Chapter 13
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Chapter 13. Conduct of Summary Trial. Objectives. Describe the conduct of a summary trial. Main Points. General issues Pre-trial issues and procedures Summary Trial procedure Evidentiary issues Determinations. Procedural Requirements.

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Chapter 13 l.jpg
Chapter 13

Conduct of

Summary Trial


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Objectives

Describe the conduct of a summary trial


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Main Points

  • General issues

  • Pre-trial issues and procedures

  • Summary Trial procedure

  • Evidentiary issues

  • Determinations


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Procedural Requirements

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”.

Fairness is essential

Presiding officers to ensure fairness


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Place of trial

  • Tried either inside or outside Canada

    • circumstance of the accused

    • location of witnesses

    • operational posture of the unit

Balance of interests (convenience vs discipline) in consideration of the principles of fairness and the need to act expeditiously


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Limitation Period

  • Can be charged at any time for an offence committed under the CSD. Two exceptions:

    • if charges are to be tried by summary trial, the trial must begin within one year of the date of offence

    • for offences under NDA ss. 130 or 132 (offences against other Canadian or foreign laws) - any limitation period in the civil law applies to CSD proceedings


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No Joint Trials

  • Regulations permit the DMP to prefer charges and jointly try by court martial two or more accused

  • No provision for joint trials at summary trials

  • Least serious case dealt with first

  • Legal advisor should be consulted


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Records of Summary Trials

  • RDP is only record of a summary trial - its findings and sentence

  • Presiding officers should make a list of witnesses and evidence and attach this to RDP

  • RDP placed on unit disciplinary registry once the trial is complete

  • Electronic recording not provided for in QR&O


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Pre-trial Issues and Procedures

Checklists are available in

Military Justice

at the Summary Trial Level


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Pre-trial Issues and Procedures

  • Appointment of Assisting Officer

    • the CO or his designate must appoint an assisting officer as soon as possible after a charge is laid

    • assisting officer is normally an officer but can be a NCM above the rank of Sgt in exceptional circumstances.


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Referral of Charges

  • It may be necessary to refer charges


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Election to be Tried by Court Martial

  • An accused has the right to elect trial by court martial, unless charged with one of five minor offences


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Provision of Information to the Accused

  • The accused must be provided with information about the charges and any investigation conducted


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Application for Legal Representation at Summary Trial

  • Accused must be given opportunity to consult legal counsel if offered an election

  • Accused has a right to be represented by legal counsel at court martial


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Application for Legal Representation at Summary Trial

  • At summary trial there is no right to representation by counsel but at ST is entitled to assistance from an assisting officer

  • Upon application of the accused, it is at discretion of presiding officer to grant request, deny request or apply to have charges tried by court martial


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Application for Legal Representation at Summary Trial

  • PO should consider factors and consult with unit legal advisor before granting request for legal representation at ST

ST less formal and intended to deal with less serious offences at unit level. Does not normally require representation by legal counsel


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No Funding for Legal Representation at Summary Trial

  • If presiding officer permits legal representation, it is at accused’s own expense


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Attendance of the Accused

  • Fundamental to make full answer and defence to the charges


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Procurement of Witnesses

  • Presiding officer to ensure attendance of witnesses including witnesses for the defence.

  • Limited to only those witnesses who can be procured without legal process (subpoena or summons). Civilian witnesses can only be requested or invited to appear at a ST


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Procurement of Witnesses

  • Court martial has power to issue a summons to a witness. When it is necessary to compel a civilian witness, charges should be referred to court martial

  • When witnesses cannot attend a ST, provisions to allow them to testify by telephone or other telecommunications


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Procurement of Witnesses

  • No duty to procure where accused’s request is considered to be frivolous or vexatious. However, failure to make a witness available could result in review and subsequent quashing of any guilty finding.


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Attendance of the public

  • Normally open to the public

  • Excluded at the discretion of presiding officer

  • May be excluded in the interests of justice, discipline, public safety, defence or public morals

  • When classified information is being given in evidence


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Right to Summary Trial in Either Official Language

Presiding officer must

understand the language

without using an interpreter


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Language of Witness Testimony

  • Witnesses may testify in their preferred language if not the same as accused’s choice of language for trial, an interpreter must be provided

  • Accused can consent to proceed without interpreter if he/she understands witnesses’ language. However, the decision is presiding officer’s, after considering the interests of justice and discipline


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Protection against self-incrimination

Witnesses who give

self-incriminating evidence are protected from having their testimony used against them except in a prosecution for perjury


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Summary Trial Procedure

  • Procedures to ensure consistency and procedural fairness are set out in QR&Os

  • Conduct is sole responsibility of presiding officer and no superior authority shall intervene


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Preliminary Matters

  • Before trial commences, presiding officer, assisting officer and spectators take places

