ProPatria05
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Still wouldn't seem right in that case to go to court martial, either, when it should have been dealt with summarily.
Summary Trial Question & Discussion
- Thread starter greencycle
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Unfortunately the MPs and their system dealing with MP reports frequently cause delay which results in something that could have been handled by a ST, going to CM. I have routinely received MP reports 8 or more months after the incident happened. One time at band camp the MP report didn't show up until after a full year had passed and we had no choice in going to CM.
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I think there may be some confusion wrt this. The accused does not have the right to elect summary trial or Court Martial. He has the right to elect a Court Martial if the charge is determined to be electable. A CO may decide to refer the matter directly to court martial, the accused has no say in the matter.
Oldgateboatdriver
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Captloadie, you are quite right for the accused right to make an election.
The thing about the CO, however, is not a way to avoid dealing with improper handling of the trial (i.e. we screwed up the summary trial process, so I am sending it to a court martial. The option for the CO to make such reference is NOT discretionary: A CO, who, upon reading the charge (and thus before the beginning of the hearing of any evidence portion) determines that his powers of punishment would be insufficient if the person was found guilty must refer it to a court martial. It is not something he can do just to not bother hearing a charge.
An illustration would be a NPF officer brought on charge of theft: CO reads the charge that the officer "stole $50.00 from the mess petty cash" = She can handle it with the powers of punishment she has. The same theft charge reading that the "officer, over a period of three years has diverted in his own favour $200,000 from the base fund" is one the CO must send up to a court martial.
Of course it's not all that black and white. Serious charges go straight to court martial, and it's usually for matters in the grey zone that a CO must make a call, but they have to make it before the evidence is heard at all, and they must personally believe that their powers of punishment are inadequate.
The thing about the CO, however, is not a way to avoid dealing with improper handling of the trial (i.e. we screwed up the summary trial process, so I am sending it to a court martial. The option for the CO to make such reference is NOT discretionary: A CO, who, upon reading the charge (and thus before the beginning of the hearing of any evidence portion) determines that his powers of punishment would be insufficient if the person was found guilty must refer it to a court martial. It is not something he can do just to not bother hearing a charge.
An illustration would be a NPF officer brought on charge of theft: CO reads the charge that the officer "stole $50.00 from the mess petty cash" = She can handle it with the powers of punishment she has. The same theft charge reading that the "officer, over a period of three years has diverted in his own favour $200,000 from the base fund" is one the CO must send up to a court martial.
Of course it's not all that black and white. Serious charges go straight to court martial, and it's usually for matters in the grey zone that a CO must make a call, but they have to make it before the evidence is heard at all, and they must personally believe that their powers of punishment are inadequate.
ProPatria05
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So I'll throw in 2 x "what ifs". Both are variations of the one-year limitation expiring.
1. What if the charge is laid before the one-year summary trial limitation expires and is for a minor offence, but the CO decides for whatever reason to refer it directly to court martial rather than hold a summary trial. I assume Director of Military Prosecutions would come back and say "get bent, this is well within your powers of punishment - you can preside". But oops - the CO waited too long to refer it and now the one-year limitation has passed. Would it proceed by court martial? Can a judge extend the one-year period? Are the charges stayed for procedural errors?
2. What if the chain of command drags its heels and doesn't even lay the charge within a year, as it is assumed it is going to court martial. Same as above, DMP says "you have jurisdiction and sufficient power of punishment, this should have been tried summarily." But the one-year limit has expired. What now?
As you've probably guessed, I'm in a situation where it's starting to look like one of the two situations above will unfold. Once (and if) I'm ever charged, I will absolutely call duty counsel. Just trying to get the lay of the land at this time.
1. What if the charge is laid before the one-year summary trial limitation expires and is for a minor offence, but the CO decides for whatever reason to refer it directly to court martial rather than hold a summary trial. I assume Director of Military Prosecutions would come back and say "get bent, this is well within your powers of punishment - you can preside". But oops - the CO waited too long to refer it and now the one-year limitation has passed. Would it proceed by court martial? Can a judge extend the one-year period? Are the charges stayed for procedural errors?
2. What if the chain of command drags its heels and doesn't even lay the charge within a year, as it is assumed it is going to court martial. Same as above, DMP says "you have jurisdiction and sufficient power of punishment, this should have been tried summarily." But the one-year limit has expired. What now?
As you've probably guessed, I'm in a situation where it's starting to look like one of the two situations above will unfold. Once (and if) I'm ever charged, I will absolutely call duty counsel. Just trying to get the lay of the land at this time.
