Summary Trial vs Courts Martial

[RADOPSIGOPACCISOP]

Read this in another thread:

The number of Canadian soldiers charged for going absent without leave peaked alongside Canadian deaths in Afghanistan in 2007 and 2008 and have dropped since the withdrawal in mid-2011, military records show.

At the same time, more soldiers are opting for a tougher but fairer disciplinary system than summary trials that had become the norm.

The statistics are taken from published data and more recent numbers obtained by Global News under access-to-information laws.

That trend holds true even if you compare it to the military’s regular force headcount, which has held steady even after troops left Afghanistan ....

This from Global News:The story's based on stats obtained here (JAG annual reports) and here (2 page PDF, material obtained from DND via ATIP).

Interesting.

Makes me wonder another thing, for someone that was charged with something like AWOL or drunkenness, is there a benefit to opting for the court martial route? I know the punishments can be tougher, but I would assume the burden of proof is probably higher?

Anyone have any experience (first hand or otherwise) with being charged and what the best route is? From my experience most soldiers seem railroaded into doing a summary trial and just admitting guilt. I have never seen a summary trial where the charge was dismissed (aquitted?), I assume it's essentially the same as just pleading guilty.

Also soldiers always seem railroaded into providing witness statements even when they are advised that they are under suspicion and not under any obligation to provide any statement. From my perspective, I can't see why anyone that could be implicated would provide any sort of witness statement, it essentially can only be used against you.

And we all know when something stupid happens and the SNCO starts asking questions, soldiers are compelled to answer them, but once it becomes a formal investigation they are informed they do not have to provide any statement which could be used against them, does this mean that any statements they made before that point are inadmissible?

 

[dangerboy]

Under QR&O 108.17 the five minor charges that are not electable are: Insubordinate Behaviour (85), Quarrels and Disturbances (86), Absence Without Leave (90), Drunkenness (97), and Conduct to the Prejudice of Good Order and Discipline (129) - only in regards to training, maintenance of personal equipment, quarters or workspace, or dress and deportment.  If you are charged under one of those five you normally don't get to elect CM.

 

[WLSC]

Those are minor offense.  You dont have the right to elect a Court martial for those.

 

[RADOPSIGOPACCISOP]

Under QR&O 108.17 the five minor charges that are not electable are: Insubordinate Behaviour (85), Quarrels and Disturbances (86), Absence Without Leave (90), Drunkenness (97), and Conduct to the Prejudice of Good Order and Discipline (129) - only in regards to training, maintenance of personal equipment, quarters or workspace, or dress and deportment.  If you are charged under one of those five you normally don't get to elect CM.

Good point. Was only an example though, lets say it was something else, I dunno, striking a superior. Soldier was in a bar and a game of pokey chest went too far. Punches were thrown both ways.

Civi side advice would be to not speak to anyone and let your council make whatever case (reasonable doubt, technicalities with how the investigation went, self-defence) he thinks is best.

Otherwise it seems this hypothetical soldier gets strong armed by the RSM into going the summary trial and "march in the guilty bastard" route.

 

[SeaKingTacco]

My experience with the summary trial system over nearly 30 years is that is generally fair.

It is meant to be a quick method for unit CO to impose discipline- it is not about justice.

And yes, I have seen charges tossed at summary trial.  It happens.

 

[Remius]

I know of three (seperate) cases where the member opted for CM.  It was assumed that they figured it might not go to trial in all three cases.  Well they did.  The units involved wanted to just deal with it at the summary trial level.  Now the members were put in a more drawn out process.

In two of the cases the members received what they likely would have received at the summary trial level.  Except they ended up with records as a result that will require a pardon.

In the other case the member was fined, reprimanded and also received a record.  It resulted in his release.

Be careful what you wish for.

Situations will vary though, in all three cases the evidence was overwhelming but a combination of pre conceived ideas and bad advice led to a worse outcome. 

 

[Franko]

Good point. Was only an example though, lets say it was something else, I dunno, striking a superior. Soldier was in a bar and a game of pokey chest went too far. Punches were thrown both ways.

Civi side advice would be to not speak to anyone and let your council make whatever case (reasonable doubt, technicalities with how the investigation went, self-defence) he thinks is best.

Otherwise it seems this hypothetical soldier gets strong armed by the RSM into going the summary trial and "march in the guilty bastard" route.

I thought you were/ are a Snr NCO. Even a newly minted Sgt knows how STs and CMs are done and how a DI is started at the sub unit level, not by the RSM.

