Election

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Chapter 12

• Election

2
Objectives

• Describe the process by which an accused elects
  trial either by court martial or summary trial.

3
Main Points

• Purpose of the election
• Circumstances in which an election must be
  offered
• Who may offer an election
• Process used to give an election
• Recording the election
• Effect of refusal to make an election

4
Main Points

• Procedure after election is made
• Opportunity to consult legal counsel
• Withdrawal of election to be tried by court
  martial
• Election during summary trial
• Subsequent elections

5
Election

• Refers to the process by which an accused,
  charged with offences triable by summary trial
  but having the right to trial by court martial,
  selects their form of trial

6
Purpose of the Election

• Allow an accused the opportunity to make an
  informed choice regarding type of trial to be
  held, with full knowledge of the consequences of
  waiving the right to trial by court martial which
  have legal and procedural safeguards for the
  accused

QRO set out the procedure to ensure the process
is procedurally fair. Failure to follow could
affect the legal validity of any any summary
trial.
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Circumstances of the Election

• Some charges can only be tried by court martial
• Either by summary trial or court martial, the
  accused has the right to elect the form of trial
• List found at QRO 108.07

8
Circumstances of the Election

• Only 5 minor service offences for which an
• accused does not automatically have a right of
• election
• NDA s. 85, Insubordinate Behavior
• NDA s. 86, Quarrels and Disturbances
• NDA s. 90, Absence Without Leave
• NDA s. 97, Drunkenness
• NDA s. 129, Conduct to the Prejudice of Good
  Order and Discipline(some exceptions)

9
Circumstances of the Election

• Election may still be offered should the
• presiding officer conclude a punishment of the
• following would be warranted if found guilty
• detention
• reduction in rank, or
• a fine in excess of 25 of the monthly basic pay

10
Who May Offer an Election

• A presiding officer who exercises
• summary trial jurisdiction over the
• accused.

11
Process Used to Give an Election

• When the accused has a right to be
• tried by court martial, the presiding
• officer must inform the accused of that
• right

12
Process Used to Give an Election

• Must ensure accused given a reasonable
• period of time, not less than 24 hours, to allow
• the accused
• an opportunity to consult with legal counsel

13
Process Used to Give an Election

• to decide whether to elect to be tried by summary
  trial
• to make his/her decision known in the manner
  stipulated by the officer exercising the summary
  trial jurisdiction

14
Recording the Election

• Recorded in Part 3 of the RDP
• time date the accused was given the election
• time date the accused was required to make the
  election

15
Recording the Election

• the election choice made by the accused
• the signature of the person receiving the
  election
• the date time the election choice was received

16
Election Decision

• The accused, by endorsing Part 3 is
• confirming
• the election decision
• that the accused has discussed the nature and
  gravity of the offences charged with the
  assisting officer

17
Election Decision

• that the accused discussed the differences
  between court martial and summary trial with the
  assisting officer
• that the accused had an opportunity to consult
  counsel about the election

18
Effect of Refusal to Make an Election

• An accused who refuses to make an
• election is deemed to have elected trial
• by court martial

19
Procedure after Election is Made

• Elects trial by summary trial, the presiding
  officer continues to have jurisdiction and must
  proceed with the summary trial
• Elects trial by court martial, the presiding
  officer loses jurisdiction and must refer for
  disposal by court martial

20
Election received by a delegated officer

• If the election is received by a delegated
• officer, the officer must refer the charges
• to the CO.

21
Election received by a CO

• If the election is received by a CO, the CO must
  refer the charges to DMP for disposal by court
  martial

22
Election received by a CO

• If received by a superior commander
• if that officer is not a referral authority,
  he/she must refer the charges to a referral
  authority
• if that officer is a referral authority, he/she
  must refer the charges to a referral authority

23
Opportunity to Consult Legal Counsel

• reasonable opportunity to consult counsel
  regarding an election
• reasonable opportunity will depend on the
  circumstances

24
Opportunity to Consult Legal Counsel

• reasonable opportunity to consult counsel
  regarding an election
• reasonable opportunity will depend on the
  circumstances

25
Opportunity to Consult Legal Counsel

• Procedure is the same as the election procedure
  before a summary trial.

26
Election during Summary Trial

• May subsequently become necessary to stop the
  trial if a CO or superior commander decides that,
  if the accused were to be found guilty, a
  punishment of detention, reduction in rank or
  fine in excess of 25 of monthly basic pay would
  be appropriate

27
Election during Summary Trial

• Procedure is the same as at the beginning of a
  summary trial

Delegated officer reaching the same conclusion
shall not offer an election, but rather shall
refer the charges to the CO.
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Subsequent Elections

• When charges have been referred to an officer
  having summary trial jurisdiction from another
  officer having summary trial jurisdiction who has
  already offered the election to the accused
• (eg. when charges are referred from a delegated
  officer to a CO who powers of punishment are
  greater)

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Subsequent Elections

• As a curative measure, as recommended by a unit
  legal advisor, when a procedural error has
  occurred and is capable of being corrected by
  repeating the election procedures

Because of the unusual circumstances involved in
offering any second elections, the unit legal
advisor should be consulted.
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Chapter 12

• The End

Election
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