Summary Trial vs Courts Martial

[brihard]

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.

My inclination would be towards feeling that as soon as an NCO forms a reasonable suspicion that a service offense has been committed and they are going to question a person they suspect of committing it, that statement should be read their caution. And I don't mean the NCO rolling his eyes and saying "I have to read this to you... yadda yadda yadda... now answer the damn questions."

The fact that COs and delegates still have the powers granted by the summary trial system is something, I think, many in the military take completely for granted without realizing how very contradictory it is to the standards of due process in the rest of society. Everything is stacked against a soldier, particularly a junior soldier, when they are in front of a summary trial- as was wisely stated earlier, it is not about 'justice', it is about 'discipline'- yet the results have judicial significance. There are a number of other career fields where an applicant may have to divulge "Have you ever been convicted of an offense under any federal statute?" and where the person asking may not have any clue about how dramatically different summaries under the NDA are compared to the entirety of the rest of Canadian law.

I remain conflicted on the system. I see the need for it, or for something like it, but I also see dramatic flaws. I am obviously biased on this particular subject by the somewhat different perspective I have on matters of law and justice by virtue of my current career, and I admit my time as a SNCO is quite limited, so I lack proper perspective on the necessity of the summary system from the subunit command team's standpoint.

 

[211RadOp]

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.

Having done a number of DIs in 2 Sigs and CFJSR, here is what I will tell you about DIs. 

When I question someone who has the potential to be charged, they get a caution, whether they committed the alleged offence, or if they where party to the offence.  So far I have only had 1 person elect to contact duty counsel, and after my investigation I did not recommend charges against the member as they were not in a position to have stopped the offence from occuring without causing harm to themselves or others (long story I am not going to get into here).  When cautioning the potential accused, part of the caution states"...Whatever you felt influenced or compelled to say earlier you are not now obliged ot repeat, nor are you obliged to say anything further...".  If he said something to someone else (who is not known to me), and he does not want to repeat it, then I can not use it in my report.  If I do know who he said it to, then I must interview that person and have him repeat to me what was said.  In your example, yes I would interview the SSM to get the information that he saw and what was said to him, and yes, I can put it in my report.

 

[Franko]

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.

They are still admissible. Even if the individual doesn't want to say who he talked to or make a statement, it's up to the person doing the investigation to carry on.

I've interviewed over 50 people in one DI to get the statements required. Mind you, the CoC and I decided to go another route when it turned into a harassment issue and not an infraction of the NDA as it was initially thought to be.

There are ways to secure evidence if required and sometime you have to go through a lot in order to get the whole picture.

In another case it took 20 interviews to get a full picture of what happened and I recommended that no charges be laid. The SSM agreed and it was dropped after the JAG office looked it over.

Regards

 

[Old EO Tech]

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.

In MHO the reason 99% of ST are found guilty is one, they are mostly minor punishments, and two as others have stated when a proper in-depth DI is conducted, if there is not enough evidence the case is dropped before it even gets to a ST.  CM deal with much more complex cases and much higher standards for rules of evidence, so as a result yes you are going to get a larger variance of outcomes, even if the person doing the DI was certain beyond a reasonable doubt that a service offense may have been committed.

The ST system has been under examination before and will likely always have critics, and if we do not take our military justice system seriously will can end up like the Aussies and lose the ST system.  Now this doesn't make the military justice system(or ST in particular) invalid, in fact the Supreme Court has upheld our system as a necessity to support the discipline required by a military fighting force.  But I disagree that military justice is all about unit discipline, though that is important, justice and rehabilitation are just as important and anyone that has read or taken the POCT will no this as it is very clear in that manual.

There has been many changes to the Canadian Military justice system after Somalia and the  review that was done.  I believe the ST system is a fair and balanced as it can be, it may be a scary thing for an accused, but as stated that is what the Assisting Officer is for, to educate and advise the accused.  And you can ask for a new AO if you think you are not getting the help you deserve.  You can also ask for a post trial review from the Officer commanding the Presiding Officer at your trial.  Cases are also reviewed by the local AJAG as well and they can force a review under another part of the NDA.  So in the end if you really think you got more than you deserved there are checks and balances in the system.  But in all of the ST's that I have been involved in, they were carried out fairly and the accused received a fair sentence. 

I personally have not seen an accused found not guilty because units that do comprehensive DI's don't waste the time of the unit on cases that would be dismissed....

 

[FJAG]

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.