If you are, get reading your mil law/ QR&Os/ NDA or ask your WO or MWO to teach you what you need to know. It's your DUTY to know the basics.

As for going to CM, if one is warranted then there is enough evidence to convict in most cases. You don't walk away from a CM unscathed.

Regards

 

[Remius]

Even a newly minted Sgt knows how STs and CMs are done and how a DI is started at the sub unit level, not by the RSM.

Many newly minted Sgts have likely been through the system and have first hand knowledge  ;D

 

[RADOPSIGOPACCISOP]

I thought you were/ are a Snr NCO. Even a newly minted Sgt knows how STs and CMs are done and how a DI is started at the sub unit level, not by the RSM.

If you are, get reading your mil law/ QR&Os/ NDA or ask your WO or MWO to teach you what you need to know.

As for going to CM, if one is warranted then there is enough evidence to convict in most cases. You don't walk away from a CM unscathed.

Regards

Really, it depends a lot on the unit you are in when you are promoted. After PLQ the first non-trade course you are on is ILQ for WO, so there is a definite gap there. Most of the time, the information comes through PD by being asked by a SSM to be involved with a DI or ST. Some units don't often charge people, I've been places where years go by without any charges.

Early SNCO development is one place the military could definitely improve on. Yes it does fall on us to educate ourselves, however open discussion with peers or those with more experience is one of the best ways to learn. I know I don't have time in my job to walk into my MWOs office and say "Hey, do you have a day or so to teach me the ins and outs of military law?" I'm not sure I know many people that has the time in a run of a work day to deal with anything that doesn't accomplish any of the immediate tasks that are stacked on our plates.
This is why posing scenarios on a forum with people who have 30 years in works for me, because I can do that on my Christmas holidays. Reading military law/QR&Os doesn't answer the kind of question I asked either, they will explain what a summary trial is, or how one is conducted, not the advantages or disadvantages of each, or someone else's personal experience.

 

[RADOPSIGOPACCISOP]

Many newly minted Sgts have likely been through the system and have first hand knowledge  ;D

I guess I've been too good at "avoiding getting caught" to learn much about "Oh shit, wtf do I do now?"

 

[Franko]

Go on DND Learn and register. Plenty of courses there to learn from. Be proactive.

Keep an eye on the CM calendar and see when one is going to be convened on your base and ask to sit in as part of PD. Grab a buddy.

Take a mil law OPME, or whatever the new system calls it. It will teach you loads of info.

A Snr NCO should be able to conduct a DI with minimal input from their MWO, usually on the finer points only.

As for pokey chest going too far:

insubordination, striking a superior, quarrels and disturbances, drunk and disorderly(usually starts the pokey chest) and good old 129(or 119 as the older fellas knew it as)

Off the top of my head (don't have a electronic copy of the QR&Os) none are electable for CM, however the rank of the superior may make it automatic for CM. I could be wrong.

Regards

 

[Fishbone Jones]

Really, it depends a lot on the unit you are in when you are promoted. After PLQ the first non-trade course you are on is ILQ for WO, so there is a definite gap there. Most of the time, the information comes through PD by being asked by a SSM to be involved with a DI or ST. Some units don't often charge people, I've been places where years go by without any charges.

Early SNCO development is one place the military could definitely improve on. Yes it does fall on us to educate ourselves, however open discussion with peers or those with more experience is one of the best ways to learn. I know I don't have time in my job to walk into my MWOs office and say "Hey, do you have a day or so to teach me the ins and outs of military law?" I'm not sure I know many people that has the time in a run of a work day to deal with anything that doesn't accomplish any of the immediate tasks that are stacked on our plates.
This is why posing scenarios on a forum with people who have 30 years in works for me, because I can do that on my Christmas holidays. Reading military law/QR&Os doesn't answer the kind of question I asked either, they will explain what a summary trial is, or how one is conducted, not the advantages or disadvantages of each, or someone else's personal experience.

