Presiding officers at summary trials may be commanding officers (CO), but they might also be superior commanders (formation commanders and General Officers) or even officers commanding sub-units (typically majors and captains). What is certain is that they typically do not have formal legal training comparable to a civilian lawyer or judge. (NB: From time to time, a CO or other potential presiding officer in the Reserve Force might be a practicing lawyer, and some Regular Force officers who are not legal officers may have a law degree). Nor are they constitutionally (or even institutionally) independent in a manner remotely comparable with a judge.
However, an assertion that Summary Trials are 'illegitimate' because of these shortcomings ignores the fact that, for all but five specific offences, a CF member accused of a Code of Service Discipline offence has a right to elect trial by court martial, which does have robust procedural safeguards. At present, there is no presumptive right to elect trial by court martial for five specific offences under the National Defence Act (NDA): s 85 (Insubordinate Behaviour), s 86 (Quarrels and Disturbances), s 90 (Absence Without Leave), s 97 (Drunkenness), and s 129 (Conduct to the Prejudice of Good Order and Discipline, in certain limited circumstances). However, where the presiding officer concludes that detention, reduction in rank, or a fine in excess of 25% of net monthly income would be warranted if the accused were found guilty, an election must be given. Thus, where a presiding officer anticipates using a significant punishment - which would give rise to a criminal record if imposed - the accused will always be able to elect trial by court martial regardless of the offence charged. In other words: a CF member has a right to elect a mode of trial that does not suffer from the short-comings of the summary trial process.
A CF member who is charged with a Code of Service Discipline offence has a right to counsel, which can be triggered even before a charge is laid. If a CF member is suspected of a Code of Service Discipline offence, prior to being interviewed (by the military police, or a unit disciplinary investigator) the 'suspect' will typically be informed of his or her right to counsel prior to the interview. Even though this right, under section 10(b) of the Canadian Charter of Rights and Freedoms (Charter) is typically triggered on arrest or detention (meaning detention in the broad sense, not the punishment of 'detention'), practice in disciplinary investigations appears to universally involve both the 'informational' and 'implementational' aspects of this right whenever the 'suspect' is interviewed.
A CF member who is charged with a Code of Service Discipline offence has a right to counsel, which can be triggered even before a charge is laid. If a CF member is suspected of a Code of Service Discipline offence, prior to being interviewed (by the military police, or a unit disciplinary investigator) the 'suspect' will typically be informed of his or her right to counsel prior to the interview. Even though this right, under section 10(b) of the Canadian Charter of Rights and Freedoms (Charter) is typically triggered on arrest or detention (meaning detention in the broad sense, not the punishment of 'detention'), practice in disciplinary investigations appears to universally involve both the 'informational' and 'implementational' aspects of this right whenever the 'suspect' is interviewed.
Furthermore, if a CF member is charged with an offence, he or she can seek advice from civilian or military defence counsel. In fact, if the CF member has a right to elect trial by court martial, the accused must be given reasonable time (and not less than 24 hours) to consult counsel on this election (article 108.17(2) of the Queen's Regulations and Orders (QR&O) for the Canadian Forces). As I mention below, this right could, and should, be made more robust. It is correct that there is not an express right to have counsel represent the accused at a summary trial. The accused may request that the presiding officer permit counsel to appear on behalf of the accused. The presiding officer is not obliged to grant this request. But this begs the question: if the accused wishes to be represented by counsel, why not simply elect trial by court martial?
It is true that summary trials do not follow the rules of evidence that are followed at court martial, or the rules of evidence that are applied before civilian courts of criminal jurisdiction. The reason for this is likely obvious: presiding officers do not have the requisite knowledge and training to apply rules which, frankly, even some lawyers experience difficulty understanding comprehensively. Summary Trials also do not maintain official transcripts, which can pose a challenge for subsequent review.
Again, if an accused is not satisfied with the absence of these safeguards, the accused can elect trial by court martial, where: (i) the accused will be represented by a member of Defence Counsel Services (free of charge) or by civilian defence counsel (at the accused's own expense); (ii) the accused will appear before a constitutionally independent military judge; (iii) rules of evidence apply; and, (iv) a transcript can be produced of the entire proceeding. Certainly, this mode of trial has been upheld as constitutionally valid: R v Stillman, 2019 SCC 40.
