Conduct of

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 QRO

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 accuseds 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 accuseds 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 accuseds 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
  officers, 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 QROs
• 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 accuseds 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
  QROs

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
51
Situations Not Provided For in the QROs

• Presiding officer shall follow the course best
  calculated to do justice
• Unit legal advisor should be contacted and inform
  how similar cases have been dealt with in the
  past

52
Irregularities in Procedure

• Deviations from procedure do not make findings or
  sentences invalid unless an injustice was done to
  the accused as a result of the deviation
• Defects of a technical nature would not
  invalidate the finding or sentence

53
Irregularities in Procedure

• Substantial deviations that affects the merits of
  the case or going to the fairness of the
  proceeding would ordinarily result in the
  findings being set aside on review as unjust

54
Irregularities in Procedure

• Notwithstanding that upon review a finding or
  sentence is upheld despite a deviation from
  procedure, presiding officers are still required
  to comply with the regulations and are
  accountable for any failure to do so

55
Evidentiary Issues

• Formal Rules of Military Evidence do not apply at
  summary trials

56
Receiving Evidence

• May receive any evidence considered to be of
  assistance and relevant in determining whether
  accused committed the offence(s) and determining
  an appropriate sentence

57
Relevant

• Evidence is relevant if it establishes a fact
  that is in issue in the trial, either on its own
  or in combination with other evidence
• Assist a presiding officer to determine if the
  accused is guilty or not guilty

58
Relevant

• Evidence relating to the credibility of a witness
  may not be relevant to the offence, may be
  relevant to the weight to be given the witnesses
  evidence

59
Reliability

• Reliability of evidence refers to its
  trustworthiness - combination of
• truthfulness of the witness
• ability of the witness to perceive the event
• type of evidence

60
Weight

• Amount of consideration to be given to any piece
  of evidence

61
Types of Evidence

• Nature and type may affect its reliability and
  the weight it is given by the Presiding Officer

62
Direct Evidence

• Direct evidence is the testimony of a witness of
  an event or fact that they perceived first hand
  with their own senses

63
Circumstantial Evidence

• Indirect evidence from which a fact can be
  inferred

64
Hearsay

• Statement made by someone which is being repeated
  by a witness as proof of its contents
• May receive hearsay evidence but must pay
  particular attention to its reliability and how
  much weight to give it

65
Admissions

• A statement in the form of a confession made by
  the accused and reported by another witness
• Not considered hearsay

66
Documentary Evidence

• General description for any record in whatever
  form that is received as evidence

One exception - investigative reports are not to
be received as evidence at summary trial
67
Real Evidence

• Things or demonstrations which may be presented
  into evidence for inspection or observation
• On its own, real evidence is only circumstantial
  and can be corroborated by other evidence

68
Opinion Evidence

• What a witness thinks, believes or infers from
  facts already accepted into evidence
• Most commonly provided by a person with
  acknowledged expertise in some field or area of
  specialization
• Can also be given by anyone who can give a
  reliable opinion on something that is a common
  experience

69
Unsworn Evidence

• Unsworn evidence is the testimony of a witness
  who did not swear an oath or made a solemn
  affirmation to tell the truth

70
Unsworn Evidence

• Each witness must be administered an oath of
  affirmation
• If witness does not appear to understand the
  nature of the oath of affirmation, legal advisor
  should be consulted before proceeding

71
Considering the Evidence

• How reliable
• the evidence is
• and how much weight
• to give it?

72
Considering the Evidence

• In the case of witness testimony, must make an
  assessment of witnesses credibility by
  considering the following
• was the event unusual such that one would expect
  the witness to recall details?
• did the witness have a good opportunity and
  ability to observe the event?

73
Considering the Evidence Assessing witnesses
credibility

• does the witness appear to have a good memory?
• how did the witness appear while testifying -
  forthright, responsive, evasive, hesitant,
  argumentative?

74
Considering the Evidence Assessing witnesses
credibility

• was the testimony reasonable and consistent with
  other witnesses or evidence?
• was the witness biased or did they have any
  reason to prefer a particular outcome of the
  summary trial?

75
Determinations

• Referral of Charges
• before commencing, presiding officer must
  determine if it is appropriate for them to try
  the case or refer it to another authority

76
Making Findings

• Findings are the presiding officers
  determination whether it has been proved beyond a
  reasonable doubt that the accused committed the
  offence charged
• Considers evidence and representations,
  determines what facts to accept and from that
  concludes what happened

77
Making Findings

• One version of facts - even if the evidence only
  supports one version of facts, must still
  consider the evidence to determine if guilt is
  proven beyond a reasonable doubt
• Conflicting versions of the facts - the accused
  is entitled, unless a fact has been proven beyond
  a reasonable doubt, to a finding of fact most
  favourable to the accused

78
Making Findings

• Considering Statements of Offence and Particulars
  - statement of offence and particulars must be
  read together
• Proof Beyond a Reasonable Doubt - must determine
  if all the essential mental and physical elements
  proved beyond a reasonable doubt

79
Alternative Charges

• When charges are laid in the alternative, the
  accused can only be found guilty of one charge
• If guilty of one of the alternative charges, the
  other alternative charge(s) are stayed

80
Stay of Proceedings

• Has the effect of halting further proceedings on
  a charge for an indefinite period
• Has the same effect as a finding of not guilty on
  the alternative charge

81
Included Offences

• Certain service offences include the possibility
  of being convicted of a related or an included,
  less serious offence when the evidence does not
  prove the more serious offence, eg. assault is an
  included offence of assault causing bodily harm.

82
Attempts

• May be convicted of an attempt
• to commit an offence whether charge laid as an
  attempt
• or the completed offence

83
Standard of Proof - Attempts and Included Offences

• Whenever a presiding officer is considering
  convicting an accused on a charge other than that
  which actually appears on the RDP, it must be
  done with great caution and only after consulting
  the unit legal advisor

84
Special Findings

• May make a special finding of guilty when the
  facts proved at summary trial differ from the
  facts alleged in the charge but are still
  sufficient to prove the offence charged

85
Informing the Accused of all Findings

• Accused must be informed
• and the actual finding
• recorded on the RDP

86
Chapter 13

• The
• End

Conduct of Summary Trial
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