Go ask your SSM for a copy of the Presiding Officer Certification Training (POCT) manual and read it. He\she should have a copy or know where one is. That will give you a very good understanding of the complete process. It is easy to read and not difficult to understand, but will give you a very good basis of understanding and working knowledge of the Mil Justice System, especially Summary Trials. Anyone authorized to lay charges should be very familiar with it or have taken the course.

http://forums.army.ca/forums/threads/107170.0

 

[RADOPSIGOPACCISOP]

Go ask your SSM for a copy of the Presiding Officer Certification Training (POCT) manual and read it. He\she should have a copy or know where one is. That will give you a very good understanding of the complete process. It is easy to read and not difficult to understand, but will give you a very good basis of understanding and working knowledge of the Mil Justice System, especially Summary Trials. Anyone authorized to lay charges should be very familiar with it or have taken the course.

http://forums.army.ca/forums/threads/107170.0

It's good advice, I will probably do just that.

I was sort of hoping to spark a bit more of a discussion here though, personal stories (minus identifying details of course) and opinions.

 

[GPComd]

During my time as a CSM in 3 RCR, I probably did close to 30 summary trials.  Except for one, they all resulted in 'guilty'.  That's because if I wasn't convinced that the evidence was good enough for the presiding officer to come to the decision of guilty, then there was no point in wasting everyone's time.  So there were also dozens of other incidents that never made it to summary trial.  Before laying the charge, the documents are all checked over by the AJAG staff, and if they're not satisfied with the case (which they may have to take over if a CM is elected) then it either gets more work done on it, or cancelled. 
And just to avert the posts about charge-happy leadership - the 30 or so trials was over a 5 year period, and involved soldiers in my companies, the NSE, and the OMLT.

I've been in 4 of the 5 spots for summary trials.  The guilty ($500 fine - in 1985 dollars  :'(), witness, assisting officer, and CSM. 

I read the article in the paper, where they compare the casualties numbers with the awols and other charges, as if the two are linked.  I would disagree - and would rather see a comparison between when a unit rotated back home with the amount of infractions that occurred in the 6 to 18 months after redeployment.  The AWOLs aren't happening with the deployed elements, they're happening back home as some of the troops have some trouble re-adjusting to garrison life.

 

[RADOPSIGOPACCISOP]

During my time as a CSM in 3 RCR, I probably did close to 30 summary trials.  Except for one, they all resulted in 'guilty'.  That's because if I wasn't convinced that the evidence was good enough for the presiding officer to come to the decision of guilty, then there was no point in wasting everyone's time.  So there were also dozens of other incidents that never made it to summary trial.  Before laying the charge, the documents are all checked over by the AJAG staff, and if they're not satisfied with the case (which they may have to take over if a CM is elected) then it either gets more work done on it, or cancelled. 
And just to avert the posts about charge-happy leadership - the 30 or so trials was over a 5 year period, and involved soldiers in my companies, the NSE, and the OMLT.

I've been in 4 of the 5 spots for summary trials.  The guilty ($500 fine - in 1985 dollars  :'(), witness, assisting officer, and CSM. 

I read the article in the paper, where they compare the casualties numbers with the awols and other charges, as if the two are linked.  I would disagree - and would rather see a comparison between when a unit rotated back home with the amount of infractions that occurred in the 6 to 18 months after redeployment.  The AWOLs aren't happening with the deployed elements, they're happening back home as some of the troops have some trouble re-adjusting to garrison life.

Very good points. I was involved in as a witness in a DI where the CoC pushed hard for it to be taken to summary trial but the AJAG strongly recommended they drop it because the DI was done sloppily/too long after the event.
You are probably right about the AJAG applying the CM sniff test if it is elected.

Do you think that electing a CM might cause the CoC/JAG to reconsider pursuing a case if it is weak to begin with? Since Drunkeness and AWOL are ST only, do you think that a CO/SSM might be more charge happy knowing the more stringent requirements of a court martial case are not required?

 

[GreenMarine]

Having just been charged of AWOL, pleading guilty (after my defence fell apart) at the Summary trail, and receiving a caution.

In the prelude, my CoC down played my right to counsel "saying this is just a caution and there's nothing defence lawyers can tell you."

I ended up call JAG via the Defence hotline to which the lawyer verbally slapped me for not electing to speak with them sooner, and reminding me of the right to remain silent.

She also informed me that Summary trials may be phased out as JAG is aware in most cases that decision is predetermined. And that if offered Court Martial I should elect it. Yes it is one of the five minors but the option can still be given. (I had a drunkenness charge years ago and was offered a election but turned it down.)

In my case the main witness, was also the person whom recommended the charges, lead the investigation against me, spoke as a witness and was my character reference at my trial.