While there is no 'appeal' from a Summary Trial, that does not mean there is no recourse if an accused disagrees with the finding of guilt or the sentence. There is a statutory review process: subsections 249(3)( and (4) of the NDA, amplified by articles 108.45 and 116.02 of the QR&O. Often, when I have observed critics indicate that there is no appeal process, there is no mention of this legislated review process. While it is true that this is termed a 'review', and not an 'appeal', it serves a similar function. Specifically, it permits the accused to seek review of either or both the findings (of guilt) and sentence imposed by the presiding officer. The decision by the 'Review Authority' is subsequently subject to judicial review.
And, if a CF member is sentenced to 'detention' by a Summary Trial presiding officer, and seeks review of the finding of guilt or sentence, the sentence is suspended pending the review (section 216(4) of the NDA and article 108.45(17) of the QR&O). Thus, a claim that "... time spent in detention ... can never be returned to the individual ..." does not convey the entire context of the regime. However, as I observe below, the same is not true for the sentence of confinement to barracks (or ship). This lacuna should be addressed.
I also disagree with the assertion that an accused cannot raise Charter arguments in a Summary Trial. I served as an infantry officer, in which I had the duty to preside at numerous Summary Trials. I spent half my career in the Canadian Forces as a legal officer, advising multiple presiding officers and review authorities at various levels. And, as a civilian lawyer, I have represented several clients at various stages of the Code of Service Discipline processes. I have encountered multiple circumstances in which CF members have raised Charter issues within the context of Summary Trials and Reviews of Summary Trials.
Ideally, if an accused believes that there are Charter issues arising within a Code of Service Discipline proceeding, the accused would be well-served by electing trial by court martial. Indeed, even if an accused is charged with one of the five offences for which there is no presumptive right to elect trial by court martial, and the presiding officer plans on relying solely on 'minor punishments', the mere act of raising a Charter issue in that process would likely be sufficient to trigger a referral to court martial. Otherwise, the process would be vulnerable on review.
Ultimately, I suggest that it is inaccurate to conclude that Charter arguments may not be raised in a Summary Trial. While I agree that a presiding officer is not well equipped to address such arguments, I return to what is, by now, a recurring observation: if the accused wishes to have the full protections offered by a court martial, the accused should elect trial by court martial.
I agree that a Summary Trial process lacks many of the safeguards that are available at courts martial or civilian courts of criminal jurisdiction. If Summary Trials were the sole form of disciplinary tribunal, or functioned in a vacuum, their existence would be significantly problematic. However, they aren't, and they don't. They function in concert with courts martial.
The purpose of Summary Trials is to permit the chain of command to maintain a low-level disciplinary process in order to maintain control over personnel within the Canadian Forces. One of the key reasons why such a system is necessary is so that Canada can meet its obligations as a High Contracting Party under international humanitarian law to ensure that members of Her Majesty's armed forces, raised in Canada, are subject to responsible command.
I am not an enthusiastic supporter of many of the changes to the Code of Service Discipline that are (or could be) implemented under Bill C-77, particularly the Summary Hearings. The reason for my reticence is that, contrary to the assertions by some critics of the Summary Trial process, Summary Hearings do not, in my view, represent a fairer process.
First, most of the structure of the Summary Hearings will be created under as-yet-unknown Governor in Council regulations (which, I suspect, are not yet drafted). While the current Summary Trials owe part of their existence to regulation, the broader disciplinary regime applicable to Summary Trials has significant statutory structure. In other words, the structure is created by Parliament, and subsequently amplified by Governor in Council regulations. In contrast, the bulk of the Summary Hearing regime will be defined under more mutable regulation.
Second, although Summary Trials have short-comings, they are not as significant as the shortcomings for Summary Hearings. As I mention above - repeatedly - a CF member accused of a Code of Service Discipline offence will have the right to elect trial by court martial. And the accused will only be found guilty on the criminal evidentiary threshold (beyond a reasonable doubt). Under the Summary Hearing process, if a CF member is charged with a 'service infraction': (i) the accused will not have a right to elect trial by court martial; and, (ii) the presiding officer need only find the accused guilty on the civil burden of proof (balance of probabilities) (section 163.1(1)). And a finding of guilt for a 'service infraction' by a Summary Hearing will not bar a subsequent prosecution before a court martial or civilian court of criminal jurisdiction for the same 'transaction' (section 162.6(2)). Autrefois acquis/convict (for our American colleagues, 'double jeopardy') does not apply. (The inverse, a prior conviction by a civilian court of criminal jurisdiction or court martial, will bar a subsequent charge for a 'service infraction'.) I have suggested previously that the new Summary Hearing process is designed for one principal purpose: to make it easier for the chain of command to obtain findings of guilt.
