Over the past decade, there have been a total of 14,705 summary trials – on average 1,470 summary trials per year. This means, that year in year out, one out of every 44 CF members is subject to the Code of Service Discipline. An extraordinary high number.
More bad news follows:
As we know, the summary trial process is NOT governed by any rules of evidence including the non-compellability of the accused to be a witness against himself, adverse inference from the accused silence, or spousal privilege. The summary trial can, and does, actually rely on hearsay evidence and opinion evidence. At a summary trial, there is no ability for the accused to make Charter arguments that may result in a stay of proceedings or dismissal of the case. The accused cannot also ask for the recusal of the officer presiding at trial even if the latter may be anything but impartial. The level of disclosure provided to the accused at a summary trial is also not so thorough as the level of disclosure provided at court martial. There is more.
There are also no transcripts of summary trials. Only the sentence and the punishment(s) are recorded on a summary sheet. From this, there is no right to appeal the verdict or the sentence.
Even though the officer presiding at a summary trial is able to hand down harsh sentences including detention, demotion and hefty fines, the accused has no right to a lawyer. Yet, the right to retain and instruct counsel is provided for in the Canadian Bill of Rights, S.C. 1960 c. 44.
On the bright side, in recent years, the European Convention of Human Rights and various rulings on its applicability to military trials by the European Court of Human Rights have caused a number of countries, in particular the United Kingdom, to overhaul and amend their military judicial procedures.
Lately, the UK and Ireland have recognized this specific deficiency. Soldiers now convicted at a summary trial have an unfettered right to a hearing before an appeal tribunal made up of three members. An accused can also be represented by counsel at the Summary Appeal Court level.
There are NO legal or operational reason why similar changes could and should not be incorporated in Canada’s military justice system since our Charter is, in most respects, analogous in values and terms to the ECHR. This means that Canada could simply adopt the solution implemented by the UK by establishing a Summary Appeal Court where the accused is given the full panoply of rights. In the alternative, Canada could retain the current Summary Trial process but decriminalize it so that only disciplinary issues would be addressed at a summary trial.