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Just so it's clear, as I understand it whether the charge is electable or not can result in one of four outcomes:
a. less than a year has passed and the charge is not electable the soldier goes to ST;
b. less than a year has passed and the charge is electable the soldier picks his poison;
c. one year has passed since the alleged incident and no charge was laid for whatever reason within that time, electable or not electable is irrelevant, direct to CM; or
d. the CO decides to not proceed with charges for whatever reason regardless of how much time has passed.
Part of the problem with c. is that sometimes the UDI cannot be completed within the one year (for example the MP report hasn't shown up yet). I have had to deal with all of the above circumstances.
I'f I'm missing something I'd really like to know. (references would also be appreciated)
a. less than a year has passed and the charge is not electable the soldier goes to ST;
b. less than a year has passed and the charge is electable the soldier picks his poison;
c. one year has passed since the alleged incident and no charge was laid for whatever reason within that time, electable or not electable is irrelevant, direct to CM; or
d. the CO decides to not proceed with charges for whatever reason regardless of how much time has passed.
Part of the problem with c. is that sometimes the UDI cannot be completed within the one year (for example the MP report hasn't shown up yet). I have had to deal with all of the above circumstances.
I'f I'm missing something I'd really like to know. (references would also be appreciated)
FJAG
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I think that the electability issue is a bit of a red herring here. In most cases, the election will take place as a pre-trial procedure before the summary trial commences (see QR&O 108.17) (there are very narrow circumstances where elections can be offered after the trail commences)
In general (see QR&O 108.16), before the commencement of a summary trial, the officer having jurisdiction must determine if he is precluded from conducting the trial for various reasons (electability being just one). In the circumstance described here where the officer having jurisdiction determines he is precluded from trying the accused because one year has elapsed from the date of the offence and the trial has not yet commenced, he is required to take one of the actions set out in QR&O 108.16(3) which in this circumstance would be the referral of the charges to the appropriate referral authority who would then refer the charge on to DMP for final determination as to whether or not the charges will be proceeded with by way of court martial.
Also, do not forget about the provisions of QR&O 107.09(3) where a CO can determine, pre-trial, that a charge is not to be proceeded with at all.
:cheers:
In general (see QR&O 108.16), before the commencement of a summary trial, the officer having jurisdiction must determine if he is precluded from conducting the trial for various reasons (electability being just one). In the circumstance described here where the officer having jurisdiction determines he is precluded from trying the accused because one year has elapsed from the date of the offence and the trial has not yet commenced, he is required to take one of the actions set out in QR&O 108.16(3) which in this circumstance would be the referral of the charges to the appropriate referral authority who would then refer the charge on to DMP for final determination as to whether or not the charges will be proceeded with by way of court martial.
Also, do not forget about the provisions of QR&O 107.09(3) where a CO can determine, pre-trial, that a charge is not to be proceeded with at all.
:cheers:
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Oldgateboatdriver said:
I would think if they screwed up the investigation so bad they didn't want to proceed to summary trial then the chances of it passing at court martial is slim to none (if they don't quash it before trial).
FJAG
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RaaRaa said:
Your question is a bit vague.
To the best of my knowledge there is no "lawful amount of notice that has to be given once a summary trial date is set". Practically speaking, once a date is set the accused should be advised of the date immediately or as soon as practical if there is a situation that makes immediate impossible. However, there are numerous issues such as delivery of evidence to the accused, service of charges, amount of time to make election, where time is relevant.
Perhaps if you were to indicate some details of the situation involved we could provides some better advice.
FYI, all relevant references are to be found in QR&Os 107 to 108. See here http://www.forces.gc.ca/en/about-policies-standards-queens-regulations-orders-vol-02/index.page and in the DND publication "Summary Trial at the Unit Level 2.2 https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law/military-justice-summary-trial-level-2-2.html
:cheers:
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Confounding factors may include the availability of witnesses, particularly in a Reserve Force context.
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Most times it was "You! Be outside the RSMs office at 1300, no need for a hat".
OldSolduer
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In the “olden” days the OC would tell the CSM “Charge that man”. The CSM would, then the same OC would try the guilty bast@rd.PPCLI Guy said:
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Now, I do not know if this story is true. Years ago, while we were in his office, the A/CO of 2PPCLI, (don't remember his name, Francophone sounding), related the episode of a soldier who had come before the CO more than once. When asked if he had anything to say prior to the CO passing the results of his deliberations, the soldier reached for his wallet, spoke into the wallet "Beam me up Scotty".
Apparently the CO could barely say March Him Out RSM. The RSM reentered the CO's office and had a very good laugh, then later brought the solder back to finish off.
Apparently the CO could barely say March Him Out RSM. The RSM reentered the CO's office and had a very good laugh, then later brought the solder back to finish off.
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