# Summary Trial Question & Discussion



## greencycle (12 Feb 2012)

I am facing an NDA charge. A legal advisor has told me that I have a good chance of being found innocent at a full-fledged court martial. Therefore, I elected for such. However, I am reconsidering, given the lengthy time to trial.

I checked the statistics on summary trials. There is a 97% conviction rate. With such a hefty conviction rate, I am wondering if the summary trial system is in fact fair. 

In your experience, is the summary trial system capable of distinguishing the innocent from the guilty?

_- mod edit to title to better reflect newer drift of thread - _


----------



## aesop081 (12 Feb 2012)

I have lengthy experience with the ST process.......its not a bad system.


----------



## ModlrMike (12 Feb 2012)

The trial system is fair. When I was in a position to lay charges, I was frequently reminded not to lay a charge that had little chance of success at trial. One of the JAG's duties is to ensure that the process runs accordingly. Bad cases are dealt with through other means. 

I was also told that if you're guilty, and likely to be found so, then summary trial. If you're not guilty, but unlikely to be found so, then court martial. The main point being that ST has limited powers of punishment, a CM you can appeal to the top court. A CM also has to conform to much higher threshold of guilt and rules of evidence.


----------



## vonGarvin (12 Feb 2012)

greencycle said:
			
		

> In your experience, is the summary trial system capable of distinguishing the innocent from the guilty?


Yes.  It it quite capable of determining if the accused is guilty.


----------



## Eye In The Sky (12 Feb 2012)

However, if you are found guilty at the CM, the powers of punishment are higher than that of a Presiding Officer at a ST.

Having been 'the accused' before, a witness, and the one who recommended charges on more than 1 occassion, I think the ST portion of the military justice system does the exact job it is supposed to do.   I didn't think that when I was 'the accused' of course but...hey, I was just a kid.

Its a system, and like all systems, its not perfect but it works.  All your statistic indicates is that 97% of the charges that go to ST are determined to have been "acussed is guilty".  That doesn't account for the DIs that happen that the unit, ULA, JAG, etc decide to not proceed with, or handle thru other ways (extras, defaulters/PUPS/BIRDS, etc) or thru Admin measures (Remedial Measures, etc).

IIRC, a minor charge with a fine of less than X amount of dollars comes off your Coduct Sheet after X amount of years (or mine all did).  However, something like C & P stays on your Pers File forever.  Sometimes a ST is better in the long run than a RW or C & P.  Depends on the situation.


----------



## aesop081 (12 Feb 2012)

Having a fine over $500 left on your conduct sheet isn't bad either.......makes you ineligible for the QDJM  ;D


----------



## Eye In The Sky (12 Feb 2012)

But why wouldn't you want one of those?   >


----------



## Shamrock (13 Feb 2012)

Eye In The Sky said:
			
		

> IIRC, a minor charge with a fine of less than X amount of dollars comes off your Coduct Sheet after X amount of years (or mine all did).  However, something like C & P stays on your Pers File forever.  Sometimes a ST is better in the long run than a RW or C & P.  Depends on the situation.



A finding of guilty does not preclude administrative action.


----------



## Eye In The Sky (13 Feb 2012)

True that, but I wasn't saying you can't be subject to both Admin and Disciplinary from the same incident, just pointing out that over the course of your career, a ST finding of guilty has the potential to 'go away', whereas a RM stays on your pers file forever.  10 years later, if you have the same conduct/performance pop up, and they look at your file and go "hey, Bloggins had an issue back in year XX".


----------



## Teflon (13 Feb 2012)

greencycle said:
			
		

> I am facing an NDA charge. A legal advisor has told me that I have a good chance of being found innocent at a full-fledged court martial. Therefore, I elected for such. However, I am reconsidering, given the lengthy time to trial.
> 
> I checked the statistics on summary trials. There is a 97% conviction rate. With such a hefty conviction rate, I am wondering if the summary trial system is in fact fair.
> 
> In your experience, is the summary trial system capable of distinguishing the innocent from the guilty?



My only question is: Are you guilty? ie: did you do it?


----------



## CountDC (13 Feb 2012)

my thought too Teflon.


----------



## armyvern (13 Feb 2012)

Teflon said:
			
		

> My only question is: Are you guilty? ie: did you do it?



I'd strongly recommend that he/she not answer that question here ...  


Now, from a CSM standpoint, I'd never draft the RDP up, nor recommend charges be laid, if I didn't think the outcome would be "guilty"; and, I know that other CSMs think the exact same way --- it's a lot of admin and paperwork that is better spent should our UD investigation deem them not proceedable. In essence, the high volume of "guilty" outcomes in the ST process. If our investigation showed the possibility of "not guilty" party, it wouldn't be RDP'd in the first place in 100% of those cases.


