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Chapter 13

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Chapter 13

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  1. Chapter 13 Conduct of Summary Trial

  2. Objectives Describe the conduct of a summary trial

  3. Main Points • General issues • Pre-trial issues and procedures • Summary Trial procedure • Evidentiary issues • Determinations

  4. 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

  5. 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

  6. 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

  7. 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

  8. 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

  9. Pre-trial Issues and Procedures Checklists are available in Military Justice at the Summary Trial Level

  10. 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.

  11. Referral of Charges • It may be necessary to refer charges

  12. 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

  13. Provision of Information to the Accused • The accused must be provided with information about the charges and any investigation conducted

  14. 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

  15. 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

  16. 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

  17. No Funding for Legal Representation at Summary Trial • If presiding officer permits legal representation, it is at accused’s own expense

  18. Attendance of the Accused • Fundamental to make full answer and defence to the charges

  19. 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

  20. 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

  21. 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.

  22. 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

  23. Right to Summary Trial in Either Official Language Presiding officer must understand the language without using an interpreter

  24. 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

  25. 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

  26. 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

  27. Preliminary Matters • Before trial commences, presiding officer, assisting officer and spectators take places • Accused marched in with the assisting officer

  28. Preliminary Matters • Presiding officer takes oath to duly administer justice • The charges are read to the accused

  29. 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:

  30. 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

  31. Factors to consider before granting adjournment • number of witnesses to be heard • availability of defence witnesses • amount of documentary and real evidence

  32. 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

  33. 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

  34. 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

  35. Hearing the Evidence • Witnesses take an oath or solemn affirmation • May still testify by telephone or other telecommunications device

  36. 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

  37. 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

  38. 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

  39. 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

  40. 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

  41. 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

  42. 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

  43. 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

  44. 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

  45. Summary Trial Procedure in Special Cases Includes elections or adjournments after ST has commenced or other situations not covered in QR&Os

  46. 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

  47. 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

  48. Adjournments during Summary Trial • Presiding officer may adjourn: • at any time on own initiative • at the request of the accused

  49. 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

  50. 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