Monday, March 27, 2017

Canadian summary trials -- an absence of rights for the accused

The Summary Trial system in use by the Canadian Armed Forces has fundamentally remained unchanged in 328 years. It is mostly characterized by an absence of rights for the accused. Its constitutional validity has been openly questioned by experts. It deviates from the norms of fundamental fairness and that it should not be tolerated or allowed to continue to operate since no one should be deprived of his liberty, except by a competent, independent and impartial tribunal. The summary trial lacks all of these characteristics.It should not be tolerated or allowed to continue to operate. 

The Summary Trial process is not governed by any rules of evidence including the non-compellability of the accused to be witness against himself, adverse inference from the accused silence or spousal privilege. There might also be reliance on hearsay and opinion evidence. There are no transcripts of summary trials. Only the sentence and the punishments are recorded on a summary sheet. From this, there is no right to appeal a verdict or a sentence imposed by the Commanding Officer who could deprive the accused of his liberty. 

In lieu of counsel, the Commanding Officer must appoint an "Assisting Officer", one of his juniors, to 'assist an accused in mounting a defence." The "Assisting Officer" has no duty of confidentiality towards the accused, and there is no solicitor-client privilege. 

The Commanding Officer of the accused normally presides the summary trial.  He has no legal training. Instead, the Commanding Officer receives some basic procedural training provided by the Office of the Judge Advocate General.

The constitutional validity of summary trials has been openly questioned by experts. 

Canada could and should adopt the solution implemented by the United Kingdom and others by establishing a Summary Appeal Court where the accused is given the full panoply of rights. Alternatively, Canada could de-criminalize the summary trial process so that only disciplinary issues would be addressed at a summary trial. This approach would necessarily exclude  any punishment of detention or any other penalties giving rise to the creation of a criminal record.

This matter is addressed in the book "BEHIND THE TIMES" by the Hon. Gilles Létourneau and Prof. Michel Drapeau.


  1. I share Michel's concerns over summary dealing. However, I would rather that Parliament opted for Michel's second suggestion, to de-criminalize the summary trial process so that only disciplinary issues would be addressed.

    It has always appeared something of a glaring anomaly that the military is allowing the ECHR-compliant Court Martial, with its guarantees of legal representation and observance of rules of evidence and admissibility, to slowly whither away and pass its cases to the civilian prosecuting authority, while clinging to an anachronistic and manifestly unfair summary system that deprives the accused serviceman of any protection. The scandal is that even prisoners have more rights at their summary disciplinary hearings than UK serviceman. (See Ezeh & Connors-v-UK).

    The UK summary system has paid lip-service to the decision in Engel-v-Netherlands, as many of the punishments open to a CO are so severe as to be classified as criminal, and some of the offences he is able to deal with - sexual assault, drunkenness, prejudicial conduct (both are often a euphemism for sexual or indecent behaviour) - pay little regard to victims' rights.

    In Bell-v-UK, in finding against the government, the ECtHR held, in relation to consent to Summary Dealing, that a waiver of a right guaranteed by the Convention — in so far as it is permissible — must not run counter to any important public interest, must be established in an unequivocal manner and requires minimum guarantees commensurate to the waiver's importance. It is important to note that the court observed that the applicant was directly subordinate, and in close structural proximity, to his CO, a factor which undoubtedly would have affected the free and unambiguous nature of any choice between a summary trial and a court-martial.

    The Summary Appeal Court is not the panacea that it was held out to be. The latest statistics to hand show that, in 2014 and 2015, there were no appeals to the SAC by members of the Navy or Air Force. As for the Army, which holds about 75% of the total summary hearings for the three Services, in 2014 there were 3080 cases dealt with summarily, of which 30 (0.97%) went to SAC. In 2015, out of 2990 Army Summary hearings, 20 (0.67%) were heard by the SAC. The question which begs itself is, why? There are no studies into this phenomenon, but there is ample anecdotal evidence to the effect that servicemen are reluctant to "buck the CO's authority", so they accept the punishment, even though in some cases the finding of guilt is recordable as a conviction - see the case of Lance Corporal Bale Baleiwai, a veteran of Iraq and Afghanistan, who was threatened with deportation because he was disciplined by his commanding officer for a fight with a colleague in 2010 (a recordable offence).

    The chain of command needs to understand that the protective bubble which surrounds the summary process does not serve the interests of their soldiers or justice. It is quite wrong that they COs are still able to deal with quite serious matters (in UK, a CO can lock up someone for 90 days, subject to approval by higher authority, all without basic guarantees to a fair trial or access to/representation by a lawyer). Parliament must address this unfairness and make the summary system ECHR compliant by removing all but minor disciplinary offences from the CO's jurisdiction or, if they wish to maintain the present powers, introduce the right to legal representation, disclosure of evidence and observance of rules of evidence and admissibility, followed by a right to appeal on an informed basis.

    1. Thank you Anthony for this 'mise au point' and I agree with your thoughtful analysis.


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