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In summary, trials preferred to hearings

Bill C-77, which is currently before Parliament, would bring a “fundamental change” to the military justice system by amending the National Defence Act and related legislation to change the system of summary trials, creating a non-penal, non-criminal process for dealing with minor service infractions by military personnel.

Supreme Court of Canada

Bill C-77, which is currently before Parliament, would bring a “fundamental change” to the military justice system by amending the National Defence Act and related legislation to change the system of summary trials, creating a non-penal, non-criminal process for dealing with minor service infractions by military personnel.

As it stands, members of the Canadian Armed Forces who are charged with an offence can elect to be tried by court martial or by summary trial, depending on the seriousness of the offence – courts martial, which are similar to civilian criminal courts, are used for more serious offences. Summary trials are decided by a commanding officer and have fewer procedural protections. In 2017-2018 there were 596 summary trials and 62 courts martial.

What’s being recommended in Bill C-77 is that summary hearings take the place of summary trials, with a lesser burden of proof – a balance of probabilities instead of proof beyond a reasonable doubt. The bill introduces the concept of service infractions – non-criminal offences punishable by one or a combination of sanctions such as demotions, reprimands or loss of pay.

“The transition from summary trials to summary hearings is a fundamental change that would significantly alter the essence of the military justice system,” the CBA’s Military Law Section says in a submission to government, pointing out that while a number of comprehensive reviews of the military justice system have been conducted since 1998, none of those reviews indicated a need to reform the summary trial system.

“The CBA Section is concerned with the uncertainty surrounding summary hearings because its parameters will be set out in regulations, rather than in the National Defence Act (e.g. scope of service infractions and range of punishment/sanctions). With limited information available, we are concerned on how it may affect the chain of command, namely the unit commanding officer and the proper administration of discipline. We are also concerned that summary hearings would retain some penal aspects while diminishing the protection currently provided to the accused.”

The Section recommends that Parliament defer the transition to summary hearings until a comprehensive study of the impact of the proposed changes can be carried out.