  • Accused marched in with the assisting officer


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Preliminary Matters

  • Presiding officer takes oath to duly administer justice

  • The charges are read to the accused


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Preliminary Matters

  • PO asks if accused requires more time to prepare and must grant any reasonable adjournment to prepare and must grant any reasonable adjournment requested upon considering the following factors:


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Factors to consider before granting adjournment

  • time since the accused was served with a copy of the RDP

  • time since provision of information to the accused was completed

  • number of charges against the accused

  • complexity and seriousness of the charges


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Factors to consider before granting adjournment

  • number of witnesses to be heard

  • availability of defence witnesses

  • amount of documentary and real evidence


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Admission of Particulars

  • By admitting particulars, accused agrees with certain facts and consents to dispense with calling evidence to prove those facts

  • accused can admit some, none or all of the particulars


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Admission of Particulars

  • When accused admits all particulars there is no need to call any evidence on the charge. “Evidence” consists of hearing witness testimony, receiving documents and any physical evidence

  • Even after all particulars, presiding officer must determine if required elements of offence are present to find accused guilty


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Hearing the Evidence

  • PO can hear any evidence considered of assistance and relevant in determining if accused committed offences charged

  • Witnesses who have first hand knowledge should be called to testify


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Hearing the Evidence

  • Witnesses take an oath or solemn affirmation

  • May still testify by telephone or other telecommunications device


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Hearing the Evidence

  • Will first hear all the evidence against the accused

  • Accused or assisting officer entitled to question followed by questions from the presiding officer


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Hearing the Evidence

  • The accused Is entitled to call witnesses for the defence, as well as present any documentary or physical evidence for the defence

  • Prior to testifying, witnesses should not be allowed in the summary trial hearing. Upon completing their testimony, as long as they are not likely to be called to testify again, they should be released to return to their duties


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Hearing the Evidence

  • Accused may choose to testify but is not required to do so.

  • Presiding officer may question the accused only if he/she decides to testify in their own defence


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Representations by the Accused

  • After all the evidence presented, accused or the assisting officer may make representations with respect to evidence heard during trial

  • Not entitled to raise new evidence


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Representations by the Accused

  • Representations can include:

    • an interpretation of the evidence in its best possible light from the accused’s perspective

    • comment on the credibility of the witnesses or why their evidence should not be believed or accepted


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Findings on Guilt and Sentence

  • Consider all the evidence and any representations

  • To determine that the offence has been proved beyond a reasonable doubt, he/she must conclude that each element of the offence charged has been proven beyond a reasonable doubt


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Findings on Guilt and Sentence

  • May take an adjournment to make a determination

  • Once made a determination of guilt or innocence, he/she must pronounce a finding in respect of each individual charge


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Findings on Guilt and Sentence

  • If not guilty of all charged, accused is dismissed to return to their duties

  • If found guilty, sentencing phase commences


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Findings on Guilt and Sentence

  • In the sentencing phase, receive evidence including any aggravating and mitigating factors

  • offender is entitled to call witnesses, present documentary evidence and make representation

  • accused may testify in sentencing phase


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Summary Trial Procedure in Special Cases

Includes elections or adjournments after ST has commenced or other situations not covered in QR&Os


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Election during Summary Trial

  • If the accused were found guilty, that a punishment of detention, reduction in rank or a fine in excess of 25% of monthly pay would be appropriate, an election must be offered


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Election during Summary Trial

  • An election can be offered anytime before making a finding of guilt

  • Elections can be offered by COs and superior commanders. Delegated officers must refer charges to CO for election


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Adjournments during Summary Trial

  • Presiding officer may adjourn:

    • at any time on own initiative

    • at the request of the accused


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Adjournments during Summary Trial

  • Presiding officer must adjourn:

    • upon reasonable grounds to believe accused unfit to stand trial or was suffering mental disorder at time of offence

    • to offer an election for court martial


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Adjournments during Summary Trial

  • Presiding officer must adjourn:

    • when it would be inappropriate for PO to hear case

    • in order to refer the charges to another authority

If accused in custody, presiding officer may order accused retained or released during any period of adjournment


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Situations Not Provided For in the QR&Os

  • Presiding officer shall follow the course best calculated to do justice

  • Unit legal advisor should be contacted and inform how similar cases have been dealt with in the past


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Irregularities in Procedure

  • Deviations from procedure do not make findings or sentences invalid unless an injustice was done to the accused as a result of the deviation

  • Defects of a technical nature would not invalidate the finding or sentence


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Irregularities in Procedure

  • Substantial deviations that affects the merits of the case or going to the fairness of the proceeding would ordinarily result in the findings being set aside on review as unjust


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Irregularities in Procedure

  • Notwithstanding that upon review a finding or sentence is upheld despite a deviation from procedure, presiding officers are still required to comply with the regulations and are accountable for any failure to do so