----------



## Teflon (13 Feb 2012)

ArmyVern said:
			
		

> I'd strongly recommend that he/she not answer that question here ...



AWWW, you're no fun Vern!!  *taking off my "swift Justice" boots and putting away my hanging rope*


----------



## armyvern (13 Feb 2012)

greencycle said:
			
		

> I am facing an NDA charge. A legal advisor has told me that I have a good chance of being found innocent at a full-fledged court martial. Therefore, I elected for such. However, I am reconsidering, given the lengthy time to trial.
> 
> I checked the statistics on summary trials. There is a 97% conviction rate. With such a hefty conviction rate, I am wondering if the summary trial system is in fact fair.
> 
> In your experience, is the summary trial system capable of distinguishing the innocent from the guilty?



Do you have an Assisting Officer?


----------



## Eye In The Sky (13 Feb 2012)

greencycle said:
			
		

> I am facing an NDA charge. A legal advisor has told me that I have a good chance of being found innocent at a full-fledged court martial. Therefore, I elected for such. However, I am reconsidering, given the lengthy time to trial.



Just wanted to add the timeline for changing election from CM to ST, not sure where you are in the process yet, but this is something to keep in mind.

_An accused who has elected to be tried by court martial has the right to withdraw that election and
have the matter tried by summary trial at any time prior to the DMP preferring the charge to be tried by
court martial (QR&O 108.17(5)(a)).

After the DMP has preferred the charge to be tried by court martial, the accused may, with the consent
of the DMP, withdraw that election and have the matter tried by summary trial at any time prior to the
commencement of the court martial (QR&O 108.17(5)(b))._


----------



## Teeps74 (13 Feb 2012)

ArmyVern said:
			
		

> I'd strongly recommend that he/she not answer that question here ...
> 
> 
> Now, from a CSM standpoint, I'd never draft the RDP up, nor recommend charges be laid, if I didn't think the outcome would be "guilty"; and, I know that other CSMs think the exact same way --- it's a lot of admin and paperwork that is better spent should our UD investigation deem them not proceedable. In essence, the high volume of "guilty" outcomes in the ST process. If our investigation showed the possibility of "not guilty" party, it wouldn't be RDP'd in the first place in 100% of those cases.



To echo what ArmyVern has said, I have conducted several disciplinary investigations and drafted several RDPs. I do not write the RDP unless I am certain the outcome is guilty. Yes, yes, cart before the horse and all that, but remember, the summary trial process is not going to deal with major things (murder etc)... The ST process is to keep all those little things in check, like being late for work (AWOL), not keeping control of your weapon (insecure weapon or unauthorized discharge), minor cases of insubordination. 

Now, I can not think of an advantage to getting rid of the summary trial process. My own opinion is that it is a process whereby the chain of command is demonstrating that it wants to retain the member. In theory, administrative processes can be run in parallel, but only in the more extreme cases from what I have seen... Get rid of the summary trial process, and the administrative process will be followed more stringently, which potentially could lead to a lot of our members being on C&P and potentially released for things like being late for work (people get fired on civi street all the time for being late for work...).

Are there flaws in the summary trial process? Well, frankly there are flaws in every process created. I can not fathom a better system for keeping minor disciplinary issues in check... The other options are far too draconian, even from a military stand point. I do not believe that a soldier who is late for work twice in a year should be placed in the administrative stream or court marshaled... But perhaps a ST and a lost weekend would drive home the point nicely.


----------



## armyvern (13 Feb 2012)

Eye In The Sky said:
			
		

> Just wanted to add the timeline for changing election from CM to ST, not sure where you are in the process yet, but this is something to keep in mind.
> 
> _An accused who has elected to be tried by court martial has the right to withdraw that election and
> have the matter tried by summary trial at any time prior to the DMP preferring the charge to be tried by
> ...



The accused really needs to get together with their AO. _Really_.


----------



## Eye In The Sky (13 Feb 2012)

ArmyVern said:
			
		

> The accused really needs to get together with their AO. _Really_.


  
Agree 100% _and_ I hope the AO is experienced and switched-on.  Unfortunately, that is not always the case.


----------



## Fishbone Jones (13 Feb 2012)

Let's just leave this alone for now, folks. It's an ongoing investigation\ case. If the OP has any other questions, he'll ask.

Milnet.ca Staff


----------



## greencycle (13 Feb 2012)

I want to thank you guys for all the helpful advice.  

I will be making my decision with a lot more understanding.


----------



## McG (13 Feb 2012)

greencycle said:
			
		

> ... I elected for such. However, I am reconsidering, given the lengthy time to trial.


If your election has already reached the prosecutor, it is too late to change your mind.


----------



## aesop081 (13 Feb 2012)

MCG said:
			
		

> If your election has already reached the prosecutor, it is too late to change your mind.





