Chain of Command’s Exceptional Power to Review and Substitute Findings of Guilt and Punishments need be reviewed

Pursuant to sections 249, 249.11, 249.12, 249.13 and 249.14 of the National Defence Act, a finding of guilty and sentences imposed can be reviewed by reviewing authorities outside the judicial hierarchy. Where the finding and the sentence emanate from summary trials, the review is conducted by the Chief of the Defence Staff or his delegate. [It is the Governor-in-Council who acts as the reviewing authority when the finding and the sentence are made and imposed by a court martial.] These ‘powers conferred by these sections can be traced as far back as 1883. Both the accused and the CDS can seek a review.

In the exercise of its review functions, the Reviewing Authority may quash the guilty finding, substitute a new guilty finding for the one under review or a new guilty finding for an offence other than the one for which the accused was found guilty by the summary trial.  In the same vein, it may mitigate, commute or remit any or all of the punishments included in a sentence imposed by the summary trial.

A review by the chain of command of a verdict rendered and sentence passed at a summary trial is conducted without any parameters such as grounds for a review, limits as to the process of the reviewing authority, right to counsel, procedural guarantees, etc. There are no records and no transcripts of the evidence tendered at the summary trials which could help the reviewing authority in the exercise of its functions and assist the accused either in their demand for review or their opposition to the prosecutor’s demand.

Also there are no parameters guiding the mitigation, commutation or remittance of all or part of the punishment imposed, including a sentence passed by the summary trial.As for the review of findings of guilt, the NDA is silent on the criteria for interfering with the punishments imposed, thereby opening the door to secretive arbitrariness.

Only in exceptional circumstances, under strict criteria and where it is necessary to do so to maintain the operational readiness and efficiency of the Canadian Armed Forces should the chain of command have the power to review and quash findings made and punishments imposed by a service tribunal and proceed to substitute findings and punishments of its own.