Calling Defence hotline a Second time and speaking with the Director Defence Counsel Services he reinforced the first lawyers advise and added about Section 75 of Bill C-15 to which JAG has inter-ripted that if some is given more than one separate minor punishments that it will give a person a criminal record (i.e. Fine + Confinement.)

As said above my defence fell apart, one witness backed out, the presiding officer didn't see my wife as a valid witness and determind most of my evidence was not relevant to the case.

In a Court Martial witnesses are summoned and my defence lawyer can help keep evidence in play even if it's of minor relations. 

http://jag.mil.ca/justice/defence-defense-eng.asp For DWAN users I found it to be most useful in my own predictions of the outcome, how to prepare, and how to move foward.

Just remember your right when facing a charge:

You have the right to retain and instruct counsel without delay;
You have the right to contact any lawyer you wish; and
You have the right to immediate and private access to
legal advice from military duty counsel by telephone, at no cost to you and
the right to remain silent.

 

[RADOPSIGOPACCISOP]

Having just been charged of AWOL, pleading guilty (after my defence fell apart) at the Summary trail, and receiving a caution.

In the prelude, my CoC down played my right to counsel "saying this is just a caution and there's nothing defence lawyers can tell you."

I ended up call JAG via the Defence hotline to which the lawyer verbally slapped me for not electing to speak with them sooner, and reminding me of the right to remain silent.

She also informed me that Summary trials may be phased out as JAG is aware in most cases that decision is predetermined. And that if offered Court Martial I should elect it. Yes it is one of the five minors but the option can still be given. (I had a drunkenness charge years ago and was offered a election but turned it down.)

In my case the main witness, was also the person whom recommended the charges, lead the investigation against me, spoke as a witness and was my character reference at my trial.

Calling Defence hotline a Second time and speaking with the Director Defence Counsel Services he reinforced the first lawyers advise and added about Section 75 of Bill C-15 to which JAG has inter-ripted that if some is given more than one separate minor punishments that it will give a person a criminal record (i.e. Fine + Confinement.)

As said above my defence fell apart, one witness backed out, the presiding officer didn't see my wife as a valid witness and determind most of my evidence was not relevant to the case.

In a Court Martial witnesses are summoned and my defence lawyer can help keep evidence in play even if it's of minor relations. 

http://jag.mil.ca/justice/defence-defense-eng.asp For DWAN users I found it to be most useful in my own predictions of the outcome, how to prepare, and how to move foward.

Just remember your right when facing a charge:

You have the right to retain and instruct counsel without delay;
You have the right to contact any lawyer you wish; and
You have the right to immediate and private access to
legal advice from military duty counsel by telephone, at no cost to you and
the right to remain silent.

From what experience I've had participating in some of the spots on a summary trial and investigation I would recommend any friend in that situation to keep quiet, answer no questions, and take the DI NCOs offer of council when you have to sign the sheets.

Does anyone know if answers to questions by superiors that were not witness prior to the start of a DI become inadmissible if the person elects to take their "right to remain silent"?

Normally you don't have a right to remain silent when the SSM sees a burning hole in the ground where the MLVW used to be and starts calmly enquiring as to the nature of the events that led to the incident.

 

[Fishbone Jones]

Having just been charged of AWOL, pleading guilty (after my defence fell apart) at the Summary trail, and receiving a caution...

You have the right to retain and instruct counsel without delay;
You have the right to contact any lawyer you wish; and
You have the right to immediate and private access to
legal advice from military duty counsel by telephone, at no cost to you and
the right to remain silent.

Unless you paid for a civvie lawyer to act as your legal counsel or had someone from DJAG standing there acting for you, you didn't have a defence lawyer.

What you had was an Assisting Officer, not a lawyer, whose duty it was to tell you all your options, the maximum fines, all your rights and to guide you through the process. As well as to act, at your trial, as your character reference, had you wanted them to. If they failed in any of those duties, you should contact the DJAG for your options.

 

[Franko]

Summary Trials being done away with? Someone is smoking something and it isn't tobacco, unless the JAG office feels it's being underused and all offences will be CM. The budget for each can easily reach into the hundreds of thousands BTW.

Regards

 

[GreenMarine]

Summary Trials being done away with? Someone is smoking something and it isn't tobacco, unless the JAG office feels it's being underused and all offences will be CM. The budget for each can easily reach into the hundreds of thousands BTW.

Regards

Just repeating on what the Defence Hotline Lawyer told me.  If you look at the historical stats of Summary trails, 99% are (found) guilty (2007) vs 70% in CM.