> After the DMP has preferred the charge to be tried by court martial, the accused may, with the consent
> of the DMP, withdraw that election and have the matter tried by summary trial *at any time prior to the
> commencement of the court martial *(QR&O 108.17(5)(b)).


----------



## McG (13 Feb 2012)

Despite what you've bolded, the paragraph that you omitted from your quote clearly states that the right to withdrawal the election does not exit once the prosecutor has done his/her thing to launch it.  I've not seen a prosecutor acquiesce because someone has realized they are about to get hooped for a stupid decision when having an election.


----------



## aesop081 (13 Feb 2012)

MCG said:
			
		

> I've not seen a prosecutor acquiesce because someone has realized they are about to get hooped for a stupid decision when having an election.



That it is unlikely does not equate to being impossible. The first paragraph says that the member can withdraw his election prior to DMP preferring the charge(s). The second paragraph states that after DMP has preferred the charge(s) the member can withdraw his election but it requires the consent of DMP.

Thus, it is not impossible to change your mind once the prosecutor has the case, as long as the CM has not begun. That you have never seen it happen does not cause it to be impossible and does not invalidate the regulations.


----------



## Gunner98 (14 Feb 2012)

There is also a small number of CMs that never commence because the CF legal system representatives determines that there is insufficient evidence to proceed or it is unlikely that a determination of guilt has be returned.  Although there is a higher potential punishment, there is also a higher standard for evidence.

97% seems like a reasonable number at ST level, higher than many accused would think.  A 3% chance of Not Guilty is higher than the odds of winning the lottery.  There is only one question, "Do you fell lucky..."!


----------



## ballz (14 Feb 2012)

I personally would be basing my decision on the evidence against me, not on probabilities. 

Which leads me to a question (these ST / CM things always catch my interest) for those with experience... Are you given the full-disclosure of evidence against you before you have to make a decision on ST or CM? Any comments would be appreciated.


----------



## ModlrMike (14 Feb 2012)

I believe discovery comes after the election. Until the member elects, there's no framework for the trial. That being said, the member should have a good understanding of the evidence to be introduced at trial before he makes an election.


----------



## aesop081 (14 Feb 2012)

As far as i can recall, i was provided with a copy of all witness statements prior to making my decision, the last time around.

Its been almost 10 years so i could be remembering wrong.


----------



## armyvern (14 Feb 2012)

ballz said:
			
		

> I personally would be basing my decision on the evidence against me, not on probabilities.
> 
> Which leads me to a question (these ST / CM things always catch my interest) for those with experience... Are you given the full-disclosure of evidence against you before you have to make a decision on ST or CM? Any comments would be appreciated.



Beginning from the time your charges are read, you receive a copy of your file (the UDI, all statements etc) and  have a *minimum* of 24 hours to decide your election (ST/CM).

During this time, one should certainly be going over that file, discussing both ST and CM processes and the differences between the two (including powers of punishment/evidence) with the AO, legal etc.


----------



## armyvern (14 Feb 2012)

ModlrMike said:
			
		

> I believe discovery comes after the election. Until the member elects, there's no framework for the trial. That being said, the member should have a good understanding of the evidence to be introduced at trial before he makes an election.



Well, not really, but I know what you meant. Discovery comes after the charge vice the election. Member is marched in, RDP'd (charged) and then receives the file and is sent away to consult as appropriate for min 24hrs. At some point after the initial 24 hours has passed, mbr will be brought in again to make their election as to TYPE of proceeding.


----------



## Haggis (14 Feb 2012)

ArmyVern said:
			
		

> Well, not really, but I know what you meant. Discovery comes after the charge vice the election. Member is marched in, RDP'd (charged) and then receives the file and is sent away to consult as appropriate for min 24hrs. At some point after the initial 24 hours has passed, mbr will be brought in again to make their election as to TYPE of proceeding.



Vern is bang on.  Full; disclosure is made at the time charges are laid (i.e. the accused is given his RDP) or very shortly thereafter in order to allow him to make an informed decision about ST or CM.  The 24 hours is a minimum and the accused can reasonalbly request more time.  In the Class A Reserve world, "24" hours" usually means about a week.

One key difference to remember between ST and CM is that at an ST you will be asked if you "admit to the particulars" and not to plead guilty/not guilty.  What you are, in fact doing is admitting that the statement of offence as written on the RDP is factually correct.  At that point, the presiding officer can find you guilty/not guilty - without another word being said  - but likely based your admission, coupled with the evidence presented for/against you (witness statements, your statement, AO's submission etc.).


----------



## ProPatria05 (13 Apr 2016)

The NDA and QR&O are clear that a summary trial must commence within one year of the date on which the offence(s) allegedly occurred.

What I can't find in either of those, or in the "Military Justice at Summary Trial" manual is what happens if the year expires and the trial has not started. Can the member no longer be tried? Does it automatically go to court martial?

