Tuesday, June 16, 2015

A strong gust of wind reforms summary proceedings in Canada

June 16, 2015. Quite unexpectedly, the Canadian Government introduced legislation which will dramatically change the scope, jurisdiction and sanctions permitted by “summary trials”.  
According to the DND Press Release the proposed changes will reinforce the “disciplinary nature of the summary trial process for dealing with minor service misconduct”.  All the proposed changes address the very reforms which have been clamored for by a number of reform-minded individuals such as Gilles Létourneau and Michel Drapeau.

The text of Bill C-71 – An Act to Amend the National Defence Act and the Criminal Code can be found hereBill C-71 


First and foremost, the proposed legislation will create, in Regulations  “Disciplinary Infractions”  that can be tried by summary trials. 
  • ·       Section 162.4 stipulates that disciplinary infraction may only be tried by summary trial.
  • ·       Section 162.5 stipulates that a disciplinary infraction is NOT a 'service offence' under the National Defence Act. It also does not constitute an offence for the purposes of the Criminal Records Act.
Second, the legislation will provide for a scale of sanctions and principles applicable to sanctions in respect to disciplinary infractions.
  • ·       Section 162.7 stipulates that the only sanctions that may be imposed in respect to a disciplinary infraction is: a) reduction in rank; b) severe reprimand; c) reprimand; d) deprivation of pay  and allowances for not more than 18 days; and e) minor sanctions to be prescribed in Regulations.
This means that an accused can no longer be committed to detention by an officer presiding at a summary trial.

Third, it will provide for a six-month limitation period in respect of summary trials.
  • ·       Section 163.4 stipulates that no person may be tried by summary trial unless the summary trial commences within six (6) months after the day on which the disciplinary infraction is alleged to have been committed.

The current summary trial process is a judicial procedure normally presided over by Commanding Officers during which the accused has no right to counsel, there are no rules of evidence, there are no record of proceedings and there is no right to appeal and where a conviction can lead to a sentence of detention and the creation of criminal record. 

Bill 71 constitutes a most welcomed major overhaul and amendment to the summary trial process. If and when enacted, the National Defence Act would no longer authorizes a summary trial to award a punishment of detention or any other penalty giving rise to the creation of a criminal record.  This would bring the summary trial process in compliance with the Charter of Rights and Freedom. 

In anticipation of a General Federal Election scheduled for this coming October, the Canadian Parliament will adjourn it operations within a fortnight or less. This means that B C-71 will more than likely die on the Order Paper. One can only hope, however, that the succeeding government will find it appropriate to re-introduce a similar Bill during the next Parliamentary Session.


  1. I concur Michel that this is indeed a more than welcomed change and a major step toward compliance with the Canadian Charter of Rights and Freedom! Studying that process for the past two years for my PhD dissertation I cannot be happier, first and foremost for service members' sake. However the depenalization option and moving to a pure disciplinary system is not necessarily a 'walk in the park'. And it cannot be a way to circumvent a Charter challenge to let commanding officers do 'their own little things' out of any potential scrutiny by superior civilian courts. The fundamental rules of procedural fairness still have to be applied. As you know reduction in rank is very serious in the CAF. I foresee many service members would challenge it, up to Federal Court and beyond if needed. Therefore Bill C-71 could be improved with a provision saying that: "All summary proceedings are recorded through reasonably available technological means unless it is impracticable having regard to the location of the summary trial and the constraints of military operations." Alternatively, such provision could be in the QR&O. Thus, there will be a verbatim of the file to be reviewed, if needed. In addition, it keeps presiding officers on their toes. My understanding is that recording summary trials is done by policy at Canadian Forces Leadership and Recruits School already; I cannot see why it can't be done for the rest of the CAF. If professionals of arms are akin to a professional body, they should be regulated and dealt with in a professional way. Because of the high risks they can be exposed to and the high state of readiness they must maintain, service members deserve the optimal equipment, logistics, electronics and healthcare, so they deserve an optimal justice system. Not something behind civilian justice trying to catch up every 5 or 10 years in reaction to a court ruling, but ahead of it, innovating as a vanguard system of justice. Bravo Zulu for all the 'sherpas' and 'leaders' who have patiently, humbly and discretly moved forward such proposal for reform for a year or so!

    1. The problem of not having a record that lends itself to either appellate or collateral judicial review is a serious one. It's certainly true of summary courts-martial in the United States -- a forum that is not quite extinct, but ought to be.

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    3. Pascal. I am so pleased to be on entirely on points with you. I too have serious reservations, inter alia, about giving an officer presiding at a court martial the power to reduce someone in rank - knowing the financial consequences (both short and long term). However, this is the beginning of the reform process and I am certain that down the road we will have an opportunity to advances these necessary adjustments. Perhaps you PH D thesis can lead the way. Good luck. .


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