The anticipated Summary Hearings will not give rise to a criminal record. However, by virtue of section 249.27 of the NDA, at present, the offences commonly dealt with by Summary Trial presently will not give rise to a criminal record if the punishment is limited to: (i) a severe reprimand; (ii) a reprimand; (iii) a fine not exceeding basic pay for one month; or, (iv) a minor punishment. In other words, even for the five offences for which there is no presumptive right to elect trial by court martial, if the presiding officer expects to impose a punishment that would give rise to a criminal record, the accused would have a right to elect trial by court martial.
Third, Summary Hearings will still be presided over by the same officers that some critics suggest should not preside over Summary Trials.
Fourth, Summary Hearings will still permit presiding officers to use the powers of punishment that are presently used for Summary Trials: (a) reduction in rank; (b) severe reprimand; (c) reprimand; (d) deprivation of pay and allowances for up to 18 days; and (e) as yet unnamed 'minor sanctions'. What's interesting about these sanctions (read: punishments) is that the punitive powers regarding pay are markedly increased. Presently, although a presiding officer could impose a fine of up to 60% of net monthly pay (which is 18 days worth of pay for a 30-day month), if the presiding officer expected to impose > 25% (equivalent to 7.5 days in a 30-day month), an accused would have a right to elect trial by court martial. That does not arise under a Summary Hearing. We don't know what the 'minor sanctions' will be. However, we can likely anticipate that they will be similar to minor punishments under the Code of Service Discipline, including confinement to barracks (or ship).
However, the foregoing does not suggest that I do not see room for improvement in the Code of Service Discipline. As the late Chief Justice Antonio Lamer stated in the first 'Independent Review of Bill C-25' (Bill C-25 was the significant amendment to the NDA in 1998): "… constitutionality is a minimum standard. … those responsible for organizing and administrating a military justice system must strive to offer a better system than merely that which cannot be constitutionally denied …" [emphasis added].
Thus, I suggest that it is not sufficient simply to assert that the Code of Service Discipline has generally withstood several constitutional challenges (which is largely true). The system must be more than simply minimally compliant.
I suggest above that one of the key saving graces of the Summary Trial process is that an accused will generally have the right to elect trial by court martial. One improvement would be to create a presumptive right of election for all offences. In other words, the exemption for five offences (under certain circumstances) at article 108.17 of the QR&O should be amended. All this required was a regulatory amendment.
Similarly, the right of an accused to seek legal advice prior to that election should be more robust. Under articles 101.11 and 108.17 of the QR&O, Defence Counsel Services provides legal advice to an accused regarding this election. By virtue of the nature and volume of these matters, and the number of counsel at Defence Counsel Services, this advice is typically of a general nature. It is not in depth advice. However, nothing bars the accused from seeking more robust advice from private counsel, just as any civilian would be obliged to do. What should be improved is the legislation regarding disclosure. QR&O 108.15 provides direction regarding disclosure to the accused to prepare a defence and to elect whether to proceed by Summary Trial or court martial (and whether to waive any limitation period). Typically, all relevant information will be disclosed to the accused. However, this provision could be improved by expressly requiring disclosure of all relevant information save where barred by law. That way, the accused will be able to make a truly informed decision.
If we are concerned about a criminal record arising from a summary trial, then all that would have been necessary would be a statutory provision similar to the existing section 249.27, but, rather than a convoluted determination based upon the type of offence and the type of sentence, the amendment could simply establish that conviction at summary trial does not give rise to a criminal record. After all, if the chain of command is of the view that the nature of the offence warrants a criminal record, the chain of command could refer it to trial by court martial.
Finally, 'confinement to barracks (or ship)' as a punishment must be recognized as the infringement on liberty that it is. At present, it is considered a 'minor punishment', even though it is tantamount to the Criminal Code equivalent of a conditional sentence (which some might colloquially refer to as 'house arrest'). Unlike the punishment of detention, the carrying out of this punishment is not suspended if review is sought. As it is still a deprivation of liberty, this should be rectified. This specific punishment merits review as it is likely to be retained as a 'minor sanction' for Summary Hearings.
I have offered some examples of how Summary Trials could be improved. As my colleague, Edmund Thomas, mentioned in his contribution to this Blog, Dr. Pascal Levesque presents, in his book Frontline Justice, a robust examination of the evolution of Summary Trials in the Canadian Forces, and he offers comprehensive suggestions for reform. While I may not agree with every observation and recommendation that my learned colleague offers in his book, he does offer a balanced examination of the strengths and weaknesses of the Code of Service Discipline at the summary trial level. One thing is certain: anyone who is concerned about the fairness of Summary Trails is likely to be disappointed by the lack of fairness in Summary Hearings.
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