Review of Summary Trial Proceedings

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Chapter 15

• Review of Summary Trial Proceedings

2
Objectives

• Describe the process of reviewing the findings
  and punishments imposed at summary trials

3
Main Points

• Review under QRO 108.45
• Review under QRO 116.02
• Power of Review Authorities
• Post Review Administration
• Judicial Review

4
General

• To review any guilty finding or sentence of a
  summary trial is important for maintaining the
  fairness of the summary trial process
• Developed in response to the recommendations made
  by the Special Advisory Group

5
General

• Protect the offenders right to be dealt with
  fairly while satisfying the requirement to deal
  with minor service offences at the unit level
  promptly
• Offender also has the right to apply for judicial
  review of a summary trial from the Federal Court
  of Canada or any provincial Superior Court

6
Entitlement and Grounds to Request Review

• Set aside a finding of guilty on the grounds it
  is unjustAlter any punishment on the grounds it
  is unjust or too severe

7
Review Authority

• A delegated officer is the CO of the unit
• Commanding Officer is the next superior officer
  to whom the CO of a unit is responsible in
  matters of discipline
• Superior commander is the next superior officer
  to whom the superior commander is responsible in
  matters of discipline

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Referral by Review Authority

• When a referral authority believes it
  inappropriate to act as the review authority,
  that officer must
• not make any determination in respect of the
  request for review
• refer the request for review to the next superior
  officer to whom the officer is responsible in
  matters of discipline

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Redress of Grievance

• Grievance process can no longer be used in
  respect of any matter that may be dealt with by
  summary trial review
• Offender must request review

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Contents of a Request for Review

• Made in writing, either a memorandum or letter
• Set out relevant facts

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Contents of a Request for Review
Contain as much relevant information as possible
Not obliged to provide a copy of the RDP,
attachments, investigative report which the
review authority can obtain from the Unit
Registry of Disciplinary Proceedings
Info on punishments that have been imposed within
the unit for similar offences would be appropriate
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Assistance to Offender Requesting Review

• When an offender requests, CO must appoint an
  officer or NCM above the rank of Sgt to assist
• Request for particular member to assist, that
  person should be appointed if available

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Procedural Requirements - Timings

• Within 14 days of the end of the summary trial, a
  request for review must be delivered to the
  review authority and a copy to the officer who
  presided at trial
• Review authority may extend the period

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Procedural Requirements - Timings

• The officer who presided at the summary trial has
  7 days to deliver the presiding officers
  comments to the review authority, with a copy to
  the offender
• Within 7 days of receiving presiding officers
  comments, the offender may deliver further
  representations to the review authority

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Suspension of Punishment of Detention

• Review authority shall suspend the carrying into
  effect of the detention

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Legal Advice

• Review authority shall obtain legal advice

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Review Process

• Within 21 days, review authority shall make a
  determination and cause the offender, the
  presiding officer and the offenders CO to be
  notified in writing of the decision

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Review Process

• If additional information is required, the review
  authority shall
• seek the necessary information
• notify the offender that further information is
  being sought
• provide the offender with copies of further
  information obtained

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Review Process

• Within 7 days offender may deliver further
  representations to the review
• When further information is sought, review
  authority has 35 days from the date of the
  request for review was received to make a
  determination

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Review Process

• A finding of guilty would be unjust if it is
  contrary to law or fundamentally unfair
• To merit quashing, the breach of the regulations
  must render the verdict unjust
• If the breach of the regulations is
  inconsequential, the finding will not be
  considered unjust on that basis alone

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Review Process

• A punishment may be considered unjust if the
  punishment imposed is illegal
• Sentence may be considered too severe if it is
  far more severe than what is usually given for
  the same offence under similar circumstances
• Before disturbing a sentence, satisfied that it
  was clearly unreasonable in the circumstances

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Review Process

• A review authority has the power to
• quash a finding
• alter findings made
• alter punishments imposed
• suspend detention

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Review Under QRO 116.02

• Review authorities are
• the CDS
• an officer commanding a command
• an officer commanding a formation

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Review Under QRO 116.02

• Review authorities are
• a CO when the offender is under the COs command
  and the presiding officer was not a superior
  commander
• an officer acting as a review authority under
  QRO 108.45

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Review Under QRO 116.02
Note 1 No set procedure to initiate a review
and it is not necessary for the offender to
request review. Review can be initiated by the
review authority (except if the accused was found
not guilty).
Note 2 No time limits for review under this
QRO as the underlying rational for this form of
review is to allow military authorities to
correct an error identified in a summary trial
when reviewed by a unit legal advisor.
Note 3 Unit legal advisors review all unit RDPs
on a monthly basis for mistakes that are apparent
on the document. If a problem is found, the
matter can be addressed through this review
process.
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Power of Review Authorities

• Review authority may decide to
• quash a finding
• substitute a new finding
• substitute a punishment
• mitigate, commute or remit a punishment

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Quashing Findings

• May quash any finding of guilty made at summary
  trial. The effect is that no finding of guilty
  remains and the whole sentence imposed ceases to
  have force and effect
• When a finding of guilty has been quashed, the
  accused can be tried again for the offence as if
  no previous trial had taken place

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Substitution of Findings

• If a finding of guilty is illegal or cannot be
  supported by the evidence, a new finding may be
  substituted
• Review authority can only substitute findings
  that could validly have been made at the original
  trial including a finding of guilty on a
  different offence if the facts appear to prove
  guilt beyond a reasonable doubt on the other
  offence

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Substitution of Findings

• Must ensure that the punishment imposed at
  summary trial is appropriate to the new findings
• If unduly severe, the review authority must
  substitute a new punishment

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Mitigation, Commutation and Remission of
Punishments

• Mitigate means to award a lesser amount of the
  same punishment
• Commute means to replace the punishment with
  another punishment lower on the scale of
  punishments
• Remit means to dispense with the requirement to
  undergo the whole or any part of a sentence that
  remains

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Post Review Administration

• The review authority must
• cause the offender, the presiding officer and the
  offenders CO to be notified in writing of the
  decision
• cause a copy of the decision to be placed on the
  Unit Registry on which the original RDP was
  placed
• cause the appropriate entries to be made to Part
  7 of the original RDP

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Judicial Review

• Anyone found guilty at summary trial may apply
  for judicial review by application to the Federal
  Court of Canada or to the superior court in the
  province where the summary trial took place

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Judicial Review

• Is not an appeal, it is a review by the courts to
  determine if the service tribunal exceeded its
  jurisdiction
• Procedures and application requirements are set
  out in the rules or statutes that apply to the
  court being asked to conduct the review

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Chapter 15

• Review of Summary Trial Proceedings
• The End

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