Firstly, your statistics are off. If you look at the last annual reports for the JAG (FY 09/10) you will find that in FYs 08/09 and 09/10 the rate of conviction was appx 91% with the remaining 9% found not guilty or charge dismissed or charge not proceeded with. For the same period CMs had an 78-80% conviction rate with the rest found not guilty, dismissed etc.

IMHO the roughly 10% difference does not reflect poorly on the ST system, it merely is reflective of the fact that cases that go to CM are generally more complex and are also more under the scrutiny of legal trained officers.

The statement coming from (allegedly) a member of Defence Counsel Services hotline lawyer as to the future of the ST is quite probably nonsense.

The legal branch in consultation with the various commands looked at the role of the ST not long after the Somalia debacle when there was a wholesale review of the military police and military justice system. In short both agencies, lawyers and non lawyers saw that the ST system is a good one. If you can trust your officers and NCOs to lead their troops into battle then certainly you can trust them to try a soldier fairly for dirty boots on parade or AWOL. Our issue wasn't whether or not the ST system was being administered fairly (we believed that it was and is) but whether or not it met the technical legal requirements set by the Charter of Rights as to the of administration of justice. At the time we found it needed a bit of tweaking and the resulting changes were put into amendments to the National Defence Act some time ago. One additional change that came about as a result of that was mandatory training in STs for all presiding officers so that the standard of ST administration would be uniformly high (at the time it had been somewhat erratic especially amongst units that rarely conducted them)

Just take a second to think about it. If you didn't have STs what would be the alternative. Taking away the power of units to administer discipline? Having 2,500 CMs a year instead of 50-70? Handing it over to a civilian court?

STs are here to stay. They may be tweaked more from time to time but they are not going away.

:subbies:

 

[jeffb]

The result would inevitably be a rise of administrative action, unofficial punishments such as extra and CMs s to cover off the stuff that a summary trial does. This would actually be a more unfair system as often the first of these two are conducted without the same scrutiny as is currently placed on UDIs.

The real trial happens during the UDI process. Unless everyone involved in the investigation is convinced that an offense has been committed, and it is worth pursuing, the charge dies right there. There are just too many eyes on an investigation for people who should not be charged finding themselves at trial. Sometimes an investigation misses something though, I've seen it happen, so it is vital that the trial processes happens so we ensure that fairness is reached at.

 

[X Royal]

I've seen summary trials which sent people to Club Ed (back in the day) that would of never stood a chance at a CM.
In one case they ran a police line up at the London Police station. 2 of the 3 witnesses ID'd me as the perp. No one ID'd the sentenced party.
Lucky the Base Commander could confirm it wasn't me as I was with him at the time.(bar tending at the officers mess)
BTW: They got the right guy.
They knew it but actually couldn't prove it.

 

[Edward Campbell]

I hesitate to weigh in because my experience is so old and out of date, but I marked time in front of the CO's desk a time or two, 50+ years ago, and, later, I conducted summary trials: once as a delegated officer, a sub-uniot OC, and twice as a CO, in the ranks of both major and lieutenant colonel.

I, personally, regard discipline as the sine qua non of soldiering. We want tough, smart people to be soldiers, we want them to be well led and very well trained, we want them to be well equipped, too, but none of those things, or even all of those things together, count for much unless we are superbly disciplined. It is discipline which separates the well armed tough guys, the macho thugs, to quote an old friend,* from the real, professional soldiers.

I regard summary justice as an important tool in maintaining discipline: summary (swift and visible) justice allows us to set and use exemplary measures to help install and maintain standards.

But I can assure you that summary justice is not, always, all about law: opinions ~ prejudices ~ are there, too, because we, NCOs, officers and commanding officers, are all human. I can tell you that I had strong opinions about the hierarchy of offences: some actions, (crimes) were more deserving of harsh punishment than others. I distinguished, as I was allowed, indeed encouraged to do, between the occasional offender and the habitual one - that's why I looked at a soldier's conduct sheet before awarding a punishment.

I think there is an important different between military law, which is the business of courts martial, and military justice, which, I firmly believe, is best administered by ship and unit officers, within the ship or unit, via summary trial.

My personal and undoubtedly biased opinion is that summary justice is fair and it works - there are times when more legalistic, formal court martial is essential but most of the things that matter most can be and should be dealt with summarily. Yes, mistakes can and do happen - we are, once again, only human - but they are rare, i think, and they happen in courts martial, too.

____
* It's a phrase that then MGen Clive Addy used, back circa 1995, to describe what had gone wrong in one particular Canadian Army unit.

 

[Journeyman]

I hesitate to weigh in because my experience is so old and out of date, but......