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Evidentiary Issues

  • Formal Rules of Military Evidence do not apply at summary trials


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Receiving Evidence

  • May receive any evidence considered to be of assistance and relevant in determining whether accused committed the offence(s) and determining an appropriate sentence


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Relevant

  • Evidence isrelevant if it establishes a fact that is in issue in the trial, either on its own or in combination with other evidence

  • Assist a presiding officer to determine if the accused is guilty or not guilty


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Relevant

  • Evidence relating to the credibility of a witness may not be relevant to the offence, may be relevant to the weight to be given the witnesses’ evidence


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Reliability

  • Reliability of evidence refers to its trustworthiness - combination of:

    • truthfulness of the witness

    • ability of the witness to perceive the event

    • type of evidence


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Weight

Amount of consideration to be given to any piece of evidence


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Types of Evidence

  • Nature and type may affect its reliability and the weight it is given by the Presiding Officer


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Direct Evidence

  • Direct evidence is the testimony of a witness of an event or fact that they perceived first hand with their own senses


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Circumstantial Evidence

  • Indirect evidence from which a fact can be inferred


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Hearsay

  • Statement made by someone which is being repeated by a witness as proof of its contents

  • May receive hearsay evidence but must pay particular attention to its reliability and how much weight to give it


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Admissions

  • A statement in the form of a confession made by the accused and reported by another witness

  • Not considered hearsay


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Documentary Evidence

  • General description for any record in whatever form that is received as evidence

One exception - investigative reports are not to be received as evidence at summary trial


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Real Evidence

  • Things or demonstrations which may be presented into evidence for inspection or observation

  • On its own, real evidence is only circumstantial and can be corroborated by other evidence


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Opinion Evidence

  • What a witness thinks, believes or infers from facts already accepted into evidence

  • Most commonly provided by a person with acknowledged expertise in some field or area of specialization

  • Can also be given by anyone who can give a reliable opinion on something that is a common experience


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Unsworn Evidence

  • Unsworn evidence is the testimony of a witness who did not swear an oath or made a solemn affirmation to tell the truth


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Unsworn Evidence

  • Each witness must be administered an oath of affirmation

  • If witness does not appear to understand the nature of the oath of affirmation, legal advisor should be consulted before proceeding


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Considering the Evidence

How reliable

the evidence is

and how much weight

to give it?


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Considering the Evidence

  • In the case of witness testimony, must make an assessment of witnesses credibility by considering the following:

    • was the event unusual such that one would expect the witness to recall details?

    • did the witness have a good opportunity and ability to observe the event?


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Considering the Evidence Assessing witnesses credibility

  • does the witness appear to have a good memory?

  • how did the witness appear while testifying - forthright, responsive, evasive, hesitant, argumentative?


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Considering the Evidence Assessing witnesses credibility

  • was the testimony reasonable and consistent with other witnesses or evidence?

  • was the witness biased or did they have any reason to prefer a particular outcome of the summary trial?


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Determinations

  • Referral of Charges

    • before commencing, presiding officer must determine if it is appropriate for them to try the case or refer it to another authority


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Making Findings

  • Findings are the presiding officer’s determination whether it has been proved beyond a reasonable doubt that the accused committed the offence charged

  • Considers evidence and representations, determines what facts to accept and from that concludes what happened


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Making Findings

  • One version of facts - even if the evidence only supports one version of facts, must still consider the evidence to determine if guilt is proven beyond a reasonable doubt

  • Conflicting versions of the facts - the accused is entitled, unless a fact has been proven beyond a reasonable doubt, to a finding of fact most favourable to the accused


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Making Findings

  • Considering Statements of Offence and Particulars - statement of offence and particulars must be read together

  • Proof Beyond a Reasonable Doubt - must determine if all the essential mental and physical elements proved beyond a reasonable doubt


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Alternative Charges

  • When charges are laid in the alternative, the accused can only be found guilty of one charge

  • If guilty of one of the alternative charges, the other alternative charge(s) are “stayed”


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Stay of Proceedings

  • Has the effect of halting further proceedings on a charge for an indefinite period

  • Has the same effect as a finding of not guilty on the alternative charge


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Included Offences

  • Certain service offences include the possibility of being convicted of a related or an included, less serious offence when the evidence does not prove the more serious offence, eg. assault is an included offence of assault causing bodily harm.


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Attempts

May be convicted of an attempt

to commit an offence whether charge laid as an attempt

or the completed offence


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Standard of Proof - Attempts and Included Offences

  • Whenever a presiding officer is considering convicting an accused on a charge other than that which actually appears on the RDP, it must be done with great caution and only after consulting the unit legal advisor


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Special Findings

May make a special finding of guilty when the facts proved at summary trial differ from the facts alleged in the charge but are still sufficient to prove the offence charged


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Informing the Accused of all Findings

Accused must be informed

and the actual finding

recorded on the RDP


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Chapter 13

The

End

Conduct of Summary Trial


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