with by court martial, the charge is referred to a referral authority. The term “referral authority” applies only to those specific officers who have been legally empowered to refer a charge to the Director of Military Prosecutions (DMP) for the purposes of determining whether a matter warrants trial by court martial.

When making a referral to the DMP, a referral authority essentially represents the interests of the CF, which will be reflected in any recommendations accompanying a referred charge. Under the regulations, the following officers are referral authorities:

• the Chief of Defence Staff; and
• any officer having the powers of an officer commanding a command.

Upon receipt of an application to proceed with a charge, the referral authority must:

• forward the application to the DMP, adding any recommendations regarding the disposition of the charge that are deemed appropriate (including any recommendation to proceed or not proceed with a charge); or
• direct a commanding officer or superior commander to try the accused by summary trial on the existing charges, but only in circumstances where the referring officer had referred the charge because he or she believed his or her powers of punishment were not adequate to try the accused by summary trial and the referral authority does not share this opinion.

Thus in most cases, when a charge has been referred to a referral authority, he or she must forward the charge to the DMP, with any recommendations that the officer considers appropriate.

 

Role Of DMP In Court Martial Process

The DMP is responsible for:

• deciding whether a particular charge is suitable for trial by court martial; and
• conducting prosecutions at courts martial.

Upon receipt of a referral, the DMP initially undertakes a review of the charge. Two main issues are considered:

• the sufficiency of the evidence required to demonstrate a reasonable prospect of conviction in respect of the charges laid or yet to be laid; and
• where there is sufficient evidence, whether or not the public interest and the interests of the CF require the initiation of a prosecution.

Following a review of the charge, the DMP will determine whether or not a charge should be dealt with at court martial and will notify the referral authority, of the accused, his/her commanding officer, his/her legal counsel, the Director of Defence Counsel Services (DDCS) and the JAG of this decision. For offences that can be dealt with at summary trial, the DMP can refer a charge to an officer with jurisdiction to try the accused by summary trial when the DMP is satisfied the charge should not be proceeded with by Court Martial, except when the accused has elected trial by Court Martial. As well, the DMP may require additional investigation into a matter. 

On the other hand, where the decision is made to pursue a charge, the DMP will prefer the charge by preparing and signing a charge sheet and refer the charge to the Court Martial Administrator, who will then convene a court martial. In addition, the DMP can modify charges or prefer any other charges supported by evidence.

 

Courts Martial

The court martial, a formal military court presided over by a military judge, is designed to deal with more serious offences, and is conducted in accordance with rules and procedures similar to those followed in civilian criminal courts while maintaining the military character of the proceedings. Like summary trials, courts martial may be held anywhere in the world. Statutorily, courts martial have the same rights, powers and privileges as a superior court of criminal jurisdiction with respect to all “matters necessary or proper for the due exercise of its jurisdiction,” including: the attendance, swearing and examination of witnesses; the production and inspection of documents; and the enforcement of its orders.

At a court martial, the prosecution is conducted by a legal officer from the office of the DMP. The accused is entitled to be represented free of charge by a legal officer from the DDCS or, at his or her own expense, by a civilian lawyer. CF members who meet the qualifying criteria may also take advantage of provincial Legal Aid programs.

 

Types of Court Martial

The NDA provides two types of court martial:

• the General Court Martial; and
• the Standing Court Martial;

The General Court Martial comprises a military judge and a panel of CF members. The panel of CF members is roughly analogous to a jury in a civilian criminal court and is composed of five members. When the accused is an officer, the court martial panel consists entirely of officers. When the accused is a non-commissioned member, the panel must include two non-commissioned members at or above the rank of warrant officer or petty officer first class. The panel is responsible for the finding on the charges (i.e. guilty or not guilty) and the military judge makes all legal rulings and imposes the sentence.

The Standing Court Martial is conducted by a military judge sitting alone who is responsible for the finding on the charges and imposing a sentence if the accused is found guilty. 

The method of determining the type of court martial is based on the nature of the offence and in some cases by the choice of the accused person. In general, a General Court Martial will be convened for serious offenses that are punishable by imprisonment for life while a Standing Court Martial will be convened for relatively minor offences that are punishable by imprisonment for less than two years or a punishment that is lower in the scale of punishments or are punishable by summary conviction under any Act of Parliament. In all other cases, the accused person has the right to choose between trial by General or Standing Court Martial.

 

Appeal of a Court Martial Decision

Generally speaking, decisions made at courts martial may be appealed to the Court Martial Appeal Court of Canada (CMAC), a civilian court composed of Federal Court and Provincial Superior Court judges. The CMAC may sit and hear appeals at any place.

Under the NDA, both an accused tried by court martial and the Minister of National Defence may appeal to the CMAC.
CMAC decisions may be appealed to the Supreme Court of Canada. Such appeals may be made on any question of law on which a judge of the CMAC dissents, or on any question of law if leave to appeal is granted by the Supreme Court of Canada.

When a person has delivered a Notice of Appeal under section 230 or 245 of the NDA, he or she may apply to the Appeal Committee to be provided legal counsel at public expense by the DDCS for the appeal. When the Appeal Committee determines that the applicant’s appeal has “professional merit”, the committee is required to approve the provision of legal counsel by the DDCS. As set out in QR&O article 101.21, the professional merit standard is met if there is a reasonable chance that one or more of the issues raised on the appeal could be successful and :

• result in the change of a court martial finding or sentence; or
• be of importance to the administration of military justice.