Now that we've got that out of the way.....  :nod:

 

[FJAG]

I hesitate to weigh in because my experience is so old and out of date,

I think there is an important different between military law, which is the business of courts martial, and military justice, which, I firmly believe, is best administered by ship and unit officers, within the ship or unit, via summary trial.

My personal and undoubtedly biased opinion is that summary justice is fair and it works - there are times when more legalistic, formal court martial is essential but most of the things that matter most can be and should be dealt with summarily. Yes, mistakes can and do happen - we are, once again, only human - but they are rare, i think, and they happen in courts martial, too.

I agree entirely with your sentiment. Your experience is neither old nor out of date. The system you served under is essentially unchanged in concept although numerous details and procedures have changed.

I need to correct one part of your statement however. Technically there is a difference between military law and military justice although it is not what you stated.

Military law is the broad area of law that involves basically three components: military operational law, military administrative law and and military justice.

Within the category of military justice are the two major procedural subcategories of courts martial and summary trial. The two categories have the same essential purpose of administering discipline and are complementary. In part, but not solely, the systems are designed to satisfy firstly the need at the lower end of the scale to deal with minor service infractions quickly and using the local chain of command while secondly, at the more serious end (where punishments can be very serious indeed) it uses a more complex system that guarantees that legal rights, principles and procedures are scrupulously applied.

I think the line where the two systems meet may be debated from time to time and tweaked as opinions change but the fundamental need for a two tier system is sound and should always be retained. I've seen countries where the chain of command has either given up or has had taken away the ability to administer discipline in a summary fashion and IMHO that has never worked out well. I repeat what I said earlier: If you can trust your unit leaders to lead their men in battle then surely you can trust them to try their subordinates for AWOL or dirty boots.

:subbies:

 

[ModlrMike]

It is also useful to understand the different burdens of proof between the two processes.

The ST requires that the CO have a reasonable supposition that the offence occurred, and provides great leeway in determining the extent of that supposition, and the level of punishment warranted.

The CM requires the formal rules of evidence be observed, and that the judge have reasonable and probable grounds, based on the evidence that the accused committed the offence. This is then followed by the application of statute law and codified scales of punishment.

 

[FJAG]

It is also useful to understand the different burdens of proof between the two processes.

The ST requires that the CO have a reasonable supposition that the offence occurred, and provides great leeway in determining the extent of that supposition, and the level of punishment warranted.

The CM requires the formal rules of evidence be observed, and that the judge have reasonable and probable grounds, based on the evidence that the accused committed the offence. This is then followed by the application of statute law and codified scales of punishment.

Sorry ModlrMike but I have to disagree in part.

The standard of proof is the same for STs as it is for CMs. QR&O 108.20(7) provides: "The presiding officer shall consider the evidence received and the representations of the accused and shall determine whether it has been proved beyond a reasonable doubt that the accused committed the offence charged or any other offence of which the accused may be found guilty on that charge (see note (D))."

Proof beyond a reasonable doubt is also the CM standard.

As to evidence you're in the right ballpark. At a CM the court must follow both the Military Rules of Evidence as well as the general law of evidence of the land. At an ST QR&O 108.21 provides: "(1) The Military Rules of Evidence (see QR&O Volume IV, Appendix 1.3) do not apply at a summary trial.  (2) The officer presiding at a summary trial may receive any evidence that the officer considers to be of assistance and relevant in determining whether or not the accused committed any of the offences charged and, where applicable, imposing an appropriate sentence." As well as further provisions.

As to punishment there are clear limitations for STs: see QR&Os 108.24 and 108.25. Limitations are also set for CMs for each offence and in general see QR&O 103 and 104. These however are not "codified" punishments (i.e. a punishment that must be given), but instead are maximum punishments (i.e. anything up to this punishment may be given).

There are also very clear principles of sentencing. For CMs these are laid out in the general criminal case law relating to sentencing. For STs there is a guide to these principles for use by the CO or DO set out at S. 2 to Ch 14 to B-GG-005-027/AF-011 Military Justice at the Summary Trial Level v 2.2 12 Jan 2011. These generally adopt the main (but not all) elements of the general criminal law principles that apply at CMs. Link here: http://www.forces.gc.ca/en/about-reports-pubs-military-law-summary-trial-level/ch-14-sentencing-punishment.page?

As you can see, there is much similarity between STs and CMs especially as to finding of guilt and how to determine a proper punishment. The differences that are there are more in the nature of procedure simplification at the ST level to make the system capable of being run by non-legally trained officers and NCMs and in the scale of punishment that may be awarded.

:subbies:

 

[Edward Campbell]

Sorry ModlrMike but I have to disagree in part.