For example, Bloggins gets charged with Drunkenness (not normally electable), and for whatever reason a year passes from the date of the alleged offence and the trial has not started. What happens then?

Seems a bit unfair if this forces it to court martial, with greater powers of punishment, when it should have been tried by summary trial. Any experience out there with this type of situation?


----------



## ModlrMike (13 Apr 2016)

I think the charges are stayed.

FWIW, I've never encountered that situation either. Perhaps one of our resident legal experts can shed more light.


----------



## dapaterson (13 Apr 2016)

File would go to JAG, who would review and determine whether to go to court martial.  Given that a unit investigation may not hold up, I suspect most would not be proceeded with.

I believe military judges take such issues into consideration should an individual be found guilty - "If this had been properly handled, it would have been a summary trial, therefore the sentence was selected with that in mind".

I am not a lawyer, so take this all with several large grains of salt.


----------



## Oldgateboatdriver (13 Apr 2016)

Incorrect Dataperson.

ModlrMike has the right answer: The charges are stayed.

The file is only forwarded to JAG so it can be recorded and filed away.

The power of election, where it exists, belongs only to the accused. For the "prosecution", there is no choice: if the charges can be tried only by summary trial or only by court martial, they have to go those route and take the consequences of screwing it up. Similarly, if it is a charge for which the "prosecution" has a choice, they cannot change it once they made a choice and then screwed it up. They lost their chance once the charge sheet has been drawn up and the accused given a copy. The prosecution is stuck with that process - period.

In case of a screw up leading to a charge of importance for discipline being stayed, I would expect some consequences to appear in someone's PEER  :nod:.


----------



## ProPatria05 (13 Apr 2016)

@Oldgateboatdriver -- With appreciation to the other responses, you seem to be speaking with a fair degree of certainty. So not that I am questioning the accuracy of your response, but is there any sort of reference that supports this?


----------



## Oldgateboatdriver (13 Apr 2016)

No "reference". It's the state of criminal/military law. Check with a JAG officer. I am sure they will confirm this.

The concept is known as double jeopardy: Once you have been put "at risk" of being found guilty in a process issued by the Crown, but they failed for causes originating in their own deportment (here, failure to proceed within delays), they cannot have a second go at it in a different way.


----------



## ProPatria05 (13 Apr 2016)

Thanks.


----------



## dapaterson (13 Apr 2016)

Sorry - I was thinking that the charge had not been laid within a year.  In that case it would go to JAG to determine disposition.


----------



## ModlrMike (13 Apr 2016)

In the absence of a lawyer chiming in, I think that R. v Askov [1990] applies.

Full judgement

Analysis


----------



## ProPatria05 (13 Apr 2016)

Still wouldn't seem right in that case to go to court martial, either, when it should have been dealt with summarily.


----------



## Harris (13 Apr 2016)

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.


----------



## ModlrMike (13 Apr 2016)

Harris said:
			
		

> 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.



I have to side with Oldgateboatdriver here. I think the right to elect rests solely with the accused. Otherwise the Crown could drag its feet and force a CM, thereby negating the right to elect.


----------



## captloadie (13 Apr 2016)

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 (13 Apr 2016)

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.


----------



## ProPatria05 (13 Apr 2016)

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.


----------



## Harris (13 Apr 2016)

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)


----------



## FJAG (13 Apr 2016)

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:


----------



## RADOPSIGOPACCISOP (15 Apr 2016)

Oldgateboatdriver said:
			
		

> 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.



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).


----------



## RaaRaa (12 Feb 2019)

Need some help here was wondering if anyone knows the lawful amount of notice that has to be given once a summary trial date is set. if you could also provide the references that would be great


----------



## FJAG (12 Feb 2019)

RaaRaa said:
			
		

> Need some help here was wondering if anyone knows the lawful amount of notice that has to be given once a summary trial date is set. if you could also provide the references that would be great



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:


----------



## dapaterson (12 Feb 2019)

Confounding factors may include the availability of witnesses, particularly in a Reserve Force context.


----------



## Franko (12 Feb 2019)

As soon as the charges are formally laid, usually the Summary trial happens within 48 hours. 

Regards


----------



## Kat Stevens (12 Feb 2019)

Most times it was "You! Be outside the RSMs office at 1300, no need for a hat".


----------



## PPCLI Guy (12 Feb 2019)

Sir_Spams_a_lot said:
			
		

> Most times it was "You! Be outside the RSMs office at 1300, no need for a hat".



Yup.  Having played every possible role in a Summary Trial except RSM, that has been my experience...


----------



## OldSolduer (13 Feb 2019)

PPCLI Guy said:
			
		

> Yup.  Having played every possible role in a Summary Trial except RSM, that has been my experience...


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.


----------



## Rifleman62 (13 Feb 2019)

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.


----------