The standard of proof is the same for STs as it is for CMs. QR&O 108.20(7) provides: "The presiding officer shall consider the evidence received and the representations of the accused and shall determine whether it has been proved beyond a reasonable doubt that the accused committed the offence charged or any other offence of which the accused may be found guilty on that charge (see note (D))."

Proof beyond a reasonable doubt is also the CM standard.

As to evidence your in the right ballpark. At a CM the court must follow both the Military Rules of Evidence as well as the general law of evidence of the land. At an ST QR&O 108.21 provides: "(1) The Military Rules of Evidence (see QR&O Volume IV, Appendix 1.3) do not apply at a summary trial.  (2) The officer presiding at a summary trial may receive any evidence that the officer considers to be of assistance and relevant in determining whether or not the accused committed any of the offences charged and, where applicable, imposing an appropriate sentence." As well as further provisions.

As to punishment there are clear limitations for STs: see QR&Os 108.24 and 108.25. Limitations are also set for CMs for each offence and in general see QR&O 103 and 104. These however are not "codified" punishments (i.e. a punishment that must be given), but instead are maximum punishments (i.e. anything up to this punishment may be given).

There are also very clear principles of sentencing. For CMs these are laid out in the general criminal case law relating to sentencing. For STs there is a guide to these principles for use by the CO or DO set out at S. 2 to Ch 14 to B-GG-005-027/AF-011 Military Justice at the Summary Trial Level v 2.2 12 Jan 2011. These generally adopt the main (but not all) elements of the general criminal law principles that apply at CMs. Link here: http://www.forces.gc.ca/en/about-reports-pubs-military-law-summary-trial-level/ch-14-sentencing-punishment.page?

As you can see, there is much similarity between STs and CMs especially as to finding of guilt and how to determine a proper punishment. The differences that are there are more in the nature of procedure simplification at the ST level to make the system capable of being run by non-legally trained officers and NCMs and in the scale of punishment that may be awarded.

:subbies:

That's the key issue for me. It's the reason I think STs are "better" for most problems than are CMs. The ship's captain or CO knows his people and the situation - he knows the NCO who laid the charge and he knows the accused and he can weigh all the factors with, usually, an even hand. I know that I awarded punishments, in a few cases, because I was worried that a certain NCO was too harsh: fair enough, but too harsh. So I agreed that Bloggins was guilty but I tried to send a "message" (actually two or three messages) with a very modest sentence. Equally, I can recall surprising the regiment with the harshness of my sentences - needed commander of a command's review and approval - for the first offences of a certain type I tried; that "message" got through, too. In fact, one soldier, who I knew to be a ringleader but who had not be charged quickly requested a transfer - which I recommended against - when he understood that I was on to him and I was "out to get him," too. And, by the way, I did get him; he elected CM and got a very harsh sentence from it, based, I think, at least in some small part, on evidence from my people which was carefully, and fairly, honestly, gathered.

 

[Fishbone Jones]

RPG has to be reach in any investigation.

Otherwise the investigation ends.

RPG is the grounds to moving forward with a charge.

Reasonable and Probable Grounds is the requirement.

It is the legal basis upon which every charge, civil, military or otherwise, is based on.

If you don't have RPG, I will eat you in court.

 

[FJAG]

RPG has to be reach in any investigation.

Otherwise the investigation ends.

RPG is the grounds to moving forward with a charge.

Reasonable and Probable Grounds is the requirement.

It is the legal basis upon which every charge, civil, military or otherwise, is based on.

If you don't have RPG, I will eat you in court.

Good point, Recceguy.

There are actually two very similar terms involved.

In order to arrest an individual without warrant or to search incidental to arrest or to obtain a search warrant or to lay a charge or several other related issues, the police must have "reasonable and probable grounds" in each case.

However, in order to carry a case forward to trial, a prosecutor must be satisfied that he has a "reasonable likelihood of conviction." (Some jurisdictions use the term "reasonable prospect of conviction")

Note that the second standard "likelihood" is lower than the first one which requires "probable" grounds. In order to proceed to trial a prosecutor does not have to establish that a conviction is "reasonably probable" only "reasonably likely".

:subbies:

 

[Jarnhamar]

Thanks (all) for taking the time to post and pass this information on. It's not only very interesting and relevant but something that is barely touched on during the PLQ course when it probably should be a major component.

 

[Eye In The Sky]

The former OPME DCE 002 course (Mil Law) was a decent intro to the system.  Now that the OPMEs are no more, has there been anything put into place DLN-wise to replace it?